People v. Quick

2020 IL App (2d) 170711-UNo. 2-17-0711
Order filed March 11, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 14-CF-710
)
DONEVIN QUICK, ) Honorable
) Donald M. Tegeler,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Justices McLaren and Hutchinson concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment was affirmed where (1) the record did not support
defendant’s argument that he was never properly admonished of the possibility of
being tried in absentia and (2) the trial court did not abuse its discretion in admitting
into evidence photographs depicting a text message exchange.
¶2 Following a trial in absentia in the circuit court of Kane County, a jury found defendant,
Donevin Quick, guilty of unlawful delivery of a controlled substance containing less than one gram
of heroin, a Class 2 felony. Due to defendant’s criminal history, he was required to be sentenced
as a Class X offender. The court sentenced defendant in absentia to 10 years in prison. Defendant
appeals, arguing that he was never orally admonished of the possibility of being tried in absentia
2020 IL App (2d) 170711-Uand that the court erred in admitting photographs of text messages without the proper
authentication and foundation. For the reasons that follow, we affirm. However, on our own
motion, we correct the mittimus to reflect that defendant was convicted of violating section
401(d)(i) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d)(i) (West 2014)),
not section 407(a)(2)(B) of the Act (720 ILCS 570/407(a)(2)(B) (West 2014)).
¶3 I. BACKGROUND
¶4 Defendant and Jeanine Oliver allegedly sold heroin to an undercover police officer on April
18, 2014. On April 28, 2014, defendant was charged by complaint with (1) unlawful delivery of
a controlled substance within 1000 feet of a church (720 ILCS 570/407(b)(2) (West 2014)), a Class
1 felony, and (2) unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West
2014)), a Class 2 felony. That day, the court issued a warrant for defendant’s arrest. On October
16, 2014, defendant was arrested on that warrant.
¶5 Defendant’s first court appearance was for a bond call on October 17, 2014, before Judge
Robert K. Villa. The record does not contain a transcript of those proceedings, and the supervisor
of court reporters for the 16th judicial circuit signed an affidavit attesting that no reporter was
present. The record contains three preprinted orders entered on October 17, 2014. The first order
indicates, inter alia, that “[r]ights, penalties and trial in absentia have been explained to the
defendant.” The second order, which remanded defendant to the custody of the sheriff, likewise
indicates that “[r]ight [sic], penalties and trial in absentia have been explained to the defendant.”
A third order that was entered that day is duplicative of the second order.
¶6 On February 18, 2015, a grand jury indicted defendant in connection with the April 18,
2014, drug transaction on one count of unlawful delivery of a controlled substance within 1000
feet of a church. On February 25, 2015, the court, Judge Susan Clancy Boles presiding, arraigned
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2020 IL App (2d) 170711-Udefendant on that indictment, and defendant pleaded not guilty. Although the written order entered
that day states “Defendants [sic] rights and penalties explained,” a transcript of the proceedings
confirms that defendant was not admonished that day about the possibility of a trial in absentia.
Similarly, trial scheduling orders that were entered on April 8, 2015, and February 2, 2017, both
indicate that “[t]he defendant has been admonished with respect to a trial in absentia.” The
transcripts of those proceedings, however, confirm that defendant was not admonished on those
days about the possibility of a trial in absentia.
¶7 Although defendant generally attended his scheduled court dates prior to trial, he failed to
appear in court on May 17, 2017, for the final pretrial conference. That day, the court, Judge Linda
S. Abrahamson presiding, granted the State’s motion in limine to admit as co-conspirator
statements Oliver’s text messages with an undercover police officer, provided that the State laid
the proper foundation at trial.
¶8 Defendant failed to appear for trial on May 22, 2017. That day, the court, Judge Donald
M. Tegeler presiding, reviewed the February 25, 2015, and April 8, 2015, orders that Judge Boles
had entered. Judge Tegeler believed that those orders showed that defendant had been warned of
the possibility of a trial in absentia, so the court proceeded with the scheduled jury trial in
defendant’s absence.
