VERNON – St. Clair County Chief Judge John Baricevic must hold a new trial for a
defendant in a shooting case after giving improper instructions, Fifth District
appellate justices ruled on July 26.
reversed the conviction of Anthony Moore Jr., who faced a sentence of 34 years
on charges of attempted murder and aggravated battery.
found Baricevic misstated the law by inserting the word “or” between his
instructions on eyewitness testimony.
quoted the Illinois rule of criminal procedure he broke: “Do not use ‘or’ or
‘and’ between the factors where more than one factor is used.”
prosecution didn’t dispute the magnitude of the mistake.
Melissa Chapman wrote, “The state concedes that the eyewitness testimony
instruction given by the trial court was erroneous, that the error was not
harmless, and that the defendant is entitled to a new trial.”
Gene Schwarm and Bruce Stewart concurred.
police arrested Moore on Dec. 20, 2012, and charged him with firing three shots
at Jasmine Bradley, age 15.
the next July, Bradley testified that friend Victoria Walker stopped her van to
pick up Moore.
and the defendant had a child together,” Chapman wrote.
testified that Moore threatened to kill her for snitching.
to her testimony, she heard him discuss a robbery of a UPS truck.
had told him to stop talking because there were too many witnesses around.
said Walker had hair extensions, boots and hats at her home after the robbery.
Moore snatched her out of the van and threw her in a ditch.
she saw and heard him fire three shots, the first missing her and the others
striking her in her back and at the base of her skull.
she heard Walker say she was dead and they should go.
home and called 911.
At a hospital,
she said she gave Cahokia police extensions that Walker had placed in her hair.
wrote that on cross examination, it was elicited that Bradley “has had juvenile
issues, was bipolar, and had been unmedicated for some time.”
police captain David Landmann testified that when he arrived at her home, she told
him she got out of the van and started running.
she told him that she heard gunshots behind her, she ran home, and then she
realized she had been shot.
she told him she didn’t see a gun.
lieutenant Dennis Plew testified that at the hospital, she said she was pulled from
said she told him that she saw and heard the gun go off, and that she saw Moore
shoot her in the back.
she told him she played dead after the third shot.
No one else
identified Moore as the shooter.
told jurors, “When you weigh the identification testimony of a witness, you
consider all the facts and circumstances in evidence including but not limited
to the following.”
delivered the first fact or circumstance by saying, “The opportunity the
witness had to view the offender at the time of the offense.”
said, “Or the witness’s degree of attention at the time of the offense.”
“Or the witness’s earlier description of the offender.”
the level of certainty shown by the witness when confronting the defendant.”
the length of time between the offense and the identification confrontation.”
defender Patrick Sullivan objected, and Baricevic overruled the objection.
didn’t even need to object, according to Chapman, because Baricevic committed
found Moore’s case similar to People v. Herron, a Supreme Court decision in a case
of plain error from 2005.
present case, as in Herron, there was a singular witness to identify the
perpetrator, this singular witness’s story changed, and there was no physical
evidence presented at trial to indicate that Moore was the shooter,” Chapman
from the Herron decision that, “If the instruction initially directs the jurors
to consider all the facts and circumstances surrounding the identification, but
then, through the use of the conjunction ‘or,’ directs jurors to consider one
of five factors regarding the reliability of the identification, then the
instruction contains an internal inconsistency.”
quoted its declaration that such instructions are ambiguous and misleading.
District appellate defender Patricia Nysza of Chicago represented Moore on
appeal, and Fifth District appellate defender David Robinson represented the
in July, Fifth District judges had granted a new trial to a domestic battery
suspect in Baricevic's court for failing to explain the four principles of a
fair trial to potential jurors.
Justice Judy Cates
wrote that Baricevic collapsed the second principle into the first and
collapsed the third and four principles into the second.
sentenced the defendant, Andre Jackson, to 60 days in prison and 18 months on