People v. Doty
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Opinion
2024 IL App (1st) 200456-U
No. 1-20-0456
Order filed June 5, 2024 THIRD DIVISION
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 ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) No. 16 CR 08715 (02) ) v. ) Honorable ) Thaddeus L. Wilson DWRIGHT DOTY, ) Judge, Presiding ) Defendant-Appellant. )
JUSTICE D.B. WALKER delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: The circuit court did not abuse its discretion in denying defendant’s motion for continuance, in denying defendant’s motion for a mistrial, or in determining defendant’s sentence.
¶2 Defendant Dwright Doty appeals his conviction and sentence for first-degree murder.
Defendant was charged, along with co-defendants Corey Morgan (Corey) and Kevin
Edwards (Edwards), with first-degree murder for the November 2, 2015 murder of nine-year-
old Tyshawn Lee. Edwards pleaded guilty and defendant and Corey proceeded to joint, but No. 1-20-0456
severed, jury trials. Following his jury trial, defendant was found guilty and sentenced to 90
years’ imprisonment. On appeal, defendant argues that the circuit court erred in denying one
of his motions for continuance and in denying his motion for a mistrial after a discovery
violation on the part of the State. Further, defendant argues that the circuit court considered
improper factors in sentencing and relied improperly on its own private knowledge in
determining his sentence. We affirm the circuit court’s decision and sentence.
¶3 I. BACKGROUND
¶4 On November 2, 2015, nine-year-old Tyshawn Lee was shot to death in an alley adjacent
to Dawes Park, near the intersection of S. Damen Avenue and W. 80th Place. The State
sought to establish that defendant was the shooter.
¶5 A. Motion for Continuance
¶6 Defendant was charged in June 2016 and appointed counsel. A number of different public
defenders worked on defendant’s case between June 2016 and the start of trial. The attorney
who took the lead at trial, Public Defender Danita Ivory, filed her first appearance in the case
on July 18, 2018. She argued numerous motions on defendant’s behalf prior to trial. The first
trial date of April 22, 2019 was set on December 12, 2018. On March 8, 2019, the start date
for the trial was moved to September 9, 2019.
¶7 The final pre-trial conference was held August 26, 2019. At the start of that conference,
Ivory notified the court that her client had, that morning, expressed a wish to proceed pro se.
Defendant stated that he had no problem with the attorneys representing him, but he thought
it was in his best interest to represent himself. The circuit court questioned defendant as to
his educational background and his understanding of the law. The circuit court verified with
defendant that he knew that his decision to represent himself would not delay the trial and
2 No. 1-20-0456
they would still proceed on the planned trial date. In the process of describing the potential
concerns around self-representation to defendant at length, the circuit court engaged in the
following exchange with him:
“COURT: A defendant representing himself will receive no extra time for
preparation. Do you understand that?
DEFENDANT: No.
***
COURT: We’re going to trial. We’re going to start on the same schedule we have.
There will be no delay. I know some defendants in jail think they’re going to get a
delay. Not going to happen. There is no delay. Do you understand that?
DEFENDANT: Yes, sir.
COURT: A defendant representing himself will receive no extra or greater library
time if in jail or prison. Do you understand that?
COURT: Whatever the schedule the jail has for you, that’s the schedule. You’ll get
no extra time. Do you understand that?
DEFENDANT: Yes, sir.”
¶8 Following that exchange, the court found that defendant had not made a voluntary,
knowing, and intelligent waiver of his right to counsel and that the request was a “ploy for a
delay.” The court stated that even though defendant was fit to stand trial, it did not believe
that he was “capable of representing [himself] in a trial of this magnitude without significant
and substantial delay.” Defense counsel asserted that the standard for self-representation was
no higher than that of competency to stand trial, so he had the right regardless of whether he
3 No. 1-20-0456
would serve as a competent attorney. The circuit court reiterated that it found his request to
be a delay tactic and that the request was denied.
¶9 The circuit court held a hearing on August 30, 2019 for the expressed purpose of further
addressing defendant’s wish to represent himself. The court again reiterated that there would
be no delay and admonished defendant regarding the difficulty of being prepared for a
month-long trial in such a short time, in addition to continuing to be ready day after day for
what the court expected to be a month-long trial. Defendant confirmed that he understood
there would be no more continuances and that he still wished to represent himself. The court
granted his request to proceed pro se and appointed his defense counsel as standby counsel
over Ivory’s objection.
¶ 10 After some discussion of what would be involved in tendering discovery to defendant, as
well as the difficulties in doing so in a timely fashion in the week or so before trial, the State
asserted that it would be impossible for defendant to go through the voluminous discovery
prior to trial. The State proposed that if defendant was ready for trial, there was no need to
tender discovery; however, if defendant was not ready for trial, the circuit court should deny
the motion to proceed pro se, as he could not be ready in time for trial. The circuit court
noted that the decision to allow defendant to proceed pro se was not final and, if it became
evident that defendant was not ready, the court could reappoint counsel. The circuit court
then had the following dialogue with defendant:
“COURT: [Defendant], you’re ready for trial, is that correct?
DEFENDANT: I got to look through my discovery, Your Honor.
COURT: What does that mean?
4 No. 1-20-0456
DEFENDANT: He’s saying he can’t. You’re trying to make him – force him to get
what he can. I need all my discovery. I don’t need just what he can.
COURT: No, you said you’re ready for trial. See, remember I went through all that
stuff in that book and process on that sheet? It’s a reason. Because the Supreme Court
says I need to do these steps and make sure I get all these things to make sure it’s
clear that you know that on the eve of trial you asked to represent yourself, you’re
going to trial, you’re saying that you’re ready as is, and so if you are ready you’re
ready with whatever you have.
Now, I’m going to put it on the State to try to get as much as they can extra and
Defense with those matters that are not redacted who are standby to work with you
but there will be no delay, and so if you are not ready then it is clear to me that it’s for
the purpose of delay and you will not be able to represent yourself. So which is it?
You’re ready or you’re not? Are you ready for trial?
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2024 IL App (1st) 200456-U
No. 1-20-0456
Order filed June 5, 2024 THIRD DIVISION
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 ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) No. 16 CR 08715 (02) ) v. ) Honorable ) Thaddeus L. Wilson DWRIGHT DOTY, ) Judge, Presiding ) Defendant-Appellant. )
JUSTICE D.B. WALKER delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: The circuit court did not abuse its discretion in denying defendant’s motion for continuance, in denying defendant’s motion for a mistrial, or in determining defendant’s sentence.
¶2 Defendant Dwright Doty appeals his conviction and sentence for first-degree murder.
Defendant was charged, along with co-defendants Corey Morgan (Corey) and Kevin
Edwards (Edwards), with first-degree murder for the November 2, 2015 murder of nine-year-
old Tyshawn Lee. Edwards pleaded guilty and defendant and Corey proceeded to joint, but No. 1-20-0456
severed, jury trials. Following his jury trial, defendant was found guilty and sentenced to 90
years’ imprisonment. On appeal, defendant argues that the circuit court erred in denying one
of his motions for continuance and in denying his motion for a mistrial after a discovery
violation on the part of the State. Further, defendant argues that the circuit court considered
improper factors in sentencing and relied improperly on its own private knowledge in
determining his sentence. We affirm the circuit court’s decision and sentence.
¶3 I. BACKGROUND
¶4 On November 2, 2015, nine-year-old Tyshawn Lee was shot to death in an alley adjacent
to Dawes Park, near the intersection of S. Damen Avenue and W. 80th Place. The State
sought to establish that defendant was the shooter.
¶5 A. Motion for Continuance
¶6 Defendant was charged in June 2016 and appointed counsel. A number of different public
defenders worked on defendant’s case between June 2016 and the start of trial. The attorney
who took the lead at trial, Public Defender Danita Ivory, filed her first appearance in the case
on July 18, 2018. She argued numerous motions on defendant’s behalf prior to trial. The first
trial date of April 22, 2019 was set on December 12, 2018. On March 8, 2019, the start date
for the trial was moved to September 9, 2019.
¶7 The final pre-trial conference was held August 26, 2019. At the start of that conference,
Ivory notified the court that her client had, that morning, expressed a wish to proceed pro se.
Defendant stated that he had no problem with the attorneys representing him, but he thought
it was in his best interest to represent himself. The circuit court questioned defendant as to
his educational background and his understanding of the law. The circuit court verified with
defendant that he knew that his decision to represent himself would not delay the trial and
2 No. 1-20-0456
they would still proceed on the planned trial date. In the process of describing the potential
concerns around self-representation to defendant at length, the circuit court engaged in the
following exchange with him:
“COURT: A defendant representing himself will receive no extra time for
preparation. Do you understand that?
