People v. Fornear

People v. Fornear, No. 81902

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.

Docket No. 81902--Agenda 9--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID FORNEAR,
Appellant.
Opinion filed May 22, 1997.

JUSTICE HARRISON delivered the opinion of the court:
Defendant, David Fornear, was charged by indictment in the
circuit court of Lake County with aggravated discharge of a firearm
(720 ILCS 5/24--1.2(a)(2) (West 1992)), aggravated battery with a
firearm (720 ILCS 5/12--4.2 (West 1992)), unlawful use of weapons
by a felon (720 ILCS 5/24--1.1 (West 1992)), and unlawful use of
weapons (720 ILCS 5/24--1(a)(7) (West 1992)) in connection with the
shooting of his fiancée, Michelle Wilkinson. The unlawful use of
weapons by a felon charge was severed for trial, and a jury
returned verdicts of guilty of aggravated discharge of a firearm,
unlawful use of a weapon, and an uncharged count of reckless
conduct (720 ILCS 5/12--5 (West 1992)), which, at defendant's
request, the jury was instructed to consider as a lesser-included
offense of the aggravated battery count. He was acquitted of the
aggravated battery with a firearm charge.
The trial court sentenced defendant to a 13-year term of
imprisonment for aggravated discharge of a firearm and a concurrent
5-year term for unlawful use of weapons. The reckless conduct
charge was not addressed by the sentencing court. The State's
motion to nol-pros the unlawful use of weapons by a felon charge
was granted. The appellate court, with one justice dissenting,
affirmed. 283 Ill. App. 3d 171. We allowed defendant's petition for
leave to appeal (155 Ill. 2d R. 315), which raises, as its sole
issue, whether the jury's verdicts of guilty of aggravated
discharge of a firearm and reckless conduct are legally
inconsistent.
The State adduced the following evidence at trial. It was
stipulated that, if called to testify, Colleen Kay would state that
she is employed as a dispatcher by the Wauconda police and fire
departments. At approximately 12:13 a.m. on November 15, 1993, Kay
was on duty when she received a 911 call from a man requesting
rescue services for a person who had been shot. Kay would further
state that all incoming 911 calls are recorded on the dictaphone
tape recorder at her work station, and that State's exhibit No. 2
is a true and accurate recording of the entire telephone
conversation that took place at that date and time. State's exhibit
No. 2 was played for the jury in open court and admitted into
evidence. On the recording, the following colloquy, inter alia, is
heard:
"KAY: 911, what is your emergency?
CALLER: My girlfriend was shot.
KAY: Your girlfriend was shot?
CALLER: Yeah, I think she was.
KAY: Where is she?
CALLER: 27358 Route 176. I'm at a pay phone
[be]cause we don't have a phone at home.
* * *
KAY: How do you know she got shot?
CALLER: She was mad at me and she was gonna shoot me
and the gun went off and I looked at her chest and
there's a little bullet thing.
KAY: Is she conscious?
CALLER: Yeah, but she's scared she's dying or
something. Somebody's gotta get there.
* * *
KAY: What kind of a gun was it?
CALLER: A 22.
KAY: Okay.
CALLER: Okay. I gotta get back there. Send them
right away please."
Blake Wilkinson, the nine-year-old son of Michelle Wilkinson,
testified that in November 1993, he and his younger sister lived
with their mother and defendant in Wauconda. On the night of the
shooting, Blake was awakened, went into his mother's room and found
defendant crying and saying: "Don't do this to me." Blake saw his
mother lying on the bed looking up at the ceiling with her mouth
open and her skin "all white." Blake identified State's exhibit
Nos. 18 and 19 as photographs of a shotgun belonging to defendant.
Officer David Walz, of the Island Lake police department,
testified that about midnight on November 15, 1993, he monitored an
emergency call to the Wauconda fire department requesting that an
ambulance be sent to a house on Route 176 in Wauconda Township.
When Walz arrived, he saw a black pickup truck in the driveway with
its hazard lights flashing. Walz stated that he saw a man, later
identified as defendant, walking toward the ambulance and waving
his arms. Walz intercepted defendant, who was yelling to the
ambulance crew to get into the house to help his fiancée who had
accidentally been shot. Walz asked defendant where the gun was
located, and defendant told him that the gun was in the bedroom
with his fiancée. Walz testified that he then handcuffed defendant
and walked him toward the squad car of Lake County Sheriff's Deputy
Byrne, which had just arrived. Walz bent defendant over the trunk
of the squad car to search him for weapons and, finding none,
locked defendant in the back seat.
