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People v. Perkins

Court of Appeals of Illinois, First District

January 24, 2018

ALVIN PERKINS, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 07 CR 16070 Honorable Luciano Panici, Judge Presiding.

          JUSTICE HOWSE delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.



         ¶ 1 The State charged defendant, Alvin Perkins, with the first degree murder of his ex-girlfriend and neighbor, Teresa Iacovetti, who was shot in the face on June 26, 2007. Teresa died from her injuries several days later. Within hours after being shot, Teresa identified defendant as the shooter to three police officers, and those three identifications were all admitted into evidence at defendant's jury trial. The Cook County circuit court admitted one of those identifications under the forfeiture-by-wrongdoing doctrine. Following the trial, the circuit court of Cook County convicted defendant of first degree murder and sentenced him to 35 years in the penitentiary for the murder and a consecutive sentence of 35 years for personally discharging the firearm that caused Teresa's death. Defendant appealed his conviction arguing, inter alia, the trial court improperly admitted all three of Teresa's statements identifying him as her shooter and, in particular, the court erred when it applied the wrong standard to determine whether the forfeiture-by-wrongdoing doctrine applied to admit one of the victim's statements. We retained jurisdiction of defendant's appeal and remanded the matter to the trial court for the court to determine whether the State proved, by a preponderance of the evidence, defendant shot Teresa with the intent of preventing her from testifying as a witness against him. On remand, the trial court held a hearing, after which it found the State proved by a preponderance of the evidence that defendant intended to prevent Teresa from testifying. Defendant filed a supplemental brief concerning the hearing on remand but withdrew it. For the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The State charged defendant by indictment with the first degree murder of his ex-girlfriend and neighbor, Teresa Iacovetti, who was shot on June 26, 2007, and died several days later. At the time he was charged, defendant faced the possibility of being sentenced to death if convicted.

         ¶ 4 Procedural History

         ¶ 5 During court appearances prior to trial, defense counsel expressed concern about defendant's mental status. On April 15, 2009, defense counsel indicated to the court that defendant's fitness and sanity may be an issue at trial. Counsel also stated that defendant had a mental health history. On July 9, 2009, defendant's attorneys tendered a package of information relating to defendant's psychological history. At that time, defense counsel indicated that defendant still needed to undergo psychological testing. The State also informed the court that defendant was schizophrenic, questioned whether defendant was on medication, and indicated that defendant would need to be tested. Defense counsel confirmed that defendant was on medication.

         ¶ 6 On September 23, 2009, just as defense counsel presented a motion to preclude the death penalty, defendant objected to his counsel's representation and indicated that he wanted to represent himself. Specifically, defendant stated: "Judge, I would like to speak on account of my own behalf. I would like to represent myself pro se in this criminal proceeding thus far. I have an objection to [defense counsel] representing me any farther in these proceedings. And I'm also demanding trial today. I'm demanding trial, sir, speedy trial today." When the judge asked defendant whether he understood "what's involved in a death penalty case, " defendant responded, "Sir, I don't-I'm not interested in that right now, your Honor. I want to represent myself, please. I have a Constitutional right to represent myself in these criminal proceedings. And I'm demanding trial." During this exchange, defense counsel advised the court that "we have four experts, an investigator, and mitigator, as well as three attorneys on this case. Nobody's ready because experts' work has not been completed, reports have not been produced, and investigation is still ongoing." Defense counsel then concluded, "So we're not anywhere near setting this case for trial." The court then denied defendant's request to represent himself.

         ¶ 7 Later, in May 2010, in response to defendant's filing of pro se speedy trial demands, the trial court informed defendant that it could not accept motions from him because he was represented by counsel. In March 2011, after the parties agreed to a continuance, defendant interrupted, saying that he had already complained to his lawyer about being locked up for three years and nine months and that he wanted to go to trial. The court advised defendant that he was represented by an attorney and the court would only accept motions from his attorney. The court also stated the case could not proceed to trial until defendant's attorney filed a certificate of readiness because this was a death penalty case. Defendant responded, "Well, I am the one on trial here." Defendant again demanded trial, and the trial court judge responded that his request was "[n]ot valid."

         ¶ 8 At the request of defense counsel, the trial court ordered a fitness evaluation of defendant at the end of 2009. In January 2010, defendant refused to participate in the evaluation, but the evaluation was conducted on February 19, 2010. From that evaluation, it was reported that defendant was fit for trial and sane at the time of the offense. However, the report noted that fitness to stand trial while medicated would be assessed in a separate evaluation since defendant was on medication. Defense counsel then indicated that he would not be pursuing an insanity defense.

