People v. Jackson

2013 IL App (3d) 120205

2 N.E.3d 374

377 Ill.Dec. 458

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

v.Mark A. JACKSON, Defendant–Appellant.

No. 3–12–0205.

Appellate Court of Illinois, Third District.

Nov. 26, 2013.

Rehearing Denied Jan. 13, 2014

Michael J. Pelletier, Kathleen A. Hill, State Appellate Defender's Office, Chicago, for appellant.

Jerry Brady, State's Attorney, Peoria (Mark A. Austill, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 After a jury trial, the defendant, Mark A. Jackson, was found guilty of attempted first degree murder (720 ILCS 5/8–4(a), 9–1(a)(1) (West 2010)) and aggravated battery (720 ILCS 5/12–4(a) (West 2010)). The trial court sentenced the defendant to 60 years' imprisonment. On appeal, the defendant argues: (1) he was denied a fair trial when the State elicited opinion testimony from a lay witness; (2) he received ineffective assistance of counsel because his trial attorney did not object to the opinion testimony; (3) his sentence was excessive; and (4) the trial court miscalculated certain fines and fees and did not apply his $5–per–day credit to his fines. We affirm in part, vacate in part, and remand with instruction.

¶ 2 FACTS

¶ 3 The defendant was charged by indictment with attempted first degree murder and aggravated battery. The case proceeded to a jury trial.

¶ 4 At trial, the victim, Eddie Singer, testified that on the morning of April 22, 2011, he arrived at Neal Auto Parts (Neal), his place of employment, around 6 a.m. Shortly after his arrival, the defendant appeared. The defendant told the victim that he no longer worked at Neal and he was retrieving some tools. The victim followed the defendant to the back of the store and took pictures of the items the defendant loaded into his truck. The victim followed the defendant to the locker area where the defendant retrieved some towels and returned to his truck. The defendant shook the victim's hand and asked “What's the matter, Ed?” The victim said he had a sore throat, and the defendant responded “[o]h, fuck you” and stabbed the victim in the chest.

¶ 5 The victim ran outside of the building, and the defendant followed. The defendant pushed the victim to the ground and repeatedly stabbed the victim in the stomach. The victim pushed the defendant off him and ran toward the front of the property to get help. The defendant caught the victim, knocked him down, and stabbed him again. In the resulting struggle, the victim suffered defensive wounds to his face and left arm. The victim eventually broke free of the defendant and moved onto his knees. However, the defendant returned and stabbed the victim a few more times. The defendant said “[d]on't fight it, Ed, just let it happen, don't fight it, just let it happen.” The victim collapsed to the ground, and the defendant shoved him out of the way and fled the property.

¶ 6 After the defendant left, the victim made his way into the building and called 911. While on the phone, the victim collapsed onto the floor. Shortly thereafter, Miles Thum and a sheriff's deputy came into the building and found the victim lying on the floor. The victim told Thum that the defendant had stabbed him.

¶ 7 On cross-examination, the victim said that he followed the defendant around the building because he was afraid that the defendant would take the other employees' tools. The victim said that he was not angry with the defendant and denied carrying a knife or attacking the defendant.

¶ 8 Thum testified that he was employed at Neal on April 22, 2011. On that date, Thum arrived to work early and noticed the defendant's vehicle exit the back of the property at a high rate of speed. As Thum approached the door, he was met by a sheriff's deputy. Thum and the deputy proceeded inside the building and found the victim, covered in blood, slumped behind the counter, with a telephone dangling over his shoulder. The deputy directed Thum to find some gauze to place over the victim's wounds until the paramedics arrived.

¶ 9 Peoria County sheriff's deputy Aaron Witt responded to the victim's 911 call around 6:30 a.m. At the scene, Witt saw Thum get out of his vehicle and walk toward the entrance of the building. Witt approached Thum, asked him a few questions, and followed a blood trail into the building. Inside the building, Witt found the victim slumped over behind a counter. Thum retrieved some gauze that Witt applied to the victim's injury.

¶ 10 Crime scene technician Matthew Maher testified that he documented the scene. Based on the condition of the scene, Maher believed that a struggle had taken place, but he could not say who had initiated it.

