People v. Dunbar

JUSTICE WRIGHT delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois, Circuit No. 13-CF-848 The Honorable Walter D. Braud, Judge, Presiding. JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justice Schmidt concurred in the judgment and opinion.
Presiding Justice Carter dissented, with opinion.

OPINION

¶ 1 After a jury trial, defendant, Lavail W. Dunbar, was found guilty of first degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and aggravated battery of a child (720 ILCS 5/12-3.05(b)(1) (West 2012)). Defendant was sentenced on the first degree murder charge only and was sentenced to 30 years in prison. Defendant appeals, arguing that (1) he was not proven guilty of either offense beyond a reasonable doubt, (2) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) when it questioned potential jurors during voir dire, (3) his trial counsel was ineffective for failing to move to redact certain portions of the video recording of defendant's police interview, and (4) the trial court erred in admitting certain hearsay statements of defendant's girlfriend (the victim's mother) under the medical treatment exception to the hearsay rule and in instructing the jury that it could consider those statements as substantive evidence.

¶ 2 I. BACKGROUND

¶ 3 On September 18, 2013, at about 4:13 a.m., police officers were dispatched to an apartment in Rock Island, Illinois, in response to a call of an infant not breathing. Upon arrival at that location, officers saw defendant, the 20-year-old boyfriend of the infant's mother, giving cardiopulmonary resuscitation (CPR) to the infant, J.M., on the living room floor. J.M.'s forehead was swollen and bruised, his eyes were puffy and swollen, and his diaper was full. J.M. was not moving, was unresponsive, and had no pulse. J.M.'s mother, Leila Martin, and at least four other people were present in the apartment at that time. Defendant told the police that he had fed J.M. while Martin was in the bathroom and had put J.M. to bed at about 4 a.m. Defendant was performing CPR incorrectly, so a police officer took over until the paramedics arrived. After efforts to revive J.M. at the scene failed, the paramedics took J.M. and Martin to the hospital by ambulance, and a police officer took defendant to the hospital in a police car. During the car ride, there was no conversation between defendant and the police officer. Defendant seemed calm, did not show any emotion, and did not say a word. ¶ 4 When the ambulance arrived at the hospital, J.M. was in full cardiac arrest, had no pulse, and was not breathing. It was immediately apparent to the emergency room staff members that J.M. had injuries to his head and face. J.M.'s head was swollen, misshapen, and bruised, and his body was pale, gray, and cold. The emergency room staff tried to revive J.M., but they were unable to do so, and J.M. passed away. J.M. was only about four months old at the time. A nurse ¶ 10 During the jury selection process, the trial judge asked the entire panel of potential jurors the Supreme Court Rule 431(b) questions as follows:

"THE COURT: Thank you. Do you understand and accept that a person accused of a crime is presumed to be innocent of the charge against him, that that presumption of innocence stays with the defendant throughout the trial. It is not overcome unless from all the evidence you believe that the State proved his guilt beyond a reasonable doubt. In other words, do you understand this means that the State has the burden of proving the defendant's guilt beyond a reasonable doubt? The defendant does not have to prove his innocence? The defendant does not have to present any evidence on his own behalf? Does everyone agree without reservation to these propositions of law? If so, please raise your hand.
(All jurors raise their hand.)

THE COURT: Thank you. You understand that this means that the defendant does not have to testify if he does not wish to? That if he does not testify you may not use it against him? That if he does testify you will weigh his testimony the same as you would any other witness? If you agree with these propositions of law, please raise your hand.
(All jurors raise their hand.)"

Defendant did not object to the trial court's Rule 431(b) questions. ¶ 11 During its case-in-chief, the State presented the testimony of the police officers who responded to the emergency call, the paramedics who treated J.M., some of the hospital emergency room staff members who treated J.M., the forensic pathologist who conducted the to prove beyond a reasonable doubt that defendant was either accountable for the crime or that he actually committed the crime; and the mere fact that defendant was present in the apartment was not enough evidence to convict defendant. More specifically as to the video recording of the police interview, defense counsel stated:

"They take him down to the police station and leave him there after he has been there, and they use all of their techniques that they can use. They are more educated. They are more experienced. They have read books. They know how to put the person where they do, try the games that they think they can do so that they will try to get information which they believe is true. Listen to that. My client didn't get up in their face. He kept on saying, 'I don't know.' 'I don't know.' They asked him about hypothetical [ sic] and maybe this, but 'I don't know.'
Now, he's—has a tenth-grade education. They tried to break him down. He's not some con artist. He did that because he was being forthright and truthful."

