People v. Dion Banks, Docket No. 103933 (Ill. 2/19/2010), Docket No. 103933.

CourtSupreme Court of Illinois
Writing for the CourtKarmeier
PartiesTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DION BANKS, Appellant.
Decision Date19 February 2010
Docket NumberDocket No. 103933.

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THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
DION BANKS, Appellant.
Docket No. 103933.
Supreme Court of Illinois.
Opinion filed February 19, 2010.
Modified upon denial of rehearing May 24, 2010.
OPINION

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

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.


Defendant, Dion Banks, was indicted in Cook County in numerous counts of first degree murder in the shooting death of Rose Newburn, attempt (first degree murder), armed robbery, aggravated vehicular hijacking, aggravated kidnapping, aggravated discharge of a firearm, possession of a stolen motor vehicle, and aggravated unlawful restraint. The State elected to try defendant on only five counts of murder and one count of aggravated discharge of a firearm. The jury returned a general verdict of guilty of first degree murder and a verdict of guilty of aggravated discharge of a firearm. Thereafter, the jury found defendant eligible for the death penalty on two statutory grounds and, after considering evidence in aggravation and mitigation, found no mitigating factor sufficient to preclude the imposition of a

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death sentence. The circuit court sentenced defendant to death and therefore his appeal was brought directly to this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603.

On appeal, defendant contends that (1) the State presented inadmissible hearsay that linked defendant to the carjacking of Rose Newburn's Dodge Intrepid; (2) the State mocked defendant during closing argument, compared the strength of its case against defendant to other cases, and claimed that the jury had to believe all of the State's witnesses were lying to acquit defendant; (3) he was tried by a juror with a bias against gang members; (4) the trial court erred when it excused a potential juror who merely would have had difficulty in imposing a death sentence; (5) the death sentence must be vacated because the jury was not instructed on the elements of the felonies in the felony-murder aggravating factor; (6) the State presented irrelevant evidence of privileges received by prison inmates; (7) the State violated defendant's right to confront witnesses when it had a records keeper testify about his prison disciplinary record and had an assistant State's Attorney read to the jury a statement and the grand jury testimony of a witness to the killing that resulted in defendant's prior murder conviction; (8) the trial court erred when it instructed the jury that the defendant should be sentenced to death if no mitigating factor was sufficient to preclude a death sentence, because that prevented the jury from performing its constitutionally required task of measuring the totality of the mitigation against the aggravation; (9) the State improperly argued that defendant should be sentenced to death because he would kill someone if he received life in prison, that the jury should weigh the aggravation against the mitigation, and that defendant displayed no remorse for the murder; (10) the trial court failed to adequately inquire into defendant's statements that his trial lawyers were ineffective; and (11) the Illinois death penalty statute violates due process under Apprendi v. New Jersey, because the State is not required to prove beyond a reasonable doubt that aggravating factors outweigh the mitigating factors.

BACKGROUND

About 3 p.m. on March 24, 2001, Rose Newburn drove her sons, Tyrone, age 5, and Quincy, age 4, to Ford City Mall. Tyrone, who was 11 years old at the time of trial, testified that he and his younger

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brother Quincy were sitting in their mother's car, while she was looking through some papers. He saw a man, later identified as defendant, approach the driver's side window with a gun in his hand and heard defendant tell his mother to "get out of the fucking car." When she did not get out, he saw defendant break the driver's side window, unlock and open the door, drag his mother out onto the ground, and shoot her. Tyrone said that after shooting his mother, defendant got into the car and drove off while he and Quincy were still in the car. After a short time, defendant stopped the car and told the children to jump out the window, but then he opened the driver's side door and let the boys out. After getting out of the car, Tyrone said, he saw defendant talking to someone in a black car, and he watched both cars drive off together. Tyrone and his brother hid behind a stop sign until the defendant drove off, and then they ran to the front of the mall where their mother was.

John Southward testified that he was walking in the mall parking lot that afternoon when he heard an argument and saw a man, whom he later identified in a police lineup and in court as the defendant, standing next to the driver's side of a green Dodge Intrepid about 40 or 50 feet ahead of him. He had a clear look at the man's face.

