Appeal from the Circuit Court of Kendall County. No. 10-CF-141, No. 10-CM-409 Honorable) John A. Barsanti, Judge, Presiding.
Justices Jorgensen and Hudson concurred in the judgment and opinion.
BURKE PRESIDING JUSTICE
¶ 1 At a jury trial, the State introduced evidence that, on April 29, 2010, defendant, Daryl L. Johnson, choked, grabbed, and shoved his girlfriend, Cheryl Hausler, and that the police recovered a handgun and ammunition from defendant's room in Hausler's home the next day. The jury found defendant guilty of two counts of unlawful possession of a weapon by a felon (see 720 ILCS 5/24-1.1(a) (West 2010)) and one count of misdemeanor domestic battery (see 720 ILCS 5/12-3.2(a)(2) (West 2010)). The trial court imposed concurrent terms of six years in prison on the weapons convictions and 365 days in jail on the domestic battery conviction.
¶ 2 Defendant appeals, alleging the following trial errors: (1) defense counsel rendered ineffective assistance when she agreed to join the weapons charges with the domestic battery charge; (2) the trial court erroneously admitted evidence of defendant's threats to Hausler; (3) the use of a defective jury instruction regarding other-crimes evidence is plain error; and (4) the cumulative effect of these errors deprived defendant of a fair trial. We conclude that defense counsel was ineffective in agreeing to join the charges and that the jury was incorrectly instructed in several respects. We hold that defense counsel's ineffectiveness in agreeing to the joinder of charges and the trial court's use of an incorrect jury instruction were reversible errors that deprived defendant of a fair trial. The joinder error and the instruction error were intertwined, which amplified the prejudice to defendant. We vacate the convictions and remand the cause for new, separate trials.
¶ 3 I. FACTS
¶ 4 Defendant was charged by indictment in case number 10-CF-141 with two counts of unlawful possession of a weapon by a felon. "It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction." 720 ILCS 5/24-1.1(a) (West 2010). The first count alleged that defendant knowingly possessed a firearm, and the second count alleged that defendant knowingly possessed firearm ammunition.
¶ 5 In case number 10-CM-409, defendant was charged by complaint with misdemeanor domestic battery against Hausler. A person commits domestic battery if he or she knowingly without legal justification by any means makes physical contact of an insulting or provoking nature with any family or household member. 720 ILCS 5/12-3.2(a)(2) (West 2010). The charge alleged that defendant repeatedly choked Hausler and pushed her in the collarbone area, causing her to strike her back on a television entertainment center. The parties agreed to join the three charges for purposes of a jury trial.
¶ 6 A. Pretrial Motions
¶ 7 Before trial, the State moved to introduce evidence of other domestic violence incidents to show defendant's propensity to commit the charged domestic battery. The common-law rule is that other-crimes evidence is not admissible to show a defendant's propensity to commit crimes. People v. Dabbs, 239 Ill.2d 277, 283 (2010); see Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). However, by statute, the legislature has made exceptions to that rule in a few specific areas, such as domestic batteries (725 ILCS 5/115-7.4, 115-20 (West 2010)). Dabbs, 239 Ill.2d at 291; see Ill. R. Evid. 404(b) (recognizing statutory exceptions to the general rule of inadmissability). In those instances, evidence of a defendant's commission of a prior qualifying offense may be admitted, in the trial court's discretion, to show the defendant's propensity to commit the charged offense if, after weighing certain statutory factors, the trial court determines that the probative value of the evidence is not substantially outweighed by the risk of undue prejudice. See 725 ILCS 5/115-7.4 (West 2010); Dabbs, 239 Ill.2d at 291; see also Ill. R. Evid. 403 (eff. Jan.1, 2011).
¶ 8 Section 115-7.4 provides that, in weighing the probative value of the evidence against the prejudice to the defendant, the trial court may consider (1) the proximity in time to the charged or predicate offense; (2) the degree of factual similarity to the charged or predicate offense; and (3) other relevant facts and circumstances. 725 ILCS 5/115-7.4(b) (West 2010).
¶ 9 The State submitted written statements signed by Hausler, which she gave after defendant's arrest. Defense counsel objected to the evidence as prejudicial and irrelevant. The trial court found certain statements to be admissible under section 115-7.4. Specifically, Hausler described two days on which defendant allegedly committed domestic violence against her before he committed the charged offense in April 2010.
¶ 10 The court ruled that Hausler could testify that, in December 2009, defendant pushed her and shook her very hard. Hausler also could testify that, in March 2010, defendant grabbed a phone from her hand, shook her by the shoulders, flipped over a recliner in which she was sitting, held her down, and threw a coffee table, which struck her legs, bruising one.
¶ 11 The court also found that, though not admissible under section 115-7.4, certain threats that defendant allegedly made during the December 2009 and March 2010 incidents were admissible for purposes other than to show propensity. Specifically, Hausler could testify that defendant threatened to kill her and "have a shootout" with the police if she reported his conduct to the police. The court commented that "the fact-finder would want to know why [Hausler] didn't report it" to the police.
