Defendant’s conviction for first degree murder arising from an attempt to rob a convenience store was upheld over his contentions, inter alia, that the trial court improperly ruled that his juvenile adjudication for residential burglary could be used for impeachment and that a photograph of the victim’s body was improperly disclosed to the jury, since the trial court’s erroneous ruling that the adjudication could be used for impeachment was harmless because the adjudication was not used by the State for impeachment, but, rather, defendant introduced the adjudication to support his defense and the probative value of the photograph outweighed any prejudice.
Appeal from the Circuit Court of Peoria County, No. 09-CF-618; the Hon. James E. Shadid, Judge, presiding.
Melissa Maye (argued), of State Appellate Defender's Office, of Ottawa, for appellant.
Jerry Brady, State's Attorney, of Peoria (Terry A. Mertel and Mark A. Austill (argued), both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Justice Schmidt concurred in the judgment and opinion.
¶ 1 Following a jury trial, the defendant, DeAngelo Lindsey, was convicted of first degree murder and sentenced to 52 years' imprisonment. The defendant asks us to reverse his conviction and remand for a new trial, arguing that the trial court erred by: (1) ruling that the defendant's juvenile adjudication for residential burglary could be used to impeach him at trial; and (2) allowing a crime scene photograph of the victim's body to be published to the jury.
¶ 2 In the alternative, the defendant asks us to remand for resentencing. He argues that his sentence was excessive and improper because the trial court failed to take into account the defendant's youth, his background, his relative lack of culpability, and his potential for rehabilitation. In addition, the defendant maintains that we should vacate the $200 DNA analysis fee imposed by the trial court because the defendant had previously given a DNA sample and paid the DNA analysis fee after his prior juvenile adjudication.
¶ 3 FACTS
¶ 4 On May 27, 2009, Anil Dhingra was shot to death at the Gas USA station at the corner of Prospect Road and McClure Avenue in Peoria. The defendant was charged with first degree murder in violation of section 9-1(a)(3) of the Criminal Code of 1961 (the Code) (720 ILCS 5/9-1(a)(3) (West 2008)). The indictment charged that the defendant, along with codefendant Ali Evans, shot Anil Dhingra without legal justification while attempting to commit the forcible felony of attempted armed robbery, thereby causing Dhingra's death. The codefendants' trials were severed.
¶ 5 The defendant filed a motion to suppress the statements he made to police on May 31 and June 1, 2009, which the trial court denied. During the hearing on the defendant's motion to suppress, Detective Keith McDaniel of the Peoria police department testified that an eyewitness had identified Evans as one of two black men fleeing the Gas USA station (where the murder occurred) at the time of the offense. McDaniel also testified that, after Evans was arrested, he identified the defendant as the other participant in the crime. Evans initially claimed that the defendant had shot Dhingra. However, during a subsequent interview, Evans maintained that he (Evans) was the shooter.
¶ 6 During the defendant's trial, the State called Julie Fitzsimmons, who lived at the corner of Prospect and McClure in Peoria. Fitzsimmons testified that, at approximately 7:30 p.m. on the evening of May 27, 2009, she spoke with Dhingra at the Gas USA station. She went home and was about to attend a meeting across the street when she heard police sirens and saw police cars blocking the street and parking in the Gas USA parking lot.
¶ 7 The State also called two witnesses who discovered Dhingra's body before the police arrived. Robert Mister testified that he and his friend, Deontray Rutherford, went to the Gas USA station that night to buy gas and get some snacks. When they walked into the store, they found the clerk lying behind the counter, either dead or unconscious. They went outside and called 9-1-1. After approximately five minutes, the police arrived.
