THIRD DIVISION October 27, 2010
No. 1-08-3502
THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Cook County. ) ) No. 02 CR 3413 ) DEVIN REED, ) Honorable ) Dennis J. Porter, Defendant-Appellant. ) Judge Presiding.
JUSTICE STEELE delivered the opinion of the court:
This appeal arises from defendant Devin Reed’s convictions for first degree murder,
armed robbery, and residential burglary following a jury trial.1 Defendant was sentenced to
concurrent prison terms of natural life, 60 years, and 15 years, respectively. On appeal,
defendant contends that: (1) the trial court erred by denying his request to provide the jury with
separate instructions and verdict forms for felony murder, which resulted in him receiving an
improper sentence on the predicate felonies; (2) the trial court erred when it sentenced him to
extended-term sentences for both first degree murder and armed robbery as extended-term
sentences may only be imposed on the conviction of the most serious offense; (3) the evidence
was insufficient to prove him guilty beyond a reasonable doubt of residential burglary where he
was invited into the victim’s home; (4) the trial court abused its discretion in sentencing him to
natural life imprisonment for first degree murder because this was his first conviction for a
1 Codefendants India Williams and Anthony Williams were tried in separate trials and are
not parties to this appeal. 1-08-3502
violent offense and he had minimal involvement in the events that resulted in the victim’s death;
and (5) the trial court erred in refusing to allow defense counsel’s proposed addict instruction
where it was an accurate statement of the law and one of the State’s witnesses was an admitted
drug addict. For the following reasons, we affirm in part and reverse in part.
BACKGROUND
On January 1, 2002, shortly after midnight, defendant was standing in front of an
apartment building in the 1500 block of South Karlov Avenue in Chicago. Defendant saw the
victim, Timothy Kollar, sitting in a van in front of the building. Kollar told him that he was
looking for India Williams,2 and defendant replied that she was inside, smoking cocaine, and that
Kollar needed to leave because the “spot was hot” and he “didn’t want to bring more heat to it.”
Approximately an hour later, Kollar returned, again looking for India. This time,
Anthony Williams was standing outside with defendant and Anthony started “talking crazy” to
Kollar. Both defendant and Anthony told Kollar to leave and to “catch up” with India later.
After Kollar left, defendant and Anthony went inside to the basement apartment where India was
and the three of them smoked cocaine together. As dawn approached, they left the apartment and
drove around the neighborhood in Anthony’s car. India told defendant and Anthony that she
wanted to go to Kollar’s house because “he [was] an easy trick.” They then proceeded to
Kollar’s home. On the way to Kollar’s house, they saw Kimberly Thompson3 standing near a car
wash on 16th street, and she joined them.
2 India Williams was a prostitute. 3 Kimberly Thompson was also a prostitute.
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When they arrived at Kollar’s home near 25th Street and Kildare Avenue, he let them
inside and went upstairs with India while defendant, Anthony and Thompson stayed downstairs.
A short time later, Kollar called them upstairs and everyone smoked cocaine together. When the
drugs ran out, Kollar gave India money and told her to leave to get more. India and Anthony left,
and subsequently returned with more cocaine. Kollar complained about the quality of the drugs
and sent India out again for more. Defendant, India and Anthony then left to purchase more
drugs. On their way back to Kollar’s house, they decided that India would try to rob Kollar while
performing oral sex on him. They also decided that if the plan was unsuccessful, they would
“knock [Kollar] out” and rob him.
Upon returning to Kollar’s house, they went to a second-floor bedroom where everyone
smoked cocaine for awhile before India and Kollar went into another bedroom. Thompson went
into the bathroom, and shortly thereafter, India and Kollar joined her in the bathroom. When the
three exited the bathroom, they returned to the bedroom. India gave Anthony and defendant
some cocaine and told them to go downstairs.
