Petition for Writ of Certiorari — Cedryck Davis, Petitioner v. Illinois

Supreme Court briefDec 22, 2020

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. IN THE

SUPREME COURT OF THE UNITED STATES

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~ PETITIONER.

(Your Name)

FILED.

DEC 2 2 20.20

vs.

fLa(g(»oP7ty>.S>iAA« of rX/fcvt></ - respondm!B6L0efct^uer^rsk

ON PETITION FOR A WRIT' OF CERTIORARI TO

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(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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I.

Whether Cedryck Davis’s convictions for the attempt murder of Naja

and Shawn Harringon should be reversed because the prosecution failed to

sustain its burden of proving him guilty beyond a reasonable doubt where the

evidence identifying him as one of the offenders was unreliable and

inconsistent. „ „ .

-

II.

-

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Whether Cedryck Davis’s cpnviction for the attempt murder of Naja

Harrington should be reduced to aggravated discharge of a firearm because

the State failed to show that he had the specific intent to kill Naja beyond a

reasonable doubt, and because the doctrine of transferred intent should not

apply to this case, as Naja was both an unintended victim, and remained

uninjured.,

III.

. 21

Whether Cedryck Davis was denied a fair trial where the prosecution

was permitted to introduce other crimes evidence, ostensibly for the purpose

of establishing identity, but which also unnecessarily informed the jury that

Davis was investigated by officers for a shooting two days before the shooting

in this case, based on a purported statement from a witness who denied his

statement entirely when he testified at trial. * . .

• J-

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I

LIST OF PARTIES

O^All parties appear' in the option of the case on the cover page.

• [ ] AH patties do not appear in the caption of the case on the cover page. A list of

■all parties to the proceeding- in the court whose judgment is the subject of tins.

. petition is as follows:

•«

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TABLE OF CONTENTS

OPINIONS BELOW.................................

.1

JURISDICTION..................................

a

... <3

• CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE...’:................... ..............................

LH 3

REASONS FOR GRANTING THE WRIT........... „.............. •.........

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CONCLUSION..... .............................. .............. ......... •

of fyffc/lSTSl'hjBsJ ..................................„

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...... 30

INDEX TO APPENDICES

APPENDIX A - People,

• APPENDIX B

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Innocence Project, Eyewitness misidentification, available at

https://www.innocenceproject.org/causes/eyewitness-misidentification/flast

visited Mar. 12, 2019) .... . \ r. ............................................ ........................ .. 15

.4-

Deborah Davis & William C. Follette, Foibles of Witness Memory for

Traumatic/high Profile Events, 66 J. Air L. & Com. 1421 (2001)....

16

Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation @f Event*

Duration by Males and Females, 1 Applied Cognitive Psychol. 3 (1987).

17

- W-

•;\ '

IN. THE

SUPREME COURT OF THE. UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below. '

OPINIONS BELOW

•

[ 1 Tor cases from federal courts: ajIa

The opinion, of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at Af'lA ______

■

or

[ ] has been designated for publication- but is not yet reported; or,

[ ] is unpublished. .

.. The opinion of the United States district court appears at Appendix

the petition and is

■ t ] reported at a)[A

.

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n has been designated for publication but is not yet reported: or,*

r ] is unpublished.

*

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Tor cases from

: state courts:

Tbe opinion of the highest state court to review the merits appears at

i Appendix

■ to the petition and is

DC reported- at

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or

[ ] has been designated for publication but is not yet reported'; or,

[ ] is unpublished.

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The opinion of the

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appears at Appendix JB__to the petition and is

[} reported at 3ozo 'XLAad o«f).

______ ____ ; or,

&<1 has been designated for publication but is not yet reported ; or,. ■

t 1 is unpublished..

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to

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JURISDICTION

• [ } For cases from federal courts: ^ lA

The date on which the United States Court of Appeals decided my case

was

[ ] No petition for rehearing, was timely filed in my case.

E ] A timely petition for rehearing was. denied by the United States Court of

Appeals on the following date:

**//*

' . , and a eopy of the

order denying rehearing appears at Appendix —£LL.L.

; [ ] An extension of time to file the petition for a writ of certiorari was granted

to and including,,

...... .

(date) on [

(date)

in Application No. A/ft

The jurisdiction of this Court is invoked' under 28 TJ. S. C* § 1254(1).

CXI For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix £> :'

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[ ] A timely petition for rehearing was thereafter denied on the following date:

—.ftJ IA

;______ _ and a copy of the order denying rehearing

appears at Appendix ** [A

t ] An. extension of'time to file the petition for a writ of certiorari Was granted

to and including

aJ/A(date) mV

MIA

(date) in

Application No. ^/a

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The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

-2-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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STATEMENT OF FACTS

Cedryck Davis and codefendant Deandre Thompson were indicted for

attempt first degree murders (while personally discharging a firearm) of

Shawn and Naja Harrington, and aggravated battery with a firearm to

Shawn. (C. 25, 30, 31).

Pretrial proceedings

The trial court denied the defense’s motion to quash arrest and

suppress Shawn’s and Naja’s identification of Davis. (C. 95; R. 124). The trial

court granted the prosecution’s motion to admit other-crimes evidence that

--------- Davis and Thompson shot Darren Dear two days before the Harrington

shooting over defense counsel’s objection. (C. 105, 119; R. 144-49). At the

hearing on the other-crimes motion, the prosecutor explained that, shortly

after the Harrington shooting, Charles Molette told police officers that he had

seen Thompson and Davis shoot at Dear two days before the Harrington

shooting and “word on the street” was that Thompson and Davis also shot at

the Harringtons (R. 139-40). Officers requested the crime lab to Compare the

fired bullets recovered from the Harrington shooting to the fired bullet

recovered from the Dear shooting, and there was a match. (R. 142). Officers

issued investigative alerts for Davis and Thompson, the men were arrested,

and were later identified by the Harringtons. (R. 140). The State also told the

court that one fired bullet from the Dear shooting matched fired bullets

recovered from the Harrington shooting (R.273). The,prosecutor argued the

other-crimes evidence that Davis and Thompson shot Dear should be

admitted on the issues of identity and the circumstances of their arrests. (R.

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140-41). The prosecutor also noted that Molette, not Dear, would testify

about the other-crimes evidence because Dear did not cooperate with the

investigation. (R. 148). The trial court allowed the other-crimes evidence to

be admitted solely on the issue of identity. (R. 149).

Jury Trial

Davis and Thompson were jointly tried by the same jury.