¶9 The evidence at trial showed that Officer Donald Wells of the Carpentersville police
department worked as an undercover narcotics officer. Around April 17, 2014, Officer Wells met
Oliver, who went by the nickname “Gigi.” When they met, Gigi gave Officer Wells her telephone
number. On April 17 and April 18, 2014, Officer Wells exchanged numerous text messages with
at least one person at this telephone number. Over defense counsel’s objection, the court admitted
into evidence photographs depicting this exchange of text messages. Many of the messages that
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2020 IL App (2d) 170711-UOfficer Wells received appear from their context to have been sent by Gigi. Some of the messages,
however, were purportedly sent by someone who identified himself as “Don” and claimed to be
Gigi’s “old man.” Via his text communications with this phone number, Officer Wells arranged
to meet at a restaurant in Elgin on April 18, 2014, to purchase heroin. At some point on April 18,
Officer Wells received a call from this same phone number; Gigi was on the phone, and Officer
Wells recognized her voice from their previous interaction.
¶ 10 On April 18, 2014, Officer Wells arrived at the agreed location at the agreed time, and
other police officers conducted surveillance in an unmarked car from a distance. A black Ford
Ranger pickup truck arrived and parked near Officer Wells. Officer Wells noticed that Gigi was
sitting in the passenger’s side of that truck and a male was in the driver’s seat. Officer Wells
approached the passenger’s side of the truck. During a brief conversation with both Gigi and the
driver of the truck, Officer Wells handed Gigi $40. Gigi gave that money to the driver of the truck,
who then handed Officer Wells four baggies of a gray, rock-like substance. No arrests were made
at that time, and Officer Wells and the other officers drove back to the police station. Officers ran
the plates on the truck and determined that it was registered to defendant. Officers then obtained
a photograph of defendant through the Secretary of State. Officer Wells identified the person in
that photograph as the man who had been with Gigi in the truck during the drug transaction.
Subsequent laboratory testing indicated that one of the four bags (the only one that was tested)
contained heroin.
¶ 11 The court granted defense counsel’s motion for a directed verdict on the charge of unlawful
delivery of a controlled substance within 1000 feet of a church, as the State failed to present
evidence that the subject church was operational on the day of the drug transaction. The court
allowed the State to proceed on the lesser-included charge of unlawful delivery of a controlled
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2020 IL App (2d) 170711-Usubstance. The jury found defendant guilty of that charge. Defendant did not appear in court for
the sentencing hearing, and the court sentenced him to 10 years in prison. Defendant timely
appealed.
¶ 12 II. ANALYSIS
¶ 13 Defendant argues that he was not properly tried and sentenced in absentia and that the court
erred in admitting the photographs of the text message exchange.
¶ 14 A. Trial in Absentia
¶ 15 Defendant first argues that it was plain error for the court to try and sentence him in
absentia, as he was never orally admonished of the possibility of being tried in absentia.
Defendant invokes the second prong of the plain-error doctrine: i.e., that a clear or obvious error
was “so serious that it affected the fairness of the *** trial and challenged the integrity of the
judicial process.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). The State responds by
emphasizing that the court orders that were entered on October 17, 2014, reflect that defendant
was indeed warned of the possibility of a trial in absentia. According to the State, even though
there was no court reporter present that day, it was defendant’s burden to provide a bystander’s
report of the proceedings. The State maintains that, because defendant failed to present a complete
record, we must construe any ambiguities in the record against him. In his reply brief, defendant
contends that, because the October 17, 2014, orders do not reflect whether he was orally
admonished of the possibility of a trial in absentia (as opposed to being provided written
warnings), it would “create[ ] a dangerous precedent” for us to infer that he was properly orally
admonished. Defendant further submits that it would be an “unreasonable request” to require him
to provide a bystander’s report for a proceeding that occurred more than five years ago.
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2020 IL App (2d) 170711-U¶ 16 The first step in the plain-error analysis is to determine whether any error occurred. See
Piatkowski, 225 Ill. 2d at 565. For the following reasons, we conclude that no error occurred.