Thompson, Anthony and defendant went downstairs, where Anthony and defendant
began looking for objects they could steal. Defendant and Anthony found some guitars in cases
and began playing with them. Kollar came downstairs, took the guitars from them, and put them
away before returning upstairs. Thompson told defendant and Anthony that she needed to make
a phone call, so she left the house. Approximately 20 minutes later, India called defendant and
Anthony upstairs. Defendant picked up a porcelain statue and wrapped it in foam before giving
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it to Anthony to carry upstairs.4 When they arrived in the bedroom, Kollar and India were
smoking cocaine with their backs to the door. India looked at defendant and nodded. Anthony
then handed defendant the statue. Defendant struck Kollar on the right side of the head with the
statue. Kollar fell back on the bed, looked at defendant, and said “why did you do that? Let’s
party, let’s smoke some cocaine.” Anthony then grabbed an aluminum baseball bat and hit
Kollar two to three times while defendant searched the bedroom for money. India unsuccessfully
attempted to tie Kollar with duct tape, but she then found an electrical cord, which she used to tie
his legs. India then hit Kollar a few times on his legs with the baseball bat, after which Anthony
again hit Kollar a few times with the bat.
Defendant subsequently left the bedroom and went downstairs. As he walked downstairs,
he heard the metal bat strike Kollar several times. Once downstairs, defendant grabbed the guitar
cases and put them by the door. He went outside and moved Anthony’s car closer to the door.
When Anthony and India subsequently came downstairs, Anthony tried to steal the television, but
it would not fit in the car. By this time, Thompson returned to get more drugs and saw
defendant, India and Anthony taking things from Kollar’s house. Defendant and Anthony left in
Anthony’s car, while Thompson and India followed in Kollar’s van. Defendant and Anthony lost
track of India and Thompson for a short time, but subsequently located them near Jackson
Boulevard and Kilbourn Avenue. When defendant yelled at India for not sharing the money she
took from Kollar’s house, India gave him $40 and drove off in Kollar’s van.
4 According to his statement, defendant wrapped the statue in foam so “it wouldn’t hurt
Tim too badly.”
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Defendant and Anthony then went to the home of Anthony’s cousin, Yvonne Harris, and
gave her a wooden guitar without strings before leaving. They then went to several pawn shops
on Chicago’s West Side in an attempt to sell the guitars they took from Kollar’s house, but were
unsuccessful. Finally, defendant and Anthony were able to sell the guitars at a gas station for
$80, which they split.
Later that evening, defendant and Anthony were at a restaurant when they saw India in
the parking lot sitting in Kollar’s van with another woman. Anthony approached India and yelled
at her. He then made the other woman leave the van, took the keys from India, and drove off
with defendant following in Anthony’s car. The three went to an apartment, where Anthony
yelled at India and demanded the rest of the money. India told him that she took it to her
mother’s house and the three then went to her mother’s house. India entered the house while
defendant and Anthony waited outside. Shortly thereafter, India’s boyfriend came outside and
told them to leave. Anthony and defendant returned to the apartment at 15th Street and Karlov
Avenue.
Meanwhile, Michael Enriquez, Kollar’s nephew-in-law, was trying to reach Kollar
because he did not show as expected for a New Year’s gathering. At approximately 9:30 p.m. on
January 2, 2002, Enriquez went to Kollar’s home and found the front door open with only the
screen door closed. Enriquez entered the house and saw Kollar face down on the floor next to
the bed in an upstairs bedroom. There was a bat on the bed. Enriquez shook Kollar, but Kollar
did not move. Enriquez subsequently called the police.
When the police arrived, they found Kollar’s partially naked body in a second-floor
bedroom. Kollar’s hands were tied behind his back with duct tape and an electrical cord. The
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cord was also wrapped around his legs and a piece of duct tape was wrapped around Kollar’s
neck and mouth. His body was bloody, swollen and bruised, with a pool of blood around his
head and a dusty shoe print on the back of Kollar’s shirt. The mattress was bloodstained and a
blood-stained aluminum bat and utility knife were lying on top of it. When Kollar’s body was
moved, a piece of foam wrapped in duct tape was found underneath, along with several pieces of
a broken statue. Two crack pipes were also found in the room.
Medical examiner Dr. Michelle Jordan testified concerning the autopsy. Kollar’s injuries
included a broken nose and facial fractures, swelling and bruising of the face, and skull fractures.
Lacerations to his head implied blunt force injury and were consistent with being hit by a
baseball bat. There were multiple skull fractures underlying the lacerations. Dr. Jordan
identified photographs showing bleeding in the brain, bruising of the brain, and swelling of the
brain. Dr. Jordan described a sharp force injury to the neck as a slitting of the neck.
