People v. Nelson

1

2024 IL App (3d) 210366-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOYLE EUGENE NELSON, JR., Defendant-Appellant.

No. 3-21-0366

Court of Appeals of Illinois, Third District

January 26, 2024

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 the 10th Judicial Circuit, Peoria County, Illinois, Appeal No. 3-21-0366 Circuit No. 19-CF-366 Honorable John P. Vespa, Judge, Presiding.

JUSTICE HETTEL delivered the judgment of the court. Justice Davenport concurred in the judgment. Justice Brennan dissented.

ORDER

HETTEL JUSTICE

¶ 1 Held: (1) The admission of defendant's interrogation video did not constitute reversible plain error nor was counsel ineffective for failing to move to suppress it; (2) defense counsel's failure to cross-examine State's occurrence witness with her prior statement was a strategic decision that did not result in ineffective assistance; (3) the court did not abuse its discretion in admitting defendant's jail phone call; however (4) the trial court's error in admitting defendant's text messages warrants a new trial.

¶ 2 A jury found defendant, Doyle Eugene Nelson, Jr., guilty of felony murder, and the trial court sentenced him to 55 years in prison. Defendant appeals, challenging the admission of evidence at trial, claiming counsel was ineffective, and arguing that his sentence was impermissibly disparate compared to his codefendant's 45-year term. We reverse defendant's conviction, finding the trial court erred in admitting defendant's text messages, and remand for a new trial.

¶ 3 I. BACKGROUND

¶ 4 The State charged defendant with two counts of first degree murder. Count 1 alleged that on June 12, 2019, defendant shot Zarious Fair while attempting to commit armed robbery (720 ILCS 5/9-1(a)(3) (West 2018)). Count II alleged that he did so knowing his acts created a strong probability of death or great bodily harm (id. § 9-1(a)(2)).

¶ 5 The State only tried defendant on count I, felony murder. At the first trial, Tanasia Boone testified that defendant and his fourteen-year-old friend, Z.M., approached her and her boyfriend, Fair, as they were walking to McDonald's. She thought they wanted to fight Fair, so she took his phone from his pocket and held onto it. Defendant checked Fair's pockets by "patting him down." Z.M. then pulled out a gun and shot Fair several times. Both Z.M. and defendant ran away.

¶ 6 The jury viewed defendant's interrogation video. The parties experienced difficulty producing an audible recording. While the video played in court, one juror stated "It's indecipherable. It's not a volume level. It's indecipherable." The trial court considered excluding it because of poor sound quality. After several discussions, the parties agreed to give the video to the circuit court's technology support staff to see if the audio issues could be corrected. A copy of an improved video was later admitted. Although background noise still existed both parties agreed that the audio on the edited copy was at least comprehensible. At defense counsel's encouragement the jury watched the video again. By agreement of the parties, the copy was also provided to the jury to review during deliberations. The jury was unable to reach a unanimous verdict, and the trial court declared a mistrial.

¶ 7 At the second trial, defense counsel moved in limine to bar the State from introducing evidence of text messages on defendant's cell phone from April 2019 in which defendant and others mentioned planning robberies and using guns. Counsel argued that the texts were irrelevant, prejudicial, and lacked proper foundation. The State maintained that defendant authored the texts in the exhibit and they were relevant to show knowledge, intent, and lack of mistake. The court found the texts admissible and denied defendant's motion.

¶ 8 Testimony revealed that officers reported to the scene around 4 p.m. on June 12, 2019, to find Z.M. shot and lying on the sidewalk. Boone was standing next to Fair and was "hysterical." She told police she knew the two males who confronted Fair from social media. She opened her Facebook account and showed detectives the Facebook profile for both Z.M. and defendant, identifying Z.M. as the one with the gun and defendant as the other person involved. Detective Hulse attempted to recover defendant's Facebook page when he returned to the police station but he was unable to find defendant's profile.

¶ 9 Boone testified that she and Fair were walking to McDonald's when Z.M. and defendant came up behind them. They confronted Fair and "tried to rob him and shot him." Then they ran off together. Before Z.M. shot Fair, defendant patted him down and checked his pockets. She thought they were going to fight so she took Fair's cellphone for safekeeping. Z.M. and defendant did not take anything from her before they ran away.

