2020 IL App (1st) 181662-U SIXTH DIVISION AUGUST 7, 2020
No. 1-18-1662
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 8101 ) MALCOLM TERRY, ) Honorable ) Michael McHale, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Mikva and Justice Connors concurred in the judgment.
ORDER
¶1 Held: The trial court did not err during the defendant’s trial and so the defendant’s conviction for first degree murder is affirmed.
¶2 Following a jury trial in the circuit court of Cook County, the defendant-appellant,
Malcolm Terry, was convicted of first degree murder and sentenced to 50 years’ imprisonment.
The defendant now appeals and raises numerous allegations of error by the trial court. For the
following reasons, we affirm the judgment of the circuit court of Cook County. 1-18-1662
¶3 BACKGROUND
¶4 The defendant was charged with the first degree murder of William Thomas. His three co-
defendants, Aramis McKinzie, Garlin Minor, and Akeem Simmons, were also charged with first
degree murder. The defendant was tried in separate but simultaneous jury trials with co-defendant
Simmons and the following evidence was presented.
¶5 Tanya Thomas testified that her 74-year-old father, William Thomas, lived near 68th Street
and East End Avenue in Chicago. On October 12, 2012, she was notified that her father had been
shot and killed while sitting outside near his home.
¶6 Theresa Randle testified that, on October 12, 2012, she walked to a store near 68th Street
and Stony Island Avenue. When she exited the store, she saw five men walking across the street,
including the defendant, whom she recognized from the neighborhood. She testified that the
defendant’s hairstyle that day was chin-length dreads with blond tips.
¶7 Some of the men broke off from the group and continued walking down 68th Street toward
East End Avenue, while others remained behind and near an alley. Ms. Randle stood near the
group that remained near the alley, which included the defendant. She asked him what was
happening, to which he replied, “It’s all good.”
¶8 Ms. Randle saw the two groups of men make hand gestures to each other. She then heard
several gun shots. The group that had walked away suddenly ran back toward the alley where the
other men and Ms. Randle were standing. Once the entire group of five men were together again,
they all ran away in the opposite direction. Ms. Randle continued walking in the direction of East
End Avenue, the direction from which the group of men had come. She saw an “old man laying
on the ground.” Ms. Randle spoke with police at the scene and again later that same day when a
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detective came to her home.
¶9 A few days after the shooting, on October 18, 2012, Detective Robert Garza came to Ms.
Randle’s home and showed her a photo array. She did not identify anyone from the photo array.
On October 23, 2012, Detective Garza returned to Ms. Randle’s home with more photo arrays.
She identified the defendant in the photo array as the man who had remained near the alley with
the second group and who had talked to her just before the shooting. On March 1, 2013, Ms. Randle
viewed two lineups and another photo array at the police station but did not identify anyone. On
March 23, 2013, she viewed another lineup and identified the defendant as one of the men who
had stayed near the alley just before the shooting. She also identified him as the person who had
told her, “It’s all good.”
¶ 10 The State asked Ms. Randle if there was a traffic light near 68th Street and Stony Island
Avenue where she had been standing with the defendant and other men who remained near the
alley. She testified that there was not a traffic light there and that she never told anyone that there
was one. On cross-examination, defense counsel attempted to impeach Ms. Randle on the basis
that she had testified before the grand jury that there was a traffic light near 68th Street and Stony
Island Avenue, as well as on the basis that the person she identified in the photo array as the
defendant did not have blond tips in his hair. The State objected numerous times during defense
counsel’s attempt to impeach Ms. Randle. The trial court sustained all of the State’s objections,
“as to form.”
¶ 11 Defense counsel continued trying to impeach Ms. Randle and eventually the trial court
ordered a sidebar outside the presence of the jury. The following colloquy ensued:
“[THE STATE]: Judge, I’m going to object because
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[defense counsel]’s not laying the proper foundation.
THE COURT: Yeah. If you’re trying to do some
impeachment, you’re really not doing it the right way, [defense
counsel].
[DEFENSE COUNSEL]: All right. I’ll go further.
THE COURT: You can’t just ask her blanket questions, Did
you say this, or Did you say that? If there’s something to impeach
her with, get to it.
[DEFENSE COUNSEL]: Okay.
THE COURT: You’ve got to lay the proper foundation.”
¶ 12 The trial then continued in the presence of the jury. Defense counsel asked Ms. Randle:
“On *** October 12[ ], 2012, did you tell Detective Garza or the other detective with him that the
person that you claim to have identified had blond tips at the time?” The State objected and the
trial court called another sidebar outside the presence of the jury. During the sidebar, the trial court
told defense counsel: “I don’t know where you’re going. There is no impeachment by omission,
so stop it.”
¶ 13 Defense counsel continued questioning Ms. Randle in the presence of the jury. When he
attempted to impeach her again about the blond tips issue, the State objected a few times. The trial
court again sustained the objections “as to form.” The trial court finally called a third sidebar
outside the presence of the jury. During that sidebar, the court told defense counsel, how to lay a
proper foundation. Back in the presence of the jury, defense counsel concluded cross-examining
Ms. Randle.
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¶ 14 The State then called co-defendant Simmons to testify. Simmons, along with the other two
co-defendants, McKenzie and Minor, had been given use immunity for the defendant’s case. 1
After Simmons was sworn in, the following exchange occurred:
“[THE STATE]: Sir, I’m going to ask you a couple of
questions about yourself. All right? Can you please state your name
for the record?
[SIMMONS]: (No response.)
THE COURT: Answer the question, Mr. Simmons.
