People v. Jenkins

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARIUS…

Court: APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

Date published: May 16, 2014

2014 Ill. App. 5th 120177 (Ill. App. Ct. 2014)

Opinion

NO. 5-12-0177

05-16-2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARIUS JENKINS, Defendant-Appellant.

WELCH

NOTICE

Decision filed 05/16/14. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

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

St. Clair County.

No. 10-CF-356

Honorable

Randall W. Kelley,

Judge, presiding.

PRESIDING JUSTICE WELCH delivered the judgment of the court.

Justices Chapman and Cates concurred in the judgment.

ORDER

¶ 1 Held: The trial court erred by failing to conduct an adequate inquiry into whether the defendant's allegation that his trial counsel was ineffective required the appointment of new counsel and remand is appropriate where the record raises the question as to whether the defendant was entitled to additional credit for time served. ¶ 2 The defendant, Darius Jenkins, appeals from his conviction for first-degree murder after a jury found him guilty in the circuit court of St. Clair County. On appeal, the defendant argues (1) that the trial court erred by failing to conduct an adequate inquiry into whether his allegations that his trial counsel was ineffective required the appointment of new counsel, (2) that the trial court committed reversible error when it failed to read the entire modified jury instruction concerning the credibility of testimony by drug addicts, (3) that the trial court erred when it allowed a witness to testify regarding the decedent's identification of the defendant as the shooter under the excited-utterance exception to the hearsay rule, and (4) that he is entitled to additional time for credit served while held in pretrial custody. For the reasons that follow, we remand with directions. ¶ 3 The defendant raises multiple issues on appeal that concern his conviction. Because we find the first issue meritorious and dispositive, we need not address the issues concerning the modified jury instruction and the decedent's identification of the defendant as the shooter. ¶ 4 On April 12, 2010, the defendant was charged with first-degree murder for shooting Dominic Brown. The jury trial was held in December 2011. During the trial, Tiara Paine, Dominic Brown's wife, testified that she was a recovering heroin addict and had been clean for approximately three months. On July 27, 2009, the defendant, who was Brown's friend, dropped Brown and Paine off at her cousin's house in Washington Park. The defendant returned later that day to pick up Brown to go buy heroin. After they returned, Paine heard Brown and the defendant arguing because the defendant had been shorted $75 worth of heroin, and he wanted Brown to contact the dealer to get his money back. ¶ 5 Later that day, Brown and Paine decided to walk to a nearby convenience store. ¶ 6 They were walking through an alleyway and had walked past the Touch of Class bar when they observed the defendant walking toward them. The defendant approached and told Brown that he needed his money. Brown responded that he did not have any money, and the defendant pulled out a gun and used it to hit Brown in the face. Brown then turned to run and was shot three times. The defendant then turned toward Paine and attempted to shoot her, but the gun did not fire when he pulled the trigger. The defendant ran out of the alley and ran toward his house. The police officers arrived at the scene approximately 15 minutes later. ¶ 7 Arthur Reed testified that he had a history of drug addiction and was high on crack on the night of the murder. That night, he had entered the Touch of Class bar with the intention of stealing alcohol and other items so he could sell them and purchase drugs. While inside the building, he thought that he heard Paine and Brown arguing with each other. He exited the building because he did not want to get caught inside. As he headed toward a fence behind the Touch of Class, he heard a gunshot. He then hid in some weeds behind the fence. From his hiding place, he observed the defendant run past him with a gun in his hands. ¶ 8 Dorian Schooler, Brown's cousin, testified that on the night of the shooting, he was standing in the parking lot of a convenience store when he observed the defendant, Paine, and Brown enter a nearby alleyway. He subsequently heard approximately three gunshots coming from the direction of the alley and observed Brown fall to the ground. Schooler rushed to the alley and found Brown lying on the ground. He then went to Brown and asked who had shot him, and Brown responded "Darius." Paine was hysterical and crying, and Schooler and Paine stayed with Brown until the ambulance arrived. Schooler did not observe anyone other than Paine in the alley after the shooting, but he thought that he had heard the defendant's truck start up and drive away. ¶ 9 Fred Robinson testified that he was sitting outside on a porch behind the Touch of Class bar on the night of the shooting. He had been sitting outside for "awhile" and did not see anyone walk by in the alley. He heard two gunshots coming from the entrance to the alley, which was near the front of the Touch of Class bar. He did not think that the bar was burglarized that night because he was sitting in front of the back door and he could see the front door from his vantage point. The doors were the only way to get inside. He also did not see anyone in the alley after the shots were fired. ¶ 10 Jaune Curry, a friend of the defendant's wife, testified that she was at the defendant's house on the night in question. Curry arrived at approximately 8 p.m. and stayed for 35 to 40 minutes. The shooting took place at approximately 9 p.m. The defendant was present at the house the entire time. She left the house to go to a nearby store, and as she was leaving the store, she observed police cars around the corner from the defendant's house. Curry then called the defendant's wife to let her know that something was happening in the neighborhood. She did not remember telling a police officer that she did not know whether the defendant was home that night. ¶ 11 Darnetta Jenkins, the defendant's wife, testified that the defendant was home with her from approximately 7 p.m. until 9:40 p.m. on the night of the shooting. Curry was at the house until approximately 8:30 p.m., and Darnetta received a phone call from Curry shortly after she had left. Darnetta left the house at approximately 9:40 p.m., and the defendant was still there. She explained that the police never contacted her, and she did not initially tell the police about her husband being at home during the shooting because she was not aware that they were looking for him. After he was initially arrested, he was released and Darnetta believed that he had been cleared of the charges. ¶ 12 Mark Lopinot, an investigator with the St. Clair County State's Attorney's office, testified that Curry had advised him that she did not know whether the defendant was at home on the night of the shooting. Robert O'Brien, a former investigator with the Illinois State Police, testified that he had interviewed the defendant about the shooting and the defendant had stated that he was with two unidentified females on the night in question. O'Brien further testified that he also interviewed Robinson, and Robinson had told him that he saw an unidentified male walking behind the alley on the night of the shooting. ¶ 13 After hearing the evidence, the jury found the defendant guilty of first-degree murder. On February 22, 2012, the trial court sentenced the defendant to 45 years' imprisonment. Following the announcement of the sentence, the defendant's counsel indicated that the defendant wanted to address the court. The defendant stated as follows:

