Court of Appeals of Illinois, First District, First Division
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Appeal from the Circuit Court of Cook County. No.08 CR 14015. Honorable Steven J. Goebel, Judge Presiding.
The appellate court affirmed defendant's convictions for the attempted first degree murder and aggravated battery of a person who was driving a car that defendant thought belonged to a person who had been involved in a recent altercation with defendant and the first degree murder of a passenger in the car based on the court's holdings that the trial court did not err in admitting evidence of uncharged shootings and gun play which occurred shortly before the charged offenses, the State's alleged knowing use of the perjured testimony of a prosecution witness could not have affected the verdict, defendant's right to confront the witnesses against him was not violated by the admission of the testimony of a medical examiner who did not perform the autopsy on the murder victim, and the appellate court rejected defendant's argument that the Illinois precedent upholding the doctrine of transferred intent was outdated and illogical.
Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL, (Alan D. Goldberg and Caroline E. Bourland, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, Chicago, IL, (Alan J. Spellberg and Jon Walters, of counsel), for APPELLEE.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.
[¶1] A jury convicted defendant, Carlos Hensley, of first degree murder, attempted first degree murder, and aggravated battery with a firearm in connection with the May 24, 2008, shooting that killed Kiana Green and injured Christopher Smith. According to the State's evidence, Green and Smith were stopped at a red light while driving in a car owned by Delorean Standley. Standley was not in the car, but had been involved in an earlier altercation with defendant. The defendant, James Davis, and Bernard Norvell pulled up behind Green and Smith in another car. The State claimed that defendant was mistaken as to the occupants of Standley's car and fired multiple gunshots into the car, killing Green and injuring Smith. Davis, Smith, and Norvell identified defendant as the shooter at trial. The circuit court sentenced defendant to 45 years' imprisonment for first degree murder, with an additional 25 years' imprisonment for personally discharging a firearm during the murder, and 17 years' imprisonment for attempted murder, for a total of 87 years' imprisonment.
[¶2] Defendant raises the following issues for our review: (1) whether the circuit court erred in admitting other-crimes evidence; (2) whether the State failed to correct the testimony of one of its witnesses and presented improper closing argument; (3) whether defendant's confrontation rights were violated when a medical examiner who did not perform the autopsy of the victim testified at trial; and (4) whether the evidence was sufficient to sustain defendant's conviction for attempted murder. Defendant admits that he did not properly preserve his first three claims of
error for our review. He asks that we review his first two claims of error either under the plain error doctrine or as a claim of ineffective assistance of counsel. He asks this court to review his third claim of error, i.e. whether his confrontation rights were violated, under only the plain error doctrine.
[¶3] We hold that we must honor defendant's procedural default of his first two claims of error because he has not shown plain error or ineffective assistance of counsel. Specifically, the circuit court did not abuse its discretion when it admitted proof of other crimes as they were part of the continuing narrative of the crime defendant was charged. Defendant's claims of prosecutorial error fail because he has not shown that the State knowingly used perjured testimony or that the State's closing rebuttal argument resulted in reversible error. Similarly, defendant has failed to show plain error when a medical examiner who did not perform the autopsy of the victim testified at trial because the testimony and admission of the autopsy report did not violate defendant's confrontation rights. We uphold defendant's conviction for attempted murder because there is no reason to depart from Illinois precedent regarding the doctrine of transferred intent.
[¶5] The circuit court denied defendant's motion to reconsider his sentence on February 29, 2012. Defendant timely filed his notice of appeal on the same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
[¶7] Defendant was charged by indictment with first degree murder, attempted first degree murder, and aggravated battery with a firearm in connection with the May 24, 2008, shooting of Christopher Smith and Kiana Green. Green died from her injuries.
[¶8] Prior to trial, the State filed a motion to admit proof of other crimes that occurred less than one hour prior to the shooting at issue in which defendant engaged in different criminal acts related to discharging a firearm that did not result in criminal charges. The State argued that these other crimes should be admitted to show defendant's motive, identity, and intent, and that it would present such proof of other crimes through the testimony of Darius Henry and Bernard Norvell. Henry would testify that on the night of the incident, between 8 and 9 in the evening, he was in the area playing dice with a group of men that included defendant's brother, Roselle. Henry and Roselle got into an argument over the game, and defendant eventually interceded on his brother's behalf. The argument turned into a fight, and defendant displayed a .357 handgun. Defendant told Henry to go get his gun, which Henry agreed to do. Henry returned to the scene with Ian " Marshaun" Rush, and Delorean Standley. Standley and Rush brought guns and began shooting at defendant. Defendant returned fire.
[¶9] The State anticipated Bernard Norvell would testify that he went to defendant's house on the day of the shooting at approximately 10:40 in the evening. When he arrived, defendant pointed his gun at him, a .357 revolver. Norvell had seen defendant carry the gun before. Norvell grabbed the gun and fought with defendant until defendant told him he was
just " 'fooling around.'" Defendant began recounting the details of his fight with Henry. He heard gunfire and observed Standley shooting at defendant. Defendant responded with gun fire, yelling " ' I see you, I see you.'" Later, defendant, Norvell, and James Davis drove around the area. The shooting at issue of Green and Smith occurred a short time later when Norvell, Davis, and defendant pulled up behind Green and Smith, who were driving Standley's car, a maroon Cutlass.