[THE STATE]: All right, sir. I’m going to ask you about a
couple other things. You’re in Cook County Jail now, right?
THE COURT: Mr. Simmons, I’m ordering you to answer the
question.
THE STATE: You’re standing trial today in this case, is that
correct, with a different jury?
[THE STATE]: I want to talk to you about the date of
February 28, 2013, just about 2:00 o’clock in the morning. You were
arrested that day for this case; is that correct?
1 When a witness has use immunity, his testimony is compelled and may not be used against him in his own prosecution. People v. Hamm, 136 Ill. App. 3d 11, 22 (1985). Witnesses given use immunity do not have fifth amendment privileges. See People v. Zambrano, 2016 IL App (3d) 140178, ¶ 24.
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THE COURT: Okay, I think that’s as far as we’re going to
go.”
At that point, the jury was removed from the courtroom. The trial court asked Simmons if he had
“any intention of answering the questions,” to which Simmons answered, “No.” The trial court
then held Simmons in contempt of court.
¶ 15 Co-defendant McKinzie was sworn in next and the following colloquy took place:
“[THE STATE]: Sir, in a loud voice, can you state your
name and spell your first and last name?
[MCKINZIE]: (No response.)
[THE STATE]: Are you Aramis McKinzie?
THE COURT: Answer the question, sir.
[THE STATE]: Are you currently in Cook County Jail?
[THE COURT]: You are ordered to answer the question, sir.
[THE STATE]: How old are you?
[THE STATE]: Are you charged along with Malcolm Terry
and Akeem Simmons in this murder?
[MCKINZIE]: (No response.)”
The jury was then removed from the courtroom. After a discussion off the record, the trial court
asked McKinzie if he understood that he did not have a right under the fifth amendment to refuse
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to testify, to which McKinzie answered, “Yes.” The trial court explained to McKinzie that it was
going to hold him in contempt if he refused to testify. McKinzie stated that he understood but he
still refused to testify. The trial court held him in contempt of court.
¶ 16 Next, co-defendant Minor was called as a witness. Before being sworn in and outside the
presence of the jury, the trial court asked Minor if he understood that, because of his use immunity,
he did not have a fifth amendment right and that anything he said on the stand could not be used
against him in his case. Minor stated that he understood. The trial court also asked Minor if he
understood that, if he refused to testify, he could be held in contempt of court and sentenced. Minor
again stated that he understood. The jury was then brought into the courtroom. When Minor was
called to testify, he refused to be sworn in. Later, outside the presence of the jury, Minor was held
in contempt of court.
¶ 17 The parties stipulated that Dr. Ponni Arunkumar, an assistant examiner in the Cook County
Medical Examiner’s Office, conducted an autopsy on the victim, Mr. Thomas. The external
examination revealed a gunshot entrance wound to the back of Mr. Thomas’ head. There was no
evidence of close-range firing.
¶ 18 The State then introduced a stipulation that co-defendant Simmons had a tattoo of the
words “Hood Gang” on the right side of his neck. The defendant objected to the tattoo stipulation,
stating that he thought the tattoo evidence would only be introduced in front of Simmons’ jury,
and not the defendant’s jury, as it had “zero relevance” to the defendant’s case. The State
responded that the tattoo was evidence of gang membership. The State explained that Simmons’
gang tattoo was relevant to the defendant’s case since this was an accountability case and the
State’s theory was that the defendant and his co-defendants killed Mr. Thomas during a gang-
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retaliation shooting. The trial court stated: “It’s circumstantial evidence. It’s an accountability case.
So if you don’t want to stipulate, the State will call the witnesses, and that’s my ruling.” The court
then allowed the stipulation evidence of Simmons’ tattoo.
¶ 19 The State requested a three-day continuance to investigate why the three co-defendants
refused to testify and to give them a chance to reconsider. Over the defendant’s objection, the trial
court granted the three-day continuance.
¶ 20 Following the three-day continuance, the State filed a motion to admit evidence of prior
statements pursuant to the doctrine of forfeiture by wrongdoing. 2 The motion sought to introduce
videotaped statements that all three co-defendants gave to the police. In the videotaped statements,
the co-defendants all admitted to inadvertently killing Mr. Thomas when they went to shoot rival
gang members as retaliation for one of their gang members being beat up earlier that day. In each
videotaped statement, the co-defendants implicated the defendant’s involvement, including that he
provided the gun used in the shooting.
¶ 21 The motion argued that the trial court should admit the videotaped statements into evidence
pursuant to the doctrine of forfeiture by wrongdoing because it was clear that the defendant’s
“coordination, knowledge, and intent” rendered his three co-defendants unavailable to testify. The
motion explained that an officer had searched the defendant’s cell and discovered four “kites,” jail
terminology for small pieces of paper containing information passed between inmates. Copies of
the kites were attached to the motion. Three of the kites were written to the defendant’s nickname
from co-defendant Simmons’ nickname. In the first kite, Simmons asked the defendant for drugs
2 Forfeiture by wrongdoing is a hearsay exception that allows a statement offered against a party when that party “has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Illinois Rule of Evidence 804(b)(5) (eff. Jan. 1, 2011).
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and telephone time, and repeatedly told the defendant that he loved him. In the second kite,
Simmons told the defendant that he loved him after receiving his “scribe and those drugs.”
Simmons also referenced “Bam,” the nickname of a person referenced in discovery as one of the
defendant’s associates. In the third kite, Simmons told the defendant to stop talking to Bam and
other inmates about their case because “that’s shit for us to discuss.”
