2021 IL App (1st) 190588-U No. 1-19-0588 Order filed July 29, 2021 Fourth 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 ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 7151 ) JONATHAN PRIMM, ) Honorable ) Kenneth J. Wadas, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Reyes and Martin concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction and sentence for intentional first degree murder over his contentions that the trial court violated Illinois Supreme Court Rule 431(b) and imposed an excessive sentence. We vacate defendant’s sentence for felony murder as it violates the one-act, one-crime rule, and order his mittimus corrected to reflect one conviction and sentence for first degree murder.
¶2 Following a jury trial, defendant Jonathan Primm was found guilty of three counts of first
degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 2010)). The trial court merged one of the counts
and sentenced defendant to two concurrent terms of 40 years’ imprisonment on the remaining No. 1-19-0588
counts. On appeal, defendant contends (1) the trial court failed to properly admonish the jury
pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); (2) his multiple convictions for
murder violate the one-act, one-crime doctrine; and (3) the trial court abused its discretion in
imposing his sentence by failing to consider mitigating evidence and relying on an improper
aggravating factor. For the following reasons, we affirm in part and vacate in part.
¶3 The State proceeded to trial on three counts of first degree murder of the victim, Darius
Chambers. 1 Count I charged defendant with intentional murder by beating, kicking, and killing
Chambers with his hands and feet (720 ILCS 5/9-1(a)(1) (West 2010)). Count II charged defendant
with beating, kicking, and killing Chambers with his hands and feet, knowing that such acts created
a strong probability of death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 2010)). Count III
charged defendant with killing Chambers during the course of a forcible felony (robbery) (720
ILCS 5/9-1(a)(3) (West 2010)). Since defendant does not contest the sufficiency of the evidence,
we recite only those facts necessary to our disposition.
¶4 At the beginning of voir dire, the court informed the venire that defendant was presumed
innocent of the charges against him and would continue to be presumed innocent throughout the
course of proceedings. It continued:
“It is absolutely essential as we select this jury that each of you understand and
embrace these fundamental principles; that is, that all persons charged with the crime are
1 Donnte Kindle, Jabril Garner, and Antoine Ward were separately charged in the beating death of Chambers. Kindle and Garner were found guilty of first degree murder in separate but simultaneous jury trials and sentenced to 28 years’ and 35 years’ imprisonment, respectively. Ward pled guilty to first degree murder and was sentenced to 21 years’ imprisonment.
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presumed to be innocent and that it is the burden of the State who has brought the charges
to prove the defendant guilty beyond a reasonable doubt.
What this means is that the defendant has no obligation to testify on his own behalf
or to call any witnesses in his defense. He may simply sit here and rely upon what he and
his lawyers perceive to be the inability of the State to present sufficient evidence to meet
their burden. Should that happen, you will have to decide the case on the basis of the
evidence presented by the prosecution.
The fact that the defendant does not testify must not be considered by you in any
way in arriving at your verdict. However, should the defendant elect to testify or should
his lawyers present witnesses in his behalf, you are to consider that evidence in the same
manner and by the same standards as the evidence presented by the State’s attorneys. The
bottom line, however, is that there’s no burden upon the defendant to prove his innocence.
It’s the State’s burden to prove him guilty beyond a reasonable doubt.”
¶5 As voir dire continued, the court asked the prospective jurors, individually and in groups,
the following two questions: “The State has the burden of proof beyond a reasonable doubt. Do
you agree with and accept that proposition of law?” and “The defense has no burden. He’s
presumed innocent. He doesn’t have to testify or call witnesses. If he doesn’t testify, you can’t
hold that against him. Do you agree and accept those propositions of law?” The jurors all
responded affirmatively to each question.
¶6 At trial, Stephen Willis testified he was with Chambers on October 30, 2011. The two men
walked to a bus stop at 79th Street and Greenwood Avenue to wait for a bus around 1:30 or 2 a.m.
While at the bus stop, a man approached them. Two additional men also approached, followed by
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a fourth man. Two of the men stood beside Chambers, one stood by Willis, and another paced
behind them. Willis felt something was wrong, and when one of the men asked to use his phone,
he declined. Someone hit Willis from behind and he ran toward a friend’s house nearby to call
911. One of the men chased after him. Willis did not observe what happened to Chambers. A police
officer subsequently brought Willis back to the scene, where he observed Chambers on the ground
covered by a sheet. On the night of the attack, Chambers had a cellphone and was wearing glasses.
