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.
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.
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
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
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 ...