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People v. Kent

Court of Appeals of Illinois, Second District

June 27, 2017

LORENZO KENT, JR., Defendant-Appellant.

         Appeal from the Circuit Court of Winnebago County. No. 13-CF-1611 Honorable Fernando L. Engelsma, Judge, Presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.


          BURKE, JUSTICE

         ¶ 1 In the direct appeal of his first-degree murder conviction, defendant, Lorenzo Kent, Jr., argues that (1) he was not proved guilty beyond a reasonable doubt, because the State's witnesses were not credible; (2) the trial court erred in admitting a Facebook post without sufficient authentication; and (3) the court erred in admitting the unauthenticated, computer-generated records of a phone allegedly used by defendant and in allowing the State to use inadmissible hearsay evidence of the victim's phone number to show that defendant called him repeatedly on the date of the offense. We reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was convicted of first-degree murder in that he, while armed with a firearm, without lawful justification, and with the intent to kill or do great bodily harm to Donmarquis Jackson, shot and killed him. See 720 ILCS 5/9-1(a)(1) (West 2012). Defendant received an extended-term sentence of 55 years' imprisonment for personally discharging the weapon. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012).

         ¶ 4 On the evening of May 6, 2013, Donmarquis was shot in the driveway of 1428 Nelson Boulevard in Rockford, where he resided with his girlfriend, Doris Gregory, and her mother, Sally Gregory. Donmarquis did not get along with his former girlfriend, Kimiko Wilson, who was in a relationship with defendant around the time of the shooting. Donmarquis and Kimiko had two children together. Two days before the murder, defendant accompanied Kimiko to 1428 Nelson Boulevard and was involved in a violent altercation with Donmarquis and Donmarquis's friend, Deshon Thompson. People v. Kent, 2016 IL App (2d) 140340.

         ¶ 5 Before trial, the parties filed opposing motions in limine disputing the admissibility of a screenshot of a post on a Facebook profile under the name "Lorenzo Luckii Santos." The day after the murder, a detective took a screenshot of the post, which showed a photograph of someone allegedly resembling defendant and an undated post that read, "its my way or the highway…..leave em dead n his driveway."

         ¶ 6 At the hearing on the motions, the parties disputed whether the State could lay an adequate foundation. The State represented that it would introduce evidence at trial that (1) Santos was the last name of defendant's mother, (2) Donmarquis was killed in his driveway, (3) the photograph resembled defendant, and (4) "Facebook records will have an IP [internet protocol] address that belongs to Kimiko." The court granted the State's motion, ruling that the Facebook post was admissible "subject to foundational requirements" being met at trial.

         ¶ 7 A. The State's Case

         ¶ 8 1. Genesis

         ¶ 9 The State's evidence consisted primarily of the testimony of two teenagers who had not previously known defendant but had spent time with him or observed him on the date of the offense. Genesis Burrell was 14 years old on the date of the shooting. The day before the shooting, Genesis got into an argument with her mother and spent the night at the home of her friend Mikayla Allen. The next morning, when Mikayla went to school, Genesis went to Blackhawk Park and fell asleep. Defendant, whom she did not know, woke her and said that his name was Lucky. Defendant was wearing all black and had a "Dora the Explorer" book bag. On the left side of his neck, he had a "pretty good size" black star tattoo. Defendant told Genesis that his kids had been taken away because of "his baby mama's boyfriend, " named "Don." Defendant explained that he had fought with Don a couple of days before and wanted to kill him. Defendant asked Genesis to walk past Don's house to see if he would come out, and Genesis agreed. While they were walking past the house, defendant asked for Genesis's jacket, which he put over his head.

         ¶ 10 Genesis and defendant returned to the park and got into a truck. A man and a woman, whom defendant appeared to know, were already inside. Defendant told them that "he had gotten into a fight with his baby mama's boyfriend and his [kids] had got taken." The woman made a phone call, and defendant began yelling that the person on the phone "wasn't a real man." They stopped at a gas station, where the woman got out. Defendant took a gun and bullets out of the book bag. He said that he had put "Vaseline" on the bullets and was not going to miss. When the woman returned to the truck, they drove back to the park and defendant and Genesis got out. Genesis felt "extremely scared" but did not leave, because she "couldn't get away at that point."