¶7 Willis identified Jabril Garner as the man who asked to use his cellphone and Antoine Ward
as the first man who approached the bus stop. Willis was unable to identify defendant in a lineup
following the incident.
¶8 The parties stipulated that if called, Marquitta Jones would testify she was driving on 79th
Street approaching the Greenwood intersection around 3 a.m. on October 30, 2011. Jones observed
a black man running across 79th Street and proceeding through the gate for a building on
Greenwood. She did not see the person’s face and would not be able to identify him. Jones also
observed a person lying on the sidewalk by the bus stop. She called police and spoke with them
upon their arrival.
¶9 Jamira Primm testified that in October 2011 she lived in a third-floor apartment on the
corner of 79th and Greenwood (the Greenwood apartment) with her parents Shannon and Jeffrey
and her siblings. Defendant was her cousin. On the night in question, Jamira fell asleep on the
couch with her brother Jalen.2 She woke up at some point and looked out the window with Jalen.
She observed three “boys” at the bus stop across the street. She did not know their names. One
2 Many of the trial witnesses have the same last name as defendant: Primm. The trial testimony referenced other Primm family members. Except for defendant, we will refer to each Primm family member by his or her first name once introduced.
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man was in a Hollister sweatshirt and another was wearing a red hoodie. They were all fighting,
and the man in the red hoodie was kicking someone she did not know who was on the ground.
Following the fight, Jamira saw Donnte Kindle, Garner, and defendant come into the Greenwood
apartment. She identified defendant in court.
¶ 10 When asked what defendant was wearing that night, Jamira alternately stated she did not
know and that he “put on a red hoodie.” She later clarified she meant he put on the hoodie when
he returned to the house. Jamira acknowledged that when defendant was inside the house after the
man was kicked at the bus stop, defendant was wearing a red hoodie. She later stated she observed
the face of the person wearing the red hoodie and identified him as defendant.
¶ 11 When asked “who else was out there other than [defendant],” Jamira testified Ward,
Kindle, and Garner. She later testified defendant “was out there,” and when asked if she observed
him kicking and stomping anyone, she responded, “Everybody was out there. Everybody was out
there doing something.”
¶ 12 Jamira acknowledged that she appeared before the grand jury on November 15, 2011, but
denied testifying that defendant was kicking a man on the ground at the bus stop. She also denied
testifying that she knew it was defendant kicking the man because he had his hood on and was
wearing a bright red jacket, which he had on when he returned to the apartment.
¶ 13 A court reporter identified a transcript from a November 15, 2011, grand jury hearing.
Before the grand jury, Jamira testified she looked out the window and observed defendant “kicking
and beating the man” and he also kicked the man in the head while he was on the ground.
¶ 14 Jalen Primm, who was seven years old in 2011, testified defendant was his cousin. Jalen
lived in the Greenwood apartment during the relevant time period with his parents, Shannon and
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Jeffrey, his siblings, and defendant. On the night of the incident, Garner, Kindle, Ward, and
defendant were at the Greenwood apartment before Jalen went to sleep.
¶ 15 Jalen woke up and looked out of the kitchen window around 3 a.m. He observed four
“boys” beating up a man. Jalen identified the four boys as Garner, Ward, Kindle, and defendant.
He knew the men because they were friends with his brother, Arnold Mitchell. Jalen observed
defendant, Garner, Kindle, and Ward punching and kicking the man. He also observed the man’s
friend running with Garner and Kindle chasing him. Following the beating, the four men returned
to the Greenwood apartment. Shannon and Jeffrey woke up at some point, and Jeffrey called the
police, who took defendant and Kindle away.
¶ 16 Jalen identified defendant in a photo array on the day following the beating, and in court.
He identified Ward in a photo array on October 31, 2011, and a lineup on November 2, 2011. On
October 31, 2011, he identified Garner and Kindle in separate lineups. Jalen specified Mitchell
was in his room during the beating and was not outside with the other men. Garner, Kindle, and
Ward were friends with Mitchell, not defendant.
¶ 17 Shannon Primm testified defendant lived at the Greenwood apartment with her family. She
identified him in court. She went to bed around 10:30 p.m. on the night in question. Her daughter,
Tatanisha, woke up her up around 3 a.m. and told her to look out the window, which faced the bus
stop. When she looked out the window, there were police outside and a man lying in the street
covered by a white sheet near the bus stop. Shannon went into the living room, which was dark. It
was unusual to have the lights off in their apartment.
¶ 18 When Jeffrey, her husband, turned on the lights to call the police, Ward and Garner ran out
the back door. Defendant and Kindle sat on the couch. Defendant was wearing a red hoodie.
