People v. Dismuke
2017 IL App (2d) 141203
| Ill. App. Ct. | 2017Background
- In July 2009 a vehicle was shot; investigators recovered bullet fragments later linked to a .44 Magnum revolver. Police searched Dismuke’s home in Nov. 2009 but did not find that revolver.
- A neighbor found the revolver wrapped in a towel inside a plastic garbage bag under shared back stairs on June 30, 2010; lab testing matched that gun to the July 2009 shooting.
- Derrick Smith (a cooperating, convicted felon) testified that the morning after the shooting Strickland handed a .44 revolver to Dismuke and told him to dispose of it. Smith sought leniency and received a proffer/immunity promise for his statements about the shooting.
- The State charged Dismuke as an armed habitual criminal (based on prior felony convictions). At trial the jury convicted; the trial judge had limited but allowed some testimony about the shooting and also admitted evidence about a November 2009 search (where police found cannabis and a different gun) and a fingerprint examiner’s testimony identifying a partial print on the garbage bag.
- Posttrial Dismuke argued insufficiency of the evidence, improper admission of other-crimes evidence (shooting details; items found in the Nov. 2009 search), hearsay in the fingerprint testimony, and that voir dire violated Ill. S. Ct. Rule 431(b). Appellate court reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Dismuke received/possessed the revolver (July 2009 and June 30, 2010) | Smith’s testimony plus lab match of gun to shooting, proximity of hidden gun to Dismuke’s property, and Dismuke’s statements provided sufficient proof of receipt/continuous possession | Smith was an unreliable, self-interested witness; physical evidence was inconclusive (no DNA/fingerprints on gun; bag print could be placed anytime); many others had access to area | Conviction would be supported as sufficient evidence beyond reasonable doubt; retrial would not violate double jeopardy |
| Compliance with Rule 431(b) (voir dire on Zehr principles) | Procedure (asking venire if they had “difficulty or disagreement”) was adequate to elicit acceptance | Court failed to ask each juror whether they “understand and accept” the Zehr principles as required; alternates were questioned only after selection | Court violated Rule 431(b); error was plain under the circumstances because the evidence was closely balanced, requiring reversal and new trial |
| Admission of evidence about the July 13, 2009 shooting and November 2009 search (other-crimes evidence) | Shooting evidence corroborated Smith’s account and tied the revolver to the charged possession; search testimony showed police thoroughly searched Dismuke’s home | Details of the shooting (and unrelated items found in search) were irrelevant, highly prejudicial, and improper propensity evidence | Shooting fact (that shots were fired and bullet fragments were submitted) was admissible only to the limited extent necessary to tie the recovered revolver to the shooting; detailed facts, photographs, and references to officers as victims were excluded on retrial. Evidence about the other gun and cannabis (from Nov. 2009 search) was improperly admitted and must be excluded on retrial |
| Fingerprint testimony (hearsay verification) | Examiner’s testimony identifying the partial thumb print supported constructive possession | Examiner’s statement that another analyst verified the match constituted hearsay and lacked proper foundation | Testimony that a supervisor verified the print was hearsay and not admissible on retrial; fingerprint identification must be established without admitting out-of-court verification statements |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence review)
- People v. Thompson, 238 Ill. 2d 598 (Rule 431(b) requires asking whether jurors understand and accept Zehr principles)
- People v. Wilmington, 2013 IL 112938 (failure to ask if jurors understand is error)
- People v. Piatkowski, 225 Ill. 2d 551 (plain-error doctrine framework)
- People v. Wilson, 214 Ill. 2d 127 (standards for admissibility of other‑crimes evidence)
- People v. Macon, 396 Ill. App. 3d 451 (retrial after reversal and sufficiency / double jeopardy consideration)
- People v. Cunningham, 212 Ill. 2d 274 (review limits when testing credibility under Jackson standard)