People v. Givens

• Decision Date: 09 October 2018
• Docket Number: No. 1-15-2031,1-15-2031
• Citation: 2018 IL App (1st) 152031 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GIVENS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 152031-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GIVENS, Defendant-Appellant.

No. 1-15-2031

APPELLATE COURT OF ILLINOIS FIRST DISTRICT Second Division

October 9, 2018

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 the Circuit Court of Cook County.

No. 12 CR 9682(01)

The Honorable James B. Linn, Judge Presiding.

JUSTICE LAVINdelivered the judgment of the court.

Justices Pucinski and Hyman concurred in the judgment.

ORDER

¶ 1Held: Defendant's conviction for first degree felony murder is affirmed over his contention that his co-offender's death was not a foreseeable consequence of his burglary offense.Defendant's conviction for aggravated battery under an accountability theory is also affirmed where sufficient evidence showed that co-defendant knowingly caused bodily harm to Officer Papin.Furthermore, the trial court did not abuse its discretion in excluding evidence of the Chicago Police Department's general order regarding the use of force against a vehicle, and did not err in denying defendant's motion to dismiss the felony murder indictment.Finally, defendant's forfeited claims do not constitute plain error.

¶ 2 Following a jury trial, defendantJohn Givens was found guilty of first degree felony murder (720 ILCS 5/9-1(a)(3)(West 2012)), aggravated battery to a peace officer (720 ILCS 5/12-3.05(d)(4)(West 2012)), burglary (720 ILCS 5/19-1(a)(West 2012)), and possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)(West 2012)).Defendant was sentenced to three consecutive prison terms, which included 20 years for felony murder, 6 years for aggravated battery and 6 years for possession of a stolen motor vehicle.

¶ 3 On direct appeal, defendant argues (1)he was not proved guilty beyond a reasonable doubt of felony murder where his co-offender's death was an unforeseeable consequence of the burglary; (2)he was not proved guilty beyond a reasonable doubt of aggravated battery under an accountability theory because the evidence was insufficient to show that co-defendant, as the principle, knowingly caused bodily harm to Officer Papin; (3)the trial court abused its discretion in excluding evidence of the Chicago Police Department's (CPD) general order regarding the use of force against a vehicle; (4)the court erred in denying his motion to dismiss the felony murder indictment where the State committed prosecutorial misconduct; (5)the trial court violated Illinois Supreme Court Rule 431(b)(Ill.S. Ct. R. 431(b)(eff. July 1, 2012)), during voir dire; (6)the court improperly instructed the jury on accountability and felony murder combined, as well as on causation in felony murder; and (7)the State misstated the law during closing argument.For the reasons that follow, we affirm.

¶ 4 I. BACKGROUND

¶ 5Defendant's convictions arose out of a burglary commission, after one of defendant's co-offenders, David Strong, was killed during their attempt to escape from the police.Co-defendant, Leland Dudley, was also convicted of first degree felony murder, aggravated battery to a peace officer and possession of a stolen motor vehicle based on the same burglary commission, whichwas affirmed by this court(People v. Dudley, 2018 IL App (1st) 152039).Defendant and co-defendant were tried jointly by a jury.

¶ 6 Briefly stated, the evidence at trial generally showed that in the early morning hours on April 30, 2012, defendant, co-defendant and Strong burglarized Mike's Electronics.The store, owned by Miguel Gutierrez, sold car stereo equipment and was located at 2459 South Western Avenue.At the time of the burglary, the store consisted of a small showroom on the first floor, an attached garage where the merchandise could be installed into vehicles, and an apartment on the second floor, which was occupied by Sergio Hernandez.Defendant and his co-offenders apparently entered the store through an air conditioning vent.

¶ 7 At trial, Hernandez testified that on April 30, 2012, he was asleep in his apartment when he was awoken by some "thumping" noises and voices coming from the store below.Hernandez called the police, who arrived at the scene "less than a minute" later.As Hernandez went downstairs to open the door for the police, he noticed that one of the store's windows that opened into the garage was broken.When Hernandez looked through that window into the garage, he saw three men getting into Gutierrez's minivan.