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Shannon did not know what had happened at that point. When they police arrived, they “took”
defendant and Kindle. The following morning, Shannon found an identification card of someone
she did not know in her kitchen, which a detective later collected.
¶ 19 Arnold Mitchell testified that on October 29, 2011, he arrived home at the Greenwood
apartment with Ward after attempting to attend a party. Defendant, Garner, and Kindle were there.
Defendant, whom he identified in court, was his stepfather’s nephew. Mitchell had known Ward
and Garner since they were in seventh grade. Kindle was related to Garner, but Mitchell did not
know him well. At the Greenwood apartment, Mitchell heard defendant talking about a “187” and
a “stain,” both of which Mitchell understood meant a robbery. Defendant was “basically trying to
get whoever wanted to go out with him and do what he was going to do.” Mitchell did not want to
participate and instead went to his room to go to sleep sometime between 12 a.m. and 2 a.m. Ward,
defendant, Kindle, and Garner were still in the living room.
¶ 20 At some point, Mitchell woke up and noticed that the lights were off. Jamira and Jalen
were looking out the living room window. Mitchell looked outside with them and observed a body
on the sidewalk on 79th Street. The police were not outside. Mitchell then observed defendant and
Kindle come through the back door of the Greenwood apartment. Mitchell returned to his room
and heard Ward ask, “How much you got?” He did not hear defendant say anything, but he heard
someone respond, “Not a lot.”
¶ 21 Mitchell acknowledged he gave a handwritten statement to Assistant State’s Attorney
Kelly Gretskas on November 1, 2011. In his statement, he said defendant had answered “not a lot”
when Ward asked how much money he took. Mitchell further acknowledged testifying before the
grand jury that defendant responded to Ward, “ ‘not enough, not much or something like that.’ ”
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¶ 22 A court reporter identified a transcript from a November 14, 2011, grand jury hearing,
where Mitchell testified he went to a party with Ward and “Jabril (?).” She put a question mark
after “Jabril” because she was not sure what Mitchell had said.
¶ 23 Janilah Primm testified she was alone in her room at the Greenwood apartment around 2
a.m. on October 30, 2011, and was 12 years old at that time. She heard defendant say he “had a
stain,” and Garner responded, “come on, we gone.” Janilah then heard footsteps leaving and the
door close. At some point after that, Janilah heard multiple people come into the Greenwood
apartment, who started turning off the lights. She went into the living room and observed
defendant, Ward, Kindle, and Garner. Janilah asked the men what was going on, and defendant
calmly told her to go lie down. Instead of returning to her room, Janilah looked out the window
and observed someone who was not moving on the ground by the bus stop across the street.
Mitchell also came to look out the window. She did not observe where Mitchell came from, but he
was wearing “house wear.”
¶ 24 Janilah called her brother Jabari and her sister Tatanisha, both of whom arrived home
shortly thereafter. Tatanisha spoke with Shannon, who then came out of her bedroom. Janilah
identified defendant in court.
¶ 25 Officer Charles McClay testified he responded to the scene and, based on a conversation
with Marquitta Jones, he went with his partner to the Greenwood apartment. McClay had
descriptions of two offenders, one of whom was wearing a Hollister sweatshirt and another who
was a black male in his late teens. Inside the residence, McClay detained defendant and Kindle,
who matched the descriptions. Kindle was wearing a Hollister sweatshirt.
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¶ 26 Chicago police officer Juan Aguirre testified he processed the crime scene. He collected a
knit cap, a receipt, an unused condom, and a pair of broken glasses on the ground around
Chambers. Aguirre identified photographs he took of Chambers and noted his pants pockets
“seemed to be partially turned out with some of the contents exposed.”
¶ 27 Retired detective Earl Parks testified that he investigated Chambers’ homicide. At the
scene, he interviewed Willis and Jones. Parks spoke with some of the Primm family at the
Greenwood apartment a few hours after the incident, but “they basically were kind of like a little
afraid,” so he gave them time and spoke with them later that day at the police station. He learned
defendant and Kindle had been detained and met them at the police station. Willis was unable to
identify defendant and Kindle in a lineup, but he identified Garner and Ward. Willis stated he did
not observe two of the offenders who had been behind him. Parks released defendant on October
30, 2011, but he was arrested again later.
