People v. Jones

• Decision Date: 11 October 2016
• Docket Number: No. 1–14–1008.,1–14–1008.
• Citation: 69 N.E.3d 226,2016 IL App (1st) 141008
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Antonio JONES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 141008

69 N.E.3d 226

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Antonio JONES, Defendant–Appellant.

No. 1–14–1008.

Appellate Court of Illinois, First District, Second Division.

Oct. 11, 2016.

Michael J. Pelletier, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Mary P. Needham, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Following a 2013 jury trial, defendant Antonio Jones was convicted of three counts of attempted murder and three counts of aggravated battery with a firearm, for which he was sentenced to three concurrent terms of 23 years' imprisonment. On appeal, he argues that (1) the trial court erred in barring argument and testimony regarding the defense of justified use of force, (2) trial counsel was ineffective for failing to request jury instructions on affirmative defenses and a lesser-included offense, (3) the State's comments during opening and closing argument were inaccurate and prejudicial, (4) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), and (5) the trial court failed to consider mitigating evidence in sentencing. For the reasons that follow, we reverse and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 In the early morning hours of September 1, 2010, Chicago police officers Glen Evans, James Gochee, and Michael St. Clair were injured while attempting to gain entrance to 7701 South Hoyne Street to execute a search warrant naming Demario Thomas as the subject. Defendant Antonio Jones and codefendant Thomas were indicted on multiple counts of attempted murder, aggravated battery with a firearm, attempted murder of a peace officer, aggravated battery with a firearm of a peace officer, and possession of a controlled substance with intent to deliver. Jones was tried on a theory of accountability for the violent crimes.

¶ 4 In his answer to the State's discovery, Jones indicated that he might assert affirmative defenses of self-defense, defense of others, and defense of property. As support for these theories, Jones planned to introduce evidence that he had previously been the victim of a shooting in his residence in March 2010; however, the State moved in limine to bar defense counsel from referencing that incident in opening statements. The court granted the State's motion, telling counsel: "Don't make it in your opening statement, leave it out. We will talk about it later if necessary. You can always say self-defense. The only question is if someone else does the shooting, I'm not sure he can claim self-defense necessarily. * * * Make a generic opening statement, leave out the self-defense aspect of it."

¶ 5 Jones and Thomas were tried simultaneously with separate juries. During Jones's jury selection, the court queried the panel as to their understanding of the four principles outlined in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), but instead of asking whether any of the venire did not understand and accept the principles, the court, three times out of four, asked the venire whether they did "understand and accept that instruction." No members of the venire raised their hands or otherwise responded, which Jones argues on appeal indicates that no member of the venire understood or accepted those principles. Nor did panel members respond or raise their hands, when, the fourth time, the Court asked whether they did not accept and understand the principle.

¶ 6 The State began its opening statement by characterizing Jones as a "criminal" and went on to refer to Jones as a criminal no less than four times. At the second reference, the following colloquy ensued:

"LISA LONGO [Assistant State's Attorney]: * * * [The police] learned that behind that door were two cold-blooded criminals who had reasons to keep those police out.

FRANK TEDESSO [Defense counsel]: I will object to the State continually referring to these defendants as criminals.

THE COURT: Disregard it—I'm ruling on your objection, Mr. Tedesso.

Disregard the comment about cold, hard criminals, please. Go ahead." Nevertheless, the State continued to refer to Jones as a criminal during the remainder of its opening statement.

¶ 7 The State's evidence at trial revealed that on the night of September 1, 2010, a team of 14 to 16 police officers was executing a search warrant at 7701 South Hoyne Avenue in Chicago. The officers parked a short distance away from the home in marked and unmarked cars. While most officers were in plainclothes, they all wore raid vests emblazoned with "Chicago Police Department." The officers approached the back of the home in a single file line, with Officer James Gochee leading the group. Officer Gochee breached the back fence with a battering ram, and the officers then walked approximately 30 feet to the back door. At least three of the officers yelled "Chicago police, search warrant" as they stood outside the door. Officer Gochee banged on the door three times with a battering ram when a gunshot rang out and the glass security door exploded outwards. Officer Gochee, as well as Lieutenant Glen Evans and Officer Michael St. Clair were injured.

