Court of Appeals of Illinois, First District, Third Division
Modified upon denial of Rehearing filed December 3, 2014.
Appeal from the Circuit Court of Cook County. No. 10 CR 11210. The Honorable Brian Flaherty, Judge, presiding.
In a prosecution for attempted first degree murder, unlawful possession of a firearm by a gang member and aggravated unlawful use of a weapon, defendant's guilty pleas to unlawful possession of a firearm by a gang member and aggravated unlawful use of a weapon and his conviction by a jury for aggravated battery with a firearm were upheld over his contentions, inter alia, that the jury was tainted when the trial judge posed questions about defendant's alleged gang membership during voir dire shortly before allowing defendant to plead guilty to unlawful possession of a firearm by a gang member, that his counsel was ineffective in adopting a strategy that allowed the prospective jurors to be questioned about evidence of gang membership, and that a per se conflict of interest arose on the part of his counsel when counsel was allowed to continue to represent defendant after filing a motion for a new trial alleging he was ineffective.
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, Cook County, Alan J. Spellberg, Joan Frazier, Lisannne Pugliese, Assistant State's Attorneys, Chicago, Illinois.
FOR DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender, Jessica D. Pamon, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
[¶1] Defendant James Short was charged with attempted first degree murder and three other offenses stemming from his shooting of Eric Felters. After jury selection, but before trial, Short pled guilty in an open plea to two charges: unlawful possession of a firearm by a gang member and aggravated unlawful use of a weapon. The jury acquitted Short of attempted first degree murder, but found him guilty of aggravated battery with a firearm.
[¶2] Short claims the jury became tainted by the trial judge's admonishment to the venire about Short's alleged gang membership and about the two counts to which he pled guilty. Short also contends the trial court erred in denying his request to corroborate his trial testimony with his prior consistent statement to rebut the State's suggestion that his self-defense claim was a recent fabrication. Lastly, Short argues he received ineffective assistance because a per se conflict of interest arose when his trial counsel argued his own ineffectiveness in the motion for a new trial. Short asks this court to remand for appointment of new counsel to represent him on his motion for a new trial or, alternatively, remand for an inquiry as provided in People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045, 80 Ill.Dec. 62 (1984).
[¶3] We find no error. Short received a fair trial before an impartial jury with effective assistance of counsel. We affirm.
[¶5] Pretrial Proceedings
[¶6] Before trial, defense counsel filed a motion in limine asking the State be barred from presenting gang evidence at trial. Defense counsel argued that because the issue of Short's alleged gang membership was only relevant to one charge--unlawful possession of a firearm by a gang member--Short should be allowed to " concede on that charge to take it to a bench trial." The trial judge asked counsel whether " concede" meant pleading guilty or having a bench trial, to which defense counsel responded, " my preference would be to waive jury on that."
[¶7] The court denied defense counsel's request for a bench trial on the unlawful possession of a firearm by a gang member charge and held that because Short's alleged gang membership was relevant to the charge, gang evidence would be allowed.
[¶8] At the beginning of voir dire, the court read all four counts of the indictment, including aggravated unlawful use of a weapon and the count alleging Short was a member of a street gang. With defense counsel's agreement, the court: (i) informed the venire during voir dire that there may be evidence presented at trial regarding gang membership; and (ii) asked each potential juror whether the fact that defendant was an alleged gang member would prevent him or her from giving Short a fair trial.
[¶9] After the jury was selected, outside the presence of the jury, defense counsel asked the court to allow Short to plead guilty to unlawful possession of a firearm by a gang member and aggravated unlawful use of a weapon. The court granted the motion. At this point, defense counsel moved to have the venire dismissed. Counsel argued that informing the jurors of Short's alleged gang membership tainted them. The trial judge denied counsel's request, but stated he would give the jury a limiting instruction. (No instruction appears to have been given.) The trial judge then reread to the jury the charges defendant faced--attempted first degree murder and aggravated battery with a firearm. The court informed the jury it would no longer hear gang evidence and, specifically, evidence of Short's alleged gang membership. That was the extent of the court's directions on the issue.
[¶11] The State presented the eyewitness testimony of the intended victim, Eric Felters, and his friend, Brandon Brooks. The defense presented the testimony of Short, Jeffrey Dawkins, and Lauren Falkner, Brooks' former girlfriend.
[¶12] State's Case
[¶13] Eric Felters
[¶14] The victim, Eric Felters testified that he went to a party at his girlfriend Samantha Mack's house around 10 p.m. on May 20, 2010. Felters knew most of the 50 to 75 attendees; the only people unfamiliar to him were Short and Dawkins. Felters testified he knew Donovan Luster by face. (Short, Dawkins and Luster arrived at the party together in a dark BMW Sports Utility Vehicle (SUV).)
[¶15] Felters left the party when the police shut it down around midnight, and he walked across the street to his car. As he stood next to his car, a dark-colored SUV pulled up next to him with its windows down and loud music playing. There were no cars in front of it blocking its path. The people inside the SUV were trying to get his attention with derogatory comments. He turned to face the passenger window of the SUV and a verbal altercation ensued with Dawkins, the front-seat passenger. (Luster was driving and Short
was sitting in the backseat.) Their argument escalated. Felters and Dawkins threw punches at each other through the window four or five times. Felters claimed he did not have a weapon. During the altercation, no one surrounded the SUV to help him or to fight Short and his friends.
