People v. Hudson

2019 IL App (1st) 150489-U

• Court: Appellate Court of Illinois
• Decided: December 2, 2019
• Docket: 1-15-0489
• Status: Unpublished

Opinion

2019 IL App (1st) 150489-U

FIRST DIVISION December 2, 2019

No. 1-15-0489

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 11 CR 21043 ) DONTA HUDSON, ) The Honorable ) Maura Slattery Boyle Defendant-Appellant. ) Judge Presiding.

JUSTICE PIERCE delivered the judgment of the court. Justices Hyman and Walker concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for attempted murder is reversed where the State failed to prove that defendant performed an act that constituted a substantial step toward committing a murder. We remand to the circuit court for resentencing on the most serious remaining offense for which defendant was convicted.

¶2 Following a bench trial, defendant Donta Hudson was found guilty of one count of

attempted murder (720 ILCS 5/8-4(a), 9-1 (West 2010)), one count of armed habitual criminal

(AHC) (id. § 24-1.7(a)), four counts of unlawful use of a weapon by a felon (UUWF) (id. § 24-

1.1(a)), four counts of aggravated unlawful use of a weapon (AUUW) (id. § 24-1.6(a)), and two No. 1-15-0489

counts of aggravated assault (id. § 12-2(c)). The circuit court merged the counts and sentenced

defendant to 25 years’ imprisonment on the attempted murder conviction.

¶3 On appeal, defendant argues that the evidence was insufficient to convict him of

attempted murder, as the State failed to introduce any competent evidence that he performed an

act that constituted a substantial step toward committing a murder. He further argues that his trial

counsel was ineffective for failing to object to certain portions of the State’s forensic ballistics

and testing expert’s testimony. He does not challenge the sufficiency of the evidence for any of

his other convictions. For the reasons that follow, we agree that defendant’s attempted murder

conviction must be vacated, and we remand to the circuit court for resentencing.

¶4 I. BACKGROUND

¶5 Defendant was charged with one count of attempted murder (id. § 8-4(a)), one count of

AHC (id. § 24-1.7(a)), four counts of UUWF (id. § 24-1.1(a)), four counts of AUUF (id. § 24-

1.6(a)), and two counts of aggravated assault (id. § 12-2(c)). He waived his right to a jury trial,

and the matter proceeded to a bench trial.

¶6 Chicago police officer Lloyd Maxwell testified that on November 23, 2011, he was on a

routine patrol in a marked police vehicle driving southbound on Kedzie Avenue approaching

Chicago Avenue. At 1:30 p.m., he heard a police radio call of a man with a gun wearing a black

coat and black jeans. Officer Maxwell activated his mars lights, siren, and car video camera.

Near the intersection of Kedzie Avenue and Walnut Street, Officer Maxwell saw a man walking

that fit the description. Officer Maxwell approached in his vehicle, and the man—whom Officer

Maxwell identified in court as defendant—ran southbound down Kedzie Avenue. Officer

Maxwell pursued defendant. When defendant turned into an alley, Officer Maxwell testified that

he saw defendant’s hand disappear briefly from view, and came back into view holding a

2 No. 1-15-0489

firearm. Defendant pointed his arm in a backward motion while continuing to run. Officer

Maxwell testified that while defendant was pointing the gun, he “made a jerking motion with his

arm back and forth twice.” Officer Maxwell, who was about 10 to 15 feet away from defendant,

did not hear or see any gunfire, and could not see if defendant pulled the trigger. A video of

Officer Maxwell’s pursuit of defendant, and of defendant pointing a gun at Officer Maxwell, was

introduced into evidence.

¶7 Defendant continued to run through the alley before running through a vacant lot. Officer

Maxwell exited his vehicle and pursued defendant on foot. Defendant ran past a row of

apartments with a large courtyard in the middle, and Officer Maxwell, wary of running into an

ambush, went to the side of a building before entering the courtyard. He saw defendant standing

by himself behind a stairwell. Officer Maxwell saw a door slam shut for 3251 West Maypole

Avenue, Apartment B1, which was only a few feet away from defendant. Officer Maxwell

placed defendant under arrest and performed a custodial search, but did not find a gun on

defendant’s person or in the immediate area. Other officers arrived and entered the apartment.

Inside the apartment, those officers placed Albert Davis 1 under arrest. When they exited the

apartment, they were holding a black and blue steel handgun, which Officer Maxwell identified

as the gun that defendant pointed at him.

¶8 Chicago police officer Jorge Lopez testified that on November 23, 2011, at 1:30 p.m., he

was working with Officers Zablocki and Dolan. 2 Officer Lopez heard a radio call about a man

with a gun, and heard Officer Maxwell respond that he saw a person matching the description.