Mark Abernathy, a Wauconda fire fighter and paramedic,
testified that he was in charge of the ambulance crew that answered
the emergency call. The crew encountered a woman in the bedroom of
the house who was lying on the bed with her legs crossed "Indian
style." The woman was in distress, and in answer to their
questions, told them that she had been shot twice. Abernathy stated
that his crew examined the woman and found a single entry wound in
her right shoulder, near the collarbone.
Dr. Stephen Rivard, an emergency physician at Good Shephard
Hospital, testified that on November 15, 1993, he treated Michelle
Wilkinson for a gunshot wound. Rivard observed that Wilkinson had
a puncture wound at the base of her neck and was paralyzed. A chest
X ray revealed a metal fragment lodged in Wilkinson's left lung and
bone fragments "around the middle of the thoracic spine area."
Rivard opined that the bullet had entered either from above
Wilkinson or in front of her, if she had been bending forward, and
that the shot had come from a distance greater that two or three
feet. Blood tests showed that Wilkinson's blood-alcohol content was
"170 milligrams," and that she had consumed cocaine and
amphetamines.
Detective Scott Robin, an evidence technician with the Lake
County sheriff's department, testified that he arrived at the site
of the shooting at approximately 1:30 a.m. on November 15, 1993.
Robin stated that, while searching the bedroom of the residence for
evidence, he found a .22-caliber semiautomatic pistol lying on the
floor. A live round was "chambered in the weapon," and a magazine
for a pistol was located several inches away. Robin testified that
he discovered two live .22-caliber rounds on the floor in the same
area as the weapon, and two spent .22-caliber shell casings, one
near the corner of the room on the floor, and a second on top of a
quilt at the foot of the bed. A 16-gauge bolt-action shotgun was
also found in the bedroom.
Robin further testified that he discovered what he believed
was a bullet hole above the head of the bed where Wilkinson was
found. The hole was 6 feet, 1« inches above floor level, and the
interior diameter of the hole was approximately 0.23 of an inch,
consistent with a .22-caliber bullet hole. Robin was unable to
retrieve a bullet from the interior wall behind the hole. Robin
stated that although there were additional holes in the bedroom
walls, including nail and BB holes, none were consistent with a
bullet hole. On cross-examination, Robin conceded that he could not
conclusively state that the hole above the bed was a bullet hole,
nor could he determine when the hole had been made.
Robert Wilson, a firearm and tool mark examiner with the
Northern Illinois Police Crime Laboratory, identified the pistol
taken from the scene as a "Ruger standard Mark One" .22-caliber
semiautomatic pistol. Wilson testified that the pistol had one mode
of firing, a single action, which means that the trigger must be
pulled each time for the weapon to fire. Wilson stated that tests
indicated the two spent cartridge casings found on the bedroom
floor were fired by the Ruger pistol. Wilson described a magazine
as "a portion of the firearm that is filled with live rounds and
inserted into the firearm," and identified the magazine found near
the pistol as a "Ruger standard magazine" which fits that firearm.
Wilson further stated that, after a bullet is fired from this
pistol, its spent cartridge is ejected up and to the right.
Wilson also testified that he had examined the shotgun taken
from the bedroom and described it as a J.C. Higgins 16-gauge bolt-
action shotgun in working order. Wilson stated that the shotgun's
barrel and stock had been shortened after it left the factory and
that its overall length was 26« inches, with the barrel measuring
15 inches. On cross-examination, Wilson testified that the Ruger
pistol had a "light trigger pull," and admitted that if the last
time the weapon was fired it was laid to rest with a live round in
the chamber and the safety in the off position, it could be fired
by pulling the trigger without having to pull the bolt back.
Deputy John Byrne, of the Lake County sheriff's department,
testified that he spoke to defendant while he was locked in Byrne's
squad car at the scene. Defendant was crying and told Byrne that he
was fighting with his fiancée when "the gun fell off the bed, and
went off."
Deputy Robert Randall, of the Lake County sheriff's
department, testified that after placing defendant under arrest, he
drove defendant from the Wauconda police station to the sheriff's
office in Waukegan. During the trip, defendant repeatedly stated
that it was ridiculous that he was being charged with shooting his
girlfriend, because he had not even been in the room at the time.
The defense rested without presenting evidence.
