People v. Simmons

Decision Date10 July 2020
Docket NumberNo. 1-17-0650,1-17-0650
Citation447 Ill.Dec. 408,174 N.E.3d 99,2020 IL App (1st) 170650
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donell SIMMONS, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Thomas A. Lilien, and Sherry R. Silvern, of State Appellate Defender's Office, of Elgin, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The defendant, Donell Simmons, appeals from an order of the circuit court of Cook County, granting the State's motion to dismiss his postconviction petition pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2012)) at the second stage of proceedings. On appeal, the defendant argues that he made a substantial showing that he is actually innocent of the crimes for which he was convicted, his trial counsel was ineffective for failing to investigate and present an eyewitness, and his appellate counsel was ineffective for failing to argue that the circuit court erred in denying his motion to suppress. For the following reasons, we reverse and remand for a third-stage evidentiary hearing on the defendant's claim that his trial counsel was ineffective for failing to investigate and present an eyewitness.

¶ 2 The defendant was charged, along with codefendants Labar "Bro-Man" Spann, Martise "Shorty" Nunnery, and Marcus "Black" Ware, (also known as John Coleman) with, inter alia , multiple counts of first degree murder and aggravated battery with a firearm. The charges against the defendant stemmed from the June 4, 2003, shooting that resulted in the death of Randy "Kato" Rangel Jr. and the injury of Harrison Hall. Following a severed bench trial on June 2, 2008, the defendant was convicted of first degree murder and aggravated battery with a firearm and sentenced to consecutive terms of 47 years' imprisonment for the murder and 6 years' imprisonment for the aggravated battery.

¶ 3 The following facts relevant to the disposition of this appeal were derived from the record.

¶ 4 Prior to his trial, the defendant filed a motion to quash his arrest and suppress evidence, alleging that police did not have probable cause to arrest him without a warrant. At the hearing, the defendant presented the testimony of Detective Keith Allen. According to Detective Allen, on November 22, 2003, he went to 4223 West Wilcox Street with 10 members of a gang tactical team. The officers went to the building because they had an investigative alert stating that the defendant was suspected of killing Rangel. Detective Allen was positioned at the rear entrance to the building, and after other officers entered, they opened the rear door for him. Inside, he saw the defendant in handcuffs. Detective Allen acknowledged that he did not have a search or arrest warrant for the defendant.

¶ 5 The State presented Sergeant Charles Daly, who testified that, at the time, he was a detective assigned to investigate the June 4, 2003, shooting. As part of his investigation, Sergeant Daly learned that an individual named "Rio" wore a body wire to record conversations with Nunnery. Sergeant Daly stated that Rio was "fighting a federal drug case and decided to cooperate with investigative officers from organized crime." Sergeant Daly reviewed a transcript of the recorded conversation between Rio and Nunnery, testifying that the two largely used slang terms and expressions. According to Sergeant Daly, he subsequently spoke to Rio, who told him that it was his belief that the conversation referred to Nunnery's involvement in Rangel's shooting. Rio also told him that he believed that Nunnery was telling him that "Squeaky" shot Rangel and that "Bro-Man" was also involved.

¶ 6 On November 13, 2003, Sergeant Daly met with Spann following his arrest on unrelated charges. According to Sergeant Daly, Spann told him the following: he was with the defendant and Nunnery on the day of the shooting; Nunnery received a phone call and they drove to Sacramento Boulevard and Roosevelt Road, where Nunnery handed the defendant a .45-caliber handgun; the defendant exited the vehicle, and shortly thereafter, he heard gunshots and left the area; he subsequently spoke with the defendant, who told him that he killed Rangel. Spann also told Sergeant Daly that Squeaky was the defendant's nickname.

¶ 7 Nunnery was arrested the following day and provided a videotaped statement. Sergeant Daly testified that he viewed the recording and he described the contents to the court. Nunnery stated that he received a phone call from Ware informing him that Rangel was at a barber shop near the intersection of Sacramento Boulevard and Roosevelt Road. He drove to that location with Spann and the defendant. He handed the defendant a handgun, who then exited the car and entered the barber shop. A short time later, he heard gunshots. He subsequently spoke with the defendant, who told him that he shot and killed Rangel. The parties stipulated that Nunnery initially denied any involvement in the shooting.

¶ 8 Ware, who goes by the nickname "Black," was arrested on November 14, 2003, and gave a videotaped statement. Sergeant Daly testified as to the contents of that statement. Ware stated that Nunnery asked him to call if he saw Rangel at the barber shop on Sacramento Boulevard and Roosevelt Road. He believed that Nunnery intended to rob Rangel and that he would be paid $1500 for making the phone call. On June 4, 2003, he saw Rangel at the barber shop and called Nunnery. Subsequently, he learned from Nunnery that "they" had successfully killed Rangel.

