People v. Butler

1

2024 IL App (1st) 221287-U

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONQUILA BUTLER, Defendant-Appellant.

No. 1-22-1287

Court of Appeals of Illinois, First District, Second Division

June 25, 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 Cook County 11 CR 08449 Honorable Carl B. Boyd, Judge Presiding

JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

ELLIS JUSTICE

¶ 1 Held: Affirmed in part, reversed in part remanded. Good-faith exception applied to arrest following use of investigative alert, so any evidence stemming from defendant's arrest was admissible. Remanded for further preliminary Krankel proceedings.

¶ 2 Defendant Donquila Butler was convicted of two counts of aggravated criminal sexual assault and one count of kidnapping. In his first appeal, we affirmed the denial of his motion to quash his arrest and suppress the evidence, as police had probable cause to arrest him. But we remanded to the circuit court for a hearing, pursuant to People v Krankel, 102 Ill.2d 181 (1984), on his pro se claims of ineffective assistance of counsel. People v. Butler, 2021 IL App (1st) 171400.

¶ 3 The court held that hearing and rejected defendant's claims. Before us now, defendant challenges the police's use of an investigative alert to arrest him, claiming such alerts without a warrant offend our state constitution. Second, he claims the preliminary Krankel inquiry was inadequate because the court failed to view a video he claims was exculpatory and ignored an additional claim he made orally at the preliminary Krankel hearing.

¶ 4 Defendant is entitled to no relief based on his challenge to the investigative alert because, regardless of whether these alerts are constitutional, the good-faith exception to the exclusionary rule applies. But his second argument is well taken. We remand for further preliminary Krankel proceedings.

¶ 5 BACKGROUND

¶ 6 Because this is defendant's second trip to this court on direct appeal, we briefly summarize the underlying facts drawn primarily from our earlier decision. See Butler, 2021 IL App (1st) 171400, ¶¶ 5-38.

¶ 7 Before trial, defendant moved to quash his arrest and suppress the evidence seized incident to the arrest. Specifically, defendant targeted (1) the lineup where the complaining witness, S.J., identified him and (2) his DNA profile, which investigators procured from him after his arrest, then later matched to the profile found on the victim after the assault.

¶ 8 At that hearing, Blue Island Police Detective Jeff Werniak testified that on April 25, 2011, he was assigned to investigate the sexual assault against S.J. He interviewed her briefly at the hospital and then interviewed her at her home the following day. She told him that on April 25, 2011, in the late evening, she was walking southbound on Western Avenue when she noticed a black four-door car that kept passing her northbound and southbound on Western. The driver stared at her as he passed. She described the driver as a black male who was the only person in the car. She felt uncomfortable, so she turned off Western Avenue and walked one block west to Artesian Avenue, heading south toward her home. S.J. was then assaulted on Artesian Avenue.

¶ 9 S.J. believed that her assailant was the same person she saw driving the black car. She described her attacker as a Black male in his upper twenties, with a light caramel complexion and a thin goatee-style beard that was nicely trimmed. She described the car as a four-door sedan similar to a Buick. The car was black with a power moon roof and very distinctive "3-bladed" chrome rims. Wernick searched the internet for various types of wheel rims, and S.J. pointed out one that looked like the ones on. Werniak referred to the rims as "wishbone rims."

¶ 10 Based on this information, Werniak created an investigative alert to stop the car and arrest the occupant. He included a picture of the distinctive rim in the alert. The sketch S.J. helped create was also included in the alert.

¶ 11 Werniak went to Thornton's gas station in the area of the attack to see if its surveillance video captured anything useful to the investigation. The video showed S.J. walking southbound on Western Avenue and cutting through the Thornton's parking lot. Right after she cut through the lot, a black four-door car with a power moon roof and chrome wishbone rims pulled into the gas station. The video showed a Black male, whom Werniak identified as defendant, get out of the car and go into the store. Inside, defendant purchased condoms with a credit card. Thornton's corporate security records revealed that defendant's name was on the card used to purchase the condoms. Werniak obtained a driver's license photo of defendant and recognized him as the person he saw on the video getting out of the black car and going into the Thornton's store to purchase condoms.

