THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARCADIO DAVILA, Defendant-Appellant.
No. 1-19-0882
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
March 31, 2022
2022 IL App (1st) 190882
JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
Second Division
No. 13 CR 6742
The Honorable Nicholas R. Ford, Judge Presiding.
OPINION
¶ 1 Following a jury trial, defendant Arcadio Davila was found guilty of first degree murder and attempted first degree murder, then sentenced to a total term of 80 years in prison. On appeal, he contends the State failed to prove him guilty beyond a reasonable doubt because his conviction rested on a single eyewitness-victim who misidentified him. Defendant also contends the State improperly introduced video evidence of his interrogation that was more prejudicial than probative. Finally, defendant contends the State violated his constitutional right to a speedy
BACKGROUND
¶ 2 ¶ 3 Defendant was arrested after he allegedly drove up beside a car in which Ricky Pike and Christopher Dear were sitting and then shot Pike, killing him, and attempted to murder Dear. Dear was the only eyewitness-victim to identify defendant and testify at trial. The State theorized that the shooting was gang related (although neither Dear nor Pike had any gang affiliation) because Dear was unwittingly wearing a baseball cap with rival gang colors in Imperial Gangster territory, thereby spurring the shooting. Defendant meanwhile claimed it was a case of mistaken identity, and he proffered an alibi that he was at home in bed when the shooting took place. He also offered evidence from cell phone towers suggesting he was at home before the murder and court documents suggesting that he was in the Chicago Loop paying off traffic tickets several hours after the murder.
¶ 4 Prior to trial, defendant filed several motions to dismiss the State‘s case as violating his constitutional right to a speedy trial. The trial court denied the motions, finding that defendant participated in or acquiesced to the delay. In addition, defendant filed an oral motion to exclude certain portions of his videotaped interrogation, claiming the clips were more prejudicial than probative. Following a review of the videotape, the court granted defendant‘s motion in part and rejected it in part, permitting the State to present some allegedly prejudicial statements. These specific statements will be discussed in further depth in the analysis section.
¶ 5 At trial, the surviving victim, Dear, age 30, testified that he had known defendant since childhood, having lived a block apart and attended grammar school with both defendant and defendant‘s older brother, Jose, who was in the same year as Dear. Dear had been to defendant‘s
¶ 6 Dear testified that he and defendant nonetheless tragically crossed paths months later after Dear and Pike had spent an evening out in Chicago. On August 2, 2012, Dear and Pike went bar hopping in Wicker Park, although Dear claimed to have had only two drinks and then some food during their outing. Around 3:30 a.m. on August 3, the two drove to Pike‘s apartment towards Kedzie and Armitage Avenues. Two women they had met while out followed directly behind them in another vehicle. Pike had just moved into the apartment and neighborhood, which was around where Dear had spent his childhood. As Pike drove them, Dear, who was wearing a green and gold Oakland Athletics ballcap in a forward-facing fashion, discussed how much the neighborhood had changed and also observed what still remained.
¶ 7 Around 4:30 a.m., Pike parked along the right side of 2145 N. St. Louis Avenue in a brightly lit stretch, with both the street and alley lights illuminating the area, in addition to the headlights of the women‘s vehicle behind them. Dear and Pike remained in their vehicle with the
¶ 8 One bullet struck Dear in the left hand, and Pike also was struck and gasping for air with a “glazed look over his face” and blood spreading over his shirt. Despite Dear‘s pleas for help, the women in the vehicle behind them drove away. Dear exited the car and grabbed Pike, holding his body and encouraging him to breathe, but Pike soon stopped breathing and was dead. Dear could think of no reason why defendant would shoot them. Subsequently, Dear called 911 and was transported to the hospital for treatment of his hand. There, he also met with police.
¶ 9 Initially, Dear told police the shooter‘s name was “Juney,” a nickname for defendant‘s brother, Jose, but after viewing an image of Jose, Dear clarified that the shooter was defendant, Jose‘s little brother. Dear testified that while still hospitalized some four hours after the shooting, at 8:20 a.m. on August 3, he identified defendant from a multisubject photographic array. The next day, at 3:20 a.m. on August 4, Dear identified defendant from a live lineup at the police
¶ 10 Chicago police lieutenant James Labbe testified that he met with Dear at the hospital about an hour or two after the shooting. Dear said he knew the shooter to be the younger brother of Jose “Delvia” or “Davila” and described the shooter as a chubby, light-skinned Hispanic man with a baby face, no facial hair, and long hair in braids. Dear believed defendant‘s nickname was “Juney,” although that was later determined to be Jose‘s nickname, and knew defendant to be a member of the Imperial Gangsters. Dear also relayed that he had gone to grammar school with defendant, a fact Lieutenant Labbe later confirmed by retrieving records from Darwin Elementary School. Officers then presented Dear with a six-person photographic array based on this information, and according to police, Dear immediately and without hesitation identified defendant as the shooter. That day, Dear showed Lieutenant Labbe a Facebook invitation to the December 2011 party, where he had seen defendant, and also showed him defendant‘s Facebook profile.
¶ 11 An investigative alert subsequently issued for defendant, but on the night of August 3, defendant voluntarily turned himself in. He was questioned by Lieutenant Labbe and another detective from August 3 to August 4, 2012, and presented them with information about his whereabouts and his cell phone. Police then spoke with defendant‘s mother, stepfather-to-be, brother, and girlfriend/fiancé. On cross-examination, it was noted that police subpoenaed defendant‘s phone for its cell tower locations and also extracted data, including text messages,
¶ 12 Evidence at the murder scene showed three bullet holes in the driver‘s side door, two in the windshield, a bullet fragment on the passenger dashboard, and a fired bullet that lay in the rear driver‘s side compartment. Dear‘s Oakland Athletics cap was also recovered from the front driver‘s console area of the car. Pike‘s autopsy report showed he died from six gunshot wounds in his upper left arm, upper left shoulder, upper left chest, left back, left arm, and a superficial wound on his left thigh. The medical examiner ruled it a homicide. In addition, based on a pod video of the area near the shooting, police believed the shooter possibly had been driving a silver or gray car.
