People v. Pope

• Citation: 2022 IL App (4th) 210239 U
• Decision Date: 27 September 2022
• Docket Number: 4-21-0239
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT A. POPE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2022 IL App (4th) 210239-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROBERT A. POPE, Defendant-Appellant.

No. 4-21-0239

Court of Appeals of Illinois, Fourth District

September 27, 2022

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County No. 17CF416 Honorable Ryan M. Cadagin, Judge Presiding.

ZENOFF, JUSTICE delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.

ORDER

ZENOFF, JUSTICE

¶ 1 Held: The appellate court affirmed the defendant's conviction of second degree murder where the defendant proved the existence of a mitigating factor but the State negated the defendant's claim of self-defense. The court affirmed the defendant's sentence of 16 years' incarceration for second degree murder but vacated two of the convictions for second degree murder. Because defendant raised no argument regarding his conviction and sentence for aggravated unlawful use of weapons, the appellate court did not disturb the 3-year sentence of incarceration on that charge. Thus, the appellate court upheld defendant's aggregate sentence of 19 years' imprisonment.

¶ 2 Defendant, Robert A. Pope, appeals his convictions of second degree murder (720 ILCS 5/9-2 (West 2016)) and aggravated unlawful use of weapons (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2016)) after a bench trial. Defendant argues that his conviction of second degree murder must be reversed because the State failed to disprove his affirmative defense of self-defense. Defendant makes no argument regarding his conviction of aggravated unlawful use of weapons. Defendant also contends that his sentence of 16 years' incarceration in the Illinois

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Department of Corrections (DOC) for second degree murder was excessive. We vacate two of the defendant's convictions of second degree murder and affirm as modified.

¶ 3 I. BACKGROUND

¶ 4 On May 3, 2017, the Sangamon County grand jury returned a six-count superseding indictment charging defendant with four counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2016)) (counts I-IV) (count IV was charged as felony murder), one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2016) (count V)), and one count of "aggravated unlawful use of a weapon/vehicle/loaded/no FCCA" (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2016) (count VI)). These charges stemmed from the April 25, 2017, shooting death of 32-year-old Adam Tayeh. Defendant pleaded self-defense. The evidence at defendant's bench trial showed the following.

¶ 5 On the evening of April 25, 2017, Chris Reid, who was headed southbound on Dirksen Parkway in Springfield, saw a northbound red Chevy pickup truck cut off a motorcycle. Reid heard the motorcycle driver yelling at the driver of the pickup truck. Reid watched as the motorcycle proceeded northbound on Dirksen and the pickup truck turned right onto Clear Lake Avenue and then left onto Hill Street.

¶ 6 At approximately 8:30 that evening, the police were dispatched to a "traffic accident" at the intersection of Hill Street and Enos Avenue. When they arrived, they found a motorcycle lying on Hill Street. Officer Rikki McMasters testified that the motorcycle driver's legs were around the motorcycle and his head was on the ground, as though he had fallen while riding the motorcycle. The motorcycle was facing north on Hill Street. Blood and a shell casing were on the pavement close to the motorcycle.

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¶ 7 The police quickly discovered that the motorcycle driver had been shot twice in the back. The motorcyclist later died. He was identified as Tayeh. Tayeh had no firearm on or near his person. Nearby neighbors had heard two gunshots in quick succession and saw a speeding red pickup truck with stickers on the windows in the vicinity of Hill and Enos following the gunshots.

¶ 8 Officer Angela Royer discovered a camera mounted on the nearby home of Chris Letz. The camera faced toward Enos and captured video depicting the intersection of Hill and Enos. In viewing the video, Royer confirmed that what happened to Tayeh was no traffic accident but a "shots fired incident." According to Royer, the video showed the headlights of a truck, and then the headlight of a motorcycle, approaching the intersection of Hill and Enos. The vehicles did not collide. The truck "rearrange[d]" a few times followed by a "muzzle flash" and the motorcycle's headlight "tilt[ing] over." The truck "repositioned again" and then "took off." The State introduced this video as People's Exhibit No. 3 ("Letz video.")

¶ 9 Detective Don Bivens also viewed the Letz video. He testified that it showed a "larger vehicle at the intersection with a bike." Then, the larger vehicle "moved towards the bike," after which the vehicles were "stationary." Then, "I saw what looked like the bike kind of maybe moved to the west to avoid being-having contact with the truck or the car." Then, according to Bivens, he saw "what I thought appeared to be two flashes."