The State’s case

Charles Molette, who at the time of trial was serving a 5-year prison

sentence for a narcotics offense, denied discussing the Dear and Harrington

shootings with the police. (R. 390, 392-409). He testified that, on January 28,

2014, at 7:55 a.m. he was not in the area of 1100 North Lawndale, that he

did not know if Darren Dear was shot at that time, and that he did not know

Dear. (R. 392-93). He also stated he did not know Davis or Thompson, and he

could not recognize them in court (R. 392-93). He also denied meeting with

officers at the 11th District police station on January 30, 2014, or telling

them that he saw Davis and Thompson shoot Dear (R. 393). He denied telling

the same story to Assistant State’s Attorney (“ASA”) Anthony Kenney or

giving a written statement on February 3, 2014, at Area North. (R. 395).

Molette was then confronted with State Exhibit 1, which the prosecutor

asserted was a statement typed by ASA Kenney and signed by Molette. (R.

395).2 Although his name was on the statement, Molette stated that it was

not written in his handwriting. (R. 396). Two photo arrays containing Davis’

and Thompson’s photos, with Molette’s name next to them, were attached to

A copy of Molette’s written statement is included in the briefs

appendix.

-5-

the statement, but Molette denied drawing a circle around their photos. (R.

408). He denied telling the prosecutor any of the information contained in the

typed statement, and he denied identifying any persons in the photo arrays

attached to the statement. (R. 399-409).

Detective Edward McGovern testified that he was assigned to the Dear

shooting, and he received a fired bullet from medical personnel at a hospital.

(R. 557-59).

Police Officer Steve Jaglarski testified that he knew Molette prior to

the Dear shooting. (R. 647). On January 30, 2014, Officer Jaglarski was part

of a team investigating the Dear shooting, and he encountered Molette in

public. (R. 644). Molette had information about the Harrington shooting, and

he voluntarily went to the 11th District to speak to detectives. (R. 645).

Detective Hector Matias testified that on January 30, 2014, at the 11th

District, Molette told him that Davis and Thompson had shot at Dear on

January 28, 2014. (R. 658-61). Molette also provided information about the

Harrington shooting. (R. 660). Following Detective Matias’s direct

examination testimony, the trial court instructed the jury that the Dear

shooing was admitted into evidence on the issue of identification and was to

be considered by the jurors for that limited purpose. (R. 662).

ASA Kenney testified that he spoke to Molette about the Dear shooting

on February 3, 2014, at Area North. (R. 418:19). ASA Kenney stated that he

typed out Molette’s statement on February 3, 2014, read it with Molette, and

had him sign each page to confirm it was correct (R. 419-21). Detective Mark

Leavitt, who was “in-and-out of the room” during Molette’s interview, also

-6-

testified that Molette signed the statement. (R. 601). Leavitt also admitted he

did not remember the statement being typed by ASA Kenney, stating, “to tell

you the truth, I thought this was a handwritten.” (R. 627). Detective Matias

also testified that Molette signed the statement and array photos. (R. 696)

The statement was published and read to the jury. (R.553). The

statement said, in pertinent part, that Molette was standing outside with his

friends on January 28, 2014, at 7:55 a.m. on Lawndale Avenue, when he saw

a burgundy van with two men inside come to a stop (R. 422-23). He observed

the driver of the van, Thompson, whom he knew as “Stay-high,” get out of the

van and fire a gun at Dear. (R. 423-24). He saw Davis, whom he also knew,

reach his hand out of the front passenger seat of the van and fire a gun at

Dear. (R. 424-25). The gun Thompson shot “sounded like a .40 caliber” to

Molette. (R. 424). Deandre returned to the van’s driver’s seat and sped off. (R.

. .425). Dear suffered gunshot wounds to both arms and a graze wound to his

chest. (R. 425). A friend called an ambulance, and Molette ran to his aunt’s

house. (R. 425). The statement was a summary of what Molette had said, not

a word-for-word recitation. (R. .423). Molette also identified both defendants

in photo arrays and signed his name next to their photos. (R. 424, 427). When

asked why the statement was not videotaped, Kenney stated that he asked

Molette whether testified he preferred to do a typed or videotaped statement,

and Molette picked typed, and also stated that it was not procedure to

videotape statements in aggravated battery cases. (R. 438-41). Following

ASA Kenney’s testimony, the trial court instructed the jury that the Dear

shooing was admitted into evidence on the issue of identification and was to

m *7 *■

be considered by the jurors for that limited purpose. (R. 443-44).

After Kenney’s testimony, defense counsel moved for a mistrial, stating

that the other crimes evidence was improperly admitted, and incredible (R.

445-46). The court denied the motion (R. 446).

Shawn Harrington testified that on the morning of January 30, 2014,

he was driving with his 15-year-old daughter, Naja Harrington. (R. 448-449).

He was following his normal routine of dropping Naja at school before driving

to his job at another high school. (R. 448-449). Shawn was driving a rental

car because a student at his school had stolen his car. (R. 449, 478). He drove

south on Hamlin Avenue and stopped for a red light at the intersection of

Hamlin and Augusta Boulevard. (R. 449-450). Another car.stopped for the

light in front of his car. (R. 450). He testified that he saw man he later

identified as Davis near the corner: “He caught my attention because he was

gesturing towards me, so that’s what drew my attention to him.” (R. 477). He

estimated watching the man for five to ten seconds before the car’s rear

window shattered. (R. 450). He heard several gunshots and looked back and

saw another man standing alongside the car and shooting. (R. 450). The

window shattering was loud and frightening, and he instinctively pulled Naja

down and covered her with his body. (R. 471). He lost feeling in his legs, his

foot slipped off the brake petal, and the car rolled through the intersection,

coming to a stop when it hit the curb. (R. 452-53). Shawn narrated for the

jury a video of the shooting captured by a security camera. (R. 461-63).

Shawn told Naja and a pedestrian who offered assistance to call 911.

(R. 452-53). An ambulance transported him to the hospital, where he learned

-8-

that he suffered two gunshot wounds and was paralyzed from the waist

down. (R. 454, 463).

Shawn provided the police with descriptions of the mens’ jackets, but

not their complexions, hairstyles, or heights. (R. 473-74). He told the police

that the man standing near the corner wore a dark hoodie with light sleeves.

(R. 476). Three months after the shooting, he identified Davis in a lineup in

which Davis was the only individual wearing a dark hoodie. (R. 476, 479).3

Naja Harrington testified she saw two people on the sidewalk, facing

the passenger side of the car, when the car was stopped at the traffic light.