¶ 13 The State presented evidence that this otherwise senseless murder and shooting was gang related. Chicago police officer Ronnie Rodriguez, an expert in street gang investigations, testified that in August 2012 the street block where the shooting occurred was specifically controlled by Imperial Gangsters. The Orchestra Albany gang, a rival, was also active in the area, and its members claimed the Oakland Athletics logo as their symbol. He testified an Oakland Athletics hat could be worn cocked to the right or in a regular fashion, and both would represent an Orchestra Albany gang member. As rivals, the gangs did not get along, and if they recognized a member of another gang, they were “expected to take action.” Officer Rodriguez testified that defendant‘s tattoos (i.e., “Chi-Town Gangster,” etc.) showed he was a member of the Imperial Gangsters. The State thus implied that defendant would be willing to shoot a person wearing an Oakland Athletics hat and representing the rival gang. The defense, on the other
¶ 14 Detective Daniel Gillespie testified next that he and his partner, Detective John Lally, conducted a videotaped interview of defendant following his second arrest on March 4 and 5, 2013, about eight months after the August 3, 2012, shooting. In lieu of direct testimony by Detective Gillespie, the State published this nearly three-hour long videotape (exhibit 871) to the jury. The video opens showing a fish-eye camera view of a windowless police holding cell, where defendant is asleep on a bench only to be awakened by a detective walking in. Defendant is interviewed first by one detective (although the record does not distinguish whether it is Detective Gillespie or Detective Lally) serving as the “good cop” for the first 37 minutes and second by the other detective serving as the “bad cop” for the next 40 minutes. During the next hour and a half or so, both detectives interview defendant. The tone throughout vacillates between conversational and strident by the parties. At several points, detectives provide defendant with Miranda warnings (Miranda v. Arizona, 384 U.S. 436 (1966)), and defendant basically inquires when he will be released, presuming it will be after 48 hours, as in 2012. While the video clearly shows defendant‘s physical gestures, the camera angle and quality are insufficient to show any detailed facial expressions. Additionally, pursuant to the pretrial hearing, the video was edited with some statements redacted, resulting in a barely noticeable skip
forward in the interview at various points. We have reviewed the videotape in full and summarize the interview as follows.2
¶ 16 Defendant acknowledged there was usually a neighborhood group hanging out on the corner of Medill and St. Louis Avenues (about five blocks from where the murder took place), and that‘s where he picked up his brother around 10 p.m. or 10:30 p.m., before returning home on August 2. Defendant also volunteered that, after he was released the first time in 2012, he cut his hair off because people were confusing him with others, including his brother, and accusing him of crimes. When the detective asked whether the victims might have mistaken defendant for his brother, defendant stated that he and his brother were both home on August 2 and 3.
¶ 17 Defendant further stated that later in the morning of August 3 (after the shooting had occurred) he went via the Blue Line Chicago “L” to traffic court at the Richard J. Daley Center (Daley Center) in Chicago to pay fines around 10 a.m. or 10:30 a.m. This was after also visiting the Secretary of State on Elston Avenue to reinstate his license (which issued several days later).
¶ 18 Some 40 minutes into the interview, the detective informed defendant that the surviving victim grew up with defendant and was his brother Jose‘s age, but the detective did not then reveal the victim‘s name or image. Defendant repeatedly denied knowing the victims and asserted they did not know him. Defendant stated that police had not shown him photos of the victims previously. The only way he was familiar with Pike was because he had seen his image on a pole, presumably outside, since after the shooting there were photos of Pike everywhere in the neighborhood and the shooting was the talk of the barbershop. Defendant said he had heard another individual, in addition to Jarvis, was involved in the shooting and that both were Imperial Gangsters. He had heard from the barbershop that the victims were “neutrons,” meaning they had no gang affiliation, and that the surviving victim had placed his hands over his head
¶ 19 Defendant also repeatedly and stridently denied the shooting with such statements throughout as: “I didn‘t pull up on anybody. I was at my house sleeping“; “At four in the morning, I was probably on my twelfth or thirteenth sleep“; “I didn‘t shoot nobody“; “I had nothing to do with this case“; “I don‘t have no gun; I didn‘t shoot anyone“; “I don‘t have hate in my heart for people like that“; “Lord as my witness, I get down on my knees right now, it wasn‘t me, I wasn‘t there“; “I wouldn‘t risk myself for anything this dumb at all. Period.” He insisted he was never outside at the time of the murder, the accusations were “nonsense,” and it was a “bullshit case,” since he was just as clueless as police about why the victim would just “put a case on” him. While defendant was sorry for the victim and his family, defendant was not there but was sleeping. Defendant asserted it did not matter what the victim said and suggested several times that police obtain camera footage from the street by the shooting. Defendant said there had to be some other evidence that would point the detectives in the right direction, as they were getting nowhere with him because he did not commit the crime. The detectives nonetheless noted that the evidence was pointing at defendant. When the detectives noted there were only a few people who knew the absolute truth in this case, defendant responded, “Exactly. And, that‘s me, God, and my family who was there.”
¶ 21 Detectives also pursued another line of inquiry as to defendant‘s associate “Spooky,” an Imperial Gangster who used to drive a gray Pontiac (like that thought to be the murderer‘s). Defendant stated around the time of the murder he did not then spend time with Spooky and only found out about Spooky‘s look-alike car after defendant was released from his arrest in 2012. Detectives then asked defendant why he was associating with Spooky when defendant knew about Spooky‘s car (implying the car was the same as that involved in Pike‘s murder). Defendant stated that every weekend his son and Spooky‘s son hung out, got haircuts, and ate together. The detective noted that Spooky was a registered sex offender and questioned why defendant would associate with Spooky if he wanted to stay out of trouble.
¶ 23 Detectives suggested the shooting of Pike and Dear was retaliation for the shooting at defendant and the Imperial Gangsters several nights before, which defendant denied. In response, defendant repeated that he was working a full-time job, that he had responsibilities, and that he had gone to court the morning after the shooting. Defendant stated, “I didn‘t do it, I‘ll tell you right now, I didn‘t do it, though. I‘m sorry, I‘m not your guy,” and “you got the wrong person.” Defendant stated both he and the victims were in predicaments because what was happening to both parties was not right. He noted that he had already been in police custody last time for 48 hours. Detectives urged defendant to confess. Defendant said that, if he had done something, he would confess. With that, the video concluded.
