People v. Nixon

• Decision Date: 26 April 2016
• Docket Number: No. 2–13–0514.,2–13–0514.
• Citation: 403 Ill.Dec. 247,53 N.E.3d 301
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Eric L. NIXON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

53 N.E.3d 301

403 Ill.Dec. 247

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Eric L. NIXON, Defendant–Appellant.

No. 2–13–0514.

Appellate Court of Illinois, Second District.

April 26, 2016.

Michael J. Pelletier, Thomas A. Lilien, and R. Christopher White, all of State Appellate Defender's Office, Elgin, for appellant.

Michael G. Nerheim, State's Attorney, Waukegan (Lawrence M. Bauer and Victoria E. Jozef, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice HUDSON

delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the circuit court of Lake County, defendant, Eric L. Nixon, was convicted of aggravated discharge of a firearm (720 ILCS 5/24–1.2(a)(1)

(West 2012)) and being an armed habitual criminal (720 ILCS 5/24–1.7(a) (West 2012)). Pursuant to one-act, one-crime principles, the trial court entered a conviction on only the latter offense and sentenced defendant to a prison term of 24 years. Defendant appeals his conviction, raising two issues. First, defendant argues that he was denied a fair trial because the trial court erroneously admitted testimonial and photographic evidence regarding his involvement in a shooting that occurred six years prior to the incident at bar. Second, defendant contends that his sixth amendment right to confront the witnesses against him (U.S. Const., amend. VI ) was violated because the trial court admitted testimonial hearsay statements on which he had no opportunity to cross-examine the declarant. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On May 2, 2012, defendant was charged by indictment with one count of being an armed habitual criminal (720 ILCS 5/24–1.7(a)

(West 2012)), one count of aggravated discharge of a firearm (720 ILCS 5/24–1.2(a)(1) (West 2012)), one count of unlawful possession of a weapon by a felon (720 ILCS 5/24–1.1(a) (West 2012)), and one count of unlawful possession of a firearm by a street gang member (720 ILCS 5/24–1.8(a)(1) (West 2012)). The charges stemmed from an April 11, 2012, incident in which defendant was alleged to have gone to the residence at which Candice Bradley, the mother of two of defendant's children, was staying and fired a gun in the direction of the building, with the bullets striking the tires of Bradley's unoccupied vehicle. At the arraignment, defendant was ordered to have no contact, directly or indirectly, with various individuals, including Bradley, Kayla Chattard (Kayla), Regina Chattard (Regina), and defendant's codefendant, Dion Buckley.

¶ 4 On October 29, 2012, after learning that Bradley would be evicted from her residence and that her mother would be taking her to Wisconsin, the trial court issued a body attachment for Bradley at the State's request. Because Bradley was not picked up on the body attachment, the State elected to initially try defendant on driving offenses unrelated to the charges at issue. As of March 2013, the body attachment remained outstanding and unserved.

¶ 5 Prior to trial on the charges at issue, the State filed a motion in limine seeking to admit evidence of other bad acts allegedly committed by defendant. Specifically, the State sought to admit evidence regarding a November 2006 incident in which defendant shot Bradley during an argument, causing injury to her shoulder and finger. As a result of this incident, defendant was charged with aggravated battery with a firearm and unlawful possession of a weapon by a felon. Defendant entered a negotiated plea to a charge of attempted aggravated discharge of a firearm, in exchange for a prison sentence of eight years. The State indicated that evidence regarding these prior offenses was relevant to explain “the history between the defendant and [Bradley] as well as put the crime in context * * * [and] to prove intent, motive and absence of mistake.” The State also argued that the evidence was admissible pursuant to section 115–7.4 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115–7.4 (West 2012)

).

¶ 6 In ruling on the State's motion, the court noted that section 115–7.4 of the Code allows the admission of “propensity evidence” in domestic-violence cases. See People v. Dabbs, 239 Ill.2d 277, 346 Ill.Dec. 484, 940 N.E.2d 1088 (2010)

. In sharing children and remaining in contact, the court found, defendant and Bradley had a “family or household relationship.” The court then examined the conduct with which defendant was charged in 2006 and 2012 and determined that his conduct constituted acts of domestic violence for purposes of section 115–7.4. Moreover, the court found that the evidence of the 2006 shooting provided “more than just motive.” It explained “an otherwise inexplicable act,” i.e., “why would the defendant go to [Bradley's] address and shoot at it.” Accordingly, the court found that the probative value of the other-crimes evidence was not substantially outweighed by the danger of prejudice to defendant. To preclude the other-crimes evidence from becoming the focus of a trial-within-a-trial, the court admitted the evidence only “to the extent necessary to place [the instant] offense in context” and to explain motive, relationship, intent, and “an otherwise inexplicable act.” Further, while the court permitted the State to introduce the other-crimes evidence, it determined that the State could not present evidence that defendant was convicted of any offense related to that shooting.

