People v. Jackson

• Decision Date: 09 December 2015
• Docket Number: No. 3–14–0300.,3–14–0300.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Lateef M. JACKSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

44 N.E.3d 1212

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Lateef M. JACKSON, Defendant–Appellant.

No. 3–14–0300.

Appellate Court of Illinois, Third District.

Dec. 9, 2015.

44 N.E.3d 1214

Nate Nieman, of Nieman Law Group, Moline, for appellant.

John L. McGehee, State's Attorney, Rock Island (Justin A. Nicolosi, of State's Attorneys Appellate Prosecutor's Office, Ottawa, of counsel), for the People.

44 N.E.3d 1215

OPINION

Justice CARTER delivered the judgment of the court, with opinion.

¶ 1 Defendant, Lateef M. Jackson, appeals his conviction of aggravated battery (720 ILCS 5/12–3.05(b)(2) (West 2012)), arguing that the trial court erred in: (1) granting the State's motion to substitute judge; (2) finding K.R.L. competent to testify; and (3) failing to tender a cautioning instruction to the jury after admitting hearsay statements pursuant to section 115–10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/ 115–10 (West 2012)). We affirm.

¶ 2 FACTS

¶ 3 Defendant was charged by information with aggravated battery (720 ILCS 5/12–3.05(b)(2) (West 2012)), in that defendant allegedly knowingly caused bodily harm to K.R.L., a child under 13 years of age, in that: defendant punched K.R.L. repeatedly in the stomach. Subsequently, defendant was charged by information with a second count of aggravated battery (720 ILCS 5/12–3.05(b)(1) (West 2012)) in that defendant knowingly caused bodily harm to K.R.L. by punching K.R.L. repeatedly in the abdomen thereby bruising an organ in his abdomen.

¶ 4 On March 26, 2013, defendant filed a motion to substitute Judge F. Michael Meersman pursuant to section 114–5(a) of the Code (725 ILCS 5/114–5(a) (West 2012)). At a hearing on March 26, 2013, Judge Meersman noted that defendant had filed a motion to substitute judge. Judge Meersman advised defendant that his case would be transferred to Judge Walter Braud's schedule and that defendant's preliminary hearing would be at 11 a.m. on April 5, 2013.

¶ 5 On March 27, 2013, the State filed a motion to substitute Judge Braud. The motion stated in its entirety:

“NOW COMES the People by JENNIFER A. GARDNER, Assistant State's Attorney, and moves this Honorable court to substitute the Honorable Judge WALTER BRAUD, in the above-captioned cause pursuant to 725 ILCS 5/114–5, and states as its reason that the State is entitled to one substitution of Judge (without cause) as a matter of right.

WHEREFORE the People pray that this Court enter an order substituting the Honorable Judge WALTER BRAUD in the above-captioned case.”

¶ 6 Defendant filed a resistance to the State's motion to substitute, alleging that the motion was legally deficient because it failed to plead prejudice on the part of Judge Braud. Subsequently, defendant also filed a motion to strike the State's motion to substitute on the basis that the motion failed to allege prejudice.

¶ 7 On April 2, 2013, a preliminary hearing was held before Judge Jeffrey O'Connor at which the court found probable cause. Defendant pled not guilty. The State's attorney said, “Your Honor, I guess, we formally place the matter on Judge Braud's schedule and then we'll make a motion—.” Judge O'Connor replied that the State could address that later. On April 5, 2013, the parties appeared before Judge Meersman. Judge Meersman told them to set the State's motion to substitute before Judge Braud the following week.

¶ 8 On April 8, 2013, Judge Braud presided over a hearing on the State's motion to substitute judge and defendant's resistance to that motion. At the hearing, the State filed an amended motion to substitute judge, which was identical to its original motion except that it cited specifically

44 N.E.3d 1216

to subsection (c) of section 114–5 of the Code (725 ILCS 5/114–5(c) (West 2012)). Defendant asked that the trial court strike the State's amended motion because it still failed to allege that Judge Braud was prejudiced against the State. After reviewing case law submitted by the parties, Judge Braud denied the motion to substitute on the basis that the State was using substitutions pursuant to section 114–5(c) to undermine the trial call:

“Okay. What this [case] says is that the State has an absolute right to make a substitution unless there is reason to believe that the State is using those substitutions to undermine the trial call. In other words, if every time there's a case of a certain type that's coming up and the State decides to substitute a certain judge, they are going to have to put on a showing that that is not the case.

