People v. Rice

2017 IL App (4th) 141081-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAJIV D. RICE, Defendant-Appellant.

NO. 4-14-1081

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 3, 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 Timothy J. Steadman, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Turner concurred in the judgment.

Justice Appleton specially concurred.

ORDER

¶ 1 Held: The appellate court affirmed, concluding that (1) the trial court did not err by admitting evidence that defendant was a member of a gang; (2) the prosecutor's closing and rebuttal arguments were not improper; (3) the evidence was sufficient to prove defendant guilty beyond a reasonable doubt; and (4) the court would decline, in this direct appeal, to address defendant's claim that his trial counsel was ineffective, suggesting instead that defendant may pursue that matter in a postconviction petition.

¶ 2 A jury found defendant, Rajiv D. Rice, guilty of attempt (first degree murder) (720 ILCS 5/8-4(a), (c)(1)(B), 9-1(a)(1) (West 2014)), and the trial court imposed an aggregate prison sentence of 40 years: 25 years for attempt (first degree murder) plus 15 years for using a firearm during the commission of that offense. Defendant appeals, raising four claims.

¶ 3 First, he accuses his defense counsel of ineffective assistance in that, but for defense counsel's failure to object to a period of delay, a subsequent motion for dismissal on speedy-trial grounds would have been granted. We do not reach the merits of defendant's claim because we determine that the claim is more appropriately brought in a postconviction petition, where fact finding can be conducted.

¶ 4 Second, defendant argues the trial court committed reversible error by admitting evidence that he was a member of a gang. Without determining whether admission of the evidence was error, we conclude that any potential error did not affect the outcome of the trial and would therefore be harmless.

¶ 5 Third, defendant argues the State failed to prove him guilty beyond a reasonable doubt of attempt (first degree murder) because the State failed to prove an intent, on his part, to commit murder or to facilitate or promote a murder. However, when we regard all the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could find this element to be proved beyond a reasonable doubt.

¶ 6 Fourth, defendant claims that in the prosecutor's closing and rebuttal arguments, she deprived him of a fair trial and committed plain error by asserting that defendant and his alleged coconspirator lured the victim into the open, to be shot. We find no error at all in the prosecutor's argument and conclude that she was arguing a reasonable inference from the evidence.

¶ 7 Therefore, we affirm the trial court's judgment.

¶ 8 I. BACKGROUND

¶ 9 A. The Pretrial Motion for Dismissal on Speedy-Trial Grounds

¶ 10 On July 15, 2014, defendant moved to dismiss the charge against him on the ground that he had not been "tried *** within 120 days from the date he *** was taken into custody." 725 ILCS 5/103-5(a) (West 2014). In the hearing on the motion, it was established thathe had been continuously in custody since March 16, 2014. Defendant asserted that since his arrest, he had moved for a continuance of only seven days.

¶ 11 Defendant's motion raised a question, however, of whether the period from the preliminary hearing, on April 10, 2014, to the pretrial hearing, on May 29, 2014 (ultimately rescheduled to May 30, 2014), should be attributed to defendant. At the hearing on defendant's motion, defense counsel argued the answer was no. He noted that, in the preliminary hearing on April 10, 2014, it was the trial court's idea, not his idea, to schedule the pretrial hearing for May 29, 2014. Neither the prosecutor nor defense counsel moved for a continuance from April 10 to May 29, 2014; instead, the court, on its own initiative, simply consulted its calendar and set the pretrial hearing. Therefore, defense counsel resisted any suggestion that this period was attributable to defendant.

¶ 12 The prosecutor argued, on the other hand, that if defendant had wanted an immediate trial on April 10, 2014, he could have demanded one and that, absent such a demand, the period from April 10 to May 29, 2014, was attributable to him through his acquiescence or failure to object.

¶ 13 The trial court noted that, under cases such as People v. Cordell, 223 Ill. 2d 380, 860 N.E.2d 323 (2006), "a defendant [could] agree to a delay through inaction, namely[,] by failing to object." The court held that, because defendant never objected to scheduling the pretrial hearing for May 29, 2014, the period from April 10 to May 29, 2014, was attributable to him. Therefore, the court denied his motion for dismissal on speedy-trial grounds.

