People v. Kimber , 2024 IL App (1st) 240499-U ( 2024 )

2024 IL App (1st) 240499-USECOND DIVISION
May 14, 2024
No. 1-24-0499B
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. 24 MC 1100714
)
KOMARION KIMBER, ) Honorable
) Charles Beach,
Defendant-Appellant. ) Judge Presiding.
_____________________________________________________________________________
JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Howse and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: Affirming the trial court’s order denying pretrial release where the State met its
burden of showing by clear and convincing evidence that defendant committed the
offense of first-degree murder.
¶2 Defendant, Komarion Kimber, appeals the trial court’s order denying pretrial release. In
this appeal, he contends that the State failed to meet its burden of showing by clear and convincing
evidence that he committed the offense of first-degree murder.
¶3 The record shows that defendant was charged with first-degree murder in a February 22,
2024 felony complaint. The complaint generally alleged that on or about November 11, 2023,
No. 1-24-0499B
defendant shot the victim, Leon Mooney, causing his death. Also on February 22, 2024, the State
filed a petition for a pretrial detention hearing, asserting that the proof was evident or presumption
great that defendant committed the detainable offense of first-degree murder, that he posed a real
and present threat to the safety of any person or persons or the community, and that no condition
or combination of conditions could mitigate that risk.
¶4 The trial court held a hearing that same day. At the hearing, the State proffered that on
November 11, 2023, at approximately 2:30 p.m., the victim and three friends met with defendant
and defendant’s brother in an apartment at Altgeld Gardens to trade AR rifles for handguns. The
victim and one of his friends each had an AR rifle in a backpack, and another friend had a handgun.
¶5 While in the apartment living room, defendant took out a handgun and showed it to the
victim and his friends. The defendant’s brother also had a gun in his waistband. The victim and
his friend both opened their backpacks and took out the AR rifles that they had with them, and the
other friend took out the handgun. Defendant asked to see the two AR rifles, so the victim and his
friend gave them to him. Defendant then asked to see the other friend’s handgun, and the friend
gave that gun to the defendant. At that point, defendant was in possession of four guns, his brother
was in possession of one, and the victim and his friends were unarmed. Defendant then announced
to the victim and his friends that their guns “just got took [sic].”
¶6 At that point, the victim, who was several feet away from defendant and the guns, got up
from the couch and moved in the direction of the defendant. Defendant shot him twice, causing
the victim to fall to the floor. Everyone fled the residence. Once they were outside, one of the
victim’s friends called 9-1-1 and reported the shooting. The defendant and his brother fled the
scene.
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¶7 When the police arrived, they observed the defendant running through Altgeld Gardens.
The police chased and detained him. In footage captured by body worn camera, defendant gave a
fake name and his real date of birth, before police released him.
¶8 Before police arrived at the scene, the victim’s body was moved outside the residence and
placed in a grassy area outside the front door of the apartment. The victim was taken to a hospital
where he was pronounced dead. The victim suffered two gunshot wounds—one to the chest, and
one to the right arm.
¶9 When police searched the scene, they recovered one .45 caliber shell casing inside the
residence. Officers later located two AR rifles inside a nearby dumpster, which were believed to
be the AR rifles the victim and his friend brought to the residence. Police also recovered a phone
which had been dropped by one of the victim’s friends when fleeing the apartment. A search
warrant was executed, and a forensic examination was conducted. In that phone, police saw a series
of text messages in which the friend arranged with a contact to meet up and exchange guns.
¶ 10 Two friends of the victim who were at the apartment identified defendant in separate photo
arrays, and in a still photograph taken from the body worn camera footage when defendant was
stopped by police on the day of the incident.
¶ 11 Police investigation also revealed that the person who rents the apartment where the
incident occurred knows defendant through her son and allows defendant to come and hang out in
the house. That person was asleep in a bedroom at the time of the incident and did not witness the
events. She did, however, inform police that she saw defendant in the apartment earlier in the day
and outside of the apartment after the shooting.
¶ 12 The State also informed the court regarding defendant’s criminal background, including a
pending aggravated robbery, and two 2022 juvenile adjudications for “cannabis” and aggravated
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No. 1-24-0499B
battery. Defendant was on electronic monitoring which was revoked on June 15, 2023, and a
warrant was issued for his arrest on July 14, 2023.