¶ 22 The fourth kite found in the defendant’s cell was written in a different handwriting than
the other three kites. That kite stated that some negotiations were going on between the State, a
person named “A,” and the author of the kite. The State’s motion alleged that the message in the
kite accurately reflected negotiations between the State and co-defendants Aramis McKenzie and
Garlin Minor. The fourth kite ended with:
“but I don’t know about A.M. G I know he [is] not ready for
that shit. I’m not going to do shit in to [sic] I here [sic] from you
[first] and let me know what you think I should or not. Get back at
me A.S.A.P. and don’t forget when you do go home don’t forget to
come back in stand on that business for us. Low City Hood Gang
3L’Z.”
¶ 23 The motion further stated that another kite had been found in co-defendant Minor’s cell,
which read: “On advice of counsel, I hereby exert my right to remain silent under the 5th
Amendment to the U.S. Constitution in Article I section 10 of the Illinois Constitution.”
¶ 24 Two days later, the State filed a supplemental motion to admit evidence of prior statements.
The supplemental motion detailed several recorded telephone calls that the defendant had made
from jail. In one of the telephone calls, the defendant said:
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“From what my co-defendants told me, they think they’re
trying to trick them and they have no intention of incriminating
themselves. They’ve already turned down their deals; they don’t
want anything to do with this case. They trying to trick them so
they trying to trick me.”
In another telephone call, the defendant said:
“My co-defendants signed the papers to take the charge so
they wouldn’t have to take the stand and lie on me. It would have
been a really good time for [my attorney] to come so we can go to
trial and get this over with.”
The supplemental motion argued that, “In the defendant’s jail calls, he repeatedly demonstrates
his knowledge that his co[-]defendants will not testify against him.” The State averred that,
coupled with the kites, the recorded telephone calls showed that the defendant had coordinated
with his three co-defendants to have them “remain[ ] completely mute” for his benefit.
¶ 25 Following a hearing on the State’s motion to admit evidence of prior statements, the trial
court granted the motion. The trial court found that the first three kites were clearly written from
co-defendant Simmons to the defendant, and showed that the defendant “routinely sends Mr.
Simmons drugs and phone time, both things that have obvious value, if not an outright bribe, it
certainly is a powerful circumstantial evidence inducing him to [not] testify.” The trial court further
found that the fourth kite discovered in the defendant’s cell was from co-defendant Minor, which
showed that the co-defendants were taking directions from the defendant and they were trying to
help the defendant “beat[ ] this case.” Additionally, the trial court found that the recorded telephone
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calls the defendant made from jail “certainly make it clear that he knew well in advance of trial
that the three co-defendants were not going to testify, which corroborates the notes found in his
cell.” The trial court ultimately held that it was “certainly more likely than not” that the defendant
procured or acquiesced in the unavailability of the three co-defendants as witnesses.
¶ 26 The trial then resumed. The trial court asked the three co-defendants if they had changed
their minds and were willing to testify in the defendant’s case. They all said no.
¶ 27 Sergeant Velma Guerrero testified that she interviewed co-defendant McKinzie at the
police station on February 28 and March 1, 2013. Sergeant Guerrero identified the videotaped
recording of McKinzie’s interview, as well as the transcription of the recording. Detective Scott
Reiff testified that he interviewed co-defendant Simmons at the police station on February 28 and
March 1, 2013. Detective Reiff identified the videotaped recording of Simmons’ interview, as well
as the transcription of the recording. Detective Garza testified that he also interviewed co-
defendants McKinzie and Simmons, and identified the recordings and transcriptions. 3 The State
submitted the videotaped statements and transcriptions for admission into evidence. Published
clips were played for the jury, in which the three co-defendants admitted that the victim, Mr.
Thomas, was killed during their gang-retaliation shooting and their statements implicated the
defendant in the shooting. 4
¶ 28 The State then rested. The defendant’s motion for a directed verdict was denied.
¶ 29 Kenneth Webb, president of Fact Finders Group investigative agency, testified on behalf
of the defendant. He was hired by defense counsel to conduct an investigation into the shooting of
3 Although co-defendant Minor also had a videotaped statement and transcription which was admitted into evidence, the record reflects that no one testified as to interviewing him. 4 The videotaped statements and transcriptions are not included in the record on appeal. However, the parties do not dispute the contents of the videotaped statements.
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Mr. Thomas. As part of his investigation, several of his investigators interviewed Ms. Randle. He
also went to the intersection of 68th Street and Stony Island Avenue several times and never saw
a traffic light there.
¶ 30 The defendant rested and the parties made their closing arguments. The jury deliberated
and found the defendant guilty of first degree murder.
¶ 31 Following the verdict, the trial court allowed defense counsel to withdraw as the
defendant’s counsel and allowed new counsel to file an appearance on the defendant’s behalf.
¶ 32 On April 18, 2018, co-defendant Simmons filed a motion for substitution of judge and the
defendant joined the motion. The motion attached an affidavit from Leah Thigpen, the defendant’s
aunt. In her affidavit, Ms. Thigpen testified that, on August 22, 2017, she was sitting in court prior
to jury selection for the defendant’s trial. None of the defendants or their attorneys were in the
courtroom. Assistant State’s Attorney (ASA) Martin approached the judge’s bench and began
having a conversation with the trial judge. Ms. Thigpen overheard some of their conversation,
including the trial judge saying: “this code of silence bullshit I’m sick of it,” “this won’t matter at
sentencing,” “20,” and “I don’t believe him either.” Her affidavit stated it was clear that the trial
judge and ASA Martin were talking about the defendant and his case.
