Opinion
NO. 4-14-1081
05-03-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAJIV D. RICE, 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 Circuit Court of Macon County
No. 14CF302
Honorable Timothy J. Steadman, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Turner concurred in the judgment.
Justice Appleton specially concurred.
ORDER
¶ 1 Held: The appellate court affirmed, concluding that (1) the trial court did not err by admitting evidence that defendant was a member of a gang; (2) the prosecutor's closing and rebuttal arguments were not improper; (3) the evidence was sufficient to prove defendant guilty beyond a reasonable doubt; and (4) the court would decline, in this direct appeal, to address defendant's claim that his trial counsel was ineffective, suggesting instead that defendant may pursue that matter in a postconviction petition.
¶ 2 A jury found defendant, Rajiv D. Rice, guilty of attempt (first degree murder) (720 ILCS 5/8-4(a), (c)(1)(B), 9-1(a)(1) (West 2014)), and the trial court imposed an aggregate prison sentence of 40 years: 25 years for attempt (first degree murder) plus 15 years for using a firearm during the commission of that offense. Defendant appeals, raising four claims.
¶ 3 First, he accuses his defense counsel of ineffective assistance in that, but for defense counsel's failure to object to a period of delay, a subsequent motion for dismissal on
speedy-trial grounds would have been granted. We do not reach the merits of defendant's claim because we determine that the claim is more appropriately brought in a postconviction petition, where fact finding can be conducted.
¶ 4 Second, defendant argues the trial court committed reversible error by admitting evidence that he was a member of a gang. Without determining whether admission of the evidence was error, we conclude that any potential error did not affect the outcome of the trial and would therefore be harmless.
¶ 5 Third, defendant argues the State failed to prove him guilty beyond a reasonable doubt of attempt (first degree murder) because the State failed to prove an intent, on his part, to commit murder or to facilitate or promote a murder. However, when we regard all the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could find this element to be proved beyond a reasonable doubt.
¶ 6 Fourth, defendant claims that in the prosecutor's closing and rebuttal arguments, she deprived him of a fair trial and committed plain error by asserting that defendant and his alleged coconspirator lured the victim into the open, to be shot. We find no error at all in the prosecutor's argument and conclude that she was arguing a reasonable inference from the evidence.
¶ 7 Therefore, we affirm the trial court's judgment.
¶ 8 I. BACKGROUND
¶ 9 A. The Pretrial Motion for Dismissal on Speedy-Trial Grounds
¶ 10 On July 15, 2014, defendant moved to dismiss the charge against him on the ground that he had not been "tried *** within 120 days from the date he *** was taken into custody." 725 ILCS 5/103-5(a) (West 2014). In the hearing on the motion, it was established that
he had been continuously in custody since March 16, 2014. Defendant asserted that since his arrest, he had moved for a continuance of only seven days.
¶ 11 Defendant's motion raised a question, however, of whether the period from the preliminary hearing, on April 10, 2014, to the pretrial hearing, on May 29, 2014 (ultimately rescheduled to May 30, 2014), should be attributed to defendant. At the hearing on defendant's motion, defense counsel argued the answer was no. He noted that, in the preliminary hearing on April 10, 2014, it was the trial court's idea, not his idea, to schedule the pretrial hearing for May 29, 2014. Neither the prosecutor nor defense counsel moved for a continuance from April 10 to May 29, 2014; instead, the court, on its own initiative, simply consulted its calendar and set the pretrial hearing. Therefore, defense counsel resisted any suggestion that this period was attributable to defendant.
¶ 12 The prosecutor argued, on the other hand, that if defendant had wanted an immediate trial on April 10, 2014, he could have demanded one and that, absent such a demand, the period from April 10 to May 29, 2014, was attributable to him through his acquiescence or failure to object.
¶ 13 The trial court noted that, under cases such as People v. Cordell, 223 Ill. 2d 380, 860 N.E.2d 323 (2006), "a defendant [could] agree to a delay through inaction, namely[,] by failing to object." The court held that, because defendant never objected to scheduling the pretrial hearing for May 29, 2014, the period from April 10 to May 29, 2014, was attributable to him. Therefore, the court denied his motion for dismissal on speedy-trial grounds.
¶ 14 B. Defendant's Jury Trial
¶ 15 1. The Shooting, as Katari Smith Described It in His Testimony
¶ 16 On March 16, 2014, Katari Smith and a few others were in his girlfriend's apartment on Moundford Terrace, in Decatur, Illinois. His car was parked on the street below, and, at about 2 p.m., he heard a window of his car being broken. He looked out a window of the apartment and saw a man in a "hoodie" standing by his car. (Forensic chemical analysis would later reveal that Smith's car had been set on fire with gasoline.) Another car, gray or silver in color, was parked nearby, with its passenger door open, and a man was sitting in the passenger seat of that car.
¶ 17 Smith ran downstairs and out of the apartment building toward his car. He then got shot in the knee. He did not see who shot him and never saw a shooter. He crawled back into the apartment building.
¶ 18 2. The Police Pursue the Gray Car
¶ 19 About three minutes after the shooting, Decatur police officer Corey Barrows was driving north on 22nd Street when a large four-door gray car with tinted windows went by, heading south at a high rate of speed. Because the car appeared to match the description of the car seen at the shooting, Barrows turned around and tried to catch up, his emergency lights flashing.
¶ 20 There was a chase through residential neighborhoods, at times reaching 60 miles per hour. On North 21st Street, about a hundred yards south of its intersection with East Locust Street, something dark fell out of the gray car. Barrows slowed down momentarily to take a look, and it appeared to be shattered glass held together by window tinting.
