People v. Hayes

409 Ill.App.3d 612

949 N.E.2d 182

350 Ill.Dec. 694

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

v.Willie HAYES, Defendant–Appellant.

No. 1–09–1466.

Appellate Court of Illinois, First District, Second Division.

April 19, 2011.Rehearing Denied May 13, 2011.

Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL (Alan D. Goldberg, Stephen L. Gentry, of counsel), for Appellant.Anita Alvarez, State's Attorney, County of Cook, Chicago, IL (Alan J. Spellberg, Michelle Katz, Kathleen Warnick, Emma Nowacki, of counsel), for Appellee.

[350 Ill.Dec. 696 , 409 Ill.App.3d 613] OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

Defendant, Willie Hayes, was convicted after a jury trial of first degree murder and concealment of a homicidal death. He was sentenced to consecutive prison terms of 36 and 4 years' imprisonment. On appeal, he raises the following issues: (1) whether the trial court erred when it refused to instruct the jury on involuntary manslaughter; (2) whether defendant was denied a fair trial based on a statement the prosecutor made to the jury in rebuttal closing argument; (3) whether this court should excuse defendant's procedural default and review, under the plain error doctrine, whether the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) when instructing the jury; (4) whether defendant's sentence was excessive; and (5) whether defendant is entitled to an additional seven days of presentence credit for time spent in custody prior to sentencing, for a total of 1,944 days. We find that: (1) the trial court did not abuse its discretion in denying defendant's request to instruct the jury on involuntary manslaughter because he cannot show his actions were “reckless”; (2) the prosecutor's alleged improper comment during rebuttal closing argument was brief and isolated and did not substantially prejudice defendant such that the verdict would have been different without the improper comment; (3) defendant is procedurally defaulted from raising the issue of whether the trial court violated Supreme Court Rule 431(b); (4) the trial court did not abuse its discretion in sentencing defendant as the record confirms the sentencing judge balanced the goals of retribution and rehabilitation of defendant; and (5) defendant's mittimus should be modified to reflect the amount of 1,943 days of presentencing credit, which does not include the day of sentencing.

JURISDICTION

The circuit court sentenced the defendant on June 2, 2009, and he timely filed his notice of appeal on June 5, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const.1970, art. VI, § 6; Ill. S.Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

BACKGROUND

Defendant was arrested and taken into custody on January 8, 2004, for the murder of Nicole Boyd. Prior to trial, the court denied defendant's motion to quash arrest and his two motions to suppress evidence. Following a jury trial, defendant was

[350 Ill.Dec. 697 , 949 N.E.2d 185]

found guilty of first degree murder and concealment of a homicidal death. Defendant was sentenced on May 4, 2009, to consecutive sentences of 36 years for first degree murder and 4 years for concealment of a homicidal death.

Jury Selection

At the beginning of the jury selection, the following colloquy took place between the trial court and the first 14 potential jurors:

“Do all of you know or understand that the defendant is presumed innoc[ent]of these charges and he do[es] not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State? If you all know that or understand that principal of law, please raise your right hand.

For the record, everyone has raised their right hand that I posed the question to.

If the defendant decides not to testify in his own behalf, would any of you hold that against defendant? If the defendant decides not to testify in his own behalf, would any of you hold it against the defendant? If so, please raise your right hand.

For the record, no one has raised their hand.

Let me take that even a bit further. Do all of you know and understand that if [in] fact [ ]defendant decides not to testify [o]n his own behalf, you as a juror are not to hold it against the defendant. If you can follow that, please raise your right hand.

For the record, everyone has raised their right hand.”

Out of the first group of 14 potential jurors, 9 were selected for the jury. The court then called 14 more potential jurors, and engaged them as follows:

“Do all of you understand that the defendant is presumed innocent and that he does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State? Do all of you know and understand that? If so, please raise your hand.

For the record, everyone has raised their right hand that I've posed the question to.