(R. 487). The man closer to the corner wore a black vest over a gray hoodie,

and the other man wore an orange hoodie. (R. 489). The men had their hoods

up, but she could see their faces. (R. 489-90). The man wearing the orange

hoodie was 15 feet away and alongside the car, and the other man, who was

closer to the intersection, was 20-25 feet away. (R. 490-92). She observed the

men for a few seconds. (R. 492). She heard gunshots, bullets striking the car,

and breaking glass, but she did not know from which direction the shots were

being fired. (R. 492-93, 518). She was scared. (R. 518). She was not looking at

the men when the shooting began and did not see the two men with guns or

shooting at the car. (R. 498). Shawn pulled her down and covered her with his

body! (R. 494). She went with her father to the hospital. (R. 498). She

described the shooters as two young African-American males, around 17years old, one wearing an orange hoodie and the other wearing gray and

•

Copies of the photos of Davis’s and Thompson’s lineups are included in

the briefs appendix. The trial exhibits are part of codefendant Deandre

Thompson’s record in appellate case number 1-17-1265.

-9-

black hoodie. (R. 522-23). She did not describe their faces, heights, hairstyles,

pants, or shoes. (R. 522, 531).

Four days after the shooting, at Area North, Naja identified Thompson

in a lineup in which all the participants wore hoodies with the hoods up and

were seated in order to remove height variations from the identification

process. (R. 499-503). On April 8, 2014, over three months after the shooting,

she identified Davis in a lineup, again, he was the only person wearing a

dark hoodie—and the hood was down and the participants were standing. (R.

.

520-21,692).

Officer Abraham Lara testified that he responded to the scene of the

shooting and seized a fired bullet from Shawn’s clothing. (R. 536). He

followed the ambulance to the hospital, where he received another fired

bullet from medical personnel. (R. 537-38).

Evidence Technician Adam Aranowski testified that he processed the

crime scene by photographing the area and collecting evidence. (R. 563-64).

He found three fired bullets inside the car and six .40 caliber shell casings,

one .380 casing, and one .380 live round on the sidewalk. (R. 583-540).

Detective Mark Leavitt testified that he was assigned to the shooting

and learned that the shooting was recorded by a security camera of the store

on the northwest corner of Hamlin Avenue and Augusta Boulevard. (R. 592).

He instructed other officers to secure the video. (R. 593). He returned to Area

North and learned that two days earlier, Molette had told Detective Matias

that Davis and Thompson shot at Dear at a location two blocks from the

Harrington shooting. (R. 595-96). A request was made to the Illinois State

“ 10“

Police Crime Laboratory to rush a comparison between the Dear bullet and

the Harrington bullets. (R. 598-99).

Illinois State Police Forensic Scientist Mark Pomerance, a firearm and

toolmark evidence specialist, testified that he expedited the comparison of

the firearm evidence collected in the Dear and Harrington cases. (R. 699708). He concluded that the four fired bullets from the Harrington case and

the single fired bullet in the Dear case were fired by the same gun. (R. 71823). The six fired .40 caliber shell casing from the Harrington case were all

fired by the same gun. (R. 725).

Detective Leavitt further testified that when he received Pomerance’s

report, investigative alerts were issued for Davis and Thompson. (R. 599,

603). Thompson was arrested on February 4, 2014, and Davis was arrested

on April 8, 2014. (R/604, 607).

The State rested, and the trial court denied defense counsel’s motion

for a directed finding. (R. 735). Davis’s defense counsel rested without

C

presenting evidence. (R. 742).

Closing arguments

The prosecution’s closing and rebuttal arguments stressed that both

Shawn and Naja identified Davis as the shooter near the corner. (R. 781,

831). The prosecutor also argued, “It is going to be up to you to determine

whether [Molette] was telling the truth when he said he wasn’t at the scene

of any shooting on the 1100 block of Lawndale on the morning of January

28th of 2014.” (R. 784). The prosecutor argued, “The Darren Dear shooting

absolutely establishes that these two men are the men that shot and shot at

-11"

Sean and Naja Harrington two days later on January 30th of 2014.” (R. 788):

Defense counsel asserted in closing argument that neither the

Harringtons’ identifications nor Molette’s statement were reliable and police

officers used this suspect evidence to wrongfully accuse Davis :

In a chaotic circumstance, shooting, broken

glass, being pulled down, being afraid, it makes you

incapable of being able to point out faces. And how

do we know that? We know that because the only

thing they can say to the police is a dark hoodie

and an orange hoodie, maybe a Bears jacket. This

is not enough to find someone guilty of an

attempted murder. (R. 817). .

In a circumstance where people want

someone to pay, we have no idea what they’re

capable of saying or doing. And you’ll see the

photograph of the lineup of Cedryck Davis when

you go back in that jury room. You will see how

suggestive it is. You will see the difference between

the Cedryck Davis lineup and the Deandre

Thompson lineup and how much more thorough the

Thompson lineup was versus the one for Mr. Davis.

Pay attention to that. (R. 818).

I also want you to look at the choices the

police made during the identification process that

were geared toward making these two cases link

up. I want you to look at those photo arrays I

talked to you about that will be sent back. And I

want you to see that it is extremely troubling that

all they did in my client's lineup, Mr. Davis, he is

the only one in a dark hoodie, the only one. (R.

823).

Ask yourself why the State puts a witness on

the stand in Mr. Molette that calls their own police

officers liars. They have to. And why do they have

to? Because even they know those IDs by the

-12-

Harringtons are not enough. They’re not enough. If

they were enough, there’s no reason to put a

witness up there to say, I never spoke to the police.

(R. 821).

Verdicts

The jury convicted Davis and Thompson of the attempt first degree

murders of Shawn and Naja'and aggravated battery of Shawn. (R. 868-69).

The jury also found that both Davis and Thompson discharged firearms

during the commission of the offenses. (R. 869).

Posttrial proceedings

Defense counsel filed a motion for a new trial alleging the prosecution’s

evidence failed to prove Davis guilty beyond a reasonable doubt and Molette’s

testimony/statement concerning the Dear shooting should not have been

admitted. (C. 180-81).

After hearing evidence in mitigation and aggravation, the trial court

merged the aggravated battery conviction into the attempt murder conviction

and sentenced both Davis and Thompson to 31 years’ imprisonment (11 years

.

plus the 20-year firearm enhancement) for the attempt murder of Shawn and

28 years’ imprisonment (8 years plus the 20-year firearm enhancement) for

the attempt murder of Naja. (C. 334; R. 914-15). The trial court found that

Shawn suffered severe bodily injury and ordered the sentences to run

consecutively for a total of 59 years’ imprisonment. (C. 334; R. 915). The trial

court denied Davis’ motion to reconsider sentence, and Davis appealed. (C.

199; R. 921).

~13-

Rej&otj.s Foa.

I.

j ~TU-o Pe4s4->o>o

Cedryck Davis’s attempt murder convictions should be

reversed because the evidence establishing his identity

as one of the two shooters was unreliable and

inconsistent.

The police investigation following the Harrington shooting yielded

skeletal descriptions of the two shooters from the two complainants, and the

security video that captured the shooting did not show the shooters’ faces.

