People v. Tondini

2019 IL App (3d) 170370

145 N.E.3d 402

437 Ill.Dec. 829

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

v.Roger D. TONDINI II, Defendant-Appellant.

Appeal No. 3-17-0370

Appellate Court of Illinois, Third District.

Rule 23 Filed September 23, 2019

Motion to Publish Granted October 9, 2019

Opinion filed October 9, 2019

Neil G. Patel, of Chuck Bretz & Associates, P.C., of Joliet, for appellant.

Rachel B. Mast, State's Attorney, of Carthage (Patrick Delfino, David J. Robinson, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 The State charged defendant, Roger D. Tondini II, with three counts of aggravated battery. 720 ILCS 5/12-3.05(a)(1), (c)(1), (f)(1) (West 2014). Before trial, defendant filed a motion to qualify an expert witness, which the trial court denied. The case proceeded to voir dire . Defendant's attorney made a challenge for cause to remove juror James Little, asserting his wife Sandy Little was an employee of the Hancock County State's Attorney's office prosecuting defendant's case; therefore, James was presumed biased. The trial court denied the challenge. Defendant's attorney subsequently used his last preemptory challenge to remove juror Harry Douglas. At trial, the jury found defendant guilty of aggravated battery. Defendant filed a motion for judgment notwithstanding the verdict (judgment n.o.v. ) and motion for a new trial, arguing that the trial court abused its discretion in denying his challenge for cause and motion to qualify an expert witness. The court denied the motion. Defendant appeals. We affirm.

¶ 2 I. FACTS

¶ 3 The State charged defendant with three counts of aggravated battery following a fight during which he stabbed Amanda Delgado. He asserted the affirmative defense of self-defense and sought by motion to qualify Marc MacYoung as an expert trial witness "to deal with issues concerning use of force." Defendant attached to the motion a copy of MacYoung's resume detailing his training and experience. MacYoung's resume purported that he had worked on multiple court cases as a knife and violence reconstruction expert. In particular, MacYoung listed "Illinois v. R.D. Tondini 2014 (Knife, violence reconstruction)". In addition, he claimed to have authored several books and articles on the subjects of self-defense, martial arts, and violence, performed in multiple instructional videos on street knife fighting and self-defense, made various radio and television appearances, and taught multiple seminars on martial arts and "violence dynamics."

¶ 4 At the hearing on the motion, MacYoung testified that he teaches "violence dynamics" in which people learn the parameters of self-defense such as how to recognize threats, recognize patterns, use appropriate force, and deal with the aftermath. He also teaches police officers the professional use of force and how to control subjects without causing injuries. He instructs the military how to neutralize opponents. When he assesses court cases, "what I do is I'll review the case, I take all the evidence that is presented to me, and I try to assess what is most likely to have occurred. * * * And I compare those with established patterns of violence that I look at and go, okay, was this self-defense or not? And if—if it is not self-defense, I will generally turn the case down."

¶ 5 He stated that violence dynamics is not accredited by any university. Despite claiming he instructed both civilians and professionals in the use of force, he averred that teaching people how to handle violence cannot be taught in academia because it is difficult to simulate placing someone in danger. He worked in security and at a correctional facility. He admitted that violence dynamics is not a scientific field and he received his expertise in the matter through personal experience, i.e. , witnessing violent altercations as a young child, personal experience, and reading multiple sources on related topics. He stated that "most people are really either misinformed or just flat-out ignorant about how violence happens, especially professional criminal violence." He admitted that he could not "speak to the mindset of any individual involved in this situation" or know what any person believed or felt at the time of the incident.

¶ 6 He did not have a college degree but had attended two community colleges. MacYoung had never been a police officer and had never received training at a police academy. He has no education in sociology, psychology, or biomechanics, and did not know whether his expertise was generally accepted in those areas. He also confirmed that he was not a medical doctor or an expert in deception. MacYoung and two other individuals created violence dynamics as a field of study. He denied being an "expert" but explained that he and his cohorts were "knowledgeable" on the topic and were continuing to do research in the area.

