People v. Rowland

2023 IL App (4th) 220106-U

• Court: Appellate Court of Illinois
• Decided: April 21, 2023
• Docket: 4-22-0106
• Status: Unpublished

Opinion

NOTICE FILED This Order was filed under 2023 IL App (4th) 220106-U April 21, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed NO. 4-22-0106 Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McDonough County TOMMY E. ROWLAND, ) No. 19CF123 Defendant-Appellant. ) ) Honorable ) Raymond A. Cavanaugh, ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Knecht and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The admission of other-crimes evidence was error, and the State failed to argue the admission of the evidence was harmless.

¶2 Following a jury trial, defendant Tommy E. Rowland was convicted of attempted

murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2018)) and unlawful restraint (id. § 10-3(a)) of his wife,

Shannon Rowland. In this direct appeal, he argues (1) defense counsel was ineffective in pursuing

an unreasonable defense strategy, (2) he was denied a fair trial where the State improperly

presented irrelevant background information and evidence of prior uncharged criminal acts, and

(3) the cumulative impact of errors during the proceedings denied him the right to a fair trial. We

reverse and remand for a new trial.

¶3 I. BACKGROUND ¶4 We include only those facts necessary to the disposition of this matter on appeal.

In June 2019, the Rowlands were married but living separately. On June 18, Shannon visited

defendant at his home and subsequently placed a call to 911 requesting assistance, claiming

defendant had beaten her and that she stabbed him in the neck. Defendant fled from the scene. Law

enforcement detained defendant following a brief pursuit and transported him to the hospital. The

State charged defendant with attempted murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2018)), domestic

battery (id. § 12-3.2(a)(1)), aggravated domestic battery (id. § 12-3.2), and unlawful restraint (id.

§ 10-3(a)).

¶5 A. Pretrial

¶6 In pretrial pleadings and at the ensuing hearings, defendant’s counsel stated that he

anticipated he would offer evidence that Shannon was a methamphetamine (meth) user and addict.

Defendant sought to test hair collected at the scene, believing it would provide evidence of

Shannon’s meth use. Further, defendant believed Shannon’s drug use was relevant to her

credibility regarding the recollection of the events at issue and whether she was the aggressor.

Defendant presented testimony from Christina Creasy, whose home defendant and Shannon visited

on the night of the altercation. Creasy testified that she did not see either defendant or Shannon

drink or consume intoxicants while at her home, but Shannon was acting like she might have been

high or drunk as she was “jittery” and had a “glazy” eye.

¶7 In opposing defendant’s request to test the hair and the presentation of other

evidence showing Shannon used meth, the State argued there was an absence of evidence showing

that Shannon used meth or that her use of meth was relevant. The trial court denied defendant’s

request to test Shannon’s hair for drug usage.

-2- ¶8 Defendant and the State also filed and litigated numerous motions in limine. The

State sought to exclude photographs disclosed by defendant depicting Shannon smoking what was

argued to be meth, asserting that defendant failed to provide a foundation for the photographs and

that the images did not establish Shannon was a drug addict. The State admitted it was aware of

defendant’s contention that Shannon used meth, but there had been no testimony or evidence

establishing Shannon as the individual in the photographs or that meth was the substance being

inhaled. Defendant argued that he planned to introduce evidence at trial that Shannon regularly

used meth. He argued that the photographs were relevant in establishing her addiction and that the

trial court should hold the matter in abeyance until presented at trial. The court denied the State’s

motion and said it would rule on admissibility at trial.

¶9 Several other motions in limine were filed by the parties. The State sought and was

allowed to introduce instances of other crimes or bad acts. Specifically, prior instances of alleged

domestic violence against Shannon and another woman as evidence of propensity to engage in

domestic violence pursuant to section 115/7.4 of the Code of Criminal Procedure (725 ILCS

5/115-7.4 (West 2020)). Defendant sought to bar evidence of prior convictions and orders of

protection disclosed by the State. The trial court granted the motion in part, excluding evidence of

orders of protection against defendant and two prior convictions.

¶ 10 B. Trial

¶ 11 At trial, Shannon testified that she and defendant married in May 2018. The State

elicited “background” information from Shannon including that she initially lived in Missouri with

her eldest son and worked as an assistant manager at Walmart, while defendant lived in Illinois.

To visit defendant, she had to drive long distances between the two states. Defendant never visited

her in Missouri, but she drove to be with him on the days she was not working, leaving immediately

-3- after her 12-hour shift to undertake the 5-hour drive. Defendant insisted on this arrangement and

would become “upset” if Shannon did not want to make the drive.

¶ 12 She moved to Illinois permanently in October 2018 when she got a job at a Walmart

near defendant’s home, working five 10-hour shifts a week. Defendant was unemployed, and

Shannon was providing the couples’ financial support. Defendant continually objected to the

relevance of the testimony, but the State asserted that it was seeking to provide “background” on

the Rowlands’ relationship, and the trial court overruled the majority of objections.

¶ 13 During the “background” testimony, the following exchange took place:

“MS. MAXWELL [(ASSISTANT STATE’S ATTORNEY)]:

Shannon, were there times that you didn’t feel safe making the drive?

