People v. Diggs

238 N.E.3d 1220

2023 IL App (1st) 220955

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

v.Ricky DIGGS, Defendant-Appellee.

No. 1-22-0955

Appellate Court of Illinois, First District, Second Division.

Filed December 19, 2023

Appeal from the Circuit Court of Cook County. No. 2001 CR 17936-02, Honorable Carol M. Howard Judge, presiding.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Matthew Connors, and Zachary M. Slavens, Assistant State’s Attorneys, of counsel), for the People.

Torreya L. Hamilton and Kathleen A. Hennessy, of Hamilton Law Office, LLC, of Chicago, for appellee.

OPINION

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

¶ 1 Following a 2003 jury trial, defendant-appellee, Ricky Diggs, was convicted of the first degree murder of Tommy Calvin and sentenced to 40 years in prison. Defendant appealed his conviction, which was affirmed by our court in People v. Diggs, 352 Ill. App. 3d 1222, 316 Ill.Dec. 678, 879 N.E.2d 1066 (2004) (table) (unpublished order under Illinois Supreme Court Rule 23). On May 15, 2014, defendant filed an initial petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)), which alleged actual innocence. Following the denial of the State’s motion to dismiss, defendant’s petition was advanced to a third-stage hearing. On April 30, 2019, the postconviction court granted the petition, vacated defendant’s conviction, and ordered a new trial.

¶ 2 Thereafter, the State filed a motion in limine to admit the prior testimony of a now-deceased witness from defendant’s original trial pursuant to Illinois Rule of Evidence 804(b)(1) (eff. Jan. 1, 2011), section 115-10.4 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/115-10.4 (West 2018)), and the confrontation clause of the sixth amendment (U.S. Const., amend. VI). The postconviction court denied the motion, and subsequent to denial of the State’s motion to reconsider, the State filed a certificate of impairment pursuant to Illinois Supreme ‘Court Rule 604(a)(1) (eff. July 1, 2017). The State now appeals the denial of its motion in limine, arguing that the postconviction court abused its discre- tion in barring admission of the witness’s testimony at the new trial. For the reasons that follow, we affirm the judgment of the postconviction court.

¶ 3 I. BACKGROUND

¶ 4 We derive our factual background from the underlying trial record, direct appeal, and postconviction proceedings.

¶ 5 A. The Underlying Facts and Original Trial Proceedings

¶ 6 On June 3, 2001, Tommy Calvin was shot and killed near the end of an alley in the Humboldt Park neighborhood of Chicago, Illinois. Calvin had been known in the neighborhood as a drug dealer. Defendant was arrested weeks after the shooting and initially charged with six counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2000)), which were amended to five counts prior to trial. Weeks later, defendant and codefendant, Corey Flowers, were charged with Calvin’s murder. Flowers later pled guilty to conspiracy to commit first degree murder (id. § 8-2) pursuant to a negotiated plea agreement with the State.¹

¶ 7 1. State’s Case-in-Chief²

¶ 8 a. Larry Helm

¶ 9 Larry Helm testified that he had lived at 4207 Division Street for seven years, which was a building located near the shooting. His job was management of two properties at 4206 and 4207 Crystal Street. During his time in the neighborhood, he had become friends with Calvin and had known him for about eight or nine years prior to the shooting. Helm testified that Calvin visited him at work at 4206 Crystal Street sometime between noon and 1 p.m. on June 3, 2001. Calvin helped Helm move some trash out of the building’s yard until about 1 or 2 p.m. Helm described Calvin’s demeanor as "happy" and stated that he was walking around. He estimated that Calvin left the area between 1:30 and 2 p.m., and Helm stayed behind to finish work.

¶ 10 Sometime between 3 and 3:15 p.m., Helm was still working in the front yard of the same building when he heard gunshots. Helm could not tell where the gunshots were coming from. He put down his equipment, moved through a gangway, opened a gate, and went out into an alley between Crystal Street and Division Street. There, Helm saw a crowd gathering and heard someone say, "Tommy’s been shot." Helm observed police officers in marked squad cars on the scene. He did not speak to police there, but later spoke to investigators that same day.

¶ 11 On cross-examination, Helm testified that he did not see the shooting and had only heard gunshots. He knew that Calvin did not have a steady job and "assumed" that he sold drugs.

