v.
Allen
NOTICE 2022 IL App (4th) 200554-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-20-0554 December 1, 2022 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County SCOTT ALLEN, ) No. 19CF607 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.
JUSTICE BRIDGES delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER ¶1 Held: There was sufficient evidence to establish that defendant personally discharged the firearm that killed the victim; the trial court did not abuse its discretion in admitting evidence of defendant’s gang affiliation to establish motive; there was no error in the admission of the rap videos as defendant acquiesced to their admission; and trial counsel was not ineffective for failing to object to purported hearsay statements, where the failure to object was a matter of trial strategy. Therefore, we affirm. ¶2 Defendant, Scott Allen, was convicted of three counts of mob action (720 ILCS 5/25-1(a)(1) (West 2018)), aggravated discharge of a firearm (id. 24-1.2(a)(1) (West 2018)) and three counts of first degree murder (id. 9-1(a)(1), (2) (West 2018)) in the shooting death of Juan (“Buck”) Nash and was sentenced to 50 years’ imprisonment. On appeal defendant challenges the sufficiency of the evidence, arguing that evidence identifying him as the shooter was too unreliable to support a conviction. Defendant also challenges the admission of evidence relating to his gang affiliation. Finally, defendant argues that his trial counsel was ineffective for failing to object to inadmissible hearsay statements. For the following reasons, we affirm the judgment of the circuit court of McLean County. ¶3 I. BACKGROUND ¶4 A. Basic Timeline ¶5 On April 2, 2019, a block party, known as Vido Day, was held on Orchard Road in Bloomington, Illinois, commemorating the life of David “Vido” Parks. Three videos taken of Vido Day were admitted into evidence. Two were taken by Facebook user Tony Tone, who was later identified as Isiah Franklin, one before dark, and one after dark. The third was taken by an individual identified as Jonte Warner. The videos showed Buck and others drinking and smoking what appeared to be marijuana cigars. In the video posted by Jonte Warner, defendant sends a message reading, “Y’all outside Ofn,” and Warner then tells the defendant to “slide,” inviting him to drop by. The video taken after dark shows defendant at the Vido Day party wearing a fanny pack. ¶6 At some point Nyrisha James, Brooklyn Turner, and Donnae Yates, met up with defendant and his friends, Justin Walls, Amari McNabb, and Exodus Hebert. They all then drove to the Vido Day party on Orchard Road. Defendant, Turner, James, Exodus, and Justin were in James’s car. Amari was in Yates’s car with Yates and another girl. Defendant and some of his friends left the party to go to Pheasant Lanes Family Fun Bowling Alley at 804 N Hershey Road, in Bloomington. ¶7 Surveillance footage from Pheasant Lanes showed defendant, Amari, Exodus, and Justin arriving at the bowling alley in a red sedan around 9:21 p.m. Defendant and Justin were wearing fanny packs slung across their chests.
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¶8 Turner drove James’s car to the bowling alley to pick up defendant and his friends around 9:35 p.m. She drove them back to Orchard Road, and as they got out, they told her not to leave. A few minutes later, Exodus jogged back to the car and told her it was too cold out there for him. After which there was an exchange of gunfire in which defendant, Buck, and Buck’s friend Nathaniel (Nate) Caldwell were shot. ¶9 After hearing the gunshots, Turner tried to leave. As she did, Exodus grabbed the wheel and said, “Don’t leave my brothers.” Defendant, Amari, and Justin then returned to the car and told her defendant had been shot. She then drove to the hospital. Security footage from the hospital showed defendant and his friends enter the hospital around 9:54 p.m. It then shows Amari, Exodus, and Justin leaving about 30 seconds later. ¶ 10 Buck, who had been fatally wounded, drove north down Orchard Road in Caldwell’s truck, before eventually crashing into a home at 1604 Wildwood Road. Police arrived shortly before 10 p.m. to find Buck slumped over in the driver’s seat of the truck. He was later pronounced dead at the hospital. ¶ 11 B. Witnesses to the Shooting ¶ 12 Evidence established the shooting took place near the end of a driveway located between 1227 and 1229 Orchard Road. Immediately prior to the shooting, Wright’s car was parked in that driveway facing towards the street. Caldwell’s dark gray Chevy Tahoe truck was parked on the street immediately south of the driveway. There was a dark colored Chevy Impala parked on the street behind Caldwell’s truck. ¶ 13 Caldwell testified that he drove to the Vido Day event in his truck. When he arrived, there were approximately 10 people there, including Wright, Buck, and Thomas. He parked on the street near a driveway. He recalled seeing defendant, McNabb, and Exodus arrive at the gathering
