People v. Kindle

2021 IL App (1st) 190484

216 N.E.3d 941

466 Ill.Dec. 108

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

v.Donnte KINDLE, Defendant-Appellant.

No. 1-19-0484

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 17, 2021

James E. Chadd, Douglas R. Hoff, and S. Emily Hartman, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak, Enrique Abraham, Jon J. Walters, and Victoria L. Kennedy, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Defendant, Donnte Kindle,¹ appeals his conviction after a jury trial of first degree murder and his sentence of 28 years’ imprisonment. On appeal, defendant contends (1) the State failed to prove him guilty beyond a reasonable doubt where the evidence identifying him as part of the group that attacked the victim was unreliable, (2) he was denied his right to a fair trial where the prosecutor repeatedly and improperly implied that witnesses were afraid to testify, (3) defense counsel was ineffective when she stated during opening argument that the jury would hear evidence that defendant did not participate in the attack, but then failed to present any such evidence during trial, (4) the trial court failed to admonish potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) whether they understood the principles enumerated in the rule, and (5) he is entitled to a new sentencing hearing because he was 17 years old when he committed the offense and the trial court failed to consider the statutory factors listed in section 5-4.5-105(a) of the Unified Code of Corrections (730 ILCS 5/5-4.5-105(a) (West 2018)) for juvenile defendants, and (6) his mittimus should be corrected to reflect only one conviction and sentence for first degree murder. For the following reasons, we affirm defendant's conviction and sentence but order that the mittimus be corrected to show one conviction and sentence.

¶ 2 I. JURISDICTION

¶ 3 Defendant was sentenced on January 23, 2019. He filed his notice of appeal on February 14, 2019. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017), governing appeals from a final judgment of conviction in a criminal case entered below.

¶ 4 II. BACKGROUND

¶ 5 The State charged defendant and codefendants Jabril Garner and Antoine Ward with 12 counts premised on the beating death and robbery of Darius Chambers. Defendant and Garner were tried in separate but simultaneous jury trials in 2018. This court affirmed Garner's conviction in People v. Garner , 2021 WL 1085756, 2021 IL App (1st) 182532-U. A fourth codefendant, Jonathan Primm, was convicted in a separate trial and sentenced to 40 years’ imprisonment.

¶ 6 Stephen Willis testified that he was with Chambers on the night of October 29, 2011. They went to a Halloween party and later that night walked to a bus stop on 79th Street and Greenwood Avenue. There was another bus stop across the street. Willis testified that there was a streetlight above their bus stop.

¶ 7 While they waited, a man later identified as Ward walked up to the bus stop from a nearby apartment building and stood to the left of Chambers. After about five minutes, another man later identified as Garner came and stood to the right of Willis. Shortly thereafter, two more men crossed the street and approached Willis and Chambers.

¶ 8 Garner asked to use Willis's cellphone, and Willis responded that he did not have one. Feeling uneasy, Willis gave Chambers "a look" to indicate they should leave "because this doesn't feel or look right." Ward then "swung" at Chambers, and Willis ran toward a friend's house nearby. When he arrived at his friend's house, he learned that police had been notified. Willis returned to 79th Street and Greenwood Avenue, where he saw Chambers on the ground with a sheet over him.

¶ 9 Chambers died from a brain hemorrhage resulting from blunt force injuries to his head. Later that day, Willis went to the police station to view a photo array and lineup. Willis identified Garner and Ward as two of the offenders.

¶ 10 Zachary Morris testified that he was driving near 79th Street and Greenwood Avenue late on October 29 into the early morning of October 30, 2011. While passing Greenwood Avenue, he saw a group of "at least four men possibly more" at a bus stop "jumping on another individual on the ground." The men jumped on the individual's head with both feet as if "busting a cherry open." They were also "kicking his tailbone *** trying to break his back." Morris observed the men going through the victim's pockets and "beating him up at the same time." At some point, the men scattered. Most went south on Greenwood across the street, while one "crossed over" Morris's car, "running with the rest of the guys down Greenwood." Morris called the police and he tried to give descriptions of the men, but their faces were covered.

