People v. Kent

• Decision Date: 30 December 2020
• Docket Number: No. 2-18-0887,2-18-0887
• Citation: 448 Ill.Dec. 528,177 N.E.3d 34,2020 IL App (2d) 180887
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lorenzo KENT Jr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (2d) 180887

177 N.E.3d 34

448 Ill.Dec. 528

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

v.Lorenzo KENT Jr., Defendant-Appellant.

No. 2-18-0887

Appellate Court of Illinois, Second District.

Opinion filed December 30, 2020

James E. Chadd, Thomas A. Lilien, and Christopher McCoy, of State Appellate Defender's Office, of Elgin, for appellant.

Marilyn Hite Ross, State's Attorney, of Rockford (Patrick Delfino, Edward R. Psenicka, and David S. Friedland, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BRENNAN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Lorenzo Kent Jr., appeals his conviction of first-degree murder. He challenges the sufficiency of the evidence, the admission of a witness's prior testimony and identification evidence, and the admission of two .22-caliber cartridges recovered during the search of the apartment in which defendant was arrested two days after the murder. Defendant also raises ineffective-assistance-of-counsel claims. For the following reasons, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 On the evening of May 6, 2013, Donmarquis Jackson was shot and killed in the driveway of 1428 Nelson Boulevard in Rockford. Defendant was convicted of the first-degree murder of Donmarquis (see 720 ILCS 5/9-1(a)(1) (West 2012)) and received an extended-term sentence of 55 years' imprisonment for personally discharging the weapon (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)). On direct appeal, we reversed the conviction and remanded the cause for a new trial, based upon the improper admission of Facebook evidence. People v. Kent , 2017 IL App (2d) 140917, 415 Ill.Dec. 56, 81 N.E.3d 578.

¶ 4 A. Postremand Pretrial Proceedings

¶ 5 The parties returned to the trial court. On September 6, 2017, a jury trial date was set for November 13, 2017. The parties appeared for status hearings on September 25, 2017, and October 2, 2017. At the final pretrial conference, on November 1, 2017, the parties informed the trial court that they would be filing several motions in limine . The State further advised that "a couple of [the motions in limine ] will have to do with unavailable witnesses and prior admission of transcripts from prior testimony" and that "[w]e're still, obviously, searching for witnesses and we'll keep searching for them." Relevant to this appeal are the parties' motions in limine with respect to witness Wesley Johnson III and defendant's motion in limine from the first trial to exclude two .22-caliber cartridges recovered during the search of the apartment in which defendant was arrested two days after the murder.

¶ 6 1. State's Motion in Limine to Admit Wesley's Prior Testimony

¶ 7 As discussed in further detail below, Wesley was 13 years old on the date of the murder, lived a couple of blocks from 1428 Nelson Boulevard, and testified at the first trial that he witnessed the shooting and saw the shooter at the park earlier that evening. The State filed a motion in limine seeking a determination that Wesley was an unavailable witness pursuant to Illinois Rule of Evidence 804(a)(5) (eff. Jan. 1, 2011) and the admission of his testimony from the first trial as an exception to the hearsay rule pursuant to Illinois Rule of Evidence 804(b)(1) (eff. Jan. 1, 2011) (State's motion in limine number 25). In its motion, the State argued: "The People have been unable to locate Wesley Johnson III as of November 6, 2017, despite numerous attempts to do so. That investigators have been able to contact the family of Wesley Johnson III who is uncooperative and refuse[s] to reveal his location."

¶ 8 At the November 6, 2017, hearing on the parties' motions in limine , the State argued in support of State's motion in limine number 25:

"Again, I feel just maybe a little bit premature because the State is trying to get [Wesley] served.

What I can proffer is that the investigators have made contact with the family of [Wesley] more than once [and] that his father Wesley Johnson, II has been very hostile. They have avoided any, I guess, attempts of service for [Wesley]. They have refused to inform our investigators of where he is; however, we have information or reason to believe that [Wesley] does tend to be with the family. We just aren't able to get the family to cooperate. There's been attempts at service where we know people are in the house but they won't answer the door. It has not been just one time[,] it's been more than once. We are still trying.

I have not done things that I had typically to show unavailability like calling the coroner's office and hospitals because it's clear, at least to my investigators and to the State, that this is simply a situation of somebody not wanting to be physically able to be served with a subpoena.

