People v. Morrison

2023 IL App (3d) 200080-U

Opinion

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) 200080-U

Order filed November 7, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0080 v. ) Circuit No. 18-CM-687 ) BRANDON DEVONNE MORRISON, ) Honorable ) Norma Kauzlarich, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court. Justice Davenport concurred in the judgment. Justice McDade dissented. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not abandon its role as a neutral arbiter and become an advocate for the State.

¶2 The defendant, Brandon Devonne Morrison, appeals his convictions for unlawful

violation of an order of protection and reckless driving. The defendant argues that the Rock

Island County circuit court repeatedly abandoned its role as a neutral arbiter and became an

advocate for the State, violating the defendant’s due process rights. ¶3 I. BACKGROUND

¶4 On July 13, 2018, the State filed a two-count information charging the defendant with

unlawful violation of an order of protection (720 ILCS 5/12-3.4(a) (West 2018)) and reckless

driving (625 ILCS 5/11-503(a)(1) (West 2018)), both Class A misdemeanors. The case

proceeded to jury trial on December 3, 2019.

¶5 During jury selection, the court asked whether the empaneled venire members had any

preconceived notions about the criminal justice system. Following the question, the court

explained:

“And I always tell people, how many of you have seen that show Bull, B-

u-l-l? I hate that show. I watched it the first time and I barely got through it and I

thought, well, maybe I’m just kind of not keeping an open mind. I will watch it

again. And I couldn’t get through 15 minutes because—and I think that’s where a

lot of people get these preconceived ideas, like from CSI and all that. We are in

Rock Island County. We ain’t got money for that. Okay? We don’t have anybody

going through your garbage. We don’t have anybody—I don’t have anybody in

the back swiping onto a screen telling me all kinds of information about you. We

just—we don’t do that. We are little Rock Island County, so don’t—we don’t do

any of that. We don’t—we just don’t have that stuff.

So—and maybe in bigger cities they do, but here we do not. So that’s what

I’m talking about when I say “preconceived ideas[.]”

The court briefly mentioned the same television shows to the next panel of venire members when

inquiring about preconceived ideas regarding the criminal justice system, asking:

2 “And then that long, drawn-out question about any preconceived ideas

about the criminal justice system that would prevent you from being fair and

impartial? I use that CSI stuff and the Bull and all that. Anybody? Raise your

hand if you have any preconceived ideas about the criminal justice system.”

None of the potential jurors raised their hands.

¶6 After the jurors were selected, the State presented its opening statement. It spoke at

length about the evidence it intended to present during trial. When the State mentioned its video

evidence, they stated:

“Now, the videos, as the judge was sort of saying, Rock Island County

doesn’t have fancy, high resolution stuff where we are able to swivel around 360

degrees at high resolution. We are stuck with these motion-activated cameras that

sort of take snapshots. So if you are, you know, walking down the street, you

know, and this camera, it looks sort of like—it looks like a teleporter. That’s how

the video works. But what we are able to do is we are able to zoom in and enlarge

the images, and while the quality does degrade—unlike what happens on CSI—

we are able to make out the license plate in a couple of the images.”

¶7 The State’s evidence at trial showed that the defendant and the victim, Amanda

Dykeman, were in court on July 12, 2018, for a hearing on an existing order of protection which

Dykeman had against the defendant. The order of protection had been served on the defendant on

July 2, 2018, and required, among other things, that the defendant not come within 500 feet of

Dykeman. Dykeman was accompanied to court that day by her friend, Christine Palmer. As

Dykeman and Palmer were driving out of the parking lot of the Rock Island County courthouse,

the defendant pulled his Chevy Tahoe beside them. He pulled around the driver’s side of

3 Dykeman’s vehicle, stopping briefly. The defendant’s vehicle was inches away from Dykeman’s.

The defendant “stuck his middle finger up” and said something that Dykeman could not hear

because her vehicle windows were closed. The defendant then “cut her off and accelerate[d] onto

Third Avenue” where he nearly collided with another vehicle. The State presented surveillance

video footage of the incident. The driver of the Tahoe cannot be identified from the video;

however, the license plate number was visible. The Tahoe was registered to the defendant. Both

Palmer and Dykeman testified that they observed the defendant as the driver of the Tahoe that

day.

¶8 During Dykeman’s testimony, she was asked about a letter of recantation that she had

written in August of 2019. The letter indicated that the defendant was not the person who drove

recklessly near her on July 12, 2018, and that she had begged Palmer to lie and identify the

defendant as the offender. On redirect, she explained that she had been living with the defendant

at the time she wrote the letter, and he wanted her to write it. She did so because she was afraid

of what he might do. She indicated that he had been physically abusive in the past. The State

questioned Dykeman about various harassing behaviors that the defendant engaged in. During

this questioning, the following exchange occurred:

“[THE STATE]: Has he ever slashed your tires?