¶ 33 Ms. Thigpen’s affidavit further testified that later in the day on August 22, 2017, still prior
to jury selection, the venire left for lunch. The State then informed the trial court that a family
member of the defendant was in the gallery. The trial court called Ms. Thigpen up and asked her
about her relationship to the defendant. The court then told her that she could stay, but to not have
any contact with the potential jurors. Ms. Thigpen decided it was best to leave for the jury selection.
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¶ 34 A hearing was held on the defendant’s motion for substitution of judge, with a different
judge presiding. During the hearing, Ms. Thigpen testified to the contents of her affidavit. On
cross-examination, she acknowledged that during the conversation she overheard the trial judge
having with ASA Martin, she never heard a specific reference to the defendant or any of his co-
defendants.
¶ 35 ASA Martin testified that he did not have any recollection of the ex parte conversation
alleged by Ms. Thigpen. He testified that it was likely she overheard him talking to the trial judge
about scheduling or about when co-defendant Simmons was taken to the hospital.
¶ 36 Following arguments, the substitution-motion judge ruled that, considering the totality of
the circumstances, there was insufficient evidence to show that the trial judge presiding over the
defendant’s case was biased against the defendant. The substitution-motion judge denied the
defendant’s motion, and the case was transferred back to the original trial judge.
¶ 37 Back in front of the original trial judge, the defendant filed a motion for a new trial. His
motion for a new trial incorporated his arguments from his motion for substitution of judge and
attached Ms. Thigpen’s affidavit. His motion argued that there was at least the appearance of
impropriety and so he should be granted a new trial. His motion further argued that his co-
defendants were improperly questioned in front of the jury and that he had been unfit to stand trial
because his psychotropic medicine was discontinued the first day of trial, causing him to suffer
psychotic effects.
¶ 38 In response, the State called Dr. Jonathan Howard, the correctional psychiatrist who treated
the defendant during his trial. Dr. Howard ultimately diagnosed the defendant with a mood
disorder that generally would not render a person unfit to stand trial. He testified that the defendant
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did not suffer from bipolar disorder, even though he had previously been diagnosed with it. Two
other doctors also interviewed the defendant and diagnosed him with a mood disorder. Dr. Howard
prescribed Depakote, an anticonvulsant used to treat bipolar disorder, and Trazodone, an
antidepressant, for the defendant’s mood disorder.
¶ 39 On June 12, 2013, about two months prior to the defendant’s trial, the defendant met with
another doctor and refused consent for Depakote, so the medication was discontinued. Instead, the
defendant specifically requested Gabapentin, another anticonvulsant. Dr. Howard explained that
Gabapentin is highly sought after by inmates and there is a concern for abuse of it in the jail setting,
whereas there is no concern for abuse of Depakote because it does not give a sense of euphoria
when it is abused. Another doctor prescribed Venlafaxine, an antidepressant, to the defendant on
a temporary basis for 3 to 6 months at a time, even though there is also a concern for abuse with
that drug. The defendant continued to request Gabapentin and threatened to sue if it was not
prescribed.
¶ 40 Dr. Howard further testified to specific drug-seeking behavior by the defendant, such as:
complaining about not getting Venlafaxine; asking for a maximum dose of Benadryl, which also
has a high concern of abuse in jail; and threatening to kill himself if he was not prescribed
Gabapentin.
¶ 41 The month before the defendant’s trial, he refused to take Venlafaxine and continued to
refuse it throughout the trial. During the trial, the defendant received Gabapentin, as well as
Mirtazapine, an antidepressant which helps with sleep. Dr. Howard explained that withdrawal
symptoms from the discontinuation of Venlafaxine may include headaches, sweating, sleep
disturbances, mild tremors, tingling in the neck, and increased anxiety. He further testified that
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those symptoms would have been mitigated in the defendant, by the Gabapentin and Mirtazapine
which he was also taking.
¶ 42 On cross-examination, Dr. Howard testified that Venlafaxine discontinuation symptoms
can start anywhere from six hours to two days after a missed dose. Dr. Howard stated that the
effects of discontinuation syndrome are quite varied among patients, but could be so severe that it
could affect fitness to stand trial.
¶ 43 Nurse Kaminski, a nurse at Cook County Jail, testified that her duties include administering
medications to inmates. She testified that there were two instances where she made a note that the
defendant was hoarding Gabapentin and Venlafaxine.
¶ 44 Deputy Esther Jones testified that she was assigned to the courtroom for the defendant’s
case. One day, prior to trial, she saw the defendant and co-defendant McKinzie run into each other
in the lock-up and pass something between them. Deputy Jones did not see what was passed, but
McKinzie took the item and stuffed it into his jumpsuit. Video surveillance showed that McKinzie
was patted down over his clothes, but that nothing was recovered.
¶ 45 Joseph Danzel testified that he is employed by the Cook County Sheriff’s Office as a court
liaison. One day he was called to the courtroom in which a matter related to the defendant’s case
was being heard. He spoke with a female deputy, as well as the defendant. Thereafter, Danzel
recovered two pills wrapped in a piece of paper from within the grated door of the lock-up. The
defendant claimed it was his medication, but Danzel testified that inmates are not allowed to carry
medication. The pills recovered were Gabapentin and Venlafaxine.
¶ 46 Following arguments on the defendant’s motion for a new trial, the trial court rejected the
defendant’s allegations in the motion, except for the issue of his fitness to stand trial. Regarding
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the allegation of ex parte communication with ASA Martin, the trial court noted that Ms. Thigpen’s
affidavit came one month after her observations and the guilty verdict. The trial court further noted
that because Thigpen is a family member of the defendant, “that does inherently include some
degree of bias and lack of credibility based on that relationship.” The trial court stated that Ms.