A. Yes.

MR. GILSDORF [(DEFENSE COUNSEL)]: Objection, [Y]our

Honor. It’s irrelevant.

THE COURT: Overruled.

MS. MAXWELL: And did there come a time when you did

something to help you stay awake?

Q. And, Shannon, what did you do?

A. I had to use meth.

Q. Okay. And when you say meth, you mean methamphetamine;

correct?

Q. Where did you get the methamphetamine that you used?

-4- A. From [defendant].

Q. And why did you use the methamphetamine?

A. To stay awake during the drive so I wouldn’t wreck.”

¶ 14 Defendant did not immediately object to this testimony. Shannon then detailed a

previous incident of domestic abuse between her and defendant, with the State introducing

photographs of her alleged injuries. Shannon also described the events leading up to the incident

at issue as well as the incident itself. A 911 recording was played, and Shannon testified to her

conversation with the operator. Following testimony on the 911 call, the trial court recessed for

the day.

¶ 15 Before Shannon resumed her testimony the following day, defendant argued for a

mistrial, asserting the State intentionally elicited not just evidence of Shannon’s drug use but that

defendant supplied her with meth. Among other assertions, defendant argued that he could have

prepared better for trial or investigated this assertion further if disclosed by the State prior to trial.

The State argued that defendant did not face charges stemming from possession or delivery of

meth, and Shannon was not on trial. Further, the State claimed it had no more information on

Shannon’s drug use other than what she testified to, it did not act in bad faith by not disclosing the

information, and that it was trial strategy to front Shannon’s meth use. Defendant argued in rebuttal

that the information about Shannon’s drug use was exculpatory and the failure to disclose it

constituted a discovery violation pursuant to Brady v. Maryland, 373 U.S. 83 (1963).

¶ 16 The trial court denied defendant’s motion for mistrial, finding the State’s trial

strategy was to front Shannon’s drug use, there was no Brady violation because “it’s not a prior

criminal conviction,” and that defendant could cross-examine Shannon about her meth use.

¶ 17 Following deliberations, the jury found defendant guilty of all charges.

-5- ¶ 18 C. Posttrial Motion

¶ 19 Defendant filed a timely posttrial motion requesting judgment notwithstanding the

verdict or, in the alternative, a new trial. Defendant raised numerous issues in the motion, including

that the State improperly introduced undisclosed bad acts of defendant where he provided meth to

Shannon. In an attached memorandum, defendant referenced Illinois Rule of Evidence 404(b) (eff.

Jan. 1, 2011).

¶ 20 The trial court denied defendant’s motion, finding that the State did not willfully

fail to disclose any evidence and that it had used the tactic of fronting Shannon’s drug use where

defendant planned to introduce the issue at trial. The court did not specifically address the improper

admission of other-crimes evidence argument. The court then sentenced defendant to 22 years’

imprisonment for attempted murder and 3 years for unlawful restraint.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 On appeal, defendant argues (1) defense counsel provided ineffective assistance by

pursuing an unreasonable trial strategy, (2) he was denied a fair trial where the State improperly

introduced previously undisclosed evidence of uncharged criminal acts and the trial court failed to

exclude or mitigate that evidence, and (3) the cumulative effect of numerous errors in these

proceedings denied him the right to a fair trial. We only address defendant’s argument in relation

to the improper admission of other-crimes evidence as we find the issue dispositive.

¶ 24 A. Other-Crimes Evidence

¶ 25 Defendant argues that the State violated its discovery obligations and improperly

presented evidence that he engaged in the possession and delivery of a controlled substance

constituting improper admission of other-crimes evidence.

-6- ¶ 26 The State argues that defendant “mischaracterizes” how the testimony came into

evidence, the disclosure of the delivery of the controlled substance was not tantamount to

other-crimes evidence as established by statute or caselaw, and the testimony was not related to

defendant’s charges.

¶ 27 Initially, we note that our review of the record shows that defendant raised this issue

only in his posttrial motion and not contemporaneously with the testimony at issue. See People v.

Sebby, 2017 IL 119445, ¶ 48 (“To preserve a purported error for consideration by a reviewing

court, a defendant must object to the error at trial and raise the error in a posttrial motion.”).

Defendant’s specific objection during trial was that the State violated its discovery responsibilities

under Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) and the failure to disclose knowledge

of Shannon’s drug use was a violation under Brady. See People v. Washington, 23 Ill. 2d 546, 548

(1962) (“An objection to evidence, based upon a specific ground is a waiver of objection on all

grounds not specified.”). The posttrial motion renews the arguments that the State violated its

discovery obligations and adds the argument that the conduct of defendant introduced into

evidence was a “bad act,” and the evidentiary rule concerning other-crimes evidence is mentioned

in the supporting memorandum.

¶ 28 However, the State surprisingly fails to argue that defendant forfeited this claim,

and it is well established that the State can forfeit forfeiture. People v. De La Paz, 204 Ill. 2d 426,

433 (2003); People v. Bahena, 2020 IL App (1st) 180197, ¶ 29 (collecting cases); People v.