¶ 8 The remaining officers retreated and surrounded the perimeter. The officers eventually made phone contact with one of the occupants of the house and instructed those inside to exit. When the occupants complied, the officers took them into custody and commenced a search of the house, during which they recovered weapons, including an "SKS assault rifle," as well as heroin and marijuana.

¶ 9 Inside the house were Jones, Thomas, Paris Banks (Jones's cousin), Leslie Kitchen (Jones's girlfriend at the time), and Jones's grandparents, who owned the house. Both Kitchen and Banks testified to the events of that night, although their trial testimony differed from their statements to police taken immediately following the shooting and their testimony before the grand jury.

¶ 10 In pretrial statements, Kitchen and Banks stated that on the night of August 31, 2010, they were in the back room of the residence with Jones and Thomas watching TV and smoking marijuana. At some point during the evening, Banks brought a gun into the room; according to Banks, he did this at Jones's direction. Around midnight, there was a "boom" at the back door, and it sounded to Kitchen like someone was breaking into the back gate. Kitchen went to the kitchen and looked out of the window, at which point she heard banging at the back door and ran with Jones to the bedroom where Jones's grandparents were sleeping.

¶ 11 Banks told the assistant State's Attorney and the grand jury that as Jones was running to his grandparents' room, he ordered Thomas to "find out who the f* * * that is." Thomas grabbed the gun, looked out the kitchen window and informed Jones that it was the police. In response, Jones said "buck [or bust or f* * *] that bitch," meaning shoot at them. Kitchen also told the grand jury that she heard Jones give that order. Thomas pulled the trigger, but the gun would not fire. He tried a second time, pointing the gun at the back door, and the gun went off. Thomas and Banks then joined Jones and Kitchen in Jones's grandparents' room. Initially, Jones asked Kitchen to take the gun to the basement, but when Kitchen refused, Jones hid the gun in his grandparents' closet, over his grandmother's protests. Shortly thereafter, the police called and the group exited the house at the officers' direction.

¶ 12 At trial, Kitchen admitted to being present at the house on the night of August 31, 2010, and further testified that before she ran to Jones's grandparent's room, she saw Thomas standing with a gun in his hand aimed at the back door. Thomas pulled the trigger, but the gun did not fire. It was not until Kitchen had entered Jones's grandparents' room, where Jones and his grandparents were "panicking," that she heard a gunshot. Kitchen denied that she heard Jones tell Thomas to shoot. She claimed that her earlier testimony to the contrary was prompted by the police.

¶ 13 At trial, Banks, too, denied that a conversation between Jones and Thomas took place before he heard a gunshot. He did, however, admit that Jones asked him to retrieve a gun from under a bed earlier in the evening. Defense counsel attempted to ask Banks about the earlier shooting in Jones's house, but the court sustained the State's objection to this question, saying, "That was discussed earlier. Move on to something else, please."

¶ 14 Following the conclusion of Banks' testimony, the trial court threatened defense counsel with jail if he sought to elicit testimony that Jones had previously been shot in his house. The court stated that the prior shooting was "totally irrelevant" because Jones was "not claiming he's shot [sic] in self-defense. He's claiming he's not accountable for the other conduct of the people in the house that night."

¶ 15 Following the conclusion of testimony, the parties presented closing arguments, during which the State argued, without objection, that Illinois law does not permit a person to "shoot first and ask questions later." During Jones's closing argument, the court sustained the State's objections to Jones's counsel's statements that (1) the second amendment permits the possession of firearms in one's house, (2) the police did not videotape Banks' questioning, and (3) Banks may have been the shooter.

¶ 16 The jury found Jones guilty of three counts of attempted murder and three counts of aggravated battery with a firearm but found him not guilty of attempted murder of a peace officer, aggravated battery with a firearm of a peace officer, and possession of a controlled substance with intent to deliver.

¶ 17 At sentencing, Jones's counsel argued in mitigation that that Jones had previously been shot...