         ¶ 9 The second evaluation found defendant fit for trial with medication, as he was taking some psychotropic medications like Risperidone, Zyprexa, and Hydroxine. The doctor evaluating defendant deferred any opinion as to defendant's sanity at the time of the offense since defendant had insisted he was not raising an insanity defense.

         ¶ 10 In March 2011, the trial court indicated that the death penalty was no longer an option in the case since the death penalty had been abolished in Illinois. Nothing in the record indicates that defendant renewed his request to represent himself after he was found fit for trial.

         ¶ 11 Prior to trial, defendant filed a motion in limine to exclude as hearsay three statements by Teresa, now deceased, to police identifying defendant as the person who shot her. The shooting itself occurred at approximately 12:20 a.m. on June 26, 2007. The first statement was made to Officer Alfredo Salinas while Teresa was in the emergency room trauma center at approximately 1:46 a.m. In this statement, Teresa identified defendant as her shooter. The second statement was made to Officer Daniel Riegler at approximately 2 a.m. Officer Riegler asked Teresa who shot her, and she named defendant. Teresa then twice stated, "I can't believe Alvin shot me." The third statement was made later that day, between 9 a.m. and 2 p.m., to Detective Mikal El-Amin. Detective El-Amin asked Teresa what happened, and Teresa told him that she was watering plants in the yard when she saw defendant enter the yard from the alley. She stated when defendant came to the yard, he said, "I told you what was going to happen, b***." She stated he then pointed a gun at her and shot her in the face.

         ¶ 12 The parties argued the admissibility of the statements in two discrete motions: the first concerning the identifications Teresa made to Officers Salinas and Riegler, and the second regarding Teresa's statement later in the day to Detective El-Amin, which was more detailed.

         ¶ 13 At the hearing on the admissibility of the statements, the parties proffered statements contained in the police reports and did not present any witnesses. With respect to the first two statements, the defense argued that to admit those hearsay statements would violate defendant's sixth amendment rights. The State in turn argued the statements were admissible as either excited utterances or dying declarations. The trial court admitted the first two statements as either dying declarations or excited utterances, finding that there was not enough time for Teresa to fabricate a story. With respect to the third, more detailed statement to Detective El-Amin, the State argued the identification was admissible pursuant to the statutory forfeiture-by-wrongdoing exception to the rule against hearsay found in section 115-10.7 of the Code of Criminal Procedure (725 ILCS 5/115-10.7 (West 2012)).

         ¶ 14 At the hearing on defendant's motion in limine, the State argued that pursuant to subsection (d) of the statute, if it proved by a preponderance of the evidence that defendant murdered Teresa, the State was not required to show that defendant's purpose in committing the murder was to create the unavailability of a witness for the exception to apply and the statement to be admitted. Even if the State did have to show a motive, the State contended that defendant was motivated to kill Teresa to silence her from testifying about the fact defendant violated an order of protection by contacting her on the night of the shooting and that he had a previously stricken criminal damage to property case, which alleged defendant attempted to pry open Teresa's door about a month earlier.

         ¶ 15 The defense responded by arguing the State's argument as to defendant's motive was illogical-it did not make sense for defendant to create a situation where he violated an order of protection so that he then had to kill Teresa. Further, the defense argued the criminal damage to property case had been stricken and could not automatically be reinstated. The court ultimately found the third identification was admissible where the State had met its burden and where there was no intent requirement in the forfeiture-by-wrongdoing statute.

         ¶ 16 Defendant appealed his conviction on the grounds the trial court improperly admitted Teresa's hearsay statements and improperly denied his request to represent himself. Concerning the admission of Teresa's statements, defendant argued, in part, that the trial court used the wrong standard when it admitted Teresa's statements under the forfeiture-by-wrongdoing doctrine. This court found that "[i]n ruling that the statements were admissible pursuant to the statute, the trial court noted its interpretation of the statute and stated: 'Basically it is saying, as I read the statute, if the State is able to prove that the defendant, by a preponderance of the evidence, killed the witness, then that's all they have to prove.' " 2016 IL App (1st) 133981-U, ¶ 18. We noted that "the trial court judge never made a finding of fact regarding whether defendant, by his actions, intended to procure Teresa's absence at trial, which is a requirement for the application of the forfeiture-by-wrongdoing doctrine under the Supreme Court's ruling in [Giles v. California, 554 U.S. 353, 377 (2008)]." 2016 IL App (1st) 133981-U, ¶ 19. Based on the record then before us, we could not presume the trial court judge knew intent to kill the witness to prevent her from testifying at trial was a requirement under the forfeiture-by-wrongdoing doctrine and thus remanded the matter to the trial court for a hearing on whether the State proved that contention by a preponderance of the evidence. Id. We ordered that following the hearing on remand, we would "address the remaining issues including any issue that may arise on remand from the hearing." Id. ¶ 21.

