People v. Peel

2018 IL App (4th) 160100

115 N.E.3d 982

426 Ill.Dec. 60

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

v.Robert PEEL, Defendant-Appellant.

NO. 4-16-0100

Appellate Court of Illinois, Fourth District.

Filed August 20, 2018

James E. Chadd, Patricia Mysza, and Editha Rosario-Moore, of State Appellate Defender’s Office, of Chicago, for appellant.

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Linda S. McClain, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 In February 2014, defendant, Robert Peel, was arrested and charged with reckless discharge of a firearm. In September 2015, a jury found defendant guilty. At the January 2016 sentencing hearing, the trial court sentenced defendant to 30 months' probation and 4 days' imprisonment, with 4 days of presentence credit for time served.

¶ 2 On appeal, defendant argues (1) this court should overturn his conviction because the evidence shows the handgun was fired into the ground; (2) the trial court erred in not answering the jury's explicit question; (3) the court erred by hastening the jury deliberations; and (4) he was denied effective assistance of counsel due to counsel not requesting an explicit answer to the jury's question, not requesting a limiting instruction for evidence, not objecting during the State's closing arguments, and not presenting evidence promised in opening statements. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In February 2014, defendant, a nurse and veteran of the United States Marine Corps, fired a handgun from somewhere in the vicinity of the front door of his home located in a residential subdivision of Heyworth, Illinois. According to defendant, he decided to test-fire a Smith & Wesson 9-millimeter semiautomatic handgun in his front yard sometime after 8 p.m. on the evening of February 13, 2014, because his girlfriend was going to be using it while qualifying for her concealed carry permit. Defendant said test-firing was necessary because the gun had jammed previously and he was trying new ammunition at the suggestion of his father.

¶ 5 Defendant testified he exited his front door after consuming one or two beers, went down the front steps, and fired a number of rounds into the ground in his front yard, in a location he previously cleared of snow for his dogs. He said the snow had fallen earlier that day and was light and fluffy, and there was no ice in that particular location. He could not recall the exact number of rounds fired, but he estimated it to be "five to nine." He saw the holes where the rounds landed and did not see any ricochet. Defendant described his angle of fire as, "I would guess 30 degrees, less than 45 degrees right out in front of me." The empty shell casings were ejected back and to the right of defendant as he fired. He said he fired the rounds as quickly as possible because that was when the gun jammed previously, and he estimated it took no more than three to four seconds. According to defendant, since it was cold outside and he was wearing only jeans, tennis shoes, and a fleece pullover with no socks or underwear, he ran outside, fired the rounds, and ran back in. Once back inside, he consumed one more Bud Light before the police arrived.

¶ 6 Defendant said he was unaware of any police presence at his residence until sometime between 9 p.m. and 9:30 p.m. As he was getting ready to go to bed, he saw a vehicle parked in front of his house with its parking lights on and heard voices outside. He exited the front door to investigate. Defendant testified he did not hear anyone knocking at the door before he exited the residence because he was "all over the house," no one rang the doorbell, and his dogs gave no indication someone was at the door. Once outside, he said he initially did not realize the people in his front yard were police officers when a man approached him holding an AR-15 rifle and told him to put his hands up. He then recognized one of the other officers as a deputy sheriff when he also approached pointing a semiautomatic handgun at defendant. Defendant said he "froze" with his hands in the air, acknowledged he was in possession of a handgun when asked, and raised his shirt by the shoulders, as directed, in order to expose his waistband and the location of the pistol.

¶ 7 After he was disarmed, defendant was handcuffed and taken into custody. He denied struggling with the officers and said the reason he told the officers not to enter the house was because his girlfriend was sleeping naked in bed. At the police station, he was eventually handcuffed to a bench because he continued to stand up when told to be seated during the booking process. Defendant said it was because he was uncomfortable as a result of the snow in his shoes.