The appellate court majority affirmed defendant's convictions,
stating: "Our examination of the elements of the offenses of
reckless conduct and aggravated discharge of a firearm leads to the
conclusion that, under the facts of this case, the requisite mental
states for these offenses are legally compatible." 283 Ill. App. 3d
at 177. Before this court, defendant argues that the appellate
court's finding that the mental states of knowledge and
recklessness were not legally inconsistent is in direct conflict
with this court's opinion in People v. Spears, 112 Ill. 2d 396
(1986). We agree with defendant, and with the appellate court
dissent (283 Ill. App. 3d at 181 (Rathje, J., dissenting)), that
Spears is dispositive.
In Spears, the evidence presented at trial established that
the defendant fired three shots in rapid succession: one bullet
struck his estranged wife, one hit both her and another woman, and
the third caused no injury. The jury returned guilty verdicts as to
the charged offenses of attempted murder and two counts of armed
violence (based on the great-bodily-harm form of aggravated
battery), and also found the defendant guilty on two uncharged
counts of reckless conduct, which were considered at his request.
In affirming the appellate court's order of a new trial on all
counts, this court held the verdicts represented a legally
inconsistent finding that the defendant acted intentionally,
knowingly and recklessly when he performed the same acts.
In the instant case, the appellate court, while acknowledging
Spears, reasoned as follows:
"[A]n offender who endangers another by reckless
conduct intentionally or knowingly performs the
endangering acts, such as discharging a firearm. ***
*** The offense of aggravated discharge of a firearm
required only that the jury find that defendant knowingly
or intentionally performed the act of firing the pistol
in the direction of the victim. Assuming the jurors also
found that defendant intentionally fired the weapon with
a conscious disregard for whether his actions would
endanger or injure the victim, they could have concluded
properly that defendant was guilty of both aggravated
discharge of a firearm and reckless conduct." 283 Ill.
App. 3d at 179.
However, the argument that the mental states involved herein
are not mutually inconsistent, because the mental state of
knowledge "includes" the mental state of recklessness, was raised
and rejected in Spears. Spears, 112 Ill. 2d at 407-08. As the
Spears court explained: "The fatal flaw in this argument is that it
totally blurs the distinction between the mental state of knowledge
and the less culpable mental state of recklessness by assuming that
the two invariably coexist." Spears, 112 Ill. 2d at 408. We
continue to adhere to the holding of Spears, and its predecessor,
People v. Hoffer, 106 Ill. 2d 186 (1985), that recklessness and
knowledge are mutually inconsistent culpable mental states.
The Spears court additionally provided the "essential
framework for analyzing the consistency of jury verdicts in the
troublesome context of multiple shots or victims," stating:
"[W]here a claim of inconsistent guilty verdicts
involves multiple shots or victims, the question is
whether the trier of fact could rationally find separable
acts accompanied by mental states to support all of the
verdicts as legally consistent. ***
*** We believe that the substance of the allegations
charging the defendant, as an unequivocal expression of
prosecutorial intent [citation], and what the evidence
showed in relation to those charges, are of particular
importance in determining whether guilty verdicts could
rationally and consistently be based upon separable acts
accompanied by the requisite mental states." Spears, 112 Ill. 2d at 405-06.
In the instant case, count I of the indictment stated in
pertinent part: "[D]efendant *** committed the offense of
aggravated battery with a firearm, in that [he] in committing a
battery *** knowingly without legal justification caused an injury
to Michelle Wilkinson by means of the discharging of a firearm in
that said defendant shot Michelle Wilkinson in the chest." Count II
of the indictment charged in pertinent part: "[D]efendant ***
committed the offense of aggravated discharge of a firearm, in that
[he] knowingly discharged a firearm *** in the direction of
Michelle Wilkinson." According to the jury instructions, proof of
the charge of aggravated discharge of a firearm depended on a
finding that defendant knowingly discharged a firearm in the
direction of another person. The aggravated battery with a firearm
charge would be proved if the jury found that defendant knowingly
caused injury to another by discharging a firearm, and the reckless
conduct charge would be proved by a finding that defendant
recklessly performed an act that caused bodily harm to another. The
jury also received an instruction that it might render a guilty
verdict as to aggravated battery or reckless conduct, but not both.
In its brief, the State argues that the jury herein correctly
found two separate acts accompanied by separate mental states:
"The first act was the defendant's [knowingly]
discharging a firearm in the direction of the victim as
indicated by the bullet hole found six and one half feet
above the bed: a `warning shot' if you will. The second
act was the defendant then firing the gun directly at the
victim, striking her in the shoulder area. *** [T]he
jurors felt that the defendant, by firing the gun
directly at the [victim], did so recklessly and caused
bodily harm in so doing."
