Court of Appeals of Illinois, First District, Third Division
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Appeal from the Circuit Court of Cook County. No. 11 CR 12357. The Honorable Luciano Panici, Judge, presiding.
Affirmed; mittimus corrected.
On appeal from defendant's conviction for attempted first degree murder based on a shooting that was suspected to be gang-related, defendant failed to meet his burden under the plain error doctrine of showing that the jurors were prejudiced when several of them were contacted by suspicious calls telling them to report for trial two hours later than the judge had instructed them to appear, the trial court did not deprive defendant of a fair trial when he instructed the jury with modified instructions for attempted first degree murder that he claimed " misstated the law and contained confusing sentence fragments" and his counsel's failure to object did not prejudice defendant.
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, State's Attorney Cook County; Alan Spellberg, Tasha-Marie Kelly, Gina DiVito, Assistant State's Attorneys, Chicago, Illinois.
FOR DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender; Jennifer Bontrager, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Lavin concurred in the judgment and opinion.
[¶1] Defendant Keyshon Sharp was charged with multiple offenses in the shooting of Nicholas Coleman. The first of his two jury trials ended in a mistrial. The second jury found him guilty of attempted first degree murder and aggravated battery with a firearm. The court sentenced Sharp to a total of 55 years' imprisonment.
[¶2] Sharp claims the trial court erred by not ordering a mistrial when it learned at least five of the jurors in his second trial had received telephone calls falsely informing them that the court time had been delayed two hours. Sharp argues the trial judge should have questioned the jurors more extensively than he did, particularly about their ability to be fair after the improper contact, and admonished the affected jurors not to speak to the remaining jurors about the calls. We decline Sharp's invitation to review this claim under the plain error doctrine, finding his argument has not met either prong of the doctrine.
[¶3] Sharp next contends the trial court deprived him of his right to a fair trial before a properly instructed jury by accepting the State's non-Illinois Pattern Jury Instruction (IPI) for the offense of attempted first degree murder. The modified instruction accurately stated the law as it applied to Sharp and, therefore, the trial court did not abuse its discretion when it instructed the jury with the State's proffered non-IPI jury instruction. Defendant's alternate argument that his trial counsel was ineffective for failing to object to the jury instruction modification likewise fails.
[¶4] Sharp further argues the trial court erred by allowing gang evidence into the trial. Sharp complains of three instances which he argues prejudiced the jurors against him: (1) voir dire questions about the possible use of gang evidence; (2) the use of defendant's nickname, " Baby Stone" ; and (3) the State's introduction of a " wanted" poster, which included Sharp's nickname. The trial court properly asked the prospective jurors about their ability to consider possible gang evidence for the limited purpose it might be offered, i.e., to ensure the jurors would not be prejudiced against Sharp should gang evidence come out at trial. Moreover, evidence of Sharp's nickname and the " wanted" poster do not imply gang affiliation. The information was solicited by the State for the proper purpose of establishing how the eyewitnesses identified Sharp.
[¶5] Next, Sharp argues his trial counsel was ineffective for failing to: (1) object to the voir dire questions concerning potential gang evidence; (2) object to the introduction of the " wanted" poster; (3) object to the State's proposed jury instructions; (4) present the two alibi witnesses that were called in the first trial; (5) make a threshold showing sufficient for the admission of evidence that another individual confessed to the crime; (6) move for a mistrial when the parties learned some jurors received phone calls falsely informing them of a delayed start time; and (7) object when only 10 of the 12 jurors were polled. Sharp's claims fail because he cannot show counsel's decisions were deficient and that he was prejudiced as a result. The record shows trial counsel presented a viable, consistent defense and acted as an advocate for Sharp.
[¶6] Sharp argues he was denied assistance of counsel during the posttrial proceedings
and at the sentencing hearing, claiming posttrial counsel failed to obtain transcripts from Sharp's trial, failed to participate in the posttrial proceedings, did not file or argue a posttrial motion on Sharp's behalf and presented no evidence or arguments in mitigation during Sharp's sentencing hearing. Defendant has failed to overcome the strong presumption that posttrial counsel's alleged inaction was part of his trial strategy. Moreover, even if defendant could, he has not shown how he was prejudiced by posttrial counsel's actions and, therefore, his claim fails.
[¶7] Sharp also argues his 55-year sentence for attempted first degree murder is excessive in light of his " substantial rehabilitative potential" and strong family ties. The trial court did not abuse its discretion in sentencing Sharp. His sentence is within the statutory range and is proportionate to the nature of the offense. We further find no merit to Sharp's contention that the 30-year firearm enhancement that was applied to his sentence is void because it is unconstitutionally vague both on its face and as applied. We affirm his sentence.
