People v. Donahue

• Decision Date: 25 July 2014
• Docket Number: No. 1–12–0163.,1–12–0163.
• Citation: 16 N.E.3d 316
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Dwond DONAHUE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

16 N.E.3d 316

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Dwond DONAHUE, Defendant–Appellant.

No. 1–12–0163.

Appellate Court of Illinois, First District, Fifth Division.

July 25, 2014.

Michael J. Pelletier and Deepa Punjabi, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Michelle Katz and Kalia M. Coleman, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Dwond Donahue was convicted on November 4, 2010, after a jury trial, of first degree murder and sentenced on December 12, 2011, to 47 years, plus a 25–year firearm enhancement, for a total of 72 years in the Illinois Department of Corrections (IDOC). The case concerned the shooting death of Lawaide Labon, age 32, on June 14, 2008, near Jackson and Whipple Streets, in Chicago.

¶ 2 On this direct appeal, defendant claims that the State presented insufficient evidence where there was no physical evidence, no arrest at the scene, no admissions or statements by defendant, no evidence that defendant and the victim previously knew each other, and no evidence of gang affiliation or drug involvement, and where the case was based entirely on the identifications of two witnesses, one of whom told a defense investigator that she identified defendant only after pressure from a detective.

¶ 3 Defendant also claims that prosecutorial misconduct deprived defendant of a fair trial, when the prosecutor made false statements about the defense's theory of the case and made inflammatory remarks, such as the victim would have been safer in a war zone then on the streets of Chicago since the death rate is lower in the military than in Chicago.

¶ 4 For the following reasons, we affirm.

¶ 5 BACKGROUND

¶ 6 In the case at bar, the defense made no pretrial motions and offered no objections to the State's motion in limine to bar the defense from asking questions on certain topics, such as police misconduct.

¶ 7 On November 2 and 3, 2010, the State called six witnesses: (1) Denise Labon, the victim's wife, who identified the victim; (2) Tiffany Labon, the victim's cousin and his wife's best friend, who was one of two eyewitnesses called at trial; (3) Daiquiri Collins, who was Tiffany Labon's uncle, and the other eyewitness called at trial; (4) Detective Gregory Jones; (5) Jon Flaskamp, a firearms examiner; and (6) Officer Joseph Wagner, the arresting officer. After the State rested, the defense rested without making a motion for a directed verdict.

¶ 8 I. Denise Labon, the Victim's Wife

¶ 9 Denise Labon, the first witness, testified that she was the wife of Lawaide Labon, the victim. On June 14, 2008, she was working an evening shift, from 4 p.m. to midnight, as a security guard when she received a call at 11:30 p.m. from her best friend, Tiffany Labon. Her work partner then drove her to the hospital where she identified her dead husband.

¶ 10 II. Tiffany Labon, the Victim's Cousin

¶ 11 Next, Tiffany Labon testified that the victim was her cousin and the other testifying eyewitness, Daiquiri Collins, was her uncle. On June 14, 2008, she attended a family gathering on the west side of Chicago, near Jackson and Whipple Streets. The occasion was a housewarming party and the victim, Lawaide Labon, was also there. At 11:20 p.m., she was standing on the street near 312 South Whipple Street talking with her uncle, Daiquiri Collins, and another man known as “Red” who was there with his dog. Labon recognized the dog because it had belonged to her brother, who had given it to Red.

¶ 12 Labon testified that, while the three of them were standing there talking, a man arrived and pointed a gun at the dog, threatening “shut the f* * * dog up or I'll shoot it.” Although it was late at night, there was light from streetlamps and house lights, and she was able to see the face of the man with the gun, whom she identified in court as defendant. Then someone else arrived, grabbed the man with the gun and took him “across the street or down the street or something.” Two minutes later, Labon's cousin, the victim, drove up with his children and double-parked on the other side of a vehicle against which Labon was leaning. As soon as the victim stepped out of his vehicle, the man with the gun returned and “stepped up in [the victim's] face asking who is you? Who is you?”

¶ 13 Labon testified that the victim and the other man started “tussling” and pushing each other, and the other man was reaching for his gun. At that moment, Labon's Uncle Daquiri “snatched [her] away from it” and she heard three gunshots. When she turned around, she observed her cousin on the ground, crawling to the curb, and the other man entering a van.

