People v. Othman

Decision Date12 March 2019
Docket NumberNo. 1-15-0823,1-15-0823
Citation436 Ill.Dec. 537,2019 IL App (1st) 150823,143 N.E.3d 32
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Abed OTHMAN, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

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

¶ 1 In 2008 Motassem Said (Said) was murdered. In a jury trial his nephew, Abed Othman, (Othman) was found guilty of the murder. Othman was 17 years old at the time of the crime. The trial court sentenced Othman to 30 years in prison for first degree murder plus a 25-year weapons enhancement. Othman will be 76 when he is released.

¶ 2 On appeal, Othman contends (1) that the evidence did not prove him guilty beyond a reasonable doubt; (2) that (a) the trial court committed error by allowing hearsay testimony that Othman possessed a gun two years after the murder and (b) the trial court erred when it instructed the jury that Othman's gun possession two years after the crime could be considered only for the purpose of intent; (3) that Othman was denied a fair trial when, in direct violation of the trial court's express ruling, the prosecutor, during closing argument, stated that the reason Othman did not admit to the shooting during a conversation with a visitor who was wearing a wire, was because Othman knew the visiting area of the prison was bugged; (4) that the trial court erred in the manner in which it conducted an inquiry of the prospective jurors under People v. Zehr , 103 Ill. 2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984) ; (5) that trial counsel provided ineffective assistance of counsel by failing to object to (a) the hearsay testimony of Said's girlfriend, Janice Lloyd (Lloyd), that "friends in the neighborhood" told her that Othman shot the victim and (b) the prosecutor's comments in closing that Mansour could not record a confession because Othman was worried that the visitor area of the prison was bugged; (6) that Othman's 55-year sentence is a de facto life sentence and is unconstitutional when imposed for a crime committed when Othman was 17; and (7) that Othman is entitled to a new sentencing hearing under section 5-4.5-105 of the criminal code because the firearm enhancement is procedural and therefore retroactively applied to cases on direct appeal. We reverse and remand for a new trial.

¶ 3 I. BACKGROUND

¶ 4 On April 29, 2008, police officers found Said dead from three gunshot wounds to his head, in a parking lot near 63rd Street and Spaulding Avenue in Chicago. The victim lived in the basement of the building at 3257 W. 63rd Street, Chicago. Othman's uncle, Hamdi, owned and operated a bakery in the same area. Sergeant John Foster (Foster) of the Chicago Police Department interviewed people in the area late that afternoon. Margaret Biggs (Biggs) told Foster she heard some loud pops, but she had no other useful information. After more than a month of searching, Foster found and interviewed Janice Lloyd, Said's girlfriend.

¶ 5 Four years later, in August 2012, police charged Said's nephew, Othman, with murdering Said. Othman filed a motion in limine to bar the prosecution from presenting evidence that in 2010, two years after Said's murder, Othman asked a woman to carry his gun in her purse. The prosecutor explained that he intended to present the testimony to bolster the credibility of a jailhouse informant, who claimed that Othman told him he killed a man during 2008, in the vicinity of 63rd Street and Spaulding Avenue. The informant told police Othman also said that in 2010 he asked his girlfriend to carry a gun for him. The court denied the motion in limine and said, "I'll give a limine instruction to the jurors that they are not to consider that for incorrect purposes."

¶ 6 The trial court, in an attempt to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), which codified Zehr , said to the venire:

"[T]he defendant is presumed innocent of the charges against him. The State has the burden of proving him guilty beyond a reasonable doubt. Is there anybody who disagrees or could not follow that proposition of law?
No response.
The State has the burden of proving him guilty. He does not have any burden upon himself to prove himself innocent. Do you understand?
Everyone indicates yes.
Is there anyone who does not believe in that principle of law?
No response.
* * * Is there anybody in the jury box who would hold it against him if he exercised his right not to testify?
No response."

¶ 7 Defense counsel did not object.

¶ 8 At trial, Lloyd testified that on April 28, 2008, the day before Said died, Othman came to the apartment Lloyd shared with Said. Othman showed Lloyd that he had a gun. Othman and Said went to buy alcohol, marijuana, and crack cocaine. The three of them shared the alcohol and marijuana. Othman bought crack and gave it to Lloyd and Said for Said "to sell to make some money." Both Lloyd and Said were addicted to crack. Later that day, Lloyd and Said used the crack. Lloyd gave $ 80 to Said to pay for the drugs. Lloyd testified that Othman "got mad that [Lloyd] gave [Said] the money," and Othman wanted more money from Said. Lloyd left while Othman and Said argued. She returned and spent the night with Said. She testified that Said did not leave the apartment between the time they went to sleep and the following morning, when Othman woke them up.