"It's my understanding that I would have to say-bring this up now or I won't be able to bring it up on appeal. I believe that there were [sic] evidence that wasn't filed during trial that probably could have helped exonerate me for my innocence. So I would have to bring it forth or I wouldn't be able to bring it up on appeal. My counsel is ineffective. They didn't bring it to the table then."

In response, the court informed the defendant that "those are issues that you'll be able to raise on appeal-or in post-conviction proceedings." ¶ 14 On March 9, 2012, the defendant's counsel filed a motion to reduce sentence. On March 16, 2012, the defendant filed a pro se motion for reduction of sentence. A hearing on both motions was held on March 19, 2012. During the hearing, the defendant's counsel indicated that the defendant wanted to withdraw his pro se motion and proceed on the March 9 motion. The court asked the defendant whether counsel's statement was correct, and the defendant answered in the affirmative. The court then noted that the defendant's pro se motion contained several allegations and informed the defendant that he was not forfeiting any of his arguments by allowing counsel to proceed. The court stated that the defendant will "get to present anything you want to state to me this morning." The court then asked whether the State was ready to proceed. The court then stated as follows:

"Okay. The court would note that at the conclusion of the sentencing proceeding that was held on February 22 Mr. Jenkins did make a suggestion or an allegation of-to protect a record of ineffective assistance of counsel. Mr. Jenkins, do you want Mr. Davis to continue to proceed on your behalf at this time?"

