People v. Jones

1

2023 IL App (4th) 220721-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEMARCO M. JONES, Defendant-Appellant.

No. 4-22-0721

Court of Appeals of Illinois, Fourth District

August 22, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County No. 17CF1036 Honorable John M. Madonia, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Justices Harris and Knecht concurred in the judgment.

ORDER

STEIGMANN JUSTICE.

¶ 1 Held: The appellate court affirmed defendant's convictions for first degree murder and attempt (armed robbery) because (1) defense counsel acquiesced to the admission of the allegedly improper evidence and (2) counsel's decisions were part of a sound trial strategy that did not prejudice defendant.

¶ 2 In October 2017, the State charged defendant, Demarco M Jones, by indictment with first degree murder (720 ILCS 5/9-1(a)(2) (West 2016)) and attempt (armed robbery) (id. §§ 8-4, 18-2(a)(2)). The State alleged that on December 21, 2016, defendant, or one for whom he was legally accountable, knowingly shot and killed Alaysia Bennett while attempting to commit an armed robbery.

¶ 3 In June 2022, a jury convicted defendant on all counts, and the trial court later sentenced him to 44 years in prison.

¶ 4 Defendant appeals, arguing that the trial court erred by (1) admitting excessive other-crimes evidence, which the State then used for an improper purpose; (2) admitting certain phone records that were not properly certified as self-authenticating business records; and (3) permitting a detective to offer expert testimony about cell phone location data. Defendant concedes that he did not raise these issues at trial but argues the errors constituted either plain error or ineffective assistance of counsel. We disagree and affirm.

¶ 5 I. BACKGROUND

¶ 6 A. The Charges

¶ 7 In October 2017, the State charged defendant by indictment with first degree murder (id. § 9-1(a)(2)) and attempt (armed robbery) (id. §§ 8-4, 18-2(a)(2)). The State alleged that just after midnight on December 21, 2016, defendant helped plan and carry out an attempted armed robbery of a car in an apartment parking lot. When the driver of the car tried to get away from the robbers, Devante Taylor shot at the car several times, striking and killing Alaysia Bennett. ¶ 8 B. Relevant Procedural History

¶ 9 Because resolution of this case depends on matters of trial strategy, we highlight certain pretrial proceedings that give context for and help explain defense counsel's tactical decisions. We also summarize the trial testimony for further factual context.

¶ 10 1. A Brief Summary of the Crime

¶ 11 At defendant's June 2022 jury trial, witnesses testified to the following. On the evening of December 20, 2016, defendant was riding around Springfield, Illinois, in a black minivan, drinking and smoking marijuana with his friends, Roderick Gailes, Jonesy Blackmon, Devante Taylor, and Shannon Robertson. Around midnight, the group pulled into a parking lot at Georgetown Apartments with the intention of robbing Delvon Peoples, a marijuana dealer, who was sitting in a car parked at the apartments. Taylor got out of the minivan with a gun and moved toward the car. The car began to back up, and Taylor fired several times at the car. The minivan, driven by Gailes, began to pull away when Taylor started shooting. However, the minivan stopped so Taylor could get back in before it drove off. Shannon and Blackmon claimed to be asleep prior to the shooting as a result of the drugs they had taken.

¶ 12 2. Defendant S Statements to the Police

¶ 13 In September 2019, the trial court conducted evidentiary hearings on defendant's pro se motion to dismiss the indictment and motion to suppress statements. The witnesses at these hearings, including defendant, testified that in February 2017, defendant informed the police during video-recorded interviews that he was at the scene of the homicide with Taylor, Gailes, and Blackmon. Defendant denied being involved in the crime but admitted he had been riding in the minivan, drinking and smoking. Defendant initially told the police that he fell asleep and did not wake up until after the shooting. Defendant later told the police that he was awake during the incident and that Taylor and Gailes were the ones who planned and executed the robbery. Defendant claimed that after Taylor shot at the car, defendant asked to be dropped off and went home. The trial court denied defendant's motions.

