People v. Cole

237 N.E.3d 459

2023 IL App (1st) 220174

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dimeyon COLE, Defendant-Appellant.

No. 1-22-0174

Appellate Court of Illinois, First District, Third Division.

April 12, 2023

Appeal from the Circuit Court of Cook County. No. 13 CR 12967 (01), The Honorable Lawrence E. Flood, Judge Presiding.

James E. Chadd, Douglas R. Hoff, and Hannah Lazar Pieterse, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Tasha-Marie Kelly, and Julie Riekse, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant Dimeyon Cole was convicted of 13 counts of first degree murder for his role in the death of victim Darryl Green (Darryl), who was kidnapped from a store in Broadview, Illinois, and subsequently killed near Gary, Indiana. At sentencing, the trial court merged the 13 counts of first degree murder into an intentional-murder count (720 ILCS 5/9-1(a)(1) (West 1998)) and sentenced defendant to 28 years’ imprisonment. On direct appeal, defendant challenged his sentence, and we affirmed. People v. Cole, 2020 IL App (1st) 170893-U, ¶ 56, 2020 WL 5845792.

¶ 2 Thereafter, defendant filed a pro se postconviction petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)), which the trial court summarily dismissed as frivolous and patently without merit. Defendant now appeals that summary dismissal, contending that his postconviction petition asserted an arguable claim that his conviction on the intentional murder charge was void, since the victim was murdered in Indiana, not in Illinois. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 In June 1999, Darryl was kidnapped from a store he owned and operated in Broadview, forced into a van at gunpoint, and ultimately driven to and killed in Indiana. In 2013, defendant and codefendants Kevin Mitchell (Mitchell), David¹ McAfee (McAfee), and Raymond Winters (Winters) were indicted by a grand jury on 13 counts of first degree murder (counts I through XIII), 8 counts of aggravated kidnapping (counts XIV through XXI), 1 count of armed robbery (count XXII), 3 counts of burglary (count XXIII through XXV), and 1 count of aggravated unlawful restraint (count XXVI).

¶ 5 Mitchell's Trial

¶ 6 Codefendant Mitchell’s case proceeded to trial prior to defendant’s case reaching trial.² In Mitchell’s case, the State nol-prossed all of the charges against him except for felony murder predicated on aggravated kidnapping. People v, Mitchell, 2018 IL App (1st) 153355, ¶ 5, 428 Ill.Dec. 765, 123 N.E.3d 494. While neither Mitchell nor defendant testified at Mitchell’s trial, codefendants Winters and McAfee both testified against Mitchell; in exchange for their truthful testimony, they pleaded guilty to lesser charges in connection with Darryl’s death and received sentences of 10 and 30 years, respectively, to run concurrently with sentences they were already serving for unrelated offenses. Id. ¶ 6.

¶ 7 As we related in a prior opinion concerning Mitchell’s case (see id. ¶¶ 7 - 12), the evidence presented at Mitchell’s trial established that, at the time of his death, Darryl and his twin brother Darwin Green owned and operated a beeper store located in Broadview, Illinois. In June 1999, Mitchell, Winters, McAfee, and defendant discussed kidnapping someone and holding them for ransom, ultimately deciding to kidnap one of the owners of the beeper store. After casing the store, on June 18, 1999, Winters and McAfee entered the store, aimed with at least one firearm, where they proceeded to duct tape and carry out Darryl, who happened to be working at the store at the time. Darryl was placed into a van, where Mitchell and defendant were waiting, and was transported to a residence located next door to Mitchell’s mother’s house on the 3900 block of West Maypole Avenue in Chicago.

¶ 8 At 2:30 p.m., Darwin received a phone call, in which the caller informed him " ‘we got your brother’ " and hung up. Id. ¶ 8. While Darwin initially believed the call to be a prank, he received another four or five calls to the same effect, and the caller informed Darwin that he wanted $200,000 for Darryl’s return. Darwin informed the caller that he did not have $200,000, so the caller then demanded $100,000. Darwin told the caller that he needed time to obtain the funds. Id.

¶ 9 In the meantime, Darwin went to the beeper store, where he found the store locked. After unlocking the store, he found it in disarray. Id. ¶ 9. Darwin then contacted the FBI, ultimately agreeing to allow agents to record his calls. Id. ¶ 10. Winters testified that at 8 p.m., he called Darwin and told him to arrange for Darryl’s funeral; this call was recorded by the FBI and published to the jury at Mitchell’s trial. Id. ¶ 11.