¶ 28 On October 31, 2011, Parks spoke again with Jalen and Shannon. Jalen mentioned
defendant was involved at that point. Jalen identified Kindle, Garner, and Ward in physical lineups
and defendant and Ward in photo arrays. Parks later learned Chambers’ identification was
recovered in the Greenwood apartment, and his cellphone was recovered from a vacant lot next to
the Greenwood apartment.
¶ 29 Parks also interviewed Mitchell, who at one point stated that defendant said to turn off the
lights when he reentered the Greenwood apartment. No one, including the Primm family or Willis,
identified Mitchell as a possible offender. Parks acknowledged he did not write in the police report
that Willis reported one of the offenders wearing a red hoodie. A different report showed that
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Willis reported one offender was wearing a Hollister sweatshirt. The police collected Kindle’s
Hollister sweatshirt as evidence but did not collect a red hoodie.
¶ 30 Dr. Joshua Akers, an expert in forensic pathology, testified he reviewed the autopsy report
for Chambers. The autopsy revealed significant skeletal injuries, a hemorrhage in his temporalis
muscle, abrasions to his forehead and cheek, and a patterned injury consistent with a shoe print.
The cause of death for Chambers was the result of a subarachnoid hemorrhage due to blunt force
injuries to his head from an assault and the manner of death was homicide.
¶ 31 Detective Majdi Shalabi testified he was a police officer on March 18, 2013, working with
a task force to capture fugitives. On that date, he went to a residence on South Martin Luther King
Drive looking for someone other than defendant. Inside the residence, he arrested defendant hiding
in an alcove. Upon finding defendant in the alcove, Shalabi asked defendant for his name.
Defendant did not initially respond, but later identified himself as “Michael” with a last name that
Shalabi could not recall. Eventually, defendant gave his name as “Jonathan Primm” and Shalabi
learned there was a warrant out for his arrest for first degree murder. Shalabi was in plain clothes
but identified himself as a police officer and was wearing a vest with his star and a gun belt.
¶ 32 The jury found defendant guilty of first degree murder.
¶ 33 Defendant filed a motion for new trial, arguing in relevant part, that the court failed to
properly admonish the jury regarding the principles enumerated in Illinois Supreme Court Rule
431 (eff. July 1, 2012) by stating defendant was not required to present witnesses, rather than
evidence, on his behalf. The court denied the motion.
¶ 34 At sentencing, the State submitted a victim impact statement from Rosa Hardy, Chambers’
mother. The State argued defendant’s role in the events that led up to the murder should be
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considered in aggravation. Specifically, it noted defendant was heard talking about a robbery and
“concocted the plan to go up and rob” the victims after observing them at the bus stop from the
Greenwood apartment.
¶ 35 Defendant’s presentence investigation report (PSI) showed he had a high school diploma
and was involved in the Black Disciples gang. He had a prior 2009 conviction for unlawful
possession of a handgun and was sentenced to 18 months’ probation, which was terminated
unsatisfactorily. Defendant was not employed prior to being incarcerated but did side jobs for
money. His PSI further reflected that he did not “feel that he committed a crime” in the instant
case.
¶ 36 In mitigation, defendant submitted letters of support from his friends and family and
certificates of completion of study. Defense counsel argued defendant was currently 27 years old,
had an insignificant criminal record, and had been employed. Counsel argued the significant
support from friends and family showed defendant was capable of being rehabilitated and had
previously volunteered in his community.
¶ 37 The court noted it read Hardy’s victim impact statement, reviewed the letters and
documentation submitted in mitigation, and reviewed the statutory factors in aggravation and
mitigation. The court recited the statutory factors in mitigation, finding many did not apply to
defendant. It then stated that defendant was one of the “ringleaders in this scenario” and was
“pretty much the main inducer or character that triggered the offense.” Defendant and the co-
offenders “beat the first victim to death and picked his body over and took the proceeds off of
him,” which were ultimately recovered from the Greenwood apartment where defendant had lived.
The court noted defendant had a prior unlawful weapon conviction and received probation, but
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that was terminated unsatisfactorily which indicated to the court that defendant “may actually go
out there and commit another violent [offense].”
¶ 38 The court found:
“I think the circumstances if given the chance to rob again and stalk the site of a
bus location where potential victims would come up to wait for the bus, I think that’s a
situation where the defendant could revert to that type of criminal conduct and down the
road commit another robbery.”
