People v. Kelly , 2023 IL App (1st) 231967-U ( 2023 )

2023 IL App (1st) 231967-USECOND DIVISION
December 29, 2023
No. 1-23-1967B
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 00 CR 9355
)
IVY KELLY, ) Honorable
) Michele M. Pitman,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justice Cobbs concurs in the judgment.
Justice Ellis specially concurs in the judgment.
ORDER
¶1 Held: We affirm the trial court’s decision to grant the State’s petition for pretrial
detention. Defendant has not demonstrated that the trial court abused its discretion
in evaluating the evidence under the relevant statutory framework when it granted
the State’s petition for pretrial detention.
¶2 Defendant Ivy Kelly filed this appeal under the Pretrial Fairness Act. The Pretrial
Fairness Act is a newly passed law that makes up a portion of the two public acts that amended
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Article 110 of the Code of Criminal Procedure (725 ILCS 5/110-1 et seq.). See P.A. 101-652 and
P.A. 102-1104. Illinois Supreme Court Rule 604 allows a defendant to immediately appeal an
order denying pretrial release to a defendant. Ill. S. Ct. R. 604(h)(1)(iii) (eff. Sept. 18, 2023). In
this case, defendant filed a motion for pretrial release and the State filed a petition for defendant
to be detained until trial. The circuit court denied defendant’s motion and ordered him to be held
without bail pending trial or, in other words, granted the State’s petition for pretrial detention.
Defendant now appeals the circuit court’s order that he be detained until trial without any
conditions for pretrial release. We affirm.
¶3 BACKGROUND
¶4 Defendant was convicted of first-degree murder in a bench trial held in 2003. He was
sentenced to 30 years in prison. Defendant filed a direct appeal, and we affirmed his conviction.
People v. Kelly, No. 1–03–2990 (2005) (unpublished order under Supreme Court Rule 23).
Defendant later filed a petition for relief under the Post–Conviction Hearing Act (725 ILCS
5/122–1 et seq. (West 2022)). The circuit court dismissed defendant’s postconviction petition,
but on appeal, we reversed the circuit court’s dismissal of the petition and remanded the matter
for further proceedings. People v. Kelly, 2014 IL App (1st) 121069-U, ¶ 66 (unpublished order
under Supreme Court Rule 23). On remand, when the postconviction proceedings continued
under a new judge who had replaced the judge who presided over the trial, the circuit court
granted defendant’s petition for postconviction relief. The circuit court vacated defendant’s
conviction and ordered a new trial.
¶5 The principal reason defendant was granted a new trial was because one of the State’s
key witnesses at defendant’s trial was working as an FBI informant, and defense counsel did not
cross-examine the witness about his motives for testifying. Defense counsel knew or had reason
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to know the witness was working as an informant, but failed to cross-examine the witness on the
issue which certainly could have served to discredit the witness or cast some doubt on the
testimony. When ruling on the postconviction petition, the circuit court indicated that its review
of the record indicated that the case was “not a very strong case for the [S]tate” because there
was no physical evidence and the witnesses against defendant were not consistent in their
testimony.
¶6 The facts of the underlying crime and conviction are set forth more fully in our orders
disposing of previous appeals in this case. See Kelly, No. 1–03–2990 (2005) (unpublished order
under Supreme Court Rule 23); Kelly, 2014 IL App (1st) 121069-U, ¶ 66 (unpublished order
under Supreme Court Rule 23). We recite only some of the facts here, particularly those facts
that are pertinent to the issue of defendant’s pretrial release.
¶7 Defendant’s conviction arose from the shooting death of Joseph Ward on December 10,
1999. Defendant and the victim were friends who sold drugs together, along with defendant’s co-
offender in this case, Demetrius Hampton, and other individuals including Christopher Lacy.
Lacy and another individual, Paula Scott, told investigators that they were eyewitnesses to the
murder. Both Lacy and Scott gave detailed written statements to investigators that constituted
fairly damning testimony against defendant if it was to be believed. In her written statement,
Scott indicated that she was standing outside of her home talking to the victim when the shooting
occurred. Scott saw Lacy standing across the street talking to two girls. Scott witnessed
defendant and Hampton, both of whom she knew, approaching the victim. Scott then saw
defendant and Hampton “both pull[] out guns and start[] shooting at [the victim],” who was
unarmed. In his written statement, Lacy indicated that he was standing near a parked car talking
to two girls while the victim was across the street with Scott. Lacy saw defendant and Hampton
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approach and talk to the victim and Scott. A couple minutes later, Lacy saw Hampton point a
gun at the victim. The victim turned to run, and defendant and Hampton started firing shots at the
victim.