[¶10] The State argued the fight between Henry, defendant, and Roselle was " inextricably linked" to the later retaliatory shooting at issue. The State contended that Standley and Rush shooting at defendant explained an otherwise unexplainable fact, i.e., why defendant would get out of his car in traffic to shoot into Standley's car. Green and Smith were in Standley's car, which the State argued was proof that defendant intended to shoot Standley, but he shot Green and Smith. The State asserted that defendant's intent to kill Standley showed defendant's motive. Furthermore, the State pointed out that the gunfire evidence recovered from the crime scene indicated the gun used was either a .38 or a .357. As such, Henry's and Norvell's testimony that they saw defendant with a .357 gun demonstrated identity. Henry's and Norvell's testimony also showed defendant's intent to kill Standley, which resulted in his shooting Green and Smith, the occupants of Standley's car. The State asserted the evidence was more probative than prejudicial and was not being introduced to show defendant's propensity to commit crime.
[¶11] It appears from the record that defendant responded to the State's motion by filing several motions in limine seeking to bar the other-crimes evidence. Defendant argued that he acted legally in self-defense when he returned fire at Standley. He argued that the State's retaliation theory was speculative and irrelevant and would confuse the jury. According to defendant, the issues the jury should be concerned with were: whether Christopher Smith, an eyewitness and victim, really saw defendant shooting him; and whether Bernard Norvell and James Davis, the other eyewitnesses, were lying. Defendant sought to bar Norvell's testimony that he discussed the fight between Roselle and Henry, that defendant had a gun on him due to the earlier fight, that Henry was coming back, that defendant pointed his .357 revolver at Norvell in a joking manner, and that he rode around in a car drinking and smoking marijuana with Norvell and Davis.
[¶12] At the hearing on the State's motion and defendant's motions in limine, the circuit court allowed the State to present evidence on the initial fistfight, defendant's alleged statement that Henry should go and get a gun, that Henry's associates returned with a gun, and that Standley shot at defendant. The court found that defendant's later statement, " 'there he goes,'" when he saw Standley's car provided motive for why the shooting took place. The court noted that the firearm evidence, that defendant had a .357 gun with him within an hour at or near the crime scene, was relevant and was " part and parcel of one fact pattern as to what happened." The court found that the prior crimes were not separate incidents. Rather, the court explained: " [T]he State is asking under proof of other criminal conduct even though [,] I believe [,] based on what's been related to me [,] that it is all one set of facts here, and I don't find it to be separate." The court further found the testimony to be relevant for intent and identity purposes. Later, when addressing Norvell's anticipated testimony, the court found that the " statement by the defendant as to why he had the gun and as
to why they came back *** goes to the whole fact pattern in this case and is part of the general incident."
[¶13] The State also petitioned the court prior to trial for a rule to show cause as to one of its eyewitnesses, Darius Henry, who had failed to appear in court pursuant to subpoena. The State commented that " I believe the police are looking for Mr. Henry in conjunction with an unrelated crime," and stressed that it did not know the status of the case, or " if there even is going to be a case." Defense counsel commented that " I was informed today that Mr. Henry is not only a fugitive from a pending case, it is a murder case." The court granted the State's petition for a rule to show cause and gave the State an opportunity to locate Henry.
[¶14] Approximately a month later, the State informed the court that Henry had been arrested in Wisconsin " on the ACC contempt of court warrant" issued by the court. The State remarked that " I know that police were looking for Mr. Henry in conjunction with a murder and I believe that is why he did not appear here in court pursuant to that warrant, but it is my understanding from speaking to the detectives even as late as today that Mr. Henry has not been charged in the area two murder and no warrant has been issued for his arrest in the area two murder." Defense counsel asked that the State provide any police reports regarding Henry for in camera inspection, which the court allowed.
[¶15] At a later hearing, the court indicated to the parties that it had looked at the police report and decided not to tender it because it had " nothing at all to do with this case." The court noted, however, that Henry was a named suspect in the police report, and it allowed defense counsel to ask Henry if he was aware there was a pending murder investigation against him. The court also allowed the defense to ask whether Henry made a deal with the State. The State indicated to the court that it had spoken with Henry and told him that it would not be discussing any other unrelated incidents. The court allowed Henry to testify and commented that " [t]he fact [is,] it's a pending investigation, charges have not been approved."
[¶16] Defendant filed a motion in limine prior to trial seeking to bar the testimony of the State's alternative medical examiner. Defendant explained that Dr. Michel J. Humilier performed the autopsy and autopsy report of Kiana Green, the victim. Defendant argued that allowing a substitute witness for Dr. Humilier would violate his confrontation and due process rights. At oral argument, the State informed the court that Dr. Humilier had left the office of the medical examiner. The court denied defendant's motion in limine and allowed the State to present the testimony of an alternative medical examiner.