DEFENDANT: No.
***
COURT: We’re going to trial. We’re going to start on the same schedule we have.
There will be no delay. I know some defendants in jail think they’re going to get a
delay. Not going to happen. There is no delay. Do you understand that?
DEFENDANT: Yes, sir.
COURT: A defendant representing himself will receive no extra or greater library
time if in jail or prison. Do you understand that?
COURT: Whatever the schedule the jail has for you, that’s the schedule. You’ll get
no extra time. Do you understand that?
DEFENDANT: Yes, sir.”
¶8 Following that exchange, the court found that defendant had not made a voluntary,
knowing, and intelligent waiver of his right to counsel and that the request was a “ploy for a
delay.” The court stated that even though defendant was fit to stand trial, it did not believe
that he was “capable of representing [himself] in a trial of this magnitude without significant
and substantial delay.” Defense counsel asserted that the standard for self-representation was
no higher than that of competency to stand trial, so he had the right regardless of whether he
3 No. 1-20-0456
would serve as a competent attorney. The circuit court reiterated that it found his request to
be a delay tactic and that the request was denied.
¶9 The circuit court held a hearing on August 30, 2019 for the expressed purpose of further
addressing defendant’s wish to represent himself. The court again reiterated that there would
be no delay and admonished defendant regarding the difficulty of being prepared for a
month-long trial in such a short time, in addition to continuing to be ready day after day for
what the court expected to be a month-long trial. Defendant confirmed that he understood
there would be no more continuances and that he still wished to represent himself. The court
granted his request to proceed pro se and appointed his defense counsel as standby counsel
over Ivory’s objection.
¶ 10 After some discussion of what would be involved in tendering discovery to defendant, as
well as the difficulties in doing so in a timely fashion in the week or so before trial, the State
asserted that it would be impossible for defendant to go through the voluminous discovery
prior to trial. The State proposed that if defendant was ready for trial, there was no need to
tender discovery; however, if defendant was not ready for trial, the circuit court should deny
the motion to proceed pro se, as he could not be ready in time for trial. The circuit court
noted that the decision to allow defendant to proceed pro se was not final and, if it became
evident that defendant was not ready, the court could reappoint counsel. The circuit court
then had the following dialogue with defendant:
“COURT: [Defendant], you’re ready for trial, is that correct?
DEFENDANT: I got to look through my discovery, Your Honor.
COURT: What does that mean?
4 No. 1-20-0456
DEFENDANT: He’s saying he can’t. You’re trying to make him – force him to get
what he can. I need all my discovery. I don’t need just what he can.
COURT: No, you said you’re ready for trial. See, remember I went through all that
stuff in that book and process on that sheet? It’s a reason. Because the Supreme Court
says I need to do these steps and make sure I get all these things to make sure it’s
clear that you know that on the eve of trial you asked to represent yourself, you’re
going to trial, you’re saying that you’re ready as is, and so if you are ready you’re
ready with whatever you have.
Now, I’m going to put it on the State to try to get as much as they can extra and
Defense with those matters that are not redacted who are standby to work with you
but there will be no delay, and so if you are not ready then it is clear to me that it’s for
the purpose of delay and you will not be able to represent yourself. So which is it?
You’re ready or you’re not? Are you ready for trial?
DEFENDANT: Like I told you Monday, I’m going to try my best to be ready. As
soon as they get the discovery to me as soon as I can prep myself to be ready for trial.
COURT: Are you ready for trial?
DEFENDANT: I can’t say I’m ready right now, no. I ain’t seen none of my
discovery.
COURT: Well then, you can’t represent yourself.
DEFENDANT: How come I can’t?
COURT: Because you’re not ready. We’re on the eve of trial. As the case law says
the Court is not obligated to give you a continuance for a request to represent yourself
pro se on the eve of trial nor am I required to give you additional time to prepare.
5 No. 1-20-0456
You want to represent yourself on the eve of trial then you’re saying you’re ready.
That’s the law. So you ready for trial as is?”
¶ 11 The circuit court noted that defendant had four years of incarceration to decide how to go
about his defense and the State interjected that there had been 50 previous court appearances
prior to the day defendant decided to request to represent himself. The circuit court
emphasized that despite those facts, he waited until within two weeks of trial to request to
represent himself. The following exchange then occurred:
“COURT: I’ll pass this matter momentarily for defendant to consider—
DEFENDANT: I’m ready.
COURT: So you’re ready for trial?
DEFENDANT: Yes.
COURT: As is. Whatever you have and whatever they can get to you we will
endeavor, but you’re ready.
COURT: He’s ready for trial. We’ll endeavor to get him whatever we can.”
¶ 12 At the following court date on September 3, 2019, defendant reaffirmed that he still
wished to represent himself. When asked if he was aware that co-defendant Edwards had
pled guilty, defendant replied: “Yes, sir.” The court reiterated that trial was to begin
September 10, 2019, and this exchange followed:
“COURT: Are you ready for trial?
DEFENDANT: I’m getting ready now.
COURT: Alright. Give me one second. 6 No. 1-20-0456
(A brief pause.)
COURT: You should really reconsider this decision. You represent yourself now so if
you wish to discuss with the State the possibility of a plea offer, then you need to alert
them let them know.”
¶ 13 At a hearing on the following day, September 4, 2019, the circuit court moved the date
for selecting the jury to September 13, 2019 to give defendant a few extra days to prepare,
with opening statements and testimony to start on September 17, 2019. Defendant twice
reaffirmed his wish to continue representing himself at the next hearing on September 9,
2019. During that hearing, the following exchange occurred:
DEFENDANT: No, sir, Your Honor.
COURT: You’re not going to be ready for trial?
DEFENDANT: I ain’t ready as of this moment but –
COURT: What does that mean? We’re going to be picking your jury on Friday.
DEFENDANT: I will be able to let you know for sure. He just tendered over some
more evidence. So I ain’t got a chance to look through that yet.
COURT: I told you there would be no delays. So if you’re not ready then I will have
the Public Defenders back on the case to represent you.”
Discussion then turned to discovery matters and never returned to the issue of whether
defendant was ready for trial.
7 No. 1-20-0456
¶ 14 On September 10, 2019, defendant again confirmed that he wished to continue
representing himself and the State requested that the court inquire as to his readiness. The
following discussion ensued:
DEFENDANT: No sir, I ain’t – no, I ain’t ready. No, I ain’t ready. I don’t even know
no proper way to pick my jury yet. I’ve been going over this, looking at the jury
thing. I’m just –
COURT: Well, then I’ll appoint the team back – the public defender team back, to
take over representation on this case. I’ll wait until tomorrow to deal with that.
Counsel, you should probably have your team on the ready to take back over this
[sic], because there will be no delay.
¶ 15 On the following day, September 11, 2019, defendant again asserted that he wished to
continue to represent himself. The court gave defendant further instruction on the process of
picking a jury. On September 12, 2019, defendant yet again reiterated that he wished to
proceed pro se and asked for a continuance for the purpose of reviewing discovery. The
following exchange occurred:
“COURT: Well, you were advised of that, that there would be no delays. You’re the
one who decided on the eve of trial you wanted to represent yourself. This matter had
even been set for trial months ago, when the court continued the matter for everyone
to [be] prepared to do other pretrial motions. Additionally, we went through all of the
discovery with your attorneys in preparation for this trial, before you decided to go
pro se. Your oral motion for a continuance is denied.
8 No. 1-20-0456
DEFENDANT: I’m not ready to pick a jury tomorrow for trial. So how we gonna go
about it?
COURT: Well, you’ll have to figure that out. You’ll have the assistance of standby
counsel to assist you with that, if you choose to utilize their services, but we will be
picking a jury tomorrow morning. I have given you the process sheet for how that’s
done, and I warned you of this when you decided to go pro se.”
After other issues were discussed, defendant returned to the subject:
“DEFENDANT: I’m saying, like, basically you gonna force me to trial without
learning all my discovery and without tendering everything to me. Can you appoint
my lawyer back then? Cause it’s no way possible I can be ready by tomorrow, with
them giving me discovery today, too, and tomorrow.
COURT: The public defender is re-appointed.”