If the defendant decides not to testify in his own behalf, would any of you hold that against defendant? Would any of you hold it against the defendant if he decided not to testify in his own behalf?”

One potential juror, William Gaudry, raised his hand. The court then stated:

“Let me ask that question of everybody. Do all of you understand that if in fact the defendant does not testify in his own behalf, you are not to hold that against him? Do you all know and understand and can you follow that? If you so, please raise your right hand.

All right. Everyone has raised their hand outside of Mr. Gaudry.”

Mr. Gaudry was excused. From this second group of potential jurors, the final four jurors and the first alternate were selected. The court then called four more potential jurors into the jury box and stated:

“Do all of you understand that the defendant is presumed innocent and that he does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the [S]tate? If all of you know or understand that proposition of law, please raise your right hand to indicate to me you know and understand what I've just said.

For the record, everyone has raised their hand.

[949 N.E.2d 186 , 350 Ill.Dec. 698]

If the defendant does not decide to testify in his own behalf, would any of you hold that against the defendant. If so, please [raise] your right hand.

For the record, no one has raised their right hand.

Do all of you know and understand that if [in] fact you are not to hold it against a defendant if he decides not to testify in this—his own behalf. If you can follow that, please raise your hand.

For the record, everyone has raised their right hand.”

Out of the final four potential jurors, the second alternate juror was selected.

Trial

Mary Boyd, the mother of the victim, Nicole Boyd, testified that she contacted the Chicago Heights police department to report her daughter as missing. Chicago Heights Detective Michael Leuser testified that on January 8, 2004, he and his partner, Officer Murtagh, went to Nicole Boyd's apartment in response to a missing person report. Defendant answered the door. The officers asked him if they could come in and talk about Nicole. He let the officers into the apartment. Officer Murtagh asked him several questions concerning Nicole's whereabouts, to which he responded that they had gotten into an argument, that she left, and that he had not seen her since January 4, 2004. Officer Leuser noticed a large red stain, along with a rope, on the couch. He testified the stain looked like a bloodstain. Officer Murtagh looked around the apartment for Nicole with defendant's permission. When Officer Murtagh returned to the living room, he advised Officer Leuser to look into the bathroom. Officer Leuser testified that in the bathroom, he saw red-stained clothing and tissues, a red stain on the shower curtain and stains along the walls and the bathtub. Officer Leuser testified that near the drain of the bathtub, he noticed hair and red skin-like tissue. The officers took defendant into custody.

Detective Lou Alessandrini testified that on January, 8, 2004, he and Detective Mikal El–Amin interviewed defendant at the Chicago Heights police station. He told the detectives that he had had an argument with Nicole, with whom he had been living with for a few weeks. When asked where Nicole was, he answered that he did not know, they had gotten into a verbal argument, and that he had not seen her in a few days. Detective Alessandrini testified that he left the interview with defendant for a time and when he returned, defendant offered a second version as to Nicole's whereabouts. He testified that defendant told them that he had been in an argument with Nicole because she wanted to end the relationship. He told the detectives Nicole had slapped him and that he had slapped her back. Nicole's lip became bloody, so she went to the kitchen to get some water. He told the detectives that when he returned to the living room, Nicole had a knife and a struggle ensued. He said that “they struggled, they fell back onto the couch; at which time, the knife went into [Nicole's] neck.” Nicole was bleeding, so he put her in the bathtub and turned on the cold water. He left and when he came back Nicole was dead. He told the detectives he removed Nicole's clothing, put her body in a plastic bag, and placed the plastic bag in a dumpster in an alley a block or two away from her apartment. The detectives and defendant then drove to the alley behind Nicole's apartment where, after searching several dumpsters, Detective Alessandrini found a trash bag with a leg sticking out. The police also searched nearby garbage cans where they found a bloody blanket, a bloody pillow, and bloody articles of clothing.

[949 N.E.2d 187 , 350 Ill.Dec....