¶8 Defendant’s co-defendant, Demetrius Hampton, gave a written confession to
investigators. Hampton’s account of the murder tracks with the accounts given by Lacy and
Scott. Hampton told investigators that defendant lost some of the victim’s drugs. Hampton stated
that, on the night of the murder, defendant gave him a gun and defendant himself also had a gun
which was in his waistband. Defendant and Hampton drove to the victim’s location and
defendant and the victim were having a conversation. Defendant then pulled the gun out of his
waistband and the victim put his hands up and then started to try to run away. Hampton then saw
defendant shoot the victim with his gun. After defendant had fired two shots, Hampton then also
shot at the victim.
¶9 When Lacy testified before a grand jury and when he testified at trial, he stated that, a
week after the murder, defendant held two guns to his head and said “[i]f you ever tell anybody,
I'm going to kill you. That’s on my mama. I’ll kill you." Lacy also testified that defendant’s
girlfriend approached him and asked him to sign an affidavit that defendant did not shoot the
victim. Scott told investigators that, after the victim’s death, defendant came to her house and
told her not to talk to the police. Defendant admitted at trial that he pointed a gun at Lacy, but
defendant said he did so because he wanted Lacy to tell him who the real killers were.
¶ 10 Scott repudiated most of her written statement when she testified at trial. Lacy repudiated
some key parts of his written statement when he testified at trial. Both eyewitnesses said at trial
that they were not sure who the shooters were. Defendant was nonetheless found guilty of first-
degree murder.
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¶ 11 The circuit court concluded that defendant did not receive constitutionally effective
counsel due to counsel’s failure to use the “certainly relevant” impeachment evidence that a key
witness against defendant was working for the FBI at the time of giving the testimony in this
case.
¶ 12 While awaiting retrial, the State offered defendant a plea deal to release him for time
considered served in exchange for a guilty plea. Defendant rejected the offer, maintaining his
innocence and he filed a motion for pretrial release. The State filed a petition for pretrial
detention and then filed an amended petition for pretrial detention. Defendant argued that the
willingness of the State to release him for time considered served is evidence the State does not
consider him a threat and he should be released. On those competing claims for relief, the circuit
court held a pretrial detention hearing. At the conclusion of the pretrial detention hearing, the
circuit court ordered defendant held without bail pending trial.
¶ 13 ANALYSIS
¶ 14 The Code of Criminal Procedure, as recently amended, provides that “all persons charged
with an offense shall be eligible for pretrial release before conviction.” 725 ILCS 5/110-2(a) (eff.
Jan. 1, 2023). Under the statute, it is now “presumed that a defendant is entitled to release on
personal recognizance” with the stipulation that the defendant must attend all required court
proceedings, not commit any criminal offenses while on pretrial release, and comply with all
other terms of the pretrial release. Id. A defendant nonetheless may be denied pretrial release if
the defendant “presents a real and present threat to the safety of any person or persons or the
community.” 725 ILCS 5/110-2(c) (eff. Jan. 1, 2023) accord 725 ILCS 5/110-6.1(a)(1.5) (eff.
Jan. 1, 2023) (pretrial release may be denied if such release “poses a real and present threat to
the safety of any person or persons or the community, based on the specific articulable facts of
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the case.”). Moreover, a defendant may be denied pretrial release if no condition of the release
can reasonably ensure: (1) the defendant’s appearance in court; (2) the protection of another
person or the community; (3) that the defendant will not attempt or obstruct the criminal justice
process; and (4) that the defendant will comply with all conditions of release. Id.; see also 725
ILCS 5/110-6.1 (eff. Jan. 1, 2023) (delineating the circumstances under which a defendant may
be properly denied pretrial release).