¶ 16 Upon reappointment, defense counsel moved for a continuance. Defense counsel
explained that defendant had been persistent in his desire to represent himself, had opposed
the appointment of standby counsel, and had not made any requests of his standby counsel or
met with his standby counsel at all as attorney and client during the three weeks that he had
been representing himself. Defense counsel stated that some defense witnesses had not been
located because the investigators stopped looking once defendant began representing himself.
Further, defense counsel had planned to have an expert witness present, but it would be very
unlikely that they would be able to have them present on such short notice after being
reappointed the day before jury selection was to begin. Lastly, two non-lead members of the
four-member defense team would not be able to be present. Defense counsel requested a
continuance to September 30, 2019. The State declined to take a position because, it stated, it
9 No. 1-20-0456
thought that was “the Court’s bailiwick,” but it did note that it had incurred significant effort
and expense arranging for out of state witnesses and one international witness to be present
for trial as scheduled. The circuit court denied the motion. The court stated: “The defendant
orchestrated this situation and, as far as the Court is concerned, it was orchestrated for the
intended or attempted purpose of delay.”
¶ 17 On the day of jury selection, September 13, 2019, defense counsel renewed defendant’s
motion for continuance and answered not ready for trial. Defense counsel noted that the State
had made available one of the three witnesses counsel was still attempting to contact. After
some discussion, it was ascertained that the State could bring both of the remaining witnesses
sought by defendant to court on the following date to be made available to the defense. At
that point, the defense reiterated the remaining issue and the court ruled:
“DEFENSE COUNSEL: If those witnesses are made available prior to opening
statements, that cures one issue. We still have the issue of the delay between when
[defendant] goes pro se and when our office, on the eve of trial, is reappointed.
COURT: I reviewed the motion, heard the arguments, reviewed the case law. The
defendant created and, as I said, orchestrated this situation.
As I said originally, I thought that the purpose was for delay, and while I
ultimately had felt duty bound to relent and allow him to represent himself, even
though I was thoroughly convinced the purpose was to create some delay or appellate
issues, the defendant created this situation. The defendant orchestrated this situation.
Counsel were here every day. We had them available to him, and the motion and
the renewed motion to continue trial is denied.”
10 No. 1-20-0456
¶ 18 Defendant’s written renewed motion for continuance echoed the same arguments
expressed in court and additionally argued that if the court refused to grant a continuance,
defendant would be denied his constitutional right to a fair trial, as he needed more time to
discuss trial strategies and locate and interview witnesses.
¶ 19 B. Trial Testimony
¶ 20 The State sought and was granted leave to present gang evidence to contextualize their
case against defendant. Officer Matthew Kennedy, an expert on the gangs of the southwest
side of Chicago, testified that at the time of the shooting, there was an ongoing feud between
the Killa Ward (KW) gang, which was a faction of the Gangster Disciples, and the Terror
Dome/Bang Bang Gang (TD/BBG), which was a faction of the Black P Stones. On October
13, 2015, Tracey Morgan and his mother were shot. Tracey was a well-known member of
TD/BBG and was co-defendant Corey Morgan’s brother. Tracey died. His mother survived.
Two members of KW were charged with his murder. Officer Kennedy explained that one of
the common rules among gangs in the area was that “violence shouldn’t be brought upon
innocent victims of family members.”
¶ 21 Officer Kennedy expected TD/BBG would retaliate because Morgan’s mother’s shooting
broke that rule. Officer Kennedy requested that the FBI conduct an investigation of the social
media posts of both TD/BBG and KW. Among the photos Officer Kennedy received from
this investigation were photos of defendant and his co-defendant Corey Morgan displaying
the gang sign of TD/BBG. Also among the photos were images of Pierre Stokes, who is the
father of the victim, displaying the gang sign of KW alongside two men who were charged
with Tracey Morgan’s murder sometime after the victim’s murder.
11 No. 1-20-0456
¶ 22 Multiple witnesses testified that the victim, Tyshawn Lee, lived near Dawes Park and that
he was in the park just before the shooting. Three men in their twenties, who were notably
older than the high-schoolers present in the park that afternoon, were seen in the park, as well
as entering and exiting a black SUV parked next to the park. One of the men, who a witness
identified as defendant, was described as an African American man no more than six feet tall
with a little bit of facial hair, wearing a red and blue striped jacket and Rock Revival brand
jeans. Other witnesses, who knew defendant, stated that defendant wore Rock Revival jeans
every day. Defendant stayed in the park while the other two men returned to the SUV.
Defendant then approached the victim, who had set down a basketball to play on a climbing
apparatus. Defendant picked up and dribbled the ball while speaking to the victim. Defendant
then walked out of the park, with the victim, to a nearby alley. Multiple gunshots were heard
from the alley, the black SUV was seen driving away from the scene of the shooting, and the
victim was discovered shot to death.
¶ 23 Two witnesses described the individual alleged to be defendant similarly, but the only
witness to identify him in a photo array, Jaylen Anderson, failed to appear when subpoenaed
and testified while in custody. Anderson testified that he was not a gang member at the time
of the shooting, but had since become a member of the Gangster Disciples. Three other
witnesses described one or more of the three men in less detail.
¶ 24 Two other witnesses, Devontay Gary and Moesha Walker, were both siblings of co-
defendant Edwards and lived with him during a period of time including October and
November 2015. Both testified that defendant and his co-defendants were close friends and
would frequently be present in the house. Walker further testified that on October 14, 2015,
during the conversation with Corey and Edwards in which she learned that Tracey had been
12 No. 1-20-0456
killed and his mother shot, Corey said “n***s tweak. Everybody must die, grandmamas, kids,
and all,” which Walker understood to mean that he intended retaliation. Corey and Edwards
agreed that KW was responsible for the shooting.
¶ 25 Both Gary and Walker testified that Edwards began driving a black SUV a month or so
before the shooting and that he ceased driving it shortly after the shooting. The black SUV
matched the description of the vehicle seen fleeing the scene of the shooting. Additional
testimony established that a black SUV with a license plate matching the SUV driven by
Edwards had been missing from the lot of the rental company that owned it during the time
Edwards was driving it; that the vehicle was driven from the home of Robin Mathews,
Corey’s girlfriend at the time, who was also known as Millie, to the scene of the shooting and
was present in the area at the time of the shooting, after which it was driven back to Millie’s
home; and that the vehicle was abandoned in Dolton, Illinois after the shooting. Antwan
Davis, who lived with Corey’s girlfriend at the time of the shooting, testified as to defendant
and his co-defendants being present in the home on the morning of the shooting, leaving
before lunch, and returning around dusk. Davis described the three as wearing clothes that
day that matched other witnesses’ descriptions of the individuals in the park. Davis
recognized the recovered black SUV as the one that was driven by Edwards during the time
Davis was living with Corey’s girlfriend.
¶ 26 Collected DNA samples returned results showing mixed DNA, but strongly indicated that
defendant contributed to the profile collected from the front driver’s door, steering wheel,
and rear passenger overhead assist handle of the black Ford Edge. The collected samples also
“strongly” and “very strongly” indicated that he contributed to a sample from the basketball
recovered from the site of the shooting. Per the expert witness, Dr. John Buckleton, the DNA
13 No. 1-20-0456
evidence collected that was least strongly connected to defendant was still one trillion times
more likely to have been left behind in a scenario where defendant contributed his DNA to
the sample than in a scenario in which he had not.
¶ 27 Detective Jeff Rodenberg testified that on November 16, 2015, an anonymous tip
prompted him to set up surveillance on the Hilton Hotel in Oak Lawn. Detective Rodenberg
observed defendant leaving the hotel with Corey. Corey was carrying a duffel bag. Defendant
and Corey got in a Chrysler and exited the hotel parking lot. Rodenberg and his partner
stopped and searched the car. Rodenberg found a loaded handgun in the duffel bag.
Defendant and Corey were both taken into custody, but were not yet charged in relation to
the victim’s killing.
¶ 28 Detective Timothy Murphy testified that, in January 2016, he learned from Investigator
Domma at the Cook County Jail that an inmate named Demetrius Murry had information
related to the shooting. In an interview with Detective Murphy and an assistant state’s
attorney, Murry signed a cooperation agreement and agreed to wear a recording device
during conversations with defendant, who had been jailed on an unrelated matter. Murry was
provided with a “thumb drive recording device” that he could activate and hide on his person.
Murry recorded conversations between himself and defendant. After sending the recordings
to have background noise removed, Detective Murphy listened to the recordings with Murry
and asked him for context on the conversations and for explanations of what he understood to
be meant by certain statements.
