People v. Donlow

2020 IL App (4th) 170374

178 N.E.3d 1148

449 Ill.Dec. 297

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

v.Jordan M. DONLOW, Defendant-Appellant.

NO. 4-17-0374

Appellate Court of Illinois, Fourth District.

Filed March 24, 2020

James E. Chadd, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Daniel K. Wright, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Benjamin M. Sardinas, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.

¶ 1 In August 2015, the State charged defendant, Jordan M. Donlow, with one count of aggravated battery with a firearm ( 720 ILCS 5/12-3.05(e)(1) (West 2014)), where defendant "knowingly or intentionally and by means of the discharging of a firearm caused an injury to Pierre Hicks, in that said defendant shot Pierre Hicks in the face with a .223 caliber firearm." Following a January 2017 trial, a jury found defendant guilty of aggravated battery with a firearm. In April 2017, the trial court sentenced defendant to a 20-year prison sentence with credit for 603 days served.

¶ 2 Defendant appeals, arguing (1) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), when it failed to ensure a potential juror understood and accepted all four principles enumerated in that rule, (2) the court erred in giving an incomplete jury instruction on prior inconsistent statements, and (3) the court erred when it considered defendant's assertion of innocence as a factor in aggravation at sentencing. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In August 2015, the State charged defendant with one count of aggravated battery with a firearm (720 ILCS 12-3.05(e)(1) (West 2014)), where defendant "knowingly or intentionally and by means of the discharging of a firearm caused an injury to Pierre Hicks, in that said defendant shot Pierre Hicks in the face with a .223 caliber firearm."

¶ 5 A. Defendant's Jury Trial

¶ 6 In January 2017, the State filed a motion for use immunity under section 106-2.5(b) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/106-2.5(b) (West 2016)), asking the trial court to compel codefendant, Freddrick Johnson (Fred), to testify as a witness against defendant. Over objection, the court granted the motion. In the motion, the State indicated that if Fred's testimony was inconsistent with his prior statements, the State intended to introduce Fred's videotaped statements as substantive evidence pursuant to section 115-10.1 of the Code ( 725 ILCS 5/115-10.1 (West 2016) ).

¶ 7 During voir dire , the court read the four Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) principles to each juror and asked each juror if they understood and accepted each principle. Specifically, the court asked juror Alfred B., "[Y]ou also understand and accept that the defendant does not have to testify; and if he chooses not to, that fact cannot be held against him in arriving at your verdict?" Juror Alfred B. answered, "I understand." The trial judge asked juror Alfred B. no further questions.

¶ 8 Following voir dire , the trial commenced. The parties presented the following evidence.

¶ 9 1. Pierre Hicks

¶ 10 Pierre Hicks, the shooting victim, testified that on the afternoon of August 4, 2015, he attended a dice game in the Poplar area of Springfield, Illinois. Hicks rode his bicycle to the dice game with Demarco Johnson (Demarco). Hicks testified to the presence of around four other people at the dice game. Specifically, Hicks testified that Fred arrived at the dice game in a blue vehicle with tinted windows, along with defendant and another man. Only Fred joined the dice game. When asked how he knew Fred, Hicks stated that he knew Fred for several years and had disagreements with him in the past. Hicks testified he had previously seen defendant before August 4, 2015, but did not know his name. The record shows Fred owned a four-door 2005 Pontiac.

¶ 11 During the dice game, a verbal dispute arose between Fred and Hicks. Fred told Hicks to "stay here, I'll be back" and left with defendant and another man. About 10 minutes later, Fred returned. Upon returning, Fred opened the door to his vehicle, and Hicks testified he saw a long black firearm on Fred's lap. Fred then drove away stating, "[I]t's on, we in war now."

¶ 12 After the interaction with Fred, Hicks and Demarco rode their bicycles toward 24th Street and Cook Street to head home. As they rode through the parking lot of the Walker Funeral Home, Hicks saw Fred in the driver's seat of the same blue vehicle. As Hicks passed the passenger side of the vehicle, the rear-passenger window rolled down, and Hicks saw defendant holding a gun. Hicks then testified that defendant shot at him and struck him in the face.

