People v. Blair ( 2020 )

NOTICE
2020 IL App (5th) 160469-U NOTICE
Decision filed 06/02/20. The This order was filed under
text of this decision may be NOS. 5-16-0469, 5-16-0471 cons. Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Peti ion for by any party except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Clinton County.
)
v. ) Nos. 15-CF-61, 15-CF-91
)
JAMES R. BLAIR, ) Honorable
) Stanley M. Brandmeyer,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court.
Justices Overstreet and Boie concurred in the judgment.
ORDER
¶1 Held: Joinder was proper where there was no reasonable probability defendant
would have been acquitted of the charges against him, and he is not entitled
to a new trial where he failed to establish a Brady violation.
¶2 In this consolidated for decision only appeal, defendant, James Blair, appeals from
his convictions in two joined criminal cases. On appeal, defendant asserts that the circuit
court abused its discretion in joining the charged offenses for trial. For the following
reasons, we affirm.
1
¶3 I. Background
¶4 On April 25, 2015, a vehicle search by Sergeant Kyle Markus, pursuant to a search
warrant, uncovered four bags of cannabis and two pills of oxycodone in defendant’s
vehicle. Shortly thereafter, on April 27, 2015, defendant was charged by criminal
information in case number 15-CF-61 for the (1) unlawful possession of a controlled
substance (count I) (720 ILCS 570/402 (West 2012)) and (2) unlawful possession of
cannabis with intent to deliver (count II) (720 ILCS 550/5 (West 2012)).
¶5 On June 22, 2015, the defendant was charged by indictment by a grand jury under
case number 15-CF-91 for the following: (1) armed robbery with a 20-year gun
enhancement (count I) (720 ILCS 5/18-2(a)(3) (West 2012)); (2) aggravated battery with
a firearm (count II) (id. § 12-3.05(e)(1)); (3) attempted aggravated battery (counts III and
V) (id. § 8-4(a)); (4) reckless conduct (counts IV and VI) (id. § 12-5(a)(1)); and
(5) aggravated assault (count VII) (id. § 12-1(a)). Defendant was accused of committing
the above seven counts on April 25, 2015, the same day as the offenses in case number
15-CF-61.
¶6 On January 4, 2016, the State filed a motion for joinder of related prosecutions,
seeking to join case numbers 15-CF-61 and 15-CF-91. At the hearing on the State’s
motion, the State asserted that “these two cases are factually connected [because] ***
each *** alleges conduct—criminal conduct attributed to Mr. Blair on April 25, 2015.”
Defense counsel opposed the State’s motion for joinder because defendant had been
originally charged with two drug-related offenses (case number 15-CF-61) after police
discovered cannabis and oxycodone in his vehicle. Defense counsel further stated:
2
“Had the facts bore from the State’s point of view, that, for example, my
client was accused of stealing drugs from these people, then I can understand the
need for joinder; but the fact that drugs were found in my client’s vehicle *** is
irrelevant and immaterial to whether or not he took money from the individual
charged in the indictment or pointed a gun at other individuals charged in the
indictment and has no bearing upon his guilt or innocence, quite frankly, of drugs
found in his vehicle. That’s a whole separate issue.”
Following argument by both parties and defense counsel’s objection, the circuit court,
relying on People v. Williams, 204 Ill. 2d 191 (2003), granted the State’s motion for
joinder. The record demonstrates that the State offered, and defendant rejected, “an offer
for an open plea to one of the counts [in exchange for] dismissing the armed robbery”
charge in case number 15-CF-91. Shortly thereafter, the court granted defendant’s motion
to continue to obtain additional time to interview Spencer Bagwell, a crucial witness to
defendant’s case.
¶7 On August 23, 2016, a three-day trial commenced, and the following evidence was
adduced. The State called Stephanie Hinojosa, defendant’s girlfriend, who testified to the
following. Stephanie slept at defendant’s parents’ home in Trenton, Illinois, on April 24,
2015. At approximately 2 a.m. on April 25, 2015, following defendant’s request,
Stephanie drove him to the Shell gas station in New Baden, Illinois, to purchase liquor.
At approximately 4:25 a.m., defendant asked Stephanie to borrow her vehicle, but she
declined, 1 so defendant drove his parents’ truck. At 6 a.m., defendant returned home to
wake up Stephanie. Shortly thereafter, Stephanie and defendant left in separate vehicles
to visit Stephanie’s mother’s home, but defendant never arrived. For nearly three hours,
1
Defendant’s exact departure time from his parents’ home is unclear from the record, although
defendant and Stephanie exchanged text messages at 4:25 a.m. on April 25, 2015.
3
Stephanie was unable to get ahold of defendant. During that time, however, she
discovered his vehicle “wrecked” in a ditch. Stephanie recalled that defendant wore gray
and white pajama pants and a white t-shirt on April 25, 2015.