Thigpen “acknowledges she [was] only hearing snippets of conversation, at best” and that “those
snippets, they don’t appear to be logically tied together at all.” The trial court stated that it did not
recall making any comments about the “code of silence,” but even if it had, the comments did not
demonstrate bias standing alone.
¶ 47 While the trial court stated that, based on the five years it had been observing the defendant,
it had “no bona fide doubt of his fitness, none whatsoever,” it nonetheless ordered a retrospective
fitness to stand trial evaluation “out of an abundance of caution.”
¶ 48 Dr. Nishad Nadkarni, a forensic psychiatrist at Cook County Forensic Clinical Services,
testified that he was asked to complete a retroactive fitness evaluation of the defendant for the time
of trial. This included reviewing the defendant’s medical records and the transcripts from the trial.
Dr. Nadkarni also attempted to interview the defendant, but the defendant was uncooperative and
verbally combative. Based on his review of all the data and his personal contact with the defendant,
Dr. Nadkarni found no signs or symptoms of a bona fide major mental illness, cognitive
impairment, or any kind of medical issues related to the administration or withdrawal of any
psychotropic medication. He testified that while there was no evidence that the defendant had been
unfit to stand trial, he was unable to render an opinion; due, in part, because he was unable to
complete his evaluation interview with the defendant.
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¶ 49 The defendant testified that he was not trying to be difficult during his interview with Dr.
Nadkarni, but that he had been confused. He stated that he would cooperate with another evaluation
interview if the trial court ordered it. The defendant further testified that he did not understand the
trial. During the trial, he was soaking wet from sweating, did not sleep, had nightmares, vomited,
had diarrhea, and needed bathroom breaks but did not get them. He did not remember much about
the trial. He had wanted to testify during it, but he “wasn’t in a position to” and “wouldn’t have
been able to articulate” well.
¶ 50 During arguments on the defendant’s motion for a new trial, defense counsel requested
another fitness evaluation since Dr. Nadkarni could not render an opinion regarding the
defendant’s fitness. The trial court denied the defendant’s request for another fitness evaluation,
stating that the defendant’s testimony was “self-serving and incredible.” The trial court explained
that the “defendant is presumed fit” and that he had failed to meet his burden of showing a bona
fide doubt of his fitness. The trial court denied the motion for a new trial.
¶ 51 The defendant was subsequently sentenced to 50 years’ imprisonment. This appeal
followed.
¶ 52 ANALYSIS
¶ 53 We note that we have jurisdiction to review the trial court’s judgment, as the defendant
filed a timely notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).
¶ 54 The defendant makes numerous, overlapping arguments on appeal, mainly contending that
he received an unfair trial. His arguments amount to the following issues: (1) whether an
appearance of impropriety existed in the trial because of the trial judge’s alleged ex parte
communication; (2) whether the trial judge made improper comments that prejudiced the
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defendant during the court’s rulings on objections; (3) whether the trial court erred in allowing the
State to admit evidence of co-defendant Simmons’ gang tattoo; (4) whether the trial court erred in
allowing the three co-defendants to be questioned in front of the jury; (5) whether the State’s
continued questioning of the three co-defendants violated the confrontation clause; (6) whether the
defendant was denied his sixth amendment right to confront witnesses when the trial court allowed
the State to introduce videotaped statements of his three co-defendants; and (7) whether the trial
court erred in denying the defendant’s motion for a new trial on the basis that he was unfit to stand
trial. We take each issue in turn.
¶ 55 The defendant first argues that the trial judge engaged in an inappropriate ex parte
communication with the State when the defendant’s aunt, Leah Thigpen, overheard the judge
saying: “this code of silence bullshit I’m sick of it,” “this won’t matter at sentencing,” “20,” and
“I don’t believe him either.” He claims that, at the very least, this gave the appearance of
impropriety which warrants a new trial. 5 6
¶ 56 A trial judge must avoid both impropriety and the appearance of impropriety. People v.
Taylor, 288 Ill. App. 3d 21, 27 (1997). Supreme Court Rule 62(A) provides that a “judge should
respect and comply with the law and should conduct himself or herself at all times in a manner
that promotes public confidence in the integrity and impartiality of the judiciary.” Ill. S. Ct. Rule
62(A), canon 2 (eff. Oct. 15, 1993). Pursuant to Rule 63(A)(5), “a judge shall not initiate, permit,
5 We note that, while the defendant raised this alleged ex parte communication in his motion for substitution of judge, he does not challenge the judgement entered on that motion. 6 The defendant also argues that the trial court engaged in a second inappropriate ex parte communication when the State emailed its supplemental motion to admit evidence of prior statements to the trial court and defense counsel, and the trial court responded to the email that it had “listened to the recordings” of the telephone calls and that “the summary [by the State] appears to be accurate.” However, the defendant has raised this argument for the first time on appeal, and it is therefore forfeited. People v. Cherry, 2016 IL 118728, ¶ 30. We note, nonetheless, that this argument is meritless.
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or consider ex parte communications, or consider other communications made to the judge outside
the presence of the parties concerning a pending or impending proceeding,” except for scheduling
and other administrative purposes. Ill. S. Ct. Rule 63(A)(5), canon 3 (eff. Feb. 2, 2017). When
determining whether an appearance of impropriety exists with respect to a judgment entered by
the trial court, a reviewing court must ask whether an objective observer could reasonably believe
that the judgment was improperly influenced by matters that should not have been considered. See
In re Marriage of Wheatley, 297 Ill. App. 3d 854, 857 (1998).