¶ 7 The State also filed a pretrial motion in limine seeking the admission, pursuant to the forfeiture-by-wrongdoing doctrine (see Ill. R. Evid. 804(b)(5)

(eff. Jan. 1, 2011)) of Bradley's hearsay statements regarding the instant offenses. Specifically, the State alleged that, while incarcerated in the Lake County jail, defendant made telephone calls to his girlfriend, Megan McGowan, and to his brother (and Regina's stepson), Albert “A.J.” Richard (A.J.), in which he discussed potential witnesses, including Bradley, Kayla, and Regina. According to the State, throughout these conversations, defendant directed A.J. and others to talk to these witnesses and ensure that they would not appear for trial. Following a hearing on the motion, during which the State presented audio recordings of defendant's conversations from jail and the testimony of Paul Kehrli, a detective with the Zion police department, the court granted the State's motion. The court determined that the State satisfied its duty to make a good-faith effort to locate and produce Bradley for trial. The court further found that the State established by a preponderance of the evidence that defendant's conduct constituted forfeiture of his right to confrontation regarding Bradley.

¶ 8 At defendant's trial, Derek Zaloudek, an officer with the Zion police department, testified that during the early morning hours of April 11, 2012, he was dispatched to 2302 Horeb Avenue in response to a disorderly conduct call. Upon his arrival, Zaloudek spoke with Regina, the homeowner. In response to his conversation with Regina, Zaloudek and other officers searched the area for 10 to 15 minutes in an unsuccessful attempt to locate defendant. Approximately 60 to 90 minutes later, at about 3 a.m., Zaloudek returned to the same address in response to another complaint. When Zaloudek arrived, Regina was standing on the front porch of the house and there was a green Chevrolet Malibu, with its engine running, in the driveway. Zaloudek approached the vehicle and observed two occupants, one in the front seat and the other in the backseat. Zaloudek identified the individual in the front seat as Buckley and the individual in the backseat as defendant. According to Zaloudek, Buckley was “calm and cooperative,” while defendant appeared intoxicated and upset with Regina. Defendant yelled back toward the house as he was escorted to a patrol vehicle for arrest on the disorderly conduct complaint. At the police station, Zaloudek spoke to defendant, explaining the charges against him and informing him of when he would be required to appear in court. Although defendant was upset about the charges, he told Zaloudek that “it was good that it happened because it kept him from doing something stupid.” Defendant was released from custody at about 7 a.m.

¶ 9 Regina testified that she had known defendant for more than 10 years. Regina resided at 2302 Horeb Avenue in April 2012. During the early morning hours of April 11, 2012, Regina was home watching television with her husband and three children. Bradley was also present. At some point, Bradley left the residence. When Bradley returned between 1 and 2 a.m., she appeared agitated and upset. Bradley then went to bed. A short time later, defendant entered the home, asking to speak with Bradley. According to Regina, defendant also appeared agitated. Regina's husband told defendant that he would call the police if defendant did not leave. Defendant refused to leave, so Regina called the police. At that point, defendant left. A short time later, defendant returned to Regina's house and again asked to speak with Bradley. Regina's husband approached defendant and asked him to leave. Regina then called the police, who arrested defendant.

¶ 10 At 11 a.m. that morning, Regina was at the kitchen sink, washing dishes. Through the kitchen window, she observed defendant and Buckley in a car traveling through the alley behind her house. According to Regina, Buckley was driving the car and defendant was in the backseat. The car then stopped in the alley, and defendant reached over from the backseat behind the front passenger seat and proceeded to shoot four bullets through an open car window. The bullets struck Bradley's vehicle, a white Ford Taurus sedan, which was located behind a garage at the back of Regina's house. Regina called the police, and the recording of her 911 call was played for the jury.

¶ 11 On cross-examination, Regina denied telling A.J. that she was on the kitchen floor when the shooting occurred. Regina admitted that...