Additionally, there were hemorrhages in the throat muscles and a fracture of the hyoid bone,
indicating strangulation. According to Dr. Jordan, Kollar died of cranial cerebral injuries due to
blunt force trauma with strangulation a significant contributing factor to death. Dr. Jordan
characterized his death as tortuous based on the extent of the injuries, the degree of bondage and
the wound to the neck. Additionally, toxicology tests revealed that Kollar had a blood alcohol
level of .03 and tested positive for one of the highest levels of cocaine Dr. Jordan had ever seen.
Thompson, who testified at trial on behalf of the State, indicated that she was a prostitute
in January 2002 and admitted that she was a drug addict and spent all of her money on drugs.
She had difficulty identifying defendant as one of the men she was with at Kollar’s house. She
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stated that she had memory problems as a result of her past addictions and because of her bipolar
disease, which made the events she testified to fuzzy. The day after she left defendant, India and
Anthony, Thompson saw on the news that Kollar had been killed. She called the police. She
subsequently met with officers and identified the three defendants; India from a photograph and
defendant and Devin in a lineup on January 6, 2002.
At the instructions conference, defense counsel offered an alternate version of Illinois
Pattern Jury Instructions, Criminal, No. 1.02 (4th ed. 2000) (hereinafter IPI Criminal 4th) with
additional language that the jury “could consider the evidence that a witness was addicted to
drugs at the time of the crime in judging that witness’ credibility.” The trial court refused this
version of IPI Criminal 4th No. 1.02.
Defendant then objected to the verdict forms and requested that the jury be given separate
verdict forms for felony murder and intentional or knowing murder. The court denied
defendant’s request.
The jury returned guilty verdicts for first degree murder, armed robbery and residential
burglary. The jury also found that the armed robbery was accompanied by exceptionally brutal or
heinous behavior indicative of wanton cruelty.
Defendant filed two pro se posttrial motions, one for a new trial and one for new counsel.
Both motions were denied by the court. Defendant then waived a jury for sentencing purposes.
The trial court found that he was eligible for the death penalty.
In aggravation, the State argued that defendant was a chronic law breaker, a 12-time
convicted felon, a danger to the community, and on parole at the time of the offense. The State
further argued that defendant “started the ball rolling” by hitting Kollar first.
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In mitigation, defense counsel argued that none of defendant’s prior convictions were for
violent crimes, that he came from a bad family environment, and that he wrapped the statue in
foam prior to hitting Kollar.
The court stated that it was unusual for someone without a violent background to be
facing the death penalty, but found that defendant had an “atrocious” criminal record. In
mitigation, the court noted that defendant was arguably not present for the actual killing and did
wrap the statue in foam so as not to hurt the victim too badly. The court then sentenced
defendant to natural life imprisonment for felony murder, a concurrent extended-term sentence of
60 years for armed robbery, and a concurrent 15-year sentence for residential burglary. This
timely appeal followed the denial of defendant’s motion to reduce his sentence.
DISCUSSION
Defendant has raised five issues on appeal, namely: (1) whether the trial court erred by
denying his request to provide the jury with separate instructions and verdict forms for felony
murder, which resulted in him receiving an improper sentence on the predicate felonies; (2)
whether the trial court erred when it sentenced him to extended-term sentences for both first
degree murder and armed robbery as extended-term sentences may only be imposed on the
conviction of the most serious offense; (3) whether the evidence was insufficient to prove him
guilty beyond a reasonable doubt of residential burglary where he was invited into the victim’s
home; (4) whether the trial court abused its discretion in sentencing him to natural life
imprisonment for first degree murder because this was his first conviction for a violent offense
and he had minimal involvement in the events that resulted in the victim’s death; and (5) whether
the trial court erred in refusing to allow defense counsel’s proposed addict instruction where it
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was an accurate statement of the law and one of the State’s witnesses was an admitted drug
addict.
General Verdict Form
Defendant first contends that the trial court erred by denying his request to provide the
jury with separate instructions and verdict forms for felony murder, which resulted in him
receiving an improper sentence on the predicate felonies. The State concedes that under our
supreme court’s decision in People v. Smith, 233 Ill. 2d 1,10 (2009), the trial court should have
granted defendant’s request for separate verdict forms for the different theories of murder that he
was charged with.
