People v. Boston

• Decision Date: 31 December 2018
• Docket Number: No. 1-14-0369,1-14-0369
• Citation: 2018 IL App (1st) 140369,148 N.E.3d 664,439 Ill.Dec. 611
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sylvester BOSTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 140369
148 N.E.3d 664
439 Ill.Dec. 611

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Sylvester BOSTON, Defendant-Appellant.

No. 1-14-0369

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed December 31, 2018
Rehearing denied January 29, 2019

JUSTICE REYES delivered the judgment of the court, with opinion.

439 Ill.Dec. 617

¶ 1 Following a jury trial, defendant Sylvester Boston was convicted of first degree murder in connection with the fatal stabbing of Steven Moore, Sr. (Moore) and sentenced to 50 years' imprisonment. On appeal, defendant contends (1) the admission of preliminary hearing testimony of a key eyewitness violated the confrontation clause of the sixth amendment to the United States Constitution ( U.S. Const., amend. VI ) and the Illinois Rules of Evidence, (2) the trial court erred in allowing the State to introduce defendant's prior conviction for possession of contraband in a penal institution, (3) the State's improper comments on defendant's postarrest silence warrant a new trial, (4) defendant was denied his right to a properly instructed jury where the court failed to clarify Illinois law on self-defense in response to a jury note, (5) defendant's right to a unanimous jury verdict was violated where a juror expressly dissented during the polling of the jury, and (6) defendant's trial counsel was ineffective for failing to preserve certain issues for appellate review.

¶ 2 This court initially filed an opinion affirming defendant's conviction. Thereafter, defendant filed a petition for rehearing, arguing that we misapprehended the law when considering the jury polling issue. This court granted the petition, vacated the previous opinion, and requested supplemental briefing from the parties not only in regards to the jury polling issue but also in regard to the alleged prosecutorial misconduct. The parties filed supplemental briefs addressing both issues. Upon review and consideration of those briefs, we continue to affirm the judgment of the circuit court in its entirety.

¶ 3 BACKGROUND

¶ 4 Pretrial Matters

¶ 5 During a preliminary hearing on June 29, 2006, the State called Grace

148 N.E.3d 671

439 Ill.Dec. 618

Sharp, Moore's mother, who testified as follows. On June 24, 2006, she was in her residence on the 14500 block of University Avenue in Dolton with defendant and Moore. Defendant was a friend of Steven Moore, Jr. (Steven), Sharp's grandson and Moore's son. Sharp had known defendant since he was a teenager. Defendant had asked to stay with Sharp for a "couple of days" prior to commencing Job Corps. He stayed in an upstairs bedroom in her raised ranch, and 51-year-old Moore lived in the basement.

¶ 6 On the day of the incident, Sharp did not hear any "words of conflict" between Moore and defendant. According to Sharp, "[t]hey were just talking about the job corp [sic ] and things like that." In the early evening hours, she heard a "ruffling, scuffling noise" coming from the basement "as if kids were wrestling or playing or something." As she headed downstairs toward the basement to direct them to "stop the noise," she heard her son say, "Ma, call the police, call the police." Moore was calling to her but was not screaming.

¶ 7 Sharp initially did not contact the police. She instead went downstairs, where she observed defendant on top of Moore, stabbing him. She pulled defendant by the neck of his shirt but was unable to "pull him off." After defendant made eye contact with Sharp, he continued stabbing Moore. Sharp attempted to strike him with a plastic milk crate. Defendant, however, knocked the crate out of her hand and continued stabbing Moore. She then went upstairs and dialed 911.

¶ 8 On cross-examination, Sharp testified that she was not aware that either Moore or defendant had consumed alcohol. She indicated that her son had previously used drugs but "didn't anymore." She did not notice any weapon near Moore, testifying, "I wasn't looking around. I was getting [defendant] off of my son." According to Sharp, defendant had reflexively swung at her to "get away or whatever," but she did not recall seeing a knife in his hand. She was scratched but was not cut. Sharp testified that defendant did not attempt to prevent her from returning upstairs.

