People v. Livingston , 2021 IL App (1st) 180701-U ( 2021 )

2021 IL App (1st) 180701-UNo. 1-18-0701
FIFTH DIVISION
JUNE 18, 2021
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 DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 18305
)
DOUGLAS LIVINGSTON, ) Honorable
) Timothy J. Joyce,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court.
Justices Hoffman and Rochford concurred in the judgment.
ORDER
¶1 Held: The defendant’s conviction is affirmed over his contention that his jury waiver was
rendered invalid by the “surprise disclosure” of evidence during trial.
¶2 Following a bench trial, the defendant Douglas Livingston was found guilty of first degree
murder (720 ILCS 5/9-1(a)(1) (West 2012)) and aggravated battery with a firearm (720 ILCS 5/12-
3.05(e)(1) (West 2012)), and sentenced to consecutive terms of 40 years and 6 years, respectively.
No. 1-18-0701
On appeal, the defendant contends that his jury waiver was rendered invalid by the “surprise
disclosure” of evidence during trial. We affirm the judgment of the circuit court of Cook County.
¶3 Following a July 21, 2012 incident during which Roshone Eldridge was fatally shot and
Sharon Greer suffered a gunshot wound, the defendant was charged with eight counts of first
degree murder, two counts of attempted first degree murder, and one count of aggravated battery
with a firearm.
¶4 BACKGROUND
¶5 On May 30, 2017, the trial court explained the difference between a jury trial and a bench
trial to the defendant. In particular, the court told the defendant that he had the right to a jury trial
in which 12 citizens from the community would listen to the evidence and the arguments, be
instructed on the law by the court, and would have to unanimously agree whether the defendant
was proven guilty of the charge. The defendant stated that he understood the court’s explanation.
The court asked the defendant whether he understood that by signing a written jury waiver, he was
indicating that he wished to waive his right to a jury trial. The defendant stated that he understood
that he was waiving his right to a “jury trial” and that he wanted a bench trial. The defendant
confirmed that he was not promised anything, forced, or coerced into choosing a bench trial, and
had made the decision freely and voluntarily. The court accepted the defendant’s signed jury
waiver, which is included in the record on appeal. The matter was tried before the court and the
following evidence was adduced.
¶6 Sharon testified that in 2012, she lived in the 5700 block of South Sangamon Street in
Chicago with family members including her adult sons Calvin and Kevin. 1 She was engaged to
1
For clarity, we will refer to the members of the Greer family by their given names.
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Eldridge, who lived one house away. Around 11:30 p.m. on July 20, 2012, Sharon, Eldridge, and
Eldridge’s mother returned home to discover two “little boys” shooting BB guns or throwing rocks
at Eldridge’s truck, which was parked in the vacant lot adjacent to his home. Eldridge asked the
boys why they were “doing that” and who would pay if a window were broken. The children
walked down the street. Next, a large group of people approached Sharon’s and Eldridge’s homes.
The defendant was at the front of the group. Sharon testified that she had known the defendant
since she was a teenager. At this time, Sharon and Eldridge were on Eldridge’s porch. The porch
light was on, as were the streetlights and the porch light at a neighbor’s home. An argument ensued
regarding whether Eldridge threatened the children. At one point, defendant said he would “lay
[Eldridge] down for six months,” which Sharon understood as a threat to shoot or kill Eldridge.
Sharon tried to deescalate the situation and the group eventually left.
¶7 Later, as Eldridge and Sharon discussed getting food, she saw a shadow, turned her head,
and saw the defendant holding a firearm which he began to fire. Nothing obstructed her view of
the defendant. There was another individual across the street, but Sharon could not see that
person’s face. Eldridge fell to the ground. Sharon also fell to the ground and later passed out as an
ambulance took Eldridge to the hospital. Sharon later realized that she had suffered a gunshot
wound to the wrist. Eldridge died on July 24, 2012. Sharon spoke to police and identified the
defendant as the shooter. She also identified the defendant in a photographic array and a lineup.
¶8 During cross-examination, Sharon testified that the crowd that had approached Eldridge’s
house was large, but only the defendant threatened Eldridge. She did not remember speaking to
police officers at the scene of the shooting, but thought she told Chicago police detective Brian
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Forberg that the defendant was the shooter. Sharon denied telling Chicago police officer Michael
Callahan that two men came through the vacant lot; rather, she identified the defendant.