¶ 21 The gray car finally came to a halt, and Barrows and some other police officers performed a traffic stop. The driver of the gray car was Rafael Kennedy, and defendant was his
passenger. In an inventory search of the car, Barrows found two spent .45-caliber shell casings: one on the rear passenger-side floorboard and the other on the rear driver's-side floorboard.
¶ 22 The owner of the gray car, Chelsea Grider, testified she had loaned it to Kennedy so that she could use his van to move. She denied there were any shell casings in her car when Kennedy took possession of it.
¶ 23 3. The Discovery of Two Pistols on the Side of North 21st Street
¶ 24 Decatur police officer Jeffrey McAdam went to North 21st Street, a little south of its intersection with East Locust Street, where Barrows had seen something fall from the gray car. On the side of North 21st Street, McAdam found the fragments of a car window and two pistols, a .45-caliber Remington and a .40-caliber Ruger.
¶ 25 If a car had been going south on North 21st Street, the passenger side of the car would have been closest to where the pistols were found.
¶ 26 4. What Was Found at the Scene of the Shooting and in the Apartment
¶ 27 At the scene of the shooting, Detective James Wrigley found four spent .45-caliber shell casings on the road where the gray car had been parked.
¶ 28 In between the road and the back of the apartment building was a fence, which was perforated by bullet holes, apparently from rounds going both ways.
¶ 29 Inside the fenced-in area, Wrigley found 12 spent .380-caliber shell casings, two projectiles, and blood on the sidewalk.
¶ 30 Inside the apartment, he found more blood and a live bullet. In a garbage can in the kitchen, he found an empty .380-caliber ammunition box, which was stuffed inside a cereal box. Two .380-caliber pistols were in the attic.
¶ 31 5. The Shooting of Tyheim Johnson Earlier That Day
¶ 32 Smith was shot on the afternoon of March 20, 2014. Earlier that same day, in the morning, Tyheim Johnson was shot.
¶ 33 Detective David Pruitt testified that, according to statements he had received during his investigation, Johnson was Kennedy's cousin.
¶ 34 Smith testified that he did not know Johnson, he did not know how the .380-caliber shell casings came to be in the yard of the apartment building or how the two .380-caliber pistols came to be in the attic of the apartment, and he did know of any dispute between gangs. He claimed to be unaware any shots were fired from the apartment building.
¶ 35 6. Ballistics Analyses
¶ 36 Beth Patty was a forensic scientist with the Illinois State Police, and one of her specialties was firearms identification. By test-firing the pistols in this case and examining the distinctive marks left on the shell casings and the projectiles, she was able to make three determinations.
¶ 37 First, the four .45-caliber shell casings found in the street behind the apartment building, where the gray car had been parked, came from the .45-caliber Remington pistol found on the side of North 21st Street.
¶ 38 Second, the .380-caliber shell casings found in the yard of the apartment building came from the two .380-caliber pistols found in the attic of the apartment.
¶ 39 Third, the nine .380-caliber shell casings found at the scene where Johnson was shot came from one of the .380-caliber pistols found in the attic of the apartment.
¶ 40 7. Gunshot Residue
¶ 41 Particle samples were collected from defendant's hands, Kennedy's hands, and the cuffs of Kennedy's "hoodie." Mary Wong, a forensic scientist with the Illinois State Police forensic science division, tested these samples for gunshot residue.
¶ 42 The samples from defendant's hands consisted merely of "particles characteristic of background samples"—that is, "particles *** also found in everyday life"—leading Wong to conclude that defendant did not fire a firearm or that, if he did so, the gunshot residue particles were removed by activity, were not deposited in the first place, or were not detected by the electron scanning microscope.
¶ 43 Likewise, in the samples from Kennedy's hands, she found merely "particles characteristic of background samples."
¶ 44 In the samples from Kennedy's "hoodie," however, she found "a minimum of three tricomponent particles" (lead, barium, and antimony), "as well as consistent particles," leading her to conclude that the "hoodie" "was either in the vicinity of a discharged firearm or it came in contact with a primer gunshot residue related item."
¶ 45 She explained that particles pertaining to gunshot residue get lost within six hours after they have been deposited on a live subject. Instead of getting lost all at once, the particles got lost "exponentially," "by the tenfold": 100 particles in the first hour, 10,000 particles in the second hour, and so forth.
¶ 46 By her understanding, 4 1/2 hours passed before a gunshot residue kit was collected from defendant, and 1 hour and 55 minutes passed before one was collected from Kennedy.
¶ 47 8. DNA Analysis
¶ 48 Jennifer Aper was a forensic scientist with the Illinois State Police, and her specialty was analyzing deoxyribonucleic acid (DNA).
¶ 49 She testified that another forensic scientist, Cory Formea, had collected DNA standards from defendant and Kennedy. Formea also had swabbed the four pistols: the .45-caliber Remington pistol, the .40-caliber Ruger pistol, the .380-caliber Browning pistol, and the .380-caliber Ruger pistol.
¶ 50 In the skin cells collected from the grip of the .45-caliber Remington pistol, Aper found "a mixture of DNA from at least three people, so three people were contributing DNA to this." One person had contributed more DNA than the others, so she "was able to interpret this profile as a major contributor." Of the 16 different areas of DNA that she examined, she "was only able to interpret this major contributor at [5] of those areas." She testified: "I compared the known standards from this case to that major DNA profile, and [defendant] cannot be excluded from being the contributor. Rafael Kennedy can be excluded from being that major contributor."
