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). 2023 IL App (3d) 210217-U
Order filed July 28, 2023. ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0217 v. ) Circuit No. 20-CF-289 ) ROBERT L. HARRIS, ) Honorable ) Kevin W. Lyons, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justice Albrecht concurred in the judgment. Justice Brennan dissented. ____________________________________________________________________________
ORDER
¶1 Held: Defense counsel was ineffective for failing to object to prejudicial other-crimes evidence.
¶2 The defendant, Robert L. Harris, appeals his conviction of unlawful possession of a weapon
by a felon (UPWF) and obstructing justice, arguing defense counsel was ineffective for failing to
object to other-crimes evidence regarding the endangerment and subsequent death of a child.
¶3 I. BACKGROUND ¶4 The defendant was charged with endangering the health or life of a child (count I) (720
ILCS 5/12C-5(a)(1) (West 2020)), UPWF (count II) (id. § 24-1.1(a)), and obstructing justice
(count III) (id. § 31-4(a)(1)) as a result of an accidental shooting that occurred on May 20, 2020.
On March 30, 2021, the defendant and the State agreed to sever count I and proceeded to trial on
counts II and III. At a jury trial, the State introduced evidence of Bonita Harris’s 4:02 p.m. 911
call, stating that a minor, Jo.W., had been wounded by a BB gun. On the call, Bonita stated that
her grandchildren were playing outside, found a gun, and one of them pulled the trigger. Bonita
was afraid of the gun and did not want to go near it, but believed it was a BB gun. She stated Jo.W.
was bleeding from his chest and had trouble breathing.
¶5 Peoria police officers Danny Marx Jr. and Andrew Redpath were dispatched to Bonita’s
house. Upon arrival, Marx discovered Jo.W. had a gunshot wound and not a wound inflicted by a
BB gun as reported. Marx spoke with Ja.W., Jo.W.’s brother, who initially stated he was inside
the house when he heard a loud bang outside. He ran outside and found Jo.W. lying on the
sidewalk. Ja.W. stated that he threw the firearm into the neighbor’s yard and showed Marx where
he threw the gun, but it was not found. Redpath searched the house and did not find anyone else
present.
¶6 Peoria police officer David Buss discovered a 9-millimeter bullet casing underneath a coat
rack behind the front door. Buss discovered that the bullet passed through a sweatshirt that was
hanging on the wall and then struck the doorframe. Buss recovered the bullet from the doorframe.
Officers searched the home after obtaining a search warrant and discovered a bag of .38-caliber
ammunition in a coat. No firearm or BB gun was discovered in the residence during the search.
¶7 Bonita testified that she lived in the house with her son, O’Bryan, and her grandchildren,
Ja.W. and Jo.W. The defendant was only Ja.W.’s biological father but both children called the
2 defendant “dad.” On the date of the incident, the defendant arrived at the house between 11 a.m.
and 1 p.m. The defendant played with Ja.W. and Jo.W. Bonita went to take a nap and the defendant
left. Bonita was later awoken when Ja.W. “slammed into” her bedroom door crying and stating
Jo.W. was dead. Bonita exited her bedroom, saw the defendant, and told him to check on Jo.W.
while she tried to calm down Ja.W. The defendant told Bonita to call 911, which she did.
¶8 Bonita testified that the defendant was still at the house when the ambulance arrived, but
did not remember if he was there when police arrived. Bonita never saw a gun and denied
mentioning a gun to the defendant at that time, but stated it was possible she told a detective that
Ja.W. told her the defendant had left with a gun. Bonita did not know O’Bryan to own or have a
gun or ammunition and believed the ammunition in the coat pocket could have belonged to her
father who previously lived there. Bonita said the coat also could have been her father’s or
O’Bryan’s since it was a smaller coat, and the defendant was much larger than O’Bryan or her
father.
¶9 Ja.W. was 10 years old when he testified at trial and was granted immunity to compel him
to testify. He testified that he and Jo.W. found the gun in the defendant’s coat pocket that was
hanging on a coat rack behind the front door. They started playing with it near the front door when
it went off and a bullet struck Jo.W. Ja.W. then ran to tell Bonita. Ja.W. and Bonita woke the
defendant who was napping in another bedroom. The defendant then took the coat and left before
the police and ambulance arrived. Ja.W. testified that before the defendant left with his coat and
gun, Bonita asked the defendant “[w]hy would you have this gun in my house when you know I
have these kids here.” Ja.W. also stated he initially lied to the police about how the incident
occurred because the defendant told him to.
3 ¶ 10 Detective William Calbow Jr. conducted multiple recorded interviews as part of his
investigation, which were played in court. Calbow first spoke with Bonita and Ja.W. on the date
of the incident. During this interview, Bonita stated that she called the defendant and told him to
come to the house immediately because Jo.W. shot himself. Phone records did not support this
claim and Bonita denied calling the defendant at trial. Bonita was interviewed again two days later,
during which she stated Ja.W. told her the defendant left the house when the ambulance arrived.