¶ 57 The only evidence in support of the defendant’s argument that there was an appearance of
impropriety is Ms. Thigpen’s affidavit. Not only is she a relative of the defendant, but she also
waited until after the guilty verdict -- over a month after her alleged observations -- to produce an
affidavit. This weighs against the credibility of the statements in her affidavit. Further, the
defendant’s assertion that the trial judge was talking about his case, and doing so in a way that
showed bias, is purely speculative. Ms. Thigpen’s affidavit did not include any identifying
language which indicated that the judge was talking about a specific case, let alone the defendant
or his case. Under these facts and circumstances, it cannot be said that an objective observer could
reasonably believe that the judgment in this case was improperly influenced by matters that should
not have been considered. And while we are not reviewing the judgment denying the defendant’s
motion for substitution of judge, the fact that the motion-substitution judge found no bias or
impropriety based on this alleged ex parte communication weighs heavily in support of our
conclusion. We accordingly reject the defendant’s argument that he is entitled to a new trial
because there was an appearance of impropriety during his trial.
¶ 58 The defendant next argues that the trial judge made improper comments that prejudiced
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him during the court’s rulings on objections. To be clear, the defendant does not argue that the trial
court made improper objection rulings. Instead, he claims that, during defense counsel’s
impeachment of Ms. Randle, the trial judge made rulings on objections accompanied by
commentary which showed bias in favor of the State. The defendant avers that the trial judge acted
as an adversary in the case and chastised defense counsel in front of the jury. The defendant argues
that this prejudiced him.
¶ 59 Every defendant has a constitutional right to a fair trial before an unbiased and open-
minded trier of fact. U.S. Const., amends VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Taylor,
357 Ill. App. 3d 642, 647 (1990). This includes being entitled to a trial that is free from improper
and prejudicial comments from the trial judge. People v. Heidorn, 114 Ill. App. 3d 933, 936 (1983).
“The trial judge has wide discretion in presiding over a trial, but cannot make comments or
insinuations indicating its opinion on the credibility of a witness or the argument of counsel.”
People v. Tatum, 389 Ill. App. 3d 656, 662 (2009). The trial judge must exercise a high degree of
care to avoid influencing the jury in any way. Id. However, even when a trial judge does make
improper comments, those comments will only constitute reversible error if the remarks were
prejudicial. Id.
¶ 60 The defendant takes issue with the trial judge’s comments made during defense counsel’s
impeachment of Ms. Randle. The defendant relies upon People v. Wiggins, 2015 IL App (1st)
133033, in which this court found that the trial court in that case acted as an arbiter for the State
by interposing objections on behalf of the State, sustaining his own objections, and completing the
State’s examination of a witness. In so holding, this court found that the trial court “further
indicated to the jury a preference for the [State]” when it said to defense counsel, “watch yourself,
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man,” and when it referred to the State’s redirect examination of a witness as “what we just did.”
Id. at ¶ 50. The same behavior cannot be said to have occurred in this case. Here, in response to
the objections, the trial judge merely stated, “sustained” or “sustained as to form” and did not add
any additional commentary.
¶ 61 It is clear from reading the transcript that defense counsel was having trouble laying the
proper foundation for impeachment. That was a shortcoming on defense counsel’s part. Simply
because the trial judge sustained all of the State’s objections during that time does not mean that
the trial judge acted as an adversary. The record reveals that the objections were properly sustained.
And while it is not incumbent for a trial judge to go beyond its ruling, the trial judge here did hold
several sidebars in which it explained to defense counsel, how to lay the proper foundation. It is
arguable that during the side bars the trial judge showed some frustration with defense counsel’s
inability to grasp some basic concepts. Nevertheless, judicial frustration in this context with
defense counsel’s unfamiliarity with a basic evidentiary tenet is not evidence of bias. People v.
Lopez, 2012 IL App (1st) 101395, ¶ 97.
¶ 62 More importantly, the sidebars occurred outside the presence of the jury. In support of his
argument, the defendant cites to People v. Lewerenz, 24 Ill. 2d 295 (1962) and People v. Marino,
414 Ill. 445, 451 (1953), cases that found that the trial judge made improper comments which
prejudiced the defendant. Those cases are inapplicable, as they involved comments the trial judge
made in front of the jury. Even assuming arguendo that the trial judge in this case showed
frustration with defense counsel and chastised him, it could not have prejudiced the defendant
because the jury did not see it. Stated another way, none of the trial judge’s comments that the
defendant claims showed bias were made in the presence of the jury, so they could not have had
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an effect on the jury’s verdict. See People v. Jimerson, 404 Ill. App. 3d 621, 629 (2010) (improper
comments or hostility from the trial judge will only rise to reversible error if the defendant can
show that the comment or hostility was a material factor in his conviction). Accordingly, we reject
the defendant’s argument that the trial judge made improper, prejudicial comments.
¶ 63 Next, the defendant argues that the trial court erred in allowing the State to introduce
evidence of co-defendant Simmons’ gang tattoo. Specifically, the defendant claims that Simmons’
gang tattoo was improperly introduced during his trial because it had no relevance to the
defendant’s case when there was no other evidence that the defendant was affiliated with a gang.
