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People v. Boston

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2017

SYLVESTER BOSTON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 06 C6 60650 Honorable Charles P. Burns, Judge Presiding.

          REYES JUSTICE delivered the judgment of the court, with opinion, Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.



         ¶ 1 Following a jury trial, defendant Sylvester Boston was convicted of first degree murder in connection with the fatal stabbing of Steven Moore, Sr. (Moore) and sentenced to 50 years' imprisonment. On appeal, defendant contends (1) the admission of preliminary hearing testimony of a key eyewitness violated the confrontation clause[1] and the Illinois Rules of Evidence, (2) the trial court erred in allowing the State to introduce defendant's prior conviction for possession of contraband in a penal institution, (3) the State's improper comments on defendant's postarrest silence warrant a new trial, (4) defendant was denied his right to a properly instructed jury where the court failed to clarify Illinois law on self-defense in response to a jury note, (5) defendant's right to a unanimous jury verdict was violated where a juror expressly dissented during the polling of the jury, and (6) defendant's trial counsel was ineffective for failing to preserve certain issues for appellate review. For the reasons discussed below, we affirm the judgment of the circuit court in its entirety.

         ¶ 2 BACKGROUND

         ¶ 3 Pretrial Matters

         ¶ 4 During a preliminary hearing on June 29, 2006, the State called Grace Sharp, Moore's mother, who testified as follows. On June 24, 2006, she was in her residence on the 14500 block of University Avenue in Dolton with defendant and Moore. Defendant was a friend of Steven Moore, Jr. (Steven), Sharp's grandson and Moore's son. Sharp had known defendant since he was a teenager. Defendant had asked to stay with Sharp for a "couple of days" prior to commencing Job Corps. He stayed in an upstairs bedroom in her raised ranch, and 51-year-old Moore lived in the basement.

         ¶ 5 On the day of the incident, Sharp did not hear any "words of conflict" between Moore and defendant. According to Sharp, "[t]hey were just talking about the job corp [sic] and things like that." In the early evening hours, she heard a "ruffling, scuffling noise" coming from the basement "as if kids were wrestling or playing or something." As she headed downstairs toward the basement to direct them to "stop the noise, " she heard her son say, "Ma, call the police, call the police." Moore was calling to her but was not screaming.

         ¶ 6 Sharp initially did not contact the police. She instead went downstairs, where she observed defendant on top of Moore, stabbing him. She pulled defendant by the neck of his shirt but was unable to "pull him off." After defendant made eye contact with Sharp, he continued stabbing Moore. Sharp attempted to strike him with a plastic milk crate. Defendant, however, knocked the crate out of her hand and continued stabbing Moore. She then went upstairs and dialed 911.

         ¶ 7 On cross-examination, Sharp testified that she was not aware that either Moore or defendant had consumed alcohol. She indicated that her son had previously used drugs but "didn't anymore." She did not notice any weapon near Moore, testifying, "I wasn't looking around. I was getting [defendant] off of my son." According to Sharp, defendant had reflexively swung at her to "get away or whatever, " but she did not recall seeing a knife in his hand. She was scratched but was not cut. Sharp testified that defendant did not attempt to prevent her from returning upstairs.

         ¶ 8 After Sharp's testimony, the State called Detective Crudup from the Dolton police department, who had attended Moore's autopsy. Following the preliminary hearing, defendant was charged by information with two counts of first degree murder.

         ¶ 9 In September 2013, defendant filed a motion in limine to bar the admission of the preliminary hearing testimony of Sharp, who died in 2008. Defendant argued that he would be deprived of his right to confront his accuser because "there was no meaningful cross-examination" of Sharp. Defendant also filed a motion in limine to introduce evidence of Moore's violent nature, including his guilty pleas to charges of domestic battery and resisting a police officer. After a hearing, the circuit court denied the motion to bar Sharp's preliminary hearing testimony but permitted the defense to present certified copies of Moore's convictions.