¶9 During redirect examination, Sharon testified that she was “destroyed” when she briefly
spoke to Detective Forberg at the hospital on July 21, 2012. During questioning by the court.
Sharon testified that Detective Forberg asked a lot of questions and she only “[v]aguely”
remembered her answers.
¶ 10 Officer Callahan testified that he spoke to Sharon at the scene and that she stated two “male
blacks” came through a vacant lot and shot Eldridge. During cross-examination, Officer Callahan
testified that he only spoke to Sharon at the scene. During redirect, he described Sharon as
“shooken up.” Upon questioning by the court, he testified that he did not believe that Sharon said
the offender was 30 to 40 years old.
¶ 11 On July 13, 2017, the second day of defendant’s trial, the trial court indicated that the State
had learned new information from Kevin to court and tendered that material to the defense. The
defense requested a continuance so that it could investigate the allegations. The trial court asked
whether it was correct that the information came to light that day, and the State answered yes. The
trial court then stated:
“It’s not something that the State held in their back pocket negligently or
purposefully. *** The parties advised me that this *** information *** came up today. I
will give the State two options. If they wish to proffer testimony relating to this new
information only learned today, I will give the Defense a continuance, *** or the State can
proceed with its testimony today, but I will not permit the State to elicit testimony
concerning that new information. How does the State wish to proceed?”
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¶ 12 The State offered to bring Kevin back on the next court date so that the defense could
investigate the information. Defense counsel agreed, and the trial court granted a continuance.
¶ 13 However, before adjourning for the continuance, Calvin testified. On the evening of July
21, 2012, Calvin was on the front porch with Kevin and others. Between 11 and 11:30 p.m., three
or four kids around 12 years old were shooting BB guns at Eldridge’s truck. When Eldridge
returned home, he asked the kids to “take it down the street,” and they ran off. Soon after, a group
of people, including the defendant, approached and the situation went “left field.” The group, with
the defendant as the “main one,” told Eldridge that “he was gone get his” and “they gone put him
6 feet under.” As Sharon and Calvin tried to defuse the situation, Eldridge’s mother came out and
said she would call the police. The defendant then said, “who was riding with him going get theirs
too,” then “flashed” a firearm and walked away.
¶ 14 Around an hour later, Calvin was on the porch steps and heard gunshots from the side of
Eldridge’s house where the vacant lot was located. Calvin walked onto the sidewalk and saw the
defendant run past him while firing a weapon. Sharon and Eldridge were both on the ground and
Calvin thought they were dead. Sharon got up but Eldridge had wounds to his back. When police
officers arrived, Calvin spoke to two detectives, identified the defendant as the shooter, and
described him as between 30 to 40 years old, with “light skin,” bowlegged and skinny, and wearing
a white t-shirt and shorts. The following day, Calvin identified defendant in a photographic array
and in video surveillance footage from a nearby business. On August 30, 2012, Calvin identified
defendant in a lineup.
¶ 15 During cross-examination, Calvin denied showing a firearm to the group that had
confronted Eldridge. At the time of the shooting, Calvin could only see a shadow, but then saw the
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shooter. When he met with a detective, Calvin identified the defendant as the shooter. He described
the defendant as between 30 and 40 years old with a “low” haircut. During redirect examination,
Calvin testified that he initially only saw a shadow, but the shooter continued to shoot while fleeing
and that allowed him to see that it was the defendant. The case was then continued.
¶ 16 On August 4, 2017, Kevin, who acknowledged a 2014 conviction for possession of a
controlled substance, testified consistently with Calvin that some teenagers shot BB guns at
Eldridge’s truck, Eldridge told them to stop, the kids left, and soon after a group of about 10 people
approached and asked Eldridge why he had threatened the kids. The defendant was in the group.
When Eldridge’s mother threatened to call the police, the defendant lifted his shirt to reveal the
handle of a firearm and said whoever was “riding” with Eldridge “could get it too.” The group
then left. Around 30 minutes later, there was “a lot” of shooting from the side of Eldridge’s home.