[¶8] Lastly, Sharp argues, and the State concedes, that the mittimus must be amended to reflect the correct offense name and class, and the proper statutory citation. We agree. Accordingly, we uphold the judgment of the trial court and correct the mittimus to reflect that Sharp was found guilty of attempted first degree murder, Class X (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)).
[¶10] Procedural History
[¶11] Sharp was charged with multiple counts of attempted first degree murder, aggravated battery with a firearm, aggravated discharge of a firearm and aggravated battery in the shooting of Nicholas Coleman. Sharp demanded a jury trial. Before trial, the State nolled all the counts except for one count of attempted first degree murder and aggravated battery with a firearm.
[¶12] In connection with voir dire, the State asked the court to question the prospective jurors about whether they knew any police officers or lawyers and whether they were acquainted with anyone in a street gang. The State contended the information would be important because Sharp listed Emani Fort, the granddaughter of El Rukn gang leader Jeff Fort, as a potential witness and defendant was identified as " Baby Stone" by two eyewitnesses, which could show an allegiance to the Black P. Stones gang. The State asked for a proffer as to what Emani would testify to because she was not an occurrence witness and was not named as an alibi witness in Sharp's original filing of his affirmative defense.
[¶13] Defense counsel did not object to the gang affiliation inquiry of the venire. As a proffer, counsel stated the purpose of Emani's testimony was to refute Nicholas's statement that he previously met or saw Sharp through her. Emani would testify that she never met Sharp and that Nicholas did not meet Sharp through her.
[¶14] The court admonished the venire:
" You may hear evidence of street gang membership by the Defendant. Although street gangs have a negative connotation, the purpose of this evidence would be limited and should not be considered as evidence of the defendant's propensity to commit crimes."
" Do you have any personal knowledge of anyone in a street gang; and, if so, what gang?"
[¶15] At the first trial, the defense theory was that Sharp did not commit the shooting because he was picking up his sister's
children from daycare at the time. Three witnesses testified on Sharp's behalf--a daycare employee, Sharp's sister, and a friend Sharp was with before picking up the children. Sharp did not testify. At the close of its case, defense counsel requested a continuance, stating new evidence had come to light concerning the " real offender." Counsel claimed that Emani Fort and Mercedes Green would testify that Ronald Jackson told them he was responsible for the shooting. The judge denied defense counsel's request, finding the evidence lacked an indicia of reliability and further noted that he believed the timing of the new evidence was suspicious.
[¶16] When jury deliberations proved unsuccessful, the jury hung and the court declared a mistrial. The court immediately set the case for retrial.
[¶17] The State again, without objection, had the judge ask the two gang-related questions to the venire. The judge stated that all of his in limine rulings from the original trial would remain in effect, he denied defense counsel's request for a continuance to investigate the evidence of a third party confession, and ruled that defense counsel could not introduce the evidence of the confession through Emani Fort.
[¶18] The parties selected 12 jurors and 2 alternates. One juror was excused the first day for her language abilities and an alternate was seated. The parties agreed to proceed with only one alternate.
[¶19] At the conclusion of the evidence, the jurors were told to return to court at 9 a.m the next day for closing arguments and deliberations.
[¶20] Shortly after 9a.m. the following morning, only 9 out of the 13 jurors were present. The deputy sheriff called the missing jurors, getting ahold of three of them, and learned that they had been called the night before and told to report two hours later. When the late jurors arrived, the trial judge brought them into chambers individually and asked, " Why were you late this morning?"
[¶21] The first juror questioned, D.B., stated that a woman called his home and informed him the court time had changed to 11 a.m. D.B. received the call at the number he provided on his juror information card. The trial judge asked if anything else was said and the juror replied no. The first juror left and the second was brought in.
[¶22] The second juror, N.V., was asked the same question. She responded that she had received a call at 4 p.m. the day before at the number she listed on her juror card. The woman caller told N.V. she was the trial judge's secretary and that the judge would like to change the arrival time to 11 a.m. N.V. asked the caller, " Let me get this straight. He's changed it to eleven?" and the caller said, " Yes." N.V. showed the trial judge the number that placed the call to her and stated that her caller I.D. displayed " Cook County Government Building" or something to that affect. She told the trial judge she was upset she was late and he told her not to be. The trial judge told her it was " no problem" she was late.
[¶23] The third juror, D.P., was brought into chambers next. When asked why she was late, she responded that she received a call shortly after she returned home that came up as " Cook County Sherriff" or something similar and she was told to come in at 11 a.m. The trial court confirmed that was all that was said and that the number she received the call at was the one listed on her juror card.
[¶24] The trial judge had a discussion with the parties and stated that it was clear that someone from a Cook County
number called the jurors and that it should be looked into. The judge concluded that it was clear that " nothing else was said, other than to come in at 11:00 o'clock." When counsel suggested the calls had " to do with delaying this case," the court responded, " Okay. That is enough. I don't see anything improper so, therefore, we're going to continue." The judge recessed the proceedings until 11 a.m. to wait for the fourth delayed juror.
