People v. Carey

2021 IL App (4th) 190097-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY R. CAREY, Defendant-Appellant.

NO. 4-19-0097

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 19, 2021

NOTICE

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 Circuit Court of Sangamon County

No. 16CF61

Honorable John M. Madonia, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices Turner and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding (1) the State proved defendant guilty of first degree murder beyond a reasonable doubt, (2) the trial court did not abuse its discretion when it admitted other-crimes evidence and rebuttal testimony, (3) the court properly denied defendant's motion to suppress and appropriately admitted a nonredacted recording of defendant's police interrogation at trial, (4) the court did not abuse its discretion when it allowed testimony regarding the lyrics and content of the song "Dance with the Devil," and (5) the court did not err in imposing a 45-year sentence.

¶ 2 Following a fall 2018 trial, a jury found defendant, Wesley R. Carey, guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2016)). In February 2019, the trial court sentenced defendant to 45 years' imprisonment.

¶ 3 Defendant appeals, arguing (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court abused its discretion when it admitted prejudicial other-crimes evidence and improper rebuttal testimony; (3) the court erred when it denied defendant's motion to suppress and admitted into evidence at trial a recording of defendant's police interrogation where police failed to scrupulously honor defendant's right to remain silent and, in the alternative, the court should have redacted portions of defendant's recorded interrogation where defendant made statements that represented the opinion of a police officer; (4) the court abused its discretion when it admitted testimony as to the lyrics and content of the song "Dance with the Devil"; and (5) the court abused its discretion in sentencing defendant to 45 years in prison where the court failed to consider the uncontradicted evidence of defendant's rehabilitative potential. We affirm.

¶ 4 I. BACKGROUND

¶ 5 In January 2016, the State charged defendant with three counts of first degree murder alleging he stabbed Nicole Maxey with a knife, resulting in her death (720 ILCS 5/9-1(a)(1) (West 2014)) (count I and count II); (720 ILCS 5/9-1(a)(2) (West 2014)) (count III).

¶ 6 A. Pretrial Motions

¶ 7 In January 2017, defendant filed a notice informing the State of his intent to assert the affirmative defense of self-defense. Defendant also filed a motion in limine asking to present, at trial, evidence of the alleged victim's propensity for violence pursuant to People v. Lynch, 104 Ill. 2d 194, 199-200, 470 N.E.2d 1018, 1020 (1984), where Maxey "previously stabbed a man with a knife" and had a "history of directing violence against men."

¶ 8 In April 2018, defendant filed a motion in limine asking to exclude or redact the content of defendant's recorded custodial interrogation on the basis of relevance. Specifically, defendant argued his statements during his police interrogation were based on what Officer Eric Bertoni told him happened to Maxey.

¶ 9 At an August 2018 hearing, the trial court heard evidence from defendant and Keith Allen Underwood, Maxey's ex-boyfriend, about a September 2009 incident where Maxey stabbed Underwood. Defendant stated Maxey previously told him about the 2009 incident. The court found Maxey's propensity for violence relevant and stated, "If [defendant] testifies and there's evidence of self-defense, the statements that [Maxey] made to [defendant] acknowledge—informing him that she had stabbed somebody is going to come in through his testimony subject to Mr. Underwood also then testifying to the total context." Next, the court denied defendant's motion to exclude or redact the contents of defendant's recorded custodial interrogation. Relying on People v. Whitfield, 2018 IL App (4th) 150948, 103 N.E.3d 1096, the court found the officers' statements during defendant's interrogation were relevant.

¶ 10 In September 2018, defendant filed a second motion in limine seeking to present evidence of the alleged victim's propensity for violence pursuant to Lynch, where Maxey had a 2003 conviction for domestic battery which arose from an incident with her then-stepfather, Gordon A. Lynn. Defendant also filed an omnibus motion in limine asking to exclude, in relevant part, (1) the lyrics or any reference to the song "Dance with the Devil" and (2) evidence of a New Year's Eve 2015 incident where defendant broke the front window of Maxey's apartment. Defendant filed a motion to suppress statements unlawfully elicited during defendant's custodial interrogation. In the motion to suppress, defendant argued that "[b]ecause [d]efendant invoked his right to remain silent, and law enforcement failed to scrupulously honor defendant's unequivocal invocation of that right, any and all subsequent statements elicited are inadmissible as a matter of law."