Initially, Kevin could not see the shooter, but as he continued to look, he recognized the defendant.
Kevin explained that as the defendant ran, his face became visible. Kevin stayed on the porch after
the shooting where he was later approached by Detective Forberg. The following day, Kevin
identified the defendant in a photographic array and on a surveillance video from the store across
the street. He later also identified the defendant in a lineup.
¶ 17 Kevin did not see the defendant again until November 20, 2014, when they were both in
custody and met in the “bullpen” at the county jail. The defendant apologized for “what he did,”
said he did not “mean it to go like that,” and told Kevin to tell Sharon not to come to court. The
defendant also offered to pay Sharon. Kevin did not see the defendant again.
¶ 18 During cross-examination, Kevin testified that he was in the bullpen at the county jail
because of a pending case against him. Kevin reiterated that while in the bullpen, the defendant
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No. 1-18-0701
said he was “sorry,” and it was not meant “to go like that.” Kevin did not tell anyone what the
defendant said until the prior court date. Kevin acknowledged testifying before the grand jury that
the group threatened Eldridge but did not remember describing the defendant’s hair style or stating
that the defendant wore a hat.
¶ 19 During redirect examination, Kevin testified that he identified the defendant as the shooter
during the initial conversation with a detective. When the defendant initially confronted Eldridge
regarding threatening the kids, he was wearing a white t-shirt and khaki shorts, and although the
shooter later wore the same outfit, Kevin testified that he identified the defendant by his face, not
his clothes.
¶ 20 Detective Forberg testified that when he arrived at the scene, Eldridge and Sharon were no
longer present. However, he spoke with Kevin and Calvin who identified the shooter as the
defendant. They described the defendant as 30 to 40 years old with a medium complexion and a
“low” haircut. Kevin also stated the defendant was bowlegged. Detective Forberg then went to the
hospital to talk to Sharon, who had a gunshot wound and lacked the “right mental composure” to
talk. He later obtained surveillance video from a nearby store which showed an individual wearing
a white t-shirt and shorts with a “bowlegged gait,” as well as the discharge of a firearm toward
Eldridge’s address. Detective Forberg further testified that the defendant was arrested in Minnesota
on August 6, 2012, and thereafter brought back to Chicago.
¶ 21 The surveillance footage was played for the court. This footage is included in the record
on appeal and shows flashes of light and a man wearing a light-colored hat and outfit running
away.
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¶ 22 During cross-examination, Detective Forberg did not recall either Kevin or Calvin stating
that the defendant showed a firearm during the confrontation with Eldridge or that he wore a hat.
He acknowledged that the firearm used in the shooting was not recovered from the defendant;
rather, it was recovered in connection with the arrest of a man named Joseph Grant.
¶ 23 During redirect examination, Detective Forberg testified that Kevin and Calvin said the
shooter wore a white t-shirt and shorts, and the person he observed in the surveillance footage
wore the same outfit. During recross examination, Detective Forberg acknowledged that the person
in the footage wore a white hat but did not recall anyone stating the defendant wore a hat.
¶ 24 Chicago Police Department evidence technician Juan Aguirre testified that he recovered
four cartridge cases from the crime scene. The State entered stipulations that a firearms expert
would testify that two firearms were used during the offense and that a medical examiner would
testify that Eldridge sustained eight gunshots wounds which were the cause of his death.
¶ 25 In closing argument, defense counsel stated that five years after the shooting, new evidence
was revealed including that the defendant “flashed” a firearm during the confrontation and
confessed to Kevin. Counsel argued it was “completely incredible” that Kevin never told anyone
about the defendant’s confession and first mentioned it at trial. Counsel also noted the hat, the lack
of lighting, and the speed of the incident, and concluded that the family decided “at some point”
that the defendant was the shooter. The State responded that Kevin and Calvin had immediately
identified the defendant to Detective Forberg, including his bowlegged gait, and that Sharon,
despite being “hysterical” at the time, did the same. The State also argued that the video evidence
corroborated the witnesses’ testimony.
