Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County, Illinois. No. 10 CR
17444(02) Honorable Stanley J. Sacks, Judge Presiding.
JUSTICE MASON delivered the judgment of the court, with
opinion. Presiding Justice Hyman and Justice Neville
concurred in the judgment and opinion.
1 Following a 2013 jury trial, defendant Antonio Jones was
convicted of three counts of attempted murder and three
counts of aggravated battery with a firearm, for which he was
sentenced to three concurrent terms of 23 years'
imprisonment. On appeal, he argues that (1) the trial court
erred in barring argument and testimony regarding the defense
of justified use of force, (2) trial counsel was ineffective
for failing to request jury instructions on affirmative
defenses and a lesser-included offense, (3) the State's
comments during opening and closing argument were inaccurate
and prejudicial, (4) the trial court failed to comply with
Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), and
(5) the trial court failed to consider mitigating evidence in
sentencing. For the reasons that follow, we reverse and
remand for a new trial.
3 In the early morning hours of September 1, 2010, Chicago
police officers Glen Evans, James Gochee, and Michael St.
Clair were injured while attempting to gain entrance to 7701
South Hoyne Street to execute a search warrant naming Demario
Thomas as the subject. Defendant Antonio Jones and
codefendant Thomas were indicted on multiple counts of
attempted murder, aggravated battery with a firearm,
attempted murder of a peace officer, aggravated battery with
a firearm of a peace officer, and possession of a controlled
substance with intent to deliver. Jones was tried on a theory
of accountability for the violent crimes.
4 In his answer to the State's discovery, Jones indicated
that he might assert affirmative defenses of self-defense,
defense of others, and defense of property. As support for
these theories, Jones planned to introduce evidence that he
had previously been the victim of a shooting in his residence
in March 2010; however, the State moved in limine to
bar defense counsel from referencing that incident in opening
statements. The court granted the State's motion, telling
counsel: "Don't make it in your opening statement,
leave it out. We will talk about it later if necessary. You
can always say self-defense. The only question is if someone
else does the shooting, I'm not sure he can claim
self-defense necessarily. *** Make a generic opening
statement, leave out the self-defense aspect of it."
5 Jones and Thomas were tried simultaneously with separate
juries. During Jones's jury selection, the court queried
the panel as to their understanding of the four principles
outlined in Illinois Supreme Court Rule 431(b) (eff. July 1,
2012), but instead of asking whether any of the venire did
not understand and accept the principles, the court,
three times out of four, asked the venire whether they
did "understand and accept that
instruction." No members of the venire raised their
hands or otherwise responded, which Jones argues on appeal
indicates that no member of the venire understood or
accepted those principles. Nor did panel members respond or
raise their hands, when, the fourth time, the Court asked
whether they did not accept and understand the principle.
6 The State began its opening statement by characterizing
Jones as a "criminal" and went on to refer to Jones
as a criminal no less than four times. At the second
reference, the following colloquy ensued:
"LISA LONGO [Assistant State's Attorney]: *** [The
police] learned that behind that door were two cold-blooded
criminals who had reasons to keep those police out.
FRANK TEDESSO [Defense counsel]: I will object to the State
continually referring to these defendants as criminals.
THE COURT: Disregard it-I'm ruling on your objection, Mr.
Tedesso. Disregard the comment about cold, hard criminals,
please. Go ahead." Nevertheless, the State continued to
refer to Jones as a criminal during the remainder of its
7 The State's evidence at trial revealed that on the
night of September 1, 2010, a team of 14 to 16 police
officers was executing a search warrant at 7701 South Hoyne
Avenue in Chicago. The officers parked a short distance away
from the home in marked and unmarked cars. While most
officers were in plainclothes, they all wore raid vests
emblazoned with "Chicago Police Department." The
officers approached the back of the home in a single file
line, with Officer James Gochee leading the group. Officer
Gochee breached the back fence with a battering ram, and the
officers then walked approximately 30 feet to the back door.
At least three of the officers yelled "Chicago police,
search warrant" as they stood outside the door. Officer
Gochee banged on the door three times with a battering ram
when a gunshot rang out and the glass security door exploded
outwards. Officer Gochee, as well as Lieutenant Glen Evans
and Officer Michael St. Clair were injured.
8 The remaining officers retreated and surrounded the
perimeter. The officers eventually made phone contact with
one of the occupants of the house and instructed those inside
to exit. When the occupants complied, the officers took them
into custody and commenced a search of the house, during
which they recovered weapons, including an "SKS assault
rifle, " as well as heroin and marijuana.
9 Inside the house were Jones, Thomas, Paris Banks
(Jones's cousin), Leslie Kitchen (Jones's girlfriend
at the time), and Jones's grandparents, who owned the
house. Both Kitchen and Banks testified to the events of that
night, although their trial testimony differed from their
statements to police taken immediately following the shooting
and their testimony before the grand jury.
10 In pretrial statements, Kitchen and Banks stated that on
the night of August 31, 2010, they were in the back room of
the residence with Jones and Thomas watching TV and smoking
marijuana. At some point during the evening, Banks brought a
gun into the room; according to Banks, he did this at
Jones's direction. Around midnight, there was a
"boom" at the back door, and it sounded to Kitchen
like someone was breaking into the back gate. Kitchen went to
the kitchen and looked out of the window, ...