¶ 13 The court then asked the defense to respond. Defense counsel asked the court to deny the
petition to detain. Counsel argued that the witnesses did not make statements to the police at the
scene, but instead, they spoke to police approximately two months later, after they “came up with
an explanation that did not involve them being guilty in any way.” Defendant was not found with
the murder weapon, nor was any gunshot residue found on him. Counsel argued that the State’s
version of events, under which defendant was able to “commandeer[ ] all five of those guns” and
perform a “stick up,” was not believable. Finally, defense counsel suggested that even if statements
made by the witnesses were true, they “suggest that an affirmative defense of self-defense could
be possible.” Accordingly, counsel asserted that “the proof is not evident, nor is the presumption
great that [defendant] is guilty of this offense.”
¶ 14 In reply, the State acknowledged that the friends did not say anything to police initially,
however,
“we also have to understand that these are people in their young 20s or teenagers, who
were engaged in a dangerous illegal activity with assault rifles. And then once in the
apartment, they watched their friend get murdered in front of their face. They got out
of there. They did. And then they talked to the police and told them what happened
later. And we know that is true because of the text messages, because of the shots,
because of the AR-15s being in a garbage can, and because the defendant is running
through Altgeld Gardens after.
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No. 1-24-0499B
And regarding *** self-defense, whether or not the victim went for a gun, everyone
is very consistent: They had no guns. So he didn’t even have time to get near a gun
because he is shot twice and killed. There is absolutely no self-defense here.”
¶ 15 The trial court then explained to defendant that the State was requesting that the court order
that he remain in custody while the case was pending, and, in order for the State
“to be successful in that request, they must establish three things by clear and
convincing evidence. First, they must establish that the proof is evident, the
presumption is great that you committed the offense that you’re charged with. The
second thing they need to establish is that you pose a real and present threat to any
person, persons, or the community. And then the third thing they must establish is
that there are no conditions or combination of conditions that would mitigate or
lessen that real and present threat. If they’re successful on all three of those points,
then you remain in custody while this case pends for trial. If they fail on any one of
those points, well, then you would be released, but released with conditions.”
¶ 16 The court first found that the State established by clear and convincing evidence that the
proof is evident and presumption is great that defendant committed the offense of first-degree
murder. The court explained that defendant was “positively identified by two witnesses in a photo
array.” The court “underst[oo]d [defense] counsel’s argument regarding the late breaking
identification approximately two months after the fact of this event,” but found that the delay did
not “lessen that identification” because “the nature of the offense [and] the fact that [the witnesses]
too were involved in an illegal act, *** might make them reticent or reluctant to admit to being
present and how things unfolded. But nevertheless, that positive identification by those two
witnesses does hold sway.”
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¶ 17 The court also explained that the evidence also showed defendant fleeing near the scene
after the murder, that he gave a fake name when detained by the police, and that the witnesses also
identified defendant in stills from body worn camera footage. The court concluded,
“when we tie all these things together, the flight, the fake name, the positive
identification of the body worn camera stills, the positive identification and photo
array. The renter of the apartment said that *** you were there on the day of ***
the shooting in that apartment. Combined with the fact that the purpose of you all
being in that one location at one time is the trade of weapons, specifically AR Rifles
and handguns, and those ARs oddly being recovered somewhere near the vicinity.
All these factors tied together meet the burden of clear and convincing evidence
that the proof is evident and presumption is great.”
¶ 18 The court then turned to the question of whether defendant was a real and present threat to
any person, persons, or the community. The court stated that it found it “difficult” and
“heartbreaking” to have to describe the 17-year-old defendant as a danger. However, the proffered
facts included that defendant illegally possessed handguns, and was making arrangements to trade
them for AR rifles—weapons that are “capable of inflicting even greater damage, even greater
pain on our community.” The court also noted that defendant’s criminal background indicated that
he was not “reluctant to commit” crimes of violence. Defendant “spent time in custody on an
aggravated battery in the Juvenile Detention Center” and he had a pending robbery charge at the
time of this offense. The court thus concluded that, in light of defendant’s
“prior history along with what [defendant] w[as] attempting to do on that date, and
the fact that [defendant] discharged a weapon at another human being and killed
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No. 1-24-0499B
them, tells me that [defendant] pose[s] a real and present threat to the safety of the
community, as much as that pains me to say about a young man.”
¶ 19 Finally, the court found no conditions or combination of conditions that could mitigate the
threat. The court explained that if it allowed defendant to be released on electronic monitoring, he
would still have the “ability to *** go out and purchase weapons or obtain weapons.” Additionally,
defendant had been on electronic monitoring previously, but it had been revoked. At the time of
the murder, defendant “had a warrant out for [his] arrest for a robbery.” The court also noted that
defendant had “stopped going to court on” the charge, and his electronic monitoring had been
revoked, which made the court believe that defendant would not “follow lawful orders from the
Court” or “appear in court when *** required.” Accordingly, the court found there were no
conditions or combination of conditions that would mitigate the threat posed by defendant, and
ordered him to be detained.