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in a gray car. When the shooting occurred, he was in the rear driver’s side seat of the truck, talking with Thomas who was in the rear passenger seat. They were playing music in the truck with the driver’s door open. He then heard shots coming from the direction of the front of the truck and began to run towards the rear of the truck towards the sidewalk. He was shot three times, once through the leg, once through the shoulder, and once in the back. After the gunfire ended, he laid behind the Impala until help arrived. He did not see who fired the shots, and did not know where Buck, defendant, Amari, or Exodus were. He did recall hearing two groups of shots, and that they sounded different. Caldwell admitted to being intoxicated that day. ¶ 14 Daronte Thomas testified as follows. He did not recall exactly who was at Vido Day as he was drunk and had been smoking marijuana. He said that he could not recall anything about the interview he had with Detective Bierbaum, the lead detective in the instant case. He did recall seeing a muzzle flash in his periphery vision and hearing shots. He then ran away from Orchard. He returned after the gunfire had ceased and found Caldwell had been shot. He stayed with him until an ambulance came. ¶ 15 Due to inability to recall some of the events from that date, edited portions from a recorded interview Thomas gave with Bierbaum were played for the jury. In that interview, Thomas describes seeing between three and four younger individuals. He described their features and clothing, and it generally matched the features and clothing of defendant and his friends. He recalled that when the group first arrived it was just about to get dark. The group then returned after it was dark. The group walked past him to speak with Buck, who was near the sidewalk, and they were standing around five feet away from Buck. Thomas was talking with other people when he heard shots. From his peripheral vision, he saw muzzle flashes coming from the general area of
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the group towards Buck. He then ran away. He recalled that there was a set of shots, a pause, then another set of shots. ¶ 16 Michael Holton testified that on April 2, 2019, he was on Orchard Road to celebrate the “death day” of Vido, a friend. Holton was there with Buck and several friends. Holton was Buck’s brother-in-law. He testified that he got to Orchard Road around 6 p.m. At the time of the shooting there were around 15 people at the party. As the evening went on, Holton was leaning against the hood of Caldwell’s truck. Defendant arrived at the party with Amari. Defendant was wearing a fanny pack. Amari and Buck were talking on the sidewalk in front of the Tahoe, about five feet from Holton. Holton talked to defendant for five or ten minutes before defendant went to join the conversation Buck was having. Defendant and Amari walked off away from the group, and Holton talked to Buck who was standing on the driveway near the sidewalk. About five or ten minutes later, Amari and defendant came back. Buck said to them, “Keep my little brother out of this; he ain’t got nothing to do with it.” Holton then saw a muzzle flash from his right, and saw defendant fire a gun at Buck. He then ducked and ran away. ¶ 17 The following detailed colloquy was presented between the prosecutor and Holton regarding the shooting:
“Q. All right. Let’s start—let’s start first with, you said you saw them turn around. Who is them?
A. Scotty and Big A.
Q. And you said they walked back up, what do you mean by that?
A. Walked back up the path, shot at them.
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Q. Well, where were they—where were they—so let’s take this piece by piece, I guess. So when you say they turned around, were they turning around to go away from Buck or towards Buck?
A. They turned around and—they turned around and walked off.
Q. They—
A. Yes.
Q. They walked off first you said?
A. Yes.
Q. So then what did you see after they turned around and started to walk off?
A. I turned back around, started talking to Buck. And five, ten minutes later they came back.
Q. Who came back?
A. Scotty and Big A.
Q. What did you see when they came back?
A. I saw a flash, saw the gun flash, heard one shot.
Q. Where was that—where did that gun flash come from?
A. From the right side.
Q. Did you see who was holding the gun?
A. Yes.
Q. Who was that?
A. Scotty.
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Q. What happened after you saw the muzzle flash from the gun Scotty was holding?
A. I ducked.
Q. You ducked?
A. Yes.
Q. What happened next?
A. Ducked and ran.
Q. Did you see anything else during that shooting?
A. No.
***
Q. Before you saw a flash and heard the shot, did you hear Buck say anything to those two people, to the defendant and the other guy?
A. Yes.
Q. What did he say?
A. He said, [‘]Keep my little brother out of this; he ain’t got nothing to do with it.[’]
Q. And that’s Kajuan?
A. Yes.
Q. From what—from where you were and what you saw, who shot Buck?
A. Scotty.” ¶ 18 Holton was cross-examined regarding his account of the shooting he had provided in his previous interviews with Bierbaum and Swanlund. During that interview, Holton initially denied knowing if there was a “beef” between defendant and Buck. He later admitted there was a
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beef between the two that involved Buck’s brother, Kajuan. Holton was not sure if the beef was due to “killing one of his homies.” ¶ 19 The following colloquy was presented by defense counsel regarding statements Holton made to Detectives Bierbaum and Swanlund:
“BIERBAUM: [W]hen did you see Scotty up the gun?
