Appeal from the Circuit Court of Cook County. No. 01 CR 10553 Honorable Joseph G. Kazmierski, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
Following a jury trial in the circuit court of Cook County, defendant Shakina Feazell (Feazell) was convicted of first-degree murder, armed robbery, and armed vehicular hijacking and sentenced to 35 years' imprisonment with two concurrent 10-year terms. This appeal follows. Feazell now argues that: (1) the State engaged in prosecutorial misconduct by making prejudicial references to the victim's children and calling her a liar, manipulator, junkie and con; (2) the trial court erred by admitting the testimonial statements of co-defendant Dion Banks, in violation of the sixth amendment confrontation clause; (3) defense counsel was ineffective for failing to request a sidebar or motion the court for a new trial after the State introduced alleged hearsay evidence; (4) she cannot be convicted of both armed robbery and aggravated vehicular hijacking because both crimes arise from one single act; and (5) defense counsel was ineffective for failing to request specific jury forms for the various instructions of murder.
The State offered the testimony of 11 witnesses to establish that the defendant knowingly participated in the armed vehicular hijacking, armed robbery and murder of Rose Newburn. For the purpose of simplicity, most of the testimony will be related in the context of the defendant's account of the events.
Shakina Feazell was 25 years old and Dion Banks was 40 years old when they met at a drug rehabilitation clinic where both were undergoing treatment. The pair began dating while undergoing treatment for their respective drug addictions. Shortly after leaving the drug rehabilitation program, both Feazell and Banks relapsed and began using illegal drugs again. Feazell testified that a few months after the relationship began, Banks began to physically abuse her. The abuse occurred especially when Banks lacked sufficient funds to purchase cocaine.
On March 23, 2001, Feazell and Banks spent the night at a friend's house. Both got high on drugs and slept overnight in a spare bedroom of the house. Feazell testified that when she awoke, Banks was gone and she was locked inside the bedroom. Feazell said that Banks locked the door from the outside and left her without a phone, food, water, or bathroom access. Banks opened the door when he returned to the house. Feazell testified that Banks informed her that they were going to Ford City Mall to get a present for Banks' niece. However, Feazell testified that she believed the two were going to shoplift items from the mall. The two traveled to the mall in a stolen Toyota Corolla; however, Feazell testified that she did not know the vehicle was stolen and that Banks previously claimed the car was owned by his uncle.
Banks drove to Ford City Mall and parked in a space next to a green Dodge Intrepid. The Dodge Intrepid was occupied by Rose Newburn and her two children, five-year-old Tyrone Newburn and four-year-old Quincy Newburn. Rose Newburn was in the driver's seat while Tyrone and Quincy were sitting in the backseat. Feazell testified that after Banks parked the car, he said that the car he wanted was right there (indicating the green Intrepid occupied by the Newburn family). Banks quickly exited the Toyota Corolla and told Feazell to move over from the passenger's seat into the driver's seat of the Toyota. Feazell complied with the request. Banks then pulled out a gun, approached the Intrepid, and shouted "get the fuck out [of] the car." Feazell testified that she did not know Banks possessed a gun. As Rose Newburn was reaching into the back of the vehicle, Banks shot through the window. Tyrone Newburn, who was five years old at the time of the incident, testified that Banks reached inside the vehicle, threw his mother to the ground and shot her. Rose Newburn ultimately bled to death because a bullet punctured an artery in her thigh.
Banks then entered the Intrepid and drove away, instructing Feazell to follow him in the Toyota. Both Tyrone and Quincy Newburn were still in the backseat of the vehicle when Banks drove away from the scene. Before exiting the mall, Banks let Quincy and Tyrone Newburn out of the car. The boys ran back to where their mother lay in the parking lot. Banks and Feazell drove out of the mall in the stolen vehicles. Feazell testified that she was afraid of Banks and had no choice but to follow him in the Toyota as he told her to do. Feazell followed Banks east on 79th Street in the Toyota Corolla. Feazell stated that Banks was driving at a high rate of speed and swerved in and out of traffic. Feazell testified that she then decided to cause a car accident in the hope of attracting the police.
Feazell rear-ended a white car. Joseph Harrison and his pregnant wife Retrina Smith were the occupants of the white car. Harrison testified that Banks had passed his vehicle before Feazell hit his car. After Feazell bumped into the rear of his vehicle, Harrison walked to the rear of his vehicle to inspect the damage. Harrison testified that he attempted to converse with Feazell about the damage to his vehicle but Feazell refused to open her window or respond to his questions. Banks apparently observed the accident and drove in reverse to the scene of the crash. Harrison testified that as he tried to speak with Feazell, Banks jumped out of the Intrepid and asked, "[W]hat the fuck was going on?" Harrison waved Banks off while trying to speak with Feazell, who was in the Corolla. Banks instructed Feazell to drive away and returned to his vehicle. Feazell followed Banks' directions and drove away from the scene of the crash. Harrison then returned to his vehicle and followed Feazell. Banks, Feazell, and Harrison all began to travel east on 79th Street. Harrison overtook Banks and Feazell at the intersection of 79th Street and Western Avenue. Harrison drove alongside Feazell's vehicle and began to shout at her. Banks' vehicle was on the other side of Feazell's car. Feazell ignored Harrison and began to tell Banks what Harrison just shouted at her. Harrison testified that Banks shouted "F him and pull off when the light turns green." When the light turned green, Feazell drove away and Harrison continued to follow her vehicle. Harrison testified that Banks then drove alongside his car and shot at him twice. Harrison then stopped following Feazell and drove away in the opposite direction.