¶ 17 A criminal defendant has both the right and the duty to be present at trial. People v. Garner,
147 Ill. 2d 467, 481 (1992). “A prerequisite to enforcing a defendant’s duty to be present by
proceeding in his voluntary absence is that the defendant understand that he has such a duty as
well as the right to be present.” Garner, 147 Ill. 2d at 481-82. To that end, section 113-4(e) of
the Code of Criminal Procedure of 1963—which is contained within an article of the Code
governing arraignment—provides that a defendant must be warned of the possibility of a trial in
absentia:
“If a defendant pleads not guilty, the court shall advise him at that time or at any later court
date on which he is present that if he escapes from custody or is released on bond and fails
to appear in court when required by the court that his failure to appear would constitute a
waiver of his right to confront the witnesses against him and trial could proceed in his
absence.” 725 ILCS 5/113-(4)(e) (West 2018).
Our supreme court has interpreted section 113-4(e) of the Code as requiring trial judges to provide
defendants in-absentia warnings orally and in open court. People v. Phillips, 242 Ill. 2d 189, 199-
200 (2011). If the trial court fails to provide such admonishments, the defendant may not be tried
or sentenced in absentia. See, e.g., People v. Watson, 109 Ill. App. 3d 880, 882-84 (1982) (where
the defendant was never personally admonished of the possibility of a trial in absentia, the trial
court committed plain error by holding a trial in the defendant’s absence).
¶ 18 Here, Judge Tegeler determined on the first day of trial that Judge Boles’s February 25,
2015, and April 8, 2015, orders showed that Judge Boles had properly admonished defendant about
the possibility of a trial in absentia. Accordingly, Judge Tegeler ruled that it was permissible to
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2020 IL App (2d) 170711-Uproceed in defendant’s absence. As the State concedes, despite what those two court orders entered
by Judge Boles suggest, the transcripts confirm that the issue of trial in absentia was not discussed
in court on those days. In fact, the record does not contain any transcript showing that defendant
was personally given trial-in-absentia admonishments by the court. Of course, Judge Tegeler had
no way of knowing this, as the matter was transferred to him on the day of trial and he did not have
access to the transcripts of the pretrial proceedings.
¶ 19 Nevertheless, as the State notes, we review the trial court’s judgment, not its reasoning,
and we may affirm on any basis supported by the record. People v. Betance-Lopez, 2015 IL App
(2d) 130521, ¶ 60. The preprinted orders that were entered on October 17, 2014, indicate via
handwritten marks in the designated boxes that “[r]ights, penalties and trial in absentia have been
explained to the defendant.” The record does not contain a transcript of those proceedings or an
acceptable substitute (see Ill. S. Ct. R. 323 (eff. July 1, 2017)). Therefore, we must accept the
accuracy of these written orders and “assume that defendant was correctly admonished regarding
trial in absentia.” People v. Martinez, 361 Ill. App. 3d 424, 427 (2005).
¶ 20 Defendant suggests in his reply brief that the language of the October 17, 2014, orders does
not foreclose the possibility that he was given written rather than oral in-absentia warnings. As
the appellant, however, defendant bears “the burden to present a sufficiently complete record of
the proceedings at trial to support a claim of error,” and we must resolve any doubts which arise
from the incompleteness of the record against him. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92
(1984). Contrary to what defendant argues, it is not an “unreasonable request” to require him to
provide a complete record. Although no court reporter was present on October 17, 2014, Rule
323(c) allows for the preparation of a bystander’s report using “the best available sources,
including recollection.” That rule also permits a party to “request from the court official any
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2020 IL App (2d) 170711-Urecording of the proceedings.” Defendant provides no indication that he investigated the
possibility of preparing a bystander’s report for the October 17, 2014, proceedings.
¶ 21 Defendant has failed to demonstrate error, and he has thus failed to meet his burden under
the plain-error doctrine.
¶ 22 B. Text Messages
¶ 23 Defendant also argues that the court erred in admitting photographs of the text message
exchange between Officer Wells, Gigi, and “Don,” because the texts lacked the proper
authentication and foundation. In support if his argument, defendant mentions that: (1) the
messages were from one specific telephone number, (2) Gigi, not defendant, gave that number to
Officer Wells, (3) most of the messages relating to the delivery of a controlled substance were
from Gigi, (4) Officer Wells acknowledged that there were times during the text exchange when
he was confused as to whether he was texting with Gigi or Don, (5) there was no evidence as to
whom the phone number at issue was registered, (6) there was no testimony authenticating the
identity of the person using the phone number, and (7) Officer Wells did not witness the other
parties sending the text messages. Defendant proposes that the error was not harmless, as the
contents of the text messages “went to the crux of the charge of delivery of a controlled substance.”