¶ 11 Jalen Primm, who was 14 years old at the time of trial, testified he previously lived in Chicago in an apartment on Greenwood Avenue with his parents and siblings. Codefendant Johnathan Primm was his cousin. Around Halloween in 2011, when he was seven years old, he saw "something happen" outside his apartment. Something woke him up, and he looked out the window. Jalen saw a man on the ground "getting beat up" at the bus stop across the street. The man was on the ground getting kicked and punched. Jalen did not remember how many people were beating him up, but "all" the people he saw were kicking and punching him. His cousin was one of the men. While the man was being beaten, "[h]is friend" ran. Jalen could not recall who came to his house after the beating. He testified that his sister, Janilah, was there, and he believed his mother was asleep. He went back to sleep after seeing the beating.

¶ 12 Jalen acknowledged that he previously testified when he was seven years old but did not recall specifically that he testified before a grand jury in November 2011. He remembered being asked questions and answering questions. He did not recall previously identifying a photograph of defendant or testifying that he looked out of the kitchen window. He also did not recall that, after being asked what the men did after "they couldn't catch that man," he responded that defendant, Garner, Ward, and Primm returned to his house. Jalen acknowledged that he previously testified that Primm was kicking and punching the man and the four men returned to the house and started talking. He further acknowledged that he was shown four photographs and signed his name on them but did not know whether he signed them because he identified the men in them. He had previously identified Primm in one of the photographs.

¶ 13 Jalen also acknowledged that he testified at Primm's trial in January 2018, but he did not recall testifying that "four boys" were beating up the man or identifying them as defendant, Ward, Garner, and Primm. Further, he did not recall testifying that defendant and Garner were punching and kicking the man. Jalen did not recall testifying that the four men were at his house prior to him going to sleep that day or that they returned after the beating. He remembered viewing lineups but could not remember identifying anyone. Jalen then remembered viewing a lineup and identifying Garner. He identified Primm in a lineup and Ward in a photograph array but denied identifying defendant. Jalen did not remember giving a recorded video statement to an assistant state's attorney (ASA) on November 1, 2011.

¶ 14 ASA Kelly Grekstas testified that, on November 1, 2011, she conducted a videotaped interview of Jalen, in the presence of his mother and Detective Watkins. Jalen stated that he lived in a house at 7910 South Greenwood Avenue with his mother, father, sisters, and brothers. On the night of October 30, 2011, he was at home with his sister, two brothers, and cousin. He looked out the window "to see if they was about to fight." Jalen explained that he could see the bus stop from his window and saw "two boys" standing there. Jalen did not know the "two boys." He also observed defendant, Primm, Garner, and Ward at the bus stop. Primm was Jalen's cousin, and Garner and Ward were friends of his brother Arnold Mitchell. Jalen stated that he did not really know defendant, but defendant had been in Jalen's house.

¶ 15 He stated that defendant, Primm, Garner, and Ward had been in the house prior to going outside. Jalen watched them go "across the street *** by the bus stop." When they approached the "two boys," one boy ran and the other boy stayed at the bus stop. Jalen stated that the boy who stayed "got beat up" and "[t]hey were stomping him and kicking him and punching him." Defendant, Primm, Ward, and Garner were all stomping and hitting the boy with "their hands and feet," as the boy was "laying down" on the ground. The four chased the other boy as he ran away but they were not able to catch him.

¶ 16 Afterwards Primm, Ward, and Garner came into the house and Primm started talking. After they finished talking, Jalen went into his sister's room where he fell asleep. He stated that on November 1, 2011, he went to the police station and identified defendant in a lineup.

¶ 17 Jalen's mother, Shannon Primm, testified that she was a witness at a previous trial and "as a result," the state's attorney's office assisted her with relocation outside of Illinois. The state's attorney's office gave her money to move and made travel arrangements for her and her children, Jalen and Jamirah, to come to court. Other than relocating and travel expenses, she was not promised anything or threatened in exchange for her testimony. Defense counsel objected to this testimony because it raised an inference that...