¶ 10 At nine that night, defendant called his friend, Nicholas Maximillian Adkins-Embry. According to Embry, defendant, in a "nervous and anxious" voice, told him to come to defendant's home. On his way, Embry passed the scene of the shooting. When he arrived at defendant's home, Embry asked defendant if the reason for the summons had "anything to do with what's going on down the street?" According to Embry, defendant was

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pacing, extremely anxious and nervous, and was sweating. Embry described defendant as "very upset." Defendant told Embry that he "shot the guy." Defendant thought that he shot the guy twice, but, according to Embry, defendant did not "fully remember." Defendant told Embry that he was in an "altercation." Defendant told Embry that he had one shell casing in his car, but he "couldn't account" for the second shell casing. According to Embry, defendant seemed worried. Embry did not see a gun in defendant's possession that night, although he had previously seen defendant with a gun. Embry did not call the police because he was on probation for a cannabis offense. However, Embry called friends in Colorado, who he assumed would call the police.

¶ 11 In addition to calling Embry right after the shooting, defendant made other calls. The police later discovered that defendant deleted certain content from his phone.

¶ 12 The investigation that evening led to defendant as a suspect based on two telephone calls to Crime Stoppers. One of those calls was from Colorado. Local witnesses on the evening of the shooting had described the red pickup at the scene as having distinctive stickers on the back windshield. The police observed similar stickers on the back windshield of a red pickup truck belonging to defendant. During police surveillance of defendant's pickup, they observed defendant repositioning the truck in his driveway so that the stickers were not visible to passersby. During a search, the police recovered the gun used to kill Tayeh from a closed black plastic bag inside defendant's residence. Forensic examination of the gun showed that there were no fingerprints on the weapon. According to the forensic scientist who examined the weapon, the lack of fingerprints could happen if the gun had been wiped "intentionally or unintentionally." The parties stipulated that defendant did not have a valid Firearm Owner's Identification Card or a valid concealed carry permit on the date of the shooting.

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¶ 13 Dr. Nathaniel Patterson, a forensic pathologist, testified to the following. The cause of Tayeh's death was "gunshot wound to the back." Dr. Patterson performed an autopsy on Tayeh's body on April 26, 2017. The external examination revealed that Tayeh was five feet eleven inches tall and weighed 247 pounds. Two entrance wounds were on Tayeh's back, and there was one exit wound on his chest. Dr. Patterson labeled the gunshot wound on Tayeh's upper back left of the spine "Gunshot #1" and the gunshot wound that entered the midback right of the spine, which exited the chest, "Gunshot #2." Dr. Patterson did not know which bullet struck Tayeh first. The bullet from Gunshot #1 entered Tayeh's back in a sharply upward trajectory, with little right-to-left deviation, and lodged at the back of his throat. The bullet from Gunshot #2 also traveled in an upward right-to-left direction, although less sharply upward, tore through the aorta, and exited through the heart. There was no stippling or gunpowder present around the wounds, indicating that Tayeh was shot from a distance. Dr. Patterson, though, did not examine Tayeh's clothing for gunpowder residue. (Through the testimony of a crime scene detective, the State established that there was no singeing, soot, or burns on the clothing.)

¶ 14 Because Tayeh was shot in the back, Dr. Patterson opined that the shooter was behind Tayeh. According to Dr. Patterson, if Tayeh were standing upright when he was shot, the shooter would have held the muzzle of the gun low and "pointed upwards." Dr. Patterson further opined that, if Tayeh had been facing away from the gun's muzzle while he was bent forward at the waist, the shooter would have held the muzzle of the gun parallel to the ground and aimed at Tayeh's upper body.

¶ 15 On cross-examination, Dr. Patterson testified that he did not know if the shooter was standing or sitting or whether Tayeh was standing or sitting. Nor could the doctor "definitively" opine whether Tayeh was "leaning over" when he was shot. Because the bullet

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from Gunshot #2 veered sharply right to left, Dr. Patterson concluded that the shooter was positioned to Tayeh's right when that shot was fired. Dr. Patterson testified that, because Gunshot #1 was "sharply upward," it is possible that bullet struck Tayeh as he was falling. According to Dr. Patterson...