¶ 51 After arriving at the conclusion that defendant could not be excluded from being the major contributor of DNA on the .45-caliber Remington pistol, the next step, Aper explained, was to "determine how common or how rare that profile [was] in the population." She testified:
"And I calculated that for this major contributor from the handgun, approximately [1] in 74,000 unrelated African American individuals cannot be excluded for having contributed to that major profile.
One in 240,000 unrelated Caucasian individuals cannot be excluded. And [1] in 600,000 unrelated southwest Hispanic individuals cannot be excluded from being a contributor of that major DNA profile.
Q. When you say someone has been excluded, can you just explain what that means.
A. Um, if I'm saying that somebody is excluded, I'm saying that DNA did not come from that person.
* * *
Q. (BY MS. DOMASH [(prosecutor)]: And if you say that someone cannot be excluded, then we just turn to the statistical probability that you just mentioned?
A. Yes. When I say somebody cannot be excluded, I'm just saying that this person is a possible source of that DNA profile, and we assign a frequency to it so you'll know how many people in the population could be the donor of that DNA profile."
¶ 52 As for the swab from the .40-caliber Ruger pistol, it contained a mixture of DNA from at least four people, and Aper "was not able to either include or exclude [defendant] or Rafael Kennedy from being a donor of the mixture of DNA profiles."
¶ 53 Both .380-caliber pistols had a mixture of DNA from different people, but, because the "data [was] incomplete," she "[could not] use it for any interpretations or comparison."
¶ 54 9. The Picture on Defendant's Cell Phone
of Someone Posing with the .40-Caliber Ruger Pistol
¶ 55 Detective David Dailey testified that, on November 20, 2013, he "extracted," from defendant's cell phone, "[a] photograph of what appeared to be an African American holding what appeared to be a handgun." "The metadata on the image showed that the photograph was taken [on] October 11, 2013," in the 500 block of West North Street, in Decatur.
"From simply viewing the photograph," Dailey was not "able to determine the identity of the person holding the handgun." But the serial number of the handgun was visible in the picture, and Dailey forwarded the picture to Detective Scott Cline, who was in charge of tracing firearms.
¶ 56 The State next called Cline, who testified the serial number was that of the .40-caliber Ruger pistol found on the side of North 21st Street.
¶ 57 10. Defendant's Statement to the Police
¶ 58 Detective Eric Ethell testified that on March 16, 2014, in the police station, defendant signed a Miranda waiver (see Miranda v. Arizona, 384 U.S. 436 (1966)), after which Ethell interviewed him.
¶ 59 In the interview, which was video-recorded, defendant told Ethell the following. He was a passenger in Kennedy's car. They were en route to a birthday party for Kennedy's daughter. Kennedy told defendant he needed to stop along the way and do some unspecified errands. Defendant did not know what was going on. He did not know of any conflict or disagreement. He had no idea why Kennedy stopped at the apartment building and got out of the car. Defendant was minding his own business, leaning back in the passenger seat and looking at his cell phone, browsing Facebook and sending text messages, when he heard gunshots. Three of the rounds flew by his head, and another three rounds went through the window next to where he was sitting. He ducked down and wetted himself (in the police station, Ethell saw no indication of this), and he felt a burning sensation on his back where fragments of the passenger window had fallen down on him. Kennedy hurriedly returned to the driver's seat, stomped on the gas, and drove them away from there.
¶ 60 11. The East Side Gang and the West Side Gang
¶ 61 a. Defendant's Motion in Limine
¶ 62 At the beginning of the second day of trial, defense counsel made an oral motion in limine, asking the trial court to bar the State from presenting evidence that defendant was a member of a gang. Defense counsel argued that the evidence would be inflammatory to the jury and that, before allowing the State to present the evidence, the court should require a showing of relevance: "that activity or membership in the gang in some way [was] related to the criminal charge here, or in some way [was] related to advancing the purpose of the gang."
¶ 63 Agreeing that the relevance of gangs had to be shown, the trial court asked the prosecutor for her response. She responded that evidence of gang membership was relevant to prove a motive for the crime. The motive, she suggested, was revenge: the West Side Gang avenging the shooting of one of its members, Johnson, by the East Side Gang. Johnson was shot at 11 a.m. on March 16, 2014, and Smith was shot only a few hours later that same day. Smith was a member of the East Side Gang, and the shooting of Johnson was forensically linked to the apartment where Smith was present when Kennedy torched his car, inducing Smith to come out of the apartment building and be shot. The rounds fired at Johnson, earlier in the day, had been fired from one of the .380-caliber pistols found in the attic of that very same apartment, the apartment of Smith's girlfriend. Defendant and Kennedy were members of the West Side Gang, and, as gang members, the prosecutor argued, they had a motive to retaliate against Smith for the shooting of their fellow gang member, Johnson.
¶ 64 Defense counsel rejoined: "But there's nothing tied together that the activity which [defendant] took part in was related to that earlier shooting that day or that he even had any knowledge of this shooting that day."
¶ 65 The trial court asked the prosecutor if Johnson (the victim of the earlier shooting) could identify his assailant. The prosecutor answered no. Even so, the prosecutor argued
relevance on the basis of (1) "[t]iming" and (2) "the link[,] ballistically[,] between the firearm used in [the] shooting [of Johnson] and where that firearm was recovered."
