Opinion
No. 1-14-1774
08-31-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAMONE CHILDS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No.12 CR 23036 Honorable Anna Helen Demacopolous, Judge, presiding. JUSTICE BURKE delivered the judgment of the court.
Presiding Justice Ellis and Justice Howse concurred in the judgment.
ORDER
¶ 1 Held: Defendant's convictions for obstructing justice reversed and the cause is remanded for a new trial where the trial court erred in failing to inquire into the potential prejudice of the entire jury. ¶ 2 Following a jury trial, defendant Shamone Childs was found guilty of two counts of obstructing justice. The trial court merged the two counts and sentenced defendant to three years' incarceration. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt because, even adopting the State's version of events, his actions did not materially impede the police's murder investigation. Defendant alternatively contends that he is entitled to a new trial because the trial court refused to order a mistrial after it elected not to question all members of the jury regarding an incident that led to the dismissal of one juror. We reverse and remand. ¶ 3 The charges in this case arose from the shooting death of Barndon Bibbs, following an altercation at a party. After firing numerous shots in the air, Bibbs was confronted by defendant and Darius Williams. Williams and Bibbs were both shot during the confrontation, Bibbs fatally. Wiliams and defendant were indicted together for armed violence, mob action and two counts of obstructing justice. They were tried separately. The State nol-prossed the mob action count against defendant, and he was acquitted of armed violence. He was, however, found guilty of two counts of obstructing justice. ¶ 4 Karen Green testified that on the evening of November 16, 2012, Bibbs drove her to a party in Robbins. When they arrived and Bibbs saw it was a large party, he told Karen, "Let me make a run" and drove to a house. While Karen waited in the car, Bibbs went inside for a few minutes. Karen did not know that he had a gun. They returned to the party, where Bibbs introduced Karen to his cousin, Del-Laina Wheatley. ¶ 5 Later in the evening, an altercation erupted among some "girls" at the party. The altercation escalated and spilled out onto the street. Karen, Bibbs, and Del-Laina walked outside. The crowd had surrounded Bibbs's car making it impossible for him to leave. Bibbs fired a handgun into the air and the crowd dispersed. Defendant confronted Bibbs, asking "What you on?" Bibbs put his hands in the air and said, "I'm on nothing, just trying to leave." Bibbs and defendant began "tussling." Defendant yelled, "Moley, go get that, get that, Moley, Moley." A man ran toward Bibbs's car carrying an object in his hand down by his side. Karen panicked and ran back toward the house. As she ran, she heard gun shots, and saw Bibbs drive off quickly. ¶ 6 Del-Laina Wheatley testified that she attended the party and saw Bibbs and Karen arrive. About 20 minutes later, some underaged girls arrived uninvited and "started a commotion" with invited guests. The commotion moved outside and a crowd surrounded Bibbs's car. Bibbs had a handgun and fired into the air to disperse the crowd. Defendant confronted Bibbs yelling "Is that what you on?" A struggle ensued and Del-Laina was knocked to the ground. Defendant began yelling "Moley, bring me the strap." Del-Laina explained that a strap was a gun and that Moley was defendant's cousin, Williams. Del-Laina got to her feet and someone pulled her into the house. She heard shots fired and heard defendant say "I got that n***, and I took his shit." ¶ 7 Christian Diagre testified that in November 2012, he was a detective with the Robbins Police Department. He and Detective Kraig Elzia conducted interviews regarding the Bibbs shooting. Daigre interviewed Williams and observed a gunshot wound on Williams. Early in the morning of November 20, Daigre and Elzia interviewed defendant at the Robbins Police Department. The interview was videotaped. An edited version of that video was shown to the jury. The edited version divided the interview into four "narratives." ¶ 8 In the first narrative defendant stated that he went to the party and went outside when the girls began arguing. Defendant heard gunshots, no less than 13 shots, and confronted the shooter. He later learned the shooter was Bibbs. Bibbs apologized. Defendant stated he did not know where the gun was after the shooting. ¶ 9 In the second narrative, defendant initially stated that he did not remember how he ended up with the gun, but subsequently stated that he "tussled" with Bibbs over the gun. ¶ 10 In the third narrative, defendant admitted that he called out to Williams, but denied that Williams had a gun and denied telling Williams "Bring that strap." ¶ 11 In the fourth narrative, defendant initially stated that he did not know that anyone had a gun, but later stated that he knew there was a gun at the party and that Williams could have gotten it from anyone. Defendant later told the detective that