People v. Cunningham, 4-17-0158

CourtUnited States Appellate Court of Illinois
Writing for the CourtJUSTICE HARRIS delivered the judgment of the court.
Citation2019 IL App (4th) 170158 -U
PartiesTHE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. CUNNINGHAM, Defendant-Appellant.
Docket NumberNO. 4-17-0158,4-17-0158
Decision Date20 February 2019

2019 IL App (4th) 170158-U

JOHN L. CUNNINGHAM, Defendant-Appellant.

NO. 4-17-0158


February 20, 2019


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 Coles County
No. 12CF450

Honorable Teresa Kessler Righter, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.
Justices Steigmann and Turner concurred in the judgment.


¶ 1 Held: Defendant's appeal presents no meritorious issues for review. OSAD's motion to withdraw as appellate counsel is granted and the trial court's judgment is affirmed.

¶ 2 Defendant, John L. Cunningham, was convicted of two counts of unlawful possession of stolen or converted motor vehicles (625 ILCS 5/4-103(a)(1) (West 2012)) and one count of robbery of a person over the age of 60 (720 ILCS 5/18-1(a) (2012)). The trial court sentenced him to prison terms of 7 years, 9 years, and 20 years for the convictions, respectively, with the sentences to be served concurrently. Defendant then appealed, and the Office of the State Appellate Defender (OSAD) was appointed to represent him. On appeal, OSAD filed a motion to withdraw as appellate counsel pursuant to Anders v. California, 386 U.S. 738 (1967), asserting the appeal presents no meritorious issues for review. We grant OSAD's motion and

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affirm the trial court's judgment.


¶ 4 Defendant was convicted of various charges stemming from a three-day crime spree that began when defendant allegedly shot his wife's cousin in Johnson County, Illinois. Defendant and his wife fled and their flight took them through Coles County, Illinois, Indiana, and Kentucky. Officers eventually apprehended the couple in Kentucky.

¶ 5 In December 2012, the State charged defendant in this case with aggravated robbery (720 ILCS 5/18-5(a) (West 2010)) (count I) in that defendant stole a truck from James Salyers while armed with a dangerous weapon and struck Salyers in the back of the head. In March 2014, the State charged defendant with additional counts of unlawful possession of the stolen or converted motor vehicle of Teresa Gibbs (625 ILCS 5/4-103(a)(1) (West 2012)) (count II), unlawful possession of the stolen or converted motor vehicle of Salyers (625 ILCS 5/4-103(a)(1) (West 2012)) (count III), and robbery of Salyers, who was over the age of 60 (720 ILCS 5/18-1(a) (2012)) (count IV). Count I was later dismissed.

¶ 6 Also, in December 2012, the State filed additional charges against defendant in Johnson County, which involved, inter alia, defendant's shooting of his wife's cousin, Jacob Witherall. Defendant's wife, Janet Cunningham, was also criminally charged in Coles County and Johnson County. However, we address the issues only as they relate to defendant and the charged offenses in Coles County.

¶ 7 At a preliminary hearing in April 2014, the State presented the following factual basis. Detective Christina Stephen testified to a report, prepared by another officer, regarding the interview of Teresa Gibbs and her stolen vehicle. Detective Stephen testified that, according to

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the report, Gibbs was approached by a man and a woman as Gibbs was leaving her home in Johnson County to walk her dog on December 3, 2012. The man, later identified as defendant, was aiming a gun at Gibbs. Defendant said he "wanted her keys to [her] vehicle." Gibbs provided the keys to defendant, who subsequently had difficulty starting the vehicle before driving away. Detective Stephen testified that she later found Gibbs's abandoned vehicle in Coles County.

¶ 8 Detective Stephen further testified that, according to a report prepared by another officer, defendant and Janet walked to James Salyers's residence. They knocked on Salyers's door, asking for a ride into town because their vehicle had run out of gas. Salyers offered to give them a ride. Detective Stephen stated that defendant struck Salyers in the back of the head with "an object." Salyers fell to the ground. According to Stephen, Salyers reported that he was "dazed and confused." Defendant and Janet then drove off in Salyers's vehicle.

¶ 9 Detective Stephen testified that Janet, who was interviewed by another officer, stated that she drove with defendant from Johnson County to Coles County in Gibbs's vehicle. After running out of gas in Coles County, they abandoned Gibbs's vehicle and walked to a nearby residence. They took Salyers's vehicle, drove through Indiana, and were subsequently arrested at a truck stop in Kentucky. Detective Stephen testified that the remaining portion of Janet's recorded interview was consistent with the description provided by Salyers and Gibbs. Based on Detective Stephen's testimony, the court found probable cause to support the charges against defendant.

