Court of Appeals of Illinois, First District, First Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 08 CR 15116. Honorable Michael Brown, Judge Presiding.
Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, Office of the State Appellate Defender, Elgin, Illinois, (Jessica Wynne Arizo, of counsel), for APPELLANT.
Anita Alvarez, State's Attorney, County of Cook, Chicago, Illinois, (Alan J. Spellberg, Kathleen Warnick and Yvette Loizon, of counsel), for APPELLEE.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.
[¶1] Following a second jury trial in the circuit court of Cook County, defendant Markell McLaurin was convicted of first-degree murder. Subsequently, at a hearing on the defendant's posttrial motion for a new trial, the trial court denied the defendant's pro se claims of ineffective assistance of counsel and sentenced him to 60 years of imprisonment. On first direct appeal, the defendant raised four issues by arguing that: (1) defense counsel was ineffective because he failed to secure the testimony of eyewitness Timothy Williams through section 3 of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Witness Attendance Act) (725 ILCS 220/3 (West 2008)); (2) defense counsel was ineffective for failing to object to the admission of, and failing to request the redaction of, inadmissible statements in State witness Marlon Williams' prior written statement and grand jury testimony; (3) the trial court abused its discretion
when it allowed the jury to receive and review a portion of witness Marlon Williams' prior written statement that contained other-crimes evidence disclosing that the defendant " carries different types of guns" ; and (4) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) because it did not " provide each juror an opportunity to respond" to specific questions regarding the Zehr principles ( People v. Zehr, 103 Ill.2d 472, 469 N.E.2d 1062, 83 Ill.Dec. 128 (1984)). This court remanded the case to the trial court for the limited purpose of conducting a more complete inquiry so as to allow the court to evaluate the defendant's claims for ineffective assistance of counsel, but did not address the defendant's remaining issues on first appeal. See People v. McLaurin, 2012 IL App. (1st) 102943, 982 N.E.2d 832, 367 Ill.Dec. 682. On remand, the trial court conducted another hearing, found the defendant's pro se ineffective assistance of counsel claim to be without merit, and again denied the defendant's pro se motion for a new trial. In the instant second appeal, the defendant raises the same issues that he raised in his first appeal. For the following reasons, we affirm the judgment of the circuit court of Cook County.
[¶3] The relevant underlying facts of this case were set forth in this court's December 10, 2012 opinion on the defendant's first appeal ( McLaurin, 2012 IL App. (1st) 102943, 982 N.E.2d 832, 367 Ill.Dec. 682), which we reproduce as follows. On January 9, 2008, Demarlon Jernigan (victim), who was shot in the area of Pulaski Road and Division Street in Chicago, and died of multiple gunshot wounds. After an investigation, the police arrested the defendant, who was charged with six counts of first-degree murder related to the shooting. On February 1, 2010, before the defendant's trial was set to commence, defense counsel sought a continuance stating that he was unable to locate defense witness Timothy Williams (Timothy). The State, also interested in Timothy, informed the trial court that it desired to subpoena him, but had been unsuccessful in serving him at his last known address. Defense counsel stated that he had not subpoenaed Timothy and told the trial court that he had " no excuse other than schedule and workload" for not serving Timothy with a subpoena prior to the trial date. Defense counsel made a proffer that Timothy would testify that neither the defendant nor State witness Bruce Jackson (Jackson) was at the scene of the shooting. Defense counsel also stated that Timothy was unable to identify the actual shooter. The trial court granted the continuance until March 8, 2010, stating that the defendant deserved to have a lawyer who would investigate his case, and further commented that defense counsel's efforts to locate Timothy up to that time were " not due diligence."
[¶4] On March 8, 2010, the defendant's first jury trial commenced. On March 10, 2010, after the State rested its case-in-chief, the trial court questioned defense counsel about whether Timothy would testify. Defense counsel informed the court that Timothy had contacted him the prior morning stating that he was in Chicago and that he would testify, but he then later left a message indicating that he needed a ride to court. Defense counsel received Timothy's message when the trial broke for lunch and he attempted to return Timothy's call multiple times that day. Defense counsel told the court that Timothy did not answer the telephone. Timothy ultimately did not appear in court that day or at any time during the trial. When the trial court asked defense counsel if he had subpoenaed Timothy, defense counsel responded,
" he did not tell me where he was, and I did not have time to secure an investigator to locate him in Iowa, I believe he stated [ sic ] he was living." The following day, defense counsel confirmed that Timothy would not be present in court. The case then proceeded to closing argument. On March 12, 2010, the trial court declared a mistrial after the jury was hung and could not reach a verdict.
