People v. Smollett

230 N.E.3d 780

2023 IL App (1st) 220322

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

v.Jussie SMOLLETT, Defendant-Appellant.

No. 1-22-0322

Appellate Court of Illinois, First District, Fifth Division.

Filed December 1, 2023

Rehearing denied January 2, 2024

Appeal from the Circuit Court of Cook County, No. 20 CR 3050, Honorable James B. Linn, Judge presiding.

Nnanenyem E. Uche, of Uche P.C., and Heather A. Widell, both of Chicago, for appellant.

Dan K. Webb, Special Prosecutor, of Winston & Strawn, of Chicago (Sean G. Wieber and Samuel Mendenhall, of counsel), for the People.

Mary B. Richardson-Lowry, Corporation Counsel, of Chicago (Myriam Zreczny Kasper, Suzanne M. Loose, Stephen G. Collins, and Jane M. Chapman, Assistant Corporation Counsel, of counsel), amicus curiae.

OPINION

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

¶ 1 A grand jury returned an indictment against defendant Jussie Smollett on 16 counts of felony disorderly conduct stemming from his false reporting to Chicago police officers that he had been the victim of a racist and homophobic attack near downtown Chicago. Thereafter, the Cook County State’s Attorney’s Office (CCSAO) nol-prossed the case against him. However, after the appointment of a special prosecutor, a special grand jury reindicted Smollett on six counts of felony disorderly conduct based on similar allegations. Following a jury trial, Smollett was found guilty of five counts of felony disorderly conduct and sentenced to 30 months’ probation, with the first 150 days of probation to be served in jail. Smollett was also ordered to pay a $25,000 fine and $120,106 in restitution to the City of Chicago. On appeal, Smollett challenges virtually every aspect of the second prosecution that resulted in his convictions and sentence. For the following reasons, we affirm Smollett’s convictions and sentence.

¶ 2 I. BACKGROUND

¶ 3 In February 2019, the CCSAO filed a criminal complaint against Smollett for felony disorderly conduct. Smollett turned himself in to the Chicago police the next day and posted a $10,000 bond. Thereafter, a grand jury returned a true bill of indictment against him for felony disorderly conduct, and the CCSAO filed a 16-count indictment against him. The indictment alleged that Smollett falsely reported to Chicago police that he had been physically attacked by two men shouting racist and homophobic slurs. Smollett pled not guilty.

¶ 4 On March 26, 2019, the State advanced Smollett’s scheduled status hearing and presented an oral motion to nol-pros the charges against him. In court, an assistant state’s attorney stated:

"After reviewing the facts and circumstances of the case, including Mr. Smollett’s volunteer service in the community and agreement to forfeit his bond to the City of Chicago, the State’s motion in regards to the indictment is to nolle pros [sic]. We believe this outcome is a just disposition and appropriate resolution to this case."

The trial court granted the motion and ordered the clerk of the circuit court of Cook County to release Smollett’s bond to the City of Chicago.

¶ 5 In April 2019, a retired appellate court justice filed a pro se petition to appoint a special prosecutor to "investigate and prosecute the People of the State of Illinois v. Jussie Smollett." The petition was docketed as a new case and subsequently assigned to be heard by Judge Michael P. Toomin. On June 21, 2019, over the objection of the CCSAO, Judge Toomin ordered that "a special prosecutor be appointed to conduct an independent investigation of the actions of any person or office involved in all aspects of the case entitled People of the State of Illinois v. Jussie Smollett, No. 19 CR 03104[-]01, and if reasonable grounds exist to prosecute Smollett, in the interest of justice the special prosecutor may take such action as may be appropriate to effectuate that result." Judge Toomin further found that "the unprecedented irregularities identified in this case warrant[ ] appointment of an independent counsel to restore the public’s confidence in the integrity of our criminal justice system."

¶ 6 The following month, Smollett filed several motions before Judge Toomin, including a motion for reconsideration of the appointment order and a motion to intervene instanter. In denying Smollett’s mo- tion to intervene, Judge Toomin clarified that "the order of June 21[, 2019] *** only enables a Special Prosecutor to conduct an independent investigation and re-prosecution is not ordered, but may occur only if additional considerations are met, i.e., reasonable grounds exist to re-prosecute Mr. Smollett, and it’s in the interest of justice." Judge Toomin also emphasized that the June 21, 2019, appointment order "was not an interim order." Smollett did not appeal the June 21, 2019, order.