1 Defendant’s trial was consolidated with Davis’s trial. Davis was charged in a separate indictment with home invasion, residential burglary, and UUWF. The trial court found Davis guilty of residential burglary and UUWF, but acquitted him of the home invasion charge. On appeal, we affirmed Davis’s UUWF conviction, but vacated his residential burglary conviction. People v. Davis, 2017 IL App (1st) 142263. 2 Officer Zablocki’s and Officer Dolan’s first names do not appear in the record on appeal.

3 No. 1-15-0489

Officers Lopez, Zablocki, and Dolan went to the address of 3251 West Maypole Avenue and saw

Officer Maxwell placing defendant under arrest. Officer Maxwell told them the door to

apartment 1B had just slammed shut. Officer Lopez noticed that the door to the apartment was

ajar, and he opened the door. The apartment’s occupant consented to a search, and officers found

a handgun in the freezer, which Officer Maxwell identified as the gun that defendant pointed at

him.

¶9 Chicago police officer Joseph Keating, a firearms examiner working in the forensic

firearms section, testified as an expert in the field of firearm forensic ballistics and testing.

Defendant stipulated that Officer Keating was a forensic firearms expert. Officer Keating

examined and tested the firearm recovered from Powell’s freezer, a Llama IX-A, .45-caliber

semiautomatic pistol. He testified that the gun was in good working condition. He explained that

the gun was a single action and double action, and had three safeties: a grip safety, a gun safety,

and a hammer safety. At the time the gun was recovered, one round was in the chamber and six

rounds were in the magazine, meaning the gun was fully loaded. Officer Keating explained that

when the magazine was loaded into the gun, the user would cycle the round into the chamber by

pulling back on the slide, which would cock the hammer. The gun would then be a double

action: pulling the trigger would cause the hammer to fall, simultaneously firing the weapon and

causing the slide to slide back and re-cock the hammer. In order to safely carry the gun with a

round in the chamber, the user would have to drop or lower the hammer, meaning move the

hammer to a forward position so that it rode against the firing pin. The round recovered from the

chamber had a dent in the primer, which resulted from the hammer of the gun resting against the

firing pin and the firing pin resting against the round’s primer. Officer Keating testified that this

indicated that defendant had loaded the gun, cycled a round into the chamber, then lowered the

4 No. 1-15-0489

hammer so that it rested against the firing pin. During Officer Keating’s testing of the gun, he

recreated the indentation by lowering the hammer on to a round in the chamber. He was not able

to determine whether the trigger had been pulled. He testified that the trigger could be pulled

without the gun firing if (1) the hammer was down, (2) the hammer was back, i.e., cocked, but

the user failed to grip the grip safety, or (3) if the hammer was cocked but the thumb safety was

up.

¶ 10 Officer Keating further testified, without objection, that he was familiar with the concept

of “shooter anticipation,” which is where a person will anticipate a round being fired by

attempting to counter the recoil that occurs when a round is fired. He testified that, “based on his

experience,” if he observed someone with a handgun jerking their hand forward, that would

indicate to him that they were trying to fire the gun, and that they thought the gun would go off.

Keating did not give any testimony as to what his experience was with shooter anticipation. On

cross-examination, Officer Keating testified that the indentation on the primer was not caused by

a misfire. Further, he could not give an opinion as to whether defendant “suffered” from shooter

anticipation.

¶ 11 Defendant moved for a directed verdict on the attempted murder charge, which the circuit

court denied. Defendant stipulated that he had a previous conviction for UUWF, that he was on

parole on November 23, 2011, and that he did not possess a valid firearm owner’s identification

card. The circuit court found defendant guilty of all charges. Defendant’s timely posttrial motion

for a new trial was denied, and he filed a timely notice of appeal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues that the evidence at trial was insufficient to support an

attempted murder conviction. His primary argument is that the State failed to present any

5 No. 1-15-0489

competent evidence from which a trier of fact could conclude that he pulled the trigger. He

argues that none of the State’s witnesses testified that he pulled the trigger, and that Officer

Keating’s testimony regarding shooter anticipation lacked a sufficient basis. He further argues

that his trial counsel provided ineffective assistance by failing to object to Officer Keating’s

testimony regarding shooter anticipation. We agree that defendant’s attempted murder conviction

and sentence should be vacated, and do not reach defendant’s ineffective assistance of counsel

argument.