¶ 12 Before trial, the parties stipulated to defendant's prior felony conviction for purposes of the charges of unlawful possession of a weapon by a felon. The State agreed that, if defendant testified, his prior felony conviction was inadmissible for impeachment purposes, because it was more than 10 years old. See People v. Montgomery, 47 Ill.2d 510, 516 (1971) (a witness's prior conviction is admissible for impeachment purposes only where (1) the crime was punishable by death or imprisonment of more than one year, or the crime involved dishonesty or a false statement; (2) the conviction is less than 10 years old; and (3) the trial judge determines that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice).
¶ 13 B. The Trial
¶ 14 Hausler testified that she and defendant began cohabiting in her home in November 2009. Defendant had his own room where he kept his personal belongings, and he did not allow anyone else to enter his room. At 7:40 a.m. on April 29, 2010, Hausler awoke and took her dogs to the backyard. As she called the dogs back to the house, she walked backward, turned around, and saw defendant standing right in front of her. Hausler testified that she is 5 feet 3 inches tall, while defendant is at least 6 feet 1 inch tall. Defendant stood 9 to 10 inches away, glaring down at Hausler and holding a travel mug with coffee. Defendant said, "Do you realize I've been drinking this coffee for two days?" Defendant sounded angry. Hausler replied that defendant should "make more coffee if [he] want[ed] more coffee." Defendant responded, "Do you realize yesterday was my birthday?" Hausler told him that she did not.
¶ 15 Defendant's voice became louder, and he moved closer to Hausler. Defendant said, "Do you realize today is my mother's birthday? And she was murdered on my 13th birthday." Defendant put down his mug, grabbed Hausler by the throat, and squeezed until she could not breathe. Defendant pushed Hausler into the living room and into the television, which almost fell off the stand. Defendant grabbed her by the shoulders and shook her hard, telling her, "the only way to make you listen is to shake you."
¶ 16 Defendant stopped shaking Hausler and walked toward the door. Hausler waited a couple minutes and thought about what she should do next. She was scared, nervous, and upset. After defendant calmed down, Hausler told him that she needed to take the puppy outside.
¶ 17 Defendant went to the bathroom, and Hausler walked across the street to the house of Michael Isabell. Isabell called 911, and Hausler told the operator what had happened. The police arrived a short time later.
¶ 18 The next day, Hausler called the police and asked them to retrieve a gun from her home. Hausler testified that she had found the gun in December 2009, while defendant was on the road for his job as a cross-country truck driver. Hausler found the gun in a black nylon bag in defendant's bedroom. During a telephone conversation later that month, Hausler told defendant that she found the gun and did not want it in the house. Defendant replied that he needed the gun to protect her and the house. Defendant was upset that Hausler had entered his room.
¶ 19 Hausler testified that, on another occasion in December 2009, defendant pushed her into the kitchen counter and the sink. Hausler sat on the sofa, and defendant started shaking her. Hausler struck her head on the back of the sofa. She did not call the police, because defendant threatened to kill her if she did so.
¶ 20 Hausler testified to another incident in March 2010, which was a few weeks before the charged offenses occurred. Hausler was in the kitchen when defendant grabbed her cell phone and started shaking her. Defendant followed Hausler around so she could not leave the house. Hausler sat in a recliner in the living room, and defendant lifted the chair and flipped Hausler over. Later the same day, defendant again took Hausler's phone and also threw her laptop computer. Defendant then picked up the coffee table and threw it at Hausler, hitting both of her legs. Hausler suffered a large bruise on her right thigh. Defendant told Hausler that, if she called the police, there would be a shootout and he would kill himself, her, and the police.
¶ 21 On cross-examination, Hausler testified that she never gave defendant a key to her home. As a truck driver, defendant would be gone for several days at a time. Overall, defendant would stay at her house about half the time. Hausler always was home when defendant returned, and she allowed him back into the home. Hausler's son, Tyler, had access to the entire house. Also, a person named John Gamble was renting a room. Gamble lived mostly in the basement, but he had access to the entire house. The police discovered the gun in what used to be Tyler's room. Defendant had taken over the room, after which Tyler never entered it.
¶ 22 When Hausler discovered the gun in December 2009, she told Tyler, who told her to call the police. Hausler acknowledged that she did not contact the police after the December 2009 gun discovery or the March 2010 domestic violence incident.
¶ 23 On redirect examination, Hausler testified that, when Gamble moved out, he took all of his belongings. When Tyler moved out of the room that defendant took over, he removed all of his things from the room. Hausler testified that she waited to call the police because defendant had threatened her and she was afraid.
¶ 24 Isabell testified that, on the morning of April 29, 2010, Hausler walked barefoot to his house. Hausler was crying and shaking. Isabell saw that her neck had red marks, which looked like they were caused by "squeezing." ...