Defense counsel also stated:

"I think you saw the interview. I think you see it completely different than the State. I do. I see someone there that was, for a 20-year-old kid, pretty good. And I do not see that the State has proven its case as they say, that my client stood over the crib and pounded [J.M.'s] head, while [Martin] sat there silently. And [Martin] has never said anything about that."

¶ 20 After closing arguments had concluded and deliberations had taken place, the jury found defendant guilty of both charges. Defendant filed a pro se posttrial motion, alleging ineffective assistance of counsel, which the trial court later denied, after questioning defendant about his claims of ineffective assistance. ¶ 21 Following a sentencing hearing, the trial court sentenced defendant on the first degree murder charge only and sentenced defendant to 30 years in prison. In doing so, the trial court stated, in part:

"And Mr. Dunbar, the State charged you as a—in accountability because you never took accountability. You never stood up and said I did it and neither did Ms. Martin, so they had no choice but to try you as accountability. But it was clear to the jury in the presentation by the State who they thought did it and it's clear to me who did it. I don't have any doubt in my mind."

Defendant appealed without filing any other posttrial motions.

Defense counsel's exact words were: "[The State] [had] to prove beyond a reasonable doubt that [defendant] either abetted—either was accountable or that he actually did it, and they have to prove that beyond a reasonable doubt."

¶ 22 II. ANALYSIS

¶ 23 On appeal, defendant argues that (1) he was not proven guilty of first degree murder and/or aggravated battery of a child, as alleged in the charging instrument, beyond a reasonable doubt, (2) the trial court failed to comply with Supreme Court Rule 431(b) when questioning prospective jurors during voir dire, (3) defense counsel was ineffective for failing to move to redact certain portions of the video recording of defendant's police interview, and (4) the trial court erred by admitting certain hearsay statements of J.M.'s mother under the medical exception to the hearsay rule and by instructing the jury that those statements could be considered by the jury as substantive evidence. Based upon the alleged errors, defendant asks this court to reverse his convictions outright or to reverse the convictions and remand for a new trial.

¶ 24 A. Sufficiency of the Evidence

¶ 25 Defendant contends that the accountability language contained within the State's charging instrument locked the State into proving defendant was "acting for another" during the commission of the first degree murder. Defendant contends the State's evidence did not prove that Martin acted as the principal, or that defendant was accountable for Martin's actions. Consequently, defendant challenges his conviction for first degree murder on the grounds that the State's evidence failed to prove the theory of accountability contained in the charging instrument. ¶ 26 Defendant's argument is founded on a faulty premise. It is well established that "[a]ccountablity is not in and of itself a crime." People v. Stanciel, 153 Ill. 2d 218, 233 (1992). Defendant does not recognize that the inclusion of accountability language in a charging instrument simply puts defendant on notice that the State may attempt to prove his guilt based on a theory of accountability, but such language is not required (recognizing that a charge based on accountability necessarily flows from the principal crime). People v. Ceja, 204 Ill. 2d 332, 361 (2003). The inartful language in the charging instrument in this case did not restrict the State to one approach with respect to proving defendant committed first degree murder, beyond a reasonable doubt. See id. ¶ 27 The defense clearly understood that the State may attempt to establish defendant's guilt for first degree murder as either the principal or the accomplice. The record shows that the defense attacked the State's evidence on both fronts. For example, defense counsel's closing argument included this statement, "[The State] [had] to prove beyond a reasonable doubt that and/or law enforcement, claiming each person heard nothing, saw nothing, and did nothing to J.M. before J.M. stopped breathing. ¶ 29 Defendant argues on appeal that this jury should have found the State's evidence did not prove defendant was accountable for Martin's actions. We agree that it is difficult to ascertain whether a particular juror signed the guilty verdict after finding defendant acted as the principal or acted as an accomplice to the beating, beyond a reasonable doubt. However, the lack of insight into each juror's view of defendant's role in the infant's death, as a principal or accomplice, does not make this case closely balanced. The case law provides that a "jury need only be unanimous with respect to the ultimate question of defendant's guilt or innocence of the crime charged, and unanimity is not required concerning alternate ways in which the crime can be committed." People v. Travis, 170 Ill. App. 3d 873, 890 (1988). ¶ 30 As the court stated in Travis, where the legislature "established a number of different conducts for which defendant can be found guilty of that offense. All that is necessary is that the jury is unanimous that he is guilty of the offense, regardless of their agreement on the underlying conduct." Id. at 892. Consequently, after viewing the evidence in the light most favorable to the State, and drawing reasonable inferences based on the uncontested facts, the State's evidence was more than sufficient to establish defendant's guilt for first degree murder and/or aggravated battery of a child, based on either one of the two alternative theories of guilt, depending upon each individual juror's interpretation of the evidence.