¶ 20 That same day, the court entered a written order to detain defendant consistent with the
extensive findings above.
¶ 21 Defendant filed a timely notice of appeal on March 6, 2024, requesting the reversal of the
trial court’s order denying pretrial release. Utilizing the form approved for Rule 604(h) appeals by
defendants, defense counsel checked one box, asserting that the State failed to meet its burden of
proving by clear and convincing evidence that the proof is evident or the presumption great that
defendant committed the offense(s) charged.”
¶ 22 Counsel expanded on defendant’s challenge in a document labelled, “Grounds for Relief.”
Counsel argued that the State failed to meet its burden because there was no “video or audio
surveillance captur[ing] the shooting or *** any forensic evidence link[ing] [defendant] to the
crime,” and the murder weapon was not recovered. Counsel also contended that no witnesses
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No. 1-24-0499B
“made statements to police at the scene after the shooting”—one of the victim’s friends initially
told police that he “didn’t see anything,” and only spoke to officers three hours later, while the
other friend did not give a statement until more than two months later. Defense counsel alleged
that the delay allowed the witnesses an opportunity “to agree on [a] peculiar,” “self-serving” and
“bizarre narrative of events,” which “require[d] a fact finder to believe that [the] 17-year-old
[defendant] somehow took control of two assault rifles and a handgun (in addition to another
handgun he allegedly possessed) prior to the shooting.” Accordingly, counsel argued that the
witnesses’ statements were “not sufficiently credible to meet the State’s burden of proving by clear
and convincing evidence that the proof is evident or the presumption is great that [defendant] killed
the decedent without lawful justification.”
¶ 23 The appeal is brought pursuant to Public Act 101-652, § 10-255 (eff. Jan. 1, 2023),
commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act
(Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the
Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date of Act as
September 18, 2023). This court has jurisdiction pursuant to article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 604(h) (eff. Sept. 18,
2023).
¶ 24 The Act amended the Code by abolishing traditional monetary bail in favor of pretrial
release on personal recognizance or with conditions of release. 725 ILCS 5/110-1.5, 110-2(a)
(West 2022). For qualifying offenses, upon filing a verified petition requesting denial of pretrial
release, the State has the burden to prove by clear and convincing evidence (1) that the proof is
evident or the presumption great that the defendant has committed a qualifying offense (725 ILCS
5/110-6.1(e)(1) (West 2022)), (2) that the defendant’s pretrial release poses a real and present
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No. 1-24-0499B
threat to the safety of any person or persons or the community (725 ILCS 5/110-6.1(a)(1)-(7),
(e)(2) (West 2022)) or a high likelihood of willful flight to avoid prosecution (725 ILCS 5/110-
6.1(a)(8), (e)(3) (West 2022)), and (3) that no condition or combination of conditions can mitigate
the real and present threat to the safety of any person or the community or prevent the defendant's
willful flight from prosecution (725 ILCS 5/110-6.1(e)(3) (West 2022)).
¶ 25 Pursuant to Illinois Supreme Court Rule 604(h)(2), the “appellant may file, but is not
required to file, a memorandum not exceeding 4500 words, within 21 days of filing of the Rule
328 supporting record.” Ill. Sup. Ct. R. 604(h)(2). In this case, defendant chose not to file a Rule
604(h) memorandum. Instead, defendant filed a “Notice *** in Lieu of Rule 604(h)
Memorandum,” informing this court that defendant has elected to stand on the notice of appeal
and the attached document entitled “Grounds for Relief.”
¶ 26 The sole claim raised in defendant’s notice of appeal is that “[t]he State failed to meet its
burden of proving by clear and convincing evidence that the proof is evident or the presumption
great that defendant committed the offense(s) charged,” first degree murder. Specifically, he
contends that the State failed to sufficiently prove that defendant committed the offense charged
because its proffer did not include “video or audio surveillance” of the shooting, forensic evidence
linking defendant to the murder, or the murder weapon. Defendant also contends that the witness
statements on which the State based their proffer “are not sufficiently credible” because they are
“self–serving,” present “a bizarre narrative of events,” and are “otherwise lack[ing] indicia of
reliability.”