¶ 7 On August 23, 2019, Judge Toomin appointed Dan K. Webb as "Special Prosecutor *** to conduct an independent investigation of the actions of any person or office involved in all aspects of the case entitled the People of the State of Illinois V. Jussie Smollett, No. 19 CR and if reasonable grounds exist to further prosecute Smollett, in the interest of justice the special prosecutor may take such action as may be appropriate to effectuate the result." Smollett did not appeal the August 23, 2019, order.

¶ 8 In February 2020, a special grand jury indicted Smollett on six counts of felony disorderly conduct for falsely reporting that he had been the victim of a racial and homophobic attack. Later that month, Smollett was arraigned and pled not guilty. On that same date, Smollett filed an emergency motion for a supervisory order in the Illinois Supreme Court asking the court to vacate the orders appointing Webb as special prosecutor. The following month, the Illinois Supreme Court denied Smollett’s emergency motion.

¶ 9 Smollett then filed several motions in the trial court seeking the dismissal of the second indictment on various grounds, including the alleged violation of double jeopardy principles, challenging the validity of the special prosecutor’s appointment, and asserting a violation of an "agreement" with the CCSAO to dismiss his original case, all of which were subsequently denied. Olabinjo "Ola" Osundairo and Abimbola "Boia" Osundairo, the two brothers alleged to have assisted Smollett in staging the attack, moved to intervene and disqualify Smollett’s lead defense attorney, Nenye Uche (attorney Uche), from representing Smollett because he had previously consulted with them regarding the facts of this case. Following an evidentiary hearing, the trial court ruled that attorney Uche could "appear as counsel for Smollett," but other members of the defense team would be required to cross-examine the Osundairo family members at trial. Smollett also moved to obtain notes from a meeting the Office of the Special Prosecutor (OSP) had with the Osundairo brothers, but the court denied that motion.

¶ 10 The evidence introduced at trial established that, in the early morning hours of January 29, 2019, Chicago police officer Muhammad Baig responded to Smollett’s high-rise condominium near downtown Chicago to investigate a report from Smollett’s "creative manager" that Smollett had been the victim of a crime. Smollett reported to Officer Baig that two unknown individuals yelling racial and homophobic slurs had physically attacked him. While receiving medical treatment at Northwestern Memorial Hospital, Smollett repeated the same allegations to Detectives Kimberly Murray and Robert Graves. The police later identified two suspects matching Smollett’s description of the alleged offenders from security video footage showing two suspects exiting an Uber, entering a taxicab, and arriving near the crime scene moments before the alleged attack occurred. Uber records confirmed that Ola had ordered the Uber observed in the video. After being arrested on February 13, 2019, the Osundairo brothers admitted staging an attack against Smollett at his request. When Detectives Murray and Graves reinterviewed Smollett the next day, he reiterated the same allegations previously reported to the police.

¶ 11 At trial, the Osundairo brothers both testified that they participated in a staged hate crime orchestrated by Smollett. Boia testified that Smollett staged the attack because he was unhappy that his television studio was not taking hate mail he had previously received seriously. Other evidence introduced at trial included messages between the Osundairo brothers and Smollett, cell phone GPS data, video evidence, receipts for the items used in the staged attack, and a $3500 check from Smollett made out to Boia.

¶ 12 Smollett testified in his own defense that he was attacked by two offenders on January 29, 2019. He denied that he had paid the Osundairo brothers to help him stage a fake hate crime. Other witnesses called by Smollett included his Conner manager, Brandon Moore, who had been on the phone with Smollett at the time the alleged attack occurred, and Dr. Robert Turelli, a Northwestern Memorial Hospital physician who treated Smollett for head injuries after the alleged attack.

¶ 13 The jury found Smollett guilty of five counts of felony disorderly conduct. After a sentencing hearing, the trial court sentenced him to 30 months’ probation, with the first 150 days of his sentence to be served in the Cook County jail. He was also ordered to pay a $25,000 fine and $120,106 in restitution to the City of Chicago.

¶ 14 II. ANALYSIS

¶ 15 A. Appointment of the Special Prosecutor

[1] ¶ 16 Smollett contends that (1) statutory authority was lacking for the appointment of a special prosecutor, (2) the appointment order was vague and overbroad, (3) the appointment was not statutorily allowed, and (4) the circuit court erred in denying defense counsel’s motion for a substitution of judge. The OSP responds that this court lacks jurisdiction over these issues because they did not arise in the case currently on...