Defendant does not argue that the evidence was insufficient to establish defendant acted as the principal. --------

¶ 31 B. Rule 431(b)/Plain Error

¶ 32 Defendant next contends that the trial court failed to strictly comply with Rule 431(b) while questioning potential jurors during voir dire. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). Specifically, defendant asserts that the trial court failed to ask potential jurors (1) whether they defendant, regardless of the seriousness of the error, or if a clear or obvious error occurred and the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Walker, 232 Ill. 2d 113, 124 (2009); People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); People v. Herron, 215 Ill. 2d 167, 177-79 (2005); Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Under either prong of the plain error doctrine, the burden of persuasion is on the defendant. Walker, 232 Ill. 2d at 124. If the defendant fails to satisfy that burden, the procedural default of the issue must be honored. Id. The first step in any plain error analysis is to determine whether an error occurred. Id. at 124-25. ¶ 36 The supreme court rules are not merely suggestions to be followed by the court and the parties if it is convenient to do so. See People v. Glasper, 234 Ill. 2d 173, 189 (2009). The determination of whether a supreme court rule has been violated is reviewed de novo by the appellate court. See People v. Wilmington, 2013 IL 112938, ¶ 26. ¶ 37 Supreme Court Rule 431(b) provides that:

"The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's decision not to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section." Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 38 Under Rule 431(b), a specific question and response process is mandated. People v. Thompson, 238 Ill. 2d 598, 607 (2010); Wilmington, 2013 IL 112938, ¶ 32. The trial court is required to ask each potential juror whether he or she understands and accepts each of the four principles set forth in Rule 431(b). Thompson, 238 Ill. 2d at 607; Wilmington, 2013 IL 112938, ¶ 32; People v. Belknap, 2014 IL 117094, ¶ 46. "The questioning may be performed either individually or in a group, but the rule requires an opportunity for a response from each prospective juror on their understanding and acceptance of those principles." Thompson, 238 Ill. 2d at 607. "[T]he trial court's failure to ask jurors if they [understand] the four Rule 431(b) principles is error in and of itself." (Emphasis omitted.) Wilmington, 2013 IL 112938, ¶ 32. ¶ 39 In the instant case, based upon the Illinois Supreme Court's decisions in Thompson, Wilmington, and Belknap, we conclude that the trial court committed clear error during voir dire pertaining to defendant's trial. See Thompson, 238 Ill. 2d at 607; Wilmington, 2013 IL 112938, ¶ 32; Belknap, 2014 IL 117094, ¶ 46. The record is clear that the trial court did not ask the potential jurors whether they accepted the second Rule 431(b) principle (that before the defendant could be convicted, the State had to prove the defendant guilty beyond a reasonable doubt), whether they understood and accepted the third Rule 431(b) principle (that the defendant was not required to offer any evidence on his own behalf), and whether they accepted the fourth Rule 431(b) principle (that the defendant's failure to testify could not be held against him). As our supreme court has indicated, the failure to specifically ask jurors whether they both extrinsic evidence that negated Martin's and defendant's contention that the infant's injuries may have been self inflicted. ¶ 46 Recently, our supreme court issued a decision in Sebby, 2017 IL 119445. Like Naylor, the Sebby court was faced with testimony establishing two competing, but equally plausible, versions of events. Id. ¶¶ 61-63. Neither version of the events was corroborated by extrinsic evidence. Id. ¶ 63. The Sebby court emphasized that the evidence in that case must be viewed as closely balanced because the case boiled down to a credibility contest, since neither party's version of events could be characterized as "fanciful." Id. ¶¶ 61, 63. ¶ 47 According to defendant's prearrest statement to law enforcement, neither adult present in the apartment harmed J.M. Taken to its logical extreme, defendant's exculpatory statement to the police suggested that J.M. spontaneously incurred the multiple life-threatening injuries depicted in the photographs. Needless to say, the jury did not receive any extrinsic evidence supporting the defense's theory that spontaneous injuries were even plausible, let alone more plausible than the opinion testimony concerning the cause of death from the State's expert witness. ¶ 48 Applying a common sense evaluation of all of the evidence presented to this particular jury, as we are required to do, the explanation defendant provided to law enforcement was not only contrary to common sense but was utterly preposterous and implausible in light of the extrinsic evidence this jury received. Therefore, the case law defendant urges this court to follow does not apply because this jury did not have two plausible theories to consider, one offered by the State and the other plausible theory offered by the defense. ¶ 49 For these reasons, we conclude this case was not closely balanced and plain error is inapplicable. Therefore, we conclude defendant's forfeiture of the Rule 431(b) deficiencies should be honored.