¶ 64 “Relevant evidence is ‘evidence having any tendency to make the existence of a fact that
is of consequence to the determination of the action more or less probable than it would be without
the evidence.’ ” People v. Roman, 2013 IL App (1st) 110882, ¶ 23 (quoting People v. Gonzalez,
142 Ill. 2d 481, 487–88 (1991)). This includes any evidence which tends to show that the defendant
had a motive for killing the victim. Id. Generally, evidence that a defendant was involved in gang-
related activities is admissible to show a common purpose or design or to provide a motive. Id., ¶
24. It is the function of the trial court to weigh the probative value of the evidence against the risk
of prejudice and we will not overturn a trial court’s decision on that balancing process absent a
clear abuse of discretion. Id., ¶ 23.
¶ 65 In this case, the State’s theory was that the defendant and his co-defendants inadvertently
shot and killed Mr. Thomas in the process of a retaliation shooting directed at a rival gang. In light
of the State’s theory, evidence of co-defendant Simmons’ gang tattoo is relevant. See People v.
Smith, 141 Ill. 2d 40, 58 (1990) (sufficient proof of evidence indicating that the defendant was
involved in gang-related activity is admissible to show common purpose or design). Moreover, the
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State proceeded on an accountability theory, meaning that the defendant and his co-defendants
were responsible for each other’s actions thereby, rendering Simmons’ gang tattoo even more
relevant. The trial court decided that the probative value of Simmons’ gang tattoo outweighed the
risk of prejudice against the defendant. We do not find that decision to be an abuse of discretion.
¶ 66 Turning to the defendant’s next argument, he claims that the trial court erred in allowing
his three co-defendants to be questioned in front of the jury. He argues that the trial court knew
ahead of time that the three co-defendants intended to remain silent on the witness stand, but still
allowed the State to question them in front of the jury. The defendant asserts that this “invited the
improper inference of a conspiracy” and prejudiced him.
¶ 67 A trial court’s decision to allow a witness to testify is an evidentiary ruling, which we
review using the abuse-of-discretion standard. People v. Calabrese, 398 Ill. App. 3d 98, 124
(2010). An abuse of discretion occurs if the State makes an obvious attempt to build its case out
of inferences arising from the witness’ refusal to testify. Id.
¶ 68 It is improper for a party to call a witness whom he has reason to believe will invoke fifth
amendment privilege before the jury and refuse to testify. People v. Human, 331 Ill. App. 3d 809,
819 (2002). However, there is nothing in the record in this case to indicate that either the State or
the trial court knew beforehand that the three co-defendants were planning to refuse to testify. This
is especially true because the three co-defendants had use immunity and therefore did not have
fifth amendment privileges for purposes of testifying in this case. See Zambrano, 2016 IL App (3d)
140178, ¶ 24 (the State can seek a grant of use immunity for a witness who has refused or is likely
to refuse to testify on the basis of his fifth amendment rights). “Where a grant of immunity is given,
the [State] has the right to demand and expect the witness’ testimony, even under compulsion by
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the court if necessary.” People v. Evans, 2016 IL App (3d) 140120, ¶ 47. Indeed, the trial court
explained to all three co-defendants that they did not have fifth amendment privileges and could
be held in contempt of court, and even gave them multiple chances to testify, but they still refused.
Under these facts and circumstances, it cannot be said that the trial court abused its discretion in
allowing the State to call the three co-defendants as witnesses.
¶ 69 Nonetheless, the defendant next argues that the State’s continued questioning of his co-
defendants violated the confrontation clause. He claims that when the State continued questioning
the co-defendants even though they did not answer, it was akin to the State testifying, which
violated his right to confront the witnesses testifying against him.
¶ 70 Under the confrontation clause of the sixth amendment of the U.S. Constitution, a
defendant being accused has the right to confront witnesses against him. U.S. Const., amend. VI.
The confrontation clause may be violated if the State questions a witness on material issues even
though the witness refuses to testify, as it acts as the equivalent of the State testifying to the
questions being asked. Evans, 2016 IL App (3d) 140120, ¶¶ 51-52 (citing Douglas v. Alabama,
380 U.S. 415 (1965)). We review a defendant’s claim that his rights under the confrontation clause
were violated de novo. Id., ¶ 28.
¶ 71 When the State questioned co-defendants Simmons and McKinzie, 7 it only asked them
preliminary background questions, such as their names and whether they were currently in jail.
The State did not ask them any questions of evidentiary value which would be akin to the State
testifying to the facts of the case. See Evans, 2016 IL App (3d) 140120, ¶ 52 (it is improper for the
State to present a version of the crime to the jury through questioning a witness who refuses to
7 The State did not question co-defendant Minor at all as he refused to be sworn in.
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testify). Accordingly, there was no confrontation clause violation.
¶ 72 The defendant also argues that he was denied his sixth amendment right to confront
witnesses when the trial court allowed the State to introduce videotaped statements of his three co-
defendants. He avers that the State’s motion to admit evidence of prior statements pursuant to the
doctrine of forfeiture by wrongdoing was based on “imagined evidence.” He claims that it was
improper for the trial court to “assume[ ] *** that, since the actions of the [three co-defendants]
appeared to be intended to benefit [the defendant],” the defendant must have told them not to
testify.