¶ 14 3. The State S Disclosure of Phone Records

¶ 15 In October 2019, the State filed a proof of service of additional discovery described as "AT&T Certification of Authenticity; Letter from [Springfield Police Department] requesting records; AT&T Tower Search Records Key-Column Definitions for Tower Search Report." On that same day, the State filed a notice of intent to use a certification of regularly conducted activity, in which the State explained that it intended to use the geolocation data from phone numbers associated with (1) defendant, (2) Gailes, and (3) Blackmon to show that they were in the area of the homicide at the time of the offense. The State asserted that the "records custodians from service providers Verizon and AT&T have provided certifications laying the foundation necessary to admit the phone records as records of regularly conducted activity." The State further asserted that the certifications complied with Illinois Rule of Evidence 902(11) (eff. Sept. 28, 2018) and copies of the relevant phone records and certifications had been given to defendant in the ordinary course of discovery. The proof of service shows that the State sent the discovery and notice directly to defendant at the county jail because defendant was representing himself at the time.

¶ 16 4. Pretrial Proceedings Relating to the State 's Evidence

¶ 17 In July 2021, the trial court reappointed Sangamon County Public Defender Craig Reiser to represent defendant. Reiser had previously represented defendant in 2020 before defendant retained private counsel. However, private counsel withdrew in July 2021. The court appointed Reiser as defense counsel because (1) he had previously represented defendant in this case and (2) defendant informed the court that defendant believed he and Reiser communicated well and could work together.

¶ 18 In December 2021, defense counsel asked for a continuance because the State had recently produced thousands of pages of cell phone data and phone records obtained by the Springfield Police Department for certain witnesses, but not for defendant, Gailes, or Shannon. The State informed the trial court that it agreed with defense counsel and was doing its best to obtain and disclose the missing phone records. The court granted the continuance and conducted several hearings on the status of discovery relating to cell phone records over the next two months. In January 2022, the State represented it had produced all of the requested discovery, including phone records, to the defense.

¶ 19 That same month, the State filed a "Notice of Intent to Use a Certification of Regularly Conducted Activity," which stated the prosecution's intention to present "[g]eolocation data from phone records associated with [defendant's] phone number" and included a certification that the State asserted met the requirements of Illinois Rule of Evidence 902(11) (eff. Sept. 28, 2018). (This was essentially the same notice the State had filed in 2019.) Subsequently, defense counsel indicated his agreement that documentary discovery was completed.

¶ 20 In November 2021, defendant filed a motion in limine to exclude Shannon from testifying about a different robbery that he heard the group committed after the shooting, when Shannon was no longer with the group. In late December 2021, the trial court conducted a hearing on defendant's motion. The State argued that it intended to present "testimony that the individuals in the van were generally riding around looking for someone to rob." The State acknowledged that Shannon had been dropped off after the murder and learned of the subsequent robbery from someone else. However, the State maintained that the remaining people in the van who were present for that later robbery could testify about it based on their personal knowledge. The State indicated that the evidence was crucial to its theory of the case that defendant was an accomplice because defendant's statements to police indicated that he would claim at trial that he witnessed the shooting but did not participate in its planning or agree to it. The trial court granted defendant's motion, concluding that Shannon's proposed testimony would not be relevant unless it was necessary to rebut defendant's testimony.

¶ 21 In March 2022, the State filed a motion to reconsider the trial court's ruling on defendant's motion in limine. In the motion, the State explained that (1) it had received new statements from Blackmon and Gailes that the remaining members in the minivan did attempt a robbery after the murder and (2) their statements were corroborated by cell phone location data. The State also explained that it intended to introduce evidence at trial that (1) Shannon and Taylor committed a burglary earlier in the day; (2) shortly before the murder, the group waited outside a certain individual's house to rob him when he came home, but the man never came; (3) the group believed all of the targets of their crimes that day to be drug dealers; and (4) defendant's cell phone location data showed that he was in the areas where these other attempted robberies took place. The State...