¶ 66 On the basis of these representations by the prosecutor and on the assumption that the evidence would bear out these representations (if it did not, there could be a mistrial, the trial court warned), the court concluded that "membership or activity of a gang [was] related to the crime charged" by providing a motive, namely, "retaliation between two gangs." In the court's view, this relevance to motive outweighed the possibility of unfair prejudice. Therefore, the court denied defendant's motion in limine. In support of its ruling, the court cited People v. Pikes, 2013 IL 115171, 998 N.E.2d 1247, and the court quoted from People v. Patterson, 154 Ill. 2d 414, 458, 610 N.E.2d 16, 36 (1993).
¶ 67 b. Evidence Adduced Regarding Gangs
¶ 68 The prosecutor called Pruitt to the stand, but, before the prosecutor began questioning him, the trial court gave the jury a limiting instruction. The court instructed the jury that evidence would be received regarding defendant's gang affiliation and that the jury should consider this evidence only for purposes of "defendant's identification and motive," giving the evidence whatever weight, for those limited purposes, the jury saw fit to give it.
¶ 69 Pruitt testified that on the basis of his investigations, which included "looking at the Facebook pages of specific individuals," he "believe[d] this defendant to be involved in" the West Side Gang of Decatur.
¶ 70 Also, Pruitt recounted a telephone call that defendant made from the Macon County jail, on June 20, 2014, and which was recorded, in which defendant said he had gotten into a fight with some other inmates, who had identified themselves as being members of the
East Side Gang. On cross-examination, however, Pruitt admitted that, in this telephone call, defendant never mentioned he was a member of the West Side Gang.
¶ 71 The State next called Officer Kyle Daniels, and the trial court repeated its limiting instruction regarding gang affiliation. Daniels testified that during his five years as a patrol officer for the Decatur police department, he had learned of the existence of the East Side Gang and the West Side Gang, which were antagonistic toward each other. The central location of the West Side Gang—which also went by the initials "U.S.M.G.," for "Union Street Murder Gang"—was the 1200 and 1300 blocks of North Union Street. The central location of the East Side Gang was "the 1100 block of East Leafland [Avenue] and Walnut and Lowber [Streets]." On the basis of his personal experiences and his Facebook and YouTube investigations, Daniels testified that defendant, Kennedy, and Johnson were members of the West Side Gang and that Smith was a member of the East Side Gang.
¶ 72 12. Closing Arguments
¶ 73 In her closing argument to the jury, the prosecutor claimed that defendant and Kennedy "went to this apartment with one objective, and that was to kill somebody." Repeatedly, the prosecutor argued they went to the apartment with "a plan," which they "enacted": Kennedy set fire to Smith's car to lure him out of the apartment, while "the other person," defendant, was "lying in wait to shoot [Smith]" when he came out.
¶ 74 Defense counsel pushed back against that argument. He insisted there was no evidence that defendant knew Kennedy was going to set Smith's car on fire or that he knew Kennedy was going to shoot Smith. Defendant testified he was with Kennedy, only because he thought they were going to a birthday party for Kennedy's daughter. Defense counsel noted that
the victim, Smith, never claimed he saw anyone lying in wait; instead, all he saw was one person standing beside his car and a second person sitting in another car.
¶ 75 II. ANALYSIS
¶ 76 A. Alleged Ineffective Assistance of Counsel
in Failing To Object to a Delay
¶ 77 On April 10, 2014, when the trial court scheduled the pretrial hearing for May 29, 2014, defense counsel did not object. In that respect, defendant argues, defense counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). Defendant believes that the lack of an objection to the 49-day "delay" from April 10 to May 29, 2014, caused the "delay" to be attributable to him and thereby deprived him of a dismissal of the charges, pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 2014) ("Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he or she was taken into custody unless delay is occasioned by the defendant ***.")). He reasons that the only other period of time attributable to him from the date of his arrest (March 16, 2014) to the date of the hearing on his motion for dismissal (July 31, 2014) was the seven-day continuance from March 20 to 27, 2014, which the trial court had granted on his motion so that he could obtain private counsel. (The filing of the motion for dismissal, on July 15, 2014, caused no additional delay, because the day before, on July 14, 2014, the court granted the State's motion to continue the trial until August 20, 2014.) It was 137 days from March 16 to July 31, 2014, and subtracting the 7 days attributable to him would have left a difference of 130 days, which would have exceeded the 120-day deadline in section 103-5(a), assuming that no more days were attributable to him. But the lack of an objection on April 10, 2014, made the days from that date to May 29, 2014, attributable to him, or so he assumes. Thus, on July 31, 2014,
when his motion for dismissal was heard, the hand of the speedy-trial clock was pointing at day 91 instead of day 130, by his reckoning (130 days minus 49 days equals 91 days). See id. ("Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record.").
¶ 78 We decline to address defendant's claim in this appeal because his claim is more suitable to a collateral proceeding. In People v. Kunze, 193 Ill. App. 3d 708, 725-26, 550 N.E.2d 284, 296, (1990), we held that "[w]here *** consideration of matters outside of the record is required in order to adjudicate the issues presented for review, the defendant's contentions are more appropriately addressed in proceedings on a petition for post-conviction relief."
¶ 79 Recently, in People v. Veach, 2016 IL App (4th) 130888, 50 N.E.3d 87, we followed the holding of Kunze and suggested three categories to use to organize claims of ineffective assistance of counsel raised on direct appeal. Category A cases involve those claims which require consideration of matters outside the record. We will not consider Category A cases on direct appeal, preferring them to be raised instead in a collateral proceeding, where further fact finding can occur. Category B cases involve claims of ineffective assistance that we will address on direct appeal because no further fact finding is needed to determine that the claims are clearly groundless. Finally, we will address Category C cases on direct appeal because no further fact finding is needed to determine that the claims are clearly meritorious.
