People v. Kennedy

2017 IL App (4th) 150372-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAFAEL D. KENNEDY, Defendant-Appellant.

NO. 4-15-0372

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

July 12, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Macon County

No. 14CF302

Honorable Thomas E. Griffith, Jr., Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Turner and Justice Appleton concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed defendant's conviction for attempt (first degree murder) over challenges that the trial court abused its discretion by (1) admitting expert testimony about the hierarchies of local gangs and (2) refusing defendant's request to have the jury instructed on a lesser-included offense. The appellate court ordered the trial court to vacate fines imposed by the circuit clerk and remanded the cause with directions.

¶ 2 In March 2015, defendant, Rafael D. Kennedy, was tried by a jury for attempt (first degree murder). The evidence presented showed that defendant drove a car to the Moundford Terrace apartments with his codefendant, Rajiv Rice, seated in the passenger seat. After arriving at the complex, Rice fired a .45-caliber firearm multiple times toward Katari Smith, who had stepped outside his girlfriend's home in the complex. One of the shots hit Smith in his left leg. (We recently affirmed Rice's conviction for attempt (first degree murder). People v. Rice, 2017 IL App (4th) 141081-U.)

¶ 3 During trial, the State introduced evidence—over defendant's objection—that de- fendant and Rice were in a rival gang of Smith's and that the shooting at Moundford Terrace was in retaliation for a gang-related shooting earlier that day. After the close of evidence, defendant requested that the jury be instructed on aggravated battery with a firearm—a lesser-included offense of attempt (first degree murder). The trial court denied defendant's request, finding that the instruction was not supported by the evidence. The jury found defendant guilty of attempt (first degree murder). The court sentenced him to 27 years in prison.

¶ 4 Defendant appeals, arguing that (1) the trial court abused its discretion by allowing the State to present expert testimony about gang hierarchies, (2) the court abused its discretion by refusing defendant's request for a lesser-included offense jury instruction, and (3) the circuit clerk improperly imposed certain fines. We affirm defendant's conviction, order the trial court to vacate certain fines, and remand the cause with directions.

¶ 5 I. BACKGROUND

¶ 6 A. The Charge

¶ 7 In March 2014, the State charged defendant with attempt (first degree murder) (720 ILCS 5/8-4(a), (c)(1)(B) (West 2014); 720 ILCS 5/9-1(a)(1) (West 2014)), alleging that he shot Smith with the intent to kill.

¶ 8 B. The Jury Trial

¶ 9 1. The State's Evidence

¶ 10 In March 2015, the cause proceeded to a jury trial. Smith testified that on March 16, 2014, he was at the apartment of his girlfriend, Kearstyn Collins, located in the Moundford Terrace complex in Decatur, Illinois. Around 2 p.m., he heard a car window break in the parking lot. Smith looked outside and saw someone standing over his car. He ran outside to investigate. As he exited the apartment, he heard gunshots and dropped to the ground. Smith got up and triedto run back inside the apartment but was shot in the "upper left knee." He fell back to the ground and crawled inside the apartment. Smith did not see who shot him.

¶ 11 Jennifer Morse testified that she lived in Moundford Terrace. On March 16, 2014, she was at home watching television when she heard approximately eight gunshots. She opened her front door and saw a "silverish gray" car with two front-seat passengers driving away.

¶ 12 Decatur police officer Cory Barrows testified that he responded to a call of a shooting at Moundford Terrace involving a gray, four-door vehicle with tinted windows. As Barrows drove toward Moundford Terrace, he saw a car matching the description driving at a high speed. Barrows activated his emergency lights and followed the gray car. As the car travelled south, Barrows saw a clump of glass and window tinting fall from the passenger-side window. The driver eventually pulled over. Defendant was driving, and Rice was in the front passenger seat. An inventory search of the vehicle recovered two spent .45-caliber shell casings in the rear seat.

¶ 13 Decatur police officers Jeff McAdam and Amber Patient responded to the area where Barrows saw glass fall from the window of the gray car. They found two semiautomatic handguns on the ground nearby—a .40-caliber and a .45-caliber. The .40-caliber was loaded; the .45-caliber was not. On cross-examination, McAdam testified that the guns were located in a position as if they had been thrown from the passenger side of a vehicle travelling southbound.