[¶5] On June 7, 2010, the defendant's second jury trial began. Both sides agreed to adopt the trial court's ruling on the motions in limine from the first jury trial, in which the court ruled that evidence of the victim's gang membership was inadmissible. There was no discussion in the second trial concerning whether Timothy would appear as a defense witness. Defense counsel indicated there would be no change to his witness list from the previous trial, and the trial court informed the venire that Timothy was a potential witness in the case.
[¶6] During voir dire, the trial court instructed the venire on the four Zehr principles and asked whether they " had any problems" with the first three principles. The court also asked, " [i]f the defendant decides not to testify, is there anyone here who believes that regardless of what I have just said, you would hold that decision against the defendant?" None of the members of the venire answered in the affirmative.
[¶7] State witness Jackee Suttle (Suttle) testified that she was the victim's girlfriend. At about 9 p.m. on January 9, 2008, she and the victim intended to go to a restaurant together near Pulaski and Division. They also had plans to meet their friend, Jackson, who was going to prison the next morning. While conversing with friends near the restaurant, the victim became involved in a verbal altercation with a " big heavy guy." The victim and the " big heavy guy" headed to a nearby park and engaged in a fistfight. After the fight, the victim left the park in a vehicle driven by his friend, Timothy, but returned to the Pulaski and Division area at 10 p.m. From inside the restaurant, Suttle observed the victim walking toward a liquor store across the street from the restaurant. She then heard " five or six" shots fired. Suttle walked outside and observed the victim running away on Division. She saw the victim " taking bullets" and " getting shot," but did not observe the shooter. She testified that she did not observe Timothy or the " big heavy guy" at the crime scene, even though she had testified during the first trial that both were present at the scene of the shooting. Suttle also testified that she did not observe Jackson at the crime scene that night, but could not say for sure that Jackson was not there, because her attention was focused on her wounded boyfriend. After the victim was shot, she went over to his wounded body, which was near the bus stop at Pulaski and Division. His body was covered by a brown jacket, but he had been wearing a red jacket when she was with him earlier in the day. Although she accompanied the police to the police station, she did not speak to the police that night because she was upset. She returned to the police station a week and a half later.
[¶8] Jackson testified that his relationship with the victim was " something like brothers" and that they were together every day. On the night of the shooting, he dropped the victim off at Pulaski and Division " in the evening or something like that" and did not hear from the victim for about two or three hours. The victim called him because " [h]e had said that he was out there and some boys was trying to fight him or something like that, he didn't want to fight them." Jackson drove
to the Division and Pulaski area to pick up the victim and parked his vehicle on Pulaski. Jackson approached the victim as he was crossing the street to enter the liquor store. Jackson " was walking right behind [the victim]" at a distance of a few feet. There were people by the liquor store, and after Jackson and the victim arrived at the liquor store, Jackson heard shots and observed everyone running. Jackson then observed a gun, which looked like a revolver and was " chrome or a silver like" with a black handle. He also observed the shooter's face in good light from a " car length" away. In court, Jackson identified the defendant as the shooter. He testified that though he fled when the shots first rang out, he observed the defendant shoot the victim. Jackson heard four or five shots, chased the defendant for awhile, until Jackson ran into police officers who had arrived at the scene. He told the police officers which way the defendant ran, but the police did not pursue the defendant. Instead, they attended to the victim. Jackson did not talk to the police about the shooter's identity on the night of the shooting because he was upset and mad at the police for not pursuing the shooter more vigorously. He further testified that the victim later died. On January 10, 2008, the next morning, he reported to the Illinois Department of Corrections, to serve his sentence on an unrelated matter. He did not speak to the police until April 1, 2008, after his release in " mid-March" 2008. Jackson testified that at the police station on April 1, 2008, he identified the defendant after a discussion with detectives. On July 10, 2008, he identified the defendant in a lineup.
[¶9] Marlon Williams (Marlon) testified that he was currently in the custody of the Stateville Correctional Center, serving time for a 2009 conviction for aggravated unlawful use of a weapon. He testified that he was not in the Pulaski and Division area when the victim was shot in 2008, did not know the victim, and did not observe anyone get shot on January 9, 2008. Marlon also did not remember giving a written statement to Assistant State's Attorney Beth Pfeiffer (ASA Pfeiffer) and Detective Roger Sandoval (Detective Sandoval) on February 22, 2008, about what he saw on the night of the shooting. He claimed the signature on the statement attributed and presented to him in court was not his. Moreover, he did not remember signing the document, having it read back to him, or testifying in front of a grand jury.
