NOTICE 2022 IL App (4th) 210273-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-21-0273 August 2, 2022 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County BILLY D. LEWIS, ) No. 20CF1329 Defendant-Appellant. ) ) Honorable ) Jason M. Bohm, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.
ORDER
¶1 Held: The trial court did not err by admitting the description of the incident on the surveillance video by a State witness who lacked firsthand knowledge of the incident, and the court’s preliminary inquiry into defendant’s pro se ineffective assistance of counsel claims was adequate.
¶2 In November 2020, the State charged defendant, Billy D. Lewis, by information
with one count of aggravated battery (720 ILCS 5/12-3.05(c) (West 2020)). In February 2021,
the State filed a second count of aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2020)).
After a March 2021 jury trial, the jury found defendant guilty of both charges. Defense counsel
filed a motion for acquittal or, in the alternative, a motion for a new trial, arguing, inter alia, the
trial court erred by allowing the State’s witness Brandon Smith-LaGrone, to testify regarding
what was contained in the surveillance video that Smith-LaGrone had not witnessed firsthand.
At a joint April 2021 hearing, the Champaign County circuit court denied defense counsel’s motion and sentenced defendant to eight years’ imprisonment. Thereafter, defendant filed pro se
a motion alleging ineffective assistance of counsel. In May 2021, the court conducted an inquiry
under People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). It found the appointment of
new counsel was not warranted and denied defendant’s claims.
¶3 Defendant appeals, asserting the trial court erred by (1) allowing Smith-LaGrone
to narrate the contents of a surveillance video when he had no personal knowledge of the events
in the video and (2) failing to conduct an adequate Krankel inquiry into defendant’s ineffective
assistance of counsel claim regarding a conflict of interest. We affirm.
¶4 I. BACKGROUND
¶5 The November 2020 aggravated battery charge alleged defendant, while on or
about the parking lot of the C-U At Home (Home), a public way, knowingly caused bodily harm
to Ricky Shivers, in that defendant struck Shivers on or about the head and arms with a pipe.
See 720 ILCS 5/12-3.05(c) (West 2020). The February 2021 aggravated battery charge alleged
defendant, while using a metal pipe, a deadly weapon, knowingly caused bodily harm to Shivers,
in that he struck Shivers on or about the head and arms with a metal bar or pipe. See 720 ILCS
5/12-3.05(f)(1) (West 2020).
¶6 Before trial, defendant filed a “Motion for Bar Association Attorney.” In the
motion, defendant argued, inter alia, the following:
“3. That, presently public defender’s [sic] are assigned to a Court-room
[sic] rather than a Defendant, and Consequently, a Change of Courtroom or judge
disrupts any Continuity of defense or tactics, also where a Conflict of interest
occurs between the Defendant and the Champaign County Public Defender’s
office[ ] Defendant must be given an attorney outside of the Champaign County
-2- public Defender’s office to have a fair representation on his particular matter.
People v. Smith, 230 N.E.2d 169 (Ill. 1967).”
Defendant also filed pro se an ex parte motion raising allegations of ineffective assistance of
counsel. On January 28, 2021, the trial court held a hearing on defendant’s pro se motions. The
court described the motions and defendant’s allegations and informed defendant it would be
holding a “Krankel hearing” on his claims against his attorney. The court allowed defendant to
explain his complaints against trial counsel. The court asked some follow up questions about
defendant’s statements and asked defendant if there was anything else he wanted to say about his
motions. Defendant replied in the negative, and the court asked some questions of defense
counsel. The court also asked for defendant’s criminal history. The matter of a conflict of
interest was never specifically addressed. At the conclusion of the hearing, the court denied
defendant’s pro se motions.
¶7 In March 2021, the trial court held a jury trial on the charges. The State presented
the testimony of (1) Smith-LaGrone, a Home employee; (2) Corey Barnes, a Champaign police
officer; and (3) Shivers, the victim. Defendant did not present any evidence. Only the evidence
relevant to the issues on appeal follows.
¶8 Smith-LaGrone testified the Home provided resources and assistance to the less
fortunate and, at night, was a homeless shelter for men. He explained the Home’s parking lot
was for the public and anyone could drive up to the Home. Around 8:15 p.m. on November 22,
2020, Smith-LaGrone was inside the Home working when he learned of an altercation in the
parking lot. He went outside and observed Shivers had an open wound on his left arm.
Smith-LaGrone knew Shivers who, at that time, had been coming to the Home for six months.