The court also found defendant was a threat to the community. In reciting the factors in
aggravation, the court stated defendant “could have taken the money and ran away instead of
beating the guy to death, four men on one.” It found defendant received compensation, which was
“the whole purpose of this robber/murder.” The court merged count II (strong probability murder)
into count I (intentional murder) and ultimately sentenced defendant to 40 years’ imprisonment on
both counts I and III (felony murder), “specifically factoring in the idea that when he comes out of
the penitentiary, he will still be able to have some time left in his life to convert into productive
fashion.”
¶ 39 On appeal, defendant first argues that the trial court failed to properly admonish the jury
pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).
¶ 40 Defendant concedes that he failed to object to the trial court’s failure to comply with Rule
431(b). See People v. Thompson, 238 Ill. 2d 598, 611-12 (2010) (“To preserve a claim for review,
a defendant must both object at trial and include the alleged error in a written posttrial motion.”).
Nevertheless, he argues that we should review the error under the first prong of the plain error
doctrine. See People v. Sebby, 2017 IL 119445, ¶¶ 51-52 (Rule 431(b) violations are reviewed
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under the first prong of the plain error doctrine). The plain error doctrine permits a reviewing court
to consider unpreserved errors when “ ‘(1) the evidence in a criminal case is closely balanced or
(2) where the error is so fundamental and of such magnitude that the accused was denied a right
to a fair trial.’ ” People v. Harvey, 211 Ill. 2d 368, 387 (2004) (quoting People v. Byron, 164 Ill.
2d 279, 293 (1995)). It is the defendant’s burden to establish plain error. Thompson, 238 Ill. 2d at
613. Our first step is to determine whether a clear and obvious error occurred. Thompson, 238 Ill.
2d at 613.
¶ 41 Supreme Court Rule 431(b) provides that, during voir dire examination of prospective
jurors, a trial court shall ask each potential juror, individually or in a group, whether the juror
understands and accepts that: (1) the defendant is presumed innocent of the charges against him;
(2) the State must prove the defendant guilty beyond a reasonable doubt before the defendant can
be convicted; (3) the defendant is not required to offer any evidence on his own behalf; and (4) if
a defendant does not testify, it cannot be held against him. Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
The method of inquiry must provide each juror with an opportunity to respond to specific questions
concerning the enumerated principles. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). Each of these
specific questions “goes to the heart of a particular bias or prejudice which would deprive
defendant of his right to a fair and impartial jury.” People v. Zehr, 103 Ill. 2d 472, 476 (1984).
Although the rule mandates a specific question and response process, where the trial court must
ask each juror whether he or she understands and accepts each of the principles in the rule, it is not
required to use the specific language of the rule in instructing the prospective jurors. People v.
Kidd, 2014 IL App (1st) 112854, ¶ 36.
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¶ 42 To comply with the rule, the court must (1) instruct the prospective jurors on the four
principles, (2) ask if the prospective jurors understand those principles, and (3) ask if the
prospective jurors accept those principles. People v. Birge, 2021 IL 125644, ¶ 34. There is no
requirement that the trial court recite the four principles separately or explain the principles to the
jurors in any particular fashion. Birge, 2021 IL 125644, ¶ 34. Whether the trial court
violated Rule 431(b) involves construction of the rule, controlled by the same principles applicable
to the construction of statutes, and is reviewed de novo. Thompson, 238 Ill. 2d at 606.
¶ 43 Defendant alleges the trial court erred in (1) failing to ascertain whether the prospective
jurors “understood” the enumerated principles, (2) stating defendant did not have to present
“witnesses” rather than “evidence,” and (3) comingling three of the principles into one proposition
of law, rather than addressing them separately.
¶ 44 A review of the record reveals the trial court erred by failing to ask the jurors whether they
understood the four principles set forth in Rule 431(b). Although at the outset the court told the
prospective jurors that they needed to “understand and embrace” the Zehr principles, during the
portion of voir dire where the jurors were able to answer the court’s questions, the court asked
whether they agreed with and accepted the Zehr principles. See People v. Wilmington, 2013 IL
112938, ¶ 32 (a “trial court’s failure to ask jurors if they understood the four Rule 431(b) principles
is error in and of itself” (emphasis in original)). The court did substantially comply with Rule
431(b) regarding the other contentions of error raised by defendant. See Birge, 2021 IL 125644, ¶
34 (the supreme court has never held “that the trial court must recite the principles separately to
the prospective jurors, and the plain language of the rule *** does not require the court to explain
the principles to the jurors in any particular fashion” (emphasis in original)); see also People v.
