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People v. Hardimon

Court of Appeals of Illinois, Third District

May 12, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DARRIN C. HARDIMON, Defendant-Appellant.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 11-CF-124 Honorable Timothy M. Lucas, Judge, Presiding.

          PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Schmidt and Wright concurred in the judgment and opinion.

          OPINION

          HOLDRIDGE PRESIDING JUSTICE

         ¶ 1 The defendant, Darrin C. Hardimon, appeals from his convictions for first degree murder and unlawful possession of a weapon by a felon (UPWF). On appeal, the defendant argues that (1) he received ineffective assistance of trial counsel and (2) his UPWF conviction must be reversed.

         ¶ 2 FACTS

         ¶ 3 The defendant was charged by indictment with four counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2010)) and one count of UPWF (720 ILCS 5/24-1.1(a) (West 2010)). The UPWF charge alleged that the defendant

"knowingly possessed on or about his person or on his own land or in his own abode a firearm having been previously convicted of a felony violation of Article 24 of the Illinois Compiled Statutes, being aggravated unlawful use of a weapon, in Peoria County Case 08 CF 1317."

         ¶ 4 Before the jury trial commenced, the parties entered a stipulation that the defendant had a prior conviction for an article 24 felony. Due to the stipulation, the State said that it did not "believe that the actual offense being aggravated unlawful use of a weapon is required to be disclosed to the jury." The State suggested that the court refer to the predicate offense as an "[a]rticle 24 [f]elony."

         ¶ 5 At trial, the State called Peoria police officer Jon Briggs to testify as its first witness. On February 6, 2011, Briggs was patrolling the area around Club Apollo. At approximately 3:50 a.m., Briggs heard 7 to 10 gunshots followed by a second volley of 7 to 10 gunshots. Near Club Apollo, Briggs saw the victim, Jerrell Hartwell, lying on the ground. Hartwell had been shot in the abdomen, and Briggs called for an ambulance.

         ¶ 6 Telekia Lyles testified that she was at Club Apollo on the night of the shooting. Before the club closed, Lyles went out to warm up her vehicle. While sitting in her vehicle, Lyles heard several gunshots. Lyles turned and saw a man pointing a gun at an individual lying in the snow. Lyles gave a Club Apollo security guard information on the make, model, and license plate number of the shooter's vehicle. Lyles's handwritten note identified the vehicle as a black Eclipse, license plate No. L101306. Lyles said the shooter was wearing a black hat and black shirt.

         ¶ 7 Anthony Carter testified that he owned a black Mitsubishi Eclipse, license plate No. L101306. On February 5, 2011, Carter loaned the vehicle to TC Driver. Earlier in the day, before Driver picked up the vehicle, Carter saw Driver with the defendant. The next morning (February 6, 2011), Carter noticed that a gray Camaro that belonged to the defendant was parked in his lot. Later in the day, the Eclipse was returned to Carter's lot. Driver told Carter that he did not return the vehicle on the morning of February 6, 2011, because he had gotten drunk.

         ¶ 8 Early Johnson testified that he was a security guard at Club Apollo. Around 2 a.m. on February 6, 2011, Johnson observed Hartwell and the defendant arguing in the men's restroom. Johnson directed the men to end their argument, and Hartwell left the restroom. The defendant remained in the restroom, and Johnson directed him to leave the club. Johnson began to escort the defendant out of the restroom when he was called to another incident. Thereafter, Johnson again told the defendant to leave the club. The defendant became frustrated and said, "I'll air this bitch out." Johnson had heard this statement before and opined that it meant there would be "gun play." Johnson then escorted the defendant out of the club. After Club Apollo started to close, Johnson noticed that Hartwell had been shot.

         ¶ 9 On cross-examination, Johnson said that he had described the defendant as "dark- skinned." However, when Johnson was asked for clarification, he stated that he was not sure that he would have described the defendant as "dark complected." Johnson said "[l]ooking at [the defendant], I'm certain I wouldn't have said that" he was a dark-skinned person.