¶ 15 The burden is on the State at a pretrial detention hearing to demonstrate by clear and
convincing evidence that the defendant should be denied pretrial release. 725 ILCS 5/110-6.1(e)
(eff. Jan. 1, 2023). We review the circuit court’s decision to deny pretrial release for an abuse of
discretion. People v. Jones, 2023 IL App (4th) 230837, ¶¶ 26-30. An abuse of discretion occurs
only when the circuit court’s decision is arbitrary, fanciful, or unreasonable to the degree that no
reasonable person would agree with it. People v. Colon, 2018 IL App (1st) 160120, ¶ 12. When
we review the circuit court’s evaluation of evidence for an abuse of discretion, we will not
substitute our own judgment for the trier of fact on issues regarding the weight of the evidence or
the credibility of the witnesses. People v. Inman, 2023 IL App (4th) 230864, ¶ 11.
¶ 16 At the pretrial detention hearing in this case, the State represented that it has an
eyewitness to the murder who is prepared to testify against defendant upon retrial. The State
presented evidence that the co-defendant in the case confessed to committing the murder along
with defendant, and the co-defendant was later convicted by a jury of first-degree murder. The
co-defendant gave a statement that squares with the eyewitness statements given around the time
of the crime on key, detailed facts tending to show defendant’s guilt. The State also highlighted
the eyewitness testimony it presented at trial, which it claims is strong and supports denying
pretrial release to defendant.
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¶ 17 In addition, the State highlighted that one of the trial witnesses, the one who was working
as an FBI informant, testified at trial and previously gave statements that defendant approached
him a week after the murder, and defendant held two guns to the witness’s head. Defendant told
the witness that if the witness ever told anybody about the murder, defendant would kill him. The
exact quote from the witness’s testimony was that defendant said, “[i]f you ever tell anybody,
I’m going to kill you. That’s on my mama. I’ll kill you.” The witness also testified that
defendant’s girlfriend approached the witness at a later point and asked the witness to sign an
affidavit indicating that defendant did not commit the murder. The State pointed out that
defendant was previously convicted of aggravated discharge of a firearm and sentenced to the
Illinois Department of Corrections before subsequently being convicted and sentenced in this
case.
¶ 18 The circuit court found that defendant was a real and present threat to another person and
the community as well as the criminal justice process because of the evidence of the crime
committed and because defendant threatened a witness. The court indicated that it reviewed the
criteria to consider when making a determination of dangerousness as set forth in the Code of
Criminal Procedure. See 725 ILCS 5/110-6.1(g). The circuit court found “specific articulable
facts” in the record indicating defendant was a real and present threat to persons or the
community.
“There are witnesses who have testified previously in this matter and, from what I
can gather from the evidence, will testify that the Defendant was the person who
shot and killed the deceased person in this matter. There are statements made by
the Defendant. There was a threat to [an eyewitness] concerning shooting or
killing him if he spoke of this incident.”
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The court then concluded that “no condition or combination of conditions of pretrial release can
mitigate the real and present threat posed by the Defendant…” and “no less restrictive conditions
would avoid the real and present threat posed by the Defendant.”
¶ 19 The General Assembly has provided Illinois courts with a non-exhaustive list of factors
to consider when making a determination as to whether a defendant poses a real and present
threat for purposes of denying the defendant pretrial release under sections 110-2 and 110-6.1 of
the Illinois Code of Criminal Procedure.
“The court may, in determining whether the defendant poses a real and present
threat to the safety of any person or persons or the community, based on the
specific articulable facts of the case, consider, but shall not be limited to, evidence
or testimony concerning:
(1) The nature and circumstances of any offense charged, including whether the
offense is a crime of violence, involving a weapon, or a sex offense.
(2) The history and characteristics of the defendant including:
(A) Any evidence of the defendant’s prior criminal history indicative of violent,
abusive or assaultive behavior, or lack of such behavior. Such evidence may
include testimony or documents received in juvenile proceedings, criminal, quasi-
criminal, civil commitment, domestic relations, or other proceedings.
(B) Any evidence of the defendant’s psychological, psychiatric or other similar
social history which tends to indicate a violent, abusive, or assaultive nature, or
lack of any such history.
(3) The identity of any person or persons to whose safety the defendant is
believed to pose a threat, and the nature of the threat.
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(4) Any statements made by, or attributed to the defendant, together with the
circumstances surrounding them.
(5) The age and physical condition of the defendant.
(6) The age and physical condition of any victim or complaining witness.
(7) Whether the defendant is known to possess or have access to any weapon or
weapons.