The State responds that the court did not abuse its discretion by allowing the text messages into
evidence, because the messages were authenticated by circumstantial evidence. Moreover, the
State insists that any error was harmless, given that the text messages merely provided context for
the drug transaction and did not themselves prove the elements of the offense.
¶ 24 We review the court’s decision to admit documentary evidence for an abuse of discretion.
People v. Ziemba, 2018 IL App (2d) 170048, ¶ 50. “A trial court abuses its discretion where its
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2020 IL App (2d) 170711-Udecision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the
court’s view.” Ziemba, 2018 IL App (2d) 170048, ¶ 50. In Ziemba, we explained as follows:
“As to a proper foundation for admission, text messages are treated like any other
form of documentary evidence. A proper foundation is laid for the admission of
documentary evidence when the document has been identified and authenticated.
Authentication of a document requires the proponent to present evidence that the document
is what the proponent claims it to be. The proponent need prove only a rational basis upon
which the fact finder can conclude that the document did in fact belong to or was authored
by the party alleged. The court’s finding of authentication is merely a finding that there is
sufficient evidence to justify presentation of the offered evidence to the trier of fact and
does not preclude the opponent from contesting the genuineness of the writing after the
basic authentication requirements are satisfied. If the court, after serving its screening
function, allows the evidence to be admitted, the issue of the document’s authorship is
ultimately for the jury to determine.” (Internal citations and quotation marks omitted.)
Ziemba, 2018 IL App (2d) 170048, ¶ 51.
Furthermore,
“Documentary evidence, such as a text message, may be authenticated by either
direct or circumstantial evidence. Circumstantial evidence of authenticity includes such
factors as appearance, contents, substance, and distinctive characteristics, which are to be
considered with the surrounding circumstances. Documentary evidence, therefore, may be
authenticated by its contents if it is shown to contain information that would be known only
by the alleged author of the document or, at the very least, by a small group of people
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2020 IL App (2d) 170711-Uincluding the alleged author.” (Internal citations omitted.) Ziemba, 2018 IL App (2d)
170048, ¶ 52.
¶ 25 Defendant relies on People v. Watkins, 2015 IL App (3d) 120882, where the appellate court
determined that the State failed to lay a proper foundation for the admission of photographs
depicting text messages in a case where the defendant was charged with unlawful possession of a
controlled substance with intent to deliver. In Watkins, upon executing a search warrant inside of
a home were the defendant and five other people were present, the officers found drugs and
multiple cellular phones in an open kitchen drawer. Watkins, 2015 IL App (3d) 120882, ¶¶ 11-12.
One of those cellular phones contained drug-related text messages that were directed to someone
named “Charles,” which happened to be the defendant’s first name. Watkins, 2015 IL App (3d)
120882, ¶¶ 16-17. Notably, however, there was no evidence of what phone number was associated
with this phone, and there was no indication from the phone itself that defendant was the owner.
Watkins, 2015 IL App (3d) 120882, ¶ 24. Under these circumstances, the appellate court
determined that the evidence was insufficient to authenticate the text messages as having been sent
to the defendant. Watkins, 2015 IL App (3d) 120882, ¶ 38. In so holding, the court emphasized
that the police officer who identified the photographs of the text messages at trial “had no personal
knowledge of the text messages and had no idea who was the owner or user of the cell phone.”
Watkins, 2015 IL App (3d) 120882, ¶ 38.
¶ 26 Unlike the officer who testified in Watkins, Officer Wells personally participated in the
subject text message exchange. He also participated in the drug transaction that was arranged
through this exchange of messages. Officer Wells testified that the photographs that were admitted
into evidence depicted the messages that he sent and received on April 17 and 18, 2014. Officer
Wells’ testimony provided a rational basis for the trial court to determine, as part of its screening
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2020 IL App (2d) 170711-Ufunction, that the documents were what Officer Wells claimed them to be. See In re Marriage of
LaRocque, 2018 IL App (2d) 160973, ¶ 78 (a party to a divorce proceeding properly authenticated
his text messages with his wife where he testified that the printouts “accurately depicted messages
that the parties sent each other”).