¶8 Next, Nicholas Pruitt, a 911 telecommunication deputy for the Clinton County
Sheriff’s Office, testified to the following. Deputy Pruitt was on duty in the early
morning hours of April 25, 2015, when he received an emergency call from Ryan
Vandever regarding a shooting in Aviston, Illinois. On cross-examination, Deputy Pruitt
stated that he had spoken with Ryan, while Deputy Jodi Nehrt, his partner, talked to
another caller, identified as Nicole Grantham, regarding the shooting. While on the call,
Ryan stated that he did not know who shot him.
¶9 Deputy Nehrt, a 911 telecommunication deputy for the Clinton County Sheriff’s
Office, testified to the following. On April 25, 2015, Nicole identified herself on the 911
recording and stated that she thought she recognized the shooter’s voice. Nicole later
identified the shooter as defendant. On cross-examination, Deputy Nehrt admitted that
Nicole did not want to point fingers, but she believed defendant was the shooter.
¶ 10 Detective Scott Voss, a 13-year detective with the Clinton County Sheriff’s
Office, testified to the following. At approximately 6:16 a.m., Detective Voss started a
walkthrough video recording of the home. Detective Voss also interviewed Ryan at a
local hospital where he informed Detective Voss that he woke up on April 25, 2015, to
his roommate, Haley Schroeder, yelling that someone had a gun in the house. At that
time, Ryan was sleeping in the basement with his girlfriend, Nicole. From the stairwell,
Ryan looked up from the basement and saw a “subject standing there with a gun”
4
demanding money and drugs. After the first shot, Ryan gave the shooter his wallet and a
hitter box containing cannabis. The shooter’s second shot hit Ryan in the leg. The shooter
then pistol-whipped Ryan in the face.
¶ 11 According to Detective Voss, Ryan believed defendant was the shooter because he
“fit the general description, the height, build and he said the terms ghetto like James Blair
did.” When Detective Voss pressed further to ensure Ryan had properly identified
defendant, Ryan responded that “he had bad relations with [defendant] over a relationship
with [defendant’s] girlfriend or ex-girlfriend.” On cross-examination, Detective Voss
acknowledged that Ryan was not positive defendant was the shooter at the hospital.
¶ 12 Jacob Hinkle testified to the following. On April 25, 2015, Jacob drove defendant
to his vehicle before defendant was arrested. As Jacob and defendant approached
defendant’s vehicle, Trenton police officer Ryan Weh was standing near defendant’s
vehicle. Defendant requested Jacob to drop him off some distance away before Jacob
approached Officer Weh. Defendant informed Jacob that he “would explain it later
because he messed up bad.” On cross-examination, Jacob confirmed that defendant had
requested a ride to his parents’ house and then his vehicle on April 25, 2015.
¶ 13 Officer Weh testified to the following. On April 25, 2015, Ryan informed Officer
Weh that “a male subject came in yelling that he needed money for Tippy and then the
next thing he knows he was shot.” While EMS was rendering medical assistance to Ryan,
Nicole informed Officer Weh that “she could not see [the shooter’s] face, but he was
about 5’6,” *** medium build and sounded like a subject named James Blair.” Nicole
5
recalled that the shooter was wearing dark sweatpants with gray stripes and a long-sleeve
dark top.
¶ 14 Officer Weh received a call from the Aviston Police Department that Stephanie
had reported defendant’s “vehicle wrecked somewhere on New 50 past Trenton.”
Following the call, he found defendant’s vehicle located near Shady’s Bar in
Summerfield, Illinois, with major front-end and tire damage. Officer Weh observed a
dark-colored shirt with a distinguished red mark around the collar in the roadway near
Shady’s Bar, roughly 50 yards from defendant’s vehicle. Stephanie did not know if the
shirt belonged to defendant. After Officer Weh was advised that defendant’s vehicle
would be towed, Jacob arrived and informed Officer Weh that defendant had asked him
to change his flat tire. When Officer Weh looked south towards downtown Summerfield,
he saw defendant standing in a residential yard. Officer Weh was instructed by Aviston
Police Chief Mark Taylor to arrest defendant. At the time of arrest, defendant was
wearing gray sweatpants with black stripes, and he had $625 cash in his pocket. Later,
$1632 cash was found in defendant’s wallet. Shortly thereafter, Officer Weh secured the
dark-colored shirt, originally seen on the roadway, after Jacob informed him that
defendant had placed it on the backseat floor of Jacob’s vehicle.
¶ 15 Sergeant Kyle Markus of the Aviston Police Department testified to the following.
Following a conversation with Officer Weh, Sergeant Markus lawfully obtained a search
warrant for defendant’s vehicle. The search uncovered a yellow pill bottle that contained
two pills of oxycodone and a clear plastic container with a red lid that contained four
bags of cannabis. On cross-examination, Sergeant Markus acknowledged that he did not
6
find a drug scale or hitter box in defendant’s vehicle. On redirect, Sergeant Markus
indicated that there was over $1600 cash recovered from defendant. Given that the
cannabis was individually packaged in four separate bags, a total of 28 grams, and
defendant had a large sum of money on him, Sergeant Markus, based on his experience,
believed the cannabis was intended for sale.