¶ 24 Following the video presentation to the jury and during the cross-examination of Detective Gillespie, it was revealed that the detectives had obtained receipts showing that defendant‘s traffic tickets were paid Thursday, August 2, the evening prior to the shooting. A
¶ 25 Defendant then presented several witnesses in support of his alibi that he was home with family during the shooting and also presented expert testimony generally challenging the reliability of eyewitness identifications. Defendant did not himself testify.
¶ 26 The first witness was Dr. Geoffrey Loftus, an experimental psychologist and expert in perception and memory. Dr. Loftus testified that pre-event information—or what one already knows about the world at the time an event occurs—can bias a witness‘s perception or memory of that event. Alternatively, post-event information—or what a witness encounters after the event is over—can supplement the witness‘s memory of the event to create a more coherent or consistent story as to what happened. As such, Dr. Loftus testified that witnesses were capable of developing strong and seemingly real memories that were unwittingly false in certain respects. Several additional considerations, such as the witness‘s degree of attention, the duration of the
¶ 27 Nonetheless, in this case, Dr. Loftus could not opine as to whether these factors specifically affected Dear‘s eyewitness recollection. Although Dr. Loftus had reviewed some of the records and reports from the case, he had not reviewed all of them. He probably did not review any video recorded statements and did not interview any witness in the case. He did not remember whether he had reviewed any photos.
¶ 28 Defendant‘s alibi witness, Jose Mulero, testified next that he was the fiancé of defendant‘s mother and lived with the family at 5170 N. Lovejoy Avenue during the relevant time in August 2012. On August 2, defendant and his brother Jose came home around midnight (so, technically August 3). Defendant went to his bedroom, while Jose went to the living room to watch television. Around 2:30 a.m., Mulero awoke to use the bathroom and noticed that defendant was asleep in his own bedroom, which was located right next to Mulero‘s. Again, at 5 a.m., Mulero awoke. As before, he saw defendant asleep in his own bedroom. Mulero, a light sleeper, testified that the apartment walls were thin, insofar as one could hear people talking and
¶ 29 Defendant also presented evidence showing that he had made a number of cell phone calls using a cell tower near his home. On August 2, those calls occurred around 11:30 p.m. and 10 minutes to midnight. On August 3, they occurred around 1 a.m. and 6 a.m., and two calls were around 8 a.m. In addition, one call took place around 9:30 a.m. on August 3 using a cell tower near 180 W. Washington Street in Chicago. Two other calls took place around 10:30 a.m. on August 3 using a cell tower near 36 W. Randolph Street. The parties stipulated that the Daley Center, where traffic court is held, is located at 50 W. Washington Street. We take judicial notice that, according to Google maps, 180 West Washington Street is within four blocks of the Daley Center, and 36 W. Randolph Street is within one block. See People v. Clark, 406 Ill. App. 3d 622, 632-34 (2010). Finally, the last call was issued by defendant‘s home around 11:30 a.m. on August 3. This evidence tended to support defendant‘s video statements as to his whereabouts on the morning of August 3, insofar as it showed he was first at home, next in the Chicago Loop, and then home again. However, it likewise showed that the cell phone had no definitive location from about 1 a.m. to 6 a.m. on August 3, within the timeframe of the shooting. Following this evidence, the defense rested.
¶ 30 During closing arguments, the State emphasized that this was a gang-related shooting resulting from Dear‘s donning of a cap with Orchestra Albany colors while in Imperial Gangster territory. The State also emphasized that Dear was a strong and credible eyewitness based on his long acquaintance with defendant and on the five factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), commonly known as the “Biggers factors,” which Illinois courts use to assess the
¶ 31 Following argument and the commencement of deliberation, the jury sent a note containing three questions as to the interrogation video. First, the jury requested to view the portion of the video wherein defendant held his hands over his head and, second, the portion involving the Imperial Gangster shooting several days before Pike‘s murder and, third, the portion involving Spooky. The court granted the jury‘s request. Over an hour later, the jury sent another note asking, if it found Dear‘s testimony credible, would that be sufficient to find defendant guilty? The court instructed the jury that it had the instructions and had heard the evidence and should continue to deliberate.
¶ 32 Ultimately, the jury found defendant guilty of first degree murder and attempted murder. As to both offenses, the jury determined that defendant personally discharged the firearm involved. At the sentencing hearing, it was noted that defendant had a 2010 felony burglary in his background but no other offenses. Taking into account the 25-year firearm enhancement on each count, the trial court sentenced defendant to 49 years for murder and 31 years for attempted murder, to be served consecutively, for a total term of 80 years’ imprisonment. Defendant appealed.
¶ 33 ANALYSIS
¶ 34 Sufficiency of the Evidence
¶ 36 Defendant now challenges Dear‘s identification testimony as unreliable and, further, points to his alibi that he was home sleeping at the time of the shooting, which he claims renders the evidence insufficient. Where, as here, identification is the main issue, the State must prove beyond a reasonable doubt the identity of the individual who committed the charged offense. People v. White, 2017 IL App (1st) 142358, ¶ 15. It is well established that a single positive identification by a witness who had ample opportunity for observation is sufficient to support a conviction. People v. Macklin, 2019 IL App (1st) 161165, ¶ 22; People v. Killingsworth, 314 Ill. App. 3d 506, 510 (2000).
¶ 37 A trier of fact assesses the reliability of identification testimony in light of all the facts and circumstances based on the Biggers factors, including (1) the witness‘s opportunity to view the offender at the time of the offense, (2) the witness‘s degree of attention at the time of the
¶ 38 Here, after carefully reviewing the evidence according to that standard in a light most favorable to the State, we cannot say Dear‘s confident and competent testimony identifying defendant as the shooter was so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt as to defendant‘s guilt. In light of that standard, Dear‘s account of the shooting was consistent and credible. See id. ¶ 92. Dear testified that he had known defendant and his brother from grammar school, having visited their childhood house only a block away, visited their mother at her laundromat workplace, and also socialized outside school at clubs and on the basketball court in their neighborhood. In short, they had interacted “thousands” of times over the years. Given our reasonable doubt standard, the persuasiveness of identification testimony continues to be strengthened by the witness‘s prior acquaintance with the accused. See id. ¶ 91; People v. Barnes, 364 Ill. App. 3d 888, 895 (2006). Although Dear had not seen defendant from about 2004 on, he had seen and spoken with defendant in 2011, some months prior to the August 3, 2012, shooting.
