People v. Polk

1

2024 IL App (1st) 181933

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ULYSSES POLK, Defendant-Appellant.

No. 1-18-1933

Court of Appeals of Illinois, First District, Second Division

June 28, 2024

Appeal from the Circuit Court of Cook County. No. 13 CR 13349 Honorable Michael B. McHale, Judge, presiding.

Attorneys for Appellant: James E. Chadd, Douglas R. Hoff, and Elizabeth A. Botti, of State Appellate Defender's Office of Chicago, for appellant.

Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Iris G. Ferosie, and Sara McGann, Assistant State's Attorneys, of counsel) for the People.

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Ellis concurred in the judgment and opinion.

OPINION

COBBS, JUSTICE

¶ 1 This case comes before us a result of a long and wide-sweeping investigation into the New Life Black Souls (NLBS) street gang in Chicago. The investigation culminated in nearly two dozen indictments under the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations Law (RICO statute) (720 ILCS 5/art. 33G (West 2012)). Six alleged NLBS leaders-defendant Ulysses Polk and codefendants Antwan Davis, Cornel Dawson, Clifton Lemon, Teron Odum, and Duavon Spears-were indicted and tried jointly on one count of criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2012)) and one count of racketeering conspiracy (720 ILCS 5/33G-4(a)(3) (West 2012)). The jury convicted each defendant on both counts. Polk was sentenced to three concurrent life sentences for racketeering conspiracy and a 40-year term for criminal drug conspiracy. Polk's codefendants received similar sentences. The defendants filed separate appeals, which this court consolidated under appeal No. 1-18-1491. ^[1] On February 2, 2022, we granted Polk's motion to sever his appeal from those of his codefendants. For the following reasons, we now remand the matter for further inquiry into allegations of juror misconduct and, if a new trial does not prove necessary, resentencing for criminal drug conspiracy only. Additionally, jurisdiction is retained.

¶ 2 I. BACKGROUND

¶ 3 We recount the voluminous background of this case only to the extent necessary to resolve the issues presented on appeal. The facts are also set forth in codefendants' consolidated appeal. People v. Spears, 2024 IL App (1st) 181491.

¶ 4 A. Conflict of Interest

¶ 5 1. Attorney Becker

¶ 6 Polk was represented in the trial court by private attorney George Becker. Attorney Becker also represented Dawson, the leader of the NLBS and Polk's half-brother. Attorney Becker addressed the joint representation at a hearing on June 5, 2015, stating that he "explained to [Polk and Dawson] there's a potential conflict" because he "represent[ed] two people in the same conspiracy." Attorney Becker further explained that Polk and Dawson had signed a waiver form, which he tendered to the trial court. The signed form, entitled "Waiver of Potential Conflict of Interest," states that Polk "waives any potential conflict that George E. Becker may have in representing him in the above captioned matter based upon his current representation of Cornel Dawson, a codefendant in the same indictment." The trial court then asked attorney Becker whether he had analyzed the case for any potential antagonistic defenses between Polk and Dawson, to which attorney Becker replied, "Judge, I have, and I don't see any." Upon further questioning from the trial court, attorney Becker also denied that there was any "actual conflict of interest" that would "adversely affect [his] performance in this case in any way."

¶ 7 More than two years later, on June 19, 2017, attorney Becker raised the possibility of antagonistic defenses at a hearing on Polk and Dawson's motion to continue the trial date. Specifically, attorney Becker explained that the State would seek to introduce a witness's statement that Polk was at the scene shortly before the murder of Claude Snulligan. Because there was no evidence tying Dawson to the murder scene, attorney Becker stated he was unsure whether there he would have to "preclude [him]self from making the proper arguments on behalf of one [client] or the other." However, attorney Becker also stated that he had discussed the issue with his clients and that they both wished "to move forward with the waiver [of] conflicts that they previously signed." Even so, attorney Becker requested additional time to conduct further research and file a motion to sever if necessary. The trial court responded that attorney Becker had had the statement in question "for years," but nevertheless gave him two weeks to file a motion to sever.