¶ 73 The forfeiture by wrongdoing doctrine provides that if a witness is absent by the
defendant’s own wrongful act, the defendant cannot later complain if competent evidence is
admitted to substitute for the witness’ testimony. People v. Hanson, 238 Ill. 2d 74, 96 (2010). The
doctrine is aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe,
and kill witnesses against them. People v. Perkins, 2018 IL App (1st) 133981, ¶ 81 (quoting Giles
v. California, 554 U.S. 353, 374 (2008)). It is grounded in the ability of courts to protect the
integrity of judicial proceedings. Id. The forfeiture by wrongdoing doctrine serves as an exception
to the hearsay rule and also extinguishes confrontation clause claims. Hanson, 238 Ill. 2d at 96
(citing Crawford v. Washington, 541 U.S. 36, 62 (2004)). See also People v. Nixon, 2016 IL App
(2d) 130514, ¶ 48 (under the forfeiture by wrongdoing doctrine, a defendant who causes the
absence of a witness by wrongdoing, forfeits the constitutional right to confrontation). When the
State raises the doctrine of forfeiture by wrongdoing, it must prove, by a preponderance of the
evidence, both the wrongdoing and the intent to cause the unavailability of the witness. Id. A trial
court’s ruling to admit evidence pursuant to forfeiture by wrongdoing is an evidentiary ruling and
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it will not be disturbed on appeal absent an abuse of discretion. Id., ¶ 50.
¶ 74 We find that the State met its burden in this case by a preponderance of the evidence
showing a concerted, collaborative effort by the defendant to keep his three co-defendants from
testifying against him. The kites found in the jail cells reflected negotiations between the defendant
and his co-defendants. Particularly, three kites found in the defendant’s cell showed that he offered
co-defendant Simmons drugs and telephone time in return for Simmons’ refusal to testify.
Likewise, the other kites showed that the defendant coached co-defendant Minor on refusing to
testify. See People v. Stechly, 225 Ill. 2d 246, 272 (2007) (conduct through which a defendant
seeks to undermine the judicial process and cause a witness to be unavailable will constitute
forfeiture by wrongdoing). Additionally, the recorded telephone calls demonstrated the
defendant’s knowledge that his co-defendants were not going to testify against him and that he
believed it would be a good time for him to go to trial. Considering these facts and circumstances,
it was reasonable for the trial court to hold that it was “certainly more likely than not” that the
defendant caused or acquiesced in the unavailability of the three co-defendants at trial.
Accordingly, it was well within the trial court’s discretion to allow the videotaped statements of
the three co-defendants and there was no violation of the defendant’s rights under the confrontation
clause.
¶ 75 Finally, the defendant argues that the trial court erred when it denied his motion for a new
trial and did not find him unfit to stand trial. He claims that the record shows that he was confused
during the trial and that he displayed symptoms consistent with discontinuing psychotropic
medicine. He points out that Dr. Nadkarni could not complete the evaluation interview and was
therefore unable to render an opinion as to the defendant’s fitness. The defendant accordingly
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claims that he was unfit to stand trial and asks us to remand his case for a new trial, or at the very
least, for a new retroactive fitness evaluation to determine if he was fit to stand trial.
¶ 76 A trial court’s ruling on a motion for new trial will not be reversed on appeal absent an
abuse of discretion. People v. Willmer, 396 Ill. App. 3d 175, 181 (2009). Our review under this
standard involves consideration of whether the trial’s outcome was “supported by the evidence
and whether the losing party was denied a fair trial.” (Internal citations omitted.) People v.
Abdullah, 336 Ill. App. 3d 940, 949–50 (2002) (quoting People v. Dixon, 256 Ill. App. 3d 771, 778
(1993)).
¶ 77 The defendant argues that the trial court abused its discretion in denying his motion for a
new trial on the basis that he was unfit to stand trial. A defendant is presumed fit to stand trial and
is entitled to a fitness hearing only when a bona fide doubt of his fitness is raised. People v.
Stephens, 2012 IL App (1st) 110296, ¶ 90. A defendant is unfit if, because of his mental or physical
condition, he is unable to understand the nature and purpose of the proceedings against him or to
assist in his defense.” 725 ILCS 5/104-10 (2018). A defendant bears the burden of proving there
is a bona fide doubt of fitness. People v. Hanson, 212 Ill. 2d 212, 222 (2004). In determining
whether a bona fide doubt exists, the trial court may consider irrational behavior, demeanor in
court, and any relevant medical opinions. People v. Easley, 192 Ill. 2d 307, 319 (2000).
¶ 78 In this case, even though the trial court did not have a bona fide doubt of the defendant’s
fitness, it nonetheless granted the defendant’s request and ordered a retroactive fitness evaluation
in “an abundance of caution.” Following the evaluation by Dr. Nadkarni, the trial court determined
that no bona fide doubt existed as to the defendant’s fitness. The record on appeal supports that
determination. Nothing in the record indicates that, during the trial, the defendant felt confused or
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disorientated. Dr. Howard testified that the defendant’s mood disorder would not render him unfit
to stand trial. Two other doctors found that the defendant never suffered from bipolar or any
psychotic disorder.
¶ 79 The defendant stresses that his psychotropic medication, Depakote, was discontinued on
the first day of trial. But Dr. Howard testified that the defendant refused consent for Depakote and
instead requested Gabapentin, which has a higher concern for abuse. During his trial, the defendant
was prescribed Venlafaxine on and off for a temporary basis, but Dr. Howard explained that
withdrawal symptoms from the discontinuation of Venlafaxine may include headaches, sweating,
sleep disturbances, mild tremors, tingling in the neck, and increased anxiety; not confusion or
disorientation.
¶ 80 Curiously, the defendant asks for relief in the form of a retroactive fitness evaluation, but
he already received a retroactive fitness evaluation. And the trial court used that evaluation to
determine that there was no bona fide doubt as to the defendant’s fitness. As discussed, there is
nothing in the record which would support finding that the trial court made an improper
determination. In turn, the trial court did not abuse its discretion in denying the defendant’s motion
for a new trial on the basis that he was unfit to stand trial.
¶ 81 CONCLUSION
¶ 82 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 83 Affirmed.
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