Skillom, 2017 IL App (2d) 150681, ¶ 24. Accordingly, by failing to argue defendant’s forfeiture,

the State has itself forfeited that argument. We will, therefore, consider the merits of the issue

presented.

-7- ¶ 29 Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011) provides that, subject to certain

exceptions,

“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith ***.

Such evidence may also be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” (Emphasis added.)

“Evidence of crimes for which a defendant is not on trial is inadmissible if relevant merely to

establish his propensity to commit crime. [Citations.] Such evidence overpersuades the jury, which

might convict the defendant only because it feels he is a bad person deserving punishment.” People

v. Thingvold, 145 Ill. 2d 441, 452 (1991). The admissibility of other-crimes evidence is a matter

left to the sound discretion of the trial court and will not be disturbed absent an abuse of that

discretion. People v. Pikes, 2013 IL 115171, ¶ 12.

¶ 30 Initially, we find the State’s main contention that the possession and delivery of

meth by defendant did not constitute other-crimes evidence unavailing. The possession and

delivery of meth are both criminal offenses. See 720 ILCS 646/55(a)(1), 60(a) (West 2018).

Furthermore, Rule of Evidence 404(b) references not only charged crimes, but also evidence of

other wrongs or acts. We are also unconvinced by the argument that the testimony relating to

defendant’s possession and delivery of meth is mitigated by the lack of relevance to the charges

faced at trial. On the contrary, this shows its overwhelmingly prejudicial nature as, “ ‘Evidence of

another crime [ ] may be used only when the other crime has some threshold similarity to the crime

charged. It is this similarity which increases the relevance of the evidence and ensures that it is not

-8- being used solely to establish the defendant’s criminal propensities.’ ” People v. Smith, 2019 IL

App (4th) 160641, ¶ 59 (quoting People v. Bartall, 98 Ill. 2d 294, 310 (1983)).

¶ 31 We further find disingenuous the State’s argument the testimony was not

intentionally elicited and was only introduced to the jury by happenstance. We do not fault the

State for attempting to front the substance abuse of its key witness in this case, as doing so is a

legitimate trial strategy. However, that goal was accomplished when Shannon admitted to taking

meth to stay awake when traveling from work to defendant’s home. Where the situation becomes

suspect is in the State’s follow-up question regarding the source of the drug. It is difficult to see

this as an innocent follow-up question asked without knowledge of the loaded answer. The State

never thought to ask the date the drug was acquired, the quantity received, the price paid, or a host

of other details, and there is, of course, no reason it would have had any interest in such

irrelevancies. Did the State just happen to ask the one follow-up question which would prejudice

defendant: What was the source of the drug? The record strongly suggests that, although the State

decided to take its lumps by fronting the substance abuse of its key witness, it did so in a manner

intended to do damage to the defendant as well.

¶ 32 We have little difficulty in concluding that the eliciting of this other-crimes

evidence was improper because of both its substance and the State’s failure to disclose in advance

its intention to offer it as required by Rule 404(c). Generally, the erroneous admission of

other-crimes evidence carries a high risk of prejudice and ordinarily calls for the reversal of a

criminal conviction. See People v. Cortes, 181 Ill. 2d 249, 285 (1998).

¶ 33 Having found the admission of testimony that defendant possessed and delivered

meth to Shannon was improper, this is the point in our analysis where we would normally address

a harmless error argument from the State. The Illinois Supreme Court has repeatedly held “that the

-9- improper introduction of other-crimes evidence is harmless error when a defendant is neither

prejudiced nor denied a fair trial based upon its admission.” People v. Nieves, 193 Ill. 2d 513, 530

(2000) (collecting cases). “To establish that any error was harmless, the State must prove beyond

a reasonable doubt that the result would have been the same absent the error.” People v. Jackson,

2020 IL 124112, ¶ 127. We further note that there was no limiting instruction to the jury on the

use of the testimony that defendant possessed meth with an intent to deliver. Accordingly, the jury

was free to consider the testimony in any manner it saw fit, including propensity, regardless of the

context in which it was presented. Gregory, 2016 IL App (2d) 140294, ¶ 30.

¶ 34 Remarkably, the State does not argue that admission of this testimony was harmless

error. Defendant in his reply brief acknowledges this misstep by the State and asks that we honor

the State’s forfeiture. The rules of forfeiture in criminal proceedings equally apply to both the

defendant and the State. People v. Artis, 232 Ill. 2d 156, 178 (2009). We agree with defendant that

the State has forfeited any harmless error argument. See People v. Gregory, 2016 IL App (2d)

140294, ¶ 29 (citing People v. Ceja, 381 Ill. App. 3d 178, 183 (2008); Ill. S. Ct. R. 612(b)(9) (eff.

July 1, 2017) (applying Rule 341 to criminal appeals); Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020)

(“Points not argued are forfeited.”).

¶ 35 Finding that we must reverse and remand for a new trial based on defendant’s

other-crimes evidence argument, we need not address the remaining arguments raised on appeal.

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we reverse the trial court’s judgment.

¶ 38 Reversed and remanded.

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