¶ 80 This appeal falls into Category A. We cannot decide the merits of defendant's claim until we know more facts. Accordingly, defendant's claim is better suited to a postconviction proceeding, where additional fact finding can occur.
¶ 81 The following facts would be helpful to resolving defendant's claim of ineffective assistance of counsel. We do not know what defense counsel was thinking at the April 10, 2014,
hearing, when the trial court scheduled the next hearing in this case for May 29, 2014. In particular, we do not know whether defense counsel considered the scheduling of the May 29, 2014, hearing as a continuance or merely as the scheduling of a hearing that would not affect the eventual trial date. Further, we do not know how the State and the trial court would have reacted had defendant objected to May 29, 2014, as the date for next hearing in this case and instead had demanded trial, so as to enforce his rights under section 103-5 of the Code (725 ILCS 5/103-5 (West 2014)). Assuming defense counsel had taken this action, the State and the trial court would have had had ample time to adjust the trial date to comply with the speedy-trial timeline. Under those circumstances, any objection by trial counsel to the "delay" would have been futile, and counsel's deciding not to make a futile objection cannot serve as the basis for a claim of ineffective assistance of counsel. Defendant's claim of ineffective assistance is better suited for a collateral proceeding, where these factual uncertainties can be addressed and resolved.
¶ 82 We note that defendant, in his appellate brief, does not challenge the trial court's denial of his motion to dismiss on speedy-trial grounds. Rather, his claim of ineffective assistance of trial counsel presupposes the correctness of the denial. Therefore, we will not review the denial of the motion for dismissal.
¶ 83 B. The Admission of Evidence That Defendant Was a Member of a Gang
¶ 84 Defendant next argues that the trial court abused its discretion and committed reversible error by allowing the State to present evidence tying him to a gang. Defendant contends that such evidence was irrelevant and unfairly prejudicial because there was no evidence that the crimes of which he was charged had anything to do with a gang.
¶ 85 In response, the State contends that the gang evidence was admissible as part of a continuing narrative of the events leading up to defendant's shooting of Smith and provided a
motive for that shooting. Citing People v. Pikes, 2013 IL 115171, ¶¶ 20-27, 998 N.E.2d 1247, and People v. Johnson, 368 Ill. App. 3d 1146, 1155-56, 859 N.E.2d 290, 299-300 (2006), the State contends that the earlier gang-related shooting, as well as the evidence about defendant's gang membership, "provided a context and backdrop against which the instant offense was committed." We agree. In Pikes, the supreme court ruled that earlier gang-related events were properly admitted as a continuing narrative to explain why the defendants in that case attacked the victim. Pikes, 2013 IL 115171, ¶ 18, 998 N.E.2d 1247. In Johnson, this court deemed other-crimes evidence admissible as a continuing narrative to show that the defendant attacked the victims by mistake when he intended to target members of a different gang. We held in Johnson that the seemingly random attack in that case would be completely inexplicable without gang evidence that tended to explain why the defendant on trial was motivated to commit the crimes he did. Johnson, 368 Ill. App. 3d at 1155, 859 N.E.2d at 299. The same analysis applies to defendant's behavior in this case.
¶ 86 Although the issue in Johnson was whether other-crimes evidence committed by the defendant on trial would be admissible under the continuing narrative exception to the prohibition against admitting such evidence, we note that in People v. Daniels, 2016 IL App (4th) 140131, ¶¶ 75-82, 58 N.E.3d 902, this court recently held that the continuing narrative exception for other-crimes evidence also applies to general relevancy considerations, as in the present case, not just when other-crimes evidence is at issue.
¶ 87 Assuming, arguendo, that the admission of defendant's gang membership was error, reversal does not automatically follow. As in the case of any nonconstitutional error, we ask if there is a reasonable probability the jury would have acquitted defendant but for the error. See People v. Forrest, 2015 IL App (4th) 130621, ¶ 57, 40 N.E.3d 477. We conclude that the
evidence against defendant was strong enough that, even if any and all mention of gangs had been excluded from the trial, there is no reasonable probability the jury would have acquitted him. Specifically, the presence of defendant's DNA on the grip of the .45-caliber Remington pistol, with which Smith had been shot, and the throwing of the pistols out of the passenger window of the fleeing gray car—juxtaposed with defendant's incredible, know-nothing statement to the police—almost certainly would have yielded a guilty verdict, regardless of the evidence of gang affiliation.
¶ 88 C. The Sufficiency of the Evidence
¶ 89 One of the elements of attempt (first degree murder) is that defendant intended to murder Smith. "A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense." (Emphasis added.) 720 ILCS 5/8-4(a) (West 2014). Defendant contends that the State failed to prove he intended to murder Smith or assist in the murder of Smith.
¶ 90 We disagree. Defendant's DNA was on the grip of the .45-caliber Remington pistol—the pistol with which Smith was shot—and two spent .45-caliber shell casings were on the back floorboard of the gray car. Ballistic analysis revealed that these shell casings had been ejected from that pistol. Defendant was sitting in the passenger seat of the gray car at the time of the shooting—with the passenger door open, according to Smith's testimony. When we regard this evidence in the light most favorable to the prosecution, as we are supposed to do (see Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985)), we can reasonably infer that defendant shot Smith with the .45-caliber Remington pistol. An intent to kill can be inferred from the use of a deadly weapon. People v. Barnes, 364 Ill. App. 3d 888, 896, 847 N.E.2d 679, 695 (2006).