¶ 9 Sergeant Daly also obtained information from Darren McCline, who was arrested and made a statement to Detective Patrick O'Donovan and an assistant state's attorney (ASA), which was reduced to writing on November 19, 2003. According to McCline's statement, the defendant told him that he had shot and killed Rangel and that he was enticed to do so by Nunnery and Spann.

¶ 10 Defense counsel argued that the State did not establish that it had probable cause to arrest the defendant because Rio's recorded conversation with Nunnery did not explicitly reference either a shooting or Rangel and the information linking the defendant to the shooting was unreliable as it all came from individuals who were under arrest. The circuit court denied the defendant's motion, finding "that there was more than sufficient, almost overwhelming probable cause as to each defendant * * * to make their arrest and any evidence derived there from should not be suppressed."

¶ 11 At the defendant's severed bench trial, Hall testified that, on June 4, 2003, he was in a trailer on the corner of Sacramento Boulevard and Roosevelt Road where he worked as a barber. He was cutting Rangel's hair when a man, whom he identified in court as the defendant, entered the trailer and fired several shots at Rangel. Hall was standing about two feet away from the defendant when he opened fire and could see his face under bright fluorescent lights. Hall ran past the defendant, exiting the trailer. He went to the hospital where he learned that he was shot in the foot.

¶ 12 Hall acknowledged that he initially told the police that he did not get a good look at the shooter's face. He testified that he lied about seeing the shooter because he did not want to be involved in the situation. On November 22, 2003, he was asked to view a lineup at the police station. After viewing the lineup, he identified the defendant as the shooter. On cross-examination, Hall testified that the police told him prior to viewing the lineup that the shooter might be in the lineup. Defense counsel then asked Hall if, when he was viewing the lineup, he "expected that maybe somebody in there was the person who shot in the trailer at you?" He responded, "Right."

¶ 13 Lavelle Green testified that, on the day in question, he was 15 years old and he and his friend, Maurice Williams, were sitting outside the barber shop trailer waiting to get a haircut when a man went into the trailer. He heard gunshots and ran. Green testified at trial that he could not identify the individual he saw enter the trailer that day. He acknowledged that, on November 22, 2003, he viewed a lineup and identified the defendant as the man he saw enter the trailer that day. He stated that he identified the defendant after the police told him to "pick the person who looked like [the shooter]." The State impeached Green with a written statement that he provided to the police. He acknowledged that he signed the statement, but he stated that he could not remember the particulars of the statement. He stated that he signed the statement so "they could let [him] go." In the written statement, Green identified the defendant as the shooter.

¶ 14 The parties also stipulated that, if called to testify, Chicago police sergeant Jose Lopez would state under oath that he was present when Green identified the defendant as the individual who shot Rangel.

¶ 15 Ware testified that his given name is John Coleman and that "Ware" is his "alias for the police." He acknowledged that he has prior convictions for unlawful use of a weapon, obstruction of justice, and traffic offenses. He testified that he was a named codefendant in this case and, pursuant to an agreement with the State, pled guilty to conspiracy to commit first degree murder in exchange for an agreed sentence of 12 years and the truth of his testimony at trial. He explained that, pursuant to the agreement, he must testify truthfully or else be charged with first degree murder and perjury. He stated that, as of the date of the trial, he was housed in the witness protection quarters of the county jail.

¶ 16 Ware testified that, in April 2003, Nunnery called and asked if he could call him if he saw Rangel. He...

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2 cases
  • People v. Little
    • United States
    • United States Appellate Court of Illinois
    • May 5, 2021
    ...938 N.E.2d 623 (2010) ). A defendant bears the initial burden of proof in a motion to quash arrest and suppress evidence. People v. Simmons , 2020 IL App (1st) 170650, ¶ 49, 447 Ill.Dec. 408, 174 N.E.3d 99. Once he shows a prima facie case of an unconstitutional arrest, the burden shifts to......
  • People v. Harris
    • United States
    • United States Appellate Court of Illinois
    • February 23, 2022
    ...alert that was relayed to the arresting officers provided reasonable grounds to make a warrantless arrest. See People v. Simmons , 2020 IL App (1st) 170650, ¶ 61, 447 Ill.Dec. 408, 174 N.E.3d 99 (arrest based on investigative alert was upheld where the State presented evidence that officer ......

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