¶ 7 The trial court denied the motion, determining that:

"[I]n the instant case Mr. MacYoung can point to no source by which he obtained information regarding violence dynamics. His highest level of completed education is a high school diploma. He had no post high school studies in the area of violence dynamics and appears to have, from his testimony, developed the theory. At one point he indicated that he had developed it by a solo study in the 1970's [sic ]. He then later indicated that the theory of violence dynamics was created in conjunction with two colleagues.

* * * In creating the theory to which he proposed to testify, he considered no scientific reports or studies. The theory's [sic ] never been subject to peer review or accepted in a scientific community.

* * * And the motion to qualify Mr. MacYoung as an expert in the case is denied."

¶ 8 Defendant filed a motion to reconsider, claiming that MacYoung's opinion was not a scientific methodology or principle and, therefore, the trial court improperly relied on its conclusions that MacYoung's expertise had not been subject to peer review or accepted in a scientific community. At the hearing on the motion to reconsider, the following exchange occurred:

"THE COURT: I noticed you mentioned Frye. And Frye applies only to a scientific principle, process or technique, or test applying the principle. And didn't Mr. MacYoung indicate several times while he was testifying that his testimony was not scientific?

MR. WOODWORTH [ (DEFENDANT'S ATTORNEY) ]: Correct. Yes, he did.

THE COURT: So Frye doesn't really apply.

MR. WOODWORTH: That's our position. The Frye standard does not apply, that's correct.

THE COURT: And I didn't—I don't remember citing Frye because there was no indication that there was any scientific evidence that was going to be offered."

¶ 9 Ultimately, the trial court denied the motion to reconsider. Specifically, it held:

"There's nothing in the—either Mr. MacYoung's opinion or the Motion to Reconsider that indicates how his testimony would help the trier of fact.

He was asked several times if he was going to offer an opinion as a self-defense expert, and he indicated every time that he was not offering an opinion as a self-defense expert. * * * And he had taught a—or run a business for years as a self-defense instructor, but he indicated several times that he would not be offering an opinion on self-defense; that he would be offering an opinion on—at one point he called it violence dynamics and at the other time he referred to it, I think, as violence reconstruction.

And in his CV he's listed Mr. Tondini's case as part of his prior experience and indicates that he * * * offered an opinion on knife and violence reconstruction. So I take it at his word that his opinion was going to be on knife and/or violence reconstruction and that those are theories that he developed. * * * [T]he theory of violence dynamics, which he offered to testify about, is not recognized anywhere. He was qualified as an expert in knife wounds, I believe it was, in the state of California sometime previously. * * * He indicated on several occasions that he would not be offering opinion on either the martial arts or self-defense.

And it's indicated that he had extensive training and firsthand experience in gang-related violence. And as I recall, his testimony was that he grew up in a rough part of Los Angeles; that his last actual fight was when he was 19 years of age. * * *

There's no indication that he is an expert in gang-related violence, and he didn't indicate that he would be testifying to that effect either. So based on those recollections and analysis, the Motion to Reconsider is denied."

¶ 10 Thereafter, the case proceeded to voir dire . Juror James Little stated that he knew Hancock County State's Attorney Jason Pohren, the prosecutor in defendant's case. When asked how he knew Pohren, James responded that his wife worked for the State's Attorney's office. The court inquired if James's wife was Sandy Little; James responded yes. The court asked James the following questions to which he responded "no": (1) whether Sandy's employment would prevent him from being fair and impartial at trial; (2) whether Sandy had discussed the case with him; and (3) whether either party would receive an advantage from his presence on the jury. The court also queried whether James could listen to the evidence presented and decide the case based on the law that was given; he responded "yes." Defense counsel asked James if he would feel uncomfortable explaining his reasoning if he found defendant not guilty; he responded "no." James stated that he goes into the State's Attorney's office twice a month. He also stated that he had not heard any description of the events in the case.

¶ 11 Thereafter, the court informed the parties on their remaining peremptory challenges—the State had two and defendant had one—and asked if they wished to exercise any challenges:

"MR. WOODWORTH [ (DEFENDANT'S ATTORNEY) ]:

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