[DYKEMAN]: Multiple times.

[THE STATE]: Has he ever harassed you on social media?

[THE STATE]: Has he sent you harassing text messages and phone calls?

[DEFENSE COUNSEL]: Objection. Relevancy.

[THE STATE]: It goes to the motive for her writing the letter.

4 [DYKEMAN]: Daily for months.”

¶9 After the State rested, defense counsel announced that he would call two witnesses, the

defendant’s stepfather, Robert Brown, and the defendant. The State informed the court that no

affirmative defense had been filed and Brown, the defendant’s alibi witness, had not been

previously disclosed. The State requested and was granted the opportunity to voir dire Brown

outside of the presence of the jury. Brown testified that he attended court with the defendant on

July 12, 2018, and had driven them in his vehicle, a white Buick Regal. He indicated to the State

that he did not disclose this information to defense counsel until a couple of weeks before the

trial in November 2019.

¶ 10 After the voir dire of Brown, the court took judicial notice of other court dates that

occurred in the order of protection and family cases involving Dykeman and the defendant, “to

make everything fair, since [defense counsel] [wa]s calling Mr. Brown.” Outside the presence of

the jury, it informed the parties of the minutes of each of these dates and opined that:

“there were at least two other court appearances wherein Mr. Brown may or may

not have been present in 2018.

So it doesn’t necessarily mean it was July 12th. He very well could have

accompanied [the defendant], but it may not—I don’t know that [the State] asked

him a specific date. What he said and Mr. Brown’s testimony was he came up

here regarding the order of protection and other matters relating to [the minor

child].

So that, to me, indicates that that was September 25th of 2018.

5 So that’s up to you. If you want to call him, *** that’s fine. If you do, the

State will be allowed to bring up all the other instances that the parties had court

regarding the order of protection and the parentage of the minor child.”

¶ 11 When the trial resumed and Brown testified in front of the jury, the State asked him how

he knew the events that they were discussing occurred on July 12, 2018. Brown responded that

he knew the date because his son’s first birthday was two days prior to the events on July 10. The

State repeatedly questioned the lateness of his coming forward with the information, highlighting

that the event occurred on July 12, 2018, and he failed to disclose such important information

until November 2019. The State did not mention any of the other court dates that the court had

disclosed to the parties following the voir dire of Brown.

¶ 12 During closing arguments, the State again mentioned the television show, CSI in relation

to its video evidence, stating that:

“as the judge pointed out, we are not having the highest quality stuff here. I wish

we could have the stuff we have in CSI, but we are left with blurry, pixelly stuff

that we have to zoom in on and focus on individual frames because it’s motion-

activated. We can’t have high definition stuff.”

¶ 13 The jury convicted the defendant on both counts. The defendant was sentenced to time

served in the county jail. The defendant appeals.

¶ 14 II. ANALYSIS

¶ 15 The defendant argues that he was deprived of his due process right to a trial before an

impartial and disinterested tribunal when the circuit court abandoned its role as a neutral arbiter

and became an advocate for the State. The defendant acknowledges that he failed to properly

preserve this issue but asks for review under the second prong of the plain error doctrine.

6 ¶ 16 The first step in any plain error doctrine is to determine whether a clear, obvious, or plain

error was committed. People v. Thompson, 238 Ill. 2d 598, 613 (2010). When such a plain error

occurs, the next step is to determine whether that plain error is reversible. People v. Piatkowski,

225 Ill. 2d 551, 566 (2007). Under the second prong, a plain error is reversible when the error is

“so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” Id. at 565.

¶ 17 A criminal defendant has a right, under the due process clause, to an impartial and

disinterested tribunal. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). This disinterested

tribunal “preserves both the appearance and reality of fairness.” Id. The defendant advances three

main arguments in support of his position that the court was not impartial and disinterested.

According to the defendant, the court: (1) mitigated weaknesses in the State’s evidence and

provided the State with a theme to excuse the poor quality of its evidence by invoking the

television show, CSI, during voir dire, (2) aligned itself with the State by suggesting a strategy

for impeaching Brown’s testimony, and (3) demonstrated a lack of neutrality by allowing the

State to overrule a defense objection during the examination of the victim regarding her

recantation letter.

¶ 18 First, “[t]he purpose of the voir dire examination is to assure the selection of an impartial

jury; it is not to be used as a means of indoctrinating a jury, or impaneling a jury with a particular

predisposition.” People v. Bowel, 111 Ill. 2d 58, 64 (1986). “Broad questions are generally

permissible.” People v. Rinehart, 2012 IL 111719, ¶ 17. The standard of review applicable to a

court’s manner and scope of voir dire examination is abuse of discretion. Id. ¶ 16.