Williams got the gun from his brother Dontrel Childs, but denied that he told Dontrel to give the gun to Williams. ¶ 12 The parties stipulated that on November 17, 2012, Detective Elzia collected 13 spent shell casings from the street near where the party was held. On November 19, he recovered a Glock 9 millimeter handgun with a 30 round magazine containing 10 live rounds from the yard behind defendant's house. He submitted the evidence to the Illinois State Police Crime Laboratory for ballistics examination. The parties further stipulated that a forensic scientist would testify the fired shell casings were fired from the Glock. Finally the parties stipulated that a deputy medical examiner conducted a post-mortem examination of Brandon Bibbs and determined that the cause of death was a gunshot wound to the back. ¶ 13 Defendant testified that he was 24 years old. On November 17, 2012 he worked as an armed security guard, owned a gun, and had a firearm owners' identification (FOID) card. He did not have his gun with him when he went to the party with Williams and Dontrel. At the party he drank a "nice amount" of tequila and was intoxicated. An altercation took place involving some girls and everyone moved outside. ¶ 14 When defendant got outside he heard 13 to 15 gunshots. He went up to the shooter, who he later learned was Brandon Bibbs but whom he had never seen before. Bibbs was standing outside of a car, on the driver's side, with a gun held down by his side. Defendant testified that he spoke to Bibbs "in a calm way" and told him, "[W]e cool. We don't do that around here. Just chill, you know***. He was like, okay, okay, okay." ¶ 15 Defendant then saw Williams running across the street from the house toward the car. Bibbs had his gun out. "That's when the exchange of fire happened. Some more shots rang out." When asked what he saw, defendant replied, "What did I see? Uh—you know, I uh—I did see who fired first, I uh—I can't recall." Defendant heard shots. He saw Bibbs shoot his gun and saw Williams shoot his gun. After the exchange of gunfire, defendant grabbed the gun from Bibbs. Bibbs got in his car and sped off. Defendant got in his own car and drove home. He gave the gun to Dontrel. Defendant could not remember why he gave the gun to Dontrel or whether he told Dontrel to do anything with the gun. He did not know at that time whether anyone had been shot. When defendant arrived home, Williams was there and had been shot in the leg. Defendant went upstairs and went to sleep. ¶ 16 Defendant went to the police station two days later and spoke with detectives. The video played for the jury contained a portion of that conversation. Defendant admitted his story changed a little bit from the beginning of the video to the end. He originally told the police he did not know how Bibbs got shot. He did not initially tell them about Williams coming up to the car and shooting because Williams was his friend and he "didn't want to get him into any trouble." Defendant never yelled to Williams, "bring that strap" or anything to that effect. When Williams was running up to the car, defendant was not aware Williams had a gun until the shooting occurred. It was only after the shooting that he took the gun from Bibbs. ¶ 17 In his interview with the police, defendant described his actions in taking the gun from Bibbs as a tussle, but it was nothing like a tussle. When Bibbs and Williams were shooting at each other, defendant and Bibbs were on the driver's side of the car and Williams was on the passenger side. After defendant grabbed the gun out of Bibbs' hand, Bibbs got in his car and drove off. Defendant and Dontrel got in their car; defendant was driving. Defendant could not remember what he did with the gun after he got in the car. After being reminded that he had previously stated that he gave the gun to Dontrel, defendant remembered that the gun was "kind of on my lap and towards the middle console." ¶ 18 Defendant drove from the scene of the shooting to his house on Ridgeway, about three blocks west. He did not have the gun when he got out of the car. Defendant had driven Williams and Dontrel to the party, but when defendant and Dontrel got home, Williams was already there. Williams had been shot in the leg. Defendant did not contact the police to tell them his friend had been shot. At that time, defendant did not know that Bibbs had died. When he went to the police later, he did not tell them the whole truth because Williams was his friend and defendant did not know what he was getting into. ¶ 19 Defendant further testified that the police showed him a video of a statement William made. All defendant heard was a brief second of the video. "All [Williams] said was that he shot. That's it. That's all I heard." The detectives did not tell him that Williams had admitted his part in the incident. The police told him that Williams was "already cooked," that he was "going down" for first degree murder. They told defendant to stop covering for Williams. The police told defendant that if he did not come forward about Williams, defendant would be charged as