¶ 29 Murry testified that he was, at the time of trial, serving a ten and a half year sentence for
aggravated discharge of a firearm and a three year sentence for unlawful use of a weapon by
a felon. In November 2015, Murry was awaiting trial in Cook County Jail for the
14 No. 1-20-0456
aforementioned charges. Around this time, he met defendant and began to talk to him
“[a]lmost like every day.” Murry was the number two ranking member of the Sircon City
faction of the Gangster Disciples gang and became aware that defendant was a Black P
Stone, but he testified that there were no issues between their respective groups. During the
time when Murry was getting to know defendant, defendant was talking “every day all day”
about a case on the news in which he said he was the culprit for whom the police were
looking. Defendant told Murry that he shot the victim in retaliation because his “brother” had
been killed and his “mother” shot. Murry stated that defendant performed a rap song about
the victim’s shooting while Murry was recording.
¶ 30 Murry attributed his decision to speak with Investigator Domma to a combination of self-
interest and distaste for defendant’s actions. Murry confirmed that he recorded conversations,
turned over the device for downloading, and listened to selected portions of the discussions
with Detective Murphy while reading through the transcript for those recordings. Murry
testified at length about his interpretations of various statements made by defendant in the
recordings, most notably that defendant stated that he had gone to the park with his
codefendants, that he had shot and killed the victim, and that they had used a “2015 Ford
truck” to get to and from the scene of the crime. Defendant also made reference in the
recordings to getting on the expressway after the shooting and calling Millie.
¶ 31 Officer Eulalio Rodriguez testified that on the night of April 21, 2017, he and two other
officers came across what appeared to be a music video being recorded in a vacant lot
between 71st St. and 70th St. off of Wolcott St. The vacant lot had about 30 to 50 people
gathered in and around it, who scattered upon seeing the unmarked police SUV that Officer
Rodriguez was driving. Officer Hyma, who was also in the car, got out and Officer
15 No. 1-20-0456
Rodriguez lost track of her as he made a three-point turn to go back down the alley he was in.
After looping around to the Wolcott St. side of the lot, Officer Rodriguez found Officer
Hyma with two individuals whom she had stopped.
¶ 32 The two individuals were patted down and detained on the street and then in another
police vehicle that responded to the scene. Officer Rodriguez and the third officer on the
scene, Officer Soto, were tasked with completing an investigative stop report (ISR) for each
of the two individuals. The ISRs included the individuals’ names, addresses, demographics,
and a description of their clothing. Neither individual was charged and both were released.
The ISRs described one of the individuals, Leron Nelson, as a 20-year-old black male, 5’10”,
175 pounds, with a short hairstyle. The other individual, Qumonta Austin, was an 18-year-
old black male, 5’9”, 150 pounds, with a short hairstyle. Officer Rodriguez did not note in his
subsequent general offense report that the two individuals had been stopped or that ISRs had
been generated, because he did not believe that there was any connection between the
individuals and the below-described firearms.
¶ 33 Officer Rodriguez searched the vacant lot with other officers and they located five
firearms throughout the lot. Importantly, Officer Hyma found a black semiautomatic pistol
with a serial number matching a Smith & Wesson .40 caliber handgun which, according to
testimony from an ATF agent, was purchased by an out of state buyer and mailed to Anthony
Morgan, another of Corey’s brothers. Detective Murphy testified that he authored a report
about the recovery of this firearm and the match between the weapon and the casings found
near the victim’s body.
¶ 34 Officer Rodriguez testified that in preparation for defendant’s trial, he went to meet with
an assistant state’s attorney on multiple occasions, but did not, until the day before his
16 No. 1-20-0456
testimony, recall generating the ISRs. On cross-examination, Officer Rodriguez confirmed
that he had included in his report a description of a man with long black dreadlocks fleeing
the scene of the music video recording, but stated that he had never seen the man himself and
had received that description from one of the other officers on the scene.
¶ 35 After he was located subsequent to the disclosure of the ISRs, Nelson, the subject of one
of the ISRs, was called before the court outside the view of the jury to be questioned by the
parties. Nelson stated that on the night that he was stopped by Officer Hyma, he was walking
with his friend, Austin, in the area of 70th and Wolcott and saw a music video recording
underway in a vacant lot with about 15-20 people present. He and Austin stopped and
“spectated for about two, three minutes.” Nelson stated that he did not see anyone with
firearms that night. When the police arrived, Nelson and Austin ran about a block before they
were stopped by police.
¶ 36 Austin, the subject of the other ISR, was also questioned outside the presence of the jury.
Austin’s account largely aligned with Nelson’s, but not entirely: Austin confirmed that he
saw “a couple [of] people” pull out three different guns and wave them at the camera that
was filming. He described the men waving guns as African-American men with dreadlocks
and black clothing. Austin also testified that he and Nelson watched from across the street
rather than on the sidewalk immediately adjacent to the lot.
¶ 37 Immediately after questioning Nelson and Austin, the court heard defense counsel’s
motion for a mistrial based on the State’s discovery violation with regard to the ISRs.
Defendant’s argument focused largely on the fact that Nelson and Austin very generally
matched the descriptions witnesses had given, which is to say they were black males, whose
hair may have been in styles that matched the general descriptions given regarding the crime
17 No. 1-20-0456
years earlier. Defendant argued that that physical similarity, in combination with their being
stopped near the time and place where the murder weapon was recovered, made them
possible alternative suspects about whom defense counsel had not had the opportunity to
investigate or question other, already-called witnesses. The circuit court noted that all
witnesses who had been called could be recalled and defense counsel still had approximately
a week to investigate. The circuit court denied the motion without prejudice. Defendant
raised the motion again two days later and the circuit court again denied the motion, opining:
“Obviously, this situation is not ideal to say the least. It is problematic.
And while, as a court, I can certainly appreciate the defense frustration and
concern, I still have to look at that under at least my understanding of the law and
given the totality of the circumstances with everything that’s available to me now,
despite this messy blob dropped in the middle of this trial. On balance, the court
cannot say that what was not timely disclosed was favorable material to the accused
to the point that it would warrant a mistrial.
The court believes that mistrial is not the appropriate sanction. *** Whether or
not certain other instructions to the jury might be appropriate will need to wait until
we get to that point once the court has heard all the evidence and defenses to
determine what, if any, other instructions, sanction may be necessary and warranted.”
¶ 38 The circuit court provided an instruction to the jury informing them that they were
allowed, but not required to assume that evidence in the possession of one party and not
timely disclosed would be adverse to that party. After deliberation, the jury found defendant
18 No. 1-20-0456
guilty of first-degree murder and found that it was proven that defendant personally
discharged a firearm that proximately caused death to another person, and that the victim was
under 12 years of age.
¶ 39 C. Sentencing
¶ 40 Immediately after giving defendant an opportunity to speak on his own behalf, the circuit
court prefaced its sentencing for defendant and his co-defendant, Corey, with a lengthy
soliloquy:
“The tragic loss of a good friend and brother and the galling injury to your mother
is painful to say the least, but vengeance is not yours, nor will the law tolerate
retaliation and vigilante justice.
Like sands through the hourglass, the days of our lives are like a speck of dust
slipping away in front of us, falling through the fingers of [F]ather [T]ime. The sands
of life run through the hourglass without stopping, letting us know that our end is
near. Unlike a clock with its endless sweeping cycles, the hourglass of life has a
definite end, and we can ill afford to allow lawless and brazen shootings, murders and
back and forth retaliation to needlessly snuff out a life before our created time to
shuffle off this mortal coil.
We have gun-toting adults and children indiscriminately shooting and taking out
innocent lives in the process. Many couldn’t shoot the side of a barn from two feet
away, yet they have a gun. We see individuals in the name of a gang taking up roles
in furtherance of criminal activity, and no matter their role, they are responsible.”
19 No. 1-20-0456
¶ 41 The circuit court spoke at some length about the theory of accountability, under which
Corey was charged, and the breadth of roles an individual might play and find themselves
accountable for a murder, even if that murder was not planned. The circuit court then stated:
“During pretrial proceedings I received a large binder detailing shootings and
murders between various gang members and factions in this area of the city. The
ruthless cycle of gang shootings and murders, the tit for tat retaliations covered a
period from May of 2012 through October of 2015 with the murder of Briana Jenkins
and the November 2015 murder of Tyshawn Lee and the March 2016 shooting of
Robin Matthews. It was a disheartening and terrifying reading to say the least.