In Illinois, it is clear that, where a general murder verdict is delivered for a defendant who
is charged with murder in multiple counts alleging intentional, knowing, and felony murder, the
defendant is presumed to be convicted of the most serious of intentional murder, and judgment
and sentence should be entered on that count. People v. Allen, 401 Ill. App. 3d 840, 856 (2010).
However, a general verdict form cannot be presumed to be a finding of intentional murder when
the trial court has refused a request for separate verdict forms that would have made the basis for
the jury’s findings clear. Smith, 233 Ill. 2d at 28; People v. Battle, 393 Ill. App. 3d 302, 314
(2009). Thus, our supreme court held that the appropriate remedy is to interpret the general
verdict as a finding on felony murder. Smith, 233 Ill. 2d at 28; Battle, 393 Ill. App. 3d at 314.
The supreme court then vacated the conviction and sentence in the underlying felony. Smith,
233 Ill. 2d at 29; Battle, 393 Ill. App. 3d at 314.
Here, as in Smith and Battle, defendant requested separate verdict forms for the separate
theories of murder and that request was denied. Because the sentencing consequences differ
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depending on the theory proven, the general verdict form did not provide the specificity
necessary for the court to sentence defendant properly and, in light of Smith, must be interpreted
as a finding of guilt on felony murder. See Battle, 393 Ill. App. 3d at 314; Allen, 401 Ill. App. 3d
at 856. A defendant convicted of felony murder may not be convicted of the underlying felony.
Smith, 233 Ill. 2d at 17; Battle, 393 Ill. App. 3d 314. In the instant case, defendant was charged
with two counts of felony murder, one based on the predicate felony of armed robbery and one
based on the predicate felony of residential burglary. In light of the foregoing analysis, we affirm
defendant’s conviction for murder, but reverse his convictions and sentences for residential
burglary and armed robbery.
Our disposition of the preceding issue makes it unnecessary for us to consider defendant’s
issues concerning reasonable doubt of the residential burglary conviction and whether his
sentence on the armed robbery conviction was proper.
Natural Life Sentence for Murder
Defendant next contends that the trial court abused its discretion in sentencing him to
natural life imprisonment for first degree murder where this was his first conviction for a violent
offense and he had minimal involvement in the events that resulted in Kollar’s death.
A defendant is eligible for a sentence of death or natural life in prison if the defendant
commits a murder in the course of a felony. 720 ILCS 5/9-1(b)(6) (West 2006). A trial court's
determination that a defendant is eligible for a sentence of natural life will not be disturbed
unless “ ‘the evidence is so unreasonable, improbable or unsatisfactory that it does not provide
proof of the findings beyond a reasonable doubt.’ ” People v. Jackson, 304 Ill. App. 3d 883, 896-
97 (1999) quoting People v. Gaines, 235 Ill. App. 3d 239, 250 (1992).
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Turning to the instant case, we find that defendant significantly understates his
involvement in Kollar’s death. Contrary to his assertions, he was part of the agreement to rob
Kollar from the beginning. Defendant, along with India and Anthony, devised a plan to rob
Kollar while India performed sex acts on him. He and Anthony started searching the first floor
of Kollar’s house for items to steal while India was upstairs with Kollar. Additionally, defendant
grabbed a statue to hit Kollar with in order to steal from him. Defendant did in fact hit Kollar
several times on the head with the statue. While Anthony hit Kollar with the baseball bat,
defendant searched his room for money. Defendant gathered the items that they were stealing
and moved Anthony’s car closer to the door so it could be loaded. Defendant fled with his
codefendants, and defendant split the proceeds of the robbery with his codefendants. While
defendant is correct that he did wrap the statue in foam prior to hitting Kollar with it and he may
not have delivered the fatal blow to Kollar, it is abundantly clear that he fully participated in the
events that led to Kollar’s death.
Defendant also ignores the fact that he was found eligible for the death penalty by the trial
court based on the fact that during the course of another forcible felony, defendant inflicted
injuries which at least in part contributed to Kollar’s death, and defendant acted with the
knowledge that his acts created a strong probability of death or great bodily harm. See 720 ILCS
5/9-1(b)(6) (West 2006). Thus, defendant was eligible for the death penalty. However, the court
found mitigating factors persuasive and sentenced defendant to natural life imprisonment instead.