         ¶ 10 The State filed a motion in limine seeking, among other things, to introduce evidence regarding defendant's criminal history for impeachment purposes, i.e., his conviction for possession of contraband in a penal institution.[2] After conducting a balancing test, the trial court concluded that "the probative value does, in fact, outweigh any prejudicial effect." The trial court indicated its willingness to give a "limiting instruction immediately upon the introduction of the certified copy of conviction or if [defendant] is going to front it first if he testifies."

         ¶ 11 Trial Testimony

         ¶ 12 Steven testified that his childhood home was on University Avenue in Dolton, where he had lived with his brother, Sharp, and Moore. In June 2006, 22-year-old Steven attended school in DeKalb. When he periodically returned to Dolton, he would stay at the University Avenue residence. According to Steven, Moore stayed in the basement.

         ¶ 13 Steven had known defendant since junior high school, and defendant spent significant amounts of time at Steven's home during their teenage years. At one point, Steven and defendant had a dance group, and they frequently practiced in Steven's basement. Steven characterized defendant's interactions with Moore as "[r]espectful, " and he never observed any physical or verbal altercation between the two.

         ¶ 14 On the weekend of June 17, 2006, Steven had returned to Dolton and observed defendant walking. Steven exited his vehicle and conversed with defendant. According to Steven, defendant "seemed as if he was having some issues." Steven suggested that defendant stay with Sharp and Moore for a couple of days to "clear his head and figure out his next move." The following weekend, Steven hosted a barbecue in DeKalb, where his father and defendant were expected but ultimately did not arrive. After receiving a telephone call from Sharp, who sounded "[v]ery frightened, " Steven rushed to Dolton, where he discovered police at Sharp's residence.

         ¶ 15 Steven testified that Moore had been using drugs, up to the time of his death. He described his father's demeanor after drug use as "[t]ypically relaxed" and "[c]alm" and never violent. Prior to the weekend of June 17, 2006, Steven had not seen defendant in two or three years. When asked whether defendant had maintained contact with Sharp and Moore, Steven responded, "Not to my knowledge." On cross-examination, Steven confirmed that defendant had a good relationship with Sharp and called her "Granny." During Steven's time in high school, his father would sporadically stay at the University Avenue residence. Steven testified that he did not know what type of drugs his father used.

         ¶ 16 Officer Steven Curry of the Dolton police department testified that he was on duty with his partner, Officer Timothy McPherson, on the evening of June 24, 2006.[3] Curry was in plain clothes but was wearing body armor with his star. After receiving a call regarding a stabbing, Curry and McPherson drove to the house on the 14500 block of University Avenue. The partners exited their vehicle and walked to an open door on the side of the residence. Upon arriving at the door, Curry observed an elderly woman standing on a landing with stairs leading up to the kitchen and down to the basement. The woman did not speak to Curry.

         ¶ 17 The officers entered the home and heard "some commotion downstairs." Curry walked in front of McPherson down the stairs. As he reached the bottom of the stairs, Curry observed an "entranceway to the basement but it was covered by a curtain or some kind of partition they had up against it or covering it." Curry testified, "We stopped and we start listening and it sounded like to me somebody was getting stabbed." He described the sound as "a squishing, a repeatedly [sic] like a chi, chi, chi, chi." Curry did not hear anyone speaking. He drew his weapon and instructed McPherson to pull back the curtain.

         ¶ 18 Curry then observed defendant straddled over Moore. Moore was laying on his back and was not moving. Although defendant looked at Curry, he did not speak to the officers. Curry raised his firearm, and defendant "immediately jumped up and ran around an area of the basement where [Curry] couldn't see." Curry testified that "at that point, I told McPherson let's go back upstairs and call him out and that's what we did." Curry and McPherson walked upstairs, returning to "the doorway, halfway in the door, halfway out in the driveway." Another police officer who had arrived, Officer Bankhead, walked downstairs with his firearm drawn. Curry then viewed defendant, who he identified in court.

