People v. Patterson , 2013 IL App (4th) 120287 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Patterson, 2013 IL App (4th) 120287
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DUWON L. PATTERSON, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-12-0287
Filed December 19, 2013
Held Defendant’s conviction for first degree murder was upheld over his
(Note: This syllabus contentions that his prior interviews with the police, statements
constitutes no part of the regarding his use of guns and knives, and the testimony of two women
opinion of the court but who said they had been assaulted by defendant were improperly
has been prepared by the admitted in evidence, since the trial court did not abuse its discretion
Reporter of Decisions in allowing the jury to hear the prior interviews, the interview
for the convenience of containing his inculpatory statements was highly probative and
the reader.) relevant to defendant’s explanation that the victim’s death was an
accident, and defendant’s involvement in prior acts of domestic
violence was relevant to prove the absence of mistake.
Decision Under Appeal from the Circuit Court of Sangamon County, No. 08-CF-1160;
Review the Hon. Peter C. Cavanagh, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and Ryan R. Wilson, all of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
John Milhiser, State’s Attorney, of Springfield (Patrick Delfino,
Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Presiding Justice Appleton and Justice Holder White concurred in the
judgment and opinion.
OPINION
¶1 In November 2008, a Sangamon County grand jury indicted defendant, Duwon L.
Patterson, with first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2008)). In December
2011, a jury found defendant guilty of first degree murder. In March 2012, the trial court
sentenced defendant to 55 years’ imprisonment.
¶2 On appeal, defendant argues he was denied a fair trial because the trial court improperly
allowed other-crimes evidence and the jury was allowed to infer he had a propensity to
commit crime. Defendant argues the trial court erred in admitting (1) unredacted police
interviews from November 13, 2008, and November 14, 2008; (2) statements regarding
defendant’s use of knives and guns; and (3) testimony of two women who claimed defendant
previously assaulted them. We disagree and affirm.
¶3 I. BACKGROUND
¶4 In November 2008, a Sangamon County grand jury indicted defendant for the first degree
murder (720 ILCS 5/9-1(a)(1), (2) (West 2008)) of Tina Cathey.
¶5 A. The Pretrial Motion In Limine
¶6 On November 28, 2011, the first day of trial, defendant filed a motion in limine asserting
the State sought to introduce “police reports” from 2008 mentioning defendant. Defendant
also filed a motion to prevent the State from impeaching him with his prior convictions. This
motion is not at issue in this appeal.
¶7 The State informed the trial court it intended to present evidence based on three police
reports: (1) an incident occurring on May 28, 2008, where a woman alleged defendant, who
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according to the State was her boyfriend, battered her in the driveway; (2) an incident
occurring on June 3, 2008, where Robin Freemon alleged defendant, who according to the
State was then Freemon’s boyfriend, battered her in her residence; and (3) an incident
occurring on June 12, 2008, where Surrebea Tramble, who then had a domestic relationship
with defendant, alleged defendant battered her and held her at gunpoint. Defense counsel
argued the case did not present “an issue of who did it, but it’s what was his intention” and
added defendant “meant to hit her” but “he didn’t mean to kill her.” The trial court ruled
“when, as in here, the evidence of misconduct is offered to prove intent or perhaps most
relevant, the absence of mistake, the mere general area of similarity would suffice” and
denied defendant’s motion in limine about the police reports.
¶8 B. Defendant’s Jury Trial
¶9 During opening arguments, defense counsel conceded defendant hit Tina but argued she
died as a result of his attempts to remove her from the area by picking her up and carrying
her over his shoulders.
¶ 10 1. The Day of the Murder
¶ 11 Tina, a 31-year-old female who was approximately 4 feet 9 inches tall, and weighed 100
pounds, was involved in a romantic relationship with defendant. She was staying with her
friend, Jessica Estes, on Little Court in Springfield, Illinois, in November 2008. During the
evening hours of November 11, 2008, several individuals, including defendant, were at
Estes’s house. Estes testified defendant and Tina were arguing over Tina’s cell phone. She
testified defendant saw a number for one of Tina’s former boyfriends in the phone. This led
to a series of arguments and defendant leaving and then returning to the house. The last time
defendant returned, defendant took Tina’s cell phone off a table and left. Tina called the
police at approximately 5 a.m. on November 12, 2008, to report her phone was missing.
¶ 12 Tina’s daughter testified on the morning of November 12, 2008, she and her mother were
outside of their residence and defendant was near the garbage cans. He had Tina’s cell phone
in his hands. Tina told defendant to give her the phone back and then defendant choked her
around her neck. Tina snatched the phone, and then defendant knocked the phone out of her
hands onto the ground. Tina’s daughter went inside to call the police. When she returned
outside, she could hear defendant hitting her mother. She heard four or five punches.
¶ 13 2. The Missing Persons Investigation and November 13, 2008, Interview
¶ 14 A missing persons report was filed at 4:23 p.m. on November 12, 2008. The next day, the
police, while investigating the report, learned defendant was the last person seen with Tina.
When police entered the residence where defendant was sleeping, they observed defendant’s
head sticking out of a pile of clothes between a washer and dryer. Defendant requested the
police to keep the handcuffs on him because “he didn’t trust the police in Chicago. They beat
you down.”
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¶ 15 Cheryl Williams and Gerald Felts, investigators for the Sangamon County sheriff’s
department, interviewed defendant on November 13, 2008. This interview was video
recorded and is approximately 1½ hours in length. The typed transcript is 54 pages long. It
was played for the jury. We note the State’s Attorney fast-forwarded through parts of the
video, twice. The record does not reflect what parts of the video were and were not played
for the jury.