¶ 16 Brennan Richter testified to the following. Brennan lived in Aviston, Illinois, with
his girlfriend, Haley Schroeder, and his friends Ryan, Nicole, and Emily Summers. On
April 25, 2015, Brennan was standing in the garage when he noticed someone going
through Nicole’s parked car. The subject immediately approached Brennan with his gun
cocked and “mentioned something about Tippy’s money,” that “he [was] not messing
around and *** to let him inside” the house. Once inside the house, the shooter, within
the first couple of seconds, noticed a “fake camera,” knocked it on the ground and stated,
“no fucking camera.” According to Brennan, only two or three people, aside from the
roommates, knew about the camera. Defendant, however, became aware of the camera in
October or November 2014 when Ryan informed him that it was “fake.”
¶ 17 The shooter fired the first shot down the stairs as Ryan, Nicole, and Haley
ascended the stairs. Brennan believed that the shooter’s aggression was directed primarily
at Ryan because he was not interested in Nicole’s money. Instead, the shooter took
Ryan’s money and a pair of his designer jeans. The second gunshot struck Ryan in the
leg, and then the shooter pistol-whipped Ryan in the face. Before the shooter fled the
home and the roommates called 911, he pointed the gun at Haley and Brennan in the
living room, pulled the trigger and it “click[ed].”
7
¶ 18 After emergency personnel arrived, Brennan mentioned to Haley that he “d[idn’t]
know the guy’s name, but I am pretty sure it’s Stephanie Hinojosa’s boyfriend.” Brennan
informed police that the “intruder was the same person who *** come [sic] on to Emily”
at a bar, and defendant was this individual. Brennan also identified defendant by the way
he walked and talked “like a thug gangster.” Although defendant had attempted to hide
his identity by wearing gloves, “dark long pants, [a] dark hooded sweatshirt with a hood
on his head and *** a handkerchief or bandana around *** his face,” Brennan “was able
to see his eyes, his cheeks, most of his nose,” and when the bandana slid down while he
moved and talked, “[y]ou could see *** part of his mouth ***.” Several weeks after his
initial statement, Brennan identified defendant in a supplemental statement at the Aviston
Police Department, at which time a picture of defendant was sitting on the desk.
¶ 19 On cross-examination, Brennan indicated that he had been up for 12 hours on
April 25, 2015, but he was not under the influence of drugs or alcohol. In his first written
statement, Brennan did not identify the shooter by name because he did not know
defendant’s name. The only information known to him at that time was that the shooter
was Stephanie Hinojosa’s boyfriend. Lastly, at the time he gave his supplemental
statement, Brennan stated that “[b]efore I saw that photograph [at the Aviston Police
Department], no, I hadn’t made up my mind that it was [defendant].”
¶ 20 Haley Schroeder testified to the following. On April 25, 2015, Haley arrived home
at 3 a.m. after she had worked a late shift at work. After Haley heard a gunshot, she saw
Brennan with the shooter, at which time, the shooter said “something *** along the lines
where is Ryan.” After Haley woke up Ryan, she was walking upstairs when she “felt air
8
wiz by” her leg from a bullet. A second shot was fired, striking Ryan in the leg. Ryan
then crawled up the stairs to hand money to the shooter and was pistol-whipped in the
face. The shooter then pointed his gun at Haley and Brennan before he fled the home.
¶ 21 Haley confirmed that the shooter, “right away,” in fact, “[t]he second he stepped
foot into the house,” grabbed the camera, threw it down, and broke it. When asked to
identify the shooter’s speech, Haley stated that he spoke “ghetto,” similar to “East St.
Louis talk.” Haley knew the shooter was defendant, based on his distinct eyes and voice,
but did not know his name, and he appeared to be “on something.” Haley could see
defendant’s eyebrows, eyes, the top of his nose, two inches below his hairline and above
his cheekbones.
¶ 22 Nicole testified to the following. After Haley went downstairs to wake up Nicole
and Ryan, Nicole and Haley were walking upstairs when a shot was fired. Both women
were untouched. While Ryan looked for money in the basement, the shooter shot
downstairs again, striking Ryan in the leg. After Ryan crawled up the basement stairs
with money, the shooter pistol-whipped him with the gun. Ryan instructed Nicole to find
his jeans and wallet. Nicole complied and handed over $400. The shooter then pointed his
gun at Brennan and Haley in the living room, pulled the trigger and the gun clicked. The
shooter grabbed Ryan’s jeans and ran out of the home. During the incident, Nicole
recognized defendant as the shooter because the shirt covering his mouth and nose had
fallen down several times, and he spoke “ghetto.” After defendant left the home, Nicole
called 911 and told the dispatcher the shooter was James Blair.