Smith-LaGrone also knew defendant, who had a nickname of G-Rock. Smith-LaGrone had
-3- known defendant for seven months. Defendant was not present when Smith-LaGrone observed
Shivers’s injury.
¶9 When the police arrived, they asked if the Home had a surveillance video.
Smith-LaGrone testified the Home had nine security cameras and he could observe video from
those cameras on a monitor. At the time of the incident, the surveillance system was working
properly. Smith-LaGrone was able to locate the incident on the surveillance video system.
When the prosecutor asked Smith-LaGrone to describe what he saw on the video, defense
counsel objected. The trial court overruled the objection and allowed Smith-LaGrone to testify
what he observed on the video. He described the incident and identified the participants.
Smith-LaGrone did not know how to transfer a copy of the surveillance video to the police, so he
recorded the surveillance video on the monitor with his cellular telephone (cellphone).
Smith-LaGrone e-mailed the video from his cellphone to his work e-mail, and then he e-mailed
the video from his work e-mail to the police. Smith-LaGrone admitted he did not provide the
police with a video of the entire incident because the file was too big to be e-mailed.
Smith-LaGrone recorded only “the pertinent details.” When the prosecutor sought admission of
the surveillance video, defense counsel objected. The court overruled the objection, and the
prosecutor played the video, which was 59 seconds long. Smith-LaGrone identified defendant,
Shivers, and Adam Brant, a bystander, on the video.
¶ 10 After hearing the parties’ arguments, the jury found defendant guilty of both
counts of aggravated battery. In March 2021, defendant filed pro se a posttrial motion asserting
(1) the State’s evidence was insufficient to prove defendant guilty beyond a reasonable doubt,
(2) the trial court erred by allowing the State to impeach defendant with his prior conviction for
criminal damage to property which resulted in defendant deciding not to testify, (3) the court
-4- erred by allowing Smith-LaGrone to testify about what was depicted in the surveillance video,
(4) the prosecutor improperly influenced the witnesses by pointing defendant out in the
surveillance video multiple times, (5) the court erred by admitting the video because
Smith-LaGrone tampered with it, and (6) the court erred by denying defendant’s motions for a
directed verdict. Defense counsel filed a timely posttrial motion raising the same claims.
¶ 11 In April 2021, the trial court held a joint hearing on defense counsel’s posttrial
motion and sentencing. The court first denied defendant’s posttrial motion and then sentenced
him to eight years’ imprisonment for aggravated battery on a public way. Thereafter, defendant
filed pro se a motion for ineffective assistance of counsel, asserting trial counsel’s performance
was deficient for not objecting to prosecutorial errors. The motion also asserted he should be
appointed counsel outside the public defender’s office.
¶ 12 On May 7, 2021, the trial court held a Krankel inquiry. The court began by
asking defendant about his concerns regarding defense counsel. After defendant voiced his
concerns about defense counsel’s representation of him, the court then asked defendant if there
were any other issues, and defendant replied in the negative. The court did not specifically ask
about a conflict of interest. After hearing defendant’s complaint, the court found no basis for
ineffective assistance of counsel.
¶ 13 On May 7, 2021, defendant filed his timely notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Accordingly, this court
has jurisdiction of defendant’s conviction and sentence under Illinois Supreme Court Rule 603
(eff. Feb. 6, 2013).
¶ 14 II. ANALYSIS
¶ 15 A. Surveillance Video
-5- ¶ 16 Defendant first asserts the trial court erred by allowing Smith-LaGrone to narrate
the contents of the surveillance video when he had no personal knowledge of the events
portrayed in the video. Defendant acknowledges Smith-LaGrone could provide lay opinion
identification testimony because he was familiar with defendant, Shivers, and others seen in the
video. However, defendant appears to object to Smith-LaGrone’s description of what he
observed on the video beyond the people’s identity in establishing the foundation for the
admission of the surveillance video. The State contends the court did not err because
Smith-LaGrone’s testimony was based on his perception of the video, and if the court did err, the
error was harmless. In reply, defendant argued the testimony was inadmissible as a matter of law
and the error was not harmless. The parties disagree as to the appropriate standard of review,
and thus we first address that issue.