And that's clearly is [sic ] the case, and so is [sic ] the motion to substitute is denied.”

¶ 9 On April 11, 2013, the State filed a second amended motion to substitute Judge Braud, which did contain an allegation of prejudice. Defendant filed a resistance to the State's second amended motion to substitute and a motion to strike on the bases that: (1) the matter had already been decided by the court on April 8; and (2) the second amended motion to substitute was untimely filed, as it was not filed within 10 days of the case being assigned to Judge Braud's trial call.

¶ 10 On April 15, 2013, the State filed a motion to reconsider the trial court's April 8 ruling. The next day, Judge Braud entered a written order granting the State's motion to reconsider and assigning the case to Judge Frank Fuhr. Defendant filed a resistance to the State's motion to reconsider the same day that the order was entered. The following day, defendant filed a motion to reconsider the court's ruling on the State's motion to reconsider.

¶ 11 A hearing on defendant's motion to reconsider was held on April 23, 2013. Defendant argued that the State's original motion to substitute judge was timely filed but deficient because it lacked an allegation of prejudice on the part of Judge Braud. Judge Braud denied defendant's motion to reconsider. Judge Braud explained that he refused to grant the motion to substitute originally because “there is a provision that says that the State has no right to blanketly * * * substitute judges, because it interferes with the chief judge's ability to assign cases.” Judge Braud further stated that before the current State's Attorney took office, the State's Attorney had a policy of constantly substituting him on cases of the same type as the instant case. However, Judge Braud explained, there had been no indication of blanket substitutions since the current State's Attorney took office, so he could not find that the State's Attorney's office was in violation of the rule. Judge Braud stated that the case was assigned to Judge O'Connor.

¶ 12 The State filed a notice of intent to use certain hearsay statements of the alleged victim, four-year-old K.R.L., pursuant to section 115–10 of the Code (725 ILCS 5/115–10 (West 2012) ). A hearing before Judge O'Connor was held on the State's motion. The State called three witnesses: (1) Briana Pilcher, K.R.L.'s mother; (2) Tiffany Massey, Pilcher's coworker and neighbor; and (3) Marcella O'Brien, a police department detective. All three witnesses testified as to statements that K.R.L. made to them after the incident in question. The court ruled that the three witnesses would be able to testify at trial as to K.R.L.'s hearsay statements if K.R.L. was unavailable as a witness.

44 N.E.3d 1217

¶ 13 A jury trial was held. K.R.L. testified as the State's first witness. Prior to K.R.L.'s testimony, the court asked K.R.L. what his name was, and K.R.L. stated his first name. The trial court asked K.R.L. if he knew what it meant to tell the truth, and K.R.L. replied, “Yeah.” The court asked K.R.L. if he would tell the truth that day at trial, and K.R.L. said, “Yeah.” The following exchange between K.R.L. and the court took place:

“THE COURT: Now, if I were to tell you that this object, this thing right here, is blue, would that be the truth or would that be a lie?

THE MINOR: A lie.

THE COURT: What color is it?

THE MINOR: Yellow.

THE COURT: Okay. So it's important that all these people here hear what you have to say, but you have to promise to tell the truth, okay?

THE MINOR: Okay.”

¶ 14 K.R.L. testified that he was four years old. He stated the names of his three sisters. K.R.L. stated that he lived with his sisters and his mom. K.R.L. remembered having to take a helicopter ride because his stomach was hurt. The State's Attorney asked K.R.L. what happened to make his stomach hurt and who hurt his stomach, but K.R.L. did not answer the questions. The State's Attorney asked K.R.L. what his stomach was hurt with, and K.R.L. stated that his stomach was hurt with a fist. The State's Attorney asked K.R.L. to demonstrate on a chair how his stomach was hurt.

¶ 15 At that point, defense counsel objected on the bases that the State lacked a foundation, was leading the witness, having the witness punch a chair was prejudicial and not...