9
¶ 23 On cross-examination, Nicole acknowledged that she did not name defendant in
her first written statement because she agreed “there was still a small bit of [her] that
wasn’t for sure.” When identifying defendant as the shooter, she “wasn’t 100 percent
positive but *** 98-99 percent” certain. Nicole acknowledged that she responded “no”
when the 911 dispatcher asked her if she could identify the shooter. Regardless, Nicole
stated that she “saw his whole face at some point” during the incident, even though
defendant covered his nose and mouth with a handkerchief. Nicole did not address the
defendant by his name during the incident because she was scared. On redirect, Nicole
stated that she had identified James Blair as the shooter in her supplemental statement on
April 26, 2015.
¶ 24 Chief Taylor testified to the following. During the search of defendant’s vehicle, a
pair of True Religion designer jeans were discovered. On cross-examination, however,
Chief Taylor stated that the discovered jeans did not belong to Ryan.
¶ 25 Ryan testified to the following. Prior to April 25, 2015, defendant and Ryan knew
each other. Michael Tipton, referred to as Tippy, was Ryan’s acquaintance. Ryan was not
aware that he owed Tippy money, but when defendant “smacked me in the head with the
gun, he yelled something along the lines that this was for Tippy’s money or I should have
paid Tippy.” Ryan did not identify the shooter as defendant until he returned home from
the hospital. Ryan “didn’t think about who the shooter was at all. It didn’t cross my mind.
I was more worried about my leg and everything else while I was at the hospital.” When
he returned home, “[i]t clicked. *** [His] demeanor, the way he talked, the way he acted,
our prior—you know, [defendant] don’t [sic] like me” because defendant knew Ryan and
10
Stephanie had sex after she broke up with defendant. Although defendant attempted to
disguise his identity, Ryan saw the top of his nose up to his forehead. Defendant wore
dark clothing, specifically, black pants with stripes, a hoodie, and a t-shirt wrapped
around his face.
¶ 26 Next, Carl Durkee testified to the following. At approximately 6:30 a.m. on April
25, 2015, Carl saw defendant’s vehicle, an orange Mitsubishi, almost lose control as he
drove “through our subdivision at a pretty good clip.” Carl lived on the west side in
Trenton, Illinois, just one block from Old Route 50. At 7:45 a.m., Carl was driving to
O’Fallon, Illinois, when he saw defendant walking in a field near Trenton. As Carl
approached St. Clair County, he saw the same orange Mitsubishi, now with a flat tire, at a
tavern. Later that day, Carl recognized defendant’s vehicle at JDS Towing.
¶ 27 Spencer Bagwell testified to the following. After the April 25, 2015, incident,
Bagwell saw defendant at Jim’s Formal Wear and Casey’s General Store. While in the
checkout line at Casey’s, defendant told Bagwell that “he shouldn’t have shot nobody
[sic]” or had a gun with him. Bagwell wrote a statement on June 10, 2015, in Sergeant
Markus’s presence, that defendant had told him that he should not have had the gun and
“he got popped for weed.” Bagwell also acknowledged that, following a DUI on May 13,
2015, a petition to revoke court supervision was pending when he provided his statement
to police on June 10, 2015. The following colloquy took place:
“Q. [MR. HUDSPETH:] There was never any discussion or conversation or
promise made to you that—or suggestion that if you wrote a statement about
James Blair it was going to help you with your DUI, did it?
“A. [BAGWELL:] No, sir. Not at all.
***
11
Q. And you’re still on court supervision or probation as of now for that
DUI, right?
A. Yes, sir.
***
Q. Isn’t it true that there have been no discussions, no promises of any
leniency, no deals made of any kind relating to your testimony here today?
A. No, sir.
Q. This case and your case are separate and always have been, isn’t that
right?
A. Yes, sir.”
On cross-examination, Bagwell admitted that his June 10, 2015, statement did not
reference defendant shooting anyone. Bagwell indicated, however, that he had verbally
informed Sergeant Markus of those details on June 10, 2015. Following Bagwell’s
testimony, defense counsel moved for a directed verdict, asserting that there was not
enough evidence to submit to the jury, and the case was based on suspicion. The circuit
court denied defense counsel’s motion.
¶ 28 James Baylor testified to the following for the defense. Baylor and Bagwell had
talked to defendant for 20 or 30 minutes at a Kountry Store in April 2015. Baylor stated
that defendant never said anything about a gun or shooting anyone, and Bagwell never
said anything about making a statement to law enforcement during the conversation.
¶ 29 Sergeant Markus testified to the following. Sergeant Markus confirmed that
Bagwell never told him, either verbally or in written form, that defendant had shot
anyone. On cross-examination, he indicated that Bagwell was not released on the petition
to revoke court supervision and recognizance bond until he spent time in jail, retained
counsel, and appeared in court with counsel.