¶ 40 Applying the Biggers factors, although Dear viewed defendant for only a short period, given the strong lighting conditions and position of the two cars, Dear had a clear and unobstructed opportunity to view defendant. See People v. Wehrwein, 190 Ill. App. 3d 35, 39 (1989) (noting that an adequate opportunity to view the offender is the most important factor for the trier of fact to determine). Moreover, as to the second factor, Dear‘s degree of attention was heightened, where he immediately recognized defendant, a childhood acquaintance, with the gun and was mystified as to why defendant would be shooting at him and his friend Pike. Dear testified that, at the time of the shooting, he wanted to shout, “it‘s me” and “stop,” but it was too late. As to the third factor, several hours after the shooting, Dear provided an accurate physical description of defendant as the shooter to police, noting he was a chubby, light-skinned Hispanic man with a baby face and long hair in braids. This description is consistent with images of defendant in the record. Dear knew defendant was an Imperial Gangster and stated to police that
¶ 41 Under the fourth and fifth Biggers factors, Dear thus displayed a high degree of certainty in identifying defendant only several hours after the shooting.4 See Macklin, 2019 IL App (1st) 161165, ¶ 32 (noting, according to research, the expression of certainty at the time of an initial identification is a relevant indicator of accuracy); People v. Green, 2017 IL App (1st) 152513, ¶ 113 (reviewing courts have found identifications reliable where nearly three months or more elapsed between the crime and the witness‘s identification). At trial, Dear testified he was 100% sure defendant was the shooter and also made an in-court identification of defendant. This is hardly the vague, doubtful, or uncertain testimony defendant would have us believe.5 See In re Jonathon C.B., 2011 IL 107750, ¶ 60 (noting that a conviction will not be reversed merely because the defendant claims a witness to be incredible); see also Macklin, 2019 IL App (1st) 161165, ¶¶ 31, 34 (noting that Illinois courts have not rejected a witness‘s expression of certainty as an appropriate factor in the reliability analysis); Guerrero, 2020 IL App (1st) 172156, ¶ 34 (same).
¶ 43 Likewise, while defendant points to his expert Dr. Loftus‘s testimony generally challenging the validity and reliability of eyewitness identifications, the jury apparently was unswayed by this specific evidence. In other words, the jury reasonably could have found Dear‘s identification was unaffected by pre- or post-event information, so that he did not prejudge the identity of the shooter or supplement his judgment of the shooter‘s identity. The jury heard Dr. Loftus‘s testimony that lighting conditions, stress, and weapons focus could all negatively impact the accuracy of identification. It also heard that a witness‘s confidence in his memory of an event did not necessarily correlate with the accuracy of the memory. Yet, the jury chose to believe Dear, perhaps because Dr. Loftus could not opine on whether any of the above-stated factors
¶ 44 The jury evidently also was not persuaded by defendant‘s alibi. Defendant presented evidence from his stepfather-to-be, Mulero, that defendant was home around midnight and in his own bed around 2:30 a.m. and 5 a.m. on August 3, the day of the shooting. Cell phone evidence corroborated that defendant made calls pinging off cell phone towers near his home around midnight and 6 a.m. on August 3. Cell phone evidence and court documents also corroborated his contention that he was in the Chicago Loop the morning of August 3, disposing of traffic tickets. Defendant‘s alibi nonetheless did not account for his whereabouts at 4:30 a.m. on August 3, when the shooting occurred. Given how close his home was to Pike‘s apartment, where the shooting occurred, the jury reasonably could have concluded defendant committed the shooting but then was home in bed by 5 a.m. when Mulero saw him.6 See In re C.A.H., 218 Ill. App. 3d 577, 581 (1991).
¶ 45 Mulero, himself, acknowledged he could not say definitively where defendant was from 2:30 a.m. to 5 a.m. because he was sleeping then. Alternatively, the jury simply could have entirely discredited Mulero‘s testimony. See People v. Logan, 352 Ill. App. 3d 73, 80-81 (2004) (a trier of fact is free to accept or reject as much or as little as it pleases of a witness‘s testimony).
¶ 46 Moreover, defendant does not dispute that he previously had been an active Imperial Gangster and had the tattoo marks to show it. While in his interrogation video interview defendant claimed to have disengaged from the gang, he also acknowledged that just several days before the shooting of Pike and Dear, he had been outside with a number of Imperial Gangsters during another gang-related shooting and was himself shot at. In addition, the jury could have found that several points in the video—for example, where defendant queried whether the detective was saying the victim was an “OA or something” and where defendant mimicked Dear‘s having reportedly ducked during the shooting—revealed defendant knew more than he was indicating and supported the State‘s theory that he was the shooter. The State also presented evidence that the block where the shooting took place was controlled by defendant‘s gang and that there was a rivalry between the Orchestra Albanys and Imperial Gangsters. Given that Dear was wearing an Oakland Athletics ballcap with the colors of the Orchestra Albany gang in rival territory and that Pike was new to the street, this presented persuasive motive for the otherwise inexplicable shooting by defendant. Again, it was the jury‘s job to weigh the gang
Admission of Statements from the Videotaped Interrogation
¶ 47 ¶ 48 Defendant next contends the trial court erred by admitting into evidence certain statements police made during his nearly three-hour-long videotaped interrogation. The admission of evidence is within the sound discretion of a trial court, and a reviewing court will only reverse it if there is an abuse of that discretion, i.e., where the trial court‘s decision is arbitrary, fanciful, or unreasonable or where no reasonable person would agree with the position of the trial court. People v. Becker, 239 Ill. 2d 215, 234 (2010). Defendant maintains the police comments made during the interrogation video improperly bolstered Dear‘s identification testimony and the State‘s case and denigrated defendant‘s credibility. Defendant argues the comments, some of which he objected to, were irrelevant, more prejudicial than probative, and removed the finding of guilt from the province of the jury. Given that the video was key to the prosecution‘s case, defendant argues the prejudice flowing from these errors was incalculable.