¶ 16 Defendant’s claim addresses various statements made during the interview, including the
following (we note we have edited the interview for clarity):
“WILLIAMS: You’ve never put your hands on [Tina]?
DEFENDANT: A long, long time ago.
WILLIAMS: Okay, have you ever been arrested for–
DEFENDANT: For domestic?
WILLIAMS: Yes.
DEFENDANT: I ain’t never been charged with domestic but I’ve been arrested
for a domestic.
WILLIAMS: Okay. Have you ever been arrested for a domestic for hitting?
DEFENDANT: Females? No.
WILLIAMS: Tina?
DEFENDANT: No. Tina. No.
WILLIAMS: Okay. And no females. You’ve never been arrested and–
DEFENDANT: No. Only person I ever got a domestic violence charge is my
mom ***.
***
FELTS: Okay, that’s why when we came to the house we asked for you. They say
you’re not there. You’re laying back there by a washer and dryer covered up you
know. That’s why we had to put handcuffs on you ’cause we hear that you like to
fight with police. You said you like to fight police correct?
DEFENDANT: I like, no I don’t fight with the police. I’m so use [sic] to the
police beating my ass. Yes, I will fight the police back–so far as beating my ass down
here yeah.
FELTS: That’s why we handcuffed you.
DEFENDANT: Like they told me the last time ‘We don’t like n***rs like you.
You think you tough.’ You–I have to keep my thing. You’re not going [to] just sit
here and beat on me like the last time I was in. They beat my ass for what? For
nothing’. ***
FELTS: Now did we treat you that way?
DEFENDANT: No, you all been cool so far.
FELTS: And you requested to keep your handcuffs on all the way here?
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DEFENDANT: Yeah. ’Cause I don’t know until we get here. Yeah and you all
took ’em off so I’m cool.”
¶ 17 Investigators asked defendant about his whereabouts on November 12, 2008, and where
he stayed that night. Defendant explained he first went to Tina’s house and then to a friend’s
house:
“FELTS: Where did you go in [the house]? Did you go back there and go to sleep
on the washer and dryer over there?
DEFENDANT: Yeah, ’cause he asked ’cause earlier everybody keep talking
about some uh, what’s my sister say, talking about some right there that she’s like ‘I
don’t know what’s going on.’ So, I’m like ‘Shit, I hope the police ain’t still looking
for me ’cause Tina knows where I’m at.’ Tina’s sending ’em into any crib I’m at. ***
I went and I’m not gonna go to jail for no dumb shit. I’m tired of being in jail for
dumb shit.
***
FELTS: Okay. Is there anything that you can think of that we might need to know
about or that can help us try to find her?
DEFENDANT: (sighing)
FELTS: I’m afraid she’s injured somewhere. She’s hurt somewhere and that’s
why I’m trying to find out where she’s at.
DEFENDANT: I don’t know. I wouldn’t even hurt *** Tina. I love Tina too
much. Only thing I do is argue with her. We argue every fucking day. Every fucking
day. I would never hurt Tina. For what? Why would I hurt Tina for?
WILLIAMS: Why would everybody think that?
DEFENDANT: ’Cause that’s all, that’s all the fuck she told ‘He’ll do this. He’ll
do this.’ Well I’m just gonna the way your mouth is. Your mouth is flipper than
momma and I don’t even fuck with my momma. That’s why I stay away from my
momma, that’s why I moved so fucking far. ‘You’re mouth is super flippy,’ I tell her
that 24/7, Tina ‘Your mouth is too fuckin’ flippy. Square it up.’ ***
WILLIAMS: Have you ever hurt a female?
DEFENDANT: Hurt a female? No.
WILLIAMS: I was told you put a female in the hospital. She had a broken nose
and jaw. ***
DEFENDANT: (laughing)
WILLIAMS: I mean, I’m just trying–
DEFENDANT: Okay, wait, wait, wait, wait, wait.
WILLIAMS: I’m just telling you this is the stuff I was hearing out here.
DEFENDANT: This is a fucking joke. This is a fucking joke. Wait a minute.
What’s the female’s name that I’m suppose [sic] to do this on?
WILLIAMS: I can’t even recall what her name is. I’m serious.
DEFENDANT: You got it. Should be on paper.
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WILLIAMS: No, I’m not saying. I was just told that–
DEFENDANT: Well can you call whoever told you that and tell ’em the female
that. Ain’t no female can ever tell you that I broke her, her, her jaw.
***
[Defendant talking about the night before the murder]
WILLIAMS: Were you all drinking and just kicking it?
DEFENDANT: Everybody was drinking and kicking it. Everybody was in the
house kicking it. Everybody except for Boo. Boo the only person that was in the
house that was basically smoking some weed.
WILLIAMS: Okay.
DEFENDANT: Me, her, and Tonda. We was all smoking some little weed and
that’s it.”
¶ 18 Defendant explained his efforts to hide from police on the morning of November 12,
2008, while police were looking for him and Tina’s cell phone. Williams then asked why he
took off his coat:
“DEFENDANT: Yeah, ’cause the police–I didn’t want the police to keep trying
doing. I’m gonna keep flipping clothes. Knowing they know he got on an orange
jacket. Take that orange jacket off. Throw that orange jacket away. You can always
replace that. Ain’t got time to be sitting up in no county jail. I don’t have time to sit in
jail. I’ve been out of jail, out of the penitentiary too long. Straight up. To come back
to jail? No. No.
WILLIAMS: What’s, when did you go to the penitentiary?
DEFENDANT: I went to the penitentiary in ’97.
WILLIAMS: For what?
DEFENDANT: Possession of a firearm.