¶ 8 Attorney Becker filed a motion to sever Polk's case from those of his codefendants on June 30, 2017. The motion identified two bases for a severance: (1) the defenses of Polk and Dawson "may be antagonistic in that the State claims [Dawson] allegedly made a post-arrest statement admitting being a member of the Black Souls" and (2) "certain evidence may be introduced" against Polk's codefendants that "would be highly prejudicial and not probative or relevant to any charges against him."

¶ 9 The trial court denied the motion after a hearing, concluding that Dawson's own admission to being a Black Soul did not implicate Polk and did "rise to a level that requires severance."

¶ 10 On July 21, 2017, just one week after Polk's motion for severance was denied, attorney Dawn Projanksy was added to Polk's defense team. The motion to appoint attorney Projansky certified that she was a former public defender, was an experienced trial attorney, and had "no conflict of interest in representing any defendant." Attorney Projansky first appeared in court on Polk's behalf on August 11, 2017. Thereafter, she gave Polk's opening statement and crossexamined most of the State's witnesses, including the key witnesses relevant to the issues raised in this appeal. Attorney Becker delivered Polk's closing argument and litigated Polk and Dawson's joint motion for a new trial.

¶ 11 2. COH 1K

¶ 12 Also relevant to this appeal is a recorded conversation between Dawson and Alex Williams, the State's confidential informant, which came to be known as consensual overhear (COH) 1K. The conversation concerns Claude Snulligan, who had given the police incriminating statements about Odum, the NLBS' second-in-command. The evidence showed that Snulligan was later murdered by the NLBS in retaliation, which formed part of the basis for the racketeering conspiracy charge.

¶ 13 In COH 1K, Dawson explains to Williams that Snulligan was not seen for several months after incriminating Odum. Dawson goes on to state that, upon seeing Snulligan in the neighborhood again, he told his "brother" (whom Williams identified in court as Polk) to give him a gun in order to shoot Snulligan.^[2] Polk insisted on accompanying Dawson so the two followed Snulligan in Dawson's van. However, they did not confront Snulligan that day because they saw police in the area and suspected that he was "trying to set [them] up."

¶ 14 Through attorney Projanksy, Polk filed a pretrial motion regarding COH 1K. The motion itself is not in the record on appeal, but it is apparent that it concerned a potential conflict caused by Dawson's incriminating statements. At the hearing on the motion, attorney Projansky requested that the State agree not to introduce the statement at trial. The State refused, stating it "would not agree to eliminate that conversation. It's an integral part of the case." The State also argued that no severance was required because Polk and Dawson had already waived any conflict. Attorney Becker then spoke up, asserting that Polk and Dawson signed the waiver "without knowing exactly what was said" in COH 1K.

¶ 15 The trial court denied Polk's motion, stating:

"I understand your point. So I looked at this and gave it some very sincere and thorough thought. Illinois case law states to show an actual conflict exists, a Defendant must point to some specific defect in his counsel's strategy, tactics or decision-making attributable to a conflict. Mere speculation and conclusory statements are not sufficient to establish an actual conflict. A Defendant must demonstrate that a conflict of interest would actually affect the adequacy of his representation.

I have already ruled that Mr. Dawson and Mr. Polk are members of the same conspiracy, so the statements come in through Alex Williams for both of them anyway. So I don't see any conflict at all here. Any attorney for Dawson is going to attack the credibility of Alex Williams, which is the same defense for Polk. There is no incentive for a different attorney to have any other different defense, which will be to attack the credibility of Alex Williams. There is no antagonistic defense here. There is no conflict. Motion is denied."

¶ 16 B. Jury Trial

¶ 17 The following evidence was adduced at defendants' jury trial.

¶ 18 1. History of the Black Souls

¶ 19 Retired Chicago police detective John Rawski testified as the State's gang expert. He explained that in the 1990s a gang known as the Impression Black Souls controlled the territory from Pulaski Road to Keeler Avenue (east to west) and Madison Street to the Eisenhower Expressway (north to south). At that time, the leaders of the Impression Black Souls were Kevin Mitchell and Dwayne Lemon. The gang made money by selling drugs, primarily on Wilcox and Monroe Streets.

¶ 20 However, a "rift" in the mid-1990s caused some members, led by Dwayne Lemon, to break off and form a new faction called the New Life Black Souls. Dwayne Lemon remained in charge of the NLBS until he was murdered by the...