Three months after the incident, Shawn and Naja identified Davis as the

shooter closer to the corner, but the identifications followed suspiciously

suggestive procedures. Further, the shooter near the corner fired a .380

caliber handgun, while the shooter who fired while standing alongside the

;

Harrington’s car used a .40 caliber handgun, the same .40 caliber handgun

used two days earlier in the Darren Dear shooting, which was admitted on

the issue of the shooters’ identities at the Harrington trial. Thus, no physical

evidence connected the shooter near the corner to the Dear shooting. In

addition, Charles Molette at trial recanted his prior statement to law

enforcement tying Davis to the Dear shooting. Together, the poor initial

descriptions, the suggestive lineup procedures, the lack of objective physical

evidence connecting Davis to the crime, and Molette’s recantation raise a

reasonable doubt of guilt, warranting reversal of Davis’s convictions.

Due process requires the State to introduce sufficient evidence to prove

beyond a reasonable doubt all of the elements of the charged offense. U.S.

^ Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2. When considering a

challenge to a criminal conviction based upon the sufficiency of the evidence,

\a reviewing court usually must determine whether, after viewing the

• 14 -

evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106

I11.2d 237, 261 (1985). Under Jackson, the fact finder’s factual determinations

are entitled to great deference, but they are not conclusive and do not bind

the reviewing court because the fact finder’s determinations may not be

reasonable, and a reviewing court should not accept unreasonable inferences.

People v. Smith, 185 I11.2d 532, 541 (1999). Thus, a reviewing court should

reverse outright when the State’s evidence was so unsatisfactory that it

raises a reasonable doubt of guilt. People v. Evans, 209 I11.2d 194, 209 (2004).

Davis’s convictions were secured solely through the lineup

identifications by Shawn and Naja and the purported statement of Molette,

which was recanted at trial. However, as discussed below in turn, the

identifications and Molette’s statement are unreliable.

First, eyewitness testimony is fallible, especially in circumstances such

as were present in the Harringtons’ case. See People v. Lerma, 2016 IL

118496, If 26 (factors contributing to misidentifications include stress and the

wearing of a partial disguise). As the Innocence Project documents,

“Eyewitness misidentification is the greatest contributing factor to wrongful

convictions proven by DNA testing, playing a role in more than 70% of

convictions overturned through DNA testing nationwide.” Innocence Project,

Eyewitness misidentification, available at

https://www.innocenceproject.org/causes/eyewitness-misidentification/ (last

visited Mar. 12, 2019). As discussed below, Shawn and Naja’s identifications

*15 -

do not constitute overwhelming evidence of Davis’s guilt as the mens’ hoods,

the enormous stress generated by the shooting, the short duration of the

offense, and suggestive identification procedures raise a reasonable doubt of

guilt. Further, these substantial infirmities in the prosecution’s case cannot

be saved by Molette’s recanted statement.

Stress The Harringtons were following their daily routine of

commuting to work and school when suddenly two men who had been in their

frames of vision for only a few seconds fired on their car, striking Shawn

twice. (R. 450-52, 454, 492-93). This terrifying incident likely eroded their

ability to accurately identify the shooters. The New Jersey Supreme Court in

State v. Henderson, 27 A.3d 872, 884, 904 (N.J. 2011), surveyed decades of

scientific and judicial findings regarding eyewitness identifications and

concluded, inter alia, “[e]ven under the best viewing conditions, high levels of

stress can diminish an eyewitness’ ability to recall and make an accurate

identification.” See also Deborah Davis & William C. Follette, Foibles of

Witness Memory for Traumatic/high Profile Events, 66 J. Air L. & Com. 1421,

1457 (2001) (a witness under stress is less likely to accurately identify the

subject). Both Shawn and Naja were exposed to a situation that could not

have been more stressful. They were in a car stopped at a stop light, their car

was boxed in by other vehicles positioned in front and behind their car, and

,

two men wearing hoods on the adjacent sidewalk, whom they had observed

for a matter of seconds, suddenly began shooting into the carl (R. 450-52, 48793). The aftermath of the shooting and Shawn’s serious injury no doubt

interfered with their ability to process what they had seen. Studies “have

- 16 -

shown consistently that high degrees of stress actually impair the ability to

remember.” Henderson, 27 A.3d at 894. Shawn and Naja were able to

provide the police with only skeletal descriptions of the shooters, two young

African American men, one wearing an orange hoodie and the other wearing

a dark vest over a gray hoodie or a dark hoodie with gray sleeves. (R. 474,

476, 522-23). These identifications, made in the line of gunfire and in the

midst of trauma, do not provide overwhelming proof of guilt.

The mens’ hoods Both shooters wore hoods. (R. 474, 489). And

although Shawn and Naja claimed to have seen the mens’ faces, ‘“[djisguises

(e.g., hats, sunglasses, masks) are confounding to witnesses and reduce the

accuracy of identifications.” Henderson, 27 A.3d at 907; (R. 450, 489).

Brief duration of the offense Studies of identifications show that

“‘a brief or fleeting contact is less likely to produce an accurate identification

than a more prolonged exposure.’” Henderson, 27 A.3d at 905. Both Shawn

and Naja said they had the opportunity to see the men for only five to ten

seconds before the shooting began, and thereafter they did not see the men.

(R. 477, 490). Further, studies show “that witnesses consistently tend to

overestimate short durations, particularly where much was going on or the

event was particularly stressful.” Henderson, 27 A.3d at 905; see also

Elizabeth F. Loftus et al., Time Went by So Slowly: Overestimation of Event

Duration by Males and Females, 1 Applied Cognitive Psychol. 3, 10 (1987).

Suggestive identification procedures The identification

procedures utilized by Detective Matias are recognized to be suggestive,

thereby increasing the likelihood of misidentification. First, Detective Hector

-17-

Matias himself, rather than an officer who did not know that Davis was the

subject, conducted the lineups. (R. 684). A “blind” officer should conduct an

array or lineup because “lineup administrators familiar with the suspect may

leak that information ‘by consciously or unconsciously communicating to

witnesses which lineup member is the suspect.’” Henderson, 27 A.3d at 896

(quoting Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and

Lineup Presentation Moderate the Effects of Administrator Knowledge on

Eyewitness Identification, 33 Law & Hum. Behav. 70, 71 (2009)). Second,

Detective Matias did not sequentially show the lineup participants to Shawn

and Naja. (R. 687-88). “Witnesses shown a sequential lineup are more likely

to compare each person in it only with their memory of the offender, rather

than choose whichever person looks the most like what the witness

remembers.” U.S. v. Ford, 683 F.3d 761, 765 (7th Cir. 2012) (citing studies).