¶ 10 On cross-examination, Boone admitted that the incident happened "very quickly." When Z.M. first walked up, he said, "Up your shit." At that point, she "figured that they were going to fight," which is why she took Fair's cellphone. Neither Z.M. nor defendant tried to take the phone from her or her purse. She admitted that she knew Z.M. Two or three months earlier, Z.M. tried to initiate a romantic relationship with her, and she turned him down. She did not know if Z.M. and Fair were "beefing," which she explained to mean fighting. Defense counsel then asked Boone if she remembered speaking with detectives immediately after the shooting and telling them that Z.M. and Fair "were beefing a long, long time ago." She responded that she did. On redirect, Boone agreed that Z.M. shot Fair immediately after defendant patted him down.

¶ 11 The parties stipulated to surveillance video from a nearby grocery store that was published to the jury. The video depicted Fair and Boone walking on a sidewalk, passing the grocery store, and turning onto Second Street. Z.M. and defendant are shown walking about 30 seconds behind them and following Fair and Boone down Second Street.

¶ 12 The court admitted defendant's interrogation video without objection from defense counsel. After beginning the video, an issue arose with the video equipment and the State requested a short recess. After the court excused the jury, it expressed concern that the video "has screeching all of the time in the background" and the jury might not be able to hear what the defendant and the defectives are saying. Defense counsel agreed that the audio was problematic but indicated that the technology support staff had been able to improve the quality of the video and encouraged its admission. Counsel suggested that the court inform the jury that the video had been admitted, that the quality was poor, and that a copy of the video would be made available for them to review during deliberations.

¶ 13 The court admitted both the original video and the copy and published them to the jury. Detective Scott Hulse, one of the officers who interviewed defendant, testified to its contents as the enhanced copy played. At the beginning of the interview, Detective Hulse read defendant his Miranda rights. Defendant interrupted him and asked what would happen if he did not answer the questions. Hulse answered, "Well, you're gonna be charged with first-degree murder." Defendant paused, and Hulse continued, "It can happen. I guess what I'm saying is-- I'm not pointing the finger at you for anything. I'm investigating a criminal incident and your name has come up during the course of the investigation. So I have to read you your rights to even ask you anything other than your name, address, and phone. *** Does that make sense now?" Defendant responded, "Yeah," and Hulse continued to read the Miranda warnings. When Hulse finished, defendant stated that he understood his rights and agreed to talk to the detectives.

¶ 14 Initially, defendant explained that he and Z.M. were walking down the street to get money from defendant's girlfriend. At some point, defendant "broke off" from Z.M. He only heard gunshots from a distance. He claimed he was not with Z.M. when Z.M. shot Fair. The detectives responded that they believed defendant was lying and they wanted to hear the truth. Defendant subsequently denied firing the gun but admitted that he was with Z.M. He stated that Z.M. was "supposed to go, I guess, rob little guy's phone." Z.M. told defendant that he was going to "poke him," meaning rob him. Defendant said, "no bro, you tweakin'," and told Z.M. that he was going to "party out." Z.M. continued to follow Fair, so defendant chased after him and told him to calm down. Z.M. already had his gun out. Defendant said, "Bro, back up." Z.M. pushed defendant aside and fired. Defendant stated that there "wasn't no stoppin' [Z.M.]" and "I [didn't] know he was going to do that." Defendant denied checking Fair's pockets or patting him down. He stated that he tried to push Z.M. aside and said, "no," but "little dude" reached for the gun and Z.M. shot him. Defendant told Z.M. to back up and calm down but Z.M. continued shooting, possibly three or four times. After the shooting, defendant and Z.M. went different directions. Defendant changed his clothes and went to a friend's house, and Z.M. joined him there later.

¶ 15 At the end of the interview, defendant again stated that he was trying to stop Z.M. and he was in shock after the shooting. He admitted that he deleted his Facebook page that same day, shortly after Z.M. shot Fair.

¶ 16 The detectives left the room but returned later and continued to question defendant. Defendant again denied patting down Fair. He states that when Z.M. first mentioned...