According to Feazell, after Banks shot at Harrison, Banks caught up with her and asked what she was trying to do. Feazell told him that she was very nervous and Banks told her to keep up with him in traffic. Feazell testified that she continued to follow Banks as he turned into the parking lot of a liquor store. Banks exited the Intrepid, took the keys from the Toyota driven by Feazell, and entered the liquor store, leaving Feazell in the Toyota. When Banks left the liquor store, he returned the Toyota's keys to Feazell and instructed her to continue following him. Feazell followed Banks into a gas station. Banks then handed Feazell Rose Newburn's purse and wallet, telling her to use Newburn's credit card to pay for gas. Feazell attempted to use the credit card but the transaction was declined. Feazell claims that Banks asked her if she knew of a place where he could "get rid of the [Intrepid]." Feazell told Banks that she knew of a chop shop on the west side of Chicago. Feazell testified that she did not know the location of a chop shop, but lied to Banks so she could return to that area. Feazell said she felt safer on the west side because her mother, sister, and most of her family lived in that area.
Feazell testified that Banks followed her on the expressway until he signaled her to exit. Feazell then exited the expressway at Homan Avenue. She stopped the vehicle at a vacant lot at Jackson and Lotus Avenues. Banks approached the car and instructed her to open the door. Feazell said she refused to open the door and Banks became irate. According to Feazell, she told him she was afraid to open the door because he might hit her. Feazell said she was nervous and scared and began to apologize profusely to Banks. Banks replied: "[i]f I wanted to kill you or anything, I could just shoot you through the window." Feazell then opened the car door and Banks hit her legs several times. The two then drove to her mother's house. When they arrived, no one was at home. They then went to the residence of Feazell's sister, Yolanda. Yolanda testified at trial that Feazell was smiling but appeared nervous when they first greeted each other. Yolanda stated on cross-examination that she speculated whether Feazell was "high." Feazell testified that she could not tell her sister that she was in danger because Banks was standing right next to them. Feazell testified that Banks began to brag to Yolanda about the Intrepid, but failed to mention that the car was stolen. Banks also offered Yolanda a ride in the Intrepid, but she declined. Banks and Feazell then left Yolanda's home in separate vehicles as they had arrived.
Feazell testified that they drove to a White Castle restaurant parking lot where Banks attempted to sell Rose Newburn's cellular phone and camera. After Banks could not sell the phone, he demanded that Feazell take him to a chop shop. Feazell told Banks that a chop shop was located on Lake Street. As Banks followed Feazell through the streets, she crashed into two cars parked on the street in front of the Garfield Park fieldhouse. Feazell again alleged that she intentionally caused the car accidents to attract the police. The last car that Feazell hit flipped over and Feazell's air bag deployed. Feazell's car stopped and she crawled out of the car and lay on the pavement. Feazell testified that she was not really hurt but had a cut on her lip and a bump on her head. Steve Kelly (Kelly) was outside the Garfield Park fieldhouse when he heard the car crash. He observed children running toward the accident site and ran to the cars to offer assistance. Kelly approached Feazell and called for emergency assistance. Banks soon arrived and asked Feazell if she was okay. Kelly testified that he told Banks that an ambulance was on the way, but Banks ordered Feazell to get up and said that he was going to take her to the hospital. Kelly stated that Feazell was saying "no, no, no" as Banks picked her up. Banks then asked Kelly for directions to the nearest hospital, and both Banks and Feazell left the scene in the Intrepid.
Feazell testified that as Banks drove her away from the accident, she began to apologize for the crash. Banks began to hit her on the side of her face and then he put the gun to her head. She grabbed the gun but Banks threatened to shoot her if she did not let it go. He then stopped the car and began to beat her. Feazell testified that after Banks beat her, he told her they were going to the Dan Ryan Woods at 87th and the Dan Ryan Expressway. At that point, the police began pursuing the Intrepid and the car slammed into a pillar. Banks fled on foot and Feazell was arrested in the car. Banks was later apprehended and arrested.
Banks was tried separately before a jury, found guilty of first degree murder and given the death penalty. He did not testify at Feazell's trial.
During Feazell's trial, the State called multiple witnesses to the stand, including Detective
Edward Winstead, who testified to the following during direct examination:
"Q: What is said to Shakina Feazell at that time [during interrogation]?
A: I told Shakina Feazell that she wasn't telling the whole truth, that I talked to [Banks] and that they had gone to Ford City specifically to get a new car, that the car that they were driving had been stolen, and they had it too long, it was time to switch cars. She maintained that she didn't know the car she was in was stolen. I said he said she was there when -
MR. RODGERS[:] Are these things that you are telling to ...