Third, the lineup itself was overtly suggestive because only Davis wore a

dark hoodie, the same attire worn by the shooter. (R. 688). Moreover, unlike

Thompson’s lineup in which all the participants were seated and wearing

hoodies with the hoods over their heads, the individuals in Davis’s lineup

were standing, their heads were not covered with, anything, and only Davis

wore a hoodie. See Foster v. California, 394 U.S. 440, 442-43 (1969)

(defendant in lineup “stood out from the other two men by the contrast of his

height and by the fact that he was wearing a leather jacket similar to that

worn by the robber”); (R. 691-92). Wrongful identifications “are more likely to

occur when the suspect stands out from other members of a live or photo

lineup.” Henderson, 27 A.3d at 897-98. The suggestive lineups utilized by the

-18. *.

police in this case created a real danger of misidentification because “the

witness thereafter is apt to retain in his memory the image of the [lineup

participant] rather than of the person actually seen.” Simmons v. United

States, 390 U.S. 377, 383-84 (1968). The flawed identification procedures

used in Davis s case raise a reasonable doubt of the prosecution’s evidence.

Recanted other-crimes evidence of identification

The police investigation showed that the shooter near the corner fired

a .380 caliber handgun, while the shooter who fired while standing alongside

the Harringtons’ car used a .40 caliber handgun, the same .40 caliber

handgun used two days earlier in the Darren Dear shooting, which was

admitted on the issue of the shooters’ identities at the Harrington trial. (R.

574-84). Thus, no objective physical evidence connected the shooter near the

corner to the Dear shooting. In addition, Molette at trial recanted his prior

statement to law enforcement tying Davis to the Dear shooting. Molette’s

purported statement was completely inconsistent with his trial testimony.

Molette allegedly gave a statement to Chicago police officers claiming that he

' saw Davis and Thompson shoot at Dear. (R. 422-27). That statement

prompted officers to compare a bullet from the Dear Shooting to bullets from

the Harrington shooting, and when the bullets matched, Davis and

Thompson were arrested for the Harrington shooting. (R. 595-98, 603). At

trial, Molette denied seeing the Dear shooting, stated that he did not

recognize and could not identify Davis and Thompson in court, and denied

meeting with the officers and telling them about Davis and Thompson’s

involvement in either shooting. (R. 392-93). Furthermore, Molette denied

-19-

making the statement entirely at trial, the prosecutor who took the

statement admitted that it was a “summary” of Molette’s comments, not

word-for-word, and, although, the prosecutor and detectives testified that

Molette signed the statement, Molette denied doing so. (R. 396, 421-22, 601,

696).

Aside from Molette’s purported statement, there was no evidence that

Davis played any role in the Dear shooting, nor that the gun used in the Dear

shooting belonged to him, or that he fired the .40 caliber handgun at the

Harringtons. In other, words, although the ballistics evidence connected one

gun to both shootings, it did not show Davis shot that gun in either incident.

The fact that a single bullet from the Dear shooting matched bullets from the

Harrington shooting at most implies that one individual was involved in both

shootings, and the trial evidence showed that the individual that Harringtons

identified as Davis fired a .380 caliber handgun. (R. 574-84). Because of this,

Molette’s purported statement, even combined with the ballistics evidence

matching the bullets from both shootings, is not enough to show beyond a

(

.

reasonable doubt that Davis was the shooter.

Based on the totality of the evidence presented at triM, the State failed

f-.

to show beyond a reasonable doubt that Davis shot at the Harringtons. The

Harringtons’ identifications of Davis Harrington are unreliable, and Molette’s

purported statement did not sufficiently connect Davis to the Dear shooting

or, by extension, the Harrington shooting. Accordingly, Davis’s convictions

should be reversed.

-20-

II.

Cedryck Davis’s conviction for the attempt murder of Naja

Harrington should be reduced to aggravated discharge of a

firearm because the prosecution failed to show that Davis had

the specific intent to kill Naja beyond a reasonable doubt, and

because the doctrine of transferred intent should not apply to

this case, as Naja was both an unintended victim and was not

injured.

Cedryck Davis was convicted of the attempt murder of Naja

Harrington, who remained uninjured during the shooting forming the basis

of his conviction. (R. 868). The prosecution failed to meet its burden of

proving that Davis had the requisite intent to commit attempt first degree

murder. In particular, the prosecution never showed that Davis knew the

Harringtons or that he had any motive to shoot them. The State also did not

present any evidence to show that Davis knew that Naja was in the car at the

time of the shooting. In light of these facts, the State did not prove that Davis

had the specific intent to kill Naja, either directly, or through the doctrine of

transferred intent—a requirement for securing an attempt murder

conviction. Here, the evidence established only that Davis committed the

offense of aggravated discharge of a firearm, in that he discharged a firearm

in the direction of a person or in the direction of a vehicle he knew or should

:

/

'

have reasonably known to be occupied by a person. 720 ILCS 5/24-1.2(a)(2)

(West 2014). Accordingly, Davis’s conviction for attempt murder of Naja

should be reduced to aggravated discharge of a firearm.

This claim raises legal challenges to the prosecution’s evidence, and

thus review is de novo. People v. Smith, 191111.2d 408, 411 (2000).

A.

The prosecution failed to meet its burden of

proving beyond a reasonable doubt that

Thompson had the specific intent to kill Naja

. Harrington.

-21-

In order to uphold a conviction for attempt murder, the prosecution

must show that Davis acted with the specific intent to kill Naja. 720 ILCS

5/8-4(a), 9-1(a)(1) (West 2014); People v. Hill, 276 Ill.App.3d 683, 687 (1st

Dist. 1990) (“Proof of a specific intent to kill is an indispensable element of

attempt first degree murder”). Illinois courts have held that the mental state

of specific intent to kill means that mere knowledge that an act may result in

death or grave bodily harm does not suffice; nor does the intent to do bodily

harm to someone. People v. Mitchell, 105 I11.2d 1, 9-10 (1984); People v. Jones,

194 Ill.App.3d 412, 430 (1st Dist. 1989); People v. Winters, 151 IU.App.3d 402,

405 (2nd Dist. 1986).

This Court has observed that “[i]ntent is a state of mind and thus is

usually difficult to establish by direct evidence. Accordingly, specific intent to

kill may be, and normally is, inferred from the surrounding circumstances,

such as the character of the attack, the use of a deadly weapon, and the

nature and extent of the victim’s injuries.” People v. Parker, 311 Ill.App.3d

80, 89 (1st Dist. 1990). In the case of a shooting, the reviewing court may

consider the range, number of shots, and general target area when

considering whether a defendant had the intent to kiU. See People v. Bryant,

123 Ill.App.3d. 266, 274 (1st Dist. 1984). The fact that a firearm was used is

not dispositive; there must still be evidence that the shots were fired with the

specific intent to kill. People v. Henry, 3 Ill.App.3d 235, 238 (1st Dist. 1971).