¶ 10 As we related in our opinion, "[b]elieving Darwin had contacted the authorities, defendant and his codefendants decided to drive to Indiana, approximately one and a half hours away." Id. ¶ 12. Winters drove the van, while Mitchell gave directions; during the drive, Darryl was beaten over the head with a steering wheel locking device and stunned with a taser. According to Winters, they hoped that by beating Darryl, they could somehow still obtain the ransom money. Mitchell directed Winters to exit the highway when they reached Gary, Indiana, and Winters then drove down a wooded residential street, stopping by the side of the road. Defendant, Mitchell, and McAfee exited the van, and Mitchell and McAfee carried Darryl from the van and placed him in a ditch. McAfee returned to the van to serve as a lookout while Mitchell and defendant stayed with Darryl, and Winters and McAfee heard at least three gunshots. Mitchell and defendant returned to the van, where Mitchell informed them that defendant was "too scared to pull the trigger so [Mitchell] *** had to do it." Id. ¶ 12.

¶ 11 A jury found Mitchell guilty of felony murder, and the trial court sentenced him to 60 years in the Illinois Department of Corrections. Id. ¶ 16. We affirmed Mitchell’s conviction on appeal. Id. ¶55.

¶ 12 Pretrial Proceedings

¶ 13 After Mitchell’s trial and prior to defendant’s trial, defendant filed a motion to dismiss the 13 murder counts, arguing that the trial court lacked criminal jurisdiction under section 1-5 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/1-5 (West 1998)), since the murder charges arose from actions that "occurred entirely in Indiana."³ Defendant also filed a separate motion to dismiss the 13 nonmurder counts as barred by the statute of limitations. In response to that motion, the State nol-prossed all charges against defendant except for the murder charges, counts I through XIII.

¶ 14 Attached to the motion to dismiss the murder counts was a transcript of the grand jury testimony of FBI special agent James Stover (Stover), who had been assigned to investigate the incident in June 1999. Stover testified that his investigation revealed the following. Mitchell, defendant, Winters, and McAfee planned to kidnap Darryl and demand a ransom for his safe return. On June 18, 1999, the men entered Darryl’s beeper store in Broadview, bound Darryl’s hands and feet with duct tape, and forced Darryl into a van at gunpoint. The men then drove to an abandoned building in Chicago, where they continued to hold Darryl at gunpoint. In this building, the men called Darryl’s brother, Darwin, several times and demanded a ransom. During the final call, recorded by the FBI, Winters and Mitchell told Darwin to "make arrangements for [Darryl]" and that "it was over? After this call, the men agreed to kill Darryl, since they believed that Darryl’s family had contacted the authorities. The men then forced Darryl back into the van and drove him to a secluded area in Indiana. Mitchell and defendant carried Darryl to the secluded area, where Mitchell shot and killed Darryl. During the shooting, Winters and McAfee stood by the van.

¶ 15 Defendant subsequently supplemented the motion to dismiss with the transcripts of Winters’s and McAfee’s testimony from Mitchell’s trial, as described above.⁴

¶ 16 In response to defendant’s motion to dismiss, the State argued that Illinois had criminal jurisdiction over defendant’s case, since the recorded call during which Winters and Mitchell told Darwin to " ‘make arrangements for [Darryl]’ " and that " ‘[i]t’s over with, bye,’ " demonstrated that the men, while in Illinois, conspired and formed the intent to murder Darryl. The State further argued that this final phone call also demonstrated their actions within Illinois constituted attempted murder, since they decided in Illinois to kill Darryl and "the decision to put [Darryl] back in the van and then drive to [Indiana] was certainly a substantial step toward the commission of the murder."

¶ 17 The parties proceeded to a hearing on the motion. During the hearing, defense counsel argued that the grand jury testimony of Stover, as well as the trial testimony of Winters and McAfee at Mitchell’s trial, demonstrated that there was no plan or other indication that Darryl was to be killed until they reached the location on the side of the road in Indiana where he was ultimately shot. Defense counsel pointed specifically to the testimony of Winters and McAfee, who testified that they both believed that Darryl was going to be released when they reached Indiana and that they were still attempting to obtain money from him during the ride.

¶ 18 In response, the State argued that "[t]he intent in this case is formed by Kevin Mitchell," who was the one in the background of the phone call instructing Winters to tell Darwin to "[m]ake arrangements for your brother," and "we ain’t calling back no more, bye." The State contended that these statements provided "strong circumstantial evidence as to what the intention...