MOUNT 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.
The justices reversed the conviction of Anthony Moore Jr., who faced a sentence of 34 years on charges of attempted murder and aggravated battery.
They found Baricevic misstated the law by inserting the word “or” between his instructions on eyewitness testimony.
They 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.”
The prosecution didn’t dispute the magnitude of the mistake.
Justice 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.”
Justices Gene Schwarm and Bruce Stewart concurred.
Cahokia police arrested Moore on Dec. 20, 2012, and charged him with firing three shots at Jasmine Bradley, age 15.
At trial the next July, Bradley testified that friend Victoria Walker stopped her van to pick up Moore.
“Walker and the defendant had a child together,” Chapman wrote.
Bradley testified that Moore threatened to kill her for snitching.
According to her testimony, she heard him discuss a robbery of a UPS truck.
Walker had told him to stop talking because there were too many witnesses around.
Bradley said Walker had hair extensions, boots and hats at her home after the robbery.
She said Moore snatched her out of the van and threw her in a ditch.
She said 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 said she heard Walker say she was dead and they should go.
She went home and called 911.
At a hospital, she said she gave Cahokia police extensions that Walker had placed in her hair.
Chapman wrote that on cross examination, it was elicited that Bradley “has had juvenile issues, was bipolar, and had been unmedicated for some time.”
Cahokia police captain David Landmann testified that when he arrived at her home, she told him she got out of the van and started running.
He said she told him that she heard gunshots behind her, she ran home, and then she realized she had been shot.
He said she told him she didn’t see a gun.
Police lieutenant Dennis Plew testified that at the hospital, she said she was pulled from the car.
Plew said she told him that she saw and heard the gun go off, and that she saw Moore shoot her in the back.
He said she told him she played dead after the third shot.
No one else identified Moore as the shooter.
Baricevic 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.”
He correctly delivered the first fact or circumstance by saying, “The opportunity the witness had to view the offender at the time of the offense.”
Then he said, “Or the witness’s degree of attention at the time of the offense.”
Then, “Or the witness’s earlier description of the offender.”
Then, “Or the level of certainty shown by the witness when confronting the defendant.”
Then, “Or the length of time between the offense and the identification confrontation.”
Public defender Patrick Sullivan objected, and Baricevic overruled the objection.
Sullivan didn’t even need to object, according to Chapman, because Baricevic committed plain error.
She found Moore’s case similar to People v. Herron, a Supreme Court decision in a case of plain error from 2005.
“In the 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 wrote.
Chapman quoted 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.”
She quoted its declaration that such instructions are ambiguous and misleading.
First District appellate defender Patricia Nysza of Chicago represented Moore on appeal, and Fifth District appellate defender David Robinson represented the state.
Early 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.
Baricevic had sentenced the defendant, Andre Jackson, to 60 days in prison and 18 months on probation.