It is true that here, unlike Spears, the indictment charging
defendant and the issues instructions given the jury appear to
charge a separate offense for each action or shot fired by
defendant. However, as in Spears, even assuming arguendo that
defendant's acts were separable, "the record belies any suggestion
that the defendant's mental state changed during the shootings to
support the State's hypothesis." Spears, 112 Ill. 2d at 406.
Because neither the victim nor the defendant testified at trial,
there was no direct evidence of the shooting. Nor was any evidence
presented to suggest that defendant's state of mind varied during
the gunfire, as the State now posits. Indeed, as the appellate
court dissent noted, the State's closing argument reflected its
theory that defendant had acted either knowingly or intentionally
in firing both shots. 283 Ill. App. 3d at 182 (Rathje, J.,
dissenting).
Disputing defendant's theory of accident, the State argued in
closing that to shoot the .22-caliber pistol, one must deliberately
pull the trigger, and that "[i]t is not an accident when a gun is
fired two times." The State also argued that the two shots occurred
in rapid succession and that defendant's conduct was intentional,
stating: "What [defendant] intended to do is what happened.
[Defendant] intended to shoot at her; and basically what the facts
show in this case is after the first shot, Michelle Wilkinson
ducked, and [defendant] moved up and he shot her." Yet the jury, by
its guilty verdicts, found that defendant acted recklessly
(reckless conduct) and knowingly (aggravated discharge of a
firearm).
Thus, the State here, as in Spears, is "attempting to justify
guilty verdicts in direct conflict with both its theory of the case
at trial and the evidence it presented in support of that theory."
Spears, 112 Ill. 2d at 405. We respond, as in Spears, that "[i]t
would be manifestly unfair to allow the State, with the benefit of
hindsight, to be able to create separable acts on appeal, neither
alleged nor proved at trial." Spears, 112 Ill. 2d at 405. Where
neither the State's proof at trial nor the jury instructions
distinguished between defendant's intent when he fired the shots,
there was "nothing to alert the jury that the State or the defense
was claiming different mental states as to different shots." See
People v. Mitchell, 238 Ill. App. 3d 1055, 1059 (1992). Therefore,
as the case at bar was presented, we find that the jury could not
have rationally found separable acts accompanied by different
mental states to support both the aggravated discharge of a firearm
and reckless conduct verdicts as legally consistent.
Having established that the verdicts herein were inconsistent,
we must examine the propriety of the trial court's actions with
respect to those verdicts. People v. Porter, 168 Ill. 2d 201, 214
(1995). "When a jury returns inconsistent guilty verdicts, the
trial judge has a duty to send the jury back for further
deliberations after additional instructions to resolve the
inconsistency." Porter, 168 Ill. 2d at 214; Spears, 112 Ill. 2d at
410. It is improper for a trial court to enter judgment on one of
the inconsistent verdicts and vacate the other, or, as occurred
here, to simply ignore one of the verdicts at the time of
sentencing. "Where inconsistent verdicts are returned, a trial
judge may not usurp the function of a jury by second-guessing
`which of the two verdicts was intended by the jury and which was
a result of some misconception.' " Spears, 112 Ill. 2d at 410,
quoting People v. Almo, 108 Ill. 2d 54, 63-64 (1985). Thus, in the
instant case, the trial court's failure to send the jury back for
further deliberations to resolve the inconsistent verdicts mandates
a reversal and a new trial on the aggravated discharge of a firearm
and reckless conduct charges. See Porter, 168 Ill. 2d at 214-15;
Spears, 112 Ill. 2d at 410. Defendant does not contest his unlawful
use of weapons conviction and, therefore, no retrial is necessary
on this count.
Because we are remanding this cause for a new trial, we
consider whether the evidence was sufficient to prove defendant's
guilt beyond a reasonable doubt. After thoroughly reviewing the
evidence, we find it to have been sufficient to support the guilty
verdicts. We therefore find that there is no double jeopardy
impediment to a new trial. See Porter, 168 Ill. 2d at 215; People
v. Taylor, 76 Ill. 2d 289, 309 (1979). We note that we have made no
finding as to defendant's guilt that would be binding on retrial.
People v. Jones, 175 Ill. 2d 126, 134 (1997); Porter, 168 Ill. 2d
at 215.
For the reasons stated, the judgment of the appellate court is
affirmed in part and reversed in part. We reverse the defendant's
convictions of aggravated discharge of a firearm and reckless
conduct and remand the cause to the circuit court for a new trial.

Appellate court judgment affirmed
in part and reversed in part;
circuit court judgment affirmed
in part and reversed in part;
cause remanded.