12
¶ 30 William Carol, Spencer Bagwell’s attorney, testified to the following. Carol
entered his appearance on July 28, 2016, to represent Bagwell on his petition to revoke
his court supervision following a DUI. At that time, Bagwell was being held in the
county jail. Carol testified that Assistant State’s Attorney David Fields “told me first
thing that my client was a witness for a matter for the [S]tate and that under no
circumstances was [the State] going to *** negotiate anything with me pending that
matter and *** I sort of hinted to him that *** was his testimony worth anything and I
was told that there would be nothing offered for his testimony.”
¶ 31 On cross-examination, Carol indicated that he was unaware that State’s Attorney
John Hudspeth had conversed with Bagwell on July 27, 2016. On July 28, 2016, Bagwell
was not sentenced to additional fines and fees or jail time but was released on his own
recognizance bond. On redirect examination, Carol indicated that Bagwell’s driving
privileges had been revoked, his original fines and fees reimposed, and the State objected
to court supervision.
¶ 32 Next, Fields testified to the following. Fields prosecuted Bagwell’s DUI charge
and the subsequent petitions for violating court supervision. While in custody, defendant
retained Carol as legal counsel following a third petition for violation of adult court
supervision. On July 28, 2016, Bagwell’s case was not set for hearing, but Carol appeared
before the court requesting Bagwell’s release. The State objected “based on a variety of
factors,” including Bagwell’s failure to appear in court on several occasions, that Bagwell
was in custody, that a discussion on the disposition of his case had not taken place, and
13
that Fields “was aware that [Bagwell] was a pending witness in the *** Blair case and
there was no agreement at that time.”
¶ 33 Fields indicated that Carol’s “ultimate goal” was to avoid a judgment of
conviction against Bagwell’s driving record and to leave Bagwell on court supervision
for the DUI. The following colloquy took place:
“Q. Was any kind of deal struck between the people and Mr. Bagwell for
his testimony in the Blair case?
A. Mr. Carol and I never discussed his testimony. Never discussed the Blair
case.”
Ultimately, Bagwell’s court supervision was revoked and a judgment of conviction for
the DUI was entered on September 7, 2016. Fields also indicated that Hudspeth never
informed him about a conversation with Bagwell on July 27, 2016.
¶ 34 Following trial, defendant was convicted on all counts. Subsequently, defendant
filed timely motions for a new trial and judgment notwithstanding the verdict (n.o.v.).
The circuit court held a hearing on October 6, 2016, focused primarily on the July 27,
2016, interaction between Hudspeth and Bagwell. Specifically, attorney Tim Huyett
testified that Bagwell was in court regarding bond on a petition to revoke a DUI case
when he witnessed Hudspeth walk over to Bagwell, put his hand on his shoulder, and
assure Bagwell that “it will be okay.” Although Huyett thought this interaction was
unusual, given his long history with Hudspeth, Huyett stated that “[w]hat [Hudspeth]
meant by that, I want everybody to understand I don’t know.”
¶ 35 Attorney Justin Whitton testified to the following. Whitton initially represented
Bagwell on a petition to revoke his supervision in a DUI case. Hudspeth contacted
14
Whitton via phone to inform him that Bagwell would testify in another pending criminal
matter in Clinton County. Whitton did not object and “there was no bargain struck at that
time.” In fact, Whitton stated that “a disclaimer [existed that] there was no offer being
made on the pending case for Mr. Bagwell.” In his mind, defendant’s case and Bagwell’s
case were two unrelated cases.
¶ 36 Next, Carol testified to the following. Carol stated that his initial goal in
representing Bagwell was to have him released from jail and to retain his license. Carol
believed Hudspeth’s office “wasn’t very lenient about” extending Bagwell’s supervision
because “under no circumstances” was the State “going to agree to anything or negotiate
anything with me pending that matter.” Carol was told “there would be nothing offered
for Bagwell’s testimony.” On cross-examination, Carol stated that, although additional
jail time, fines, and costs were not imposed, a conviction had been entered against
Bagwell. On redirect, Carol indicated that Bagwell’s driver’s license was revoked, which
was a more substantial step against driving privileges than a suspension, and the State
had objected to Bagwell’s release on his own recognizance bond and the continuation of
court supervision. Following the hearing on the matter, the circuit court denied
defendant’s motions for a new trial and judgment n.o.v.
¶ 37 In case number 15-CF-61, the circuit court sentenced defendant to three years in
prison for count I and four years in prison for count II. In case number 15-CF-91, the
court sentenced defendant to 35 years in prison (15 years for the underlying felony of
armed robbery plus 20 years for the firearm enhancement) for count I and 15 years in
prison to run concurrently for count II. The court also imposed 10-year sentences for
15
counts III and V and determined that counts IV, VI, and VII in case number 15-CF-91
had merged. Defendant filed a timely notice of appeal.