an accessory to murder. After the police showed defendant the video where Williams said he shot, defendant was more forthcoming in his conversation with the police. ¶ 20 After the defense rested and prior to closing arguments, the trial court held a meeting in chambers with the attorneys, a deputy sheriff, and one of the jurors Azucena Garcia. The deputy notified the court that at the end of the proceedings that day, Garcia had told her of an experience on the previous day. Garcia related that when she went to the parking lot after the court session the day before, she saw a woman and a boy who had been in the courtroom that day. The woman gave Garcia a dirty look. Both the woman and the boy checked Garcia's car and her face. Then they drove out of the parking lot. Garcia stayed in her car for five minutes before leaving the lot. The next day the boy returned to the courtroom. ¶ 21 That morning Garcia told another juror, Juan Aguirre, about the incident. The deputy sheriff stated that Aguirre had told her about the incident and asked the deputy if she could walk Garcia to her car. Aguirre's request was made in front of some other jurors as they were leaving the jury room. Juror Garcia stated she did not say anything about the incident to any other juror. The judge asked Garcia, "[D]o you think that will prevent you from being able to deliberate with the jury?" She replied, "Now I'm scared. I'm so nervous I don't know." ¶ 22 After Garcia left the judge's chambers, defense counsel requested a mistrial, stating the jury was tainted. The judge replied:
"All right. There is no communication that happened between these individuals out in the parking lot. She only knows that those individuals were in the courtroom today. She indicated that she relayed to another juror that she did not feel safe in the parking lot.
There is no threat that has been made, no communication that's being made. It's her interpretation of an observation that she makes of their faces. That's her personal belief. I will excuse her as a juror. I do not believe that there has been any communication about who these people were, and there was clearly no communication to her about that. They have been instructed that they may see witnesses. They may see people out in the—in the area, and they have been instructed not to talk to them. The other jurors will not know anything about what happened to Ms. Garcia and her being released from jury duty."¶ 23 Defense counsel asked the court to interview Juror Aguirre. The court remarked about the woman and boy in the parking lot that Garcia "doesn't know who they are, what relation they have to any of the parties in the courtroom or to the case at all, so at this point I'm not inclined to ask any further questions of the jurors." The judge stated she would excuse Garcia from the jury "unless the defense wishes to keep her." Defense counsel responded: "We will keep her. We will keep her. For the reasons you just stated, that she—she doesn't know who these individuals were and how they relate to the case. We will keep her." The judge asked the parties if they had anything to say and, when they did not, the judge stated:
"Okay. I'm advising both parties: I don't know who it is. I don't even know if it's actually related to this case or not. There's absolutely no evidence that these people are related to the case on trial here or not. I don't know. I don't know whose side they were here for. So the record is clear, there was zero communication with the juror. It was just stares and conduct that may have made this juror uncomfortable.¶ 24 Garcia was brought back to the courtroom and was released from jury duty. The judge ordered her not to speak to any other juror about the incident in the parking lot. ¶ 25 The next day, the judge met in chambers with counsel and Juan Aguirre. Aguirre stated that Garcia had told him the following. As she was walking to her car the day before, "they were giving her very bad looks, and it made her feel uncomfortable. *** She was very scared about the whole situation." When the sheriff's deputy walked in, Aguirre "brought it up to the sheriff's attention in front of the jurors." He asked that deputy to walk Garcia to her car. Aguirre could not recall a conversation with other jurors. When the judge asked Aguirre if he could still be fair and impartial and continue to sit as a juror, he replied "Oh, yes, definitely." After Aguirre was excused from chambers, defense counsel stated he had no objection to Aguirre staying on the jury but he would have asked Aguirre exactly what he said in front of the other jurors. The court ruled:
I do not believe that is enough at this time to declare a mistrial."
"At this time based on everything that has occurred, I don't believe that it's necessary to inquire of any of the other jurors. At best, all it is, is that Ms. Garcia saw somebody in the parking lot that may have frightened her. She doesn't know who they are, why they're in the parking lot, why they're in the courtroom, who they are here on, and whose behalf they are here on. And there is absolutely no communication.