Our communities have turned into virtual war zones with indiscriminate shootings
and senseless retaliations. Innocent citizens are caught in the crossfire. People can’t
freely walk around and enjoy their neighborhood or play in the park. School kids
need safe passage workers to line the streets just to get home from school. Now
people shut themselves in their homes to avoid the violence outside yet still fall
victim to bullets intended for someone on the street flying through the walls of their
homes. Our communities are not fair game in the spoils and pillaging and vicissitudes
of gang war.
We constantly hear that someone going about their business, trying to do good,
excel in school, or just make a better life for themselves and their families are struck
down by untargeted violence. Invariably someone says they were in the wrong place
at the wrong time.
No. They were in the right place at the right time, down the right path of life
doing the things they rightly should be doing. They were not in the wrong place and
20 No. 1-20-0456
the wrong time, and if we let that saying continue to prevail, there will be no place
left to retreat.
Already, you can’t retreat into the safety of your home. You can’t leave the
neighborhood and retreat to downtown. You can’t retreat from downtown to the
suburbs. Now we all have to deal with it.
Where does this stop? Where does this mind-numbing, debilitating, senseless
violence stop? It stops with grandmas, mamas and innocent children simply trying to
play at a park. Grandmas, mamas, kids all matter. They all matter. Grandmas, mamas,
kids and all are not fair game, and they matter to us. Whether they have been in this
world only eight seconds, eight minutes, or eighty years, they matter.
With respect to both defendants, for purposes of sentencing, the Court has
considered the evidence at trial, the gravity of the offense, the Presentence
Investigation Report, the financial impact of incarceration, all evidence, information
and testimony in aggravation and mitigation, any substance abuse issues and
treatment, the potential for rehabilitation, the possibility of sentencing alternatives,
and with respect to [defendant], the fact that he was under the age of 25 at the time of
the offense, the victim panel statements and all hearsay presented and deemed
relevant and reliable.”
¶ 42 The circuit court sentenced defendant to 90 years in the Illinois Department of
Corrections, plus three years of mandatory supervised release. Defendant filed a timely
notice of appeal and this appeal follows.
21 No. 1-20-0456
¶ 43 II. ANALYSIS
¶ 44 Defendant asserts that the circuit court erred in denying his motion for continuance, in
denying his motion for a mistrial based on the State’s failure to timely disclose the ISRs from
Nelson and Austin, and that the circuit court considered inappropriate factors in determining
defendant’s sentence. We disagree with regard to all three arguments and affirm the decision
of the circuit court.
¶ 45 A. Motion for Continuance
¶ 46 Defendant argues that the circuit court abused its discretion by denying the motion for
continuance submitted by trial counsel after defendant had counsel reappointed on the eve of
trial rather than proceeding to trial pro se. More specifically, defendant argues that the circuit
court’s denial of defendant’s motion for a continuance violated defendant’s right to a fair trial
and effective counsel, and that the circuit court failed to consider the factors enumerated in
People v. Walker, 232 Ill. 2d 113 (2009), before denying the motion, or else the circuit
court’s weighing of those factors was so inappropriate as to constitute an abuse of discretion.
¶ 47 “It is well settled that the granting or denial of a continuance is a matter resting in the
sound discretion of the trial court, and a reviewing court will not interfere with that decision
absent a clear abuse of discretion.” Id. at 125. “However, where it appears that the refusal of
additional time in some manner embarrassed the accused in preparation of his defense and
thereby prejudiced his rights, a resulting conviction will be reversed.” (Internal quotation
marks omitted.) Id. “An abuse of discretion will be found only where the trial court’s ruling
is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view
adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20 (2000).
22 No. 1-20-0456
¶ 48 “Whether there has been an abuse of discretion depends upon the facts and circumstances
in each case, and there is no mechanical test for determining the point at which the denial of
a continuance in order to accelerate the judicial proceedings violates the substantive right of
the accused to properly defend.” Walker, 232 Ill. 2d at 125. “Factors a court may consider in
determining whether to grant a continuance request by a defendant in a criminal case include
the movant’s diligence, the defendant’s right to a speedy, fair and impartial trial and the
interests of justice.” Id. “Other relevant factors include whether counsel for defendant was
unable to prepare for trial because he or she had been held to trial in another cause, the
history of the case, the complexity of the matter, the seriousness of the charges, as well as
docket management, judicial economy and inconvenience to the parties and witnesses.”
(Internal citations omitted.) Id. at 125-26.
¶ 49 In Walker, when the case was called for trial, defense counsel immediately informed the
court that she had mistakenly recorded the trial day incorrectly on her calendar and had only
discovered her mistake the night before trial, when defendant contacted her. Id. at 126.
Defense counsel had also been on trial into the evening hours on the prior two nights. Id. As
a result, she told the court, she was not ready to go to trial. Id. The circuit court replied:
“ ‘This has been set. I am sorry. We will pass this case for trial.’ ” Id. at 126-27. When
defense counsel again insisted she was not ready for trial, the circuit court cut her off before
she could even specify how long of a continuance she needed. Id. at 127. The court stated
“ ‘it is irrelevant’ ” and “in no uncertain terms, indicated that the matter was closed.” Id.
Here, defense counsel was present throughout the entire span of the case, even if some of that
time was as standby counsel. Additionally, defense counsel had another two days of warning
and made no mention of being held to trial on other matters in the time since the defense
23 No. 1-20-0456
team had been alerted that it should be ready to take things over again. Lastly, but
importantly, here, the circuit court allowed defense counsel to explain the situation at length.
¶ 50 In reversing the lower court’s decision, our supreme court in Walker noted that the lower
court did not obtain the information necessary to make a considered decision on the motion,
notably the length of the requested continuance. Id. The Walker court further noted that some
of the relevant factors weighed in favor of granting the continuance, as well as the fact that
the circuit court evinced significant hostility toward defense counsel without an apparent
basis in the record. Id. at 127-28. Here, the circuit court showed no such hostility, and the
record demonstrates no similar lack of relevant information. Based on the above, the case at
bar is dissimilar to the facts of Walker, which our supreme court repeatedly reiterated to be
“unique” and “specific.” Id. at 130-31.
¶ 51 There is a notable difference between the curt, arbitrary, and dismissive tone and actions
of the circuit court in Walker and the stolid insistence on schedule from the circuit court in
this case. In this case, the circuit court reiterated again and again, from at least the time of
defendant’s initial request to proceed pro se, that “there will be no delay.” The circuit court’s
actions demonstrate that this assertion was not without due consideration, as the trial had
initially been set for months prior to the eventual trial date and was delayed to handle pre-
trial matters, and because the start of trial was again moved from September 9 to September
13 to give defendant more time to prepare. Accordingly, at a minimum, the record does not
indicate that the circuit court was arbitrarily insistent on a given date without any
consideration of defendant’s circumstances.
¶ 52 Defendant cites a number of inapposite cases, including the so-called Scottsboro Boys
trial, Powell v. Alabama, 287 U.S. 45 (1932), that present scenarios of clear prejudice to the
24 No. 1-20-0456
defendant’s case. In some cases, unlike this one, counsel was either never appointed or first
appointed at the eleventh hour. Id., People v. Kunowski, 360 Ill. 416, 418 (1935) (defense
counsel was retained the morning of trial). We need not address this argument as the facts do
not support the contention that defendant was deprived of counsel at any stage. To compare
this case to cases like Powell, in which counsel was appointed for the first time on the eve of
trial, is disingenuous at best. At all relevant stages, for years leading up to trial, defendant
was represented by counsel. In the approximately one and half years between Ivory’s
appointment and the start of trial, he was represented by the same counsel that ultimately
represented him at trial, with a three-week period of self-representation immediately before
trial. Defense counsel cited defendant’s refusal to communicate with her as standby counsel
during his period of self-representation as one of the reasons for her unreadiness to proceed
to trial. Even if his decision to self-represent and reject the assistance of standby counsel was
to his detriment or to the detriment of defense counsel, that does not represent an
infringement of defendant’s right to counsel, but rather, at worst, a foolhardy invocation of
his rights. People v. Haynes, 174 Ill. 2d 204, 235 (1996) (“Although a court may consider the
decision unwise, a defendant’s knowing and intelligent election to represent himself must be
honored out of that respect for the individual which is the lifeblood of the law.”). Defense
counsel had been working on this case for well over a year and had three days’ warning from
the court that he would be reinstating counsel. We cannot say that defense counsel did not
have adequate time to prepare a defense.