¶ 12 The following day, April 29, 2011, Werniak attended a roll call meeting at the Blue Island police station, where he advised patrol officers that he was looking for defendant in connection with three sexual assaults in Blue Island. He told them they should look for a black four-door Lincoln with a power moon roof and chrome wishbone rims bearing a certain license plate number. Werniak also showed officers defendant's driver's license photo. Later that day, Werniak responded to a traffic stop near 127th Street and Vincennes Road. Once there, he recognized defendant as the same man he saw in the video surveillance tape from Thornton's. Defendant was then transported to the Blue Island police station and placed in a cell. The trial court denied defendant's motion to suppress, concluding police had probable cause to arrest him.

¶ 13 The evidence at trial largely tracked Werniak's testimony at the suppression hearing. First, the State called S.J., the victim, to testify. She said that on April 25, 2011, she was 18 years old and walking home from a bus stop at 119th Street and Western Avenue in Blue Island. She walked about half a block when she noticed a black sedan driving toward 123rd Street. The car had distinctive Y-shaped hubcap rims on its tires. The vehicle passed her, then turned around, passing her again in the opposite direction, back toward 119th Street. The car did this a total of three times, S.J. said, and she became nervous because she thought the driver was following her. She turned west at 121st Street, at a Thorton's gas station, and walked toward the next street over, Artesian Avenue.

¶ 14 As she walked down Artesian, S.J. did not see anyone on the street but heard footsteps behind her. She looked back and saw a man about a half-block behind her and began to walk faster. The man kept pace with her and eventually caught up to her; S.J. looked back when he was about three feet away. She described the man as Black, with a stocky build, and about 5 feet, 9 inches tall. He wore a black hooded sweatshirt with the hood pulled up over his head but nothing covering his face. At trial, S.J. identified defendant as the man behind her that night.

¶ 15 Defendant grabbed her around her neck with his arm, she testified, and told her not to refuse. He threatened to kill her, but S.J. continued to resist and tried to look at her attacker's face. Defendant attempted to insert his penis into her vagina but, at first, could not. He then forced her to the ground onto her back. S.J. again tried to look at his face, and though he told her to cover her face, she peeked through her hands and could see him. S.J. heard what she thought was a plastic wrapper and believed defendant had taken out a condom. Defendant then penetrated her vagina with his penis; S.J. did not consent to the act and said it was painful.

¶ 16 After the assault, defendant ran down Artesian Avenue. S.J. waited briefly to make sure her attacker was gone, then ran home. When she got there, she told her aunt what happened, and they called 911. S.J. spoke to a police officer and went to a hospital, where a nurse conducted a sexual assault examination on her.

¶ 17 The following day, S.J. spoke with investigators and described her attacker. On April 28, 2011, she sat down with a sketch artist and created a composite sketch of her assailant. Later, after defendant had been arrested, she viewed a lineup and identified defendant as the man who attacked and assaulted her.

¶ 18 A forensic scientist, Lisa Fallara, tested swabs taken from the victim after the assault for DNA and developed a profile that matched defendant's. Fallara said that the DNA profile found on the swabs would be expected to occur in approximately 1 in 1000 unrelated African American males, 1 in 1900 unrelated Caucasian males, and 1 in 1000 unrelated Hispanic males.

¶ 19 Defendant testified in his defense. He testified that on April 25, 2011, he was driving his black Lincoln with the Y-shaped rims. Defendant admitted going to Thornton's that night to buy condoms. He got back into his car after purchasing the condoms and left. He planned to meet someone at Popeye's to buy marijuana, so he drove out of the Thornton's parking lot to the Popeye's lot. When the person who was supposed to sell him marijuana did not show up defendant left Popeye's and went to the Shell station at 119th Street and Western Avenue to buy gas. He tried to use the ATM inside but was told they were in the middle of a shift change and to come back later. He then drove to Harvey via Interstate 57. Defendant admitted that he initially lied to police about the reason for going to Popeye's; he initially told police...