¶ 91 And, arguably, defendant's conduct in the immediate aftermath of the shooting tends to increase the likelihood that he was the shooter. Because he was the one sitting in the passenger seat of the fleeing gray car, it was apparently he who threw the pistols out the passenger window, including the .45-caliber pistol bearing his DNA. This attempt by him to conceal evidence could reasonably be regarded as showing a consciousness of guilt. See People v. Gambony, 402 Ill. 74, 80, 83 N.E.2d 321, 325 (1948); People v. Modrowski, 296 Ill. App. 3d 735, 741, 696 N.E.2d 28, 33 (1998).
¶ 92 A deliberately false statement is another form of concealment that can evince a consciousness of guilt. People v. Wilson, 8 Ill. App. 3d 1075, 1079, 291 N.E.2d 270, 273 (1972). Defendant's statement to the police could come across to a reasonable trier of fact as unbelievable and, therefore, untruthful. It could strain a jury's credulity that defendant remained totally unaware of what was going on in his immediate surroundings until the moment when shots began to be fired. Supposedly, he never noticed Kennedy removing a container of gasoline from the gray car. Smith, who was upstairs, in his girlfriend's apartment, heard the window of his car being broken, but, supposedly, defendant, who was sitting in the passenger seat of a car parked near Smith's car, heard nothing and saw nothing. Supposedly, after Kennedy broke the window of Smith's car, defendant never noticed him dowsing the car with gasoline and setting it on fire. The jury had a right to be skeptical of this near-total obliviousness. It could have regarded defendant's statement to the police as an exercise in concealment. He never told the police about handling the pistols, either, although, as it turned out, his DNA was on one of the pistols, and it was probably he who threw the pistols out the passenger window. Arguably, defendant was extensively and materially untruthful to the police, and he was untruthful because he had something to hide, namely, his guilt of attempt (first degree murder). See id. His
statement to the police, by reason of its incredibility, was most likely a damaging item of evidence against him. See id.
¶ 93 In sum, when we regard all the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could find, beyond a reasonable doubt, that defendant intended to murder Smith. See Jackson, 443 U.S. at 319; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.
¶ 94 D. The Prosecutor's Closing Argument
¶ 95 "[I]t is improper for a prosecutor to argue inferences or facts not based upon the evidence in the record." People v. McGee, 2015 IL App (1st) 130367, ¶ 56, 44 N.E.3d 510. According to defendant, that is what the prosecutor did when she argued to the jury that Kennedy had lured Smith outside while defendant was lying in wait to shoot him. Defendant acknowledges that, because defense counsel never objected while the prosecutor was making this argument to the jury, the doctrine of procedural forfeiture normally would preclude defendant from complaining now. See People v. Basler, 193 Ill. 2d 545, 549, 740 N.E.2d 1, 4 (2000). He invokes the doctrine of plain error, however, claiming that the evidence was closely balanced. See People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410 (2007).
¶ 96 There can be no plain error without an error; thus, the usual first step, which we choose to follow in this case, is to determine whether this line of argument by the prosecutor was erroneous at all. See id. Defendant insists it was. He argues:
"There was never any evidence presented that Kennedy set fire to the victim's car so that [defendant] could shoot the victim when he came outside to investigate. No evidence was presented that [defendant] knew why Kennedy chose to park on Moundford Terrace. The evidence presented showed that
Kennedy was more likely to have fired a gun than [defendant]. The evidence also suggests that shots were exchanged in two directions, and there is no indication as to which side may have shot first."
¶ 97 One possible inference is that Kennedy intended only to vandalize Smith's car, nothing more, and that he decided to shoot back only after he was fired upon. That inference, however, is not without its problems. One problem is that Kennedy and defendant came to Moundford Terrace armed (two persons, two loaded pistols, one of which was pictured in defendant's cell phone). Another problem is that, apparently, Kennedy waited around long enough for Smith to come downstairs and out of the apartment building. Surely, it was but a moment's work to break the car window, and gasoline catches fire pretty quickly. So, arguably, a more convincing inference is that the vandalism was intended as a means of luring Smith outside, to be shot. Even if Smith or his friends, upon emerging from the apartment building, managed to get off the first shots, that event would not retroactively negate a murderous intent that Kennedy had in the first place.
¶ 98 Defendant argues that, even if Kennedy had this murderous intent, there was no evidence that he, defendant, shared it. Again, we point out, however, the presence of defendant's DNA on the grip of the .45-caliber Remington pistol, and we point out the empty .45-caliber shell casings on the rear floorboard of the gray car. Granted, Wong found gunshot residue particles only on Kennedy's sweatshirt (or "hoodie") and none on defendant's hands, but that is explainable: 1 hour and 55 minutes passed before a gunshot residue kit was collected from Kennedy, whereas 4 1/2 hours passed before one was collected from defendant. A reasonable jury could find it was defendant who shot Smith with the .45-caliber Remington pistol and that, when he did so, Kennedy was close enough to defendant (3 to 12 feet was the radius, according
to Wong) that gunshot residue particles landed on Kennedy's sweatshirt, though not on Kennedy's hands.