¶ 19 Here, the court asked the venire members if they had any potential preconceived ideas

regarding the criminal justice system. It further explained this by briefly mentioning two

7 television shows which focused on the criminal justice system, Bull and CSI. The court’s

explanation is not tailored to the State’s evidence and makes no mention of any video evidence,

cameras, or quality. The court’s broad language makes its intent clear. “The purpose of voir dire

is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow

removal of those members of the venire whose minds are so closed by bias and prejudice that

they cannot apply the law as instructed in accordance with their oath.” People v. Cloutier, 156

Ill. 2d 483, 495-96 (1993). It is hardly improper for the court to inquire about any preconceived

ideas the venire members may have garnered from television shows about the evidence they

might have expected to be presented in a criminal case. People v. Tucker, 2022 IL App (1st)

172982, ¶ 88.

¶ 20 Second, the parties agree that the court could sua sponte take judicial notice of the other

order of protection and family proceedings between the defendant and Dykeman. Courts may

take judicial notice, whether requested or not, of matters which are commonly known or are

readily verifiable from sources of indisputable accuracy. Ill. R. Evid. 201(b), (c) (eff. Jan. 1,

2011). The defendant contends that the context in which the court took this notice establishes its

lack of neutrality and bias in favor of the State.

¶ 21 Here, the court informed the parties that it was taking notice of prior court dates in the

parties’ order of protection and family proceedings. Brown was an alibi witness that was

disclosed to the State after it had rested its case. “The purpose of the discovery rules is to

eliminate surprise and unfairness and to afford an opportunity to investigate.” People v. Sutton,

349 Ill. App. 3d 608, 618-19 (2004). In the interest of fairness, since the State had been afforded

no opportunity to investigate Brown, the court disclosed relevant information regarding two

other court dates which occurred in the underlying order of protection case. This action allowed

8 the State to be aware that other court dates had occurred and the defendant was put on notice that

should Brown testify, he may be subject to impeachment. The State chose not to use this

information to attempt to impeach Brown during his testimony, focusing instead, as it had in the

voir dire, on the length of time it took Brown to come forward.

¶ 22 Third, the defendant claims that the court demonstrated bias where it allowed the State to

overrule an objection that it made during the examination of Dykeman. Where the court fails to

rule on an objection, the objecting party must “request a ruling or call the [court]’s attention to

the fact that no ruling had been made.” People v. Caballero, 102 Ill. 2d 23, 38 (1984). However,

the defendant argues that the objection itself is not the concern, but the way the State was

allowed to overrule it, which indicates bias on the part of the court. The record clearly

demonstrates that defense counsel objected on relevancy grounds. The State responded by

explaining the relevancy of the question. Subsequently, the record indicates the court made no

ruling on the objection and Dykeman proceeded to answer. No judicial bias can be found in this

exchange.

¶ 23 It is clear from the record that the court conducted itself in an impartial and fair manner

during the defendant’s trial. Nothing about the court’s actions indicate that it abandoned its role

as a neutral arbiter or advocated for the State. Accordingly, we find that no plain error occurred.

¶ 24 III. CONCLUSION

¶ 25 The judgment of the circuit court of Rock Island County is affirmed.

¶ 26 Affirmed.

¶ 27 JUSTICE McDADE, dissenting:

¶ 28 I respectfully dissent from the majority’s decision. The majority finds that the circuit

court “conducted itself in an impartial and fair manner” and “[n]othing about the court’s actions

9 indicate that it abandoned its role as a neutral arbiter or advocated for the State.” Supra ¶ 23. I

disagree. The judge in this case had been a prosecutor for many years and continued, in my

opinion, to act in such a manner during defendant’s trial. This began during voir dire when the

court preemptively excused any weaknesses in the State’s case by stating that the evidence

presented would not be like that shown on television. The court discussed “preconceived ideas,”

from CSI, but provided no basis for such notions. Supra ¶ 5. Nor did the court present any other

non-television examples of “preconceived ideas” for potential jurors to consider. The State

picked up this idea of “little Rock Island County” not having CSI-quality evidence gathering

capabilities and repeated it in both its opening statement and closing argument. Moreover, the

court continued to act as an advocate for the State throughout the trial, by sua sponte searching

through the docket of defendant’s civil cases, providing the factual support for the State’s

impeachment of Brown, and allowing the prosecution to overrule the defense’s relevancy

objection which allowed prejudicial information regarding prior harassment into evidence.

¶ 29 Based on the above, I would find that a clear and obvious error occurred. I would also

find that the error amounted to second prong plain error as it was so serious that it affected the

fairness of the trial. See People v. Wiggins, 2015 IL App (1st) 133033, ¶ 45. Therefore, I would

reverse defendant’s convictions and remand for a new trial.