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Anderson, 2021 IL App (1st) 182558-U, ¶ 32 (cited as persuasive authority pursuant to Illinois
Supreme Court Rule 23(e)) (finding the court did not violate Rule 431(b) when it “asked potential
jurors if they understood that ‘an accused is not responsible for proving anything in a criminal
case?’ and if they accepted that an accused does not have to testify, call witnesses, or prove
anything in a criminal case”). 3
¶ 45 That said, we find the error did not rise to the level of plain error because the evidence
against defendant was not closely balanced. See Sebby, 2017 IL 119445, ¶ 68 (to prove plain error,
a defendant must show the evidence was closely balanced, or in other words, the error “occurred
in a close case where its impact on the result was potentially dispositive”). A case is closely
balanced when “it can hardly be said that reasonable jurors could only draw from [the evidence] a
conclusion of guilt.” People v. Nelson, 193 Ill. 2d 216, 223 (2000). When the evidence is closely
balanced, a Rule 431(b) error is “potentially dispositive” and therefore prejudicial. Sebby, 2017 IL
119445, ¶ 68. To determine whether a case was closely balanced, we undertake “a qualitative,
commonsense assessment” of the evidence as a whole, including any evidence that bears on the
credibility of the witnesses. Sebby, 2017 IL 119445, ¶ 53.
¶ 46 To prove defendant guilty as charged, the State had to prove defendant killed Chambers
without lawful justification, and in performing the acts which caused Chambers’ death, either
intended to kill or do great bodily harm to Chambers, or knew that such acts would cause his death.
720 ILCS 5/9-1(a)(1) (West 2010). Here, the evidence overwhelmingly showed defendant
3 In his reply brief, defendant acknowledges that, under our supreme court’s Birge decision, collapsing three principles into one is not plain error. However, he seeks to preserve the issue should the supreme court reach an opposite conclusion on rehearing in Birge.
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participated in the beating death of Chambers by first discussing committing a robbery and then
kicking and beating Chambers to death with others during the course of a robbery.
¶ 47 Defendant’s cousins Janilah and Mitchell testified they heard defendant speak about a
“stain,” which meant robbery. Mitchell testified defendant was “basically trying to get whoever
wanted to go out with him and do what he was going to do.” Janilah then heard footsteps and the
apartment door close, and later heard multiple people enter the Greenwood apartment and turn off
the lights. Defendant was present in the hallway when she exited her room. Defendant was heard
saying he did not get “enough” when asked by his co-offender how much he “got” after the robbery
and beating. Chambers was found with his pockets turned out, his phone was found in the vacant
lot next to the Greenwood building, and his identification was found in the Greenwood apartment.
¶ 48 Additionally, two of defendant’s other cousins, Jalen and Jamira, who witnessed the
beating, identified defendant as one of the offenders beating and kicking Chambers. Although at
trial Jamira did not identify defendant at trial as one of the attackers, the State impeached her with
her grand jury testimony identifying him as one of the men kicking and beating Chambers.
Moreover, Jamira’s testimony at trial that a man in a red hoodie was involved in the beating pointed
to defendant being one of the offenders, as this testimony was corroborated by Shannon’s
testimony that defendant was wearing a red hoodie that night. Additionally, when defendant was
arrested, there was a warrant out for his arrest and he was found hiding in an alcove in a residence
that police had entered. Flight is “generally considered some evidence of a guilty mind,” and when
considered with all the other evidence, “is a circumstance that a factfinder may consider as tending
to prove guilt.” People v. Aljohani, 2021 IL App (1st) 190692, ¶ 64.
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¶ 49 Although defendant argues there were inconsistencies in Mitchell’s and Janilah’s
testimony regarding the lights in the apartment and whether the men were inside at the time Janilah
looked out the window, we cannot say this rendered the evidence closely balanced. Nor are we
persuaded by defendant’s argument that Willis was unable to identify him in a lineup. Detective
Parks testified that Willis explained he did not observe two of the men who had been behind him
during the attack and, as previously described, defendant was identified by two cousins, who knew
him, as being one of the offenders. In sum, we find the evidence presented was not so closely
balanced that the court’s error in voir dire alone may have tipped the scales in favor of the State
and, therefore, any error by the trial court in that regard does not rise to the level of plain error.
See Sebby, 2017 IL 119445, ¶ 78.
¶ 50 Next, defendant argues his multiple murder convictions violate the one-act, one-crime
doctrine, as they were premised on the same physical act: the killing of Chambers. He requests
that we amend the mittimus to “remove the conviction and sentence” on count III (felony murder).
Although defendant did not request that his convictions be merged, the State concedes that his
conviction for felony murder should have been merged into his conviction for intentional murder,
the more serious offense, and defendant’s mittimus should be corrected to reflect one count of
murder for the single victim he killed. We agree.