[¶16] Less than a minute into Felters' fight with Dawkins, Felters saw a gun come from the backseat through the passenger window and fire one shot. The bullet struck Felters' right forearm and then entered the right side of his chest, piercing the right lung. Felters ran for assistance, eventually collapsing in the driveway of the party house. An ambulance arrived and took Felters to the hospital, where he stayed for two weeks.
[¶17] Brandon Brooks
[¶18] Brooks testified he had been friends with Felters since childhood and that he, Felters and Mack attended school together. Luster, Dawkins, and Short did not attend the same school, but Brooks knew them from the neighborhood.
[¶19] Brooks recalled that after the police broke up the party, as he walked toward his car, he saw a dark SUV pull up alongside Felters' car with Felters in the driver's seat. Brooks had seen Dawkins get in the front passenger seat of the SUV and Short get in the back. Brooks testified consistently with Felters' account about the fight. Brooks did not see anything in Felters' hands during the altercation or later when Felters was on the ground injured.
[¶20] During cross-examination, Brooks testified he was able to observe the incident even though he was 30 feet away and the SUV's headlights pointed in his direction. Brooks never told Lauren Falkner that he and his friends were going to fight Short and his friends. He also denied knowing Jasmine Evans or instructing her to use her car to block the path of the SUV after the party. (Falkner testified that Brooks knew Evans because Evans dated Brooks' brother while Falkner and Brooks were dating and the four of them would go out together.)
[¶21] Police Testimony
[¶22] Officer Daniel Vanoskey testified he was on routine patrol when he came upon a party near 5746 Kathryn Lane, Matteson, on the night of the shooting. While on foot with Officer Roger Radtke, who arrived to assist, they heard a gunshot. Officer Radtke ran in the direction of the shot.
[¶23] Sergeant Robert Debeikis testified that on the night of the shooting, he received calls of disturbance concerning the party. When Sergeant Debeikis arrived on the scene, the party was causing traffic congestion and a lot of people were standing in the street, so he told Mack to shut down the party.
[¶24] While Sergeant Debeikis was clearing people out of the house, he received a call that someone had been shot. He ran outside and saw Felters bleeding, lying on the ground in front of his patrol car. He heard people yelling that the shooter was fleeing in a SUV. He radioed that information to the other officers in the area. He then got in his patrol car and chased the SUV.
[¶25] Over the police radio, Officer Vanoskey heard that a dark-colored SUV involved in the shooting was fleeing toward his location. He stood in the middle of the road with his gun drawn and yelled for the SUV to stop. The SUV, containing three African American males, stopped 10 feet in front of him.
[¶26] Sergeant Debeikis arrived and assisted Officer Vanoskey. The officers placed Luster, Dawkins and Short in a
police car and corralled the partiers back into the house so they could secure the area and interview witnesses. No weapons were recovered from the scene. The SUV was towed to the police station and processed by an evidence technician. The police recovered a loaded revolver with four live rounds and one spent casing from underneath the backseat.
[¶27] Detective Jeremy Sims testified that around 1 a.m. that night, he went to the area in response to the shooting. When he arrived, he spoke with a witness who lived in the area. Later, he went back to the station and secured the SUV. He collected evidence from Short, Luster and Dawkins and conducted a gunshot residue kit on all three men. He wrote a police report about the incident.
[¶28] Defense Case
[¶29] Nineteen-year-old Short testified he went to the party at Mack's house with his friends Dawkins and Luster. Short knew Mack because they associated with the same group and saw each other at different events. Short was not friends with Felters, but knew he was Mack's boyfriend.
[¶30] Before the party, Short drove to Dawkins' house and waited there for Luster to arrive. When Luster arrived, Short took a gun from inside his car and pet it under the backseat of Luster's BMW SUV. Short testified he brought the gun along that day for protection because he did not know where they were going after the party and sometimes he could be in " rough areas." Luster and Dawkins testified they did not know Short put the gun underneath the backseat.
[¶31] Short testified that when they arrived at the party, he left the gun inside the SUV. Short saw Felters and Brooks at Mack's house, but nothing unusual happened at the party. After the police broke up the party and everyone began to leave, traffic on the street became congested.
[¶32] The men got back into Luster's SUV; Luster as the driver, Dawkins in the front passenger seat and Short in the back. The front windows were rolled down. Short put the gun in his pocket, but testified he had no intention of using it.
[¶33] Short testified that as Luster tried to pull out of the parking space, Jasmine Evans pulled her car in front of his, blocking in his SUV. Felters approached the passenger side of Luster's SUV and started hitting Dawkins with a dark object that looked like brass knuckles. After five or six blows, Dawkins' body slumped and appeared unresponsive. A group of men then gathered on the driver's side of the SUV. The men opened Luster's door and tried to grab him. Short testified that at this point, he feared for his own life and the lives of his friends.
[¶34] Felters continued attacking Dawkins, but Dawkins did not fight back. Short testified he then pulled out his gun and shot in Felters' direction to scare him and the others away. Following the shot, the men scattered. The car blocking the SUV moved and Luster was able to pull out and turn around in the cul-de-sac. As Luster drove back down the street, the police stopped them.
[¶35] Short testified he did not know Felters had been shot until he heard everyone screaming and saw an ambulance. Short was arrested and taken to the police station. At the station, he talked with Detective Sims and Assistant State's Attorney (ASA) Pease-Harkin. Short testified he told ASA Pease-Harkin what had happened and, specifically, that Felters had a weapon and a group of men surrounded their car just before the shooting.
Short's Handwritten ...