¶ 49 To preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and also raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. Where a defendant has made a timely objection, a harmless-error analysis arises, and the State bears the burden of persuasion with respect to prejudice. People v. Thurow, 203 Ill. 2d 352, 363 (2003). That is, the State must prove beyond a reasonable doubt that the jury verdict would have been the same absent the error. Id. By contrast, a failure to properly object to a claimed error results in forfeiture, and under a plain-error analysis, the error will only be considered where the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant or the error was so serious that it affected the fairness of
¶ 50 Defendant now invokes both the harmless and plain error analyses since he objected to only some of the claimed errors. We first consider those properly objected-to errors as to the videotaped interrogation. We note the State was entitled to introduce the videotaped interrogation during its case-in-chief since any statement made by an accused, unless excluded by the privilege against self-incrimination or other exclusionary rules, may be used against him as an admission even if it is not inculpatory or against interest. People v. McCallum, 2019 IL App (5th) 160279, ¶ 55.
¶ 51 As a result, generally an investigating officer‘s questions or statements in a videotaped interrogation are admissible to demonstrate their effect on the defendant, to explain the defendant‘s response (or lack thereof), and to explain the course of the officers’ interview/investigation. People v. Dunbar, 2018 IL App (3d) 150674, ¶ 54. These statements, including opinions and observations as to a defendant‘s guilt or credibility, may be presented in the videotaped interrogation even if they are inadmissible as direct testimony. McCallum, 2019 IL App (5th) 160279, ¶ 56; cf. People v. Terrell, 185 Ill. 2d 467, 496 (1998) (noting that a witness, whether expert or lay, may provide an opinion on the ultimate issue of fact in a case). The officers’ questions or statements should be helpful to the jury in understanding the context of the defendant‘s communications, and practical considerations thus come into play. People v. Whitfield, 2018 IL App (4th) 150948, ¶ 48. In certain instances, for example, redacting the officer‘s remarks would render the defendant‘s responses nonsensical; in other instances, the police accusations may simply serve as a standard and permissible interrogation tactic. See
¶ 52 Nevertheless, a police officer‘s statements during a videotaped interrogation are ultimately subject to both relevancy requirements and the familiar test of weighing their probative value versus prejudicial effect. Hardimon, 2017 IL App (3d) 120772, ¶ 35. Relevant evidence has any tendency to make the existence of a fact of consequence to the case more probable than it would be absent the evidence. People v. Lewis, 165 Ill. 2d 305, 329 (1995). Thus, such evidence should assist the jury in resolving questions of fact. People v. Owens, 372 Ill. App. 3d 616, 622 (2007). However, a statement, even if relevant, should be excluded if its prejudicial effect substantially outweighs its probative value. Hardimon, 2017 IL App (3d) 120772, ¶ 35. For example, prejudice arises when a police officer, as a recognized authority figure, informs the jury that it should believe a portion of the prosecution‘s case. People v. Hanson, 238 Ill. 2d 74, 103 (2010) (citing People v. Crump, 319 Ill. App. 3d 538, 544 (2001))7; Hardimon, 2017 IL App (3d) 120772, ¶ 35. Likewise, evidence that a witness believes a defendant is guilty may be unfairly prejudicial. Hanson, 238 Ill. 2d at 102-03; see also People v. Munoz, 398 Ill. App. 3d 455, 488-89 (2010) (noting that an officer‘s testimony at trial that he did not believe the defendant ever told him the truth was an impermissible comment on the defendant‘s credibility). Indeed, a witness is not permitted to comment on the veracity of another witness‘s credibility. Munoz, 398 Ill. App. 3d at 487.
¶ 54 Defendant contends the following objected-to statements8 by police about Dear were improperly admitted:
“But what I will tell you is what this guy [(Dear)] is saying. And he‘s saying he‘s known you since you guys were little *** were pups. Okay? And, you mentioned last time you were here about ya know that you and your brother look exactly alike ya know and that people mistake the two of you all the time. Well that didn‘t happen here, because [Dear] knows the two of you.”
“His memory‘s pretty fucking good, and it was dead on *** he‘s pretty accurate with what he says, and that‘s why I don‘t think that he‘s fucked up here.”
“Why would this guy [(Dear)], who‘s got no gang affiliation, ever, none *** no gangs, ever, ever, in their history, no arrests, ever, in their history *** And dude knows you from this tall *** What makes him just put it on you?”
“He‘s not going to pull your name out of thin air and just put a case on you for his buddy who just got murdered and he got shot. He ain‘t gonna do it. It doesn‘t make any sense.”
¶ 56 In short, the detectives’ statements bolstered Dear‘s trial testimony. The detectives thereby informed the jury that it should believe the prosecution‘s case over the defense, since the State was required to prove the identity of the shooter beyond a reasonable doubt. See Hanson, 238 Ill. 2d at 102-03; Hardimon, 2017 IL App (3d) 120772, ¶ 35; Munoz, 398 Ill. App. 3d at 489. The statements were highly prejudicial because the jury was likely to credit them with more weight due to their repetitive quality and the detectives’ status as authority figures. See Munoz, 398 Ill. App. 3d at 489.
¶ 57 Defendant further argues the following objected-to statements by police about the strength of the State‘s case were improperly admitted:
“If it was a weak case then you wouldn‘t be back in here; if there wasn‘t enough to pick you back up, then you wouldn‘t be back in here. But there is *** This guy [(Dear)] who picked you out *** this guy who you accidentally shot[.]”
“There‘s people pointing the finger at you *** There‘s other stuff too, but we won‘t get into that.”
“Do you think that there‘s only one person that‘s got their finger on you and it‘s just the surviving victim?”
“Problem is everybody points in your direction *** even if there is another direction to go *** everybody we talked to.”
“Like we said yesterday, all the arrows are pointing in one direction.”9
“If I told you who tricked on you, and you went out and killed them, I‘d be fucked. Do you think I‘m gonna risk my career over something like that?”