¶ 15 The defendant answered that he wanted counsel to proceed on his behalf. The court then asked the defendant's counsel whether there was "any clarification" that he needed at this point and further stated that it was clear that the defendant "indicated that he values [counsel's] representation to proceed on his behalf at this time." The defendant's counsel responded that he had spoken with the defendant and that the defendant had indicated that he wanted counsel to "proceed on his behalf at this hearing." Thereafter, the court denied the defendant's motion to reduce sentence. The defendant appeals. ¶ 16 The question of whether the trial court adequately inquired into the defendant's claim of ineffective assistance of counsel is a question of law that is reviewed de novo. People v. Moore, 207 Ill. 2d 68, 75 (2003). Where the defendant raises a pro se posttrial claim of ineffective assistance of counsel, the trial court should examine the factual basis of the claim, and under certain circumstances, must appoint new counsel to argue the claim. Id. at 77-78. However, new counsel is not automatically required merely because the defendant presents a pro se posttrial claim that his counsel was ineffective. Id. at 77. If the court determines that the defendant's claim lacks merit or only pertains to matters of trial strategy, then the court need not appoint new counsel and may deny the defendant's pro se motion. Id. at 78. If, however, the defendant's allegations show possible neglect of the case, the court should appoint new counsel to argue the defendant's claim of ineffective assistance. Id. ¶ 17 "The operative concern for the reviewing court is whether the trial court conducted an adequate inquiry into the defendant's pro se allegations of ineffective assistance of counsel." Id. The pro se defendant is not required to do "any more than bring his or her claim to the trial court's attention." Id. at 79. However, a bald allegation that counsel rendered inadequate representation is insufficient to trigger the court's duty to conduct a preliminary inquiry. People v. Ward, 371 Ill. App. 3d 382, 432 (2007). ¶ 18 An adequate examination of the defendant's pro se allegations can include any of the following: (1) the court may simply ask trial counsel questions about the facts and circumstances surrounding the defendant's allegations, (2) the court can engage in a brief discussion with the defendant, or (3) the court can base its evaluation on its personal knowledge of defense counsel's performance at the trial and the insufficiency of the defendant's allegations on their face. Moore, 207 Ill. 2d at 78-79. ¶ 19 In the present case, there is no indication in the record that the trial court made any inquiry into the defendant's pro se claim. The trial court merely instructed that the defendant would be able to raise his ineffective-assistance-of-counsel argument on appeal or in postconviction proceedings. ¶ 20 The State argues that the defendant's "bare oral allegation of ineffective assistance of counsel," which contained no nexus between counsel's performance and unspecified evidence, was insufficient to trigger the court's duty to conduct a preliminary inquiry. However, we note that the defendant did not merely make a bald allegation of ineffective assistance of counsel as he claimed that his counsel was ineffective for failing to introduce evidence that would "have helped exonerate [him] for [his] innocence." As previously stated, the defendant is not required to do any more than bring his claim to the trial court's attention. We also note that the court's response to the defendant's pro se claim discouraged any further discussion concerning the defendant's ineffective-assistance claim because the defendant was told that his claim should be raised on appeal or in postconviction proceedings, which resulted in him not being able to set forth any specifics concerning his allegation. ¶ 21 The State also argues that the court's subsequent inquiry at the hearing on the motions to reduce sentence was sufficient to satisfy the trial court's duty to conduct a preliminary inquiry. From our review of the record, we find that the court's inquiry was limited to whether the defendant wanted counsel's continued representation at the hearing on the motion to reduce sentence. The State is correct that the court mentioned the defendant's prior pro se ineffective-assistance claim; however, the court did not conduct a preliminary inquiry into this claim at the hearing. Instead, the discussion concerned whether the defendant wanted to proceed with counsel for the limited purpose of the hearing on the motion to reduce sentence. Therefore, this discussion did not relieve the trial court of its duty to conduct a preliminary inquiry into the defendant's pro se claim. ¶ 22 Accordingly, we conclude that the trial court erred by failing to conduct a proper inquiry into the defendant's pro se posttrial claim of ineffective assistance of counsel. Where there is no inquiry and there is no indication that the trial court gave adequate consideration to the defendant's pro se allegations, the only appropriate action for the reviewing court is to remand the matter so that the trial court can conduct a proper inquiry. Moore, 207 Ill. 2d at 79. We want to emphasize that we are not remanding for a full evidentiary hearing and the appointment of counsel on the defendant's claim. See id. at 81. Instead, we are only remanding for the limited purpose of allowing the trial court to conduct the required preliminary investigation. "If the court determines that the claim of ineffectiveness is spurious or pertains only to trial strategy, the court may then deny the motion and leave standing defendant's convictions and sentences. If the trial court denies the motion, defendant may still appeal his assertion of ineffective assistance of counsel along with his other assignments of error." Id. at 81-82. ¶ 23 We now address the defendant's argument that he is entitled to additional credit for time served. A defendant is entitled to one day of credit against his sentence for every day, or portion thereof, that he spends in custody prior to sentencing. 730 ILCS 5/5-4.5-100(b) (West 2010); People v. Whitmore, 313 Ill. App. 3d 117, 120 (2000). The defendant was given credit for pretrial custody from December 20, 2010, until his sentencing date. However, he argues that he was also held for three days in September 2009 in connection with the first-degree-murder charge, and that this was verified by the testimony of his wife at the trial. The State concedes that the record raises the question as to whether the defendant was in custody for the first-degree-murder charge in September 2009, and if so, for how long. The State argues that remand is appropriate to permit the trial court to make the determination as to whether the defendant is entitled to additional credit for time served. Accordingly, we remand to the trial court for a determination as to whether the defendant is entitled to additional credit for time served. ¶ 24 For the foregoing reasons, we remand the cause to the circuit court of St. Clair County with directions to the trial judge to conduct a proper inquiry into the defendant's posttrial claim of ineffective assistance of counsel and to calculate how many days of pretrial credit the defendant is entitled to for time spent in custody. ¶ 25 Remanded with directions.