¶ 38 II. Analysis
¶ 39 A. Joinder
¶ 40 On appeal, defendant asserts that the circuit court abused its discretion in joining
the charged offenses in 15-CF-61 (i.e., drug offenses) and 15-CF-91 (i.e., armed robbery
and aggravated battery related offenses) for trial where the charges involved distinct and
separate acts not part of the same comprehensive transaction. Accordingly, defendant
argues that he was denied a fair trial. In response, the State argues that the court did not
abuse its discretion because the factors establish both cases were part of the same
comprehensive transaction, and defendant was not prejudiced as a result of joinder.
¶ 41 A court may order two or more charges to be tried together “if the offenses ***
could have been joined in a single charge.” 725 ILCS 5/114-7 (West 2014). “Two or
more offenses may be charged in the same [charging instrument] in a separate count for
each offense if the offenses charged *** are based on the same act or on 2 or more acts
which are part of the same comprehensive transaction.” Id. § 111-4(a). The decision to
consolidate separately charged offenses for a single trial rests within the sound discretion
of the circuit court. People v. White, 129 Ill. App. 3d 308, 315 (1984). A court abuses its
discretion only where no reasonable person would agree with the court’s ruling. People v.
Barner, 374 Ill. App. 3d 963, 970 (2007).
¶ 42 In exercising its discretion, a circuit court considers several factors when
determining whether charges are part of the same comprehensive transaction. People v.
16
Johnson, 2013 IL App (2d) 110535, ¶ 47. Specifically, a court considers the following
four factors: “(1) the proximity in time and location of the offenses; (2) the identity of
evidence needed to demonstrate a link between the offenses; (3) whether there was a
common method in the offenses; and (4) whether the same or similar evidence would
establish the elements of the offenses.” (Internal quotation marks omitted.) People v.
Walston, 386 Ill. App. 3d 598, 601 (2008) (quoting People v. Gapski, 283 Ill. App. 3d
937, 942 (1996)).
¶ 43 The first two factors are considered the most important when deciding whether
offenses are part of the same comprehensive transaction. People v. Quiroz, 257 Ill. App.
3d 576, 586 (1993). If it appears the defendant may be prejudiced by a joinder of related
prosecutions, the court may deny the request for joinder. 725 ILCS 5/111-8(a) (West
2014); see Walston, 386 Ill. App. 3d at 601 (citing People v. Patterson, 245 Ill. App. 3d
586, 587 (1993) (describing statutory scheme)). “ ‘A defendant is not prejudiced by the
improper joinder of charges if, had separate trials been given, defendant still would have
been convicted.’ ” People v. Wayman, 379 Ill. App. 3d 1043, 1063 (2008) (quoting
People v. Gonzalez, 339 Ill. App. 3d 914, 922 (2003)).
¶ 44 “The first factor, probably the most helpful by far, asks whether the offenses to be
joined were close in time and location.” Walston, 386 Ill. App. 3d at 603. “This factor
makes sense, because, as events become separated by time and distance, the likelihood
decreases that they may be considered part of the same comprehensive transaction as is
required by the statute.” Id. Moreover, the committee comments to section 111-4 of the
Illinois criminal code indicates that the “ ‘same comprehensive transaction’ ” test for
17
joinder of multiple offenses was “meant to allow prosecutors to use one indictment to
charge multiple offenses based on a single act.” Id. (“ ‘If separate offenses appear in a
single count, the indictment is subject to a charge of duplicity. *** If a single act causes
several offenses, they should be joined in one indictment by separate counts unless the
court orders otherwise.’ ” (quoting 725 ILCS Ann. 5/111-4, Committee Comments-1963,
at 653 (Smith-Hurd 2006))).
¶ 45 Here, defendant was found guilty of multiple violent offenses while armed with a
firearm. After firing several shots with his gun, one which hit and injured Ryan,
defendant fled in his vehicle and was seen driving at a high speed through a subdivision
west of Trenton, Illinois, on the morning of April 25, 2015. Hours later, defendant’s
disabled vehicle was discovered by police near Shady’s Bar in Summerfield, Illinois.
Shortly thereafter, Officer Weh observed defendant south of Shady’s Bar after Jacob,
defendant’s friend, informed Officer Weh that defendant had requested him to fix his flat
tire. Defendant’s vehicle was later towed to JDS Towing where police discovered four
bags of cannabis and two pills of oxycodone.
¶ 46 Both the drug-related and armed robbery and aggravated battery related offenses
occurred on the morning of April 25, 2015. In terms of proximity of location, defendant’s
disabled vehicle was discovered approximately nine miles from the home he robbed that
morning. Although the record indicates that the offenses were close in time, the evidence
does not support proximity of location or that the offenses were committed as part of a
common scheme. See People v. Marts, 266 Ill. App. 3d 531, 543 (1994). In fact, the only
similarity among the offenses was that defendant committed the offenses within hours of
18
each other on the same day. However, the offenses clearly occurred at different locations.
Accordingly, because the offenses did not occur within a close space to one another, the
first factor is not met.
¶ 47 The second factor, common evidence, “asks not whether evidence of the two
crimes is similar or identical but rather whether the court can identify evidence linking
the crimes.” (Emphases in original.) Walston, 386 Ill. App. 3d at 605 (citing People v.
