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People v. Mitchem

Court of Appeals of Illinois, First District, Fifth Division

October 11, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MARCELLUS MITCHEM, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 14 CR 1080-02 Honorable Brian K. Flaherty, Judge, presiding.

          PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.

          OPINION

          HOFFMAN PRESIDING JUSTICE

         ¶ 1 Following a jury trial, the defendant, Marcellus Mitchem, was convicted of aggravated kidnapping and aggravated vehicular hijacking and sentenced to concurrent terms of 32 years' imprisonment. He now appeals, arguing that the State failed to prove him guilty beyond a reasonable doubt, the circuit court abused its discretion when it denied his motion for a severance, and the circuit court abused its discretion by admitting evidence of other crimes. For the reasons that follow, we affirm.

         ¶ 2 We set forth the facts necessary to provide background for the defendant's several claims of error. Additional facts will be included as needed in later sections of this opinion.

         ¶ 3 The defendant, and codefendant Vernal Odom, were charged by indictment with, inter alia, aggravated vehicular hijacking and aggravated kidnapping of Antwain Avery. Both charges were predicated on the defendant being armed with a firearm during the commission of the offenses.

         ¶ 4 Prior to trial, the defendant moved to sever his trial on the basis that he and the codefendant had antagonistic defenses. The State opposed the motion, arguing that the defendant and the codefendant were both asserting an alibi defense and that the defendant failed to show how these defenses were antagonistic. After hearing arguments, the circuit court denied the defendant's motion for a severance.

         ¶ 5 The State also filed a motion in limine, seeking to admit evidence of the defendant's prior crimes for the purposes of proving identification, intent, motive, and lack of mistake. Specifically, the State sought to introduce evidence of an incident, which occurred approximately three months prior to the events giving rise to the charged offenses, where the defendant and the codefendant invited Avery out to lunch and then led him to a vacant apartment where they held him for ransom at gunpoint. The defendant objected, arguing that the prior incident was not factually similar to the instant offenses, the State was not required to prove motive, and the identity of the perpetrators of the instant offenses was not at issue. The circuit court granted the State's motion and admitted the other crimes evidence for the purposes of proving intent, motive, knowledge, and identification.

         ¶ 6 At trial, Avery testified that, on November 8, 2013, he arrived at his apartment complex in a Chevrolet Malibu. After he parked in his usual spot, a white sports utility vehicle (SUV) with three occupants pulled directly behind him, blocking his exit. Two men exited the SUV and approached him. Both of the men were armed with a gun and wore a mask and gloves. The men told him to get out of the car and attempted to open his driver side door. He locked his door and then fled out of the passenger door. The smaller of the two masked men pursued him and tackled him in the courtyard of the apartment building. The man then hit him with a hard object in the back of the head and he blacked out.

         ¶ 7 When Avery came to, the two masked men were attempting to place him, feet first, into their SUV. He struggled to free himself and the two offenders dropped him. He then saw the third perpetrator, the driver of the SUV, whom he identified as the codefendant. Avery once again attempted to flee, but both of the masked offenders dragged him back to the SUV. The men returned him to the SUV and threatened to kill him. The two men again tried to force him into the SUV. During the struggle, Avery removed the mask off of one of the perpetrators, whom he identified as the defendant. According to Avery, he had known both the defendant and codefendant for over 20 years and considered them to be his "brother[s]."

         ¶ 8 Avery continued to struggle with the defendant and the other masked man. He freed himself and attempted to flee but was quickly caught and returned to the SUV. Once there, he heard the codefendant say, "Hurry up. Let's get the fuck out of here. Just shoot him." The defendant, standing approximately a foot away from him, then pointed a silver, automatic "pistol" at his head and said, "I'm going to kill him." Avery testified that the other perpetrator was armed with a black automatic pistol. Avery fled and this time no one gave chase. As he fled, Avery turned to see the defendant entering his vehicle and driving away.

         ¶ 9 Avery further testified to a prior incident, during which the defendant and the codefendant held him for ransom. According to Avery, in late August or early September of 2013, the defendant and the codefendant invited him to lunch. He arrived at the restaurant in a separate car from the defendant and the codefendant. Once there, the three men drove together to an apartment building. They went inside and entered what Avery described as a "vacant looking" apartment. After he spoke with the defendant and the codefendant for a few minutes, the two men displayed guns, bound him, and directed him to call his fiancée, Camille Colbert. The defendant told him that he would be shot if he did not follow their directions. Avery was instructed to tell Colbert to "give up" everything that he had in their apartment, including cash, jewelry, and the title to a Chevrolet Impala. Avery, who sold drugs, had a bag that contained $100, 000 in cash in his apartment. He was then instructed to tell Colbert to leave the bag of money at a nearby restaurant. After the phone call, the codefendant left the apartment. When the codefendant returned, he had with him the duffle bag of cash from Avery's apartment. Avery watched the defendant and the codefendant divide the cash from the duffle bag and then the two discussed whether to kill him or let him go. Eventually, they decided to let him go. Avery did not report the incident to the police due to the illegal source of the money. He eventually told the State's Attorney's office about the incident in October 2015.

         ¶ 10 Colbert, Avery's fiancée, testified that, on November 8, 2013, she looked out from her apartment balcony and saw three men "tussling" outside. One of the men yelled out for help and she realized that it was Avery. Colbert ran inside and called the police. When she returned to observe the scene, Avery and the other men were standing near a white SUV that was blocking Avery's car. Colbert recognized the defendant as one of the men standing near Avery. She also recognized the codefendant as the driver of the white SUV and heard him say "Pop his ass. Shoot his ass." Colbert saw the white SUV and Avery's car drive away. When Avery eventually returned to the apartment, his clothes were "ripped off." Colbert testified that she had known the defendant and the codefendant for 18 years.

         ¶ 11 The State published the audio recording of Colbert's 9-1-1 phone call to the jury. During the call, Colbert says that she cannot identify the perpetrators. Later in the call, she identified both the defendant and the codefendant as two of the perpetrators.

         ¶ 12 Colbert also testified to the prior incident where Avery was held for ransom. According to Colbert, Avery called her that day and told her that he needed her to do something and would call her back shortly. Around this time, Colbert looked outside her apartment window and saw the codefendant walk past. Shortly thereafter, Avery called her back and told her to retrieve a bag hidden in the closet, some jewelry, and the title to her car. He then instructed her to place the bag in the dumpster of a nearby restaurant. Colbert complied, but was unable to find the title to her car. She then went to the restaurant, but ...


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