¶ 14 Detective James Wrigley investigated the crime scene at Moundford Terrace. He found two different groups of shell casings. In the Moundford Terrace roadway, he found four .45-caliber shell casings. On the other side of the apartment's privacy fence, he found 12 .380-caliber shell casings. The fence had 10 holes in it that appeared to be caused by bullets. Inside Collins' apartment, Wrigley found an empty box of .380-caliber ammunition. In the attic,Wrigley found two .380-caliber handguns. Based on the evidence recovered from the scene, Wrigley opined that two groups of people had fired at each other.

¶ 15 Forensic scientist Mary Wong testified that gunshot residue analyses were conducted on defendant, Rice, and the sweatshirt defendant was wearing that day. The samples taken from defendant's and Rice's persons were inconclusive. The sample taken from defendant's sweatshirt tested positive for gunshot residue. Wong clarified that the positive result did not mean that defendant had fired a gun but merely that he had recently been in the vicinity of a gun being fired.

¶ 16 Forensic scientist Beth Patty testified that she tested the firearms and shell casings discovered by police. The testing revealed that all the .45-caliber shell casings were fired from the .45-caliber handgun recovered by McAdam and Patient, located where defendant and Rice had recently driven. Patty testified further that the .380-caliber shell casings found at the scene were fired by the two .380-caliber handguns found in the attic of Collins' apartment.

¶ 17 The State made an oral motion to introduce "gang-related evidence." The State explained that it wished to call Decatur police officer Matt Daniels to present testimony that defendant and Rice, on the one hand, and Smith on the other, were members of rival gangs. Daniels would testify further that defendant and Rice were retaliating against Smith in response to a gang-related shooting that had happened earlier that day. Defendant objected, arguing that his alleged gang affiliation and the alleged gang-related connection between the two shootings were merely speculation. The trial court granted the State's motion to introduce the gang-related evidence on the limited issues of motive and identity.

¶ 18 The State called Daniels to testify. Defendant renewed his objection to Daniels' testimony about "gang-related" evidence. The trial court overruled that objection and read thefollowing instruction to the jury:

"Evidence has been received on the defendant's gang affiliation. The evidence has been received on the issue of the defendant's identification and motive and may be considered by you only for that limited purpose. It is for you to determine what weight should be given to this evidence on the issues of identification and motive."

(The same instruction was given to the jury after the close of evidence.)

¶ 19 Daniels testified that he had worked as a patrol officer in Decatur for six years, where he was assigned to the anti-crime team and the bike-patrol unit. Daniels explained that during his time as an officer, he learned of an ongoing rivalry between Decatur's east-side and west-side gangs. Daniels testified that the west-side gang referred to itself variously as "Mob Squad," "U-block," and "Union Street Murder Gang." The east-side gang called itself the "Blood Gang." Daniels described the areas of town where the gangs congregated, along with the hand-signals they used and their common gang tattoos.

¶ 20 Daniels testified further that through his investigation of the Decatur gangs, he was aware of the gang affiliations of several gang members. Daniels stated, "If I think you are an affiliate [and] I see you hanging out in the area, I'm going to do some investigation. *** I'm going to try to determine your role." Daniels testified that defendant, Rice, and Tyheim Johnson were west-side gang members. Smith was a member of the east-side gang. On cross-examination, Daniels explained that gangs in Decatur had a looser hierarchy than those in, for instance, Chicago, where there was a strictly established hierarchy. Daniels testified that he was unaware of the process by which a person became a member of the Decatur gangs. Daniels explained that the east-side gang's color was red but that the west-side gang did not wear a particu-lar color.

¶ 21 On redirect, the State asked Daniels if he knew where the individuals involved in this case fit in their respective gangs' hierarchies. Defendant objected, arguing that a foundation was laid for Daniels' general knowledge of Decatur gangs but not specifically for his knowledge of those gangs' hierarchies. The court overruled defendant's objection. Daniels went on to testify that defendant and Rice were among the leaders of the west-side gang and that Smith was a leader of the east-side gang.

¶ 22 Decatur police officer Todd Cline testified that earlier on March 16, 2014—around 11 a.m.—he responded to a shooting on East Lincoln Street...