¶ 99 Alternatively, if the jury found Kennedy to be the shooter of Smith, the jury could have reasonably found defendant to be accountable for Kennedy's attempt (first degree murder). A defendant is accountable for the conduct of another if, "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate that commission, [the defendant] solicits, aids, abets, agrees, or attempts to aid, that other person in the planning or commission of the offense." 720 ILCS 5/5-2(c) (West 2014). We have held:
"Circumstances especially pertinent to the establishment of a common design include: presence at the scene of the crime without disapproval or opposition [citations]; a continued close association with perpetrators after the criminal act [citations]; a failure to report the incident to the authorities [citations]; and/or the subsequent concealing or destroying of evidence of the crime [citations]. The existence of a common design is a question of fact for the jury." People v. Watts, 170 Ill. App. 3d 815, 825, 525 N.E.2d 233, 240 (1988).
¶ 100 It does not appear that defendant expressed any disapproval or opposition when Kennedy broke the window of Smith's car and set the car on fire with gasoline. He did not disassociate himself from Kennedy at that point. He did not get out of the gray car and walk away. Instead, he stayed in the passenger seat. As a squad car was in pursuit, he tried to help out by throwing the pistols out of the passenger window. Granted, this attempted concealment of evidence occurred after the offense, but it is nevertheless evidence of a common design. "Although accountability requires that the assistance of an accused occur prior to or during the commission of the unlawful act, such assistance may be inferred from activities occurring after
the offense." Modrowski, 296 Ill. App. 3d at 741, 696 N.E.2d at 33. If indeed Kennedy was the one who shot Smith, defendant covered for him, as best as he could, in his statement to the police, feigning ignorance of what had happened before his very eyes and omitting any mention of Kennedy wielding a gun. Thus, contrary to defendant's contention, not only could a prosecutor reasonably argue a common design by defendant and Kennedy to murder Smith, but a jury could reasonably find such a common design. In our de novo review of the prosecutor's closing and rebuttal arguments, giving her the "wide latitude" to which she is entitled, we find no misconduct or impropriety—and, hence, no plain error. People v. Schronski, 2014 IL App (3d) 120574, ¶ 26, 15 N.E.3d 506.
¶ 101 III. CONCLUSION
¶ 102 For the foregoing reasons, we affirm the trial court's judgment, and we assess $50 in costs against defendant.
¶ 103 Affirmed.
¶ 104 JUSTICE APPLETON, specially concurring.
¶ 105 I agree the trial court's judgment should be affirmed. Even so, I am writing this special concurrence because I respectfully disagree with the refusal to decide defendant's claim of ineffective assistance in this direct appeal. Instead of deciding the claim now, when defendant sees fit to make the claim, the majority more or less advises him to make the claim later, in a petition for postconviction relief.
¶ 106 For one thing, I am uneasy with the paternalism inherent in overruling defendant's choice to make the claim now. When and in what proceeding to make a claim should be his judgment call, not ours. After all, he is the appellant—he is in the driver's seat—and, in this present appeal, he chooses to make a claim of ineffective assistance, as it is his prerogative
to do. Having made the claim now, he has the burden of substantiating it now, by reference to the record (see People v. Bobo, 375 Ill. App. 3d 966, 977, 874 N.E.2d 297, 309 (2007); People v. Rush, 294 Ill. App. 3d 334, 342, 689 N.E.2d 669, 675 (1998)), and if he is unable to do so, he should lose on that claim—now (see Rush, 294 Ill. App. 3d at 342, 689 N.E.2d at 675). That is how the appellate process works. Making a claim always carries the risk of losing on that claim. We should not require defendant to take back the gauntlet that he himself has thrown down. It seems to me that we cross the line into advocacy and intrude into appellate counsel's job by telling defendant, "You really should not make your claim of ineffective assistance now, because the record is inadequate to support the claim. Instead, you should save the claim for a postconviction proceeding."
¶ 107 The majority, rather than defendant, elects to save the claim for a postconviction proceeding in order to find out "what defense counsel was thinking at the April 10, 2014, hearing, when the trial court scheduled the next hearing in this case for May 29, 2014." Supra ¶ 80. Specifically, the majority does "not know whether defense counsel considered the scheduling of the May 29, 2014, hearing as a continuance or merely as the scheduling of a hearing that would not affect the eventual trial date." Supra ¶ 80. Actually, it is irrelevant what defense counsel was thinking. The performance standard is objective, not subjective. Strickland v. Washington, 466 U.S. 668, 687-88 (1984) ("When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness."). I do not see the purpose of exploring, in a postconviction proceeding, whether trial counsel happened to be under a delusion that the period of April 10 to May 29, 2014, was a continuance. Who cares? The State had not requested a
continuance for that period. Nor had the defense. Imagining a continuance would not have created one.
¶ 108 This brings me to the majority's second reason for shunting the claim off to a postconviction proceeding. The majority says: "[W]e do not know how the State and the trial court would have reacted had defendant objected to May 29, 2014, as the date for next hearing in this case and instead had demanded trial ***. Assuming defense counsel had taken this action, the State and the trial court would have had ample time to adjust the trial date to comply with the speedy-trial timeline." Supra ¶ 80. If defense counsel had made a speedy-trial objection to the scheduling of a pretrial hearing for May 29, 2014, the only fitting reaction by the trial court and the prosecutor would have been puzzlement, considering that no delay was being proposed, and hence, there really was nothing for defense counsel to object to.
¶ 109 Only delays are objectionable, because only delays can be counted against the defendant (if the defendant "occasion[s]" them). 725 ILCS 5/103-5(a) (West 2014). The first two sentences of section 103-5(a) provide as follows:
¶ 110 "(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he or she was taken into custody unless delay is occasioned by the defendant ***. Delay shall be considered to be agreed to by the defendant unless he or she objects to the delay by making a written demand for trial or an oral demand for trial on the record." Id.