         ¶ 19 Bankhead walked up the stairs backwards, with his firearm pointed at defendant. According to Curry, Bankhead "guided" defendant and "told him to come on." Defendant's hands were covered in blood. When Bankhead was able to move out of the way, Curry and McPherson grabbed defendant; Curry opined that defendant "looked like he might run or something." Defendant "fell down inside of the house, " and the officers dragged him outside. After defendant "tussled" with the officers "a little bit, " they subdued and handcuffed him. Curry testified that he noticed a knife on the ground in the driveway "[r]ight there" where defendant was placed under arrest. Curry also testified regarding various photographs, including one depicting defendant's sole injury: a cut on his right arm.

         ¶ 20 On cross-examination, Curry could not recall the number of stabs he heard. When he pulled back the curtain at the bottom of the stairs, Curry neither noticed a weapon in defendant's hand nor directed him to drop any weapon. He also testified that Sharp had a portable oxygen tank but otherwise appeared uninjured.

         ¶ 21 Dr. Mitra Kalelkar, a retired medical examiner qualified as an expert in forensic pathology, testified that Moore was dead on arrival at the hospital. While performing his autopsy, Kalelkar observed that most of Moore's injuries were "incised wounds, " i.e., "a superficial slashing, cutting type of wound that is inflicted with a sharp instrument, such as a knife or a razor blade." She also observed a single stab wound to his chest, on his back, that fatally perforated his right lung and his heart. Moore's other injuries included blunt trauma to his forehead, multiple wounds in and around his eyes and eyelids, human bite marks, and a suction hematoma, i.e., "somebody sucking the skin." Kalelkar characterized certain injuries as possible defensive injuries that Moore may have sustained while attempting to ward off blows.

         ¶ 22 The assistant State's Attorney (ASA) tendered to Kalelkar certain knives recovered from the crime scene. Kalelkar testified that specific knives could have caused particular wounds on Moore's body. She opined that Moore died as a result of the stab wound to his chest and multiple incised wounds and that the manner of death was homicide. A toxicology examination revealed that Moore's blood tested positive for cocaine and "very little" morphine. On cross-examination, Kalelkar testified that cocaine is an "intoxicating compound, " and the presence of metabolized cocaine in Moore's system indicated that "he had been taking cocaine for awhile." She also confirmed that it was possible that certain injuries sustained by Moore could have resulted from "getting scratched by a butter knife" while wrestling with another individual. Kalelkar acknowledged that she did not definitively know which knife caused Moore's injuries, although one of the knives shown to her was consistent with his deep stab wound.

         ¶ 23 A sergeant from the Illinois State Police (ISP) who processed the crime scene testified, in part, regarding the recovery of three knives from the basement and one knife from the driveway. He confirmed that there appeared to be a "struggle" as there was a blood-like substance "on a lot of different places down in the basement."

         ¶ 24 Two ISP forensic scientists testified regarding the testing of various stains from the knives, the floor, and defendant's clothing using Moore's blood and defendant's buccal sample. Jaime Bartolotta, one of the scientists, testified that he was unable to make comparisons with respect to stains on one of the knives. For a second knife, Moore could not be excluded from the partial human male DNA profile found on the knife blade, whereas defendant could not be excluded from the human male DNA profile found on the handle of the knife. Neither Moore nor defendant could be excluded from the mixture of DNA profiles found on the remaining two knives; Moore was identified as likely the "major profile, " or more significant contributor, with respect to one of those knives.

         ¶ 25 When the bloodstains from defendant's clothing were tested, Bartolotta found a "mixture of two people." The major profile matched Moore. Bartolotta further testified that Moore's profile matched swabs taken from three out of four locations in the residence. Defendant's DNA did not match any of the swabs taken from the residence, although he could not be excluded from one minor type of one of the swabs.[4]

         ¶ 26 Officer Anthony Bankhead testified that he was in uniform on June 24, 2006, when he responded to a call. After speaking with McPherson and Curry, he entered the house and walked down the stairs to the basement. He observed defendant-who he identified in court-and ordered him to put his hands up. Defendant complied and walked toward Bankhead. Backing up the stairs, Bankhead walked defendant up the stairs to the doorway. Bankhead testified that defendant "had blood on him" and "it looked like it was blood on his hands dripping."