A. It happened so fast; when they turned back around, they walked and turned back around; I seen the flash.
***
Q. How sure are you that Scotty is the one who upped the gun?
A. Because it was something funny with it; because I was in the street and I told you the black guy was talking to my friend Scotty and Scotty walked over there.
Q. So how confident are you that Scotty is the one who upped the gun?
A. Man, I know him for having guns on him.
Q. Okay.
A. I know his demeanor sometimes.
***
Q. How do you know for sure that he upped the gun?
A. I know him to carry a gun.
Q. Michael, there’s a big difference; but there’s a big difference, Michael, between you knowing Scotty to carry guns and in that situation you know him to act that way; or that Michael Holton saw Scotty up a gun which is what you told me you saw.
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A. I—I—I—I could—I could—I can really—I can really know that demeanor and I know his demeanor, but the black I’ve never seen; I don’t even know that man’s name.
Q. Okay, but like you told me earlier, Michael, you told me that you saw Scotty actually up the gun.
A. I know that—I know what it was because it’s no purpose for me, you know what I’m saying.
Q. I’m not trying to call you a liar, say you were mistaken; I’m just making sure that I’m hearing and that Detective Swanlund is hearing what you’re telling us; is that what you’re telling us?
A. Yeah.
SWANLUND: So just so I understand what I’m hearing you say—what I hear you say is that Buck and the black guy are talking about something; Scotty is just kind of standing there; he’s in the conversation but he’s not saying anything; and what you hear Buck say is whatever you got going on with my little brother leave him out of it; and then Scotty and the black guy turn to walk away, or at least that’s what it looked like to you.
A. [Nod]
Q. You thought they were walking away, but then Scotty and the black guy both turned around or just Scotty turned back around?
A. But if I’m not mistaken, I ain’t going to lie to you; I was—I was drinking.”
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Holton maintained that his answers to the detective’s questions had been affirmative. He maintained that Buck and defendant had been a foot away when Buck was shot. He admits that on the evening of the shooting he had been drinking and smoking marijuana. ¶ 20 Shawndell “Delly” Wright testified he knew defendant because he was his brother, Little Steve’s, best friend. Wright said his best friends were Vido and Buck. He attended Vido Day. While there, he saw defendant, Amari, Exodus, and a “light-skinned dude” that he did not know, arrive at the party. Initially he and Buck were standing outside. At some point the four left. Wright then called Amari, who told him to “move around.” Amari’s phone records indicate that this call took place at 9:32 p.m. Wright did not take this to mean anything initially, but later he understood it as a warning to get out of the area. He continued to party, but eventually went to his car with Buck as it was getting cold. Wright’s car was parked in the driveway where the shots were fired, facing out towards the street. Wright was “rolling some weed” and they were talking. Buck was talking about issues Kajuan Hopson (the deceased’s younger brother) had been having with the four. The group then returned, and Buck got out of the car, saying that he was going to “go holler” at them. Buck then stood in front of the car, with defendant and his friends huddled in a circle. ¶ 21 About 10 to 15 minutes later, Wright was looking down at his phone when the first shots were fired. He heard two shots, then looked up and saw Buck fall to the ground and begin shooting. The first shots sounded different than the shots Buck fired. He did not see anyone else in the area besides Buck. After the shooting stopped, Buck got up and got into Caldwell’s truck and drove off.
- 10 - ¶ 22 The State sought to impeach Wright with his earlier statements he had made during a recorded telephone conversation with a Joshua Rials, a jail inmate, where he discussed the shooting. ¶ 23 On April 3, 2019, Wright received a call from Joshua Rials, who was in jail at the time. In that call Wright identified defendant as Buck’s killer. Portions of the call were read and later played in response to his testimony that he did not see anyone fire except Buck. The call was as follows: “RIALS: The little—so these are the little op1 shorties did this shit, Bro? WRIGHT: Bro, Little 302. *** RIALS: I’m like how—how he do that at a function, at our function; just like he saying fuck Vido, you feel me; you saying fuck Vido. WRIGHT: Bro, we was all kicking it, Bro; I swear to God, Bro; they was— they had a little—they had a little disagreement about, uh—uh, about Kajuan and shit, but Buck went, Hell no, nigger, motherfucker ain’t never; I fin to talk to they asses; he was just in the car with me, Bro; I swear to God he just got out of the car with me to talk to them, Bro; last time I looked to him the last words he said, Bro, I’m going to go holler at 30 and them, Bro; they got me fucked up about my little brother, Bro; I ain’t trying to let shit happen to my little brother. RIALS: Period. ***