People v. Boyce

1

2024 IL App (4th) 230241-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN L. BOYCE, Defendant-Appellant.

No. 4-23-0241

Court of Appeals of Illinois, Fourth District

February 16, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Peoria County No. 22CF683 Honorable Kevin W. Lyons, Judge Presiding.

ZENOFF JUSTICE delivered the judgment of the court. Justices Harris and Doherty concurred in the judgment.

ORDER

ZENOFF JUSTICE.

¶ 1 Held: The appellate court reversed defendant's conviction of unlawful possession of a weapon by a felon because defendant was not tried within 120 days of his arrest. Specifically, the delays that might be attributable to the defense on a previously filed charge were not attributable to the defense on this later-filed charge, as the two charges were subject to compulsory joinder. Defense counsel was ineffective for failing to raise this point on defendant's behalf.

¶ 2 A Peoria County jury found defendant, Kevin L. Boyce guilty of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)). The trial court sentenced defendant to eight years in prison. Defendant appeals arguing, inter alia, that he was not accorded a speedy trial. For the following reasons, we reverse defendant's conviction.

¶ 3 I. BACKGROUND

¶ 4 We limit our recitation of the facts to what is necessary to understand the dispositive issue.

¶ 5 On August 24, 2022, the State charged defendant by information with one count of aggravated battery (720 ILCS 5/12-3.05(e)(1) (West 2022)). According to the information on or about August 21, 2022, defendant, "in committing a battery, without legal justification did knowingly discharge a firearm, being a handgun[,] in the direction of Angela Smith[,] thereby causing an injury to Angela Smith by means of the discharging of said firearm," while at Smith's residence. Defendant remained in continuous custody since August 23, 2022.

¶ 6 The record shows that the prosecution was aware from the outset that defendant was a convicted felon. For example, at defendant's first court appearance on August 24, 2022 the prosecutor outlined defendant's criminal history. However, the State did not immediately charge defendant with unlawful possession of a weapon by a felon.

¶ 7 On September 6, 2022, a grand jury returned a one-count indictment that was substantively identical to the information. Defendant obtained private counsel and moved for a substitution of judge as of right. On September 26, 2022, defendant filed a written notice of his demand for a speedy trial.

¶ 8 On September 29, 2022, the trial court set the matter for a jury trial on November 14, 2022, with an intervening scheduling conference set for November 3, 2022. On November 3, the court rescheduled the trial to December 12, 2022.

¶ 9 On December 6, 2022, a grand jury indicted defendant for a second offense committed on or about August 21, 2022. Specifically, count II alleged that defendant committed the offense of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2022)) "in that he knowingly had in his possession a firearm, being a handgun, and the defendant has been previously convicted of a felony, in this state, being unlawful possession of firearm ammunition by a felon, in Peoria County Case 2018 CF 182."

¶ 10 On December 12, 2022, defendant answered ready for trial. Over defendant's objection, the trial court continued the trial to January 17, 2023. The parties do not dispute that this continuance was attributable to the State for purposes of calculating the speedy trial deadline. In court on December 12, 2022, the court described the recently filed charge in count II as the "same event" but "a separate count."

¶ 11 On January 10, 2023, defendant filed a motion to dismiss the case based on a speedy trial violation. Defendant argued that the continuance the trial court had ordered on November 3, 2022, should be attributed to the State, not the defense. By defendant's calculations, if that continuance were attributed to the State, the trial scheduled for January 17, 2023, would not be within the 120 days allowed by statute. Defendant did not raise any separate argument specific to the recently added charge of unlawful possession of a weapon by a felon. On January 17, 2023, the court denied defendant's speedy trial motion, and the parties selected a jury.

¶ 12 Smith, who was the named victim in the aggravated battery charge, did not appear for trial on January 18, 2023. This prompted the State to voluntarily dismiss the aggravated battery charge. The parties stipulated that defendant was a convicted felon, so the only disputed issue at trial was whether he possessed a weapon on August 21, 2022.