¶ 14 B. Defendant's Jury Trial

¶ 15 1. The Shooting, as Katari Smith Described It in His Testimony¶ 16 On March 16, 2014, Katari Smith and a few others were in his girlfriend's apartment on Moundford Terrace, in Decatur, Illinois. His car was parked on the street below, and, at about 2 p.m., he heard a window of his car being broken. He looked out a window of the apartment and saw a man in a "hoodie" standing by his car. (Forensic chemical analysis would later reveal that Smith's car had been set on fire with gasoline.) Another car, gray or silver in color, was parked nearby, with its passenger door open, and a man was sitting in the passenger seat of that car.

¶ 17 Smith ran downstairs and out of the apartment building toward his car. He then got shot in the knee. He did not see who shot him and never saw a shooter. He crawled back into the apartment building.

¶ 18 2. The Police Pursue the Gray Car

¶ 19 About three minutes after the shooting, Decatur police officer Corey Barrows was driving north on 22nd Street when a large four-door gray car with tinted windows went by, heading south at a high rate of speed. Because the car appeared to match the description of the car seen at the shooting, Barrows turned around and tried to catch up, his emergency lights flashing.

¶ 20 There was a chase through residential neighborhoods, at times reaching 60 miles per hour. On North 21st Street, about a hundred yards south of its intersection with East Locust Street, something dark fell out of the gray car. Barrows slowed down momentarily to take a look, and it appeared to be shattered glass held together by window tinting.

¶ 21 The gray car finally came to a halt, and Barrows and some other police officers performed a traffic stop. The driver of the gray car was Rafael Kennedy, and defendant was hispassenger. In an inventory search of the car, Barrows found two spent .45-caliber shell casings: one on the rear passenger-side floorboard and the other on the rear driver's-side floorboard.

¶ 22 The owner of the gray car, Chelsea Grider, testified she had loaned it to Kennedy so that she could use his van to move. She denied there were any shell casings in her car when Kennedy took possession of it.

¶ 23 3. The Discovery of Two Pistols on the Side of North 21st Street

¶ 24 Decatur police officer Jeffrey McAdam went to North 21st Street, a little south of its intersection with East Locust Street, where Barrows had seen something fall from the gray car. On the side of North 21st Street, McAdam found the fragments of a car window and two pistols, a .45-caliber Remington and a .40-caliber Ruger.

¶ 25 If a car had been going south on North 21st Street, the passenger side of the car would have been closest to where the pistols were found.

¶ 26 4. What Was Found at the Scene of the Shooting and in the Apartment

¶ 27 At the scene of the shooting, Detective James Wrigley found four spent .45-caliber shell casings on the road where the gray car had been parked.

¶ 28 In between the road and the back of the apartment building was a fence, which was perforated by bullet holes, apparently from rounds going both ways.

¶ 29 Inside the fenced-in area, Wrigley found 12 spent .380-caliber shell casings, two projectiles, and blood on the sidewalk.

¶ 30 Inside the apartment, he found more blood and a live bullet. In a garbage can in the kitchen, he found an empty .380-caliber ammunition box, which was stuffed inside a cereal box. Two .380-caliber pistols were in the attic.

¶ 31 5. The Shooting of Tyheim Johnson Earlier That Day

¶ 32 Smith was shot on the afternoon of March 20, 2014. Earlier that same day, in the morning, Tyheim Johnson was shot.

¶ 33 Detective David Pruitt testified that, according to statements he had received during his investigation, Johnson was Kennedy's cousin.

¶ 34 Smith testified that he did not know Johnson, he did not know how the .380-caliber shell casings came to be in the yard of the apartment building or how the two .380-caliber pistols came to be in the attic of the apartment, and he did know of any dispute between gangs. He claimed to be unaware any shots were fired from the apartment building.

¶ 35 6. Ballistics Analyses

¶ 36 Beth Patty was a forensic scientist with the Illinois State Police, and one of her specialties was firearms identification. By test-firing the pistols in this case and examining the distinctive marks left on the shell casings and the projectiles, she was able to make three determinations.

¶ 37 First, the four .45-caliber shell casings found in the street behind the apartment building, where the gray car had been parked, came from the .45-caliber Remington pistol found on the side of North 21st Street.

¶ 38 Second, the .380-caliber shell casings found in the yard of the apartment building came from the two .380-caliber pistols found in the attic of the apartment.

¶ 39 Third, the nine .380-caliber shell casings found at the scene where Johnson was shot came...