¶ 17 1. Standard of Review
¶ 18 Citing this court’s decision in People v. Sykes, 2012 IL App (4th) 111110, ¶ 30,
972 N.E.2d 1272, defendant asserts the de novo standard of review applies. In Sykes, 2012 IL
App (4th) 111110, ¶ 30, this court recognized the admission of evidence generally lies within the
trial court’s sound discretion but found whether it was proper for the State’s witness to narrate
the contents of a video when he had no personal knowledge of the events portrayed on the video
was a legal issue that did not require an exercise of discretion, fact finding, or evaluation of
credibility. The State disagrees and contends the abuse of discretion standard applies. The State
cites the supreme court’s decision in People v. Thompson, 2016 IL 118667, ¶ 49, 49 N.E.3d 393,
which provided, “[a] court reviews the trial court’s decision to admit lay opinion identification
testimony under an abuse of discretion standard.” In his reply brief, defendant clarifies he is
challenging as a matter of law the admissibility of Smith-LaGrone’s testimony regarding only
-6- the events depicted on the video and not the identification of the individuals in the video. Since
defendant is raising a question of law, our review is de novo. See People v. Brindley, 2017 IL
App (5th) 160189, ¶ 15, 82 N.E.3d 856.
¶ 19 2. Merits
¶ 20 Defendant contends the trial court erred by allowing Smith-LaGrone to testify to
what he observed on the video. He identifies the following testimony:
“I observed G-Rock pull Mr. Shivers out into the middle of the parking lot
there, the public parking lot that we discussed. I don’t know if he struck him a
few times, then went and got the metal object, and then came back and Mr.
Shivers threw his arm up and he—”
The aforementioned testimony occurred before the surveillance video was played for the jury
and while the prosecutor was laying the foundation for the video. Smith-LaGrone testified
defendant was known as G-Rock. As previously noted, defendant does not challenge
Smith-LaGrone’s identification of the individuals seen in the video. Defendant notes
Smith-LaGrone had no personal knowledge of the events in the video, and thus he was in no
better position than the jury to determine what the video portrayed. In support of his argument,
he cites this court’s decision in Sykes, 2012 IL App (4th) 111110, ¶ 42, where this court found
the State’s witness’s testimony regarding what he observed on a surveillance video was improper
because it invaded the province of the jury.
¶ 21 In Sykes, 2012 IL App (4th) 111110, ¶ 6, a loss-prevention officer, who had no
firsthand knowledge of the incident, was allowed to testify to the contents of a surveillance video
depicting the defendant committing a theft. The jury was then shown a blurry copy of the video,
and the loss-prevention officer described what he had seen on the original video that was clearer.
-7- Sykes, 2012 IL App (4th) 111110, ¶ 9. The court found the testimony invaded the province of
the jury because the only issue the jury needed to determine was whether the defendant removed
money from the cash register, as shown in the blurry video introduced into evidence, and the
loss-prevention officer was in no better position to make that determination than the jury. Sykes,
2012 IL App (4th) 111110, ¶ 42.
¶ 22 However, as the State notes, this court decided Sykes before our supreme court’s
decision in Thompson, 2016 IL 118667. In Thompson, 2016 IL 118667, ¶¶ 39, 55, the supreme
court addressed (1) the admissibility of lay opinion identification testimony under Illinois Rule
of Evidence 701 (eff. Jan. 1, 2011) and (2) whether and under what circumstances law
enforcement officers may provide identification testimony. After determining those issues, the
court then addressed the admissibility of the testimony of five witness, four of which were law
enforcement officers. See Thompson, 2016 IL 118667, ¶¶ 61-65.
¶ 23 One of the law enforcement officers was Deputy Jason Stewart, who testified he
was dispatched to Hamson Ag, where he reviewed and copied recordings made by a surveillance
camera after observing the caps of three tanks containing anhydrous ammonia had been
removed. Thompson, 2016 IL 118667, ¶ 8. The supreme court described the rest of his
testimony as follow:
“Stewart testified that the surveillance video showed a white male who had short,
dark hair, with a balding or thinning spot on the back of his head, a large forehead
and receding hairline, and who was wearing a gray cut-off T-shirt and black
baggy pants. Stewart described how, in the video, the man was carrying a
five-gallon bucket and a green soda bottle with a clear hose attached. Stewart
testified that, based on his training and experience, a soda bottle attached to a hose
-8- is commonly used to steal anhydrous ammonia. Stewart then stated that, in the
video, the subject walked in front of the tanks, out of view, and then a few
seconds later walked back into view. The subject then walked between two of the
tanks, sat the bucket down, and then climbed onto the tire of one of the tanks.
Thereafter, the subject emerged from between the tanks carrying the bucket and
soda bottle with the hose and ran off.
Stewart testified he did not recognize the male, but circulated the video via
the departmental computer and gave a copy to Chief Deputy William Sandusky to
distribute to other counties and agencies. Stewart also made a color still image
from the video and circulated that to various agencies. The color still image was
marked as exhibit No. 2 at trial.” Thompson, 2016 IL 118667, ¶¶ 8-9.