(8) Whether, at the time of the current offense or any other offense or arrest, the
defendant was on probation, parole, aftercare release, mandatory supervised
release or other release from custody pending trial, sentencing, appeal or
completion of sentence for an offense under federal or state law.
(9) Any other factors, including those listed in Section 110-5 of this Article
deemed by the court to have a reasonable bearing upon the defendant’s propensity
or reputation for violent, abusive, or assaultive behavior, or lack of such
behavior.” 725 ILCS 5/110-6.1(g).
The circuit court weighed the evidence presented by the parties in light of those criteria and
determined that defendant was subject to being denied any pretrial release.
¶ 20 Defendant argues on appeal, as he did in the circuit court, that he is entitled to pretrial
release under the new statutory scheme. Defendant argues that the circuit court abused its
discretion when it denied his motion for pretrial release because the case against him is weak, as
the circuit court itself indicated when it granted him relief on his postconviction petition.
Defendant explains that he was subject to a $1 million bond before his first trial but now is
subject to being held without bail. Defendant further explains that, prior to him being granted a
new trial, the State’s Attorney’s Office offered him a plea deal under which he would be released
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from prison for time served. He concludes that, obviously, the State does not consider him a risk
if it was willing to release him. Defendant points out that he has served 23 years of his 30-year
sentence and has not had disciplinary problems in prison and has instead been a “model
prisoner.” Defendant also states that his co-defendant does not stand by the confession and
claims that it was coerced, and that the co-defendant continues to maintain his own innocence.
Defendant further explains that the witness who was an FBI informant cannot be believed
because the witness’s statements have morphed over the years.
¶ 21 The State presented evidence that defendant held a gun to the head of a witness in this
case and ordered the witness not to implicate defendant or defendant would kill him. The State
also presented evidence that defendant attempted to use a third party, his girlfriend, to fabricate
evidence or to persuade the witness into giving a statement favorable to defendant that would
have been different than the statement the witness had previously provided to the State
implicating defendant. Defendant admits that he held a gun to the witness, but he maintains that
he did so for a different purpose. There was testimony at trial that defendant also approached the
other eyewitness a week after the shooting and told her not to cooperate with the police. A
review of the evidence in light of a consideration of the factors set forth in section 110-6.1(g)
reveals that defendant meets many of the criteria that would militate in favor of pretrial
detention.
¶ 22 Further, the co-defendant here confessed to the murder and did so in a manner consistent
with the eyewitness’s statements on key facts. In the co-defendant’s statement, the co-defendant
implicates defendant in the murder and illustrates defendant’s more sizable role in the offense
and defendant’s supposed stronger culpability for bringing about the murder. The evidence
against defendant was corroborated by multiple different witnesses and from varying viewpoints.
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Based on defendant’s threat to an eyewitness, his previous attempts to manipulate the evidence
against him, defendant’s criminal history and, with a new trial pending, we cannot say no
reasonable person would agree with the trial court’s conclusion that defendant poses a threat to
the safety of a person or the community or a threat to obstruct or attempt to obstruct the criminal
justice process. See 725 ILCS 5/110-6.1(g); see also, e.g., People v. Feazelle, 2023 IL App (2d)
230397-U, ¶ 14 (unpublished order under Supreme Court Rule 23) (affirming the order of
pretrial detention where, among other things, the defendant confronted the witnesses at a time
after they witnessed him committing the offense, suggesting that the defendant “was not easily
deterred from his violent behavior and might attempt to obstruct the criminal justice process.”).
Therefore, we find no abuse of discretion.
¶ 23 The trial court here expressly and appropriately considered the correct relevant factors
and the evidence presented to it before reaching its decision. The court carefully and thoughtfully
weighed the evidence presented under the prevailing law and made a reasoned decision based on
the evidence. Under the totality of the circumstances, the circuit court did not abuse its discretion
by finding that the State presented clear and convincing evidence to justify denying pretrial
release to defendant.
¶ 24 CONCLUSION
¶ 25 Accordingly, we affirm.
¶ 26 Affirmed.
¶ 27 JUSTICE ELLIS, specially concurring:
¶ 28 I fully concur with the majority’s well-reasoned decision. I would not employ the abuse-
of-discretion standard, but I would uphold the trial court’s judgment under any standard of
review.
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