¶ 8 Hernandez testified that the police tried to kick down the store's interior door that led to the garage, as it had been barricaded shut with a two-by-four.He further testified that the police continuously announced their presence as they tried to open that door.Hernandez then looked through the broken window and saw the three men reverse Gutierrez's van and break through the closed garage door.Hernandez also testified that several police officers, who were outside the garage door, began shooting at the van after it hit an officer.When the van broke through the garage door, it crashed into Hernandez's truck parked in the driveway outside and pushed the truck into a squad car before ultimately coming to a stop.

¶ 9 Officer Mendez testified that he approached the van after it stopped and observed that the gearshift was still in drive.Officer Curry testified that, after observing all three occupants had been shot, he called two ambulances to the scene.Defendant, who was sitting in the rear passenger's seat, had been shot six times, in the arms, legs, chest and neck.Co-defendant, who was sitting in the driver's seat, had been shot in the head, shoulders and back.Strong, who was sitting in the front passenger's seat, had been shot in the head, chest, arms and legs.

¶ 10 Gutierrez testified that on the date of the incident, 11 security cameras were installed and functioning properly throughout the building, including the interior and exterior of both the store and the garage.The video surveillance footage, which was admitted at trial and shown to the jury, generally reflected the above-stated events.Specifically, it showed that around 2:40 a.m., defendant, co-defendant and Strong took merchandise from the store's showroom and put it inside Gutierrez's minivan in the garage.The video footage also showed that while the men were taking the merchandise, lights were flashed inside the showroom from outside the store, apparently by the police.Subsequently, two of the men ran from the showroom to the garage, while the third man ducked behind a display inside the showroom, crouched down and then ran out of the room.Ultimately, defendant, co-defendant and Strong were inside the garage, attempting to open the garage door.

¶ 11 Surveillance further showed that a police officer approached the garage door from the outside and attempted to open it.Lights flashed inside the garage and, immediately thereafter, one of the men hid.Officer Lopez testified that, after unsuccessfully trying to open the interior door to the garage, he and Officer Gonzalez kicked a small hole through that door, while continuously yelling, "Chicago police officers, come out, you're surrounded, just come out."Officer Pratscher testified that, as he attempted to open the garage door from the outside, heheard movement inside the garage, and subsequently began yelling, "Police, come out now, there is [nowhere] for you to go."After receiving no response, Officer Pratscher went to the store's front entrance and shone his flashlight inside the showroom.The video footage also showed Officers Curry and Papin walking towards the garage door from the outside at about 2:45 a.m. Seconds later, the van broke through the garage door and defendant, co-defendant and Strong were met by the police waiting outside.

¶ 12 Officer Papin testified that he was standing directly in front of the garage door when the van crashed through it, but he had no time to move out of the way.The rear driver's side of the van struck his left hip.Additionally, Officers Lopez, Pratscher, Curry and Mendez all testified that the van's driver made an "up and down" motion with his right arm, "motioning up by where the gearshift area was," and that the van lurched forward towards the other officers.Officer Lopez added that the van was moving at a high rate of speed.Officer Lopez, believing, albeit incorrectly, that he saw an officer "roll underneath the wheels of [the van]," shot at the van's driver six times to prevent the van from moving forward.Officer Pratscher similarly testified that he was standing to the right of the garage door when the van crashed through and hit Officer Papin.Believing that Officer Papin was trapped under the van, Officer Pratscher shot at the van's driver 11 times to stop the van from moving.Officer Curry testified that he also saw the van strike Officer Papin and shot at it to stop it from moving.According to Officer Mendez, he attempted to fire his weapon to stop the van, but his weapon malfunctioned.Sergeant Benigno testified that when he arrived at the scene at about 3:30 a.m., he examined the van and observed that it was still in drive.At that time, Strong was pronounced dead.

¶ 13 It was stipulated that Strong's autopsy revealed he had been shot nine times, and the cause of death was multiple gunshot wounds, in the manner of homicide.The defense restedwithout presenting any evidence and the jury found defendant guilty of first degree felony murder predicated on his burglary offense, aggravated battery to a peace officer based on an accountability theory for co-defendant's actions, burglary and possession of a stolen motor vehicle.The trial court denied defendant's motion for a new trial, as well as defendant and co-defendant's joint motion for directed finding.At defendant's sentencing hearing, the court merged defendant's burglary conviction into his felony...