***
FELTS: Well you’re not going to jail. I told you that man.
DEFENDANT: I know man, that’s how I feel.
FELTS: Well, you’re getting out of here.
DEFENDANT: I’m gonna ride and get me a, I got a fucking gun. Nobody fucking
run up on me and do nothin’ crazy to me.
FELTS: Are you still worried somebody’s gonna do something to you?
DEFENDANT: Hell yeah.
***
DEFENDANT: I’m the prime fucking suspect. I ain’t no fucking dummy. Been
here too fucking long. *** I’m the prime suspect [until] she pop up. This some dumb
ass shit.
FELTS: Now listen, now listen.
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DEFENDANT: I want my girl. Fuck that. I want her to walk through one of those
doors and I’ll be straight. *** When I go outside that door, I got to go get me some
guns. So when n***a’s run up, I’m not gonna go get killed. Man are you fucking
crazy?
FELTS: What do you think her brothers are thinking?
DEFENDANT: Hell yeah, she missing. One of ’em already in this fucking
building. How many people he did told? How many time he did call home? (Crying)
And I’m down here by myself. It’d be different if I was in Chicago where all my
n***rs at. ***
FELTS: You think something happened to her?
DEFENDANT: Man, hell yeah. She ain’t never did no shit like this.
FELTS: Where would she go?
DEFENDANT: I don’t know. *** Not gonna do nothing to my girl. I love her too
much.
FELTS: Ain’t nobody said you did do anything to her.
DEFENDANT: I don’t care. You taking my clothes. I’m not goofy. I done been in
homicide. And if you look at my background, I just beat out fucking attempt murder
when I shot that dude. Man, I’m not playing today. ***
FELTS: [Suggests defendant go look for Tina.]
DEFENDANT: Man, I’m not finna [sic] be walking around. Them n***rs riding
around in cars. I don’t know nothing about they just put a n***a in the hospital. What
are you talking about?
FELTS: Oh, well we’re going to keep trying to look for her.
DEFENDANT: You, you got a gun. You let me carry your gun and give me your
badge, so when they ride up I’m legit. I get called [sic] with this gun what you gonna
do? Lock my black ass up. There go another charge.”
The interview continued while defendant removed his clothes. Defendant continued to
express fear of retribution from Tina’s brothers. He asked police to take him to Chicago “till
this blow over.”
¶ 19 3. Discovery of the Body
¶ 20 Police discovered Tina’s body on November 14, 2008, in a wooded area. Police observed
drag marks near the body.
¶ 21 4. The November 14, 2008, Interview
¶ 22 a. Defendant’s Second Motion In Limine
¶ 23 On December 1, 2011, defendant filed a motion in limine asserting the State sought to
seek introduction of defendant’s November 14, 2008, interview. Defendant argued the
interview included “references to other crimes or bad acts unrelated to the charges,”
including (1) defendant’s “background, and use of guns and not knives”; (2) defendant’s
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reference to “some ‘dude’ that he is possibly into an altercation with or could have an
altercation with”; (3) “[r]eferences to guns”; and (4) a statement he does not kill women but
will “slap” them.
¶ 24 The State argued this motion was untimely, as defense counsel had the interview for three
years, and the interview was relevant for the purpose of “showing absence of mistake or
accident.” The State added it was important to hear the “entirety” of the statement rather than
“piecemealing” things. We note during the discussion, defense counsel pointed out to the
trial court items could be redacted manually, and said “We did it yesterday.”
¶ 25 In ruling on the motion the trial court stated, as follows: “I think because the situation
came up midtrial, it’s a little awkward for the Court, especially considering the first statement
having been already heard by the jurors. So in light of all of that, in light of the fact that I do
find it’s relevant and probative, the issue is whether or not it’s more prejudicial. I think in
light of the situation, that it is not more prejudicial in this case, and it is probative, and it is a
complete statement, so I will allow it in.”
¶ 26 b. The Interview
¶ 27 Before the interview was played for the jury, the trial court admonished the jury as
follows: “Ladies and gentlemen of the jury, portions of the following taped interview of the
Defendant references the Defendant’s conduct other than charged in this case. This evidence
has been received on the issue of claim of accident and may be considered by you only for
that limited purpose.” The interview was played for the jury. We note the full interview is
approximately 2½ hours in length. The typed transcript is 79 pages in length.
¶ 28 The interview began with Williams and Felts explaining police found Tina’s body and
spoke to defendant’s sister. They asked defendant to explain what happened. He stated “I
tried to save her” and admitted he hit her. Defendant explained he and Tina were walking and
talking and then she stopped and fell. He thought she was “faking” and told her to get up. He
then tried to carry her out of the woods but she was “too heavy” and he waited with her body.
He explained “It wasn’t supposed to happen. Everything went wrong. I don’t know what
went wrong, maybe I hit her too hard.” He told police he hit Tina “more than three” times.
¶ 29 The investigators asked why defendant did not previously tell them where Tina was.
Defendant replied he thought she was “hiding out.” He asked the cause of death and police
responded the autopsy was not completed.
“DEFENDANT: Well, can you all stay with me until they, can you all put me
somewhere where I can be safe in this jail? Protective custody? Anything. I do not, I
swear to God, I can’t look at none of her friends. I don’t wanna see nobody. I’m
telling you, you put me in population, I’m gonna fuck one of these Sheriff’s up. I’m
telling you, I’m gonna go all out, I wanna be by myself in a hole. I do not wanna be
around nobody when I’m in this shit until I get downstate. If I’m not, I’m telling you,
I can’t do it. I can’t do it. You take me upstairs right now, I swear to God. I’m gonna
get to fighting motherfucker. They are gonna get me the fuck off that deck every time
they try to put me somewhere. I’ll be fighting and keep fighting until I be by myself.”