         ¶ 27 At the landing, Bankhead stepped out of the house and encouraged defendant to "come further out the door." According to Bankhead, defendant fell on the landing and "McPherson and Curry grabbed him by his hand and brought him out of the house and eventually cuffed him." Bankhead recalled that it "wasn't easy to cuff" defendant. Bankhead testified that there was no blood on the landing, stairs, or driveway when he first entered the residence.

         ¶ 28 The State's next witness was the ASA who had conducted the preliminary hearing. She testified that a preliminary hearing was conducted five days after Moore's death because "it was the practice" to preserve the testimony of elderly or ill witnesses through a preliminary hearing. Sharp's testimony from the preliminary hearing was published to the jury. On cross-examination during the trial, defense counsel asked, "So it's fair to say that much discovery or anything that could have been developed from any investigation for you to decide hadn't been developed yet, is that correct?' The ASA responded, "I don't know what reports were prepared within the five days." A certified death certificate for Sharp was admitted into evidence. At the conclusion of the State's case-in-chief, the trial court denied defendant's motion for a directed verdict.

         ¶ 29 Defendant testified that he did not complete 11th grade due to the death of his mother. He instead went to barber college and was working as a barber in June 2006. He considered Sharp- who he called "Granny"-to be "like a second mother." Defendant periodically helped Sharp with chores; he testified she moved slowly because she was on an oxygen machine.

         ¶ 30 On June 23, 2006, defendant went to Sharp's residence. He was leaving for Job Corps in early July and wished to spend time with her and help around the house. He stayed over at her house in an upstairs guest room on the night of June 23. Moore-the father of defendant's friend Steven-and Sharp's grandson Nicholas were also in the home. Defendant testified that he had never "really talk[ed] to" Moore and "didn't know him personally."

         ¶ 31 Defendant was awaken on the morning of June 24, 2006, by the noise Moore was making when he was "fumbling" and "messing with" his bags. Defendant's bags contained clothing and his professional clippers. Defendant told Sharp what had transpired earlier and then proceeded to prepare breakfast for her. While he was cooking, Moore came upstairs behind defendant. Defendant testified, "He told me you going to do what I want to you do [sic], you're going to give me what I want[.]" Defendant characterized Moore's tone as "mildly aggressive, " and defendant "shielded" himself after Moore's remarks.

         ¶ 32 Sharp then asked defendant to inspect her vehicle and check the fluids. While defendant worked on the vehicle, Moore instructed defendant to move, pushed him and stated, "I don't need you to do anything." Defendant testified that he felt "kind of shocked" and "rejected." After defendant again spoke with Sharp, she and Moore "got into an altercation" regarding the vehicle keys. According to defendant, Moore took the keys from his mother's hands and "told her to give it to him."

         ¶ 33 Defendant also observed Moore shoving Sharp. As defendant picked up the telephone to dial 911, Moore "snatched" the telephone and took it downstairs into the basement. Defendant decided to "leave out so to let the tension calm down rather than to get into what was going on with [Moore] and [Sharp]." Defendant went to the basement to retrieve clothes from the washing machine.

         ¶ 34 As defendant gathered his clothes, Moore ran upstairs to the kitchen. Upon returning to the basement, Moore swung a knife at defendant. Defendant raised his hands to "shield it and block it." A photograph of a stab wound on defendant's right arm under his lower wrist was published to the jury, and defendant displayed the mark on his wrist to the jury. Defendant testified that the two then "got into a tussle."