¶ 9 Lloyd testified that when she woke up on April 29, 2008, around 10 a.m., she tried to wake Said, but he did not get up. They stayed in bed. Othman came into the apartment and woke them around 11 a.m., pointing the gun at them and demanding money. Lloyd said, "Don't point that gun at me." Othman said to her, "Well, you better get out of here." Said went upstairs to another apartment and got "[a]bout eight dollars" from a neighbor. Said gave the cash to Othman, who said, "What's this sh**? You owe me 40 dollars. What's this sh**? I want my money." Lloyd then left. She made a phone call "to get some money." She admitted that "every morning [she] wake[s] up, [she would] try to get some money to get crack." She did not contact police. She testified that when Othman pointed the gun at her, she "wasn't afraid. [She] had no reason to be afraid."

¶ 10 The prosecutor elicited the following testimony:

"Q. * * * Did you find out later that day that something happened to [Said]?
A. Yes.
Q. What did you find out?
A. That [Othman] had shot him.
Q. How did you find out?
A. Friends told me in the neighborhood."

¶ 11 Defense counsel did not object.

¶ 12 Mohammed Alkhatabeh (Alkhatabeh), testified that he lived in the same building as Said, that Said lived in the basement, and that around 7 a.m. on April 29, 2008, he saw Said outside, near 63rd Street and Spaulding Avenue. Around noon Alkhatabeh was walking up the stairs to his apartment and passed Othman, who was walking down the rear stairs in the building carrying a black garbage bag. Although Othman did not live in the area, Alkhatabeh saw him frequently, often with Said. Alkhatabeh testified that usually, Othman greeted Alkhatabeh, but on April 29, Alkhatabeh "said ‘hello’ to him and he just kept going." According to Alkhatabeh, Othman "didn't appear natural, not the same." A few minutes later, Alkhatabeh found out from his neighbor, Hamdi, that Said had died.

¶ 13 A neighbor, Margaret Biggs, testified that around 10:30 a.m. on April 29, 2008, she heard a sound like firecrackers going "Pop, pop, pop."

¶ 14 Foster testified that when he interviewed Biggs in 2008, she told him she heard four loud pops, not three, at approximately noon.

¶ 15 Foster testified that he found only men's clothing, no women's clothing, in the apartment Lloyd said she shared with Said. He testified that he saw shell casings outside the apartment but did not find any expended shell casings inside the apartment. When Foster finally found and interviewed Lloyd in June 2008, Lloyd did not tell him that Othman had a gun. She never said that Othman bought crack for Said to sell. Although Lloyd told Foster that she had smoked marijuana with Said and Othman on April 28, she did not mention the use of crack.

¶ 16 Forensic Investigator William Moore (Moore) testified that he went to an alley at 3245 W. 63rd Street, Chicago, and found two expended .25-caliber cartridge casing, but did not find a firearm at the scene.

¶ 17 Forensic specialist Fred Tomasek (Tomasek) testified that he examined the two .25-caliber casings and determined that their class characteristics were similar and that they had been fired from the same gun.

¶ 18 No weapon was submitted in connection with this case. No physical evidence linking Othman to the weapon used in the shooting was offered.

¶ 19 Beatriz Herrera (Herrera) testified that Othman was her boyfriend in 2010, and she lived with him for four weeks. At that time, two years after the murder, Othman owned a gun. Othman told Herrera to put the gun in her purse. She testified that their friend, Matthew Fernandez (Fernandez), drove Othman and Herrera to a pawnshop, but Othman decided not to pawn the gun. Othman went to jail for burglary later in 2010.

¶ 20 Fernandez testified that Othman came to Fernandez's home on April 29, 2008, and asked to stay overnight. Othman told Fernandez that he had gotten into a struggle with his uncle, and when his uncle tried to grab Othman's gun, the gun fired, killing his uncle. Fernandez did not let Othman spend the night. Fernandez admitted that in 2010 he had a brief sexual relationship with Herrera. Fernandez told Herrera she "shouldn't be with" Othman. He testified that he never drove Herrera and Othman to a pawnshop. Fernandez did not tell police about either conversation until police questioned him in 2011.

¶ 21 Eliya Mansour (Mansour) testified that he met Othman in Cook County jail in 2010. Mansour testified he had two forgery convictions. In 2010 prosecutors jailed him on a charge of felony theft. Mansour befriended Othman while they were both at ...

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