¶ 58 Defendant argues, and we agree, that these comments also improperly bolstered the State‘s case, this time by misleading the jury into believing there were additional witnesses against defendant who were either unwilling or unavailable to testify. This was, after all, a gang-related shooting according to the State‘s theory, so it would be reasonable for the jury to infer certain witnesses were too intimidated to come forward and testify at trial. Ultimately, the statements suggested the State had more corroborative evidence implicating defendant as the shooter, despite the fact that there was only one eyewitness at trial. These remarks were not simply course-of-investigation comments, which would be permissible, but conclusory statements of fact. Cf. People v. Simms, 143 Ill. 2d 154, 174 (1991) (noting that trial testimony
¶ 59 Moreover, we note that, pursuant to defendant‘s oral motion in limine, the parties agreed to redact the first and the third statements set forth immediately above (starting respectively with, “If it was a weak case then you wouldn‘t be back in here” and “Do you think that there‘s only one person that‘s got their finger on you“). However, there is no explanation as to why the statements were included in the video and shown to the jury. At the very least, this suggests that the State believed the remarks were more prejudicial than probative and that the trial court did not disagree. As to the first comment, the court specifically found it referenced probable cause to arrest and was an inappropriate matter for the jury. The court‘s ruling to redact those statements was not an abuse of discretion, notwithstanding that the statements were subsequently presented to the jury.
¶ 60 Likewise, the remarks above reveal that, during the interrogation, detectives specifically urged that it was defendant who shot Pike. The detective suggested defendant would kill the person who “tricked on” him (which we take to mean gave his name to police), although there was no evidence as to that particular person. The quantity and quality of these remarks insinuated that there was more evidence against defendant and the detective himself believed defendant to be a killer and therefore guilty, also bolstering the State‘s case.
¶ 61 Here again, the detectives basically implied that the State should be believed over defendant, thereby causing prejudice. See Lewis, 165 Ill. 2d at 329 (noting that prejudice can be defined as to suggest deciding a matter on an improper basis); see also Munoz, 398 Ill. App. 3d at 489 (noting, the detective‘s testimony that “‘he never believed that the defendant told him the truth‘” on the night in question essentially translated to instructing the jury not to believe the
¶ 62 In that sense, this case can be likened to Hardimon, 2017 IL App (3d) 120772, where this court concluded the defendant‘s trial counsel was constitutionally ineffective for failing to further redact the video recording of the defendant‘s interview with police. There, from the hour and twenty-minute long video, police spent the last 50 minutes goading the defendant into a confession that, in the early morning hours outside a nightclub, the defendant shot and murdered the victim. Police claimed the evidence was so heavily weighted against the defendant that the prosecution would insist on taking the case to trial, thereby prevailing and presenting the defendant with a lengthy prison term. Id. at ¶ 36. Police described the defendant as a “‘liar‘” and “‘cold-blooded killer‘” and relayed that the media would display the word “‘execute‘” next to the defendant‘s photo. Id. at ¶¶ 34, 36.
¶ 63 Meanwhile, the defendant in Hardimon was adamant that, although he was at the nightclub and heard the gunshots, he did not participate in the shooting, and his version of events remained the same even in the face of the detectives’ interrogation threats. This court concluded
¶ 64 As in Hardimon, here, given that defendant never admitted to the shooting but consistently denied it during the videotaped interrogation, the statements did not serve to show any transformation in defendant‘s story or provide helpful context. The aforementioned interrogation tactics thus had no material value. In that sense, the statements were irrelevant and, regardless, more prejudicial than probative. Cf. McCallum, 2019 IL App (5th) 160279, ¶¶ 66-71 (finding that 18-minute redacted videotaped interrogation segment created context for the entire 53-minute redacted videotaped interrogation and also showed the defendant‘s incongruous emotional response to his friend‘s dying declaration in a 911 tape identifying the defendant as the shooter; given that, plus the defendant‘s changing alibi, the challenged portion of the videotape was held relevant and more probative than prejudicial); Dunbar, 2018 IL App (3d) 150674, ¶ 54 (noting the investigating officers’ statements did not rise to the same level of prejudice as in Hardimon). Here again, the identified comments buttressed the State‘s single eyewitness-victim, while also suggesting extraneous evidence, including some phantom witnesses not presented at trial, strengthened the State‘s case that defendant was the shooter.
¶ 65 These comments also diminished the relevant and more probative portions of defendant‘s statements in the video. Those included defendant‘s alibi; his gang history; the fact that he was present during a gang-related shooting at St. Louis and Medill Avenues a mere two nights before the murder; whether defendant had heard from the neighborhood and barbershop of the victim‘s identities, especially given that he claimed to know everyone in the neighborhood; defendant‘s assertion that the detective was saying the victim was an “OA or something” and his subsequent changing of the topic; defendant‘s physical gesture of ducking as he had heard the victim did; his haircut following his release from the first arrest; and defendant‘s acknowledgement that he knew the victim.
¶ 66 The State attempts to distinguish Hardimon, arguing against reversal and claiming any error was harmless. To determine whether an error is harmless beyond a reasonable doubt, courts examine whether the error contributed to the defendant‘s conviction and whether the other evidence in the case overwhelmingly supported the defendant‘s conviction. People v. Lerma, 2016 IL 118496, ¶ 33. However, the State must prove beyond a reasonable doubt that the jury verdict would have been the same absent the error. Thurow, 203 Ill. 2d at 363; Johnson, 2012 IL App (1st) 091730, ¶ 65.
¶ 67 The State maintains the evidence in this case was overwhelming where Dear identified defendant, a person he had known since childhood. The State has failed to cite an appropriate case in support of this argument (see
¶ 68 Lerma at least suggests that, while knowing a defendant might constitute sufficient or even substantial evidence to support a conviction, it is not overwhelming. See id. As in Lerma and Hardimon, in this case there was no physical evidence tying defendant to the crime, and he neither confessed nor made an unequivocally incriminating statement. Rather, the evidence of defendant‘s cell phone usage and location, plus court documents, offered some support to the alibi evidence that he was home sleeping and went to court the next morning to pay traffic fines. In addition, defendant‘s denials of his guilt in the videotape remained consistent throughout the heavy interrogation.