¶ 27 Additionally, unlike in Watkins, there was strong circumstantial evidence supporting a
conclusion that Officer Wells texted with both Gigi and defendant. Officer Wells met Gigi around
April 17, 2014, and she provided him with her telephone number. Over the next few days, Officer
Wells exchanged numerous text messages with the number that Gigi provided and arranged a drug
transaction. From the contents of the messages, it is apparent that Gigi responded to many of
Officers Wells’ messages. A person identifying himself as “Don,” however, who purported to be
Gigi’s “old man,” responded to a few of Officer Wells’ messages. On the day of the arranged drug
transaction, Gigi called Officer Wells from this same phone number, and he recognized her voice.
Gigi ultimately showed up for the scheduled drug transaction in a truck that was driven by a male.
The police ran the truck’s plates and determined that it was registered to defendant, whose first
name is Donevin. Officer Wells then identified defendant from a photograph as the man who
drove the truck and handed him the heroin. Under these circumstances, there was ample
circumstantial evidence that Gigi and defendant participated in the text message exchange. The
court did not abuse its discretion in admitting this evidence.
¶ 28 C. Correction of the Mittimus
¶ 29 We take this opportunity to correct the mittimus on our own accord.
¶ 30 As explained above, defendant was originally charged by complaint with both unlawful
delivery of a controlled substance within 1000 feet of a church (720 ILCS 570/407(b)(2) (West
2014)), a Class 1 felony, and unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i)
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2020 IL App (2d) 170711-U(West 2014)), a Class 2 felony. The Class 2 charge was a lesser-included offense of the Class 1
charge, and the only difference between the charges was the enhancing element that the unlawful
delivery occurred near a specified location. See People v. Newton, 2018 IL 122958, ¶¶ 15-16;
People v. Knaff, 314 Ill. App. 3d 676, 679 (2000). Defendant was subsequently indicted only on
the Class 1 charge. After the State rested its case, the court granted defendant’s motion for a
directed verdict, given that the State failed to produce evidence that the drug transaction took place
within 1000 feet of an operational church. Relying on Knaff, the court allowed the State to proceed
on “the lesser included of the delivery of a controlled substance less than one gram.” The court
did not specify the statutory citation for that lesser-included offense, either on the record or in its
written order. The jury verdict form likewise indicates that defendant was found guilty of “delivery
of a controlled substance” but does not specify a statutory citation.
¶ 31 At the sentencing hearing, the parties and the court agreed that the conviction at issue was
for a Class 2 felony and that defendant would nevertheless be sentenced as a Class X offender due
to his criminal history. The sentencing order indicates that defendant was sentenced to 10 years
in prison for a violation of section 407(a)(2)(B) of the Act (720 ILCS 570/407(a)(2)(B) (West
2014)). That section provides that it is a Class 2 felony to violate section 401 of the Act on or
within a specified proximity (formerly 1000 feet, now 500 feet) of a truck stop or a safety rest area.
There was no evidence at trial that the drug transaction at issue occurred near a truck stop or a
safety rest area, so it is obvious that the citation to this provision in the sentencing order was
incorrect.
¶ 32 Based on the court’s discussion of Knaff during its ruling on defendant’s motion for a
directed verdict, it is apparent that the lesser charge of which defendant was convicted was
contained in section 401(d)(i) of the Act. That section provides, in relevant portion: “Any person
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2020 IL App (2d) 170711-Uwho violates this Section with regard to any other amount of a controlled or counterfeit substance
*** classified in Schedules I or II, or an analog thereof, which is (i) a narcotic drug, * * * is guilty
of a Class 2 felony.” 720 ILCS 570/401(d)(i) (West 2014). Accordingly, we correct the mittimus
to reflect that defendant was convicted of a violation of section 401(d)(i) of the Act.
¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we affirm the judgment of the circuit court of Kane County as
modified.
¶ 35 Affirmed as modified.
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