People v. Donlow
178 N.E.3d 1148
Ill. App. Ct.2020Background:
- Defendant Jordan Donlow was charged with aggravated battery with a firearm for shooting Pierre Hicks in the face; a jury convicted him after a January 2017 trial.
- Codefendant Freddrick (Fred) was compelled to testify under a State motion for use immunity; the court admitted Fred’s videotaped custodial statements substantively under section 115-10.1.
- Multiple eyewitnesses (Hicks, Demarco, Bardwell, others) described a blue Pontiac and gunfire; Hicks identified defendant as the shooter in a photo array and in a videotaped statement.
- During voir dire the court read Rule 431(b) to jurors; one juror (Alfred B.) answered “I understand” to the defendant-not-testifying principle but did not expressly say “I accept.”
- At instruction conference the court gave IPI Criminal No. 3.11 on prior inconsistent statements but omitted the clause requiring the jury to find the earlier statement “narrates, describes, or explains an event the witness had personal knowledge of”; the court also played Fred’s videotaped statements for the jury.
- At sentencing Donlow asserted his innocence; the court referenced his failure to accept responsibility in assessing mitigation and imposed a 20-year prison term. Donlow appealed raising three main errors (Rule 431(b) compliance, flawed instruction, sentencing consideration of asserted innocence) and an ineffective-assistance claim as to the instruction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 431(b) compliance (voir dire) | State: Court complied by asking jurors if they “understood and accepted” the four Zehr principles; no clear error | Donlow: A juror said only “I understand” (not “I accept”) for the not-testifying principle; court should have followed up | Affirmed — No clear/obvious error; "I understand" differed from an explicit lack of understanding and did not require further inquiry |
| Prior inconsistent-statement instruction (IPI No. 3.11) | State: Omission was inadvertent and harmless under facts | Donlow: Omitted language improperly shifted to jury a threshold (personal-knowledge) that is for the judge under §115-10.1 | Court held IPI No. 3.11 misstates law when used to have jury decide admissibility; the instruction should not have been given when the statements were admitted substantively; verdict affirmed |
| Ineffective assistance re: instruction | State: Even if wording was deficient, no prejudice | Donlow: Counsel should have objected to the incorrect instruction wording | Denied — Counsel not ineffective for failing to press an instruction that would have been legally improper; no prejudice shown |
| Sentencing — consideration of assertion of innocence | State: Court considered lack of remorse/rehabilitation, not punishing assertion of innocence | Donlow: Court penalized him for maintaining innocence, using it as aggravating factor | Affirmed — No plain error; court relied on lack of acceptance of responsibility only as bearing on rehabilitation and mitigation, not as impermissible punishment for asserting innocence |
Key Cases Cited
- People v. Zehr, 103 Ill.2d 472 (Ill. 1984) (sets principles of juror impartiality later reflected in Rule 431(b))
- People v. Thompson, 238 Ill.2d 598 (Ill. 2010) (Rule 431(b) requires a specific question-and-response process)
- People v. Piatkowski, 225 Ill.2d 551 (Ill. 2007) (governs plain-error review standard)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- People v. Willhite, 399 Ill. App.3d 1191 (Ill. App. 2010) (upholding Rule 431(b) compliance where court asked jurors to understand and follow Zehr principles)
- People v. Byrd, 139 Ill. App.3d 859 (Ill. App. 1986) (trial courts may not increase sentence solely because defendant maintains innocence)
- People v. Speed, 129 Ill. App.3d 348 (Ill. App. 1984) (similar prohibition on enhancing sentence for protestations of innocence)
- People v. Costello, 95 Ill. App.3d 680 (Ill. App. 1981) (distinguishes permissible consideration of remorse/rehabilitation from impermissible punishment for asserting innocence)