The character of the attack must be considered in determining whether

specific intent to kill has been proven. People v. Ephraim, 323 Ill.App.3d

1097, 1110 (1st Dist. 2001).

- 22 -

In the present case, a review of the facts demonstrates that the

prosecution did not establish that Davis had the specific intent to kill Naja.

The prosecution did not present any evidence regarding Davis’s intent to kill

Naja. The prosecution never showed any possible motiye that Davis had to

shoot either of the Harringtons, let alone Naja. The prosecution never

presented evidence that Davis knew the Harringtons. Notably, the

prosecution also failed to demonstrate that Davis knew Naja was in the car

at the time of the shooting. In fact, because Shawn pushed Naja down before

Naja even had a chance to see a gun, it is entirely possible that she was never

even seen by the shooters. Finally, further undercutting the finding of

specific intent is the fact that Naja was not hit during the shooting.

In sum, the State’s evidence regarding Davis’s intent to kill Naja did

not establish his guilt for attempt murder beyond a reasonable doubt.

Accordingly, this court should reduce Thompson’s conviction for the attempt

murder of Naja Harrington to aggravated discharge of a firearm, which has a

lesser mental state than attempt murder. 720 ILCS 5/2-9(a) (West 2014).

B.

The doctrine of transferred intent should not

be applied in this case, as Naja Harrington

was both an unintended victim, and remained

uninjured.

Normally, a “conviction for attempt murder requires proof of the

v.

specific intent to kill someone.” People v. Brown, 2015 IL App (1st) 134049, If

42. However, this Court has established that the doctrine of transferred

intent applies in cases where the defendant intends to kill a specific person

but kills an unintended third person instead. People v. Thompson, 3l3

Ill.App.3d 510, 516 (1st Dist. 2000); People v. Valentin, 347 Ill.App.3d

-23-

946,953 (1st Dist. 2004). Furthermore, the same doctrine has been applied in

cases where the unintended third person is injured, rather than killed. Hill,

276 Ill.App.3d at 688 (noting, “the doctrine of transferred intent is applicable

in attempt murder cases”); Ephraim, 323 Ill.App.3d at 1108.

This court should hold that the doctrine of transferred intent cannot

support the attempt murder conviction of Naja, who was both an unintended

and an uninjured victim. First of all, a contrary holding would be against this

Court’s precedent. This .Court has consistently applied transferred intent to

attempt murder cases that involve an unintended and injured victim. See

e.g., Valentin, 347 IU.App.3d at 953 (“The specific intent to kill [an

unintentional victim] can be substantiated through the doctrine of

‘transferred intent,’ which applies when a third person is injured as a result

of a defendant’s assault upon another person”); Ephraim, 323 Ill. App. 3d at

1108 (“It is well established that in Illinois the doctrine of transferred intent

is applicable to attempt murder cases where an unintended victim is

injured”).

For instance, in People v. Hensley, 2014IL App (1st) 120802, f 1, this

Court upheld a defendant’s conviction where the defendant shot and killed

one intended victim and injured another unintended victim. The two victims

were driving in the same car when the defendant pulled up behind them and

began shooting. The defendant mistakenly thought that the owner of the car,

a different man, was in the car. Hensley, 2014 IL App (1st) 120802, | 1. In

explaining its reasoning, this Court noted, “The doctrine of transferred intent

- 24—

applies when a third person is injured as a result of a defendant’s assault

upon another person.” Hensley, 2014 IL App (1st) 120802, f 83.

The Supreme Court of Illinois and this Court, however, have been

silent as to whether the doctrine of transferred intent applies in situations,

like the present case, where the third person is both an unintended and

uninjured victim. This distinction is an important one because, to hold a

defendant liable for attempt murder where the unintended victim is not

injured would risk a miscarriage of justice. It would allow the prosecution to

charge an indefinite amount of attempt murder counts based on the number

of people in the vicinity, regardless of the presence of actual damage and

whether the defendant actually knew of their presence. This topic has been

discussed in several other states in recent years, yet the states have been

divided in the interpretation of the transferred intent doctrine.

Maryland, for instance, has repeatedly affirmed “there can be no

transferred intent when the unintended victim is neither killed nor injured.”

Pettigrew v. State, 175 Md.App. 296, 308 (2007). The court previously

declined to expand the doctrine of transferred intent where a thrown hammer

missed both the intended victim and a nearby infant in a crib, reasoning that

it is unsound to hold a person accountable for potential injuries that did not,

in fact, occur. Harrod v. State, 65 Md.App. 128, 137 (1985). Similarly, in

Mississippi, there must be a “an injury nexus” for the doctrine of transferred

intent to apply to the similar crime of attempt assault. Craig v. State, 201 So.

3d 1108, 1113 (Miss. App. 2016) (holding that the defendant was not liable

for attempt assault where the unintended third-party victim was unharmed).

* 25 t

California, likewise, has stated that transferred intent does not apply in

situations where someone shoots into a crowd intending to kill one person;

rather, a conviction can only be secured for attempt murder of uninjured

persons “if the evidence shows the defendant intended to kill everyone in the

victim’s vicinity in order to kill the intended victim.” People u. Falaniko, 1

Cal.App. 5th 1234, 1243 (2016).

By contrast, Pennsylvania’s Supreme Court held that unintended

victims do not have to be injured in order for the doctrine of transferred

intent to apply. Commonwealth v. Thompson, 559 Pa. 229, 241 (1999). This

decision, however, has been criticized by Pennsylvania’s lower courts. The

state’s appellate courts are urging the Supreme Court to reconsider the

ruling and to follow Maryland’s interpretation of the doctrine because it

“retains the sound and commonly understood notion that the unintended

victim must be actually injured before the doctrine of transferred intent may

apply.” Commonwealth v. Jackson, 955 A.2d 441, 450 (Pa. Super. Ct. 2008)

Moreover, applying transferred intent to cases where the unintended .

victim remains uninjured has the potential for dangerously overbroad

charging. For instance, if this Court was to hold that a defendant was liable

for any uninjured crime victim through the doctrine of transferred intent, the

State could charge for 500 counts of attempt murder simply because there

were 500 unintentional victims in the vicinity of a specified victim, even

when none of the 500 were in fact injured. On the same basis Davis was

charged with the attempt murder of Naja, he could have been charged with

attempt murder for people walking down the street, waiting in their cars for

-26-

the stoplight to change color, or walking their dog on the nearby sidewalk. As

the Maryland courts have noted, “[t]he absurd result [of extending the

doctrine] would be to make one criminally culpable for each unintended

victim who, although in harm’s way, was in fact not harmed by a missed

attempt towards a specific person.” Harrod, 65 Md.App. at 137.