         ¶ 35 Defendant testified that he cut his own hand as he grabbed the knife from Moore's hand. According to defendant, after he took one knife, Moore pulled out another knife. Defendant did not know from where Moore retrieved the second knife. Defendant grabbed the second knife from Moore. While defendant held him down and the two struggled, Moore grabbed defendant in his groin area. Defendant described his pain as "excruciating." Defendant bit Moore two or three times to force him to release the pressure on defendant's testicles.

         ¶ 36 Defendant testified that Moore kept aggressively "charging" at him. Moore had a third knife, which defendant again wrestled away from him. Defendant then used the knife to "protect" and "defend" himself. Defendant was unable to stop Moore from coming at him. According to defendant, Moore continued to hold a knife.

         ¶ 37 Sharp came downstairs and stated "stop it" and "break it up." Defendant testified that Moore continued to come after him, attempting to "hit" defendant with the knife. According to defendant, Moore did not acknowledge his mother's presence. Defendant noticed that Sharp returned upstairs. He testified that when the police officers arrived, he complied with their direction to "come up with your hands up." Defendant further testified that he was trying to defend himself, he feared for his life, and he did not intend to kill Moore.

         ¶ 38 On cross-examination, defendant testified that although he had spent a significant amount of time at Sharp's residence during his years of friendship with her grandson, he had only "seen" Moore "once." Before his stay on June 23 and 24, 2006, he had not been to Sharp's home for approximately 1½ to 2 years and had "seen" Steven once "a couple months ago." Defendant denied speaking with Moore about Job Corps on June 24, 2006. At the time of the stabbing, defendant was 21 years old.

         ¶ 39 Defendant testified that although his confrontation with Moore regarding the vehicle occurred between 10:00 a.m. and noon, defendant did not leave at that time. He acknowledged that there were other telephones in Sharp's residence. After Moore took one telephone, defendant did not use another telephone to contact 911. Defendant also testified that Moore shoved his mother before defendant went out to check on Sharp's vehicle.

         ¶ 40 Defendant testified that between 3:00 p.m. and 4:00 p.m., he had decided to leave Sharp's residence. He had planned to drive to Steven's home in DeKalb. Defendant then testified that, at 1:00 p.m. or 2:00 p.m., Moore offered to "smoke something" with him in the basement. Defendant declined and started gathering his clothes. According to defendant, Moore "came at [him] with a knife" before 3:30 p.m.

         ¶ 41 During cross-examination, defendant was questioned in detail regarding the physical altercation between him and Moore. On recross-examination, the ASA asked, "When you saw the police, you didn't say to them, 'I had to defend myself, ' did you?" Defendant responded, "Actually when I came up-yes, I said that yes."

         ¶ 42 After defendant's testimony, the defense presented certified copies of Moore's misdemeanor convictions for resisting a police officer and for domestic battery. The State called Curry as a rebuttal witness. Curry testified that defendant was placed under arrest in the driveway area of the 14500 University Avenue residence. When defendant's hands were cuffed, Curry observed that they "were so full of blood" that Curry was unable to determine whether he had sustained any knife wounds to his hands. When Curry observed a "cleaned up" defendant the day after the incident, he did not have any wounds on his palms or the backs of his hands. Curry also testified that defendant did not evidence any limping or other difficulty walking when he walked up the stairs from the basement.

         ¶ 43 Moore's son Steven was also called as a rebuttal witness. Steven estimated that while he was a freshman in high school, his father and defendant interacted "[a]t least once or twice a week." Steven testified that Moore and defendant "would joke around, hey, Mr. Moore, what's going on, Sylvester, that would pretty much be it." After Steven graduated from high school, he did not witness any interaction between his father and defendant.

         ¶ 44 After Steven's rebuttal testimony, the trial court read a jury instruction: "Evidence of defendant's previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as any evidence of his guilt of the offense with which he is charged." The ASA then presented a certified copy of defendant's conviction for possession of contraband in a penal institution.

         ¶ 45 During closing arguments, defendant's counsel argued that he acted in self-defense and sought a finding of not guilty. During rebuttal closing argument, the ASA commented on defendant's silence during his interactions with Sharp and the police. The ASA ...

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