People v. Fornear
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 81902
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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 fiancee, 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 fiancee 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 fiancee. 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 |