¶ 53 In other cases cited by defendant, counsel was timely appointed, but a refusal to grant
additional time clearly prejudiced the defendant. People v. Goff, 299 Ill. App. 3d 944 (1998)
(circuit court refused to reopen the case to allow for key testimony from a witness not
25 No. 1-20-0456
previously available), People v. Moore, 397 Ill. App. 3d 555, 561 (2009) (circuit court
prevented an alibi witness from testifying by insisting upon a planned end date for trial). The
circumstances surrounding the circuit court’s denial of the motion to continue in this case do
not present the same sort of obvious and dire consequences, and defendant does not indicate
that such consequences actually resulted.
¶ 54 In fact, defendant indicates no specific way in which the lack of a continuance
“embarrassed the accused in preparation of his defense and thereby prejudiced his rights.”
Walker, 232 Ill. 2d at 125. Defendant notes that defense counsel was reappointed the day
before jury selection was to commence, that co-defendant Edwards had recently pleaded
guilty, that there were defense witnesses who had not been served, and that only lead counsel
and one of the three other members of the defense team would be able to be present for jury
selection. However, defendant does not highlight any specific consequence, nor do we see
any evident prejudice, with regard to any of these less than ideal circumstances. As we have
already established, the same defense counsel represented defendant for well over a year
prior to trial and subsequently served as standby counsel when defendant was representing
himself, so the last-minute reappointment is not obviously prejudicial. The circuit court had
previously suggested that trial would proceed with either a triple jury or a double jury with
defendant’s jury separate in either scenario, so Edwards’ guilty plea had no clear effect on
defendant’s jury selection strategy. The circuit court ordered that the prosecution put defense
counsel in contact with the unserved witnesses and defense counsel stated on the record that
the court’s order resolved that issue. Lastly, there is no indication in the record that any
member of defense counsel was ever unprepared to represent defendant due to only half of
26 No. 1-20-0456
the team being present at jury selection. Accordingly, we cannot find that defendant was
prejudiced by the circuit court’s denial of his motion for a continuance.
¶ 55 Defendant also argues that the circuit court failed to consider the relevant Walker factors
in denying defendant’s motion for a continuance. Defendant asserts that no serious argument
can be made that the circuit court “engaged in thoughtful analysis” regarding the Walker
factors, but defendant mistakenly focuses only on the moment of defense counsel’s
reappointment. The record reflects that the circuit court had been considering the possibility
of a motion for continuance for some time before the motion was made. Additionally,
moments before trial counsel’s motion for a continuance, defendant himself had similarly
moved for a continuance. Although the circuit court did not recite the factors it considered,
the circuit court “is presumed to know the law and apply it properly, absent an affirmative
showing to the contrary in the record.” In re N.B., 191 Ill. 2d 338, 345 (2000). Given the
prolonged time period over which the possibility of a continuance was considered and that
the circuit court allowed defense counsel to lay out her arguments for a continuance at length
before making its decision, we see nothing about the briefness of the court’s comments on
the matter that evinces a complete lack of consideration of appropriate factors, nor
consideration of inappropriate factors.
¶ 56 As such, all that remains on this issue is defendant’s argument that the circuit court
incorrectly weighed the factors. In Walker, our supreme court enumerated eight factors that a
court may consider, so we will review each in considering whether the circuit court’s
decision rises to the level of an abuse of discretion. These factors consist of three loftier,
constitutionally-minded factors and five more practical factors concerned with the nuts and
bolts of trial preparation and procedure.
27 No. 1-20-0456
¶ 57 First, we must consider the movant’s diligence. Defendant asserts that “[i]t is unclear
how [defendant’s] attorneys could have been any more diligent.” However, our concern is
not only defense counsel’s diligence, but defendant’s diligence during his period of self-
representation. In many circumstances, the line between a party’s actions and the actions of
the counsel representing that party are blurred, since counsel is acting as the party’s
representative. Here, however, the distinction is key: it would have been reasonable for the
circuit court to weigh this factor against defendant, as his decision to represent himself and,
while representing himself, falsely hold himself forth as ready for trial to encourage the
circuit court to afford him that opportunity on the eve of trial, only to later admit that he was
not, after all, ready for trial, could be fairly seen as an egregious lack of diligence. Once
again, we reiterate that it is defendant’s rights that we are concerned with, not defense
counsel’s; whatever frustration defense counsel may have felt with the situation, it was
defendant’s own assertion of his right to represent himself that led to counsel’s last-minute
reappointment.
¶ 58 Second, we must consider defendant’s right to a speedy, fair and impartial trial.
Defendant asserts that there was no danger to defendant’s right to a speedy trial even if the
motion had been granted, and we agree. Defendant argues, however, that defendant’s right to
a fair and impartial trial was violated by the denial of the motion for continuance. Here,
defendant cites People v. Jefferson, 35 Ill. App. 3d 424 (1976), a case in which the defendant
was arraigned, counsel was appointed, and trial commenced all in a single day. Once again, it
is disingenuous at best to compare the case at bar to one in which counsel was first appointed
on the day or eve of trial. Defendant’s argument elides the vast practical and factual
difference between the scenarios presented in cases such as Jefferson and the case at bar. In
28 No. 1-20-0456
Jefferson, Powell, and cases of their ilk, a defendant was forced to trial with no counsel or
just-appointed counsel with no opportunity to prepare for that trial, whereas here defense
counsel had over a year of experience with the case and had been deeply involved in pretrial
litigation and served as standby counsel for a three-week period before being reappointed.
The argument for similarity is stretched not just thin, but to the point of breaking. To
compare such egregious travesties of justice to the facts of this case is frankly wrong.
Defendant makes no other, more cognizable argument regarding this factor and we see no
threat to defendant’s right to a fair and impartial trial in the circuit court’s denial of the
motion for continuance in these particular circumstances.
¶ 59 Third, we must consider the interests of justice. Defendant’s argument on this factor cites
Jefferson at even greater length and is little different except insofar as it insists that defense
counsel was not attempting to somehow thwart justice by requesting a continuance. Given
the circumstances, in which defense counsel was present throughout all relevant proceedings
and the court successfully curing the significant matter of the unserved defense witnesses, we
see no threat to justice in the circuit court’s denial of the motion for continuance.
¶ 60 Fourth, we must consider whether counsel for defendant was unable to prepare for trial
because she had been held to trial in another cause. There is no indication that this was the
case. Although continuing with the trial as rescheduled during the time defendant was
representing himself meant that two of the four members of his defense team were not
present for jury selection, his lead counsel was nonetheless present and defendant makes no
mention of any prejudice to his case resulting from the absence of those two members of the
defense team, nor even whether they held particular roles within the defense team that made
their presence necessary or important.
29 No. 1-20-0456
¶ 61 Fifth, we must consider the history of the case. Defendant argues that Edwards pleading
guilty during defendant’s period of self-representation and the change that could have meant
for whether the case would be a triple jury or a double jury, tilts this factor in favor of
granting the motion for continuance. In every instance in which split juries were discussed in
the record, the plan presented was for defendant to have a separate jury, whether or not
Edwards and Corey shared a single jury or had separate juries for their trials. It is unclear
how a change in the already-separate jury arrangements for co-defendants would require
additional preparation from defense counsel. The circuit court expressed some concern about
defendant’s ability to navigate considering whether to plead guilty in the wake of Edwards’
plea, but defendant insisted that he had no interest in a guilty plea and the prosecution added
that there were no plans to offer him a plea deal. While defense counsel argued in her motion
for continuance that she had no opportunity to discuss trial strategy with defendant since
Edwards’ guilty plea, there is no contention on appeal that such lack of discussion had any
impact on defendant’s representation or ability to present his defense. Nor, for that matter, is
there any suggestion in the record or upon appeal that defense counsel was not able to have
that discussion subsequently. With regard to the history of the case, it is notable that defense
counsel had years to prepare this case before the three weeks during which defendant
represented himself, and Ivory herself had a year and a half. As such, we cannot say this
factor favors granting the continuance.
¶ 62 Sixth, we must consider the complexity of the matter. Defendant argues that the complex
nature of the case, with multiple co-defendants, numerous witnesses, and novel scientific
evidence, favored granting the continuance. Defense counsel, however, had been familiar
with all of those matters for some time, and was the attorney present representing defendant
30 No. 1-20-0456
during the Frye hearing regarding the expert witness who was to present that novel scientific
evidence. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). It would seem this factor is
relevant for those instances in which it would be difficult for a recently-appointed attorney to
become exactly as well-versed in the complex matters underlying a case as Ivory herself was
in this case. While we agree that this case was complex, we see no indication that defense
counsel needed more time to grapple with that complexity.
