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People v. Randall

Court of Appeals of Illinois, First District, Fifth Division

September 30, 2016

TERRELL RANDALL, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 11 CR 15388 The Honorable John Joseph Hynes, Judge Presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Hall and Reyes concurred in the judgment and opinion.



         ¶ 1 Following a jury trial, defendant Terrell Randall was convicted of the first degree murder of Tonnisha Johnson. The jury also found that defendant personally discharged the firearm that caused Johnson's death. The trial court sentenced defendant to a total of 90 years in the Illinois Department of Corrections (IDOC). On this appeal, defendant argues (1) that the trial court erred by refusing to instruct the jury on second-degree murder where there was some evidence tending to show that defendant was acting under a serious provocation; (2) that defendant was denied effective assistance of counsel where his trial counsel opened the door to the introduction of other crimes evidence; and (3) that, in sentencing defendant to 90 years in prison for first-degree murder, the trial court improperly relied upon an aggravating factor inherent in the offense, and thus defendant should receive a new sentencing hearing. For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The following facts were adduced at trial[1]:

         ¶ 4 Tonia Worthen testified that she was the mother of the victim, Tonnisha Johnson, who was 28-years-old in August of 2011. Worthen was living in Minnesota in 2011, while Johnson was living in Chicago. Mother and daughter talked on the phone every two or three days, including in the evening hours of August 26, 2011. Johnson was speaking to her mother on a speaker phone, when Johnson told her mother she was with her friend Terrell, and a male voice said "my name is Terrell Randall." Worthen had never spoken to defendant before and had never heard of him at the time. At the end of the phone conversation, Johnson asked her mother to call her back in 45 minutes at the same number, but Worthen did not have the opportunity to call back.

         ¶ 5 Worthen testified that she received another call from her daughter that same night around 1:30 a.m. Johnson said: "Mom, I am shot, mom. I can't breathe, mom." Then Johnson hung up the phone and Worthen tried to call her back, but Johnson did not answer. Worthen reported the incident to the police, drove to Chicago, and went to Christ Hospital. When she arrived there, Worthen observed her daughter lying in a bed with IVs in her arms and tubes in her neck and mouth. Johnson was alive but unable to speak. Johnson died on September 6, 2011.

         ¶ 6 Amy Cartage testified that she was 22 years old at the time of the trial and had two children. She met defendant in February 2009, when she was 17 years old, and they began dating. Cartage and defendant split up the same year, and Cartage began to date a man named Kevin Newsome in July 2010. Defendant reconnected with Cartage in May 2011, at which time Cartage was pregnant with Newsome's child. At that time, defendant asked if he could date Cartage again, and she said no, although she said that they could be friends. Cartage gave birth to her first child in July 2011. After giving birth, Cartage discovered that Newsome was cheating on her, at which point her communication with defendant increased.

         ¶ 7 Cartage testified that she was spending the night at Newsome's house on the night of August 25 into August 26, 2011. That night, Newsome changed the voicemail on Cartage's phone to state, in his voice, "Hi. You have reached Mr. and Mrs. Newsome. Please leave a message." Cartage had a Cricket phone, for which she could pay by the day. This phone expired around midnight. Even though it was disconnected, Cartage could still receive voicemails.

         ¶ 8 Cartage testified that she fell asleep at Newsome's house that night. She woke up around 4:00 a.m. to find that Newsome was not there with her, and she went outside to look for him. Cartage found Newsome asleep in a vehicle outside with another woman named Charmaine, who was in the driver's seat. Cartage knocked on the window of the vehicle and told Newsome to exit the vehicle. After Newsome exited, Charmaine drove away. Cartage and Newsome stood on the porch of Newsome's house and discussed how to fix their relationship.

         ¶ 9 During the conversation on Newsome's porch, Cartage turned and observed defendant walking toward her from the driveway. Defendant had a gun pointed at them. Cartage stepped down, put her arms out and said "no." When Cartage said "no, " defendant pulled the trigger. Cartage observed the flash of the gun, heard the gunshot, felt a burning sensation in her stomach and fell. She realized she had been shot when she looked down and observed blood. Then defendant shot Newsome, walked away, and drove off in his 1999 goldish-brown Malibu.