¶ 8 John Clancy testified that he lived across the street from the Gas USA station and that he had known Dhingra for about nine years. He stated that Dhingra had just purchased the gas station a few weeks before he was killed. On the night of the murder, Clancy had gone next door for a cup of coffee when he heard someone say that something was wrong with the man at the gas station. Fearing that Dhingra was ill or had a heart attack, Clancy ran to the gas station. Clancy stated that, when he went inside the store, he saw Dhingra lying on the floor covered in blood and showing no signs of life. One of the two black men waiting outside the store had already dialed 9-1-1. Clancy stayed on the phone with dispatch until the police arrived.
¶ 9 Peoria police officer Derek Harwood was the first police officer to arrive on the scene. Harwood testified that, when he arrived at the Gas USA station on the night of the shooting, four males were waiting outside. They told Harwood that the victim was inside the store. Harwood went inside and found Dhingra lying on the floor behind the counter. A photograph showing Dhingra lying where he was shot and covered in blood was published to the jury. Harwood testified that Dhingra had blood coming from his head and mouth, and it appeared that he had been shot. Another officer checked for a pulse and confirmed that Dhingra was dead. An ambulance arrived, and an emergency medical technician declared Dhingra dead on the scene.
¶ 10 Following Harwood's testimony, defense counsel objected to the publication of the crime scene photograph to the jury. He argued that the photograph was more prejudicial than probative because it showed Dhingra bent at an awkward angle and showed Dhingra and the surrounding area covered in blood. In response, the State argued that the photograph was admissible because it was not a closeup and it illustrated Mister's and Harwood's testimony regarding what alarmed them and what prompted Mister to call 9-1-1. The court ruled that the photograph was admissible.
¶ 11 The State then called Sheanniya Sherman. Sherman testified that, on the evening of May 27, 2009, she was driving with her father and brother when she pulled into the parking lot of the Gas USA station in order to turn around. She saw two young black males exiting the store rapidly. Both of the men began running away. The first male was wearing a black hoodie with the hood pulled up and something like a bandana tied around his face. He had a gun in his hand. Sherman could not identify this man because his face was covered. Sherman recognized the second man as Ali Evans. She knew Evans because a friend of hers had been involved in a prior altercation with him. Evans had a bag in his hand and was laughing. Sherman stated that she was certain that Evans was the person she saw leaving the store. She later picked Evans out of a mug shot book and identified him in an in-person lineup. She testified that she was "positive" that the other man she saw leaving the gas station had a gun in his hand, not a cell phone. Sherman's father, Larry Bush, gave substantially similar testimony.
¶ 12 Dr. John Scott Denton, a forensic pathologist working for the Peoria County coroner, performed an autopsy on Dhingra. Denton testified that Dhingra had sustained five gunshot wounds: two to the head, two to the chest, and one grazing wound to the back of his left index finger. Four bullets were removed from Dhingra's body. Denton determined that the cause of death was multiple gunshot wounds.
¶ 13 On May 31, 2009, Detective Mike Hermacinski went to the defendant's sister's apartment pursuant to a search warrant. The defendant's sister signed a consent to search the residence. In one of the bedrooms, Hermacinski found a knife and a .22-caliber revolver under a bed mattress. Timothy Wong of the Peoria police department crime scene unit processed the knife and gun for fingerprints. Although Wong recovered no fingerprints on the knife, he recovered a latent thumb print on the right side of the gun. Wong determined that the thumb print on the gun came from the defendant. The gun was admitted into evidence.
¶ 14 Linda Yborra of the Morton forensic science lab for the Illinois State Police fired the revolver recovered from the defendant's sister's apartment and determined that three of the four bullets recovered from Dhingra's body matched the rifling pattern associated with that gun. Although the fourth bullet had the same class characteristics, there were insufficient specific indicia to prove conclusively that it had come from the same gun.
¶ 15 Keith McDaniel, the Peoria homicide detective who investigated the case, testified that Sherman had identified Evans as one of two males seen fleeing the Gas USA station, that McDaniel spoke with Evans and continued investigating the crime, and that the defendant's name surfaced in connection with the crime.