After Deputy Stewart’s testimony, the State played the surveillance video for the jury.
Thompson, 2016 IL 118667, ¶ 10.
¶ 24 The supreme court found Deputy Stewart’s testimony was admissible and not lay
opinion identification testimony. Thompson, 2016 IL 118667, ¶ 61. It found his testimony
merely laid the evidentiary foundation for the admission of the video and the still image made
from the video. Thompson, 2016 IL 118667, ¶ 61.
¶ 25 In People v. Brown, 2017 IL App (1st) 142197, ¶ 56, 82 N.E.3d 148, the
defendant argued the detective’s testimony regarding the contents of a surveillance recording
was inadmissible lay opinion identification testimony. The defendant challenged both the
detective’s identification of the defendant and the detective’s narration of the surveillance
recording. Brown, 2017 IL App (1st) 142197, ¶ 56. The reviewing court put aside the
detective’s identification testimony and found the detective’s “perceptions did not need to be
-9- based on the live event at the store because he was not providing an eyewitness account; rather,
his testimony was relevant to the scenes depicted in the recording.” Brown, 2017 IL App (1st)
142197, ¶ 62. The court noted the detective needed to have perceived only the recording. Citing
Thompson, 2016 IL 118667, ¶¶ 8,61, the reviewing court further found the detective’s testimony
merely laid an evidentiary foundation for admission of the surveillance recording. Brown, 2017
IL App (1st) 142197, ¶ 62.
¶ 26 First, we find Sykes distinguishable from the case before us because the
loss-prevention officer’s testimony regarding what was depicted in the clearer video, which was
not admitted into evidence, was not foundational testimony for the admission of the blurry
surveillance video that was admitted into evidence. In this case, the State was laying the
foundation for the admission of the surveillance video when Smith-LaGrone gave the challenged
testimony. His testimony was regarding the video shown to the jury. Thus, under Thompson and
Brown, Smith-LaGrone’s testimony about the events on the surveillance video was admissible.
Second, the jury could have disregarded Smith-LaGrone’s testimony about what he had observed
and relied on its own observations of the video. As such, Smith-LaGrone’s testimony did not
invade the province of the jury. See Thompson, 2016 IL 118667, ¶ 54 (noting that, if lay
identification testimony is properly admitted, “it would not invade the province of the jury
because the jury is free to reject or disregard such testimony and reach its own conclusion
regarding who is depicted in the surveillance recording”). Accordingly, the trial court did not err
by allowing Smith-LaGrone to testify about the events depicted in the surveillance video despite
his lack of firsthand knowledge.
¶ 27 B. Krankel Inquiry
¶ 28 Defendant also asserts the trial court failed to conduct an adequate Krankel
- 10 - inquiry into his claim of ineffective assistance of trial counsel and the cause should be remanded
for an adequate Krankel hearing. The State disagrees.
¶ 29 A pro se posttrial claim alleging ineffective assistance of counsel is governed by
the common-law procedure developed by our supreme court in Krankel and refined by its
progeny. People v. Roddis, 2020 IL 124352, ¶ 34, 161 N.E.3d 173. “The procedure encourages
the trial court to fully address these claims and thereby narrow the issues to be addressed on
appeal.” Roddis, 2020 IL 124352, ¶ 34. Under the supreme court’s procedures, the circuit court
does not automatically appoint counsel when a defendant presents a pro se posttrial claim
alleging ineffective assistance of counsel. Roddis, 2020 IL 124352, ¶ 35. Rather, the court first
examines the factual basis of the defendant’s claim. Roddis, 2020 IL 124352, ¶ 35. It does so by
conducting some type of inquiry into the underlying factual basis of the defendant’s pro se
ineffective assistance of counsel claim. People v. Ayres, 2017 IL 120071, ¶ 11, 88 N.E.3d 732.
“Specifically, the trial court must conduct an adequate inquiry ***, that is, inquiry sufficient to
determine the factual basis of the claim.” (Internal quotation marks omitted.) Ayres, 2017 IL
120071, ¶ 11. In doing so, the court considers the merits of defendant’s allegations in their
entirety. Roddis, 2020 IL 124352, ¶ 61.
¶ 30 If the trial court determines the claim lacks merit or pertains only to matters of
trial strategy, then the court need not appoint new counsel and may deny the pro se claim.
Roddis, 2020 IL 124352, ¶ 35. “However, if the allegations show possible neglect of the case,
new counsel should be appointed.” Roddis, 2020 IL 124352, ¶ 35. New counsel can then
independently evaluate the defendant’s claim and avoid the conflict of interest trial counsel
would have in trying to justify his or her own actions contrary to the defendant’s position.