During Calbow’s interview of Ja.W., he stated the defendant was not present during the shooting.
Calbow stated Ja.W.’s statements in the video recording were “part of the initial story that [Ja.W.]
gave before he told us the truth.” Ja.W. also stated he did not see Jo.W. find the gun.
¶ 11 Calbow interviewed the defendant a week after the incident after the defendant had
surrendered himself to the police. During the interview, the defendant stated he did not know where
he was the day of the incident. He further stated he was not at Bonita’s house that day but had been
there the day before.
¶ 12 The parties stipulated the defendant was previously convicted of a felony. The parties also
stipulated that Amanda Youmans would testify she was a forensic pathologist who performed
Jo.W.’s autopsy. She found a gunshot wound on the left side of Jo.W.’s back and an exit wound
on the left side of his chest. The bullet perforated Jo.W.’s left lung and heart, and Youmans opined
that the cause of death was from the gunshot wound. The State rested, and the defendant’s motion
for a directed verdict was denied. The defense rested without presenting any evidence.
¶ 13 The State referenced the death of Jo.W. multiple times in both their opening and closing
arguments. Notably, the State began its closing argument stating:
4 “[l]adies and gentlemen, on the afternoon of May 20th, 2020, [Ja.W.] was
standing in his house next to his dying brother, [Jo.W.]. [Ja.W.] had just fired [a]
gun, which hit [Jo.W.].
In that heartbreaking moment, when [Ja.W.] and [Jo.W.] need the
defendant more than anytime in their life, what does the defendant do? Flees out
of the house.”
During their closing arguments, the State mentioned Jo.W.’s death or the fact that he had been shot
more than 12 times.
¶ 14 The jury found the defendant guilty of both counts. The defendant filed a motion for a new
trial arguing the State failed to prove him guilty beyond a reasonable doubt, the court erred in
granting Ja.W. immunity, and the court erred in denying the defendant’s motion in limine
regarding prior convictions. The motion was denied. The court sentenced the defendant to
concurrent prison terms of 10 years for UPWF and 3 years for obstructing justice. The defendant
filed a motion to reconsider sentence which was denied. The defendant appealed.
¶ 15 II. ANALYSIS
¶ 16 On appeal, the defendant argues, inter alia, trial counsel was ineffective for failing to object
to the prejudicial other-crimes evidence describing how the defendant left a firearm in a place
where children could reach it, one child shot another child, and a child died as a result. The United
States and Illinois Constitutions guarantee a defendant the right to the effective assistance of
counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I § 8. Ineffective assistance of counsel
claims are evaluated under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668
(1984). To establish ineffective assistance of counsel, a defendant must prove that (1) counsel’s
performance fell below an objective standard of reasonableness, and (2) counsel’s deficient
5 performance prejudiced the defendant, i.e., a reasonable probability exists that, but for counsel’s
errors, the result of the proceeding would have been different. Id. at 687; People v. Albanese, 104
Ill. 2d 504, 525-26 (1984). Whether defense counsel rendered ineffective assistance is a mixed
question of law and fact subject to de novo review. People v. Bew, 228 Ill. 2d 122, 127 (2008).
¶ 17 Evidence of offenses other than those at issue is generally inadmissible in order to “protect
against the jury convicting a defendant because he or she is a bad person deserving punishment.”
People v. Donoho, 204 Ill. 2d 159, 170 (2003). But evidence of other crimes may be admissible
“if it is relevant for any purpose other than to show the defendant’s propensity to commit crimes.”
People v. Wilson, 214 Ill. 2d 127, 135 (2005). “For instance, other-crimes evidence is admissible
to show modus operandi, intent, identity, motive or absence of mistake.” Id. at 135-36. “Evidence
of other crimes [may also be] admissible if it is ‘part of the continuing narrative of the event giving
rise to the offense [citation], is intertwined with the event charged [citation], or explains an aspect
of the crime charged that would otherwise be implausible [citation].’ ” People v. Hale, 2012 IL
App (1st) 103537, ¶ 14 (quoting People v. Outlaw, 388 Ill. App. 3d 1072, 1086-87 (2009)).
Continuing narrative acts are those “ ‘which concern the circumstances attending the entire
transaction and they do not concern separate, distinct and disconnected crimes.’ ” People v. Adkins,
239 Ill. 2d 1, 32 (2010) (quoting People v. Marose, 10 Ill. 2d 340, 343 (1957)). However, even if
other-crimes evidence is relevant, it should be excluded “if the prejudicial effect substantially
outweighs the probative value.” People v. Foreman, 2019 IL App (3d) 160334, ¶ 31.