¶ 69 Thus, here, the prosecution claimed, based on its eyewitness and victim, that defendant committed a gang-related murder when he mistook Pike and Dear for rival members, and defendant claimed it was Dear who mistook him as the shooter. Where the State‘s case rested
¶ 70 The State also argues the prejudicial impact of the detectives’ remarks was diminished by the lengthy videotape and the remarks therefore did not contribute to his conviction. We cannot agree. The video featured prominently at trial and in the State‘s closing, especially during rebuttal. Cf. McCallum, 2019 IL App (5th) 160279, ¶ 76 (noting that the interviews with police were not the central pieces of the State‘s case). In particular, the State argued Dear was credible and accurate because he knew defendant and had since grammar school, thus following the same line as the interrogation. The jury requested to see the video while deliberating, and the identified errors may well have influenced its decision. See Johnson, 2012 IL App (1st) 091730, ¶ 65; Munoz, 398 Ill. App. 3d at 489. Consequently, we cannot say beyond a reasonable doubt that the jury verdict would have been the same absent the prejudicial statements. See Thurow, 203 Ill. 2d at 363. The State has failed to fulfill its burden of proving the error harmless.
¶ 71 This case can thus be distinguished from Hanson, 238 Ill. 2d 74, which addressed whether the live testimony by a police officer was improper opinion, relevant, and more
¶ 72 We find this to be a distinction without much difference before a jury, but even so, here, it is quite possible the jury mistook the video statements for Detective Gillespie‘s present opinion of defendant‘s guilt. The video was presented in lieu of any substantive direct testimony, and there was no limiting instruction. On cross-examination, Detective Gillespie noted that the purpose of the interrogation was to “find out the truth,” denied deploying tactics to confuse suspects, and stated he never revealed full information to the suspects. Cf. McCallum, 2019 IL App (5th) 160279, ¶ 43 (notably, the officer testified at trial that he made false statements to the defendant in the interrogation video and that lying was a common interrogation tactic). Although the State suggested during oral arguments that cross-examination would clarify that the video statements were not the detective‘s beliefs, we find it did the opposite. Thus on the stand, Detective Gillespie essentially endorsed his past position from the video. Given that the evidence in this case also corresponded with that cited in the video (such as defendant and Dear‘s grammar school records, defendant‘s court documents, and defendant‘s cell phone evidence), a
¶ 73 Apart from that distinction, in Hanson, the officer did not repeatedly vouch for the truth of Jennifer‘s statement that the defendant committed the murders. Here, the officers did vouch for and bolster the only eyewitness‘s statement identifying defendant. As defendant writes, “here, the jury heard that the police deemed the information reported by Dear and other unnamed persons to be credible.” Such prejudice was not present in Hanson, where the conversation between the officer and the defendant was brief and in context described the officer‘s reason for suspecting defendant. The supreme court held the officer‘s statement explained why the investigation focused on defendant and why defendant later fled. We cannot say the same about the videotaped interrogation statements here.
¶ 74 Defendant also challenges a number of statements under the plain error doctrine, reserved for errors that were not properly preserved. Because we reverse for the above-stated reasons, we need not apply that doctrine or defendant‘s alternative argument as to ineffective assistance of counsel. However, we find the comment, “Well, you shot Ricky,” to which no objection was raised, likewise did not aid the jury in its determination and was more prejudicial than probative for the reasons enumerated above. The same applies to the comment, “If it‘s somebody [(Dear)] that‘s saying, listen I know this guy, I‘m 100% sure that it was him. I grew up with him, I grew up with his brother.”
¶ 75 In addition, we find no relevance to the police officer‘s comments about defendant‘s associate, “Spooky.” As Detective Gillespie explained on cross-examination at trial, while detectives believed the shooter possibly drove a silver or gray car, they determined that it was not Spooky‘s. Yet extensive comments about Spooky were permitted to air in the video, albeit
¶ 76 Given that Spooky had nothing to do with the shooting, the only reason to include this commentary would have been to rebut defendant‘s contention in the video denying his gang involvement and his claim that he aimed to lead a lawful life. Yet, defendant‘s acknowledged presence by the gang shooting several nights before the shooting of Pike and Dear was sufficient to rebut this contention. The discussion of Spooky, including his sex offender status, ultimately lacked any connection to the crime at hand, it was confusing, and regardless, it was more prejudicial than probative. Therefore, on remand, such portions of the video should be redacted.
¶ 77 Defendant also complains about several additional comments. The first references Dear‘s lack of gang affiliation in contrast to defendant and his brother having been shot at, and the second comment notes that the victims were not gang bangers, even though the shooter thought they were. We find those comments are appropriate in context, relevant for the purposes of motive, and responsive to defendant‘s queries suggesting Dear would have noticed defendant‘s tattoos if he were really the shooter. They do not constitute commentary on credibility matters involving defendant‘s guilt or Dear‘s identification, and therefore they were not prejudicial. Second, the statement that defendant could easily access a gun was reasonable based on defendant‘s long affiliation with gangs and was not unduly prejudicial.
Speedy Trial Claim
¶ 78 ¶ 79 Last, defendant contends his constitutional right to a speedy trial was violated,
¶ 80 Accordingly, each factor must be weighed and considered in light of the circumstances of the case as reflected by an examination of the entire record. People v. O‘Quinn, 339 Ill. App. 3d 347, 354 (2003). The defendant need only show that the delay was not attributable to his conduct, and the State bears the burden of justifying any delay that has occurred. Crane, 195 Ill. 2d at 53; People v. Belcher, 186 Ill. App. 3d 202, 206 (1989). Reasons for the delay are accorded different weight. Crane, 195 Ill. 2d at 53. Evidence that the State intentionally delayed prosecution to gain some tactical advantage will weigh heavily against the State, while neutral reasons, such as a crowded court docket, faulty police procedure, negligence, or incompetence, will weigh less heavily. Id. When resolving a constitutional speedy-trial claim, any factual determinations made by the trial court will be upheld on review unless they are against the manifest weight of the evidence. Id. at 51. However, we review de novo the ultimate
¶ 81 As set forth, when assessing a constitutional speedy-trial claim, the first consideration is the length of the delay. Defendant now complains he awaited trial over five years, where he was arrested in March 2013 and not tried until July 2018. Generally, courts recognize that a delay of one year is “presumptively prejudicial.” Id. at 52-53. This does not mean that defendant was in fact prejudiced, however. O‘Quinn, 339 Ill. App. 3d at 354. Rather, a “presumptively prejudicial” time period will only trigger the full Barker inquiry involving the aforementioned factors. Id.