[¶10] Emmanuel Bass (Bass) testified that he was in the custody of the Stateville Correctional Center where he was serving a six-year sentence for delivery of a controlled substance. On January 9, 2008, he was in the area of Pulaski and Division " selling weed," when he observed the victim in a fistfight with a man named " Reesie" in a nearby park. He did not observe who won the fistfight, but he observed that the victim walked out of the park, left the area, and returned about 20 minutes later. Bass recalled testifying before the grand jury that the victim knocked Reesie out. Bass testified that Reesie was drinking after the fight and remained in the area. He did not observe the defendant walk up to the victim and start shooting. However, at this second jury trial, the prosecutor asked Bass to read excerpts from his grand jury testimony. Bass read portions of his grand jury testimony that indicated that he had previously testified that he did observe the defendant shoot the victim. Bass said he recalled testifying before the grand jury that he observed the defendant shoot the victim, but testified at the instant second trial that he heard about the shooting from people in the neighborhood. When asked at the second trial about his grand jury testimony, Bass explained that much of it was not true. Bass further
testified that Detective Sandoval promised him that he would be released from jail if Bass revealed what he had heard from the neighborhood. In his grand jury testimony, Bass testified that no promises were made to him. However, at the second trial, Bass did not recall testifying before the grand jury that no promises were made to him. Bass testified that after his grand jury testimony, he told his defense counsel, who was an assistant public defender, to contact the State's Attorney to tell her that Detective Sandoval promised him that he would be released if he told the grand jury what the police wanted. Bass explained that he did not tell the State's Attorney before the grand jury proceeding because he was worried that he would lose the deal he made with Detective Sandoval, who had told him not to say anything about the promise. Bass did not receive any help after his grand jury testimony and subsequently was sent to prison to serve his full six-year term.
[¶11] ASA Pfeiffer testified that on February 22, 2008, after meeting with detectives, she met with Marlon to hear what he had to say about the shooting. ASA Pfeiffer did not want Marlon to be under the impression that their conversation would lead to anything regarding his pending case. She denied speaking to him about his pending case, and also denied that Detective Sandoval, who was present at the meeting, spoke to him about his case. She obtained Marlon's written statement in which he explained " what he heard said a couple of days after the murder" of the victim. ASA Pfeiffer further testified that Marlon's written statement explained that no threats or promises were made to him in exchange for the statement. Regarding the night of January 9, 2008, Marlon's statement explained that about 8 p.m., he was with the defendant and others when he observed the victim and Reesie in a fight over a girl. After the fight, the victim left the area but Reesie remained nearby. About 45 minutes later, Marlon was standing near Pulaski and Division when he observed the victim and friends walk across the street toward a liquor store. Marlon then heard someone say, " he's got a banger on him." Marlon then heard some gunshots in front of the liquor store and observed the defendant holding a gun with fire coming out of it. The victim was running away from the defendant, but the defendant followed him and fired a total of six to eight shots at him. After the shooting, the defendant placed the gun in his waistband and fled the scene. The written statement also stated that Marlon had " seen [the defendant] with a gun before. [The defendant] carries different types of guns, 9 millimeters, automatics and revolvers." The written statement also said:
" A day and a half later Marlon saw [the defendant] in the same area Marlon had been on January 9, 2008, on Keystone and Thomas. Marlon was in a car with [the defendant], Little Joe, and another guy Marlon did not know. The guy Marlon did not know told [the defendant], 'yeah, you stretched buddy' to [the defendant] and everyone was laughing. [The defendant] just sat back looking and nodding his head. By saying 'you stretched buddy,' that means he killed him. That's the last time Marlon saw [the defendant]."
[¶12] As Marlon's written statement was admitted into evidence and published to the jury in the second trial, defense counsel objected to the portion of the statement that described the defendant carrying other guns, on the grounds that it was inadmissible other-crimes evidence. The State responded that it had no objection to refraining from reading that portion of the statement to the jury. However, the trial court ruled that when the written statement was to be given to the jury, there
would be no alterations because Marlon's testimony raised the issue of whether he had actually signed the document. The trial court also rejected defense counsel's request to alter the document to exclude the portions regarding other-crimes evidence because such evidence is admissible for " any other purpose than propensity." Ultimately, the State did not read the objectionable portion of the written statement to the jury. However, it was not redacted from the written statement given to the jury during deliberations.