¶ 18 We find that counsel’s performance was deficient for failing to object to the admission of
the other-crimes evidence. First, the other-crimes evidence was not admissible. Because of the
stipulation that the defendant was a felon and the fact that the counts were severed, the State only
needed to prove the defendant possessed a firearm, and he intended to obstruct his prosecution by
6 concealing the firearm. Nothing required the State to prove the firearm was left where a child could
find it or that the firearm caused a child’s death. Evidence thereof served no legitimate purpose
and instead was impermissibly used by the prosecution to “inflame the passions and prejudices of
the jury.” People v. Porter, 372 Ill. App. 3d 973, 979 (2007). What little relevancy, if any, this
evidence had in proving a firearm was present in the home on the date of the incident or to further
support the State’s claim that the defendant intended to conceal the firearm is substantially
outweighed by the unfair prejudice. Evidence of Jo.W.’s death was also not part of the continuing
narrative in this matter. There were far less prejudicial ways to prove a firearm was present in the
house on the date in question, and the defendant clearly had a motive to conceal the weapon given
the stipulation that he was a felon and was alleged to be in possession of a weapon with police en
route. For these reasons, the death was also not part of the continuing narrative which only required
the State to prove the defendant possessed a firearm, police were called because a firearm was
discharged, and the defendant removed the firearm before police arrived to conceal the fact he was
a felon in possession of a firearm.
¶ 19 Second, even if we were to accept the State’s argument that Jo.W.’s death was relevant to
prove the defendant’s intent to obstruct justice by concealing the firearm or permissible as part of
the continuing narrative of events, “other-crimes evidence must not become a ‘focal point’ of the
trial.” People v. Smith, 406 Ill. App. 3d 747, 755 (2010) (quoting People v. Boyd, 366 Ill. App. 3d
84, 94 (2006)). Courts have repeatedly warned against presenting unnecessarily detailed or
repetitive evidence of other crimes. Boyd, 366 Ill. App. 3d at 94; People v. Bedoya, 325 Ill. App.
3d 926, 940-41 (2001) (“The detail and repetition presented to the jury had nothing to do with the
purported purpose of the evidence—proof of [the defendant’s] intent and the absence of
accident.”).
7 ¶ 20 Here, the State impermissibly made Jo.W.’s death a focal point of the trial. The State began
closing arguments by referring to the death of Jo.W. as a “heartbreaking moment, when [Ja.W.]
and [Jo.W.] need[ed] the defendant more than anytime in their life.” The State then ended its
closing argument again referring to Jo.W.’s death. The State also made repeated references to
Jo.W.’s death throughout their opening and closing arguments and introduced the autopsy report,
which unnecessarily detailed Jo.W.’s death. There was no strategic reason to allow the State to
center the case around such prejudicial evidence of the untried offense of endangering the health
or life of a child, and, therefore, counsel’s performance was deficient by failing to object.
¶ 21 In coming to this conclusion, we reject the State’s argument that evidence of Jo.W.’s death
does not constitute other-crimes evidence even though the jury could infer from the evidence that
the defendant endangered the health or life of a child because the State never explicitly stated the
firearm was carelessly left where children could find it. “The fact that such evidence comes to the
jury by way of inference does not alter its potentially prejudicial character.” People v. Lewis, 165
Ill. 2d 305, 346 (1995). Evidence of Jo.W.’s death, allegedly caused by the firearm left in a place
accessible by the children, was clearly evidence of a crime other than those at issue in this trial.
¶ 22 Turning to the second prong of the Strickland test, we must determine whether there is a
reasonable probability the result of the proceedings would have been different had defense counsel
objected to the impermissible other-crimes evidence. Here, the only witness who testified the
firearm belonged to the defendant or that the defendant concealed the firearm from the police was
Ja.W. who was 10 years old at the time of the trial and initially gave a contradictory statement to
the authorities. Further, in her testimony, Bonita contradicted the information she provided in her
video recorded interview several times. There was also ammunition found in a coat pocket that
does not appear to have belonged to the defendant and did not match the caliber of firearm fired
8 inside the house. Moreover, as stated above, Jo. W.’s death became the focal point of trial, and the
jury was not provided any limiting instruction for how to consider the other-crimes evidence.
Given the lack of credible testimony or other evidence that the firearm belonged to the defendant,
along with the highly prejudicial nature of the other-crimes evidence, we believe there was a
reasonable probability the jury may have found the defendant not guilty of both counts absent the
State’s attempt to inflame their passions. We, therefore, reverse the defendant’s convictions and
remand for a new trial. We note that double jeopardy does not preclude a new trial as the evidence
presented was sufficient to sustain the defendant’s convictions. See People v. Belknap, 396 Ill.