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Defendant made approximately 10 similar statements where he threatened to assault someone
until he was placed in the “hole” and removed from the general population.
¶ 30 Williams asked why defendant and Tina were fighting over Tina’s cell phone.
“DEFENDANT: Uh, she steady keep calling this dude. Uh, for the last eight
month. Dude–
WILLIAMS: You know who it is?
DEFENDANT: Yeah. I know Dude.
WILLIAMS: What’s his name?
DEFENDANT: If I see him in jail we gonna tie this boy up. We gonna tie it up.
Reno, that’s his name. Soon as I see him I’m gonna smash him in the door. Ain’t
gonna be no talking. She gone. I’m gonna try my best to break his fucking neck.
WILLIAMS: How come you mad at him?
DEFENDANT: Because the simple fact is my whole life change. My life is
fucking dead. I’m not, I’m not, I’m not even existing right now. I’m not even on the
market. I’m dead, I’m dead. That’s fucked up. I’m gonna die in jail the rest of my life
and I deserve it. I don’t care what nobody says. It’s all because they like provoking
and shit.
WILLIAMS: Who is ‘they’ that [are] provoking you?
DEFENDANT: Oh, Jessica has something to do with it. They all have. They all
say ‘woo woo’ whatever they be mumbling and shit. They was mumbling that night
but shit wasn’t funny ’cause Tanda kept saying ‘Leave that shit alone ***. D[uwon]
calm down.’ I’m like ‘Alright G I’m gonna leave it alone and you all stay sitting
across the table.’ [People were sitting at the table] and Tina was standing at the corner
of the table and they just went on. ‘Yeah, fuck you *** woo woo. Well Dude gonna
do this, Dude gonna do this. I’m gonna call Dude come over there and beat your ass.’
Ain’t that motherfucker gonna come over here and do shit. Alright, watch this, and
that’s when they left. So yeah, of course, I did go grab two knives, some right up on
me. It’s better than me calling saying for some of my guns.”
¶ 31 Williams asked if defendant had any knives when he was arguing with Tina:
“DEFENDANT: I had some, I ain’t gonna use ’em. Them knives for Dude ***
not for her ***. What am I gonna stab her for?”
Williams continued and asked about the night before and defendant replied he grabbed two
knives while everyone was arguing. Williams asked where the knives were. Defendant
replied he did not know, and he “don’t need no knife. You ever look in my background I
don’t use fucking knives. Only thing I use is guns. Use guns, I don’t fuck with knives. I ain’t
got the balls to stab nobody.”
¶ 32 Defendant said he probably hit Tina at least 10 times. He explained he hit her in the ribs
because “I kn[e]w if I hit her in the face I [was] gonna bruise her up.” He explained he tried
to carry Tina out of the woods, and thought she was playing a “joke” on him. He talked about
how long he sat with her:
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“FELTS: You said you sat there till 2:30, 3 o’clock.
DEFENDANT: Man, I sat there damn near 3, 4, or 5 man. ***
FELTS: At that point when she wasn’t moving, you didn’t think.
DEFENDANT: Her heart was still beating all that that’s what I’m saying man. All
that, she just wouldn’t fucking move. I ain’t.
FELTS: So.
DEFENDANT: All the dirt I done. I don’t sit and watch to see nobody fall. I’m
out of there, when we gang banging and shit in the city. I’m not gonna, I’m just gonna
shoot and keep it going. But that right there, oh that was something totally. That
wasn’t right. It wasn’t suppose [sic] to happen. That’s all I can keep saying. It ain’t
suppose to happen, but I deserve to be in jail. To rot in this bitch ***.”
¶ 33 He believed Tina was faking injury, he said he did not believe he hit her hard enough to
injure her and “I’ve hit other people probably I don’t know [how] hard and done worse things
to them, but they always got up and seemed to walk *** away.” He added he “would break a
dude’s jaw quick” but would tell a female to “get out of my face [and] let me be.”
¶ 34 Toward the end of the interview, Williams asked if defendant thought it was all right for
a man to hit a woman. Defendant said “No” and explained he did it because of his “anger.”
Williams asked if women were attracted to defendant’s “calm” persona. He replied:
“I got a good heart. I get my girls anything they want. ***
Anything so they ain’t gotta go ask they [sic] family and all. I handle all that shit.
I got that. *** Just give me a chance, I’m trying to do it. You don’t want me to hide
drugs in your crib. I honor that. You don’t want me to have guns in your house. I
honor that.”
¶ 35 5. The State’s Pathologist’s Testimony
¶ 36 Scott Denton, a forensic pathologist, testified he reviewed the autopsy report. He testified
to bruises on Tina’s knees, thighs, abdomen, chest, neck, and scalp. Her ninth, tenth, and
eleventh ribs were fractured, and both lungs were collapsed. She suffered a “partial
transection” to the liver, which caused internal bleeding in her abdomen. He testified
approximately half a quart of blood was recovered from her abdomen. This was a significant
amount of internal bleeding for a person of Tina’s size. He noted abrasions were on her back
and buttocks consistent with being dragged by her heels.
¶ 37 Denton opined Tina died from multiple blunt force injuries due to an assault. He added
she would have died within minutes of the liver laceration. He did not find evidence of
compressional asphyxia.
¶ 38 6. Defendant’s Statements on November 11, 2008
¶ 39 Brandy Bagwell was with defendant on November 11, 2008, in Petersburg, Illinois. She
testified, “[defendant] was mumbling on a bunch of stuff, saying he thought Tina was
cheatin’ on him, *** and he said that if he ever caught her cheating, he would make her
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watch him beat the guy to death and then beat her until she couldn’t move, and then sit and
wait for the police to come.”