¶ 13 The evidence showed that on the morning of August 21, 2022, police officers responded to a "ShotSpotter" alert near Smith's residence. The police found four 9-millimeter cartridge cases on the ground. Although it was later determined that these cartridge cases were all fired from the same weapon, the police never located a firearm.

¶ 14 Detective Christina Chavez of the Peoria Police Department testified that she spoke with Smith around 2 p.m. on August 21, 2022. Chavez noticed that Smith's residence had a "Ring" brand doorbell camera. Over defendant's objection, the trial court admitted into evidence two video clips that were captured by Smith's doorbell camera. This court has reviewed those video clips. Both video clips have sound, though the transcript reflects that the clips were muted when played for the jury. The video clips appear to have been taken from a stationary camera next to a door leading into Smith's residence. The camera was positioned to show the door to Smith's residence, part of the street in front of her residence, and two narrow driveways. In both clips, there is text in the top left of the screen that says "ring.com."

¶ 15 The first video clip is 20 seconds long. It bears a timestamp that begins at "08/21/2022 07:11:59 CDT." This video clip depicts the following. There was a white car parked in the driveway of Smith's residence, a white car parked in another driveway, and two cars parked in the street. A man, whom Chavez identified at trial as defendant, stood by the car that was parked in Smith's driveway. A woman, whom Chavez identified at trial as Smith, stood in the doorway to her residence. Defendant held what appears to be a bottle in his left hand. Defendant used his right hand to take a black object out of the right side of his pants, and he wedged that object between his left elbow and the side of his body. Defendant then reached into his right pants pocket and pulled out keys. As defendant walked up to Smith and tried to hand her the keys, she swung at him with something that looks like a rope with numerous balls on it. She took the keys from him and then swung the rope at him again as he walked away from the camera and toward the street. Smith followed defendant out to the sidewalk near the street and then swung the rope at him again. Defendant grabbed the rope with his right hand and seemingly hit Smith in the face with that hand, his left arm still draped against his body. Defendant turned to walk away. Smith walked toward him. Defendant then turned toward Smith. As defendant did so, he used his right hand to grab something tucked under his left arm. At that point, defendant was standing on the sidewalk where it met one of the driveways.

¶ 16 In the last second of this first video, defendant appears to have something in his right hand that he was pointing at the sidewalk in front of him. Smith was standing at least several feet away from defendant. From the sidewalk immediately in front of defendant's feet, a small puff of smoke, debris, or dust appeared. The video clip then ended abruptly.

¶ 17 The second video clip is 19 seconds long, and it bears a timestamp that begins at "08/21/2022 07:14:34 CDT." In this video clip, one of the cars that was parked in the street in the first clip was no longer there. A woman, whom Chavez identified at trial only as Smith's neighbor, entered Smith's residence.

¶ 18 Defendant elected not to testify or to present any evidence.

¶ 19 During the State's closing argument, the prosecutor argued that the evidence showed that defendant fired a gun and, therefore, also possessed the gun. In making this argument, the prosecutor focused on (1) the ShotSpotter alert, (2) the cartridge cases found at the scene, and (3) the first video clip, which the prosecutor argued showed defendant firing a gun. In rebuttal argument, the prosecutor again emphasized that defendant possessed the gun because he fired it. According to the prosecutor: "You see it on the video. He turns around, he points the gun to the ground, he fires it. He's a felon. He's guilty. Thank you." In both the State's initial closing argument and its rebuttal argument, the prosecutor replayed the video evidence for the jury.

¶ 20 The jury found defendant guilty of unlawful possession of a weapon by a felon. The trial court sentenced defendant to eight years in prison. Defendant timely appealed.

¶ 21 II. ANALYSIS

¶ 22 We took with the case defendant's unopposed motion to disregard certain unpublished authority that he cited at page 16 of his opening his brief. We hereby grant that motion.

¶ 23 On appeal, defendant raises four issues, including two distinct theories of why he was denied a speedy trial. Specifically, defendant first argues he was denied a speedy trial because the continuance the trial court ordered on November 3, 2022, should have been attributed to the State not the defense. Defendant's...