         ¶ 10 Peoria police officer Paul Tuttle testified that on February 7, 2011, he photographed and searched the black Eclipse (Anthony Carter's vehicle) that was connected to the shooting at Club Apollo. The vehicle did not contain any firearms, bullets, or shell casings. Tuttle located a maroon-colored coat inside the vehicle.

         ¶ 11 Forensic scientist Linda Yborra testified that she analyzed the shell casings and bullet jacket fragments found at the scene, as well as three bullets removed from Hartwell's body. Yborra determined that each of the three bullets had been fired from the same weapon. Yborra also concluded that each of the casings had been ejected from the same firearm. Yborra could not identify whether or eliminate the possibility that the bullet jacket fragments had been fired from the same weapon. Yborra did not have a firearm to compare the bullets, fragments, and casings to.

         ¶ 12 Detective James Feehan testified that he reviewed the video surveillance recorded by the security cameras at Club Apollo. Surveillance video from camera No. 1 showed that shortly after 3:50 a.m., a crowd formed near the entrance of the club. As the crowd dispersed, a black male wearing black clothing pointed a gun toward the area in front of Club Apollo. After firing several shots, the black male walked away through the parking lot. Surveillance camera No. 2 recorded the parking lot area. At 3:51 a.m., an individual dressed in black walked toward a black vehicle. The individual entered the passenger side of the vehicle, and the vehicle left the parking lot. Surveillance camera No. 3 showed several individuals as they entered Club Apollo. Surveillance camera No. 11 showed the area directly in front of Club Apollo. At the beginning of this recording, a crowd of people was seen standing near the front of the club. A few seconds later, the crowd rapidly dispersed, and the shooting victim fell into a snow bank. Shortly thereafter, the police arrived on the scene.

         ¶ 13 Detective Steven Garner testified that he had reviewed the surveillance videos. Garner said that surveillance camera No. 3 showed the entryway to Club Apollo. Garner identified one of the individuals entering the club as Driver, whom he recognized from a prior interaction. Garner also noted that Driver was deceased at the time of the trial. Garner thought that he saw the defendant walking into the club in front of Driver, but he could not make a conclusive identification from the video recording. After viewing the surveillance videos, Garner could not determine if the defendant was anywhere on the scene at the time of the shooting.

         ¶ 14 During his investigation, Garner asked Johnson to review a photographic lineup. Johnson identified the defendant as the individual he escorted out of Club Apollo after the argument in the restroom.

         ¶ 15 On February 8, 2011, Garner interviewed the defendant at the Peoria police station. The interview was video recorded. Prior to trial, the parties discussed the redaction of the recording. The original recording was more than four hours in length, and the State indicated that it had redacted approximately three hours of the video where the defendant was not actively interviewed. The State also redacted portions of the video where the detectives asked the defendant if he had received Miranda warnings on a prior occasion, as well as references to information that Driver had told to the police. Defense counsel did not object to the introduction or playing of the redacted video.

         ¶ 16 At the beginning of the video recording, Detective Garner introduced himself and Detective Moore to the defendant and stated that they were speaking with the defendant about the February 6, 2011, murder at Club Apollo. Before providing the defendant with a Miranda waiver form, Garner asked the defendant (1) if he had heard about the shooting, (2) his highest level of education completed, and (3) his address. The defendant answered the questions and then directed his attention to the written Miranda waiver. While defendant reviewed the waiver, Moore told the defendant that it was "a technical issue, man. Everybody has got to get it." In response, the defendant said "I am trying to understand it. You said everybody gets the paper." Moore asked if the defendant felt like he was free to leave and explained that the Miranda warnings were not determinative of whether the defendant was going to jail but were a "custody issue." Moore explained that anyone walking by the room would think the defendant was in custody because he was sitting across from the door, behind a table, with two men between the defendant and the door. Garner stated that it was like "you see on television where you read your rights." The defendant said that he did not understand the ...


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