Roddis, 2020 IL 124352, ¶ 36. New counsel also represents the defendant at the hearing on the
- 11 - pro se ineffective assistance of counsel claim. Roddis, 2020 IL 124352, ¶ 36.
¶ 31 Whether the trial court conducted an adequate Krankel inquiry into the
defendant’s pro se allegations of ineffective assistance of counsel presents a legal question that
we review de novo. People v. Jackson, 2020 IL 124112, ¶ 98, 162 N.E.3d 223. When the court
has properly conducted a Krankel inquiry and has reached a determination on the merits of the
defendant’s Krankel motion, this court will reverse that determination only if the circuit court’s
action was manifestly erroneous. Jackson, 2020 IL 124112, ¶ 98. “Manifest error is error that is
clearly evident, plain, and indisputable.” Jackson, 2020 IL 124112, ¶ 98.
¶ 32 Here, defendant contends the trial court did not conduct an adequate inquiry into
defendant’s claim a conflict of interest existed between him and the Champaign County Public
Defender’s Office. The State argues the trial court conducted an adequate inquiry into
defendant’s allegations and no error occurred. It notes defendant raised the exact same claim in
his pretrial motion for a bar association attorney, on which the trial court held a hearing. In his
reply brief, defendant contends the court did not question defendant about the conflict of interest
during its hearing on defendant’s pretrial motions.
¶ 33 The paragraph of defendant’s posttrial motion for ineffective assistance of counsel
at issue in this argument is the following:
“10. Presently public defender’s [sic] are assigned to a Courtroom rather
than a Defendant, and Consequently, a change of the Courtroom, Judge or
prosecutor disrupts any Continuity of defense or tactics, Also where a Conflict of
Interest occurs between the Defendant and the Champaign County public
Defender’s office.
Defendant must be given an Attorney outside of the Champaign County
- 12 - public Defender’s office to have fair representation on his particular matter.
Defendant’s pretrial motion for a bar association attorney contained an almost identical
paragraph.
¶ 34 In both his pretrial motion for a bar association attorney and his posttrial motion
for ineffective assistance of counsel, defendant cites with his suggestion of a conflict of interest
the supreme court’s decision in People v. Smith, 37 Ill. 2d 622, 230 N.E.2d 169 (1967),
overruled by People v. Banks, 121 Ill. 2d 36, 44, 520 N.E.2d 617, 621 (1987). The Smith
decision addressed whether a conflict of interest existed when an attorney from the public
defender’s office had to represent a defendant on a postconviction petition that asserted
ineffective assistance of counsel at trial by another attorney in the public defender’s office.
Smith, 37 Ill. 2d at 624, 230 N.E.2d at 170. The court found a conflict of interest existed because
of the natural inclination to protect the public defender’s reputation by defending against the
charges of incompetency and the duty as an advocate to aid the defendant in establishing the
veracity of the incompetency charges. Smith, 37 Ill. 2d at 624, 230 N.E.2d at 170. The supreme
court found that conflict of interest situation should be avoided, and the trial court should appoint
the defendant counsel other than the public defender to represent him on the postconviction
petition. Smith, 37 Ill. 2d at 624, 230 N.E.2d at 170. Later, in Banks, 121 Ill. 2d at 44, 520
N.E.2d at 621, the supreme court overruled Smith and found that, when an assistant public
defender asserts another assistant from the same office rendered ineffective assistance of
counsel, the court should conduct a case-by-case inquiry to determine whether any circumstances
peculiar to the case indicate the presence of an actual conflict of interest.
¶ 35 Given his citation to Smith, defendant’s contention was he needed new counsel
- 13 - outside the public defender’s office because, inter alia, he had ineffective assistance of counsel
claims against his assistant public defender and an attorney outside the public defender’s office
was warranted to avoid the conflict of interest described in Smith. We disagree with defendant
his motion for ineffective assistance of counsel asserted an actual conflict of interest existed
between him and his assistant public defender. Since defendant was suggesting a conflict of
interest created by the situation of a member of the public defender’s office asserting an
ineffective assistance of counsel claim against another member of the office, the trial court’s
inquiry about defendant’s ineffective assistance of counsel claims was sufficient for the court to
examine any factual basis for his request for an attorney outside the public defender’s office.
Accordingly, we find the trial court did conduct an adequate Krankel inquiry.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the judgment of the Champaign County circuit
court.
¶ 38 Affirmed.
- 14 -