¶ 40 7. Defendant’s Former Girlfriends’ Testimony
¶ 41 Before this evidence, the trial court admonished the jury with Illinois Pattern Jury
Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th), including the
admonishment it was for the jury to decide “what weight should be given to this evidence on
the issue of accident.”
¶ 42 Surrebea Tramble testified, on June 12, 2008, defendant came to her house where they
“got into an altercation.” Defendant proceeded to punch Tramble in her face and then pointed
a rifle at her head and told her to lie down and not speak or defendant was going to kill her.
Tramble was able to flee.
¶ 43 Robin Freemon testified, on June 3, 2008, defendant was sleeping on a couch at her
residence. Freemon entered the residence with her six-month-old child and woke defendant.
He became “irate” and they engaged in a “verbal altercation.” Defendant grabbed Freemon’s
face and held it for “two, three minutes.” She testified he told her “he would ‘F’ me up, and
that I didn’t know who I was messin’ with.”
¶ 44 8. Defendant’s Evidence
¶ 45 Jessica Bowman, a forensic pathologist, testified she performed the autopsy on Tina. She
opined the liver could have been further injured if Tina’s body was dragged, carried, or
picked up. She opined the cause of death was a combination of compressional asphyxia and
blunt force trauma.
¶ 46 Shaku Teas, a consulting forensic pathologist, testified she reviewed Bowman’s autopsy
report and Denton’s report. She testified the abdominal injuries could have been caused by
dragging. She opined the liver laceration was not life-threatening. Teas testified the injuries
to the liver and collapsed left lung were consistent with two strikes to the rib area. She did
not see evidence of compressional asphyxiation.
¶ 47 9. Jury Instructions and Verdict
¶ 48 Defendant tendered an involuntary manslaughter instruction. After argument, the trial
court noted defendant’s evidence supported his theory of the case–Tina’s injuries were
accidentally aggravated by his attempts to move her. The court allowed the instruction. See
IPI Criminal 4th Nos. 7.07 (definition of involuntary manslaughter) and 7.08 (issues in
involuntary manslaughter). The court again admonished the jury with IPI Criminal 4th No.
3.14.
¶ 49 The jury found defendant guilty of first degree murder.
¶ 50 C. Sentencing and Posttrial Motions
¶ 51 In December 2011, defendant filed a motion for a new trial. Defendant argued the trial
court erred in denying his motion in limine and permitting evidence he “had hit women in the
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past.” Defendant also argued the court erred in denying his motion in limine filed during trial
on the basis it was not timely filed. The trial court denied the motion.
¶ 52 In March 2012, the trial court held a sentencing hearing. The presentencing investigation
report (PSI), showed a 1997 conviction for possession of a firearm, and a 1998 conviction for
unlawful use of a firearm by a felon. The PSI stated defendant was charged in Cook County
case No. 97-CR-1630402 with attempt (murder) and found not guilty in 1998. The court
sentenced defendant to 55 years’ imprisonment.
¶ 53 In March 2012, defendant filed a motion to reconsider sentence. The trial court denied the
motion.
¶ 54 This appeal followed.
¶ 55 II. ANALYSIS
¶ 56 Defendant argues he was denied a fair trial because the trial court improperly allowed
other-crimes evidence and the jury was allowed to infer he had a propensity to commit crime.
Defendant argues the court erred in admitting (1) unredacted police interviews from
November 13, 2008, and November 14, 2008; (2) statements regarding defendant’s use of
knives and guns; and (3) the testimony of two women who claimed defendant previously
assaulted them. We address defendant’s contentions in turn.
¶ 57 A. Review of Admission of Other-Crimes Evidence
¶ 58 “It is well settled under the common law that evidence of other crimes is admissible if
relevant for any purpose other than to show a defendant’s propensity to commit crimes.”
People v. Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d 1119. Permissible purposes for
other-crimes evidence include motive, intent, identity, lack of mistake, and modus operandi.
Id. Other-crimes evidence is admissible if it is part of a continuing narrative of the event
giving rise to the offense, intertwined with the charged offense, or explains an aspect of the
charge which would otherwise be implausible or inexplicable. People v. Slater, 393 Ill. App.
3d 977, 992-93, 924 N.E.2d 1039, 1052 (2009); People v. Young, 381 Ill. App. 3d 595,
601-02, 887 N.E.2d 649, 655 (2008). “When facts concerning uncharged criminal conduct
are all part of a continuing narrative which concerns the circumstances attending the entire
transaction, they do not concern separate, distinct, and unconnected crimes.” People v.
Collette, 217 Ill. App. 3d 465, 472, 577 N.E.2d 550, 555 (1991).
¶ 59 Where other-crimes evidence is offered for a permissible purpose, such evidence will not
be admitted if its prejudicial impact outweighs its probative value. Chapman, 2012 IL
111896, ¶ 19, 965 N.E.2d 1119; see also People v. Dabbs, 239 Ill. 2d 277, 289-90, 940
N.E.2d 1088, 1096-97 (2010) (elaborating other-crimes evidence may also be excluded if
irrelevant, or offered in the form of a hearsay statement not meeting an exception to the
hearsay rule). The admissibility of other-crimes evidence is within the sound discretion of the
trial court and will not be disturbed absent a clear abuse of that discretion. Chapman, 2012 IL
111896, ¶ 19, 965 N.E.2d 1119. To necessitate reversal, the other-crimes evidence “must
have been a material factor in the defendant’s conviction such that, without the evidence, the
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verdict likely would have been different.” People v. Hall, 194 Ill. 2d 305, 339, 743 N.E.2d
521, 541 (2000). In other words, the evidence “must be so prejudicial that the defendant is
denied a fair trial.” People v. Pelo, 404 Ill. App. 3d 839, 865, 942 N.E.2d 463, 486 (2010).