Duncan, 115 Ill. 2d 429, 442 (1987)). If evidence links the two crimes, then, by
definition, it will be identical for both crimes. Id. at 606.
¶ 48 Here, the object of the drug-related offenses included four bags of cannabis and
two pills of oxycodone that were discovered in defendant’s disabled vehicle after it was
towed. The armed robbery and aggravated battery related offenses involved the taking of
cash and a pair of designer jeans from Ryan. Aside from a large sum of money found on
defendant, which alerted Sergeant Markus that defendant likely sold drugs, and the fact
that witness testimony indicated defendant demanded “Tippy’s money,” there was no
evidence linking the crimes. First, there is no evidence that the discovered cannabis or
oxycodone was taken from the victims during the armed robbery. Moreover, the hitter
box Ryan gave defendant was not discovered in defendant’s vehicle. Furthermore,
Ryan’s designer jeans that defendant took were never recovered, and defendant’s
clothing, specifically gloves and a dark-colored shirt, were never discovered in
defendant’s vehicle when it was towed.
¶ 49 The third factor, common method, asks “whether the offenses were part of a
‘common scheme,’ so that each of the offenses supplies a piece of a larger criminal
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endeavor.” Walston, 386 Ill. App. 3d at 606-07. In Quiroz, 257 Ill. App. 3d at 586,
evidence was offered linking two shootings to the defendant’s alleged armed robbery
when the defendant attempted to enter the home of an acquaintance as he fled the scene
of the shootings. This evidence helped show that all three crimes were part of a common
criminal scheme and motive by framing the defendant’s theft of the car as a continuation
of his attempts to flee the scene of the two shootings. Id. As such, the court in Quiroz
determined that the defendant’s intervening attempt to hide in a house linked his crimes
of shooting two people and stealing a car to escape. Id. We find Quiroz distinguishable to
the instant case.
¶ 50 Here, there does not appear to be a common motive linking together the drug-
related and armed robbery and aggravated battery related offenses. Rather, the only
visible thread of continuity between the offenses is that defendant was seen driving at a
high speed through a subdivision on the morning of April 25, 2015, and that his vehicle
was later found disabled at Shady’s Bar, approximately nine miles from the victims’
home. Such an incidental connection cannot satisfy the plain meaning of the present
statutory requirement that the separate offenses charged in a single indictment should
arise out of the same “ ‘comprehensive transaction.’ ” See People v. Fleming, 121 Ill.
App. 2d 97, 103 (1970). Lastly, the fourth factor, whether similar evidence would
establish the elements of the offenses, does not support joinder in this case.
¶ 51 Although the factors do not weigh in favor of joinder in the instant case, a
defendant is not prejudiced by improper joinder of charges if, had separate trials been
given, the defendant would have been convicted. Wayman, 379 Ill. App. 3d at 1063;
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People v. Gonzalez, 339 Ill. App. 3d 914, 922 (2003); Patterson, 245 Ill. App. 3d 586.
Here, we find there is no reasonable probability that the outcome of the cases would have
been different if separate trials would have been ordered. The evidence of defendant’s
guilt in relation to the drug charges was overwhelming where the cannabis and
oxycodone pills were discovered in defendant’s vehicle. Witness testimony established
that defendant drove the vehicle shortly before it was discovered by law enforcement and,
upon his arrest, defendant was found with large sums of money in his pockets and wallet.
Moreover, according to Sergeant Markus, the cannabis was not for defendant’s personal
use but intended for sale.
¶ 52 Likewise, the evidence against defendant on the armed robbery and aggravated
battery related offenses was overwhelming. Had the armed robbery and aggravated
battery related offenses been tried separately, witness testimony by all of the victims
would have demonstrated that defendant had been identified as the shooter based on his
build, voice, and physical appearance. Moreover, the record indicates that defendant
referenced a “fake camera,” which only the roommates and two or three people,
including defendant, knew about. Based on the evidence, there is no reasonable
probability that defendant would have been acquitted of the charges based on the
evidence against him. Accordingly, defendant was not prejudiced by the joinder of
charges against him.
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¶ 53 B. Ineffective Assistance of Counsel
¶ 54 Briefly, we note that defendant initially argued ineffective assistance of counsel on
appeal, but he abandoned this argument in his reply brief. As such, we will not address
this issue.
¶ 55 C. Brady Violations
¶ 56 Lastly, defendant asserts that the State violated Brady v. Maryland, 373 U.S. 83(1963), when it withheld evidence that Bagwell would receive leniency in the resolution
of his own case in exchange for his damning testimony in defendant’s case. Defendant
maintains that Bagwell testified falsely when he stated that no discussions had taken
place concerning his cooperation in defendant’s case when evidence demonstrated that
Hudspeth had put his hand on Bagwell’s shoulder and stated to him that “it will be okay.”