¶ 11 At a September 2018 hearing, the trial court heard evidence from Lynn regarding the 2003 incident that resulted in Maxey's conviction for domestic battery. The court granteddefendant's motion to present evidence of Maxey's propensity for violence, stating, "with the proper foundation laid, then I would permit it, permit him to be called for—to provide that testimony[.]"

¶ 12 At an October 5, 2018, hearing on defendant's motion to suppress, the trial court heard evidence from multiple witnesses. Officer Bertoni with the Pawnee Police Department testified that on January 18, 2016, around 9 p.m., he responded to a residence for a stabbing. Officer Bertoni testified both Maxey and defendant were transported to St. John's Hospital where Officer Bertoni eventually spoke with defendant. Around 4:30 a.m., defendant woke up in the hospital and asked Officer Bertoni what happened. Before answering, Officer Bertoni read defendant his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Defendant acknowledged he understood his rights and again asked what happened. Officer Bertoni indicated defendant stabbed Maxey. Subsequently, defendant "covered his head up and said he didn't want to talk anymore because he was ashamed of what he did." Officer Bertoni testified he did not continue questioning defendant.

¶ 13 A while later, Officer Bertoni received a telephone call and stepped out of defendant's hospital room. When Officer Bertoni stepped back into defendant's hospital room, defendant asked him what happened. Officer Bertoni advised defendant that Maxey died. Defendant then started "yelling and trying to choke himself." Once the hospital discharged defendant, Officer Bertoni transported defendant to the Sangamon County Sheriff's Office to be interviewed.

¶ 14 Detective Mike McMasters with the Sangamon County Sheriff's Department testified that on January 19, 2016, around 12:30 p.m., he interviewed defendant at the Sangamon County Sheriff's Office. Before questioning defendant, Detective McMasters read defendant hisMiranda rights. Defendant agreed to speak with Detective McMasters and the interview commenced.

¶ 15 Defendant testified that when he woke up in the hospital, he asked Officer Bertoni what happened. Officer Bertoni indicated defendant stabbed Maxey. Defendant then stated he told Officer Bertoni he did not want to talk anymore. Defendant testified his conversation with Officer Bertoni briefly ceased "for about five or six minutes." Then, Officer Bertoni asked defendant several questions while "filling out [his] report." Defendant testified "[t]hen it kind of got a little more in-depth after that." Defendant told Officer Bertoni he did not remember fighting or arguing with Maxey and he did not want to talk with Officer Bertoni any longer.

¶ 16 About 20 minutes later, Officer Bertoni received a telephone call and left defendant's hospital room. Officer Bertoni then came back into the room and told defendant Maxey died and that defendant was being charged with first degree murder. Defendant testified Officer Bertoni then again asked him about the incident and what transpired.

¶ 17 When Officer Bertoni transported defendant to the Sangamon County jail, defendant told Officer Bertoni that he did not want to be interviewed. Officer Bertoni told defendant to "just go in there and tell them the truth[.]"

¶ 18 Subsequently, the trial court denied defendant's motion to suppress. The court found,

"more credible [Officer Bertoni] who is having trouble remembering specifics about the particular circumstances that occurred over two and a half years ago who had not reviewed the transcript, who had not reviewed the circumstances much more credible than a defendant coming to from being in thatcircumstance who remembers absolutely verbatim word for word exactly the conversation he had."

Further, the court stated,

"So, based on everything that is before the [c]ourt here today, the factors the [c]ourt is to consider, the [c]ourt does find by a preponderance of the evidence that the police at that time during the second interview scrupulously honored the [d]efendant's invocation of his right to silence. He voluntarily waived that right at that time. And the contents of the statement provided will be admissible subject to any further motions that the [c]ourt has to address going forward."

¶ 19 At an October 23, 2018, hearing, the trial court ruled on defendant's omnibus motion in limine to exclude, in relevant part, (1) the lyrics or any reference to the song "Dance with the Devil" and (2) evidence of a New Year's Eve 2015 incident where defendant broke the front window of Maxey's apartment. The court denied the motion in limine regarding both the song lyrics and the New Year's Eve...