¶ 60 B. Defendant’s Police Interviews
¶ 61 Defendant contends his two recorded interviews contained a “copious amount of prior
bad act evidence” and their admission resulted in an unfair trial. He asserts these interviews
were introduced without a motion in limine challenge or timely objection at trial, and his trial
counsel was ineffective for failing to file such a motion or object at trial. The State
thoroughly analyzes the complained-of statements in its brief and argues these statements
must not be considered in isolation, and when taken in context the statements are not
inadmissible or prejudicial other-crimes evidence. We agree with the State.
¶ 62 1. Defendant’s November 13, 2008, Interview
¶ 63 Defendant asserts his November 13, 2008, interview is a “salacious biography,” which
included the following statements: (1) “a discussion about his capacity for violence”; (2) he
liked to fight with police; (3) he had a prior arrest for a “domestic”; (4) he previously broke a
woman’s nose and jaw; (5) he had a 1997 felony conviction for unlawful use of a weapon;
(6) he had been “going to jail all [his] life” for “dumb shit”; (7) he wanted to obtain a gun;
(8) he smoked marijuana; (9) he had been “in homicide” several times; and (10) he “beat” an
attempt (murder) charge. Defendant does not argue the State expressly argued these
statements showed defendant’s propensity to commit crime. Rather, he contends this
evidence caused the jury to have “a bleak opinion” of him.
¶ 64 We are not persuaded by defendant’s argument the trial court improperly admitted the
November 13, 2008, interview. Defendant concedes, he did not object to the use of this
interview before the trial court. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124,
1130 (1988) (“Both a trial objection and a written post-trial motion raising the issue are
required for alleged errors that could have been raised during trial.” (Emphases in original.)).
He has forfeited his claim.
¶ 65 In light of this forfeiture, defendant argues counsel was ineffective for permitting the jury
to hear the unredacted interview. A claim of ineffective assistance of counsel is analyzed
under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
“Under this test, a defendant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness, and a reasonable probability exists that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
People v. Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. In Henderson, our supreme
court clarified where an ineffective-assistance-of-counsel claim is based on trial counsel’s
failure to file a suppression motion, a defendant must demonstrate the unargued motion is
“meritorious” and “a reasonable probability exists that the trial outcome would have been
different had the evidence been suppressed.” Id. ¶ 15, 989 N.E.2d 192. Before addressing the
merits of defendant’s argument, our review of the record reflects the State fast-forwarded
through two parts of the interview. The record does not indicate what sections were not
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published to the jury. Defendant bears the burden of providing a record sufficient to support
his claim, and any doubts arising from the incompleteness of the record will be resolved
against him. See People v. Lopez, 229 Ill. 2d 322, 344, 892 N.E.2d 1047, 1060 (2008); see
also People v. Bew, 228 Ill. 2d 122, 134, 886 N.E.2d 1002, 1009 (2008) (claims of ineffective
assistance of counsel where the record on direct appeal is insufficient to support a claim of
ineffective assistance of counsel are preferably brought on collateral review).
¶ 66 Turning to the merits, defendant’s contentions are unpersuasive. Defendant has not
identified a single instance where the State explicitly used any of these complained-of
statements to argue he committed the murder because he has the propensity to commit crime.
He attempts to present his statements out of context and in isolation in order to make many of
the statements appear prejudicial. We have provided lengthy excerpts to place these
complained-of statements in context. As the State argued at trial, there is a significant interest
in not presenting police interviews in a “piecemeal” fashion. Context is paramount as it can
explain the logic of the interview. Here, the context includes the fact the interview occurred
the day after Tina’s disappearance, before police found her body, and defendant continually
denied knowing Tina’s whereabouts. However, defendant repeatedly referred to himself as
the “prime suspect” and exhibited fear of retribution for Tina’s disappearance–both
indicative of defendant’s guilty conscience. This is also reflected in his statements about
previously being in “homicide” and having “beat” a murder charge. When taken in context,
these are exhibitions of his belief the police were collecting evidence against him and he was
the “prime suspect.” Defendant knows where the investigation is headed–he knows Tina is
dead. Defendant’s state of mind is apparent in his continued paranoia about what people
might think. Several times he states he wants to obtain a gun to protect himself from
people–primarily Tina’s relatives–who might believe he did something to Tina.
¶ 67 As the context indicates, defendant is scared of what might happen to him when others
find out Tina is dead. Several of the complained-of statements go to the events preceding
Tina’s disappearance and the police investigation. See People v. Young, 118 Ill. App. 3d 803,
808, 455 N.E.2d 845, 850 (1983) (continuing-narrative exception can apply to include
statements relevant to the police investigation or which explain the circumstances
surrounding defendant’s arrest). This includes defendant’s reference to “fighting” the police
(which was actually an accusation of police brutality), his admission he smoked marijuana
the night before the murder (recounting the argument leading to him taking her cell phone),
and his references to a prior conviction (made in the course of explaining his attempts to flee
from police). Defendant’s statements about his “capacity for violence” and history of
domestic battery are relevant in light of his later claim he mistakenly caused Tina’s death.
Further, the statement about defendant previously breaking a woman’s nose and jaw is
actually a denial any such incident occurred and is relevant to the police investigation as it
shows defendant lying to police investigators (claiming he never hurt a female) the day after
defendant killed Tina.