This conversation, according to defendant, demonstrates a promise of leniency was
offered in exchange for Bagwell’s testimony. As a result, Bagwell avoided additional jail
time in his own case following the conclusion of defendant’s trial.
¶ 57 In 1963, the United States Supreme Court held that the State has an affirmative
duty to disclose evidence favorable to a defendant in criminal prosecutions. Maryland,
373 U.S. at 83. Thirteen years later, in United States v. Agurs, 427 U.S. 97, 103 (1976),
the Court set forth “three quite different situations” to which the general rule of Brady
and varying tests of materiality apply to determine whether a criminal conviction must be
overturned. The first situation occurs when the prosecution’s case includes perjured
testimony and the prosecution knew, or should have known, of the perjury. Agurs, 427
U.S. at 103. In such a case, the conviction must be set aside if there is any reasonable
22
likelihood that the false testimony could have affected judgment of the jury and a “strict
standard of materiality” is imposed. Id.¶ 58 The second situation occurs when the prosecution suppresses evidence favorable
to the defendant after a pretrial request for specific evidence. Id. at 104. If the suppressed
evidence is material, in that it might have affected the outcome of the trial, the conviction
must be reversed. Id. The Supreme Court did not define the standard of materiality
applicable to this situation, but the Court noted that “[w]hen the prosecutor receives a
specific and relevant request, the failure to make any response is seldom, if ever,
excusable.” Id. at 106.
¶ 59 The final situation occurs when the defense makes either no request for evidence
or only a general request for Brady material, and exculpatory matter is withheld by the
prosecution. Id. at 107. When this situation occurs, the standard of materiality is more
favorable to the State. Id. The defendant will be entitled to a new trial only if the
undisclosed evidence, viewed in the context of the entire record, creates a reasonable
doubt that otherwise would not exist. Id. at 112.
¶ 60 To establish a Brady violation, suppressed evidence must be both favorable to the
accused and material. People v. Hobley, 182 Ill. 2d 404, 432 (1998). Favorable evidence
is material in this context “ ‘only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.’ ” Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A
“ ‘reasonably probability’ ” of a different result is a “ ‘probability sufficient to undermine
confidence in the outcome.’ ” Id. at 433 (quoting Bagley, 473 U.S. at 682). Materiality is
23
demonstrated “by showing that the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.” Kyles
v. Whitley, 514 U.S. 419, 435 (1995).
¶ 61 Defendant maintains the first two situations are in play in the instant case.
Applying the foregoing principles to the instant case, we cannot conclude that defendant
is entitled to a new trial under the first situation in Agurs where the record does not
support defendant’s contention that Bagwell’s testimony was false and that the
prosecution knew, or should have known, of any perjured statements. Instead, in
conjunction with Bagwell’s testimony that he was not promised leniency for his damning
testimony, Carol, Bagwell’s attorney, and Fields, the prosecuting attorney in Bagwell’s
case, both testified that no such negotiation took place. In fact, Fields testified that “Mr.
Carol and I never discussed [Bagwell’s] testimony. Never discussed the Blair case.”
Because the record does not support defendant’s contention that Bagwell’s testimony was
false and that the prosecution knew, or should have known, of any perjured statements,
he has failed to establish a Brady violation.
¶ 62 Next, we cannot conclude that defendant is entitled to a new trial under the second
situation in Agurs. Defendant asserts a Brady violation occurred because defendant filed
motions to discover in both cases seeking information that would tend to negate
defendant’s guilt “ ‘including but not limited to prior inconsistent statements or conduct
and *** any and all consideration or promises of consideration given to or made on
behalf of government witnesses.’ ” As such, defendant contends that the State’s failure to
disclose Hudspeth’s conversation with Bagwell, together with the failure to disclose
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Fields’ conversation with Carol, significantly curtailed this line of questioning, and “a
different outcome might have occurred.” (Emphasis in original.) We disagree.
¶ 63 We cannot conclude that a hand on an individual’s shoulder coupled with the
statement, “it will be okay,” was favorable evidence that could have reasonably be taken
to put the whole case in such a different light as to undermine confidence in the verdict.
Rather, the record supports the conclusion that a negotiation or promise of leniency did
not occur where Bagwell testified that he never received any promises of leniency to
testify in defendant’s case, and Fields’ conversation with Carol reiterated the State’s firm
decision not to enter into an agreement for Bagwell’s testimony. Accordingly, we cannot
agree with defendant that, had the above conversations been disclosed to the defense,
there is a reasonable probability the result of the proceeding would have been different.
Thus, defendant has failed to establish a Brady violation.
¶ 64 III. Conclusion
¶ 65 For the foregoing reasons, the judgment of the circuit court of Clinton County is
affirmed where joinder was proper, given there was no reasonable probability that
defendant would have been acquitted of the charges against him had separate trials been
ordered, and he is not entitled to a new trial where he failed to carry his burden to
establish a Brady violation.
¶ 66 Affirmed.
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