[¶17] At trial, James Davis testified that he was with defendant and Bernard Norvell on the night of the shooting. When he first met defendant, defendant was playing with a gun " pointing it toward" Norvell. Norvell told defendant to " stop playing like that." Davis testified further that they were standing in front of defendant's house when gunshots were fired. Davis and Norvell ran through the gangway, but defendant stayed and shot back. Defendant told the shooters that " 'I see you.'" Davis, Norvell, and defendant drove to a liquor store about a block and a half away to get something to drink and to smoke marijuana. After buying the liquor, Davis got in the backseat of the car, while Norvell drove and defendant sat in the front passenger seat. They drove around for 15 or 20 minutes. Davis smoked marijuana in the backseat, and was not fully alert because he " was dozing off from the marijuana
and the liquor." He then " felt a jerk" and heard a voice say " 'there they go.'" A burgandy Cutlass was stopped in front of them at a stoplight. Defendant got out of the car and Davis saw him shooting at the car. He saw glass shattering and muzzle flashes. Davis was " [s]hocked" and " stunned." When defendant returned to the car, Novell told him, " 'Man, why the [expletive] did you do that out of my wife's car, my kids be in here.'" Norvell dropped defendant off approximately two to five minutes later. Davis admitted that he was compensated by the State for travel and lodging costs, and that he had a 2009 conviction for aggravated unlawful use of a weapon and a 2002 conviction for delivery of a controlled substance.
[¶18] On cross-examination, Davis testified he was friends and cousins with Norvell. He " was cool" with defendant, and explained " [w]e never had no bad terms." Davis testified he was drinking vodka. He agreed that he signed a statement that indicated after the shooting, they drove around for 15 minutes before dropping defendant off. On redirect examination, Davis testified that in order to get to the backseat, he had to climb over the front seat because the back doors did not open.
[¶19] Bernard Norvell testified that around the time of the shooting, he saw defendant regularly. He testified consistently with Davis's account of the events prior to the shooting at issue and added that, when defendant was playing around with the gun, it was a .357 revolver. Norvell testified that he, defendant, and James drove around in his wife's car. Norvell testified he drove the car, James was in the backseat, and defendant occupied the passenger seat. While driving, Norvell pulled up next to a person named " B," whom he did not like. He asked defendant if he had a gun, and defendant said " No." Norvell admitted he would have shot " B" had defendant told him he had a gun.
[¶20] Norvell testified that upon driving back to near where the initial shooting occurred, defendant stated " 'there they go.'" Norvell saw a maroon, four-door Cutlass, which he explained " was the car that the shooter supposed to have." Norvell thought Delorean Standley and Darius Henry were in the car because Delorean Standley usually drove it. He noticed two people in the car. Defendant asked him to pull up to the side of the car, but he refused because he was under the impression that defendant did not have a gun on him. When he refused, defendant got out of the car. Norvell testified defendant then walked to the " back of the car on the passenger side and shot once through the back window." The back window shattered. He estimated that defendant shot the gun in the passenger side of the car five times. Norvell questioned defendant why he would do that in his car, because his kids use the car. Defendant disposed of the gun with a neighbor. Defendant thought he shot Henry in the passenger seat.
[¶21] Norvell admitted that he was not truthful when he first spoke to the police and denied that he knew who shot Kiana Green. He added that the back doors of the car he was driving, which belonged to his wife, were unable to be opened. Norvell admitted to having three prior felony convictions: two for unlawful use of a weapon, and an " aggravated domestic." He admitted that he had three pending cases against him: one for a probation violation, one for unlawful use of a weapon by a felon, and one for having his driver's license revoked. On cross-examination, Norvell clarified that he was not a cousin by blood with Davis; rather, it was through marriage.
[¶22] Darius Henry testified he was currently in custody for contempt of court for failing to appear after being subpoenaed in this matter. He was arrested in Wisconsin for occupying a vehicle without the owner's consent. When asked whether it was " [l]ike a stolen car," Henry answered " [y]es." Marijuana was found in the car. Henry testified that on the day of the incident, he was playing basketball and " [c]raps," a dice game, with defendant's brother, Roselle. Henry got into a fistfight with Roselle. Defendant interceded and told his brother to fight Henry. During the fistfight, defendant pulled out a gun, a .357 Magnum. Defendant told Henry to go get his gun. Henry called his brother, Ian " Marshaun" Rush, and Delorean Standley, so that they could get him a gun. Standley, Rush, and Henry then returned to defendant's house. Standley and Rush were armed, but Henry was not. Their plan was to shoot defendant. Upon arrival at defendant's house, Standley and Rush fired multiple shots at defendant. Defendant shot back and yelled, " Come on, [expletive] '" The last thing Henry heard was defendant saying " ' I'm gonna kill you, ...