         ¶ 11 Genesis and defendant walked to a beauty supply store, but she did not go inside. Genesis walked into a nearby "Mexican place" but did not call the police or ask anyone for help. While they were near the beauty supply store, defendant asked Genesis for a cell phone. Genesis knew that Mikayla had one, so they walked to her bus stop and waited for her. After Mikayla got off the bus, they all walked to Blackhawk Park, where Mikayla charged her phone.

         ¶ 12 Defendant used Mikayla's phone to ask someone for "Don's number." Defendant said that they were waiting for a text message, but it did not come. Defendant made a couple of calls, but Genesis thought that he did not speak to anyone. Genesis pretended to make a call, after which she told defendant that she and Mikayla were going to get Don. They went to Mikayla's house instead.

         ¶ 13 Genesis spent an hour at Mikayla's house, but she did not call the police or tell an adult what had happened. Mikayla's grandmother drove Genesis to Wesley Johnson's house. Later that evening, Genesis went back to Blackhawk Park with Wesley, his sister Alice, and other friends. Genesis saw defendant, who had changed clothes. He was wearing all red and had a black "do rag" on his head. He was also carrying a black book bag. While Genesis was with Wesley, Alice, and others, defendant approached and said, "I guess it didn't go through." Genesis told Wesley that defendant had a gun, but Wesley did not believe her.

         ¶ 14 Genesis left the park with Wesley, Alice, and others. Defendant had already left the park, walking in a different direction. Genesis began walking to Wesley's house. On her way, she saw defendant again and hid in the bushes. At Wesley's house, Genesis was eating with Wesley and his family when she heard gunshots and sirens. They all went outside.

         ¶ 15 Genesis spent the night at Mikayla's house. The next morning, a police officer came to pick up Genesis because she had run away from home. The officer placed her in the back of a squad car and mentioned that there had been a shooting on Nelson Boulevard. Genesis began telling the officer about defendant. She said that she first met defendant when she was at the park with Wesley and other people. She described defendant's gun as a revolver and a "38 special."

         ¶ 16 Later, Genesis gave the police a written statement that defendant had directed her to call someone. "Don" answered the phone and told her to stop calling. He said that he had gotten into a fight a couple of days ago and wanted to be left alone. He thought that the call was a setup. Genesis said that she had the wrong number and hung up the phone. In her written statement, Genesis also said that, when she left the park for the second time, she went to a bus stop and waited for a bus.

         ¶ 17 Before trial, Genesis identified defendant in a photographic lineup. The person she selected in the lineup did not have a star tattoo. Police officers showed her a book bag, but it was not the book bag that defendant had that night. At the time of trial, Genesis was in juvenile detention for a retail theft charge that had been diverted. She expected to go home following her testimony.

         ¶ 18 2. Wesley

         ¶ 19 Like his friend Genesis, Wesley was 14 years old on the date of the murder. He testified that, around 7:45 p.m., he, Genesis, and others went to Blackhawk Park, where he saw a man wearing all black and carrying a red backpack. The man was standing on a balcony, looking at Genesis. Wesley never saw Genesis talk to this man. Genesis left the park to go to Wesley's house, and the man left sometime later.

         ¶ 20 Around 8:30 p.m., Wesley left the park and went to his house, where he, his nephew, and his friend got bikes and started riding around the neighborhood. The chain fell off Wesley's bike, and he walked alongside it. Across the street, he saw some people on the enclosed porch at 1428 Nelson Boulevard. One man left the porch and "went around the back, " on the right side of the house.

         ¶ 21 The same man Wesley had seen on the balcony at the park came from an alley behind 1428 Nelson Boulevard. The man "hopped" over a small gate near the garage behind the house. He held a gun, which Wesley thought looked like a .45 caliber. After hopping the fence, the man was "sliding" on the side of the house. He grabbed his backpack and began loading the gun. He fired three or four shots at the man who had left the porch. The shooter ran back the way he came. Wesley went back to his house, which was a couple of blocks from the shooting. He heard squad cars but did not talk to the police that night.

         ¶ 22 Two days after the shooting, Wesley was shown a six-person photographic lineup, but he was not sure which person was the shooter. Wesley narrowed down the lineup to two photographs, one of which was of defendant. The officer administering the lineup did not consider this to be a positive identification. Wesley did not identify defendant in court.