Defendant’s attempt to misconstrue his own statements–which are often boasts, lies, or
fears–as impermissible other-crimes evidence is unpersuasive. The trial court did not abuse
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its discretion by permitting the jury to hear portions of this interview.
¶ 68 2. Defendant’s November 14, 2008, Interview
¶ 69 Defendant argues his November 14, 2008, interview contained impermissible
other-crimes evidence which “further fueled [the jury’s] contempt.” He asserts the following
statements were improper: (1) his “violent threats” against inmates and law enforcement; (2)
he would need to carry a gun for protection if he was in public; (3) he had previously been in
the Chicago jail; (4) he “would break a dude’s jaw quick” but would not fight a woman; (5)
he was involved in a gang shooting and was able to “keep it going”; (6) he smoked an ounce
of marijuana and other drugs the night before his interview; and (7) he “kept drugs and guns
in the houses of his love interests unless they requested that he not do so.”
¶ 70 Defendant’s contentions about the second interview are unpersuasive. Defendant’s
reliance on People v. Jackson, 399 Ill. App. 3d 314, 926 N.E.2d 786 (2010), is misplaced. In
Jackson, the State argued Jackson murdered his aunt to support his drug use, but the State did
not present preliminary evidence about Jackson’s drug habit or financial condition.
Therefore, the evidence was only relevant to show Jackson’s propensity to commit crime. Id.
at 321, 926 N.E.2d at 793. The First District noted the evidence of Jackson’s guilt was not
overwhelming, there was no confession, and no evidence connected Jackson to the murder
weapon. Id., 926 N.E.2d at 792. This case is very different.
¶ 71 The interview defendant is complaining about being prejudicial is his confession. This is
highly probative and, again, there is a significant interest in not presenting this evidence
piecemeal to the jury. A second significant difference is the State did not offer this interview
for the purpose of showing motive, but to show defendant’s admission of guilt, explanation
of the events, and for absence of mistake.
¶ 72 In reviewing the complained-of statements, context is paramount to understanding the
statements–which are part of a 2½-hour interview. Defendant’s “violent threats” toward other
inmates and law enforcement and statements about needing a gun are continuing expressions
of his fear of retribution from Tina’s relatives or friends. He wants to be protected and will
do whatever he needs to do to be placed in isolation. Defendant’s statement about breaking
someone’s jaw is relevant as it is part of his explanation of how hard he hit Tina and why he
believed she was faking injury. He did not hit Tina as hard as he hit other people and those
people walked away. This goes directly to whether he was aware his force would cause
serious bodily harm to Tina. His statements about not fighting with women–which contrast to
his admission he struck Tina–are relevant to his contention of mistake. Defendant’s selective
review of the interview is apparent in his presentation of the statement about being in a gang
shooting. Taken in context, defendant’s statement is an explanation of his actions, not a
statement about being in a gang shooting. While defendant uses the terms “gang banging”
and “shoot and keep it going,” he is explaining the effect Tina’s death had on him and why
he stayed with her body. Defendant’s statements about drug use the night before the
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interview included the statement he sought to “ease [his] mind” by smoking marijuana. See
People v. Thompson, 2013 IL App (1st) 113105, ¶ 103 (distinguishing Jackson and
concluding evidence of the defendant’s drug use could be admitted to provide a narrative of
the events before the murder). Defendant misrepresents his statement about leaving drugs
and guns at his paramours’ residences. This statement is actually his attempt to portray
himself in a positive light as a caring boyfriend.
¶ 73 3. Defendant’s Instruction Argument Is Troubling
¶ 74 Defendant’s contention the jury instructions were “insufficient” is troubling. Defendant
theorizes “[i]t is impossible to suppose that not one juror yielded to the irresistible temptation
to consider [his] prior bad acts as evidence that he committed murder.” Contrary to
defendant’s assertions, a limiting instruction reduces the prejudice created by admitting
other-crimes evidence. Young, 381 Ill. App. 3d at 601, 887 N.E.2d at 654. As our supreme
court has stated, “[f]aith in the ability of a properly instructed jury to separate issues and
reach a correct result is the cornerstone of the jury system.” People v. Illgen, 145 Ill. 2d 353,
376, 583 N.E.2d 515, 525 (1991). We do not share defendant’s lack of faith.
¶ 75 4. Defendant Cannot Show Prejudice
¶ 76 As we have shown, the context of these complained-of statements shows these statements
are relevant to defendant’s explanation Tina’s death was an accident or merely innocent
statements when placed in context. Further, the trial court instructed the jury in accordance
with IPI Criminal 4th No. 3.14 to only consider other-conduct evidence for the purpose of
accident and absence of mistake. This instruction cured any prejudice arising from admitting
other-crimes evidence. Young, 381 Ill. App. 3d at 601, 887 N.E.2d at 654.
¶ 77 C. Defendant’s Statements Referencing Guns and Knives
¶ 78 Defendant argues his statements regarding the use of guns and knives during his
November 14, 2008, interview were improperly admitted. He argues these statements were
not relevant “to whether he committed involuntary manslaughter or murder.” He adds “one
black sharpie marker and ten minutes was all the court and the litigants arguably needed to
ensure [defendant] was not prejudiced by the introduction of his irrelevant statements.” The
State responds these statements are about the events the night before the murder and are
permissible under the continuing-narrative exception. We agree with the State.