¶ 14 “[T]he State carries the burden of proving beyond a reasonable doubt each element of an

offense.” People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009) (citing Jackson v. Virginia, 443

U.S. 307, 315-16 (1979)). When a defendant challenges the sufficiency of the evidence, we

consider all of the evidence in the light most favorable to the State, and we must determine

whether any rational trier of fact could have found beyond a reasonable doubt that the State

proved each essential element of the crime. Id. We will not substitute our judgment for that of

the trier of fact on issues of the weight of the evidence or the witnesses’ credibility. Id. “A

criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as

to create a reasonable doubt of the defendant’s guilt.” Id.

¶ 15 To prove that defendant committed attempted murder, the State was required to prove

that defendant, without lawful justification and with an intent to kill, pointed a loaded gun at

Officer Maxwell and pulled the trigger, which constituted a substantial step towards committing

murder. 720 ILCS 5/8-4(a), 9-1 (West 2010). “Intent is a state of mind which can be established

by proof of surrounding circumstances, including the character of the assault, the use of a deadly

weapon, and other matters from which an intent to kill may be inferred.” People v. Brown, 2015

IL App (1st) 131873, ¶ 14. Here, the State presented evidence that defendant pointed a loaded

6 No. 1-15-0489

gun at Officer Maxwell, and that he made two jerking motions with his hand in Officer

Maxwell’s direction while running away from the officer. The State contends that the

circumstantial evidence of defendant’s intent to kill is similar to that in People v. Spiezio, 191 Ill.

App. 3d 1067 (1989). In Spiezio, the defendant was charged with attempted murder for pointing

a loaded gun at a police officer’s head and stating “fuck you coppers” while the officer was four

or five feet away. Id. at 1070-71. The officer jumped on the defendant and a struggle ensued,

during which defendant again pointed the gun at the officer. Id. Another officer joined the

struggle, and the officers managed to get the gun away from the defendant, who continued to

struggle until he was placed in handcuffs. Id. We found that “there was sufficient circumstantial

evidence of intent to kill to support the jury’s verdict where defendant pointed a loaded gun at

the police officer from close range, while yelling, ‘fuck you coppers.’” Id. at 1074.

¶ 16 The evidence here from which to infer that defendant had an intent to kill is

unsatisfactory. In Spiezio, the State introduced evidence that the defendant pointed the gun at the

officer’s head, whereas here, the evidence was simply that defendant pointed the gun at Officer

Maxwell. There, the officer was just a few feet away from the defendant, whereas here, Officer

Maxwell was following defendant in a car and was approximately 10 to 15 feet away when

defendant pointed the gun. There, the defendant yelled “fuck you coppers” while pointing the

gun directly at the officer’s head, whereas here, there was no evidence of any statements by

defendant, who was running away from Officer Maxwell. We find that the evidence here is so

unsatisfactory that it cannot support a finding of an intent to kill

¶ 17 We further find that State failed to prove beyond a reasonable doubt that defendant took

any substantial step toward committing murder. The State’s theory at trial was twofold: (1) that

the impression on the primer of the round found in the chamber indicated that defendant might

7 No. 1-15-0489

have tried to pull the trigger, and (2) that the jerking motion of defendant’s arm while he was

aiming the gun at Officer Maxwell was attributable to defendant’s anticipation of the gun’s

recoil. Neither of these theories finds sufficient evidentiary support to allow for an inference that

defendant pulled the trigger while pointing the gun at Officer Maxwell.

¶ 18 The State argues in its brief that

“From [Officer Keating’s] testing, he determined that the indentation of [sic] the

bullet was caused by the trigger being pulled when the bullet was in the chamber;

[sic] which caused the lowering of the hammer, and the hammer rested on the

firing pin, which then rested on the primer portion of the bullet. *** The hammer

being forward, corroborated by the fact that there was an indentation in the

primer, explains why when defendant pulled the trigger, the gun did not fire a

bullet toward the officer.”

¶ 19 At best, the State mischaracterizes Officer Keating’s testimony. The following Officer’s

Keating’s testimony verbatim:

“Q. What do you see in People’s Exhibit Number Seven?

A. I see—well, Exhibit Number Seven is what I duplicated. The exact

marks from the hammer being left on the firing pin, which is basically applied

pressure, minimal pressure to the primer. Primer of the cartridge.

Q. In other words, is it fair to day [sic] you recreated the indentation that

was inside the round recovered from the chamber?

A. Yes, I did.

Q. How did you recreate that indentation?

8 No. 1-15-0489

A. I pulled the bullet. This is for safety reasons. I’m only trying to produce

the mark on the primer. I pulled the bullet, took out the gunpowder in case of it

going off, which it didn’t. It left the exact same indentation. The indentation was

caused from the live round in the chamber, caused from lowering the hammer.

You know what I mean. This is the indentation.