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¶ 26 In finding the defendant guilty of the first degree murder of Eldridge and aggravated battery
with a firearm against Sharon, the court rejected the defense theory that the family decided to name
the defendant as the shooter. The court noted that Calvin and Kevin identified the defendant as the
shooter while Sharon was elsewhere without knowing whether she would “back them up.” The
witnesses also gave a physical description. While the hat might have been “much more important”
if the defendant were a stranger, the witnesses recognized and named the defendant. The court
found the defendant not guilty of attempted murder.
¶ 27 On September 11, 2017, defense counsel filed a motion for a new trial. However, at the
hearing on the motion, counsel stated that the defendant had retained new counsel and asked leave
of court to withdraw. Posttrial defense counsel then entered his appearance, filed a motion for a
new trial, and stated that the motion would be supplemented following review of the trial
transcripts and discovery.
¶ 28 On January 18, 2018, posttrial defense counsel filed a motion for acquittal or new trial.
Relevant to this appeal is the allegation that the defendant’s jury waiver was invalid because it was
made without the defendant’s knowledge of all the evidence against him. The motion
acknowledged that the State “apparently” learned of the defendant’s statement to Kevin on July
13, 2017, but argued that if this information had been disclosed prior to trial, the defendant may
not have chosen a bench trial.
¶ 29 On March 2, 2018, the trial court heard argument on the motion. That State reiterated that
it learned of the defendant’s statement to Kevin for the first time on July 13, 2017, and that the
court and trial counsel were immediately informed. Posttrial counsel responded that the defendant
was entitled to know the evidence against him prior to making a jury waiver, and that in this case,
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the defendant had no idea an “incriminating statement” would be admitted. Counsel argued that
the case went from an “identification case” to an “identification case with a statement.” Counsel
concluded that the defendant’s jury waiver was invalid because it was made without knowledge of
the evidence the defendant would be facing at trial.
¶ 30 In denying the defendant a new trial, the court stated it believed the State’s representation
that it learned of the statement on July 13, 2017, and that this representation was corroborated by
Kevin’s testimony that he never told anyone about the statement until July 13, 2017. The court
noted that Kevin was cross-examined on his failure to tell anyone about the statement. The court
also noted that when rendering its guilty finding, there was “no reference whatsoever” to the
“purported statement”; rather the analysis “centered” on the efficacy and manner of the
identifications by the State’s witnesses. After hearing evidence in aggravation and mitigation, the
trial court sentenced the defendant to 40 years in prison for first degree murder and to a consecutive
6-year term for aggravated battery with a firearm. The defendant did not file a postsentencing
motion but did file a timely notice of appeal. Accordingly, this court has jurisdiction.
¶ 31 ANALYSIS
¶ 32 On appeal, the defendant contends that his jury waiver was “negated” by the “surprise
disclosure” during trial that Kevin would testify that the defendant made an inculpatory statement.
He argues that the disclosure of this evidence could have affected his decision to waive a jury trial.
He acknowledges that this issue was not preserved for appeal due to his failure to make a
contemporaneous objection at trial but asks this court to review his claim pursuant to the plain
error doctrine. The State responds that the defendant cannot establish plain error because no error
occurred in this case.
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¶ 33 Generally, to preserve an error for appellate review, a defendant must make both a
contemporaneous objection at trial and raise the issue in a posttrial motion. See, e.g., People v.
Enoch, 122 Ill. 2d 176, 186 (1988). The plain error doctrine permits this court to consider an
unpreserved error when an error occurred and (1) the evidence was so closely balanced that the
error alone threatened to tip the scales of justice against the defendant; or (2) the error was so
serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551,
564-65 (2007). An error that deprives the defendant of his right to a jury trial is reviewable under
the second prong of the plain error doctrine because it is a fundamental right. People v. Bracey,
213 Ill. 2d 265, 270 (2004). Our first inquiry, however, is whether an error occurred. See People
v. Hood, 2016 IL 118581, ¶ 18 (without error, there can be no plain error).
¶ 34 The right to a jury trial includes a defendant’s right to waive a jury trial. People v.
Bannister, 232 Ill. 2d 52, 65 (2008). To be valid, a jury waiver must be knowingly and
understandingly made. Bracey, 213 Ill. 2d at 269-70. Whether a jury waiver is valid depends on
the facts and circumstances of each case and does not rest on any “precise formula.” People v.