¶ 12 b. Corey Flowers

¶ 13 Pursuant to his plea agreement, Flowers testified that he knew Calvin because Calvin sold drugs for him and further identified the defendant in court as the man who shot Calvin. According to Flowers, defendant also operated a "drug spot" in the 1200 block of North Keeler Avenue. On June 3, 2001, Flowers gave Calvin some drugs to sell, and when Flowers visited Calvin again later that day to collect the proceeds, Calvin would not turn over any money or unsold drugs. Flowers observed that Calvin was high, and the two began to argue. Defendant was also present during this argument, which lasted about five minutes.

¶ 14 Following the argument, Flowers and defendant went to Flowers’s house to retrieve a gun that defendant had stored there under a mattress. The two then returned to the alley spot to confront Calvin. Defendant and Calvin were joined by Earl Smith, who also sometimes sold drugs for Flowers. When asked if he knew Smith’s nickname, Flowers responded that he was unable to think of it.

¶ 15 Flowers testified that he, defendant, and Smith planned to beat up Calvin for failing to sell drugs. Upon their return, Flowers did not notice anyone in the area besides Calvin. When he saw Calvin, they began to argue again. Smith hit Calvin, and Flowers also swung at him but did not hit him. Defendant was positioned somewhere between the alley and the street. After Smith hit Calvin, Calvin started running out of the alley toward Keeler Avenue. As he ran, defendant shot Calvin in the back. Flowers remained in his position on Keeler Avenue while defendant continued to shoot at Calvin about 9 or 10 times. After defendant stopped shooting, Flowers did not know where defendant went. Flowers traveled southbound out of the alley toward Division Street and then went to his cousin’s father’s home. Flowers was arrested a week later on June 10, 2001.

¶ 16 On cross-examination, Flowers testified that he belonged to the Four Corner Hustlers gang and ran his drug operation at Keeler Avenue and Crystal Street. He denied that defendant worked for him. Flowers had known Calvin for about three months, and Calvin gave him’ a commission on whatever drugs he sold. He did not recall the last time he had given Calvin drugs to sell but believed it to be the day he was shot or a few days prior. Flowers had given Calvin 2 packs of 24 bags of cocaine to sell, with defendant present during the exchange.

¶ 17 Flowers did not remember what was said between him and Calvin during their first argument. When asked why he and defendant went to retrieve a gun, he responded that he did not know, but later stated that they went to get the gun because Calvin had not sold any drugs and he was "fitting to get beat up." Flowers denied that it was his idea to get the gun and that it was "somewhat" defendant’s idea. Flowers further testified that Smith threw two punches at Calvin, and not one, as he had stated on direct examination. Defendant did not follow Calvin when he began to run away.

¶ 18 c. Keyth Ann Essie

¶ 19 Keyth Ann Essie testified that she had lived on North Keeler Avenue on the day of the shooting and four years prior. She had known Calvin for about two years through other friends from the neighborhood. At about 3:20 p.m. on the day of the shooting, Essie came out on Keeler Avenue to drink beer with "Blue" (also known as Larry Helm), Sylvia Duncan, and Calvin. When she arrived, she observed that the beer was hot, and she went to a local store to buy more. Upon her return, she noticed Calvin walking back and forth and saying something like, "they being together." No one other than the individuals she had mentioned prior were in the area when she returned.

¶ 20 Essie testified that Corey Flowers soon approached Calvin, who was alone at the time. Essie knew Flowers because she was neighbors with his uncle. She knew that Flowers had a speech impediment and that he stuttered when he spoke. She watched Flowers and Calvin get "up in each other’s face" and exchange words. Essie overheard Flowers say to Calvin "I thought we were cooler than that," to which Calvin replied, "I thought we was too, man."

¶ 21 Thereafter, Essie observed Smith, who she also knew as "Buddha," approach Calvin and Flowers on a bike in the alley while Flowers was walking in front of Cal vin. Smith laid the bike down, stood up on a piece of concrete, and then hit Calvin on his head. During this interaction, Essie stood about 25 to 30 feet away in the yard. Calvin did not hit Smith back, and then Flowers began walking away. Calvin also began walking backward out of the alley toward Keeler Avenue. When Calvin reached the end of the alley, he started saying, "I’m still standing." Calvin continued to back up and move toward Crystal Street. Essie remained in the yard and observed Calvin turn and run away after it "looked like he saw someone he knew." After he turned, he was shot and fell to the ground.

¶ 22 Essie testified that defendant was the shooter and identified him as the same individual in court. Essie stated that defendant continued to shoot and point the gun at Calvin. She did not know how many shots were fired but believed the gun jammed at some point. After the shooting, Essie observed defendant standing over...