Likewise, the breadth of applying transferred intent to uninjured,

unintended victims is precisely why Pennsylvania appellate courts have

criticized the decision of the state’s supreme court; the Pennsylvania courts

are obligated to apply the doctrine of transferred intent in cases where the

defendant merely raised his gun in the direction of a potential victim without

actually shooting. Jackson, 955 A.2d 441, 445-46. To avoid such absurd

results, this Court should instead apply a narrow reading of the transferred

intent argument, and reduce Davis’s conviction for attempt murder of Naja to

the lesser offense of aggravated discharge of a firearm, as she was an

unintended victim and was not injured.

In summary, the prosecution provided no evidence ofavis’s specific

intent to kill Naja offered no motive in their case whatsoever, and provided

no evidence that Davis even knew that Naja was in the car at the time of the

shooting. Because the prosecution did not prove beyond a reasonable doubt

Davis had the Specific intent to kill Naja, and because the doctrine of

transferred intent should not apply to Naja, an unintended third party who

was not injured, Davis’S conviction for attempt murder of Naja should be

reduced to aggravated discharge of a firearm.

-27-

. t

III.

Cedryck Davis was denied a fair trial where the

prosecution was permitted to introduce other-crin

evidence, ostensibly for the purpose of establishing \

identity, but which also unnecessarily informed the jury v

that Davis was investigated by officers for a shooting two

days before the Harrington shooting, based on a

purported statement from a witness who denied his

statement entirely when he testified at trial.

Prior to trial, the prosecution moved to admit evidence that Cedryck

Davis and Deandre Thompson had shot at Darren Dear two days before the

Harrington shooting (C. 125). The prosecution’s other-crimes motion

explained that, on January 30, 2014, officers interviewed Charles Molette,

who stated that he saw Davis and Thompson shoot Darren Dear on January

28, 2014. (C. 125). The State compared a bullet from the Dear shooting to

bullets from the Harrington shooting, determined that they were fired from

the same gun, and arrested Thompson and Davis based on this evidence. (C.

125-27). Charles Molette’s statement was highly prejudicial, and, due to its

unreliability, was not probative. Thus, it should not have been presented to

the jury, and Davis’s conviction should be reversed and remanded for a new

trial where he is not unfairly prejudiced by this improper evidence.

A defendant is entitled to have his guilt or innocence determined solely

with reference to the crime with which he is charged. People v. Gregory, 22

I11.2d 601, 602-03 (1961). Improperly admitting evidence of other-crimes

evidence violates a defendant’s right to due process and a fair trial by an

unbiased jury. U.S. Const., amends. V, VI, XIV; Ill. Const. 1970, art. I, §§2, 8,

13; People v. Lindgren, 79 I11.2d 129, 141-44 (1980). Generally, other-crimes .

evidence is inadmissible if it is meant to demonstrate a defendant’s

propensity to engage in criminal activity. People v.iMcKibbins, 96 Ill.2d 176,

- 28~

r --

•O'

182 (1983). Evidence of other-crimes may be admissible for another relevant

purpose, including identity. McKibbins, 96 I11.2d at 182.. For other-crimes

evidence to be admissible, it must be relevant and the probative value must

outweigh the prejudicial effect. People v. Bedoya, 325 Ill.App.3d 926, 937 (1st

Dist. 2011); People v. Nunley, 271 Ill.App.3d 427, 431 (1st Dist. 1995). It is

the duty of the trial court to take care to protect against prejudice and guard

against overkill when admitting other crimes evidence. People v. McCray, 273

Ill.App.3d 396, 402-03 (1st Dist. 1995); People v. Olson, 96 Ill.App.3d 196,

197-198 (2nd Dist. 1981) (the court must balance relevance of evidence

against its tendency to inflame and prejudice the jury). The trial court abuses

its discretion by admitting improper other-crimes evidence in a defendant’s

trial. People v. Maxwell, 148 I11.2d 116, 131 (1992).

Here, the trial court should not have admitted Molette’s statement

because it was highly prejudicial, and was not probative. The Darren Dear

shooting evidence had very limited probative value because Molette denied

making the statement regarding the shooting at trial, and because there was

little other evidence that this shooting had even occurred, aside from this

alleged statement. The jury was presented with the following statement,

purportedly from Molette, but which Molette denied ever making:

Charles states that on January 28, 2014, at

7:55 AM, he was standing outside with 5 other

people on Lawndale at the intersection with

Thomas. Charles states that he was standing on

the West side of Lawndale with his friends. Charles

states that a van drove East on Thomas and made

a right turn onto Lawndale. Charles states that the

van was a burgundy Montana van. Charles states

that he saw two men inside the van, one in the

-29-

front driver seat and one in the front passenger

seat.

Charles states that the van came to a stop

once it turned onto Lawndale. Charles states that

he observed the driver of the van exit and run to

the back of the van. Charles states that the driver

was wearing a black hooded sweatshirt and had his

hood pulled up on his head.

Charles states that he recognized the driver

of the van as Deandre Thompson. Charles states

that he knows Deandre as “stay-high.” Charles

states that he has known Deandre since the

summer of 2012. Charles states that he saw

Deandre everyday from the time he met him until

the shooting. Charles identified Exhibit #1 as a

photo of Deandre.

Charles states that he saw Deandre stand at

the back of the van and fire a gun, which sounded

like a 40 caliber. Charles states that Deandre was

shooting at Darren Dear, who he knows as “Lil D.”

Charles identified Exhibit # 2 as a photo of Darren.

Charles states that he heard bullets strike the gate

behind him.

)•

•> :

Charles states that he saw the passenger of

the van reach his right hand out of the vehicle and

fire a gun at Darren Dear. Charles states that he

saw the van’s passenger’s face and recognized him

as Cedryck Davis, who he knows as Little Ced.

Charles states that he had seen Cedryck around his

neighborhood, but has never spoken to him.

Charles states that he Saw Cedryck first in 2004

and saw him every day since then up until the

shooting. Charles identified Exhibit No. 3 as a

photo of Cedryck.

Charles states that Cedryck was shooting at

Darren. Charles states that Darren was shot in his

left and right arms and a bullet grazed Darren’s

chest. Charles states that Deandre ran back into

the driver’s seat of the van and drove at a fast

speed south on Lawmdale. Charles states that

Deandre made a right on to Augusta. Charles

-30-

states that he ran northbound on Lawndale, then

ran back to his friend Darren.

Charles states that one of his friends called for an

ambulance. Charles states that he ran west on

Thomas until he reached his aunt’s house on

Karlov. Charles states that since the shooting, he

has not seen Deandre or Cedryck.

(R. 422-28).