¶ 14 Labon was then asked whether anyone spoke to the shooter when he first approached but before the victim drove up. She testified that, when the shooter first walked up, someone stated “what's up Swol” and the shooter responded “what's up.”

¶ 15 Labon further testified that, on June 15 at 1:25 a.m., she reviewed a photo array at the police station:

“ASSISTANT STATE'S ATTORNEY (ASA): Were you able to positively identify the shooter in these photo arrays?

LABON: Yes, I was positive. Only one I said he looked like him but it wasn't him.

* * *

ASA: What did you tell the detective about that person?

LABON: I said he looked like him but that wasn't him.”

Labon then viewed another photo array on the same day and selected defendant's photo. On July 10, 2008, she returned to the police station and viewed a lineup where she also identified defendant.

¶ 16 On cross-examination, Labon admitted that she did not recall how the shooter was dressed or whether he wore a “hoodie,” which she explained was a jacket with a hood. She did not know how tall the shooter was; she recalled only that he was taller than she was. When asked how much the man weighed, she replied “I'm not sure of that either.” The first time she ever observed him was the night of the shooting. Although she had lived in that neighborhood for almost a year, she had never seen him before. Only one or two minutes elapsed between the time when the shooter first approached and made a comment about the dog and when somebody pulled him away. Labon did not know whether the shooter was wearing pants or shorts, or a tee shirt or a shirt with a collar; and she did not recall the color of his shirt. She did not recall what kind of vehicle the victim was driving, but the color was “champagne.”

¶ 17 On cross, Labon testified that, after the shooting, a blue van came down the street and picked up the shooter. When the victim and the shooter were tussling, she was leaning against the vehicle with her back turned to the fight, but she looked back over her left shoulder and observed it. Then her uncle grabbed her away, and she heard the gun. After her uncle pulled her away, she was standing on the curb. She recalled the shooter had a mustache and a “little bit” of a beard,¹ but she did not tell the police that because they did not ask.

¶ 18 On cross, Labon testified that, on June 15, 2008, just a few hours after the shooting, she was shown two photo arrays, and defendant's photo was in neither one. In one photo array, she viewed photographs of six people and then circled one and signed her name under the one that she had circled. Labon testified that she “said he looks like him but he wasn't him.” Ten days later, on June 25, 2008, she viewed another photo array and identified defendant.

¶ 19 On cross, Labon testified that, on October 8 and 9, 2009, she received a visit at her home from defense investigator Mark Saunders. When asked whether she told Saunders that the detective had pointed to defendant's photograph, she replied: “I told—he pointed to the defendant, after I pointed him out. Not before.” However, this statement, that the detective pointed out the photograph only after she did, does not appear in Labon's signed statement While Labon and Saunders were talking, Saunders wrote out a two-page statement which Labon then initialed on the first page and signed on the second page. Defense counsel then reviewed with Labon the statements contained in her signed statement. Labon admitted that she told the investigator that, while she was viewing the photo array, the detective pointed to defendant's photo and stated: “Is this him?” Labon admitted that she told the investigator: “I was shown five photos but I wasn't sure if the shooter was one of these pictures, one of the police detectives kept pointing at [defendant's] picture and repeatedly saying, is this him, is this him.” Then she told the investigator: “At this time, I felt as if I was supposed to say that [defendant] was the shooter.” She also admitted that she told the investigator that “prior to the shooting I had never seen [defendant].” She admitted that she signed her name to this statement, which was subsequently admitted into evidence.

¶ 20 On cross, Labon testified that, on October 9, 2009, when she met with the investigator at her home, they also discussed the lineup. On July 10, she went to the lineup at 1 p.m. and looked through a window at four or five men sitting on chairs. She told the investigator that she “saw the man whose picture the detective kept pointing at and saying, is this him, so I obviously said it's No. 2.”

¶ 21 On redirect, she testified that she was scared because she had never been through anything like this before and she came “from the same neighborhood.” However, she did not specify the same neighborhood as whom. Labon had previously testified that she had never observed the shooter before in the neighborhood.

¶ 22 III. Daiquiri Collins, Tiffany Labon's Uncle

¶ 23 The State's next witness, Daiquiri Collins, was the uncle of Tiffany Labon, who had just testified. Collins, whose nickname was “Zack,” was 42 years old and had been employed delivering “Ready–Mix” concrete for five years. He lived in the...