[¶25] When another juror indicated to the sheriff that she had received a call, she was brought into chambers. The juror stated that she received two calls from " Cook County" between 4:30 and 5 p.m. the night before. She did not answer because she did not recognize the number. She called the number back and reached a recording indicating it was a Cook County number. The number she received the call on was the one listed on her juror card.
[¶26] When the last of the missing jurors, A.R., arrived, he was brought into chambers. A.R. stated that he received a call that he should return to court at 11 a.m. A.R. did not get the call on his cell phone, which was the number listed on his juror card, but rather, on his house phone. The trial judge excused A.R. from chambers and separated him from the other jurors. The court found it suspicious that this particular juror was the only one to receive the call at a number not listed on his juror card, so the court excused him.
[¶27] Defense counsel objected to A.R. being excused. In response to defense counsel's suggestion that more information was needed before the juror could be excused, the court stated:
" Well, the problem is this. This is a retrial and the last time there was alleged--it just so happened that the only hold-out was a person that had concerns about gang members that belong to the same gang as the defendant milling around her car. So it was a hung jury.
I then took action to segregate the jurors, but apparently, somehow, *** this has not stopped and, somehow, I don't know what the heck is going on but whatever is going on, its raises a red flag, especially if he would have told me he got a phone call on the number that he put on the jury card, then it would have been similar to the rest of them.
He says that he put the cell number, a cell phone number on the jury card, but then got a call at home and that definitely, raises a red flag.
So I am going to dismiss that juror and I am going to impanel the other alternate."
The alternate juror was impaneled over defense counsel's objection.
[¶28] The jury returned and heard closing arguments, was instructed and deliberated. At the conclusion of the second trial, the jury found Sharp guilty of attempted first degree murder and aggravated battery with a firearm.
[¶29] After the finding of guilt, Sharp's privately retained trial counsel was given leave to withdraw and new counsel was granted leave to file an appearance. After a nine month delay, the trial court denied Sharp's motion for a continuance, as well as his motion to reconsider. The court sentenced Sharp to 25 years' for attempted first degree murder and 30 years' for discharge of a firearm.
[¶30] Factual History
[¶31] Around 5 p.m. on June 21, 2011, Nicholas Coleman pulled his car into the driveway of the home he shared with his mother in Harvey, Illinois. Nicholas's father, Joseph Coleman, was a passenger in the car. Both Nicholas and Joseph saw Sharp standing by the fence near Nicholas's house. Nicholas knew Sharp and
testified he had never had any problems with him, so when he saw Sharp by the fence, he believed he was " just walking by." Nicholas got out of the car and began walking toward the house. Joseph got out of the car, too, to remind Nicholas not to forget his cell phone. Joseph then got back in the car.
[¶32] Nicholas had a dog that was on the other side of the fence. As Sharp walked toward Nicholas's house, he asked Nicholas about his dog. Sharp stood 10 feet away from Nicholas, face-to-face. Nicholas testified he was so close to Sharp, he could see him bite his lip and reach for his hip.
[¶33] From the car, Joseph saw Sharp walk up to Nicholas and make a motion like he was going to " hug" him. Joseph saw Sharp pull out a gun. Nicholas testified he saw the gun in Sharp's hand and saw that it was pointed at him. Sharp fired the gun at Nicholas, but Nicholas was not hit. Nicholas ran and Sharp chased him. Joseph got out of the car and ran into the street for help.
[¶34] As Nicholas ran, Sharp shot him in the back of the leg. Joseph saw Sharp shoot and watched as his son fell to the ground. After Nicholas fell, he immediately turned over onto his back and covered his head with his arms. Nicholas testified he did not cover his eyes and watched as Sharp ran toward him. Nicholas saw Sharp aim his gun and fire. Sharp stood over Nicholas with his arm extended toward him with the gun.
[¶35] Joseph watched from the street as Sharp stood over Nicholas, aimed his gun and repeatedly fired into Nicholas's body. Nicholas testified he could see Sharp's face clearly.
[¶36] When Sharp stopped firing, he jumped over the fence toward the alley behind Nicholas's house. Nicholas was conscious and tried to stand, but was unable to. A woman came to his aid and called 911.
[¶37] Joseph saw Sharp come out of the alley and go over to Mauryce Brown's car. Mauryce had lived next door to Nicholas for two years and sold him the puppy. Brown testified he was around the corner and heard four or five gunshots. About 30 seconds after the last gunshot, Sharp approached his car and asked to " get in." Brown saw Sharp was holding a gun. He did not let him in. Sharp ran; Brown did not see where. Brown drove down the ...