¶ 51 The one-act, one-crime doctrine prohibits multiple convictions arising from the same
physical act. People v. Miller, 238 Ill. 2d 161, 165 (2010). An “act” is defined as “any overt or
outward manifestation which will support a different offense.” People v. Almond, 2015 IL 113817,
¶ 47. If an indictment charges the defendant for a single course of conduct, even if multiple theories
of culpability are presented, the trial court cannot convict the defendant for separate criminal
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acts. People v. Crespo, 203 Ill. 2d 335, 345 (2001). Where guilty verdicts are obtained for multiple
counts arising from the same act, a sentence should be imposed on the most serious offense.
See People v. Donaldson, 91 Ill. 2d 164, 170 (1982). Whether a violation of the one-act, one-
crime rule has occurred is a question of law that is reviewed de novo. People v. Smith, 2019 IL
123901, ¶ 15.
¶ 52 In this case, defendant was found guilty of three counts of first degree murder, counts I, II,
and III, under different theories of culpability. The court merged count II into count I and sentenced
defendant to 40 years’ imprisonment on count I and 40 years on count III, to be served
concurrently. As the court did not sentence defendant on count II, this count is not before us.
People v. Flores, 128 Ill. 2d 66, 95 (1989) (“[I]t is axiomatic that there is no final judgment in
a criminal case until the imposition of sentence, and, in the absence of a final judgment, an appeal
cannot be entertained.”).
¶ 53 Count I charged defendant with intentional murder by beating, kicking, and killing
Chambers with his hands and feet (720 ILCS 5/9-1(a)(1) (West 2010)). Count III charged
defendant with murder for beating, kicking, and killing Chambers with his hands and feet during
the commission of a forcible felony (720 ILCS 5/9-1(a)(3) (West 2010)).
¶ 54 Although felony murder involves an additional physical act beyond the acts that cause the
death, felony murder is not a separate offense from intentional murder but, rather, a separate theory
of the same offense: first degree murder. People v. Coats, 2018 IL 121926, ¶¶ 22-23 (citing 720
ILCS 5/9-1(a) (West 2016)). A defendant therefore cannot be convicted of both the intentional
murder and felony murder of the same victim. Coats, 2018 IL 121926, ¶ 23. Where only one
person has been murdered, there can be only one conviction of murder; and where multiple
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convictions are obtained for offenses arising out of a single act, sentence is imposed on the
most serious offense. People v. Cardona, 158 Ill. 2d 403, 411 (1994).
¶ 55 Because both of defendant’s first degree murder convictions were premised on defendant’s
killing the same victim, Chambers, only the more serious murder conviction may be sustained. See
Cardona, 158 Ill. 2d at 411. Intentional murder involves a more culpable mental state than felony
murder. Cardona, 158 Ill. 2d at 412 (“Where charges of intentional *** and felony murder have
been proved, intentional murder is deemed to be the most serious offense.”). Therefore,
defendant’s sentence should be imposed only on count I. Accordingly, we vacate defendant’s
sentence for felony murder under count III and order that defendant’s mittimus reflect a single
conviction for first degree murder on count I. See People v. Artis, 232 Ill. 2d 156, 170 (2009)
(“This court has ‘always held’ that under the one-act, one-crime doctrine, sentence should be
imposed on the more serious offense and the less serious offense should be vacated.”).
¶ 56 Finally, defendant poses several challenges to his sentence. He first argues the trial court
improperly relied on a factor inherent in the offense of felony murder when it considered that
defendant obtained proceeds from the crime in imposing sentence. Defendant states his felony
murder conviction was predicated on robbery, and taking proceeds is an element of robbery. See
720 ILCS 5/18-1(a) (West 2010) (“A person commits robbery when he or she knowingly takes
property *** from the person or presence of another by the use of force.”). However, because we
vacate defendant’s sentence for felony murder, we need not address this claim.
¶ 57 Defendant lastly argues his 40-year sentence is excessive in light of the mitigating evidence
he presented.
¶ 58 The Illinois Constitution provides that “[a]ll penalties shall be determined both according
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to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11. We accord great deference to a trial court’s sentence and
will not reverse it absent an abuse of discretion. People v. Butler, 2013 IL App (1st) 120923, ¶ 30
(citing People v. Stacey, 193 Ill. 2d 203, 209-10 (2000)). “A sentence which falls within the
statutory range is not an abuse of discretion unless it is manifestly disproportionate to the nature
of the offense.” People v. Jackson, 375 Ill. App. 3d 796, 800 (2007). In determining an appropriate
sentence, the trial court considers such factors as “a defendant’s history, character, and
rehabilitative potential, along with the seriousness of the offense, the need to protect society, and
the need for deterrence and punishment.” People v. Hernandez, 319 Ill. App. 3d 520, 529 (2001).