         ¶ 10 Cartage testified that an ambulance transported her to Christ Hospital, where she underwent surgery. Later on the same day, Cartage realized she had two voicemails from defendant. Cartage had not listened to these messages before being shot. At trial, Cartage identified defendant's voice on one of the voicemails, which was admitted in evidence and played in court before the jury.[2] In the voicemail, defendant sounds angry that Newsome's voice is on Cartage's voicemail, and he states, "you're going to play me like that." On the voicemail, defendant calls Cartage names and threatens her. He says he is on the run from the police, but he is going to find her first. He ended the message by stating, "one of you all dying tonight."

         ¶ 11 Cartage testified that she received a phone call from defendant on September 11, 2011. The call was recorded and also admitted into evidence and played for the jury.[3] In the call, Cartage tells defendant she still loves him but begs him repeatedly to tell her why he shot her and why he shot Johnson. Defendant replies, "man, I don't even know." In the call, Cartage asks defendant what Johnson did to cause him to shoot her. He does not reply. During the call, defendant attempts to persuade Cartage to not testify against him. She replies that defendant shot her and she loves him, but she is going to testify. On cross-examination, Cartage testified that at some point defendant told her that he was drugged during the shootings.

         ¶ 12 Michael Narish, a crime scene investigator for the Illinois State Police, testified that he processed the crime scene of the Johnson shooting on August 26, 2011. The crime scene was located on the east side of Cicero Avenue, just north of 154th Street in a parking lot. He received a call asking him to come to the scene at 2:30 a.m., and he arrived at 3:20 a.m. Upon his arrival, he was informed that the Oak Forest police had arrived to find a woman shot two times, and the paramedics transported her to Christ Hospital. At the crime scene, he observed a purse with the contents spilled out; a flip-flop shoe; a red, blood-like substance on the pavement; and two 9-millimeter Luger shell casings.

         ¶ 13 Sean Grosvenor, another Illinois State Police crime scene investigator, testified that he processed the crime scene of the Cartage shooting on South Honore Avenue in Markham on August 26, 2011. Grosvenor arrived at 6:35 a.m. and took a sample from a blood-like stain on the walkway leading up to the main entrance of the house in front of which the crime scene was located. He found a 9-millimeter Luger casing on the roof of the passenger's side of a red Nissan Sentra and a hole in the gutter on the east side of the entrance to the building. Grosvenor recovered a bullet from inside that gutter.

         ¶ 14 Oak Forest Police Investigator Casey Gallagher testified that on August 26, 2011, at 1:35 a.m. he received a call notifying him of a woman lying in the roadway in the South 15400 block of Cicero Avenue. He arrived to find a female victim, who was identified as Johnson, with an apparent gunshot wound to the abdomen. Johnson was breathing, conscious, and appeared to be in a lot of pain. She was moaning and having trouble communicating. Gallagher called for a paramedic unit. He asked Johnson what happened, and she replied "Terrell shot me." He asked, "who is Terrell?" and all the victim could say was "boyfriend." He asked her more questions, but she did not respond. Johnson's purse was in the parking lot, and her Illinois identification card was lying near the purse. There was a phone partially in the opened purse.

         ¶ 15 Oak Forest Detective Robert Frias arrived at the 15400 block of South Cicero Avenue between 1:30 a.m. and 1:50 a.m. Other police and emergency personnel were on the scene and Johnson was in an ambulance. Frias entered the ambulance and attempted to speak to Johnson, who was being treated by paramedics while lying on her back on a stretcher and wearing an oxygen mask. Frias asked Johnson who shot her, and she said "Terrell." He asked for other information about Terrell, but she only responded by saying "Terrell." After Johnson stopped responding, she was taken to Christ Hospital. Frias followed the ambulance to the hospital, where he spoke to members of Johnson's family. After speaking to Johnson's family members, Frias determined that defendant was a suspect. An investigative alert was established for a 1999 gold or tan Chevy Malibu with a certain license plate number. The parties stipulated that, as of August 26, 2011, defendant was the registered owner of a gold or tan 1999 Chevy Malibu with that certain license plate number.