¶ 13 Hicks testified that after defendant shot him in the face, defendant shot about nine more rounds toward him and Demarco as he ran across Cook Street to a health center. Police officers found Hicks in the health center when they arrived. Due to Hicks's injuries, he communicated with the officers via text message, and when asked who shot him, he wrote "Fred." Hicks claimed he did not write defendant's name because he did not know it. While hospitalized, Hicks viewed two photograph arrays. Hicks identified Fred as the driver of the vehicle and described his role. Hicks identified defendant as the shooter.

¶ 14 After his release from the hospital, Hicks provided a videotaped statement. Subsequently, officers arrested Hicks in March 2016 for possessing half a kilogram of marijuana found in his car. However, the State never charged Hicks with any offense following that arrest.

¶ 15 2. Demarco Johnson

¶ 16 During Demarco's testimony, Demarco repeatedly stated he did not recall details of the August 4, 2015, shooting. However, when confronted with his statements from an August 6, 2015, interview about the incident with police, he, for the most part, acknowledged making the statements. Demarco testified that on August 4, 2015, he went to a dice game with Hicks. While at the game, a blue Pontiac G6 arrived with two men in it whom Demarco did not know. One of the men had long dreadlocks and Demarco testified that man and Hicks got into a verbal argument over the dice game. The man with dreadlocks then said, "[B]e here when I get back, I'm going to have something for you." He then drove away but returned soon thereafter and stated, "[T]hat's what we on or that's what I'll do to you?" The man then drove the vehicle away a second time. Demarco did not see a gun.

¶ 17 Demarco and Hicks then rode their bicycles to the parking lot behind the Walker Funeral Home. While in the parking lot, the blue Pontiac approached them. Demarco testified that as the vehicle passed them, he saw a gun pointing out of the rear-passenger window. Demarco then heard nine gunshots and a bullet grazed him. Demarco denied seeing the driver of the vehicle with a gun.

¶ 18 Demarco viewed a photograph array two days after the shooting and identified Fred as the man with dreadlocks. Demarco viewed a second photograph array that included another possible suspect but not defendant. Demarco failed to identify anyone in the photograph array.

¶ 19 3. Raymond Bardwell

¶ 20 On August 4, 2015, Raymond Bardwell worked at a nearby business and was on break when the shooting occurred. Bardwell worked about one block east of the Walker Funeral Home with a view of the parking lot behind the funeral home. Bardwell testified that he first saw a blue Pontiac G6 vehicle drive away from him and toward a corner store. About a minute later, the same blue vehicle drove toward him through the funeral home parking lot and pulled alongside two men on bicycles. Bardwell testified that gunfire came from the vehicle before it sped off. Bardwell heard five gunshots total, four in the parking lot and one after the vehicle sped off onto the street. Bardwell then saw the two men on bicycles run toward the funeral home. Bardwell called 911 and spoke with police at the scene.

¶ 21 4. Artavyious Williams

¶ 22 Artavyious Williams testified that on August 4, 2015, he attended a dice game where Demarco arrived with a light-skinned black male that Williams did not know. Williams also testified that a man with dreadlocks arrived in a blue vehicle with tinted windows. Williams claimed that Demarco and the man with dreadlocks got into an argument, but the light-skinned male was not involved. After the argument, the man with dreadlocks said that "he was going to be right back" and left. Williams testified that everyone ended up leaving and that he walked toward the corner store at 23rd Street and Cook Street. Williams testified that when he arrived at the corner store, he again saw the blue vehicle and heard several gunshots.

¶ 23 5. Leona West

¶ 24 Leona West, Hicks's girlfriend, testified that she received a telephone call on August 4, 2015, about Hicks being shot. West also received a call from Hicks's cellular telephone where a police officer asked if she knew a man named "Fred," and she told him that she knew a Fred Johnson. The officer then stated, "[T]hat's who [Hicks] said shot him or, you know—when he asked what happened, he pointed that name out. That's the name he gave."

¶ 25 On August 10, 2015, Hicks viewed a photograph array with West present and identified Fred. West testified that friends of hers gave her photographs of people who they thought may have taken part in the shooting. West then gave those photographs to the police. One of those photographs showed Fred and defendant together. West testified that she knew defendant as "Jordan" but never met him.

¶ 26 6. Springfield Police Officers

¶ 27 Officer Jacob Svoboda testified that on the morning of August 4, 2015, he went to a house in response to a possible domestic incident. When he arrived, he observed defendant helping Fred pack up his belongings, and then...