People v. Evans
| Decision Date | 13 July 2016 |
| Docket Number | No. 3–14–0120.,3–14–0120. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ali Lemont EVANS, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
60 N.E.3d 77
406 Ill.Dec. 175
The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Ali Lemont EVANS, Defendant–Appellant.
No. 3–14–0120.
Appellate Court of Illinois, Third District.
July 13, 2016.
Michael J. Pelletier and Dimitri Golfis (argued), both of State Appellate Defender's Office, of Ottawa, for appellant.
Jerry Brady, State's Attorney, of Peoria (Justin A. Nicolosi (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
OPINION
Justice CARTER delivered the judgment of the court, with opinion.
¶ 1 Defendant was found guilty of first degree murder. 720 ILCS 5/9–1(a)(3) (West 2008) (a person who kills an individual without lawful justification commits
first degree murder if, in performing the acts which cause the death, he is attempting or committing a forcible felony). Defendant was sentenced to 58 years of imprisonment. On appeal, defendant argues, inter alia, that his constitutional right to confront witnesses was violated where the prosecutor continued to question a witness, in the presence of the jury, and the witness refused to testify and repeatedly asserted his fifth amendment privilege against self-incrimination. U.S. Const., amend. V. We reverse and remand for a new trial.
¶ 2 FACTS
¶ 3 Defendant was charged with first degree murder, based on allegations that on May 27, 2009, he and codefendant, Deangelo Lindsey, shot the store clerk, with a handgun, during an attempt to commit armed robbery. The trials of defendant and his codefendant—Lindsey—were severed.
¶ 4 Prior to defendant's trial, defendant filed a motion to suppress incriminating statements that he made to police, arguing that his right to counsel was violated because police continued to interrogate him after he had requested an attorney. The trial court denied the motion, and defendant was subsequently convicted of first degree murder and sentenced. On appeal, this court reversed defendant's conviction and remanded for a new trial, finding that the motion to suppress should have been granted because defendant had invoked his right to counsel and did not initiate the subsequent incriminating conversation with police. People v. Evans, 2012 IL App (3d) 100737–U, 2012 WL 7005213.
¶ 5 On remand, the case proceeded to a jury trial. During opening statements, the prosecutor told the jury that defendant had fired four shots into the victim's body and then fled with Lindsey, leaving the victim to die. The prosecutor informed the jury that Sheanneya Sherman drove into the gas station parking lot as defendant “was turning the [victim] into a corpse.” The prosecutor indicated that Sheanneya saw two people run out of the gas station store, one of whom she recognized as a person named “Ali” and she later identified as defendant. The prosecutor further indicated that the murder weapon was found in the house of Lindsey's sister and matched “the bullets pulled out of [the] poor [victim]'s body.” The prosecutor also thanked jurors for their attention on behalf of the victim.
¶ 6 On the first day of trial, witnesses testified that the body of the deceased store clerk was discovered behind the counter of the gas station store. Four .22–caliber cartridges were removed from the store clerk's body during the autopsy. The cartridges were sent to the state crime laboratory for analysis. The sister of Lindsey testified that she lived in an apartment two houses from the gas station, which she allowed police officers to search.
¶ 7 Following a lunch break on the first day of trial, the prosecutor informed the trial court that the State intended to call Lindsey to testify by way of immunity. Defendant's counsel informed the trial court that he spoke with Lindsey's appellate counsel via telephone, and appellate counsel had indicated that he was Lindsey's attorney of record because in Lindsey's case there was a pending petition for leave to appeal to the Illinois Supreme Court. Lindsey's appellate counsel had not been contacted about Lindsey testifying in defendant's trial and he wanted to speak with Lindsey regarding his intent to assert his fifth amendment right against self-incrimination. The prosecutor argued that Lindsey did not have the right to assert his fifth amendment because he had
been given “use immunity” and that Lindsey should be held in contempt if he refused to testify. Defendant's attorney argued that Lindsey should not be put on the witness stand “without the benefit of speaking with his attorney of record.” The trial court found that defendant would not be prejudiced if Lindsey did not speak with his attorney of record prior to testifying, noting that Lindsey had already been able to consult with his trial attorney.
¶ 8 The State called Sheanneya Sherman to testify. Sheanneya testified that she had turned into the gas station parking lot to make a U-turn when she saw two men run out of the gas station store and flee into the alley behind the gas station. The first man's face was covered and he was holding a gun. The second man had a bag in his hand and Sheanneya recognized him as a person named “Ali.” Sheanneya reported her observations to police two days later when she found out that the store clerk had been killed. Sheanneya identified defendant from one of hundreds of photographs. She also identified defendant from an in-person lineup. Sheanneya testified at trial that she was “a hundred percent positive that the [d]efendant [was] the second person out of the store with the bag in his hand.”
¶ 9 Sheanneya's father, Larry Bush, had been in the car with Sheanneya on the day of the incident. He testified that he saw two African American “kids” run out of the gas station store—one of them was carrying a gun and the other was carrying a bag. Larry described the two males as 17 or 18 years of age. The first person out of the store jumped the fence near the back of the store and the other person stood by the dumpsters holding the gun in the air. Larry had viewed a police lineup but was not able to make an identification.
¶ 10 Police detective Keith McDaniel testified for the State. The prosecutor asked McDaniel what he did after he had questioned defendant. McDaniel responded that after speaking with defendant he “went to locate Lindsey” and searched the home of Lindsey's sister. Defendant's attorney objected. Outside the presence of the jury, defendant's attorney moved for a mistrial, arguing that McDaniel's testimony was prejudicial in that it directly went to defendant's inculpatory statements that had previously been suppressed. The trial court sustained the objection and denied defendant's request for a mistrial. When the jury returned, the trial court instructed the jury to “[d]isregard that question and answer.”
¶ 11 McDaniel testified that in conducting a search of the apartment of Lindsey's sister, police found a handgun. The apartment was located two houses away from the gas station. Lindsey's fingerprint was found on the handle of the gun. A forensic scientist testified that the bullets recovered from the victim's body were fired from the handgun found in the apartment.
¶ 12 Outside the presence of the jury, the prosecutor informed the trial court of her intent to call Lindsey as a witness and that Lindsey intended to invoke his fifth amendment right against self-incrimination. The prosecutor argued that Lindsey could not assert the fifth amendment right against self-incrimination where he had immunity because nothing he said could be used against him. Defendant's attorney objected to the State presenting Lindsey as a witness when the prosecutor knew that he would assert his fifth amendment right not to testify. The trial court allowed the State to call Lindsey as a witness. The trial judge indicated “for the record” that he was allowing the State to call Lindsey as a witness pursuant to People v. Calabrese, 398 Ill.App.3d 98, 338 Ill.Dec. 146, 924 N.E.2d 6 (2010) (allowing the State to call defendant's brother to
testify was not an abuse of discretion, although court knew that brother would invoke his fifth amendment right not to testify, where defendant had suggested that his brother was the actual offender and the State's motive was to refute that argument).
¶ 13 Lindsey confirmed that he intended to plead the fifth to “[e]very question.” The trial court informed Lindsey that he did not have a fifth amendment right to refuse to testify because he was given immunity and he would be ordered to answer the questions or be subject to contempt. Lindsey confirmed that he understood but still intended to “plead the Fifth.” The jury was brought back into the courtroom.
¶ 14 The following direct examination of Lindsey took place in the presence of the jury:
“Q. [Prosecutor]: Would you state your name?...
A. Deangelo Lindsey.
Q. And are you from the Peoria area?
A. Yes, ma'am.
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