         ¶ 16 Frias testified that he became aware at 12:45 p.m. on August 26, 2011, that defendant's vehicle was located in Lansing, Illinois, at a Howard Johnson motel. Frias and other investigators went to the Howard Johnson motel and arrested defendant in the lobby. Inside of defendant's vehicle, Frias found a black metal 9-millimeter Interarms brand semiautomatic handgun. The handgun had one round in the chamber and three in the magazine. Officers searched defendant's motel room but recovered nothing of evidentiary value.

         ¶ 17 Jeffrey Parise, a firearms examiner for the Illinois State Police forensic science laboratory, tested the recovered ballistic evidence. Parise obtained the two fired Luger cartridge casings from the scene of the Johnson shooting, the fired bullet and fired Luger cartridge case from the Cartage shooting scene, and the firearm recovered from defendant's vehicle. Parise opined that all of the fired evidence came from the firearm found in defendant's vehicle.

         ¶ 18 Dr. Adrienne Segovia performed the autopsy on Johnson. The parties stipulated at trial that Johnson was 28 years old, 5 feet 4 inches tall, and weighed 197 lbs. She suffered two gunshot wounds. One wound to the left side of her back, 15.5 inches from the top of the head, and 5 inches to the left of the posterior midline. The second wound was located on the top left side of the back, 16.5 inches beneath the top of her head and 2.2 inches to the left of her posterior midline. The wounds extended to the left side of her chest beneath the breast, the bullet having passed through the left fifth intercostal space, and another gunshot exit wound on the left side of her abdomen. The State rested after presenting this evidence.

         ¶ 19 Defendant testified on his own behalf that, in August 2011, he lived on the south side of Chicago with his mother and was attending Olive Harvey College. About a month and a half earlier, he had met Johnson and they had developed a sexual relationship. On August 25, 2011, Johnson called him and said she wanted to have some fun. He picked her up around 5 p.m., and they went to a liquor store, and then to the house of defendant's friend, Carmichael Upshaw, who lived at 78th Street and Essex Avenue in Chicago. Johnson was using defendant's phone to call people. Defendant and Johnson were drinking alcohol and smoking marijuana, when Johnson said she wanted some "X" ("ecstasy"). Upshaw said he would obtain it if they gave him $50. Upshaw called a friend, and Johnson purchased the ecstasy from him. Defendant gave Johnson the money to purchase the ecstasy; but he never observed Johnson in possession of the ecstasy that night, and he never observed the ecstasy itself; but he knew Johnson had received it.

         ¶ 20 Defendant testified that he and Johnson next drove around and purchased more liquor. They then went to the Terrace Hotel in Oak Forest and obtained a room. At the hotel, they "started drinking and having a good time." They had purchased a fifth of Remy 1738, all of which they proceeded to drink and they became intoxicated. At the hotel, Johnson said she had to make a phone call. Because her phone did not have any more minutes, she used defendant's phone to call her mother. Defendant recalled speaking to Johnson's mother but could not remember what he said. At the hotel, defendant and Johnson engaged in oral sex.

         ¶ 21 Defendant testified that, about 15 minutes after engaging in oral sex, he went to the bathroom. When he came out of the bathroom, Johnson asked him why he had pictures of a girl on his phone. She was referring to pictures of Cartage, whom defendant described as his ex-girlfriend. Defendant had risqué pictures of Cartage on his phone. After osberving the pictures, Johnson was upset and "flipped out, " which led to a physical altercation between the two of them. Defendant testified that they were "tussling with each other"; "she was swinging on me, I was blocking like-I'm one-forty, she's like one-ten. So she was swing [sic] on me and I was blocking her and pinning her down most of the time, just laughing."

         ¶ 22 Defendant testified that, about 15 minutes later, he told her there was "something wrong, I'm sweating real bad, there is something wrong." As he described it, "my heart started beating real fast. It wasn't a feeling from drinking and weed, from marijuana." Defendant told Johnson to call an ambulance. In response, Johnson told him he was "being a p***, she only gave me three or four of 'em, " by which he assumed she meant three or four of the pills. He was still panicking, and he hit her in the body, not the face. She swung back, but the fight did not last long. He could not breathe and they stepped outside for air. They walked to defendant's vehicle, and defendant asked Johnson to drive him to the hospital. She told him "no, you need to lighten up." He was asking her "why would you give me this stuff." She grabbed her cell phone and started calling people, saying she was going to get them to "F" defendant up. She called at least three or four numbers. At this point, they were in defendant's vehicle and he felt as though he had been drugged.