¶ 79 Defendant’s statements about guns and knives are part of the narrative of what occurred
the night before the murder. See Young, 381 Ill. App. 3d at 601-02, 887 N.E.2d at 655
(“Other-crimes evidence is also admissible as part of a continuing narrative of the event
giving rise to the offense.”). An argument arose at the party, defendant grabbed two knives to
protect himself if “Dude”–the person he suspected Tina was involved with–appeared. The
party broke up and defendant left with the knives and Tina’s phone. He denied obtaining the
knives to injure Tina; they were for his protection. When viewed in context, these statements
assist in showing the argument he and Tina were engaged in when he struck her was actually
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an argument continuing from several hours before. Without knowing about the arguments,
the beating might be viewed by the jury as if defendant became inexplicably angry with Tina
and beat her. See Slater, 393 Ill. App. 3d at 993, 924 N.E.2d at 1052. The trial court did not
abuse its discretion.
¶ 80 Defendant’s contention these statements could have been redacted in “ten minutes”
ignores two important considerations. As set forth above, these complained-of comments are
interwoven into the narrative of the events preceding the murder and redacting them would
create omissions and possible confusion. While a marker would work on the typed transcript,
it would have no effect on the video played for the jury. As the trial court admonished the
jury, the video, not the transcript, is the evidence.
¶ 81 D. Defendant’s Previous Girlfriends’ Testimony
¶ 82 Defendant asserts the trial court erred by permitting Freemon’s and Tramble’s testimony
about defendant’s violence toward them. Defendant asserts (1) the trial court’s analysis was
“fatally flawed” because it did not explicitly balance the probative nature of the evidence
against its prejudicial effect; (2) the evidence was not probative because it had “no bearing”
on whether defendant “knew his action would cause death or great bodily harm”; and (3)
“[h]ad the court properly weighed the probative value of this evidence against its prejudicial
effect,” the court would have granted defendant’s motion to exclude the testimony. We
disagree.
¶ 83 Defendant relies on People v. Boyd, 366 Ill. App. 3d 84, 851 N.E.2d 827 (2006), to assert
he was denied a fair trial because “the record in this case does not demonstrate that the [trial]
court considered whether admission of this evidence would constitute unfair prejudice” and
this error denied him a fair trial. The record in Boyd did not show the trial court balanced the
uncharged other-crimes evidence’s probative relevance against its prejudice. Id. at 94, 851
N.E.2d at 838. While the First District stated this “was error,” it concluded “[d]espite the trial
court’s failure to conduct an explicit balancing test,” it was harmless error because of the
“striking similarities” between the charged and uncharged conduct. Id. at 94-95, 851 N.E.2d
at 838.
¶ 84 Here, the trial court noted this evidence could “dirty up the trial” but it was relevant to
prove absence of mistake. The record reflects the court weighed the potential prejudice of
this evidence against its probative value. While the trial court’s ruling might not rise to a
detailed articulation of the evidence’s potential prejudice, it does reflect the court engaged in
a “meaningful assessment of the probative value versus the prejudicial impact of the
evidence” (People v. Donoho, 204 Ill. 2d 159, 186, 788 N.E.2d 707, 724 (2003)). This court
reviews the trial court’s decision for an abuse of discretion, not to reweigh the evidence.
¶ 85 A defendant’s prior acts of violence against the victim, or a person within the same class
of the victim, are admissible to negate a claim the victim’s injury was accidental. Illgen, 145
Ill. 2d at 367, 583 N.E.2d at 520-21. “Where *** evidence of the defendant’s involvement in
another offense is offered to prove the absence of an innocent frame of mind or the presence
of criminal intent, mere general areas of similarity will suffice.” Id. at 373, 583 N.E.2d at
523. Defendant asserted he did not intend to kill Tina when he struck her and her injuries
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were accidentally aggravated when he attempted to pick her up and carry her out of the
secluded area. As such, his involvement in previous acts of domestic violence were relevant
to prove absence of mistake. As the supreme court announced in Illgen, this evidence must
only share “mere general areas of similarity” to be admissible. Id. As the State points out, the
evidence presented at trial showed defendant, the night before the murder, told others if he
ever caught Tina cheating he would beat the man to death and then beat Tina until she could
not move and then wait for the police. This is similar to the testimony of defendant’s
previous girlfriends, who testified defendant could be quick to anger and would inflict
physical harm on them. One girlfriend testified he became angry because she woke him
while he slept on her couch. The other girlfriend testified he threatened to kill her with a rifle
he held pointed to her head. See People v. Nash, 2013 IL App (1st) 113366, ¶ 23, 993 N.E.2d
56 (noting similarity of the defendant’s previous attacks on his wife). This evidence shares
more than a “general area” of similarity to the evidence defendant was angry with
Tina–whether over suspecting her of cheating or otherwise–and went with her into a secluded
area and beat her to death.
¶ 86 Defendant’s suggestion the evidence of his conduct with other girlfriends was of reduced
probative value because it occurred in June 2008, approximately five months before the
murder, is unpersuasive. See Illgen, 145 Ill. 2d at 370, 583 N.E.2d at 522 (“[T]he
admissibility of other-crimes evidence should not, and indeed cannot, be controlled solely by
the number of years that have elapsed between the prior offense and the crime charged.”);
Donoho, 204 Ill. 2d at 184, 788 N.E.2d at 722 (affirming where the other-crimes evidence
occurred 12 to 15 years before the conduct at issue and noting other cases affirming where
evidence was over 20 years old). We expressly reject defendant’s contention the prejudicial
nature of this evidence was not “reduced” by the limiting jury instruction. The trial court did
not abuse its discretion in permitting this testimony.
¶ 87 III. CONCLUSION
¶ 88 We affirm the trial court’s judgment. We award the State its $50 statutory assessment
against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2012).
¶ 89 Affirmed.
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