People v. Space

• Decision Date: 04 May 2018
• Docket Number: Nos. 1–15–0922,1–15–1171,s. 1–15–0922
• Citation: 2018 IL App (1st) 150922,103 N.E.3d 1019
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Antwan SPACE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 150922

103 N.E.3d 1019

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

v.Antwan SPACE, Defendant–Appellant.

Nos. 1–15–0922

1–15–1171

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed: May 4, 2018

Michael J. Pelletier, Patricia Mysza, and Jonathan Krieger, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Matthew Conners, and Tyler J. Cox, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Following a 2007 jury trial, defendant-appellant, Antwan Space, was convicted of first degree murder while attempting or committing a forcible felony other than second degree murder in violation of section 9–1(a)(3) of the Criminal Code of 1961 ( 720 ILCS 5/9–1(a)(3) (West 2002) ) (felony murder), and sentenced to 45 years' imprisonment. On appeal, defendant contends that (1) his conviction should be reversed because the State did not establish a requisite predicate forcible felony, (2) his conviction should be reversed and the case remanded because the trial court had violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during jury selection, and (3) his mittimus should be corrected to reflect four additional days of presentencing custody credit. We reverse defendant's conviction for felony murder based on the State's failure to prove both that the asserted predicate forcible felony of aggravated battery with a firearm (1) had an independent felonious purpose and (2) proximately resulted in the victim's death, and we remand the case for a new sentencing hearing on the lesser-included offense of aggravated battery with a firearm.

¶ 2 Defendant was arrested on August 12, 2002, in connection with the August 9, 2002, shootings of cousins Mitchell Barrow and Virgil Thomas. The shootings were witnessed by Tiffany Allen, who was dating Mr. Barrow, and Debra Alexander. Defendant, the ex-boyfriend of Ms. Allen, twice shot Mr. Barrow and then, as Mr. Thomas assisted Mr. Barrow, shot Mr. Thomas. Mr. Barrow died as a result of the injuries he suffered from the gunshots. Mr. Thomas survived. Defendant was charged by indictment with 12 counts of first degree murder as to Mr. Barrow, as well as two counts of attempt (first degree murder), one count of aggravated battery with a firearm, and one count of aggravated battery as to Mr. Thomas.

¶ 3 Before trial, pursuant to defendant's motions, the trial court suppressed his postarrest statements. This decision was affirmed on interlocutory appeal. People v. Space , No. 1–05–1811, 366 Ill.App.3d 1225, 340 Ill.Dec. 153, 927 N.E.2d 892 (2007) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 4 The State proceeded to trial on a single count of first degree murder, which charged that defendant "without lawful justification shot and killed Mitchell Barrow with a firearm during the commission of a forcible felony, to wit: aggravated battery with a firearm" (count 11). All other charges were nol-prossed.

¶ 5 At the start of voir dire , the trial court addressed the entire venire as follows:

"Mr. Space as with other persons charged with crimes is presumed to be innocent of the charge that brings him before you. The presumption of innocence cloak[s] him now at the beginning of the trial and will continue [to] cloak him throughout the course of the proceedings[.] It is absolutely essential as we select this jury that each of you understand and embrace these fundamental principles of law. That is all persons charged with a crime are presumed to be innocent. And that is it is the burden of the State who has brought the charges to prove the [d]efendant guilty beyond a reasonable doubt. What this means [is] the [d]efendant has no obligation to testify in his own behalf or to call any witnesses in his defense. He may simply sit here and rely upon what he and his attorney perceive to be the inability of the State to present sufficient evidence to meet their burden. Should that happen, you will have to decide the case on the basis of evidence presented by the prosecution only.

The fact that the [d]efendant does not testify or present witnesses must not be considered by you in any way in arriving at your verdict. However, should the [d]efendant elect to testify or should his attorney present witnesses in his behalf, you are to consider that evidence in the same manner and by the same standard as evidence presented by the prosecution.

The bottom line is that there is no burden upon the [d]efendant to prove his innocence. It is the State's burden to prove him guilty beyond a reasonable doubt. The prosecutors are here to prosecute the case in support of the charge. The defense attorney is here to represent him and to insure that the State is held to its burden of proof."