¶ 111 "Delay," in this context, is delay in "be[ing] tried by the court having jurisdiction." Id. But what does the word itself, "delay," mean? We give the words in a statute their ordinary meanings unless the statute specially defines a term, in which case we give the words of the special definition their ordinary meanings. People v. Cardamone, 232 Ill. 2d 504,
513, 905 N.E.2d 806, 812-13 (2009). A dictionary is a useful source in which to find the ordinary meanings of words. Id. A "delay" is "a period of time by which something is late or postponed." The New Oxford American Dictionary 450 (2001). Another dictionary defines a "delay" as "the time during which something is delayed," that is, "put off," "postpone[d]," or "stop[ped]" or "hinder[ed] for a time." Merriam-Webster's Collegiate Dictionary 304 (10th ed. 2000). To "postpone" means "to put off to a later time" (id. at 908) or to "cause or arrange for (something) to take place at a time later than that first scheduled" (The New Oxford American Dictionary 1334 (2001)).
¶ 112 Given the ordinary meaning of "delay," I do not see how the mere act of scheduling a pretrial hearing for May 29, 2014, was a delay of the trial. 725 ILCS 5/103-5(a) (West 2014). Scheduling the pretrial hearing for that date was perfectly consistent with having a trial within the 120-day speedy-trial period. As the majority itself observes, the trial court and the State still had "ample time to adjust the trial date to comply with the speedy-trial deadline." Supra ¶ 80. Day 120 was not until July 14, 2014—actually, not until July 21, 2014, when we count the 7 days attributable to defendant. Therefore, scheduling a pretrial hearing for May 29, 2014, did not make the trial late for purposes of section 103-5(a). See People v. Workman, 368 Ill. App. 3d 778, 785, 858 N.E.2d 886, 892 (2006) ("[The defendant] had merely agreed that the original trial setting of June 13, 2000, which was within the speedy-trial time limit, was amenable to her schedule. This agreement *** did not toll the speedy-trial 'clock.' " (Emphasis added.)); cf. Cordell, 223 Ill. 2d at 390-91, 860 N.E.2d 323, 330 ("[W]hen the trial court set a date for trial that fell outside of the 120-day limit of section 103-5(a), it was 'delaying' trial and [the] defendant was obligated to object in order to prevent the speedy-trial clock from tolling." (Emphasis added.)). Setting the pretrial hearing for May 29, 2014, did not postpone the trial,
either. To be postponed, a trial had to be scheduled, and none was scheduled as of yet. Nor would it make any sense to say that scheduling the pretrial hearing hindered the occurrence of a trial. Rather, the opposite is true: scheduling the pretrial hearing facilitated the occurrence of the trial, or advanced the proceedings toward a trial, since, presumably, there could have been no trial without a pretrial hearing. Because the scheduling of the pretrial hearing for May 29, 2014, was not a "delay" of the trial, the omission of an objection did not cause the 49-day period from April 10 to May 29, 2014, to be attributable to defendant. 725 ILCS 5/103-5(a) (West 2014). Thus, it would make no sense to characterize the omission of an objection as deficient performance by trial counsel. See Strickland, 466 U.S. at 687-88.
¶ 113 Let me emphasize that this was mundane, unobjectionable scheduling within the 120-day period, not the granting of a continuance. It is not that the State moved for a continuance from April 10 to May 29, 2014, and defense counsel failed to object. If that were the case, the period would indeed be attributable to defendant. A continuance is, by definition, a delay or postponement (see Black's Law Dictionary 316 (7th ed. 1999) (defining a "continuance" as "[t]he adjournment or postponement of a trial or other proceeding to a future date")), and, thus, "[a]n agreed continuance generally constitutes an act of delay attributable to the defendant." People v. Woodrum, 223 Ill. 2d 286, 299, 860 N.E.2d 259, 269 (2006); see also People v. Wade, 2013 IL App (1st) 112547, ¶ 29, 987 N.E.2d 426. After agreeing to a continuance, a defendant could not reasonably complain of the continuance or try to hold it against the State. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 288 (2004). But no continuance was even proposed on April 10, 2014. There was no postponement or delay; there was merely the routine scheduling of a pretrial hearing, to occur well within the 120-day period—not something to which a defense attorney, solicitous of the client's right to a speedy trial, would see the need to
object. Compare Workman, 368 Ill. App. 3d at 785, 858 N.E.2d at 892, with Cordell, 223 Ill. 2d at 390-91, 860 N.E.2d at 331.
¶ 114 Scheduling a hearing necessarily entails setting it for sometime in the future; obviously, it cannot be set for the past. If, to prevent days from being attributable to the defendant, defense counsel had to object whenever it was proposed that a hearing occur in the future, defense counsel would have to object to scheduling per se, and that would be unreasonable (not to mention hypocritical, if a pretrial hearing has to be scheduled in order to advance the case toward the trial that the defendant claims to urgently desire). It would be unreasonable because defendants have a right to a speedy trial, not an immediate trial. See United States v. Ashimi, 932 F.2d 643, 648 (7th Cir. 1991) (pointing out that the sixth amendment (U.S. Const., amend. VI), "after all, guarantees only a speedy trial, not the speedier or the speediest trial" (emphases in original)).
¶ 115 Thus, absent a proposed delay, defense counsel had no occasion to object. The next question logically would be, Did the trial court err, then, by denying defendant's motion for dismissal on speedy-trial grounds? Defendant makes no alternative argument to that effect. Therefore, I agree with the majority that we should leave that question unanswered in this appeal. "Points not argued are waived," that is, forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016).