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People v. Hoy

Court of Appeals of Illinois, First District, First Division

September 11, 2017

DELAMONTE HOY, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 13472 Honorable Lawrence E. Flood, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Mikva concurred in the judgment and opinion.



         ¶ 1 Defendant, Delamonte Hoy, appeals his conviction, after a bench trial, of first degree murder and his sentence of 52 years' imprisonment. On appeal, defendant contends that (1) the trial court should have found him guilty of second degree murder instead of first degree murder, where the evidence showed that defendant had an actual but unreasonable fear of imminent harm, and (2) his sentence of 52 years' imprisonment, which includes a mandatory 25-year firearms enhancement, should be vacated and the case remanded for resentencing because defendant was 16 years old when he committed the offense, and his sentence does not comport with the constitutional or statutory requirements for sentencing juveniles. For the following reasons, we affirm.

         ¶ 2 JURISDICTION

         ¶ 3 The trial court sentenced defendant on July 31, 2014. Defendant filed his appeal that same day. Accordingly, this court has jurisdiction pursuant to Article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Oct. 1, 2010) and Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009), governing appeals from a final judgment of conviction in a criminal case entered below.

         ¶ 4 BACKGROUND

         ¶ 5 On Friday, June 19, 2009, 16-year-old defendant and his longtime friend, 17-year-old James Thomas, were in front of a three story building on Chicago's west side. A few days before, a friend of both boys had been shot in the neighborhood so defendant acquired a pistol that he had on him that day. As boys that age are known to do, defendant and James got into a heated verbal argument, which ordinarily would have resulted in hitting or pushing the other and both probably wrestling on the ground to the point of exhaustion, their heated passions drained away. But for the fact that defendant had a gun, what ordinarily should have happened between these boys did not happen. In this heated moment, with the immediate availability of a gun, defendant fatally shot James once in the stomach and twice more as James tried to crawl away. Instead of the boys ending their argument with punches and shoves, defendant reached for his gun and fired shots at James. James died from his injuries, and defendant is now serving a sentence of 52 years' imprisonment for first degree murder.

         ¶ 6 Defendant was charged with six counts of first degree murder in the shooting death of James. At his bench trial, Catherine Slater testified that on June 19, 2009, she went to visit her parents who lived in the basement apartment at 1338 S. Albany in Chicago. As she was leaving, Catherine observed defendant arguing with James in front of the building. There were also six or seven other people on the porch. The area in front of the house was bordered by a wrought iron fence and a gate. Catherine did not see defendant or James touch each other, and she did not see a weapon initially. She heard defendant say to James, five or six times in a loud voice, "Say it again. Say it again. I'll shoot the s**t out of you." They were standing about a foot apart, facing one another but there was no physical contact. Catherine saw defendant pull a silver revolver from behind his back and shoot James, hitting him twice in the stomach. When James tried to crawl away, defendant shot him four more times in the back. Defendant then ran toward Douglas Boulevard. All of the shots were fired from inside the fence. After he was shot, James lay on the ground inside the wrought iron fenced area.

         ¶ 7 Catherine identified defendant in a photo array. She stated that, on the day of the shooting, defendant wore his hair in dreadlocks. In the photo array, however, defendant's hair was not in dreadlocks. Catherine also identified defendant in a lineup on June 30, 2009, and at that time, defendant had shaved off almost all of his hair. She did not recall that defendant was wearing a blue hat on the day of the shooting.

         ¶ 8 Kenneth Slater testified that he lived at 1338 S. Albany on the day of the shooting. When he approached his home on June 19, 2009, around 4:30 p.m., he noticed defendant and James having "words" on the porch. Kenneth knew James from the neighborhood and also knew defendant's father. He heard defendant say, "Say it again" but he did not hear James's response. Kenneth did not see any physical contact between defendant and James, nor did he see either of them with a weapon. Neither defendant nor James wore a hat, and Kenneth did not see bicycles out front. After he went inside, Kenneth heard a pop like a firecracker and then after a pause, about four more pops. He looked out of the plate glass window at the front of the house and saw James lying on the ground inside the yard. He also saw defendant running toward Douglas Boulevard. Renee Johnson and Cordarrell came out to help James.