I mean, we don't even know that that individual did anything. There is no allegation that anything inappropriate was done. It's more that Ms. Garcia appeared to be fearful for whatever reason, that's her own perception, and based on that I didn't think it was appropriate to keep her on.
But at this point I don't think it's necessary to inquire further of any of the other jurors based on what Mr. Aguirre has said to us."¶ 26 Aguirre was brought back into chambers and admonished that he was not to discuss with any of the jurors any conversations that he had with Garcia or anything that was discussed in chambers. Later, when the jury assembled in the courtroom, the judge told them, "Ms. Garcia is no longer with us. You are not to concern yourselves as to why she is no longer part of the jury." Garcia was replaced with the first alternate juror. ¶ 27 Defendant contends that the trial court abused its discretion when it failed to interview all members of the jury regarding their knowledge of Garcia's concerns regarding intimidation and/or declare a mistrial. ¶ 28 Whether to grant a mistrial and whether to question individual jurors regarding potential prejudicial conduct are matters within the discretion of the trial court. People v. Runge, 234 Ill. 2d 68, 104 (2009). The trial court is " 'in the trenches' " and always in a better position than a court of review to assess the probable reactions of jurors in a case over which he or she has presided. Id. (quoting United States v. Dominguez, 226 F.3d 1235, 1246 (11th Cir. 2000)). A trial court must recognize that " 'sometimes less is more' " and that questioning a jury about potential prejudicial conduct might compound the problem by drawing attention to it. Id. (quoting United States v. Peterson, 385 F.3d 127, 135 (2d Cir. 2004)). "A court abuses its discretion when its decision is clearly against logic, when it acts arbitrarily, without employing conscientious judgment, or when in view of all the circumstances, the court exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted." People v. Gray, 378 Ill. App. 3d 701, 706 (2008) ¶ 29 Defendant concedes that although he requested a mistrial when the issue arose, he failed to raise the issue in his posttrial motion, and that ordinarily failing to do so does not preserve the issue and will result in forfeiture. See People v. Cregan, 2011 IL App (4th) 100477 ¶ 16. "The plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The State concedes that this type of error is cognizable under the second prong of plain error. See People v. Thompson, 238 Ill. 2d 598, 613-14 (2010). ¶ 30 Defendant directs our attention to People v. Roberts, 214 Ill. 2d 106 (2005) and argues that his case warrants a similar outcome. In Roberts, one of the jurors had contact with a witness outside the courtroom before he testified. The juror brought the matter to the attention of the other jurors during deliberations and the jury sent a note to the trial judge asking how to address the issue. Id. at 111. In response, the trial court questioned the juror who had contact with the witness. Id. at 112. After learning that she had discussed the issue with "all of the other women on the jury," the trial court questioned the remaining 11 jurors individually. The trial court then dismissed the one juror and replaced her with an alternate. The trial court questioned the alternate about whether she had discussed the case with anyone and whether she had formed an opinion but did not question her about whether she had knowledge of the contact between the dismissed juror and the witness. Our supreme court found that the trial court abused its discretion by replacing the juror after deliberations had begun. Id. at 124. The supreme court noted, among other reasons, that the trial court failed to question the alternate juror in the same manner the other 11 members of the jury had been questioned. Id. ¶ 31 The State on the other hand relies on People v. Williams, 344 Ill. App. 3d 334 (2003). In Williams, a juror received a phone call from the county jail, and reported that she felt "uncomfortable" as a result. The juror informed the State's Attorney's office but did not tell any of her fellow jurors. The trial court heard testimony regarding the call, and the juror indicated that some other jurors discussed feeling uncomfortable because some people had watched or stared at the jury as they left the courtroom. The defendant moved for a mistrial. The trial court denied the motion but excused the juror. The trial court further indicated that its decision was based on the phone call not the spectator's conduct, and that he did not intend to question the other jurors lest they incorrectly assume that the spectator's conduct had anything to do with excusing the juror. Defendant appealed arguing it was error not to inquire further. This court affirmed holding that there was "no credible evidence" that the other jurors would not have been able to render a fair verdict, and that excused juror's observation that the other jurors were uncomfortable did not rise above a mere suspicion of impartiality. Id. at 337. ¶ 32 There are distinctions that can be drawn