[¶13] Assistant State's Attorney Mary Anna Planey (ASA Planey) testified that on March 10, 2008, she spoke to Bass about the events of January 9, 2008. ASA Planey read parts of Bass's grand jury testimony. The portions she read were the same as the portions about which Bass was questioned in his earlier testimony. Specifically, ASA Planey read parts of Bass's grand jury testimony that stated that Bass never told ASA Planey that he did not actually witness the events recounted in his grand jury testimony and that Bass was not told what to say before the grand jury. ASA Planey testified that she did not know what the detectives had talked to Bass about before she met with him. ASA Planey also testified that she met with Marlon on April 11, 2008, before Marlon testified before the grand jury and that Marlon never mentioned anything about a promise from a detective. He told her things that " he'd actually seen." ASA Planey then read parts of Marlon's grand jury testimony, which was substantially similar to the written statement mentioned in ASA Pfeiffer's testimony, except that Marlon's grand jury testimony did not recount the defendant's nodding after the unknown individual stated that the defendant had " stretched buddy."
[¶14] Dr. James Filkins (Dr. Filkins) testified that he performed the autopsy on the victim's body on January 10, 2008, and opined that the victim died of multiple gunshot wounds.
[¶15] Officer Michael Edens (Officer Edens) testified that he worked in the gang enforcement unit. On January 30, 2008, he arrested Marlon after executing a search warrant of his residence and recovering 22 grams of crack cocaine, along with drug paraphernalia. At the police station, Marlon told police officers that he had information about a homicide that occurred earlier that month near Pulaski and Division, prompting Officer Edens to contact detectives. Officer Edens had no further conversation with Marlon about the homicide. Officer Edens did not promise Marlon anything for information about the homicide and told Marlon that, regardless of what information he gave, the charges against him would stand. Marlon had not asked Officer Edens if he could do anything about his pending charges, and Officer Edens had not known Marlon before the arrest. Officer Edens did not tell Marlon that he would charge him with home invasion if he did not provide information about the shooting.
[¶16] Officer Jerry Pentimone (Officer Pentimone) testified that he arrested Bass for a narcotics offense on February 13, 2008. Officer Pentimone asked Bass about his knowledge of criminal activity, and Bass told him that he had information about the shooting and a home invasion near the same location. Officer Pentimone did not promise Bass any leniency for this information, but Officer Pentimone admitted that Bass might have requested leniency.
[¶17] Detective Sandoval testified that he and Detective Carlos Cortez (Detective Cortez) interviewed Marlon on January 30, 2008. Marlon told the detectives that he witnessed a shooting at Pulaski and Division on January 9, 2008, and did not request
any leniency in exchange for the information. Detective Sandoval did not threaten to charge Marlon with home invasion, did not promise him anything in exchange for information, and had no contact with Marlon prior to the January 30, 2008 interview. Detective Sandoval was present when ASA Pfeiffer obtained Marlon's written statement, and he observed Marlon sign the statement. Detectives Sandoval and Cortez also interviewed Bass on February 13, 2008. Detective Sandoval did not promise Bass anything and had no contact with Bass prior to the interview. He neither told Bass what to say to the grand jury nor told him that he had to be a witness at the grand jury proceedings. Bass gave the detectives information about the shooting and stated that he witnessed the shooting.
[¶18] Detective Cortez testified that he attempted to interview Suttle on January 9, 2008, but she was too distraught. He eventually interviewed her on January 17, 2008. Suttle told him that she heard from other people that the defendant was the shooter. On January 30, 2008, Detective Cortez interviewed Marlon, who told him that the person who shot the victim was named " Kell." Detective Cortez then searched a database using that name and found a picture matching the information that Marlon had provided. He showed the photograph to Marlon during the interview and Marlon identified the person as " Kell," the person who shot the victim. " Kell" is the defendant's nickname. Detective Cortez testified that he did not have any contact with Marlon prior to the interview, did not promise him anything in exchange for the information, and did not promise Marlon that he would make Marlon's case disappear if he provided information. Detective Cortez further testified that he interviewed Jackson at the police station on April 1, 2008. Jackson told the detective that he witnessed the shooting but did not know the name of the shooter. Jackson ...