¶ 6 To the first panel of 14 prospective jurors as a whole, the court said:

"Should the prosecutor fail to prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of not guilty? If so raise your hand. Let the record reflect there are no raised hands.

Should the prosecutor prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of guilty? If so raise your hand. Let the record reflect that there are no raised hands."

¶ 7 Immediately afterward, the State asked the entire panel:

"I just want to make sure is there anyone here if he did not testify would hold that against the [d]efendant? If you would hold the fact he did not testify would you raise your hand.

Let the record reflect no one has raised their hand."

¶ 8 The court dismissed 7 jurors from the first panel and proceeded to question another panel of 14 prospective jurors. The court asked the entire panel the following:

"If the prosecutor fails to prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of not guilty? If so raise your hand.

Let the record reflect there are no raised hands.

Should the prosecutors prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of guilty? If so raise your hand.

Let the record reflect that there are no raised hands."

¶ 9 The State then asked the panel:

"This is for everybody. The Judge has instructed you that the [d]efendant has the right not to testify. If the [d]efendant does not testify, is there anyone here that would hold that against him? If you would, raise your hand. Let the record reflect no one has raised their hand."

¶ 10 After selecting five more jurors and two alternate jurors from this group, the trial commenced.

¶ 11 In its opening statement, the State presented an overview of its case and the evidence. The State related that defendant was "inspired by jealousy" of Mr. Barrow's relationship with Ms. Allen and his "motive on that night was to murder Mitchell Barrow." Defendant "exacted his intention to get rid of" Mr. Barrow when he took out a handgun and fired it. After twice shooting Mr. Barrow, defendant's "mission of murder was already accomplished." After that, Mr. Thomas attempted to "get [Mr. Barrow] away from [the] clutches of defendant." Defendant "didn't stop there"; rather he "continued to walk toward [Mr. Barrow and Mr. Thomas] and shoot at [Mr. Barrow] as [Mr. Thomas] was trying to do nothing more but carry him to safety." The State finished its opening statement by telling the jurors that, at the close of evidence, it would ask them to "find [defendant] guilty of the two crimes that he committed that night, the aggravated battery of Virgil Thomas and the first-degree murder of Mitchell Barrow."

¶ 12 The testimony of Mr. Thomas, Ms. Allen, and Debra Alexander provided a background and a description of the shootings, as follows.

¶ 13 Ms. Allen, at the time of the shooting, had been dating Mr. Barrow, the father of two of her children, for four years and lived with him. Ms. Allen had known defendant for years and previously dated him.

¶ 14 During the week leading up to the shootings, Mr. Thomas went with Mr. Barrow to pick up Ms. Allen near the intersection of Douglas Boulevard and Homan Avenue in Chicago. Defendant was there with Ms. Allen, and Mr. Thomas heard defendant tell her that he loved her. Ms. Allen ultimately chose not to get into Mr. Barrow's vehicle. Mr. Barrow became angry and drove away. Later in the week, Mr. Thomas saw defendant with Ms. Allen two additional times.

¶ 15 On the evening of August 9, 2002, Mr. Barrow drove Mr. Thomas, Ms. Allen, Ms. Alexander, and a woman named Kathy to Douglas Park in Chicago. Mr. Barrow parked his vehicle near an area of the park where there were three concrete tables, surrounded by four benches and four or five "real bright" lights. The group exited the vehicle and entered the park. Mr. Thomas and Ms. Alexander, who were dating, sat at one table; Ms. Allen sat at a table next to them. Kathy and Mr. Barrow first sat on a bench and later stood and talked on the nearby sidewalk.

¶ 16 The witnesses testified that they consumed some alcohol prior to the shootings. Mr. Thomas initially testified that he drank "a shot" before acknowledging that he had "some drinks." He maintained that he was not drunk and that his consumption of alcohol did not affect what he saw or heard that night. Ms. Allen testified that she had "not even a half cup" of cognac. Ms. Alexander related that she had "maybe two sips" of cognac.

¶ 17 After a while, two men and a young woman approached the group; one of the men had braids in his hair and was wearing a T-shirt and shorts. Mr. Thomas, in his testimony, identified this individual as defendant. Ms. Allen testified that defendant was one of the men who approached the group that night but that, in all the years she had known defendant, she had never seen his hair in "dreadlocks," "cornrows," or...