¶ 63 Seventh, we must consider the seriousness of the charges. The charges in this case are
dire indeed, but we see nothing about the gravity of the charges that made a motion for
continuance more necessary in these circumstances. Defendant and his counsel had been
aware of these very serious charges in this very high-profile case for some time, which is all
the more reason to find questionable the suggestion that defense counsel was so unprepared
for trial that the lack of a continuance prejudiced defendant.
¶ 64 Eighth, we must consider docket management, judicial economy, and the inconvenience
to the parties and witnesses. Defendant notes that the State did not object to the continuance
and, while it noted potential inconvenience to out of state and international witnesses and the
costs associated with those witnesses, it “demurred to the court.” Whether the other party
objected to the continuance is not one of the Walker factors. The inconvenience noted by the
State in the process of declining to object, on the other hand, is one of the relevant factors.
Defendant argues that the circuit court was required by Walker to make a record regarding
factors it found relevant, but that is a misreading of Walker. The Walker court made no such
pronouncement that explicit articulation of factors was mandatory; rather, that the circuit
court’s failure to comment on these matters, along with the interests of justice, the
complexity of the case, and the severity of the charges, was merely an additional factor in its
31 No. 1-20-0456
finding that the circuit court abused its discretion. Walker, 232 Ill. 2d at 127. We read Walker
to be focused significantly on the circuit court’s hostile demeanor and refusal to allow
counsel to even explain how much of a continuance she needed and for what purposes. In
that context, a failure to explicitly mention the relevant factors makes it clearer still that the
court was not engaging in the necessary analysis. No such context exists here and so we
cannot say the circuit court erred by failing to explicitly articulate the factors it was
considering.
¶ 65 After reviewing all of the Walker factors, we cannot say that the circuit court’s decision
constituted an abuse of discretion. Accordingly, we affirm the circuit court’s denial of the
motion for continuance.
¶ 66 B. Brady Violation
¶ 67 Defendant argues that the circuit court abused its discretion by denying defendant’s
motion for a mistrial based upon the State’s failure to disclose two ISRs generated when
police stopped two individuals near the vacant lot where the murder weapon was recovered.
The ISRs in question were allegedly remembered and found two weeks after the start of
defendant’s trial and were provided to defendant as soon as the prosecution became aware of
them. Defendant asserts that this failure to disclose the ISRs, whether intentional or not,
constituted a violation of his Fourteenth Amendment due process rights under Brady, under
which “the prosecution must disclose evidence that is favorable to the accused and ‘material
either to guilt or to punishment’ ” People v. Harris, 206 Ill. 2d 293, 311 (2002) (citing Brady
v. Maryland, 373 U.S. 83, 87 (1963); U.S. Const., amend. XIV.
¶ 68 “To succeed on a Brady violation claim, a defendant must establish (1) the undisclosed
evidence is favorable to the accused because it is either exculpatory or impeaching; (2) the
32 No. 1-20-0456
evidence was suppressed by the State either willfully or inadvertently; and (3) the accused
was prejudiced because the evidence is material to guilt or punishment.” (Internal quotation
marks omitted.) People v. Montanez, 2023 IL 128740, ¶ 82. “Evidence is material if there is a
reasonable probability that had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Harris, 206 Ill. 2d at 311. The examination is not
concerned with the sufficiency of the evidence; “[r]ather, a defendant must show 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.” (Internal quotation marks omitted.) Id. at 311-12.
“The Brady rule extends to favorable evidence known only to police investigators and not to
the prosecutor trying the case.” (Internal quotation marks omitted.) Montanez, 2023 IL
128740, ¶ 82.
¶ 69 It is undisputed that the State failed to timely disclose the ISRs, so the only questions
before us are favorability, materiality, and prejudice. Defendant contends that the evidence
was material, but his argument to that end is unclear. In his brief, defendant describes at
length the standard to be applied in determining whether evidence was material, and asserts
that this case is factually comparable to People v. Carballido, 2015 IL App (2d) 140760, but
makes little attempt to apply the law of Carballido to the facts of this case.
¶ 70 In Carballido, the defendant was charged with first-degree murder under a theory of
accountability. Id. ¶ 5. The defendant in Carballido admitted in a written statement that he
was aware that the shooter had a firearm with him when defendant drove him to the scene of
the crime, but defendant asserted that the statement regarding the gun was false and coerced.
Id. ¶ 87. It was proven that at least one of the few details included in that written statement
was false. Id. The only other evidence establishing defendant’s knowledge of the firearm,
33 No. 1-20-0456
which was key to the theory of accountability, consisted of statements from defendant’s
sister. Id. ¶ 80. Although the defendant’s sister testified that defendant had not told her he
was aware of the firearm, a police detective testified that she had told him as much and said
detective provided a written report detailing as much. Id. The State failed to timely disclose
the field notes written by that officer that did not include the statement from the defendant’s
sister and therefore contradicted his testimony that the written report he provided was based
on his field notes. Id. ¶ 68-69. The Carballido court concluded that, without the discovery
violation the defendant would have been able to impeach that key piece of testimony, so it
was reasonably probable that the jury would have considered the case in a different light. Id.
¶ 89.
¶ 71 Defendant states that “[n]o serious debate can be had as to the high relevance of
[defendant] being informed in the summer of 2017 (versus on September 24, 2019, two
weeks into his high-profile jury trial) that two men, matching the general descriptions of the
potential offenders in Lee’s murder, were seized by police moments before the weapon used
to murder Lee was found.” Defendant states that even if Austin and Nelson, the two
individuals in question, could not be linked to the murder weapon or the offense, defendant
would have had more time to investigate based on Austin and Nelson’s fresher recollections
of the night they were stopped by police and to plan a trial strategy based upon the results of
such investigation. We interpret this as an argument as to the materiality of the ISR evidence,
even though that prong of the analysis is not clearly invoked.
¶ 72 We see little similarity between Carballido, where the undisclosed evidence held
significant impeachment material on a matter of fact that was absolutely crucial to the legal
theory of the case and where other paths to the same end were either extremely flawed (the
34 No. 1-20-0456
defendant’s possibly coerced and at least in part false written confession) or completely
unsuccessful (the defendant’s sister’s unexpected testimony that defendant had not in fact
told her about the firearm). Defendant has cited a case with compelling facts, but has in no
way demonstrated that those facts are comparable to this case. Defendant makes much of the
Carballido court finding the withheld evidence in that case to be material in the context of
“(1) the high relevance of the suppressed evidence; (2) additional errors stemming from and
surrounding the discovery violation * * *; and (3) a significant dispute over the reliability of
other key evidence against defendant.” Id. ¶ 79. However, the “relevance,” which defendant
seems to use as equivalent to materiality, of the withheld evidence in this case does not
compare to the withheld evidence in Carballido.
¶ 73 Here, the evidence that defendant suggests could have been gleaned from more time to
interview Nelson and Austin is purely speculative. The only information elicited from the
two when they were subjected to questioning before the court that defendant suggests could
be meaningful is Austin’s statement that a black man with dreadlocks was waving a firearm
in the lot just prior to the discovery of the murder weapon. Defendant was already aware that
a man by that description was seen fleeing from the scene before hearing from Nelson and
Austin. Defendant argues that with more time to investigate and with Nelson and Austin’s
memories fresher and more recent, information on an alternative suspect could have been
available to the defense and that information could have been used as the basis for
defendant’s trial strategy. Both Nelson and Austin stated that they did not know anyone else
present at the vacant lot that night. Accordingly, at best, what Nelson and Austin could have
provided is a clearer description of one of dozens of unknown individuals in the lot, who had
contact with one of several firearms recovered from the scene. This suggestion is sufficiently
35 No. 1-20-0456
speculative such that we cannot say that there is a reasonable probability that timely
divulgence of the ISRs would have changed the result of the trial. Defendant has not
demonstrated that the withheld evidence was material. Accordingly, we cannot find that the
court’s decision to deny defendant’s motion for a mistrial based on the withholding of the
ISRs and instead offer a jury instruction on the matter was erroneous, much less an abuse of
discretion.
¶ 74 C. Sentencing
¶ 75 Defendant argues that the circuit court abused its discretion when it “repeatedly and at
length considered factors in aggravation not supported by the evidence and relied on its own
personal beliefs and experiences.” Defendant asserts that the circuit court spent “the vast
majority” of its explanation for defendant’s sentence on voicing what defendant calls
“frustration with generalized violence in Chicago and its suburbs.”