Q. From your tests, were you able to tell whether the trigger was pulled on

that firearm when the bullet was in the chamber?

A. Only to lower the hammer. Other than that, no.

Q. Is it that the trigger wasn’t pulled or you can’t determine?

A. I can’t determine if the trigger was pulled. You know what I mean? To

fire it, you mean?

Q. Correct.

A. Correct.

Q. What can you determine?

A. What I can determine is that somebody loaded the live cartridge into

there, and lowered the hammer, in such a manner. You know, they lowered the

hammer in such a manner as this.

Q. Officer Keating, is there a scenario or are there scenarios under which

the gun could be in the condition you described it, the trigger could be pulled and

bullet would not fire?

A. Yes.

Q. How could that happen?

9 No. 1-15-0489

A. Okay, the gun is cleared and safe. Okay. For you to pull the trigger, and

gun did not off, one, is if the hammer is down. It will not fire. Two, if the hammer

is back and you do not grip the grip safety, the gun will not go off. Of, third, if

you have the thumb safety up, with hammer cocked, you pull the trigger, nothing

would go off.” (Emphases added.)

¶ 20 Officer Keating did not testify that the indentation was caused by defendant pulling the

trigger; he testified that the indentation was caused by the gun being loaded and the hammer

being dropped. He also testified that there were three scenarios in which the loaded gun would

not fire. Elsewhere he testified that a person could safely carry the gun with a round in the

chamber by lowering the hammer. In order to fire the gun, the person would have to cock the

hammer back before pulling the trigger. Officer Keating acknowledged that he could not tell

whether the trigger had been pulled. Simply put, there was no evidence that the indent on the

primer was caused by defendant pulling the trigger, nor was there any evidence that the

indentation on the primer occurred while defendant was running from Officer Maxwell.

Furthermore, there was absolutely no testimony that anyone saw defendant pull the trigger while

he was pointing the gun at Officer Maxwell. Under the facts before us, the mere presence of an

indentation on the primer of the round recovered from the gun’s chamber was insufficient to

support an inference that defendant pulled the trigger while pointing the gun at Officer Maxwell.

¶ 21 The State’s second theory was that defendant’s hand jerked twice while he was pointing

the gun at Officer Maxwell. The State contends that this was sufficient evidence from which the

circuit court could conclude that defendant was attempting to pull the trigger while pointing the

gun at Officer Maxwell. The State further contends that defendant forfeited any argument related

10 No. 1-15-0489

to Officer Keating’s testimony on the issue of shooter anticipation because he failed to object at

trial.

¶ 22 We agree with the State that defendant forfeited his objections to Officer Keating’s

testimony by failing to object during trial. In order to preserve an alleged error for appellate

review, a defendant must make a specific objection at trial and raise that issue again in a posttrial

motion. People v. Anaya, 2017 IL App (1st) 150074, ¶ 50. Here, defendant did not object to

Officer Keating’s testimony regarding shooter anticipation during trial or in his posttrial motion

for a new trial. He has therefore forfeited any objection to the circuit court’s admission of Officer

Keating’s testimony regarding shooter anticipation into evidence.

¶ 23 Notwithstanding defendant’s forfeiture, Officer Keating’s testimony regarding shooter

anticipation, even if properly admitted, is not sufficient to support a conviction for attempted

murder. Officer Keating was familiar with the concept of shooter anticipation, but he did not

give an opinion as to whether defendant “suffered” from shooter anticipation. He offered no

testimony regarding defendant’s experience with firearms, or whether defendant’s actions

supported a conclusion that shooter anticipation was present here. No reasonable inferences can

be drawn from Officer Keating’s testimony that, when considered with the remaining competent

evidence, supports an attempted murder conviction.

¶ 24 There was no other evidence in the record from which the circuit court could have

inferred that defendant pulled the trigger, and we find that the State failed to prove beyond a

reasonable doubt that defendant performed an act that constituted a substantial step toward

committing a murder. Defendant’s conviction for attempted murder is reversed and the circuit

court’s sentence on that conviction is vacated. Defendant has not challenged the sufficiency of

11 No. 1-15-0489

the evidence for any of his remaining convictions, so we remand this matter to the circuit court

for resentencing on the most serious remaining offense for which defendant was convicted.

¶ 25 As we have reversed defendant’s conviction for attempted murder, we need not address

his alternative argument that his trial counsel was ineffective.

¶ 26 III. CONCLUSION

¶ 27 For the foregoing reasons, defendant’s conviction for attempted murder is reversed, his

sentence on that conviction is vacated, and we remand to the circuit court to resentence

defendant on his unchallenged convictions.

¶ 28 Reversed in part; vacated in part; remanded for resentencing.