See 730 ILCS 5/5-8-1(a)(1)(b) (West 2006). As such, defendant’s contention is without merit
and the trial court properly sentenced him to natural life imprisonment for felony murder.
Defendant’s Proposed Jury Instruction
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Finally, defendant contends that the trial court erred in refusing to allow defense
counsel’s proposed addict instruction where it was an accurate statement of the law and one of
the State’s witnesses was an admitted drug addict. Defendant sought to have the jury instructed
on a modified version of IPI Criminal 4th No. 1.02. He argues that Thompson was the only
eyewitness to testify at trial concerning the incidents surrounding Kollar’s death and she admitted
that she was a drug addict and was using drugs at the time. Defendant further argues that the trial
court’s refusal to issue the instruction denied him a fair trial.
A court reviews a trial court’s decision regarding instructions using an abuse of discretion
standard. Battle, 393 Ill. App. 3d at 313. A jury instruction conveys the correct principles of law
applicable to the evidence. Battle, 393 Ill. App. 3d at 313. It is the court’s duty to give an
instruction when enough evidence warrants it. Battle, 393 Ill. App. 3d at 313.
Parties must be allowed to cross-examine witnesses about drug use, but a trial court is not
required to instruct the jury on the unreliability of testimony by drug addicts. People v. Foster,
322 Ill. App. 3d 780, 788 (2000). It is the function of the jury, not the trial court, to determine
the credibility of witnesses. Foster, 322 Ill. App. 3d at 788. The supreme court has held that it is
not reversible error to deny an offered addict instruction where evidence of the addiction is
before the jury so it can make its own determination of witness credibility. See People v. Steidl,
142 Ill. 2d 204, 238 (1991). Additionally, courts are reluctant to give a non-IPI drug addiction
instruction because it places undue emphasis on particular evidence in a case. Foster, 322 Ill.
App. 3d at 788.
In the present case, evidence of Thompson’s drug use was before the jury. It was very
clear that she, along with the victim, defendant and codefendants, had engaged in heavy drug use
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on the day of Kollar’s murder. Additional evidence was presented to the jury that Thompson had
a past drug addiction and the effects of her addiction. Thompson was also subject to cross-
examination. Defense counsel spoke about her drug addiction in closing argument. The trial
court refused to tender the modified instruction, finding that IPI Criminal 4th No. 1.02 was
sufficient to instruct the jury on issues of credibility. We conclude that the trial court properly
denied defendant’s request to have the jury instructed on a modified version of IPI Criminal 4th
No. 1.02.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in
part and reversed in part.
Affirmed in part and reversed in part.
QUINN, P.J., and MURPHY, J., concur.
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REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT Please Use Following (Front Sheet to be Attached to Each Case) Form: THE PEOPLE OF THE STATE OF ILLINOIS, Comple te TITLE of Case Plaintiff-Appellee, v.
DEVIN REED,
Defendant-Appellant.
Docket No. No. 1-08-3502 Appellate Court of Illinois COURT First District, THIRD Division
October 27, 2010 Opinion (Give month, day and year) Filed
JUSTICE STEELE delivered the opinion of the court: JUSTICES Quinn, P.J., and Murphy, J., concur
Lower Court and T rial Judge(s) in form indicated in the margin: Circuit Ct. of Cook Co unty, Criminal Div. APPEAL from the Circuit Ct. of The Honorable Dennis J. Porter , Judge Presiding. Cook County, Chancery Div.
Indicate if attorney represents APPELLANTS or APPELLEE S and include attorneys of counsel. Indicate the word NONE if not represented.
Attorney for Defendant-Appellant: Michael J. Pelletier, State Appellate Defender, of Chicago, IL For (Patricia Unsinn, Deputy Defender, and Therese Bissell, APPELLANTS, John Doe, of Assistant Appellant Defender (of Counsel)) Chicago.
For APPELLEES, Attorneys for Plaintiff-Appellee: Anita Alvarez, Cook County State’s Attorney, of Chicago, IL Smith and Smith of Chicago, (Alan J. Spellberg, Annette Collins, and Tasha-Marie Kelly, Joseph Brown, Assistant State’s Attorneys (of Counsel)) (of Counsel)
Also add attorneys for third-party appellants or appellees.
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