People v. Davis

• Decision Date: 28 September 2020
• Docket Number: NO. 4-18-0337,4-18-0337
• Citation: 2020 IL App (4th) 180337 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRET DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (4th) 180337-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRET DAVIS, Defendant-Appellant.

NO. 4-18-0337

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

September 28, 2020

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 Woodford County

No. 16CF163

Honorable John Casey Costigan, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices DeArmond and Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding (1) the State did not commit prosecutorial misconduct, (2) trial counsel did not provide ineffective assistance of counsel, and (3) defendant waived any plain-error challenge to the aggravated assault instructions.

¶ 2 In October 2016, the State charged defendant, Bret Davis, by indictment with one count of attempt (murder) (720 ILCS 5/8-4(a) (West 2014)) (count I), one count of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2014)) (count II), two counts of aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2014)) (counts III and IV), two counts of domestic battery (subsequent offense felony) (720 ILCS 5/12-3.2(a)(1) (West 2014)) (counts V and VI), and one count of aggravated assault (720 ILCS 5/12-2(c)(7) (West 2014)) (count VII). The charges stemmed from a September 26, 2016, physical altercation between defendant and his then wife, Kristen. In February 2017, the State also charged defendant with one count of domestic battery (subsequent offense felony) (720 ILCS 5/12-3.2(a)(1) (West 2014)) (count VIII) and one count of aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2014)) (count IX).

¶ 3 Following a March 2018 trial, a jury found defendant guilty on all counts. In May 2018, defendant filed a motion for a new trial. The trial court denied the motion. The court sentenced defendant on counts I, VII, VIII, and IX. Subsequently, defendant filed a motion to reconsider sentence. The court determined it considered an improper aggravating factor and resentenced defendant to 19 years' imprisonment for attempt (murder) (count I), 2 years' imprisonment for aggravated assault (count VII), 2 years' imprisonment for domestic battery (subsequent offense felony) (count VIII), and 3 years' imprisonment for aggravated battery (count IX), all to run concurrently.

¶ 4 Defendant appeals, arguing (1) the State committed prosecutorial misconduct denying defendant a fair trial where (a) it improperly impeached defendant by alleging during cross examination that (i) defendant's wounds were self-inflicted and (ii) defendant attempted suicide because he felt guilty, (b) it inflamed the passions of the jury by comparing the victim's blood loss to a scene from the movie "Carrie," (c) it violated the trial court's orders in limine by (i) asking the victim about the no-contact order that was entered after defendant's prior arrest for domestic battery and (ii) stating that certain wounds were "defensive" wounds, and (d) cumulatively, the prosecutorial misconduct was plain error, and to the extent trial counsel failed to preserve the issues, he provided ineffective assistance of counsel; (2) trial counsel provided ineffective assistance of counsel by failing to file a motion to sever the attempt murder charge (count I) and the aggravated assault charge (count VII) from the other counts; and (3) defendant was deprived of a fair trial where (a) trial counsel failed to offer a "necessity" jury instruction relating to the aggravated assault charge (count VII) and (b) the trial court improperlyinstructed the jury on aggravated assault and trial counsel failed to object to the instruction given. We affirm.

¶ 5 I. BACKGROUND

¶ 6 In October 2016, the State charged defendant with attempt (murder) (720 ILCS 5/8-4(a) (West 2014)) (count I), aggravated domestic battery (720 ILCS 5/12-3.3(a) (West 2014)) (count II), aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2014)) (counts III and IV), domestic battery (subsequent offense felony) (720 ILCS 5/12-3.2(a)(1) (West 2014)) (counts V and VI), and aggravated assault (720 ILCS 5/12-2(c)(7) (West 2014)) (count VII). The charges stemmed from a September 26, 2016, physical altercation between defendant and Kristen. In February 2017, the State also charged defendant with domestic battery (subsequent offense felony) (720 ILCS 5/12-3.2(a)(1) (West 2014)) (count VIII) and aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2014)) (count IX).