App. 3d 183, 213 (2009). Based this determination, we need not consider the defendant’s other
contentions.
¶ 23 III. CONCLUSION
¶ 24 The judgment of the circuit court of Peoria County is reversed and remanded.
¶ 25 Reversed and remanded.
¶ 26 JUSTICE BRENNAN, dissenting:
¶ 27 I respectfully dissent from the majority’s reversal of defendant’s convictions due to
ineffective assistance of counsel. First, I do not agree that most of the complained-of other crimes
evidence was inadmissible. Moreover, trial counsel used this evidence for strategic purposes to
discredit Bonita and Ja.W., which otherwise defeats the majority’s ineffective assistance analysis.
¶ 28 Initially, I take issue with the majority’s truncated characterization of the evidence
surrounding Jo.W.’s death as “other crimes” evidence. Most of this evidence was course of
conduct evidence necessary to prove the charged elements and explain an otherwise confusing set
of circumstances. Hale, 2012 IL App (1st) 103537, ¶ 14. The State was required to prove that
defendant possessed a gun inside Bonita’s apartment and that he fled the apartment with the gun
9 to obstruct his prosecution for possessing the gun as a felon. Here, however, law enforcement
never saw defendant in the apartment, let alone in possession of a gun. Nor was a gun ever found.
The only two witnesses to defendant possessing a gun in the apartment and fleeing with it both
initially denied that defendant was present in the apartment when Jo.W. was shot. Further, it had
been suggested in turn that Jo.W. had been shot with a BB gun, had shot himself outside the
apartment with a gun found under a tree, and that it was Ja.W. who had secreted the gun somewhere
outside the apartment. Adding to this confusion was unrelated ammunition found in a coat next to
where defendant’s gun was purportedly located by Ja.W., and that defendant’s adult brother, and
not defendant, lived in the apartment where the gun was found.
¶ 29 Under these circumstances, it would be all but impossible to prove that defendant had
possessed a gun in the apartment and fled with it without getting into the circumstances leading
up to Jo.W.’s death. Indeed, these facts “attend[ed] the entire transaction and they do not concern
separate, distinct and disconnected crimes.” (Internal quotation marks omitted.) Adkins, 239 Ill. 2d
at 32. To prove that defendant fled with an actual (unrecovered) gun from the apartment, it was
necessary to prove that there was a gun in the apartment in the first place. Given the inconsistent
statements of the only two witnesses to this fact, the State was entitled to demonstrate that a gun
was in the apartment by proof of the bullet casing on the floor and the bullet in the doorframe that
presumably came from a single bullet fired through the body of Jo.W. The timing of Jo.W.’s
gunshot wound and death was not elicited to inflame the passions of the jury, but to definitively
prove the time an actual gun, and not a BB gun, was in the apartment.
¶ 30 That no gun was found at the scene of Jo.W.’s shooting when law enforcement arrived of
course leads to the inference that someone secreted the gun from the scene. But who? Was it
Ja.W., as he initially claimed, or defendant, as Ja.W. subsequently detailed? To prove beyond a
10 reasonable doubt that Ja.W.’s testimony was the truth, the State was entitled to argue that defendant
fled the scene after Jo.W.’s death. The death of Jo.W., afterall, made it more likely that a thorough
investigation as to the source of the gun would ensue. While I agree with the majority that the
stipulated testimony of the forensic pathologist was unnecessary, I do not find it prejudicial under
the circumstances. It was cumulative to evidence the State was otherwise entitled to and did
introduce, i.e., Jo.W.’s death by gunshot wound, absent any pictures or graphic details to raise the
specter of reversible prejudice.
¶ 31 Also problematic, the majority’s ineffective assistance analysis completely ignores the
legitimate strategic reasons defense counsel did not object to the highlighted evidence. In
assessing whether defense counsel’s performance was reasonable, we must afford great deference
to strategic decisions and there is “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Given, as trial
counsel emphasized, there was no physical evidence tying a gun to defendant, it was necessary to
discredit the testimony of Bonita and Ja.W. that defendant possessed the gun and fled the scene
after Jo.W.’s death. To discredit Bonita, the defense suggested that she framed defendant to deflect
any blame she might have shared in Jo.W. obtaining a gun from her home and shooting himself
and to reduce the likelihood of DCFS removing Ja.W. from her care. To discredit Ja.W., whom
Bonita acknowledged on cross-examination “sometimes imagines things or sees things that aren’t
there,” the defense attributed his claims that defendant was present to the shock of having shot and
killed his half-brother. Evidence of Jo.W.’s death was necessary to each of these strategic attempts
to discredit Bonita and Ja.W. Though defense counsel’s strategic use of this evidence was
ultimately unsuccessful, success is not the lens through which we measure reasonable assistance.
¶ 32 I would affirm defendant’s convictions.