¶ 10 In September 2014, as part of an open plea agreement, defendant pleaded guilty to counts II, III, and IV. Defendant acknowledged that he understood the nature of the charges and

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the possible sentencing range for each. The court admonished defendant as to the rights he was giving up if he pleaded guilty. Defendant indicated he understood. When asked whether "anybody made any threats or promises to get [him] to [plead guilty]," defendant responded, "No, sir." Defendant further stated that he was "just [on] blood pressure medicine" at the time of the hearing, but he stated that it did not affect his ability to understand the nature of the proceedings. That same day, defendant executed a "plea of guilty and waiver of jury and bench trial."

¶ 11 On November 6, 2014, the trial court held a sentencing hearing. At sentencing, defense counsel raised concerns that defendant's testimony at the sentencing hearing could be used against him at his trial in Johnson County. The State indicated that it was offering defendant use immunity for his sentencing hearing testimony and that it would not be used against him in the subsequent prosecution in Johnson County. The trial court found that the State's offer of use immunity resolved the issue.

¶ 12 The State presented the testimony of Deputy Joseph Price. Deputy Price testified that, on December 4, 2012, he was dispatched to an abandoned vehicle in the middle of a road in Coles County. It was later determined that the vehicle belonged to Gibbs, and it was reportedly stolen by defendant and Janet, who were allegedly involved in an attempted murder in Johnson County.

¶ 13 Deputy Price testified that he was subsequently dispatched after Salyers's vehicle was reported as stolen. When Deputy Price arrived at Salyers residence, Salyers was holding a rag in his hand that was "covered in blood." Deputy Price observed the wound, which was 1 to 1.5 inches long. Salyers told Deputy Price that a man and a woman approached him asking for a

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ride into town. The man struck Salyers with "some hard object" that "dazed him" and the couple drove away in Salyers's truck.

¶ 14 Special Agent Mark Stram of the Illinois State Police testified next. He stated that he was dispatched to investigate an alleged shooting in Johnson County. He explained that the victim of the shooting, Witherall, was a cousin of defendant's wife, Janet. As Witherall was speaking with officers, defendant, the alleged shooter, drove past Witherall's residence. Officers pursued defendant. Defendant crashed his vehicle and then fled on foot.

¶ 15 Special Agent Stram testified that Witherall was later interviewed in the hospital. Witherall reported he was shot by defendant following a dispute regarding a stolen Crock-Pot. Special Agent Stram testified that defendant also pistol-whipped Witherall. On cross-examination, when asked what position Witherall was in when he was shot, Special Agent Stram testified that Witherall was "laying on the couch" with his "knees *** on the ground and his upper part of his body *** laying on the couch in somewhat of a *** crouching position."

¶ 16 Special Agent Stram further testified that the report regarding the Witherall shooting was primarily based upon "the interview with [Janet] Cunningham." Special Agent Stram stated that he personally spoke to Witherall on only two occasions at the Johnson County courthouse to obtain deoxyribonucleic acid (DNA) samples and hair follicles.

¶ 17 Special Agent Stram testified that he and Sergeant Chad Brown interviewed Janet after Janet and defendant were apprehended in Kentucky. Defense counsel objected to Special Agent Stram's testimony regarding Janet's statements made during the interview on the basis of marital privilege. The court sustained the objection, stating, in pertinent part, as follows:

"The objection will be sustained, and for clarification purposes, the privilege ***

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applies to communications or admissions, so the [c]ourt will not consider anything that [Janet] reports as to items that [defendant] related [to her], any communications or admissions, but she can testify and I will consider her *** statements as to what she observed, and that could also include *** any communications [defendant] may have made in [Janet's] presence to others, but communications or admissions that he made to her would be excluded."

¶ 18 Defense counsel further objected to the publication of Janet's interview. The trial court overruled the objection, stating that it "will allow that over objection, and [the court] will *** disregard any statements that [Janet] has made that are *** contrary to the marital spouse privilege."

¶ 19 According to the recorded interview, Janet stated that she was watching TV while defendant was "ranting and raving" about coffee Witherall had taken. Defendant told Janet to get in the car because he "had things to do." As they left, Janet could hear sirens.

¶ 20 Janet stated that, after speeding away, they crashed their vehicle and then ran to a nearby home. Janet explained that a...

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