¶ 7 A. Pretrial Motions

¶ 8 In April 2017, the State filed a motion in limine seeking permission to offer evidence regarding prior domestic violence incidents to demonstrate defendant's propensity pursuant to section 115-7.4(a) of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/115-7.4(a) (West 2014)). Specifically, the State wanted to introduce evidence regarding an October 9, 2014, domestic battery (Woodford County case No. 14-CM-323) where defendant pled guilty to committing domestic battery against Kristen. The State alleged the following:

"[T]he evidence expected to be heard from the 2014 incident includes the defendant seeing his wife, Kristen Davis, with another man and then forcing Kristen Davis into a truck and driving offinto an unincorporated area of Woodford County, Illinois, where Kristen Davis will testify that the defendant threatened to kill her, restrained her, and drug [sic] her out of the truck. Due to that incident an order of protection was entered and the defendant was not allowed to have contact with Kristen Davis until a few weeks prior to the September 26, 2016[,] incident. The evidence will establish the September 26, 2016[,] incident was the first time that the defendant was alone with Kristen Davis in two years."

¶ 9 During a June 2017 hearing, Kristen recounted the details of the October 9, 2014, incident, and the trial court took judicial notice of Woodford County case No. 14-CM-323. Kristen also testified regarding two other incidents involving defendant that took place in July 2014. She stated defendant slapped her during the first incident and threw things around the room in the second incident. Over defense objection, the court ruled Kristen could testify at trial to her version of the October 9, 2014, incident. However, the court declined to allow evidence regarding defendant's arrest and guilty plea in Woodford County case No. 14-CM-323.

¶ 10 In January 2018, defendant filed a motion in limine asking the trial court, in relevant part, to prohibit the State and any of its witnesses from testifying that (1) defendant had self-inflicted lacerations, (2) defendant attempted suicide by jumping off a bridge as a result of the incident, and (3) the alleged victim had wounds or injuries that were defensive in nature. At a February 2018 hearing on defendant's motion in limine, the State admitted not having a doctor to lay the necessary foundation for testimony that defendant's wounds were self-inflicted. The State said it would not go down that road unless it could lay a proper foundation or the defenseopened the door to that line of questioning. The court granted defendant's motion in limine as to the three issues. However, as to the "defensive" wounds evidence, the court stated,

"But that certainly doesn't prohibit the alleged victim from testifying in terms of what she did in terms of the occurrence that took—allegedly took place in terms of how she may or may not have held her hands or that type of thing. And the jury can draw their own conclusion in terms of whether wounds were defensive and how the wounds occurred. But unless we have the appropriate foundation to go ahead and say these wounds were of a defensive nature, the court will grant the motion."

¶ 11 B. Defendant's Jury Trial

¶ 12 In March 2018, defendant's jury trial commenced. We summarize only the facts necessary for the resolution of this appeal.

¶ 13 1. The State's Evidence

¶ 14 Kristen testified she was married to defendant for almost 18 years and they had three children together. The State asked Kristen whether there was ever some type of "no-contact" between the defendant and her. Kristen indicated that "right after that happened [(the October 2014 incident)] he wasn't allowed to contact me ***." The defense objected and asked for a mistrial or that Kristen's testimony be stricken and further testimony from Kristen be barred as violating the court's order in limine. The trial court overruled the objection and declined to grant the requested relief.

¶ 15 Kristen also testified about the September 26, 2016, incident. On the morning of September 26, 2016, defendant entered the family home and asked to talk with Kristen about thekids. Kristen and defendant sat down at the kitchen table, and defendant told Kristen he loved her and now that he was home, he wanted them to be a family. Kristen told defendant they were getting divorced. Kristen told defendant she could never trust him not to hurt her again, and he said that he would never hurt her again.

¶ 16 Kristen testified her conversation with defendant lasted about 10 minutes or less. Kristen wanted to change visitation arrangements for the kids, to make things more even. Kristen indicated that, after the conversation ended, she and defendant stood up and as she walked away, defendant said, "no, no, I'm not doing this. I'm going to have my kids every night." At that point, Kristen was standing in front of the stairs to the basement. Kristen testified defendant pushed her in the chest with so much force she fell all the way down the basement stairs to the second to last stair. Kristen approximated there were 13 stairs down to the basement. When Kristen fell, she landed on her back. Kristen testified that when she landed at the bottom of the stairs, defendant ran toward her and pulled a knife out of his right pocket.

¶ 17 When Kristen tried to move back defendant stabbed her in the...