¶ 82 Consequently, we next address the second Barker factor, the reason for the delay. The record shows that from March 2013 to October 2016 (when the parties finally agreed to a trial date of February 2017), defendant had engaged in heavy pretrial motion practice, filing a motion to suppress identification testimony, a motion to produce, and a motion to quash arrest and suppress evidence, among other things. Thus, while his time awaiting trial was uncommonly long, the record reveals that, during much of it, defendant was engaging in intentional motion practice aimed for his benefit. Analyzing the speedy trial claim from thereafter, it is significant that the delay in October 2016 was due in part to the limited availability of defendant‘s own expert witness and defense counsel‘s trial conflicts. In February 2017 (when trial had been set), the parties continued the case by agreement. The case was continued by agreement two to three more times before defendant moved for dismissal on speedy trial grounds in November 2017 and in February 2018, over 4½ years after he was arrested. Notably, at the November hearing, while demanding a speedy trial in one breath, in the other, defense counsel stated her own expert witnesses were not available until February 2018.
¶ 84 Moreover, defendant has not identified any deliberate attempt by the State for the delay. To the extent defendant asserts the delays were occasioned by the health of one State witness, a detective, that does not support a finding of ill-will by the State. See Echols, 2018 IL App (1st) 153156, ¶ 25 (noting that the unavailability of a witness is also a valid reason for delay). The State‘s nonspecific inability to procure Dear, its main witness, at various points in 2017 likewise does not support a finding of ill-will or deliberate delay. See People v. Lacy, 2013 IL 113216, ¶ 21 (inability to obtain the testimony of a material witness after due diligence is a valid reason for delay). While defendant argues the State failed to exercise due diligence in securing Dear as a witness, the record simply does not support this assertion, as much of it is silent on the details in the parties’ efforts to procure witnesses. And, as the State notes, the record from May 2018 to July 2018 is not detailed enough to conclude the reason for the several continuances. Overall, we
¶ 85 That brings us to the third consideration, whether in due course the defendant asserted his right to a speedy trial. As just set forth, defendant took an inordinately long time to assert his right to a speedy trial and only after having participated in or acquiesced to the delay, which does not weigh in his favor. See Echols, 2018 IL App (1st) 153156, ¶ 35 (“Typically, a failure to assert the right to a speedy trial weighs heavily against a defendant unless he or she was unaware of the charges.“). In addition the defense first filed its written demand for trial on May 10, 2018.
¶ 86 The fourth and final consideration in the Barker analysis is prejudice to the defendant. Prejudice must be assessed in light of the interests of the defendant that the speedy-trial right was designed to protect. Kaczmarek, 207 Ill. 2d at 299. Those interests are (1) the prevention of oppressive pretrial incarceration, (2) the minimization of defendant‘s anxiety and concern about the pending charge, and (3) most importantly, the limitation of the possibility that the defense will be impaired by the delay. Id. The third factor is most serious, given that a defendant‘s inability to adequately prepare his case “‘skews the fairness of the entire system.‘” Id. (quoting Doggett, 505 U.S. at 654).
¶ 87 Here, defendant has not specified how his ability to prepare his defense was impaired by the lengthy delay, other than that it unfairly enhanced the prosecution‘s cross-examination of Mulero with respect to defendant‘s whereabouts the day before the shooting, thereby undermining Mulero‘s alibi testimony. Defendant notes that Mulero‘s memory of the days before the shooting was indistinct and this discredited his testimony as to the day of the shooting. We would challenge that logic, since Mulero was interviewed by police around August 3, 2012, the
¶ 88 Regardless, defendant has not demonstrated that, but for the delay, the State‘s line of questioning would have been unavailable previously or that Mulero otherwise would have better recalled events. As set forth, during much of the delay before trial, defendant was engaging in pretrial motion practice aimed at enhancing his defense. We see no proof of prejudice as to witnesses or evidence, yet we acknowledge “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Doggett, 505 U.S. at 655. Likewise, we acknowledge the prejudice naturally flowing from defendant‘s anxiety and concern over the pending charge, but we note “this factor is present to some extent in every case and absent some unusual showing, this inconvenience alone is of slight import.” Kaczmarek, 207 Ill. 2d at 300.
¶ 89 Balancing all the stated factors in light of the record, we conclude that, although defendant‘s pretrial custody was uncommonly long, the total factors do not weigh in defendant‘s favor. While we do not condone the lengthy delay occasioned here, we likewise do not believe it qualifies as a constitutional violation warranting the severe remedy of outright case dismissal. See O‘Quinn, 339 Ill. App. 3d at 356-57.
CONCLUSION
¶ 90 ¶ 91 For the reasons stated, we reject defendant‘s speedy trial and sufficiency of the evidence claims. Nonetheless, we must reverse and remand the case for a new trial with various portions of the complained-of statements redacted from the videotaped interrogation. Given the State‘s evidence and the repetitive quality of many video statements from both the detectives and defendant, it would behoove the parties to redact the video accordingly. We also encourage the
¶ 92 Reversed and remanded.
| Cite as: | People v. Davila, 2022 IL App (1st) 190882 |
|---|---|
| Decision Under Review: | Appeal from the Circuit Court of Cook County, No. 13-CR-6742; the Hon. Nicholas R. Ford, Judge, presiding. |
| Attorneys for Appellant: | James E. Chadd, Douglas R. Hoff, and Joseph Michael Benak, of State Appellate Defender‘s Office, of Chicago, for appellant. |
| Attorneys for Appellee: | Kimberly M. Foxx, State‘s Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, David H. Iskowich, Assistant State‘s Attorneys, of counsel), for the People. |