         ¶ 9 Two days later, Kenneth identified defendant from a photo array. Kenneth thought that defendant wore his hair in dreadlocks on the day of the shooting, but he did not wear it that way in the lineup photo. Kenneth refused to identify anyone in the lineup on June 30th because he received "a little threat." At trial, Kenneth was shown a photo taken of the lineup and he acknowledged it showed the people in the lineup room that day. He then identified defendant in the lineup photo.

         ¶ 10 Renee Johnson testified that on June 19, 2009, she was working as a private nurse for Jackie Slater who lived at 1338 S. Albany. Renee knew defendant and James, and thought of both like nephews. When she arrived at 1338 S. Albany that day, around 4:30 p.m., she saw seven or eight people outside on the porch. She observed that defendant and James "were having a verbal conversation" but she did not hear what was said. She clarified that they were having more of an argument than conversation and that defendant's voice was raised more than James's voice. Renee stated that defendant's hair was in dreadlocks at the time, and he was not wearing a hat. Renee testified that while they were arguing, she did not see James or defendant put their hands on each other. She told both of them to stop arguing because "they were better than that."

         ¶ 11 Renee then went into the building to care for Jackie. While inside, Renee heard two gunshots coming from the front of the building. She then heard "a couple of more shots, " and someone came inside and told her that one of her "Godsons got shot" but they did not know who. Renee did not go to the front of the building initially, but instead went to her building to tell defendant's father than defendant had been shot. When she saw defendant's father, she "turned around and told him it wasn't [defendant]." Renee stated that she could not explain it, "but something came over [her]" and she "just knew in [her] heart that it wasn't [defendant] that got shot." When asked who she thought had been shot, Renee answered, "It was James." She ran to the front of 1338 S. Albany and saw James lying in the grass behind the gate. Renee identified defendant in a photo array and lineup. She testified that defendant's hair was different on the day of the shooting than it was in the lineup or photo.

         ¶ 12 Cordarrell Wilson ("Big C") testified that on June 19, 2009, he was selling drugs to an old man who lived in the basement of 1338 S. Albany. He walked to the front of the building and saw James lying in the grass inside the fence. He did not hear gunshots, nor did he know whether James was injured. He did not see James with a gun. He stayed with James until the ambulance arrived, and then went to the police station to speak with police. At trial, Cordarrell denied telling police anything about the shooting and stated that the police told him what he knew. Although he acknowledged his handwritten statement, and that he identified photos of James and defendant, he denied making the statements about the shooting. He testified that the police threatened to "put the case on" him and other older men because defendant and James were "juveniles and all that." They told Cordarrell that if he signed his name to the paper, they would let him go "right then and there. That's how [his] signature got on the paper."

         ¶ 13 Assistant State's Attorney (ASA) William Kelly testified that he took Cordarrell's handwritten statement. In the statement, Cordarrell said that he was hanging out with friends on the 1300 block of S. Albany on June 19, 2009. Defendant and James had been arguing "for awhile, " and Cordarrell heard a gunshot and saw defendant shooting. Defendant was pointing his hand down towards the gate. He heard three shots. As he was shooting, defendant was moving toward 13th Street, and after the shots, defendant "was gone." James was lying in front of the house and he appeared to have a wound to his stomach. Cordarrell did not see James with a gun.

         ¶ 14 Cordarrell initialed corrections and told ASA Kelly, outside the presence of the police, that he had been treated decently. He also stated that no threats or promises were made in exchange for his statement. Cordarrell made substantially the same statement to Detective Ruiz. Cordarrell never stated that he saw defendant and James make physical contact with each other.

          ¶ 15 The parties stipulated that Dr. Lawrence Cogan from the Cook County Medical Examiner's Office performed an autopsy on James. Dr. Cogan observed a gunshot entrance wound on the right middle back and a gunshot exit wound over the right shoulder. The direction was "front to back, downward and left to right." There was also a penetrating gunshot wound to the abdomen with no exit wound. The right iliac artery was completely severed, resulting in "extensive hemorrhage extending from the right kidney down to the groin." Dr. Cogan also found a penetrating gunshot wound to James' left buttock. The ...

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