         ¶ 23 Defendant testified that after making the calls, Johnson exited the vehicle and defendant followed. They were still arguing and pushing each other. Defendant carried a gun as a means of protection from "the streets." He testified that he never had a plan of using the gun on Johnson but only planned to have sex with her. Defendant testified that "the fight [was] escalating, and the next thing you know, I shot her." Defendant shot Johnson approximately 10 minutes after they exited his vehicle.

         ¶ 24 Defendant testified that he next went back to his vehicle and left. As he testified, "I didn't know what was going on. I have only known her for forty-five days, why would I-I didn't know what was going on." Defendant called Cartage. He described Cartage as not only his ex-girlfriend, but also his best friend, so he needed to talk to her. He left her a message. Defendant testified that there were "plenty of" calls, but that the State played only one of them at trial (the voicemail discussed above). When he called Cartage, he heard a man's voice on the phone, and that "really threw me over the top, and from then on, I just, I just snapped." He went to Cartage's house but testified that he had no idea what he was going to do when he arrived. When he arrived, he observed Cartage and Newsome outside. He walked up to them and shot Cartage in the leg. He then entered his vehicle and drove around. He did not remember all the things that happened in detail. He testified that he did not want to kill Cartage. He testified that he did not know where he was going when he was driving around:

"Basically is, -I knew I was drugged, I know this for a fact. From one o'clock to four o'clock, two women getting shot, it is not me, it is really not. I mean, she probably painted murderous intentions, but no, that is not me. I love [Cartage], and I loved [Johnson]. I didn't even, you know, I planned-I went to the hotel to have a good time, not to shoot anybody. Two hours later I would never believe it, two hours later I would have shot somebody."

         ¶ 25 On cross-examination, defendant testified that he had his gun in the hotel room, but he changed his testimony and clarified that he did not bring his gun to the hotel room, but first grabbed it when he and Johnson were in his vehicle arguing, before they exited his vehicle and before he shot Johnson. He clarified that he shot Cartage at Newsome's house, not at Cartage's house. He admitted that he sent Cartage a message before coming to Newsome's house in which he called her "the dumbest b*** [he] ever met." Defendant testified that he spoke to police officers at some point about what happened, but not to the Oak Forest police department the day after he was arrested. He testified that he never told the police that he was with a person named Rebee.[4] He did not know who Rebee was. He never told detectives that he was drinking 1800 Cuervo. He never told detectives that he dropped Johnson off at 173rd Street and Christopher. He did not tell the police that he went to the city to meet a person named Stevie. He did not tell the police that he went to 63rd Street and Merrill. He never told police that a girl named China cooked for him. Defendant further testified that he did not explain his actions on August 26, 2011, to Cartage during the September 11, 2011 call because his lawyer had told him not to talk about it.

         ¶ 26 On redirect examination, defendant's trial counsel asked defendant if he had given his license plate number, his name, and his identification card at both hotels he checked into on the night of August 25 and the early morning of August 26, 2011. After asking these questions, defendant's trial counsel requested a sidebar and the jury was excused. At the sidebar, defendant's trial counsel explained that, while defendant had shown his own identification card to the hotel clerk, he had used a credit card that was linked to another person's account, although it had defendant's name on it. Defendant's trial counsel expressed concern that defendant's fraudulent credit card use was suggestive of other crimes, such as identity theft, and that the State would try to impeach him with such other crimes evidence.

         ¶ 27 At the sidebar, the State explained that defendant had signed the name of a different person, Joseph Jackson, at the Terrace Hotel. When questioned by the hotel clerk about his signature, defendant said his name was Joseph Jackson. The State explained that there was a video of the transaction showing these things. Although the State did not bring up the subject of defendant's use of false credit card and identification information on cross-examination, the State argued at sidebar that defendant's trial counsel ...

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