When confronted with this statement at trial, Molette denied it

entirely. Molette told the jury that, on January 28, 2014, at 7:55 a.m. he was

not in the area of 1100 North Lawndale, that he did not know if Darren Dear.

was shot at that time, and that he did not know Darren Dear, Thompson or

Davis. (R. 392-95). He did not identify Thompson or Davis in court (R. 392).

He also denied making any statements about the shooting, or identifying

either defendant in a lineup (R. 392-95, 409). Further, the statement was

typed, not handwritten by Molette, and Assistant State’s Attorney (ASA)

Anthony Kenney testified the statement was a summary of what Molette had

said, not word-for-word. (R. 423). The prosecution then introduced ballistics

evidence showing that a bullet from the Dear shooting matched bullets from

the Harrington shooting to argue that Davis was involved in both crimes. (R.

723-25).

In People u. Martin, 408 Ill.App.3d 44, 46 (1st Dist. 2011), this Court

allowed evidence of a previous shooting where the same gun was used in both

shootings, but the other crimes evidence was much more probative than in

Davis’s case. First of all, the previous shooting evidence in Martin was

introduced through testimony from the victim of the previous shooting, who

actually testified to having been shot by the defendant, and identified the

'31-

defendant at trial. Martin, 408 Ill.App.3d at 47-48. Furthermore, there was a

surveillance video presented at trial depicting the defendant as the shooter.

Martin, 408 Ill.App.3d at 47.

Martin is readily distinguishable. In this case, as in Martin, ballistics

evidence revealed that the same gun was used in both the Dear and

Harrington shootings, but there was no supporting information here about

the Dear shooting indicating its reliability. Darren Dear did not cooperate

with the police investigation, much less testify at Davis’s trial, and thus, he

never indicated either Davis or Thompson shot him. (R. 665). Thus, the only

evidence presented at Davis’s trial concerning the Dear shooting was

Molette’s recanted statement. Whereas the other-crimes evidence presented

in Martin was presented through live testimony of the actual victim of the

other crime, the prosecution in Davis’s case presented this evidence only

through the purported statement of Molette, who recanted the entire

statement. Furthermore, whereas the other-crimes evidence in Martin was

corroborated by a videotape, here, aside from Molette’s purported statement,

, there was no evidence that Davis was involved in the Dear shooting.

Although one gun was part of the Dear shooting and the Harrington

shooting, nothing aside from Molette’s recanted statement indicated that

Davis or Thompson fired at Dear. Thus, this evidence had very limited, if

any, probative value.

According to the prosecution, the probative value of the evidence arose

when a bullet from the Dear shooting was found to match bullets from the

Harrington shooting. (C. 126-27). Contrary to the prosecution’s assertions,

- 32 «

however, this evidence has little value in terms of Davis’s identity. As

discussed in Argument I, the Dear shooting and the Harrington shooting both

allegedly involved two perpetrators, and two guns. Thus, the fact that a

single bullet from the Dear shooting matched bullets from the Harrington

shooting fired by the man identified as Thompson, the Dear bullet does

nothing to directly implicate Davis in the Harrington shooting. Furthermore,

it is possible for a gun to have been used in two shootings, but by different

people. The Darren Dear ballistics evidence was not probative of Davis’s

identity as a shooter in the Harrington case.

Any probative value that this other-crimes evidence did have was far

outweighed by the prejudicial effect. The fact that the jury heard evidence

that Davis was identified as having committed another violent shooting, just

two days prior to the Harrington shooting, was highly prejudicial and could

have been used by the jury as propensity evidence. Finally, the statement

included Molette’s opinion that the gunshot in the Dear shooting “sounded

like a .40 caliber” which, although completely unsubstantiated and

speculative, is highly prejudicial, as one of the guns in the Harrington

shooting was a .40 caliber. (R. 424, 713).

Without the introduction of Molette’s statement, the jury would only

have had to decide the guilt of Davis based only on the strained

identifications of Shawn and Naja Harrington, who had only a few seconds to

view the perpetrators before being placed under extreme duress. With the

unreliable Darren Dear evidence, however, Davis was portrayed as an

individual who perpetrated two violent shootings in broad daylight, just two

~ 33 -

days apart from one another. This evidence was too prejudicial to have been

admitted, and without it, there is a high probability that Davis would not

have been convicted. Accordingly, this matter should be reversed and

remanded for a new trial.

This issue is fully preserved. Defense counsel filed a response to the

State’s other-crimes motion asking for the Darren Dear evidence to be barred,

and argued at a pre-trial hearing that the State’s motion should be denied (C.

119; R. 144-45). Defense counsel also argued that the Dear evidence should

)

not have been admitted in its motion for a directed verdict, and raised this

issue in Davis’s motion for new trial. (C. 179; R. 422). This claim is therefore

reviewed for harmless error. See, e.g., People v. Maldonado, 398 Ill.App.3d

401, 414-15 (1st Dist. 2010) (holding that an issue was preserved for

appellate review where the defendant “raised it in both his reply to the

State’s motion in limine and in his posttrial motion”); People v. McLaurin,

235 I11.2d 478, 495 (2009) (holding that “where the defendant has made a

timely objection and properly preserved an error for review, the reviewing

court conducts a harmless-error analysis in which the State has the burden of

persuasion with respect to prejudice”).

The Illinois Supreme Court has held that “the erroneous admission of

evidence of other crimes carries a high risk of prejudice and ordinarily calls

for reversal.” Lindgren, 79 I11.2d at 140. “In a case in which other-crimes

evidence is erroneously admitted, the conviction should only be upheld where

the properly admitted evidence is so overwhelming that no fair-minded jury

could have voted for acquittal.” Lindgren, 79 I11.2d at 141; People v. Thigpen,

- 34 -

c

c.

. 0

306 Ill.App.3d 29, 39 (1st Dist. 1999) (holding that the improper admission of

other-crimes evidence “calls for reversal unless the record affirmatively

establishes that no prejudice occurred”).

The evidence in the instant case was not strong enough to overcome

this high burden of showing harmless error, without the inadmissible Darren

Dear other crimes evidence. Without the statement, the prosecution could not

have linked the bullets from the Dear shooting to those in the Harrington

shooting, and the only remaining evidence linking Davis to the Harrington

shooting would have been Shawn and Naja Harrington’s suggestive lineup

identifications and their tainted in-court identifications. As discussed in

Argument I, this evidence was unreliable in light of narrow opportunity for

Shawn and Naja to view the offenders. Given the sparsity of evidence tying

Davis to the shooting, the improper admission of the other-crimes evidence of

the Dear shooting was not harmless error. Thus, this Court should remand

for a new trial without the improper other-crimes evidence.

i

-35-

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CONCLUSION

••

Tit® petitioii for a writ of certiorari should be granted.

Respectfully submitted,

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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