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People v. Garner

Court of Appeals of Illinois, Second District

March 24, 2017

JEROME GARNER, Defendant-Appellant.

         Appeal from the Circuit Court of Stephenson County, No. 14-CF-216; the Hon. Michael P. Bald, Judge, presiding.

          Thomas A. Lilien, Patricia Mysza, and Robert N. Markfield, of State Appellate Defender's Office, of Elgin, for appellant.

          Carl H. Larson, State's Attorney, of Freeport (Lawrence M. Bauer and Ivan O. Taylor, Jr., of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Burke and Spence concurred in the judgment and opinion.



         ¶ 1 After a jury trial, defendant, Jerome Garner, was convicted of domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2014)). He was acquitted of aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2014)) and unlawfully interfering with the reporting of domestic violence (720 ILCS 5/12-3.5(a) (West 2014)). The trial court denied defendant's posttrial motion and sentenced him to 30 months' imprisonment. On appeal, he contends that the court erred in allowing the State to impeach him with his conviction of a felony cannabis offense. We affirm.

         ¶ 2 The State alleged that defendant committed (1) domestic battery in that, on or about August 3, 2014, he knowingly caused harm to Katie K. by choking her with his hands, and he had previously been convicted of domestic battery; (2) aggravated domestic battery in that, in addition to the foregoing, he applied pressure to Katie's throat and neck area, impeding her normal blood circulation or breathing; and (3) interference with the reporting of domestic violence in that he knowingly prevented Katie from calling the police by taking away her cell phone.

         ¶ 3 Before trial, defendant moved to bar the State from impeaching him with evidence of his prior convictions of (1) domestic battery and (2) a felony involving cannabis.[1] At a hearing on the motion, the State argued in part that the cannabis conviction should be admitted because the charge was dissimilar to the ones on which defendant was now being tried and it had impeachment value as "a crime against society." The judge barred the domestic battery conviction but allowed the cannabis conviction. He stated that, under the balancing test of People v. Montgomery, 47 Ill.2d 510 (1971), and People v. Williams, 161 Ill.2d 1 (1994), the cannabis conviction's probative value as impeachment outweighed its potential for undue prejudice but the domestic battery conviction was too prejudicial. He did not elaborate or cite any case authority other than the general reference to Montgomery and Williams.[2]

         ¶ 4 At trial, the State's first witness was Nichole Mashaw. On direct examination, she testified as follows. At about 2:30 a.m. on August 3, 2014, she was standing in front of her house at 601 North Brewster in Freeport. A car pulled up down the street. An African-American man approached the car and went around to the driver's side. A white woman got out of the car. The man "proceeded to take her by the throat, or whatever, and drag her to like the house, or whatever, and she was screaming." Mashaw entered her house to call the police.

         ¶ 5 Mashaw testified on cross-examination as follows. The woman was the only person inside the car, as far as Mashaw could see. The encounter took place about 30 to 40 yards away on the same side of the street. Mashaw testified inconsistently as to which side of the car the woman exited from and on which side the man approached her. On redirect examination, Mashaw testified that the woman exited the vehicle by herself and was then dragged toward the house.

         ¶ 6 Katie testified on direct examination as follows. On August 3, 2014, she had been dating defendant for almost a year. She lived at Yellow Creek Court; he lived on Brewster. On August 3, 2014, she dropped him off on Brewster and went to a convenience store. She saw defendant's cousin Ontario McClain and McClain's friend. McClain asked her for a ride home, so Katie let him and his friend into the car. Defendant then called and told Katie that he had her license. She told him that she would be back to get it, and she added that she had McClain in the car. Defendant told her that she "better not have nobody in [her] f'ing car." She responded that McClain was defendant's cousin and needed a ride home. She drove back to Brewster.

         ¶ 7 Katie testified that, when she pulled up, defendant got upset again and told her that she "shouldn't have had nobody fucking [sic] in that car." Defendant then pulled open the driver's door and saw that Katie was holding her cell phone and "already had the cops [sic] number because [she] was ready to call them." Defendant took the phone and removed the keys from the ignition. By then, Katie had exited the car and was asking defendant to return the phone and the keys so that she could go. Defendant was angry. Katie started to walk backward toward a house, where she could see that defendant's cousin Tremana Davis had turned on the lights. (Defendant resided next door.) As Katie tried to get to the house, defendant reached out and placed his hands completely around her neck. She tried to pull them away but could not. She briefly had trouble breathing but did not gasp for air. She was screaming, and the choking caused her pain. They ended up inside the house.

         ¶ 8 Katie testified that Davis told defendant to let Katie go. Defendant finally did, and Davis kept her and defendant separated. Katie pleaded with defendant to give her the keys and the phone. He made her promise not to call the police and then gave her the keys and the phone. Katie drove away, dropped off McClain, and called the police. Later that day, officers came to her apartment and photographed her injuries. Katie identified five photographs, which were published to the jury. Katie testified that her neck was "completely red" from the left side around the front to the right side and that she had some marks on the right side that "almost looked like scratches." She did not go to the hospital.

         ¶ 9 Katie testified on cross-examination as follows. As she pulled up, defendant came to the driver's side, opened the door, shut the car off, and took the keys. McClain jumped out of the car when he saw defendant come after Katie. Katie was holding her phone; defendant took it. Katie exited the car and asked him to return the phone and the keys so that she could leave. Defendant had the phone and the keys in his hand the whole time. There were no steps up to the front door of the house. When Davis opened the door, defendant was still choking her.

         ¶ 10 Katie testified that defendant did not drag her toward the house; she backpedaled toward it. Earlier that evening, she had had "a couple drinks, " but they had not affected her memory. On redirect, Katie testified that she did not know what had been "going on with the phone and the keys" ...

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