¶ 16 The defendant turned himself in to the police on May 31, 2009. Later that day, he was interviewed by McDaniel and Detective Walden. The interview was videotaped. A redacted version of the videotape of that interview was played to the jury. In the video played for the jury, the defendant was Mirandized and waived his Miranda rights. He admitted that he knew Evans. He stated that, on the day of the murder, he and Evans had gone to the defendant's sister's house and played video games. Later, they went to the Gas USA station. The defendant only had a dollar and some change. While he was trying to decide what to purchase, Evans pulled out a gun and pointed it at Dhingra, yelling "give me the shit, " meaning the money. Dhingra began reaching under the counter but, before Dhingra could give Evans anything, Evans shot Dhingra multiple times. Afterwards, the defendant and Evans left the store, jumped a fence, and ran back to the defendant's sister's house. When the defendant asked Evans why he had shot Dhingra, Evans replied that he was "trigger happy." While at the defendant's sister's house, Evans and the defendant heard the police arrive at the Gas USA station. Evans wanted to leave but the defendant discouraged him from doing so, saying it was "too hot." Accordingly, Evans stayed at the defendant's sister's house for 2½ hours. Thereafter, the defendant and Evans left the house and went their separate ways. The defendant stated that he went to his father's house and that he had not seen Evans since the night of the murder. He thought that Evans had the gun with him when he left.
¶ 17 In the videotape played for the jury, the police officers told the defendant that both Evans and an independent eyewitness had placed the defendant at the scene of the murder, and that the independent witness stated that the defendant was holding a handgun in his hand as he fled the store with Evans. They also told the defendant that a handgun and a knife had been recovered from under a mattress at the defendant's sister's apartment. The defendant denied putting the gun or the knife under the mattress.
¶ 18 On June 1, 2009, McDaniel and Walden questioned the defendant for a second time. This interview was also videotaped, and a portion of the videotape was played for the jury. The videotape showed that the defendant was given something to eat, and McDaniel began the interview by telling the defendant that he owed him an apology. McDaniel read the defendant his Miranda rights, and the defendant again waived them. The defendant stated that he just wanted some money and that he and Evans were planning to rob Evans's uncle of drugs and money. Although the defendant initially denied that he and Evans planned to rob the Gas USA station, he later admitted that, although the defendant thought they were there just to see how busy it was, they ultimately intended to rob the gas station. The defendant admitted that, before the robbery, he looked at Evans's revolver because he was curious but gave the gun back to Evans. He stated that the knife found under his sister's mattress was his father's fishing knife and claimed it was not used in the robbery.
¶ 19 McDaniel testified that he was less confrontational with the defendant during the second day of questioning. He admitted that, while questioning the defendant, he implied that there was a surveillance camera on the scene, even though he knew that the Gas USA station had no such equipment. He also implied that potential DNA and fingerprint evidence would prove what had happened.
¶ 20 Following McDaniel's testimony, the State rested. While admonishing the defendant regarding his rights to testify and to not testify, the court asked the State's Attorney and defense counsel whether there were "any issues that [were] going to come up" regarding any prior criminal offenses committed by the defendant. The State noted that the defendant had a 2008 juvenile adjudication for residential burglary. The defense counsel argued that evidence of a prior juvenile adjudication was not admissible against a testifying defendant. The State acknowledged that a prior version of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-150(1)(c) (West 2010)) barred such evidence but argued that the Act had been amended to allow such evidence to impeach a testifying defendant subject to the traditional balancing analysis applied in People v. Montgomery, 47 Ill.2d 510 (1971) (i.e., subject to the requirement that the probative value of such evidence is not outweighed by its tendency to unfairly prejudice the defendant). The State argued that, because the State would be using the defendant's prior juvenile conviction to impeach the defendant's credibility if he testified, it was admissible under the current version of the Act. The State argued that evidence of the defendant's prior juvenile adjudication would be admissible for impeachment purposes if the defendant's trial testimony contradicted ...