Clay, 363 Ill. App. 3d 780, 791 (2006). The key concept that the defendant must understand is that
the judge, not a jury, will be deciding his case. Bannister, 232 Ill. 2d at 69. “Although a signed
jury waiver alone does not prove a defendant’s understanding, it is evidence that a waiver was
knowingly made.” People v. Reed, 2016 IL App (1st) 140498, ¶ 7. It is the defendant’s burden to
establish that his jury waiver was invalid. Id. Where, as here, the facts relating to the jury waiver
are not disputed, we review de novo whether the defendant knowingly and understandingly waived
his right to a jury trial. Bracey, 213 Ill. 2d at 270.
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¶ 35 Initially, we note that the defendant does not challenge the validity of his May 30, 2017
jury waiver at its inception; rather, he argues that its validity was negated on July 13, 2017, when
Kevin disclosed for the first time that the defendant had made an inculpatory statement. The
defendant argues that Kevin’s testimony changed the “nature” of the case such that his jury trial
waiver was not knowingly and understandingly made. He relies on People v. Aguilar, 218 Ill. App.
3d 1 (1991), and People v. Blackman, 359 Ill. App. 3d 1013 (2005), for the proposition that a jury
waiver may be invalid when a defendant is denied critical information about his case.
¶ 36 In Aguilar, during the defendant’s bench trial, the arresting officer revealed during cross-
examination, that an informant had been paid cash for help arranging certain drug transactions.
Aguilar, 218 Ill. App. 3d at 4, 9. The defendant, relying on his pretrial discovery request that the
State disclose any consideration paid to a witness in exchange for, or in relation to, testimony,
moved to dismiss the indictment. Id. at 9. The trial court denied the motion but granted a six-week
continuance. The defendant was thereafter found guilty of delivery of a controlled substance.
¶ 37 On appeal, the appellate court found that the State had ignored the defendant’s discovery
request by not disclosing that the State’s informant was paid. Id. at 9-10. Although the appellate
court recognized that the continuance permitted the defendant to “obtain the same mileage” from
the previously undisclosed evidence, it still reversed and remanded the case because the defendant
was “denied the full opportunity to prepare his defense and make tactical decisions with the aid of
[the] information.” Id. at 10. In particular, the defendant suffered “extreme prejudice” because if
he had received the information in a timely way, he may have elected a jury trial over a bench trial.
Id. The appellate court also considered whether the six-week continuance was an appropriate
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discovery sanction and concluded that the “appropriate remedy” was a new trial. The appellate
court remanded the case for a new trial. Id. at 10-11.
¶ 38 In Blackman, this court relied on Aguilar to find that the trial court’s offer of a continuance
was insufficient to remedy the prejudice suffered by the defendant when the State failed to disclose
that one of its key eyewitnesses had been paid $20,000 in relocation expenses. Blackman, 359 Ill.
App. 3d at 1021. We noted that the defendant could not have made “an informed and intelligent
waiver of his right to a jury trial because the State violated the discovery rules” by not disclosing
a material fact. Id. at 1019, 1021.
¶ 39 In this case, we are unpersuaded by the defendant’s reliance on Aguilar and Blackman
because those cases dealt with the State’s failure to disclose evidence. Pursuant to Supreme Court
Rule 415(b) (eff. Oct. 1, 1971), a party has a continuing duty to disclose any additional material
or information which is discovered after initial compliance with discovery and “if additional
material or information is discovered during trial, the court shall also be notified.” In this case, the
State complied with the rule. When Kevin disclosed his 2014 conversation with the defendant, the
State immediately informed the trial court and defense counsel. Although the defendant concedes
that the State did not fail to disclose the evidence at issue, he argues that the principle is the “same”
regardless of the cause of the late disclosure. However, he cites no support for applying that
principle when a witness, rather than the State, fails to disclose evidence.
¶ 40 Thus, the defendant cannot establish that the State failed to disclose the evidence at issue
in this case. See Brady v. Maryland, 373 U.S. 83 (1963). On the contrary, the record reveals that
the State immediately disclosed the evidence once it was revealed and thus complied with Rule
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415(b). Absent error, the defendant cannot establish plain error (Hood, 2016 IL 118581, ¶ 18), and
his argument fails.
¶ 41 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 42 Affirmed.
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