Because the trial court, having observed the proceedings, is in the best position to weigh the
relevant sentencing factors (People v. Arze, 2016 IL App (1st) 131959, ¶ 121), we do not substitute
our judgment for that of the trial court simply because we would have balanced the appropriate
sentencing factors differently (People v. Alexander, 239 Ill. 2d 205, 213 (2010)).
¶ 59 Defendant was sentenced to 40 years’ imprisonment for first degree murder, which falls
within the statutory sentencing range of 20 to 60 years. See 730 ILCS 5/5-4.5-20(a) (West 2018)
(sentencing range for first degree murder)). Thus, we presume his sentence was proper, absent
some indication otherwise. See People v. Burton, 2015 IL App (1st) 131600, ¶ 36.
¶ 60 Defendant contends that the trial court failed to consider the evidence presented in
mitigation. Defendant argues that the court did not accord enough weight to the support from his
family, who attended the sentencing hearing and submitted 17 letters in support describing him as
smart, respectful, and a role model. Defendant also claims the court failed to consider he was 20
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years old at the time of the offense, he had a high school diploma, the circumstances of the offense
were unlikely to reoccur, and he was active in his community.
¶ 61 Defendant essentially asks this court to reweigh the evidence presented in aggravation
and mitigation and substitute our judgment for that of the trial court. We decline to usurp a
function uniquely reserved for the trial court. See Stacey, 193 Ill. 2d at 209. Further, absent some
affirmative indication to the contrary, other than the sentence itself, we presume the trial court
considered all mitigating evidence before it. People v. Jones, 2014 IL App (1st) 120927, ¶ 55.
Defendant does not make that contrary showing here.
¶ 62 In fact, the record belies defendant’s contentions that the court did not properly consider
the mitigating evidence. In imposing sentence, the court explicitly considered the statutory factors
in aggravation and mitigation, reciting many of the factors and finding them inapplicable to
defendant. See 730 ILCS 5/5-5-3.1 (West 2018) (factors in mitigation); 730 ILCS 5/5-5-3.2 (West
2018) (factors in aggravation). The court also stated it considered the victim impact statement and
evidence submitted in mitigation. It stated it reviewed the “letters and documents in support of
mitigation in this case.” It also explicitly considered defendant’s rehabilitative potential, stating
defendant’s probation in his prior case was terminated unsatisfactorily and its belief that he would
commit another robbery if given the opportunity. It further found defendant to be a threat to the
community, yet sentenced him to 40 years with the intent that, when he was released from the
penitentiary, he would have time left to live a productive life.
¶ 63 Although defendant believes the letters of support from his family should outweigh the
other evidence, the trial court is not required to assign them the weight he urges. See People v.
Harmon, 2015 IL App (1st) 122345, ¶ 123 (“Because the most important sentencing factor is the
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seriousness of the offense, the court is not required to give greater weight to mitigating factors than
to the seriousness of the offense, nor does the presence of mitigating factors either require a
minimum sentence or preclude a maximum sentence.”).
¶ 64 Defendant’s sentence is not manifestly disproportionate to the nature of the offense. The
trial court, in imposing sentence, noted defendant was the ringleader. This is supported by the
evidence, which established defendant initiated the robbery by telling the other men he had a
“stain.” Further, defendant participated in brutally beating Chambers to death as he waited at a bus
stop. Chambers’ autopsy revealed he died from a hemorrhage in his brain and had a patterned
injury on his head consistent with a shoe print, among other abrasions on his face. These
particularly graphic circumstances show defendant’s sentence was not disproportionate to the
nature of the offense. See Harmon, 2015 IL App (1st) 122345, ¶ 123 (the seriousness of offense is
the most important sentencing factor). In sum, the trial court did not abuse its discretion in
sentencing defendant to 40 years in prison for first degree murder.
¶ 65 For the foregoing reasons, we vacate defendant’s sentence for first degree murder on count
III, order defendant’s mittimus corrected to reflect one count of first degree murder on count I, and
affirm the trial court’s judgment in all other respects.
¶ 66 Affirmed in part; vacated in part; mittimus corrected.
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