         ¶ 17 At the hearing on remand, the State did not present any witnesses. The State argued the evidence showed that defendant shot Teresa in the face "to ensure her unavailability against him in a criminal damage to property case on a violation of order of protection." The State argued that defendant and Teresa had a dating relationship and that beginning in April 2007 "there were a series of events that he committed against her." The State recounted incidents of defendant using a screwdriver on Teresa's sister's car in an attempt to take back a windshield he had installed, using a pry bar on the door to Teresa's home, repeatedly calling Teresa and pounding on her front door, and, the day after the last incident, breaking a window in Teresa's house. The State said the last incident resulted in a criminal damage to property case against defendant. Police arrested defendant for the criminal damage to property, and defendant "told the police officer, 'I know what I'm going to need to do when I get out.' " When defendant was arrested, the trial court entered a two-year order of protection against defendant ordering him to stay away from Teresa, her son, and her house. The State argued that a few days after his arrest defendant repeatedly called Teresa and his friends repeatedly called Teresa "making threatening remarks to her about not going to court, about not testifying against him." Teresa did not appear in court for the criminal damage to property case, and the charges were stricken with leave to reinstate. The order of protection was continued and was in effect following the dismissal with leave to reinstate of the criminal damage to property case. The State recounted the instant offense, then argued as follows:

"This evidence shows that the defendant was not going back to jail. He did not want to go back to jail and some of the threatening phone calls he made to Teresa in the criminal damage to property case, he would say, don't call the police, don't call the police. Well, here he knew what he had to do. He was not going back to jail.
So when Teresa was not amenable to his visitation after midnight, he thought she's calling the police, I'm not going back and he shoots her in the face with the intent of preventing her from testifying in the criminal damage to property case and in certainly the violation of order of protection case that's coming as she's calling the police."

         ¶ 18 The defense argued the criminal damage to property case had been stricken and was not pending and there was no pending violation of an order of protection. The defense argued there was "nothing active or pending in the court system where we could presume [defendant] went to [Teresa's] house that morning intending to prevent her from going to court." The defense further argued "[t]here could be something to reinstate, but what motivation does the victim have here to go to court and reinstate either the order of protection or the criminal damage to property case at this point? There's none." The defense argued that defendant's appearance on Teresa's property did not give rise to an inference that he put himself in that position so that he could kill her to prevent her from going to court. The defense concluded by arguing it was not enough that defendant went to Teresa's home intending to kill her; "[y]ou have to show he went there intending to *** produce her unavailability as a witness, " and Teresa "was not a witness against him in anything."

         ¶ 19 The State replied the forfeiture-by-wrongdoing doctrine does not require there to be a pending case for the doctrine to apply. In support of that assertion, the State cited the decision in People v. Hanson, 238 Ill.2d 74 (2010), in which, the State argued, no case was pending against the defendant when he killed his sister and the deceased sister's statements were admitted against the defendant under the forfeiture-by-wrongdoing doctrine. The State argued that case proved the doctrine applied where the defendant feared a future prosecution in which the decedent would have been a witness. The State pointed out that Teresa had called police about defendant numerous times and defendant had "made it clear to the police that he knew what he needed to do." The State also asserted that in one of his phone calls to Teresa, defendant told Teresa he "didn't want her calling the police on him." The State argued "it does not matter that there wasn't a case pending. It's that he actually shot her because he was not going back to jail. He was not going to let her call the police. He was not going back for criminal damage to property. He was not going back for violation of an order of protection."

         ¶ 20 Following the parties' arguments, the trial court first found that "as the defense alleges in his response, there is no dispute to the facts that were presented by the State." The court noted that defendant kept calling and threatening Teresa, that his threats "worked the first time, " and that defendant stated to police that he knew what he had to do when he got out after police arrested defendant for criminal damage. The court held: "the victim was in fear of her life and I believe that by [a] preponderance of the evidence the State did prove that the defendant intended to prevent her from testifying in a violation of an order of protection, if nothing, [sic] and also under the possibility of having the case reinstated, the criminal damage to land case. So therefore I believe that the common law forfeiture by wrongdoing [applies] ***."