between this case and both Roberts and Williams, but we conclude that the situation presented is closer to Roberts and warrants a similar result. First, we note that communications with a juror during trial about the matter pending before the jury are presumptively prejudicial to a defendant's right to a fair trial. People v. Burns, 304 Ill. App. 3d 1, 6 (1999) (citing People. v Harris, 123 Ill. 2d 113, 132 (1988)). This presumption is not conclusive, but generally the burden rests on the State to establish that the contact with the jurors was harmless to the defendant. Id. If a defendant fails to object at trial and raise the issue in a posttrial motion, however, the claim is forfeited, the error can only be reviewed if the error rises to the level of plain error, and the burden of persuasion rests on the defendant. People v. Johnson, 238 Ill. 2d 478, 484-85 (2010). Here, because defendant alleges plain error, he bears the burden on showing prejudice. We conclude that, under the facts of this case, he has shown prejudice. ¶ 33 Like Roberts this case involved a communication, albeit a nonverbal one, with a juror, and the juror made the communication known to other jurors. This is in contrast to Williams where the improper phone call involved only a single juror who never communicated with other jurors about it. Here, it is difficult to determine how widely or in what detail the interaction between Garcia and the people in the parking lot was spread to the other jurors. We only know that Aguirre was informed of the incident in some level of detail and that he discussed the issue with a deputy in front of some or all of the remaining jurors. We cannot say with certainty which jurors heard of the parking lot incident or what they heard about it, because the trial court chose not to question the remaining jurors. This court has recognized that in the case of potential prejudice, the trial court should inquire of the jurors to discover as much information as possible. In re Commitment of Curtner, 2012 IL App (4th) 110820, ¶ 21. After the trial court has made an appropriate inquiry, it has wide discretion in determining how to respond to potential juror bias. People v. Runge, 234 Ill. 2d 68, 105 (20009). The court here chose not to make an appropriate inquiry, however, and thus no opportunity arose for the court to exercise its "wide discretion." ¶ 34 Although we recognize the desire of the trial court not to further taint the jury by questioning them about the incident and the basic principle that "sometimes less is more"; here the failure to inquire into the knowledge of the other jurors regarding the incident in the parking lot, simply left the trial court, the parties, and ultimately this court with unanswered questions regarding the jurors' knowledge. We don't know, for example, which jurors were exposed to information regarding the incident, whether they discussed it further among themselves or with the remaining jurors, or whether it affected their ability to rule fairly. ¶ 35 Despite the unanswered questions regarding the spread of knowledge of the parking lot incident, we do know enough to determine that defendant was prejudiced by the failure to inquire further about the incident. We know, for example, that knowledge of the incident was not limited to Garcia and Aguirre, but that Aguirre discussed the incident in front of other jurors with a sheriff's deputy. We also know that as part of that discussion, Aguirre indicated that Garcia was concerned enough about any interaction with spectators that she asked for an escort out of the courthouse. We cannot know whether the jurors who overheard this discussion, were, as a result, concerned for their own safety, or whether they spread that concern to other jurors as a result. Jury deliberation had not yet begun at the time these issues arose, and the simple task of inquiring of the remaining jurors whether they had been exposed to the incident and could remain impartial would have reconciled the level of potential prejudice. Leaving unasked simple questions such as these when doing so would eliminate the potential for prejudice, can itself be considered sufficient prejudice to reach the level of plain error. See People v. Mitchell, 121 Ill. App. 3d 193, 196 (1984). Accordingly, we conclude the trial court erred when it decided to not question the entire jury and subsequently abused its discretion when it denied defendant's request for a mistrial and that remand for a new trial is warranted. ¶ 36 A review of the record shows the evidence was sufficient to prove defendant guilty of the offenses beyond a reasonable doubt. We therefore conclude there is no double jeopardy impediment to a new trial. See People v. Fornear, 176 Ill. 2d 523, 535 (1997). We have made no conclusion as to defendant's guilt that would be binding on retrial. See id. ¶ 37 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand for further proceedings not inconsistent with this order. ¶ 38 Reversed and remanded.
A DVD of the edited interview is included in the record along with an unedited version. We have reviewed the edited version that was published to the jury. --------