[Wesley] was at the prior trial. He did testify. He was cross[-]examined extensively. I believe that by the time the case goes to trial, if the State still hasn't been able to serve [Wesley], that we will definitely have been able to show that we have been duly diligent at trying to get him served and that his prior testimony, through transcripts, should be admitted. And that would be under 804(a)(5)."

¶ 9 Defense counsel argued in opposition that "[i]t doesn't appear as though it is unknown where [Wesley] is." Rather, "[i]t appears as though they have reason to believe about his whereabouts but just have not been able to physically serve him with the subpoena." Moreover, defense counsel noted, Wesley "was really the only eyewitness to the actual shooting." The State nevertheless argued that Rule 804(a)(5) does not require lack of knowledge as to the witness's location.

¶ 10 The trial court initially stated: "You've tried to get him through his father, he's been uncooperative. I would say at this time you have used reasonable efforts to get him and will continue to do so." The trial court noted that Wesley was the only eyewitness at the first trial but that Rule 804(a)(5) "would indicate that [his testimony] would come in" in light of the "reasonable efforts to try and secure his presence." The State responded: "I don't know if your Honor will just go with the proffer of the State or if you wanted testimony or an affidavit from our investigators showing what they tried to do. But we'll continue trying to secure him for trial." Accordingly, the trial court concluded: "[I]t's passed. But continued efforts will be made to secure his in-person presence." The State responded: "Correct." After further argument, the trial court reiterated that "[a]t this point I'm passing ruling" on the motion in limine but that the prior testimony "would be admissible under these limited circumstances." The trial court's November 6, 2017, written order stated that the State's motion in limine number 25 was heard and that the ruling was reserved.

¶ 11 At a status hearing the next day, on November 7, 2017, the trial court noted that it had reserved ruling on State's motion in limine number 25. However, in response to defense counsel's statement that she thought that the motion had been granted, the trial court agreed, stating, "I did, you're right ***."

¶ 12 The ruling on the motion was raised again at a status hearing the next day, on November 8, 2017, after the trial court granted a defense motion in limine that also involved the unavailability of a witness pursuant to Rule 805(a)(5). Namely, defendant sought to admit the prior testimony of Shannon Watters, who lived next door to 1428 Nelson Boulevard and testified at the first trial regarding events that she witnessed after the shooting. Defense counsel stated that Shannon had moved and counsel reported on the investigator's unsuccessful efforts to locate her. The trial court found that defendant established due diligence, that Shannon was an unavailable witness, and that her prior testimony was therefore admissible as an exception to the hearsay rule under Rule 804(b)(1).

¶ 13 Following its ruling, the trial court revisited State's motion in limine number 25, noting: "Now, before I can go on, I don't believe we've addressed your 25th Motion in Limine . I passed on that and that was because you were—it's the same as [defendant's] motion concerning the unavailable witness." The following colloquy ensued:

"MS. GADOW [(ASSISTANT STATE'S ATTORNEY)]: Oh. I thought that that was ruled on, Judge.

MS. LEE [(ASSISTANT PUBLIC DEFENDER)]: It was my understanding that had been granted.

THE COURT: Okay. My, my note on it says passed. I intended to grant it based on your representation of your attempt to locate [Wesley].

* * *

THE COURT: So that's granted. Especially, especially it's not a tit for tat situation. It's standard—if the witness is unavailable—testimony by prior testimony."

¶ 14 Accordingly, the trial court granted State's motion in limine number 25.

¶ 15 2. The Parties' Motions in Limine Regarding the Photo Array Shown to Wesley

¶ 16 As discussed in further detail below, two days after the murder, on May 8, 2013, Wesley was shown a six-person photo array. Wesley picked out photo number one and photo number four from the array. Photo number four was a photo of defendant. Defendant filed a motion in limine to bar evidence regarding Wesley's "viewing of a photo lineup" and prohibit the State from eliciting any testimony that Wesley made a prior identification of defendant (defendant's motion in limine number 14). Defendant's position was that the evidence was hearsay and not admissible as a prior identification under section 115-12 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-12 (West 2012) ).

¶ 17 Defense counsel argued at the November 6, 2017, hearing on the motions in limine that, "when you can't solely pick one person out of a lineup[,] that's not an identification." The trial court inquired as to whether defendant objected to the evidence at the first trial. Defense counsel stated that she did not recall; the State advised that defendant objected but that "it was allowed in...