Southward heard defendant say, "bitch, hurry up and get the fuck out of the car," and heard the victim respond, "please just let my kids out." He then heard a shot and ran toward the car. As Southward was running, he observed defendant break the glass of the driver side window with the butt of the gun, reach into the car, unlock the door, open it, and throw the victim to the ground. He saw the defendant drive away in the victim's car and observed another car that had been parked next to the Intrepid drive off after the defendant, but he did not see anyone inside the other car. During his testimony, Southward admitted to multiple previous convictions in the State of North Carolina, as well as having two outstanding warrants from North Carolina.

Joseph Harrison testified that he and his fiancee, Retrenia Smith, were driving home from a shopping trip and while he was stopped at a red light at 79th Street and Talman, he noticed two cars, a green Intrepid and a dark-colored Corolla, "jumping in and out of lanes." Harrison explained that defendant, in the Intrepid, pulled up next to

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him on the driver's side, but the Corolla hit Harrison's car in the rear. Harrison got out to inspect his car and then went to talk to the driver of the Corolla, a woman later identified as codefendant Shakina Feazell. She refused to roll down her window or respond to him. The Intrepid drove off but then backed up. Defendant exchanged profanities with Harrison and defendant told codefendant to "forget about [Harrison] and take off." She put the Corolla in reverse and then drove off, with defendant following. Harrison said he jumped back into his car and started following them east on 79th Street, as his fiancee called the police.

Harrison stated that he stopped for a red light in the far right lane at 79th and Western, the Corolla was next to him in the middle lane, and the Intrepid next to the Corolla in the left-turn lane. He and defendant again exchanged profanities and defendant told the woman in the Corolla to take off when the light changed. As the light changed the Corolla driven by codefendant left first, followed by Harrison, who was followed by defendant. Defendant then pulled up to the left of Harrison's car and yelled at Harrison to "back the fuck off." Harrison's fiancee testified that she saw a gun in defendant's hand. Harrison said he heard two shots, but he did not see defendant fire them. Harrison then made a U-turn, and he and his fiancee called the police while waiting at a gas station. Harrison later positively identified defendant in a police lineup. His fiancee identified someone other than the defendant in the lineup.

Steve Kelly testified that about 5:35 p.m. on March 24, 2001, he was standing outside the field house in Garfield Park when he heard a big crash and a bang. He went to investigate and saw a woman, later identified as codefendant, lying on the ground next to a Corolla car that had run into a parked van with such force that the van was now on its side. Kelly said that as he attended to her, defendant pulled up in a green Intrepid. Defendant asked the woman if she was all right, helped her up, and told Kelly he would take her to the hospital. Kelly said he pointed them in the direction of the nearest hospital. Kelly said he saw defendant and the woman drive north in the green Intrepid on Central Park Avenue.

By this time, the police had begun their investigation of the carjacking and shooting that occurred at Ford City Mall, as well as the events reported by Harrison and Smith. Detective Jose Cardo, a

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uniformed officer on patrol, testified that he received a series of flash messages over the police radio. The first message was about a hit and run accident, which included the description of a green Dodge Intrepid, license plate MSV 43, fleeing the scene of the accident. He said immediately following that message was another, informing the officers that the Intrepid had been taken in a carjacking and shooting at Ford City Mall.

Cardo said he was on Ohio Street traveling west when he received the messages, and he immediately observed the green Intrepid proceeding east on Ohio toward him. Cardo closed in on the Intrepid and saw a male driving, with a female in the passenger seat. He activated his emergency equipment and the Intrepid sped off. After a chase lasting a few blocks, the Intrepid failed to make a left turn onto Lake Street and slammed into a Chicago Transit Authority (CTA) elevated-train pillar. Defendant jumped out of the vehicle and ran. Cardo was able to apprehend defendant when defendant fell after a short foot chase. After taking defendant and codefendant into custody, Cardo stated, he observed a revolver on the floor of the driver's side of the Intrepid.

Officer Jackie Frausto testified that she arrived at scene of the crash at the CTA elevated-train pillar and arrested a woman sitting in the passenger seat of a green Dodge Intrepid. She saw a black revolver...

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