         ¶ 21 Defendant filed a supplemental brief concerning the ruling on remand but later filed a motion to withdraw that brief and dispense with further briefing. The motion to withdraw states "the briefs previously filed in this case adequately address the unresolved issues remaining before [the appellate court]" and asks this court to "decide the issues remaining before it."

         ¶ 22 Trial Evidence

         ¶ 23 At defendant's jury trial, Erik DePillars, Teresa's son who was nine years old when Teresa was shot, testified that shortly after midnight on June 26, 2007, he was in the living room reading a book. He heard a knock at the door and answered it. Erik testified that he recognized the man at the door as his mother's ex-boyfriend, Alvin Perkins. Erik stated that he went and sat back down while his mother talked to defendant at the front door. Erik testified that after a few minutes his mother shut the door and locked it and ran to the back door. Erik did not know what was going on, so he got up and walked towards the back of the house. He was waiting in the kitchen when he heard his mother scream, then heard a "crack" that sounded like a gunshot. He grabbed a knife from the kitchen and ran outside. Once outside, Erik saw his mother lying on the back step in a puddle of blood. He did not see anyone else in the backyard. He went inside and called police. When he came back out, his mother was still conscious, and a neighbor had come over and was using a hose to wash blood off his mother's face.

         ¶ 24 Officer Alfredo Salinas testified that at about 12:20 a.m., he and his partner received a call about shots fired. They arrived at Teresa's house about three to four minutes later. They went to the backyard and saw Teresa receiving aid from paramedics. Officer Salinas and his partner had a brief conversation with Erik, and after that, they began to look for defendant. Officer Salinas walked from Teresa's home across the alley to defendant's apartment building. He knocked on the back door, but there was no response. He went around to the front door, and defendant answered. Officer Salinas recounted that defendant did not appear to be out of breath, he did not have any blood on him anywhere, and he did not have a gun on him. Officer Salinas arrested defendant and gave him his Miranda (384 U.S. 436 (1966)) warnings. He asked defendant whether he had spoken with Teresa, and defendant responded that "he had had contact with her approximately an hour prior, and that he had called her around 12:00 midnight on her phone." The officers made a cursory search of defendant's house and Teresa's backyard but did not find a gun.

         ¶ 25 Officer Salinas then went to the hospital where Teresa had been taken and spoke with her at 1:46 a.m. They spoke for about two minutes until hospital personnel told Officer Salinas to stop. Officer Salinas recounted that Teresa recognized him by name based on a previous incident a month earlier. He noted that she appeared to be in a lot of pain but could still speak coherently. Teresa told Officer Salinas that defendant had shot her in the face.

         ¶ 26 Officer Daniel Riegler testified that when he arrived at Teresa's house at about 1:30 a.m., he noticed a lot of blood on the back patio and on the rear wall of the house. He collected a .22-caliber shell casing, a cordless telephone, and a 40-ounce bottle of malt liquor. He also took photos of the scene and the items he recovered. After spending about half an hour at the scene, Officer Riegler went and spoke with Teresa at the hospital. He recounted that Teresa was still in the emergency room trauma center and her mother, brother, and son were present. Officer Riegler testified that she appeared coherent and able to understand his questions. Officer Riegler asked who shot her, and she named defendant. She then twice stated, "I can't believe Alvin shot me." After visiting Teresa, Officer Riegler went to the Chicago Heights police department and spoke with defendant. He collected defendant's shirt and put it in a paper evidence bag, which was submitted to the state police for testing.

         ¶ 27 Detective El-Amin testified that he spoke with Teresa sometime between 9 a.m. and 2 p.m. on the day of the shooting and she gave him a narrative statement about the shooting. He asked Teresa what happened, and she told him that she was watering plants in the yard when she saw defendant enter the yard from the alley. She stated when defendant came into the yard, he said, "I told you what was going to happen, b***;" and that is when he raised his hand with a gun in it and shot her in the face. She said she fell to the ground and realized she was bleeding heavily. Her son came to the yard, and then a neighbor came over and used a hose to wash some of the blood off her face.

         ¶ 28 Ellen Chapman, a forensic scientist with the Illinois State Police Forensic Science Center's evidence unit, testified that she was tasked with checking a shirt for gunshot residue. She took samples from the shirt's right sleeve and right shoulder. The sample from the right sleeve contained some particles but not enough to be able to say it was positive for residue. She said the sample from the right shoulder did have "unique tricomponent gunshot residue particles." She opined that this would mean either that the shirt contacted an item with gunshot residue, it was within the environment of a fired gun, or someone wearing the shirt fired a gun.

         ¶ 29 It was stipulated that a July 5, 2007, autopsy revealed that Teresa died from a gunshot ...

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