¶ 11 The parties stipulated, in part, that deoxyribonucleic acid (DNA) testing of the blood recovered from the victim's clothes contained a mixture of the victim's and the defendant's blood.

¶ 12 Detective Dave Hoyle testified that the defendant turned himself into the police later in the day of the incident. Hoyle interviewed the defendant and noted that “[i]nitially [the defendant] lied.” Hoyle was unable to recall the defendant's exact lie, but remembered confronting the defendant about the lie.

¶ 13 The defendant told Hoyle that he went to Neal to steal catalytic converters to sell for “drug money.” The defendant arrived at an early hour knowing that the victim would be working by himself. At Neal, the victim followed the defendant around, and the defendant “snapped” and stabbed the victim. The victim ran outside the building, and the defendant chased the victim, got into a struggle, and stabbed the victim several more times.

¶ 14 The defendant received a cut on his hand during the altercation. However, he did not recall how he received the cut and did not say that the victim had attacked him. The defendant also did not remember how many times he stabbed the victim.

¶ 15 On cross-examination, defense counsel asked Hoyle if he could recall the lie that the defendant originally told him, and the following exchange took place:

“Q. All right. Now, you indicate this, you testified originally that when he spoke with you he lied to you, accurate?

A. Yes.

Q. But you can't recall—you can't recall as you sit there to tell us what this lie is, can you?

A. I might. I'm not sure if I wrote down the exact lie in my report or not but I don't remember what the lie was.

Q. Okay. So you acknowledge that, just like any of us at times, you have problems with recollection just like I do sometimes?

A. Yes.”

Hoyle also stated that a second officer was not present for the interview. The defendant's statement was not reduced to writing, nor was it video or audiorecorded.

¶ 16 The jury found the defendant guilty of attempted first degree murder and aggravated battery. At the sentencing hearing, the trial court noted the following factors in aggravation: (1) the defendant's conduct threatened serious harm; (2) the defendant was convicted of seven prior serious felonies, including one conviction for murder; and (3) there was a need to deter others from committing similar crimes of violence, considering that the victim's life was nearly ended for “a fist full of crack worth $400.” In mitigation, the court noted that rehabilitation was unlikely, given the defendant's prior record and his age of 51. The court sentenced the defendant to an extended term of 60 years of imprisonment and ordered the defendant to pay “cost[s].”

¶ 17 ANALYSIS

¶ 18 I. Opinion Testimony

¶ 19 The defendant argues that he was denied a fair trial because the State elicited opinion testimony from Hoyle that the defendant initially lied during his police interview. The defendant admits that he did not preserve this issue for review, but contends that the error is reversible plain error.

¶ 20 We agree that the defendant failed to preserve this issue for review. To overcome this forfeiture, we must determine whether the alleged error can be reviewed under the plain error doctrine. People v. Rippatoe, 408 Ill.App.3d 1061, 348 Ill.Dec. 825, 945 N.E.2d 132 (2011). First, we must determine whether a clear and obvious error occurred. People v. Piatkowski, 225 Ill.2d 551, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). If an error occurred, we must then determine whether the error was reversible. Rippatoe, 408 Ill.App.3d 1061, 348 Ill.Dec. 825, 945 N.E.2d 132. Reversible error occurs when: (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error; or (2) the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. Piatkowski, 225 Ill.2d 551, 312 Ill.Dec. 338, 870 N.E.2d 403.

¶ 21 Generally, a lay witness may not offer an opinion as to the meaning of another's out-of-court statement. People v. Williams, 264 Ill.App.3d 278, 201 Ill.Dec. 198, 636 N.E.2d 630 (1993). It is within the province of the jury to interpret such statements. Id. A lay witness's testimony “in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).

¶ 22 In the instant case, Hoyle's characterization of the defendant's initial statement as a lie was opinion testimony. This testimony removed from the jury's consideration the veracity of the defendant's statement to the police. As this testimony was rendered by a lay witness, it was erroneously admitted.

¶ 23 The defendant, however, has not demonstrated that the evidence was so closely balanced that the error requires reversal....