¶ 27 The applicable standard of review in a pre-trial detention appeal has been the source of
considerable disagreement in the Illinois appellate courts. Some appellate decisions have
concluded that all aspects of detention hearings under the Act are subject to abuse of discretion
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No. 1-24-0499B
(see People v. Whitmore, 2023 IL App (1st) 231807, ¶¶ 18-19; People v. Inman, 2023 IL App (4th)
230864, ¶ 11) while others have exclusively utilized the manifest weight of the evidence standard
(see People v. Stock, 2023 IL App (1st) 231753, ¶ 12; People v. Rodriguez,2023 IL App (3d)
230450, ¶ 8). Other courts have adopted a mixed approach, under which the circuit court’s
determinations that the State has proved by “clear and convincing evidence” that the defendant
committed a qualifying offense, and that he is dangerous, is reviewed for the manifest weight of
the evidence, while the ultimate decision regarding detention, or the imposition of conditions of
release are subject to abuse of discretion review. See People v. Parker, 2024 IL App (1st) 232164,
¶ 50; People v. Saucedo, 2024 IL App (1st) 232020, ¶¶ 31-36; People v. Hodge, 2024 IL App (3d)
230543, ¶ 8; People v. Vingara, 2023 IL App (5th) 230698, ¶ 10; People v. Trottier, 2023 IL App
(2d) 230317, ¶ 13; People v. Reed, 2023 IL App (1st) 231834, ¶ 24, 31. Still others have concluded
that appeals under the Act should be reviewed de novo. See People v. Battle, 2023 IL App (1st)
231838, ¶ 18; Saucedo, 2024 IL App (1st) 232020 (Ellis, J., specially concurring).
¶ 28 We agree with those cases which have applied a mixed approach, and believe that the
circuit court’s determination that the State has proved by “clear and convincing evidence” that the
defendant committed a qualifying offense, should be reviewed for the manifest weight of the
evidence. See Saucedo, 2024 IL App (1st) 232020, ¶¶ 31-36; Parker, 2024 IL App (1st) 232164,
¶ 50. Nonetheless, we would affirm the circuit court’s judgment under any standard for the
following reasons.
¶ 29 Initially, we note that, at this stage, the State does not need to prove defendant’s guilt
beyond a reasonable doubt. Stock, 2023 IL App (1st) 231753, ¶ 13. Instead, the State need only
show that the proof is evident or the presumption great that the defendant has committed a
qualifying offense “by clear and convincing evidence” (725 ILCS 5/110-6.1(e)(1) (West 2022)),
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No. 1-24-0499B
and such a showing may be made by proffer “based upon reliable information” (725 ILCS 5/110-
6.1 (f)(2) (West 2022)). The clear and convincing standard “requires proof greater than a
preponderance, but not quite approaching the criminal standard of beyond a reasonable doubt.” In
re D.T., 212 Ill. 2d 347, 362 (2004).
¶ 30 In this case, the State’s proffer established that eyewitnesses would testify to a consistent
version of events in which the victim and those witnesses went to an apartment to engage in an
illegal gun transaction with defendant. During that exchange, defendant deceived them into turning
over those guns, and then shot the victim twice. The witnesses later identified defendant as the
shooter in photo arrays and still photographs, and their statements were corroborated by text
messages confirming the plan to exchange weapons. The record also shows that defendant was
seen by another witness at the apartment on the day of the incident, and he fled after the shooting,
giving police a fake name when apprehended. Police recovered one .45 caliber shell casing inside
the residence, and located two AR rifles in a nearby dumpster. Based on the record in this case,
the trial court reasonably found that the State’s proffer established by clear and convincing
evidence that the proof is evident or the presumption great that the defendant committed the
charged offense of first-degree murder.
¶ 31 Although defendant complains that there was no video or audio surveillance of the incident,
no forensic evidence, and the murder weapon was not recovered, such evidence is not required,
even under the more rigorous standard of proof beyond a reasonable doubt. See People v. Williams,
182 Ill. 2d 171, 192 (1998) (“Proof of physical evidence connecting a defendant to a crime has
never been required to establish guilt.”); People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009)
(“the testimony of a single witness, if positive and credible, is sufficient to convict, even though it
is contradicted by the defendant.”). And while defendant argues that the court should not have
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No. 1-24-0499B
believed the witnesses’ accounts due to their allegedly “bizarre” nature and their delay in speaking
to police, the record shows no evidence, other than defendant’s mere speculation, which would
dispute the witnesses’ version of events. Moreover, the record shows that one of the witnesses
spoke to police a mere three hours after the shooting, which can hardly be argued to be so extreme
that it would bear negatively on the witness’s credibility. In these circumstances, we find no basis
to conclude that those accounts are inherently unreliable or incredible.
¶ 32 For the foregoing reasons, we find no error in the trial court’s conclusion that the State met
its burden of showing clear and convincing evidence that defendant committed the offense of first-
degree murder, and we affirm the judgment of the circuit court of Cook County.
¶ 33 Affirmed.
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