¶ 9 After Sharp's testimony, the State called Detective Crudup from the Dolton police department, who had attended Moore's autopsy. Following the preliminary hearing, defendant was charged by information with two counts of first degree murder.

¶ 10 In September 2013, defendant filed a motion in limine to bar the admission of the preliminary hearing testimony of Sharp, who died in 2008. Defendant argued that he would be deprived of his right to confront his accuser because "there was no meaningful cross-examination" of Sharp. Defendant also filed a motion in limine to introduce evidence of Moore's violent nature, including his guilty pleas to charges of domestic battery and resisting a police officer. After a hearing, the circuit court denied the motion to bar Sharp's preliminary hearing testimony but permitted the defense to present certified copies of Moore's convictions.

¶ 11 The State filed a motion in limine seeking, among other things, to introduce evidence regarding defendant's criminal history for impeachment purposes, i.e. , his conviction for possession of contraband in a penal institution.¹ After conducting a balancing test, the trial court concluded that "the probative value does, in fact, outweigh any prejudicial effect." The trial court indicated its willingness to give a "limiting

148 N.E.3d 672

439 Ill.Dec. 619

instruction immediately upon the introduction of the certified copy of conviction or if [defendant] is going to front it first if he testifies."

¶ 12 Trial Testimony

¶ 13 Steven testified that his childhood home was on University Avenue in Dolton, where he had lived with his brother, Sharp, and Moore. In June 2006, 22-year-old Steven attended school in DeKalb. When he periodically returned to Dolton, he would stay at the University Avenue residence. According to Steven, Moore stayed in the basement.

¶ 14 Steven had known defendant since junior high school, and defendant spent significant amounts of time at Steven's home during their teenage years. At one point, Steven and defendant had a dance group, and they frequently practiced in Steven's basement. Steven characterized defendant's interactions with Moore as "[r]espectful," and he never observed any physical or verbal altercation between the two.

¶ 15 On the weekend of June 17, 2006, Steven had returned to Dolton and observed defendant walking. Steven exited his vehicle and conversed with defendant. According to Steven, defendant "seemed as if he was having some issues." Steven suggested that defendant stay with Sharp and Moore for a couple of days to "clear his head and figure out his next move." The following weekend, Steven hosted a barbecue in DeKalb, where his father and defendant were expected but ultimately did not arrive. After receiving a telephone call from Sharp, who sounded "[v]ery frightened," Steven rushed to Dolton, where he discovered police at Sharp's residence.

¶ 16 Steven testified that Moore had been using drugs, up to the time of his death. He described his father's demeanor after drug use as "[t]ypically relaxed" and "[c]alm" and never violent. Prior to the weekend of June 17, 2006, Steven had not seen defendant in two or three years. When asked whether defendant had maintained contact with Sharp and Moore, Steven responded, "Not to my knowledge." On cross-examination, Steven confirmed that defendant had a good relationship with Sharp and called her "Granny." During Steven's time in high school, his father would sporadically stay at the University Avenue residence. Steven testified that he did not know what type of drugs his father used.

¶ 17 Officer Steven Curry of the Dolton police department testified that he was on duty with his partner, Officer Timothy McPherson, on the evening of June 24, 2006.² Curry was in plain clothes but was wearing body armor with his star. After receiving a call regarding a stabbing, Curry and McPherson drove to the house on the 14500 block of University Avenue. The partners exited their vehicle and walked to an open door on the side of the residence. Upon arriving at the door, Curry observed an elderly woman standing on a landing with stairs leading up to the kitchen and down to the basement. The woman did not speak to Curry.

¶ 18 The officers entered the home and heard "some commotion downstairs." Curry walked in front of McPherson down the stairs. As he reached the bottom of the stairs, Curry observed an "entranceway to the basement but it was covered by a curtain or some kind of partition they had up against it or covering it." Curry testified, "We stopped and we start listening and it sounded like to me somebody was getting stabbed." He described the sound as "a squishing, a repeatedly [sic ] like a

148 N.E.3d 673

439 Ill.Dec. 620

chi,...