¶ 8 The State presented two occurrence witnesses who were neighbors of defendant. Darrell Karr lived diagonally across the street and south of defendant's residence. He received a phone call sometime between 8 p.m. and 8:30 p.m. from another neighbor, Tim Perschall. After getting off the phone, he went outside, stood on his porch, and looked in the direction of defendant's home, which he estimated at trial to be about 300 feet away. (Defendant testified he measured the distance at 270 feet.) While looking at defendant's residence, he could see the doorbell light and saw a series of four flashes followed by loud booms coming from the front door, straight across from the doorbell. He knew these were gunshots from his own experience with guns. He admitted he could not see who was firing the gun because the flashes were even with the doorframe. He also acknowledged it was possible the person was a few feet from the front door, although he said the front porch light was on and he did not see anyone.

¶ 9 James Ingels was a neighbor who lived directly across the street from defendant. He recalled hearing series of shots, which he described as "a few, five or so," around 8 p.m. to 8:30 p.m. on the night in question. A few minutes later, he heard another group of shots similar to the first, and then several minutes after that, a third group, louder than the first two. He counted the last group of shots as seven or eight. At some point, Ingels saw several police cars parked near defendant's home and observed them knocking on the front door. He said when the police first knocked, all the lights in the house were off, and then upstairs lights came on and went off again. According to Ingels, the police stood at the front door for several minutes knocking, and then he saw one approaching the front and another going around to the side of the house. He acknowledged seeing no gunfire and was unable to identify anyone as the shooter because he did not believe it was a good idea to go outside during the shooting.

¶ 10 Deputy Brian Hanner, Deputy Jason Simmons, and Deputy Jonathan Albee, all of the McLean County Sheriff's Department, were called to testify regarding the incidents surrounding the investigation of shots being fired and the arrest of defendant. Other officers of both the Heyworth Police Department and McLean County Sheriff's Department were present when Deputy Hanner first arrived, and after conferring, Deputy Hanner and Deputy Albee took up a position to the south of the residence, where they could see both the rear and side of defendant's home. They waited there approximately 10 minutes before seeing Deputy Simmons moving to the front of the house and overhearing commands to someone to "put your hands up." Deputies Hanner and Albee then moved to the front in time to see Deputy Simmons and Sergeant Tapke of the Heyworth Police Department confronting defendant and removing a firearm from him.

¶ 11 Deputy Hanner, a five-year veteran with the sheriff's department, testified to the chain of custody of the handgun and its eight-shot magazine once taken from defendant. He also indicated he was twice in close proximity to defendant that evening—both at the scene as they took him into custody and later after transporting him to the police station for booking. On both occasions, he observed the odor of an alcoholic beverage on defendant's breath and observed his eyes to be bloodshot and glassy. Deputy Hanner also identified seven shell casings, four brass and three nickel, given to him by Deputy Albee and processed as evidence.

¶ 12 Deputy Simmons, a 17-year veteran of the sheriff's department and a firearms instructor, observed Sergeant Tapke approach defendant, and Deputy Simmons told defendant to put his hands up. Since defendant was illuminated by the searchlight from Sergeant Tapke's squad car, the handgun tucked into the right side of his waistband was clearly visible when he was told to raise his shirt. Deputy Simmons took possession of the handgun once Sergeant Tapke removed it from defendant's waistband. He also removed the magazine. Because the call had been for shots fired recently, he smelled the handgun and noted an odor he recognized as being a sign of recent discharge. Once he attempted to remove the handcuffed defendant from the immediate area of the front yard, he noted defendant "physically obstructed my efforts to move him toward the squad car." He described defendant's behavior as "combative" and said he had to stop on the way, push defendant up against another squad car, and tell him to stop struggling and move to his squad car. He also smelled the odor of an alcoholic beverage on defendant's breath. Once in booking, he again had to admonish defendant, who refused to remain seated as directed and eventually had to be handcuffed to the bench to complete processing.

¶ 13 Deputy Albee, who had been with the sheriff's department for six years, testified about responding to the call and observing defendant being taken into custody. He entered the residence after the scene had been cleared, taking photographs both inside and outside on and near the...