         ¶ 23 3. Mikayla

         ¶ 24 Mikayla was also 14 years old on the date of the shooting. She testified that she once met Genesis and a man named Lucky at her bus stop, but she could not remember when this meeting occurred. She knew Lucky's name only because Genesis told it to her. In court, Mikayla identified defendant as Lucky.

         ¶ 25 Mikayla testified that she gave her phone to Genesis, who gave it to defendant, who called someone and said, "Text the number to the phone." Later, a text came through. Defendant dialed a number and gave the phone to Genesis. Defendant asked if she remembered what to say, and Genesis spoke into the phone. Afterward, they all went to Blackhawk Park, where Mikayla charged her phone.

         ¶ 26 At the park, Genesis told Mikayla that defendant was going to kill a man "over some kids or something." Genesis said that defendant wanted her to get this man and bring him to the park. As Genesis was saying this to Mikayla, defendant was "not really" near them. After she looked at her prior statement to refresh her recollection, Mikayla testified that defendant reacted to what Genesis was saying by nodding. On cross-examination, Mikayla testified that, "at some point" during the conversation with Genesis, "Lucky walked up and started nodding."

         ¶ 27 Later, Mikayla's phone rang. Defendant said to "go get him" and "bring him back to the park." Genesis and Mikayla went from Blackhawk Park to the home of Mikayla's friend MacKenzie and then to Washington Park and Mikayla's house. Mikayla's grandmother drove Genesis to Wesley's house. Genesis later returned to Mikayla's house and spent the night there. The next morning, the police came to get Genesis. Mikayla did not talk to the police at that point and never went to the police on her own.

         ¶ 28 Mikayla testified that she had identified defendant in a photographic lineup. She also recognized one of the State's exhibits as defendant's backpack. Mikayla never saw defendant with a gun or bullets or acting aggressively. Everything else she had learned about defendant came from Genesis.

         ¶ 29 4. Officer Weber

         ¶ 30 Rockford police officer Nicholas Weber testified that he was dispatched to 1428 Nelson Boulevard around 9 p.m. in reference to a possible shooting. When he arrived, people on the porch pointed to the driveway, where a man was lying face down. It was dark and the only light came from a street light that was "down the street a little bit." The driveway area was "pretty dark." Officer Weber said that, without his flashlight, he "definitely" could not have seen the backyard and the part of the driveway farthest from the street. The proximity of the house to the unattached garage made it "impossible" to see the backyard even when standing in the driveway.

         ¶ 31 At the scene, officers found three spent .22-caliber casings between the back porch and the garage. It would have been "very difficult" for someone on the street to see where the casings were found. Near the casings, officers found two damaged cell phones, both of which appeared to have been struck by gunfire.

         ¶ 32 Inside a fake sprinkler head in the backyard, officers found 19 bags containing over three grams of crack cocaine. Officers also found a scale at the side of the garage.

         ¶ 33 The victim had five gunshot wounds, and the medical expert testified that he died from a gunshot wound to his back, which went through his rib, heart, and lung.

         ¶ 34 5. Denise

         ¶ 35 Denise Gregory testified that she was at Sally's house on the night of the shooting. Denise was sitting on the porch with Donmarquis and Theodore White. Donmarquis received a phone call and walked to the side of the house. Denise heard gunshots and ran in the house with Theodore. She did not see the shooting. When she ran in the house, a man whom she did not know came in behind her. While still on the porch, she had seen someone wearing all white and walking a bike down the sidewalk with a bag in his hand, but he did not look suspicious.

         ¶ 36 6. Doris

         ¶ 37 Doris testified to the altercation at her house that occurred two days before the shooting. On May 4, 2013, defendant and Kimiko arrived at the house and began arguing with Donmarquis. Defendant and Donmarquis began fighting. Defendant had a pocketknife during the fight, but Donmarquis was not cut. After the fight, defendant and Kimiko left with the children.

         ¶ 38 On May 6, Doris was at the house with Donmarquis. A few minutes after 9 p.m., Doris heard gunshots. She went outside, saw Donmarquis lying on the driveway, and called the police. Doris recalled that it was "pitch dark" outside.

         ¶ 39 Doris testified that Donmarquis had two cell phones. She did not remember the numbers at trial, but she gave the ...

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