¶ 76 Defendant acknowledges that this alleged error was not preserved at trial and asks that we
review the error as plain error or, alternatively, review trial counsel’s failure to raise it as
ineffective assistance of counsel. “To preserve a claim of sentencing error, both a
contemporaneous objection and a written postsentencing motion raising the issue are
required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010). However, a “narrow and limited
exception” exists where an appellant can demonstrate plain error. Id. at 545. The first step of
establishing plain error is to “show that a clear or obvious error occurred.” Id. In the case of
ineffective assistance of counsel, a defendant must show that counsel’s representation “fell
below an objective standard of reasonableness and that counsel’s shortcomings were so
serious as to ‘deprive the defendant of a fair trial, a trial whose result is reliable.’ ” People v.
36 No. 1-20-0456
Albanese, 104 Ill. 2d 504, 525 (1984) (quoting Strickland v. Washington, 466 U.S. 688
(1984)).
¶ 77 “It has long been established that the trial court has broad discretionary powers in
choosing the appropriate sentence a defendant should receive.” People v. Jones, 168 Ill. 2d
367, 373 (1995). “Where the sentence chosen by the trial court is within the statutory range
permissible for the pertinent criminal offense for which the defendant has been tried and
charged, a reviewing court has the power to disturb the sentence only if the trial court abused
its discretion in the sentence it imposed.” Id. at 373-74. “In rendering a sentence, a trial judge
is presumed to have relied upon only competent and reliable evidence. Additionally, it is
defendant’s burden to overcome this presumption.” People v. Griffith, 158 Ill. 2d 476, 497
(1994).
¶ 78 Defendant cites to People v. Dameron, in which our supreme court opined: “A
determination made by the trial judge based upon a private investigation by the court or
based upon private knowledge of the court, untested by cross-examination, or any of the rules
of evidence constitutes a denial of due process of law.” 196 Ill. 2d 156, 171-72 (2001). The
judge in Dameron “spoke at length about social science statistics and vague generalizations
about crime he uncovered through his own investigation” and “[a]n excerpt from the ***
book recited by the judge also conflict[ed] with evidence in the case.” Id. at 176. There is no
evidence that the circuit court conducted any such private investigation in the case at bar, so
Dameron is factually inapposite.
¶ 79 Defendant’s further citations in support of the proposition that a judge cannot consider
private knowledge similarly present scenarios that are inapplicable to this case. People v.
Cunningham has no factual relevance at all and merely recites this statement of law. 2012 IL
37 No. 1-20-0456
App (3d) 100013, ¶ 14. In People v. Jackson, 409 Ill. App. 3d 631, 649-50 (2011), the circuit
court made a statement about how a medication is used without that information being
introduced by the relevant expert witness, the circuit court stopped the expert witness from
testifying as to a simple factual matter with an assertion that it was already familiar with the
matter, and the circuit court relied upon its own opinions about IQ testing in disregarding
expert testimony that stated that IQ testing was relevant to his analysis. In the case at bar,
defendant has not shown that the circuit court allowed evidence generated from its personal
knowledge to supplant the evidence presented at trial.
¶ 80 In People v. Rivers, 410 Ill. 410, 415-16 (1951), the court similarly generally decried
violence in the area before rendering its sentence. However, the Rivers court stated that “[t]he
courts must put an end to these vicious killings by imposing suitable punishment upon these
youngsters for their crimes” and cited statistics, which were not in the record, about the
number of unregistered guns in the city. Id. In the case at bar, the record evinces neither that
the circuit court referred to specific facts outside of the record, nor that the circuit court based
its decision on any such private knowledge. Though the case at bar did not concern a stray
bullet or the larger issue of fear of gang violence, the circuit court’s commentary made use of
nothing more than evidence in the record and general knowledge of which any resident of
Chicago would be aware.
¶ 81 Defendant cites to People v. Rosa, 206 Ill. App. 3d 1074, 1084 (1990), in which the
circuit court spoke broadly about the defendant being the result of “the lack of a father” and
the “stupidity and slutliness of women.” That court called the defendant “slovenly” and
“stupid,” and spoke generally about the “cowardice” of street gang members.” Id. The circuit
court’s commentary in the case at bar is about the issue of gang violence, which is not so far
38 No. 1-20-0456
afield as the circuit court’s broad social commentary in Rosa. While we acknowledge that the
murder in the case at bar was targeted and not an accidental killing, we do not believe the
circuit court’s comments on the larger issue suggest as much, nor that it treated this killing as
indiscriminate in determining the sentence.
¶ 82 Here, it is notable that none of the language referenced by defendant was framed by the
circuit court as the reasoning behind its sentence, but rather appears to have been a soliloquy
designed to make a statement about a larger issue, especially considering that the case
garnered significant press attention and was, as one attorney called it on the record, “the most
sensational murder trial that this county [had] seen in 10 years.” The circuit court concluded
its soliloquy by asking where this larger issue of gang violence stops and by referring to the
specific language from the case at bar in his answer: “It stops with grandmas, mamas and
innocent children simply trying to play at a park.” By laying out the larger issue of gang
violence and then making reference to the particular language in this case, the circuit court
emphasized the particular depravity of the intentional killing of a 9-year-old child, which was
explicitly a relevant factor in delivering an extended-term sentence. 730 ILCS
5/5-5-3.2(b)(3)(i) (West 2018) (allowing courts to impose an extended-term sentence where a
felony is committed against a person under 12 years of age).
¶ 83 Immediately after the circuit court’s soliloquy, it stated the factors that it considered,
which included the relevant and required statutory considerations, 730 ILCS 5/5-4-1(a) (West
2018), with the addition only of “the seriousness of the offense,” which our supreme court
has noted as a relevant factor to be weighed. People v. Coleman, 166 Ill. 2d 247, 261 (1995).
However, “personal comments or observations are generally of no consequence where the
record shows the court otherwise considered proper sentencing factors.” (internal quotation
39 No. 1-20-0456
marks omitted.) People v. Walker, 2012 IL App (1st) 083655, ¶ 33. As the State points out,
the sentence defendant received was arguably near the low end of the applicable sentence
range when an extended sentence is considered, which, as aforementioned, was justified by
the age of the victim alone. Under section 5-4.5-20(a) of the Unified Code of Corrections, a
sentence for first degree murder is to be not less than 20 years and not more than 60 years,
but an extended sentence is to be not less than 60 years and not more than 100 years. 730
ILCS 5/5-4.5-20(a) (West 2018). Under section 5/5-8-1(a)(1)(d)(iii) of the Unified Code of
Corrections, where, as here, it is found that “during the commission of the offense, the person
personally discharged a firearm that proximately caused great bodily harm, permanent
disability, permanent disfigurement, or death to another person, 25 years or up to a term of
natural life shall be added to the term of imprisonment imposed by the court.” 730 ILCS
5/5-8-1(a)(1)(d)(iii) (West 2018). Accordingly, the permissible range was 45 years to life, but
with the option to impose an extended sentence of 85 years to life.
¶ 84 Even where a court may rely on an improper aggravating factor in sentencing, “where it
can be determined from the record that the weight placed on the improperly considered
aggravating factor was so insignificant that it did not lead to a greater sentence, remandment
is not required.” People v. Bourke, 96 Ill. 2d 327 (1983). There is no indication in the record
that the decision to impose an extended sentence was the result of a general distaste for gang
violence rather than the fact that the victim was a 9-year-old child. The circuit court’s focus
on “grandmas, mamas, and innocent children” indicates the importance the circuit court was
placing on the age of the victim. In that context, even if we accept that an improper factor
was considered, we cannot say that a sentence of 90 years was significantly affected by such
consideration where the extended sentence range was 85 years to life imprisonment.
40 No. 1-20-0456
Accordingly, because we find no clear or obvious error to support a claim of plain error, we
need proceed no further in the plain error analysis, and we find that the issue is forfeited on
appeal. With regard to the alternative theory of ineffective assistance of counsel, defendant
has not shown that trial counsel’s performance fell below an objective standard of
reasonableness as we see no error warranting an objection, and so we affirm the sentence of
the circuit court.
¶ 85 III. CONCLUSION
¶ 86 For the foregoing reasons, we affirm the circuit court’s orders on defendant’s motion for
continuance and motion for mistrial, and we affirm the circuit court’s sentence.
¶ 87 Affirmed.
Related
Cite This Page — Counsel Stack
2024 IL App (1st) 200456-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-doty-illappct-2024.