¶ 50 C. Ineffective Assistance

¶ 51 Next, defendant contends that defense counsel was ineffective for failing to file a motion seeking to redact the portions of defendant's videotaped interview in which meaningful conversation between defendant and the detectives ground to a halt. Defendant correctly asserts that criminal defendants are guaranteed the right to effective assistance of counsel under the United States and Illinois Constitutions. U.S. Const., amends VI, XIV; Ill. Const. 1970, art. I, § 8; Strickland v. Washington, 466 U.S. 668, 687-89 (1984). To show ineffective assistance of counsel, a defendant must show that counsel's performance was so deficient that it was unreasonable and that counsel's deficient performance prejudiced defendant. Strickland, 466 U.S. at 687. Generally speaking, counsel's decision regarding whether or not to file a motion to suppress is "a matter of trial strategy which will be accorded great deference." People v. Wilson, 164 Ill. 2d 436, 454-55 (1994). Here, defense counsel's failure to file a motion to suppress certain portions of defendant's interview did not result in ineffective assistance of counsel because defense counsel's decision was a matter of trial strategy. ¶ 52 During closing arguments, defense counsel referenced the conversations and behaviors that occurred during the contested portions of the videotaped interview. Specifically, defense counsel stated:

"They take him down to the police station and leave him there after he has been there, and they use all of their techniques that they can use. They are more educated. They are more experienced. They have read books. They know how to put the person where they do, try the games that they think they can do so that they will try to get information which they believe is true. Listen to that. My client didn't get up in their face. He kept on

saying, 'I don't know.' 'I don't know.' They asked him about hypothetical [sic] and maybe this, but 'I don't know.'
Now, he's—has a tenth-grade education. They tried to break him down. He's not some con artist. He did that because he was being forthright and truthful."

¶ 53 Defense counsel's comments demonstrate that counsel was using the contested portions of the interview to highlight and disparage law enforcement's usage of interrogation techniques, while simultaneously painting defendant as calm, forthright, and truthful. Admittedly, as defendant contends, the interview in question shares some characteristics of the interview reviewed by this court in People v. Hardimon, 2017 IL App (3d) 120772 (holding that defense counsel was ineffective for failing to move to redact certain portions of the defendant's videotaped interview because the comments of the investigating officers served to prejudice the defendant). However, unlike this case, there was no evidence in Hardimon that counsel for the defendant utilized the contested portions of the defendant's interview to craft an argument. ¶ 54 Moreover, "statements made by an investigating officer during an interview with the suspected defendant are admissible if they are necessary to demonstrate the effect of the statement on the defendant or to explain the defendant's response." Id. ¶ 35. We find that even if defense counsel moved for suppression, defendant's entire interview would have been admitted as relevant and probative. We cannot say that the investigating officers' statements rose to the same prejudicial level as the statements described in Hardimon, thus mandating a finding of ineffective assistance. Id. ¶¶ 34-37. Defense counsel was not ineffective in this case.

¶ 55 D. Hearsay Statements

¶ 56 Finally, we address defendant's contention that the trial court erred by admitting certain hearsay statements from Martin based on the medical treatment exception to the hearsay rule. Defendant asserts that the trial court erred by instructing the jury that it could consider these statements as substantive evidence. However, defendant concedes that while defendant objected to the admissibility of these statements during the trial, he did not file a posttrial motion preserving this issue. Defendant seeks to advance this issue on plain error grounds by claiming the evidence was closely balanced. This court has already determined that the evidence in this case was not closely balanced; thus, defendant's argument based on plain error fails, and we conclude defendant forfeited this issue on appeal. Enoch, 122 Ill. 2d at 186-87.

¶ 57 III. CONCLUSION

¶ 58 The judgment of the circuit court of Rock Island County is affirmed. ¶ 59 Affirmed. ¶ 60 PRESIDING JUSTICE CARTER, dissenting: ¶ 61 I respectfully dissent from the majority's decision in the present case. I would conclude that defendant's convictions have to be reversed and that the case has to be remanded for a new trial because of the Rule 431(b) error that occurred. To reach that conclusion, I would find, contrary to the majority's analysis, that the evidence in this case was closely balanced and that the first prong of plain-error review applies to the Rule 431(b) error. ¶ 62 In my opinion, the majority fails to recognize that although the evidence was overwhelming that J.M. was battered and murdered, it was closely balanced as to whether defendant had committed, or was accountable for the commission of, the underlying act of beating J.M. Defendant and Martin were the only two people present when the crimes were committed, and there was some evidence from which the jury could have concluded that defendant had committed the crimes alone, that Martin had committed the crimes alone, or that defendant and Martin had committed the crimes together. While the majority seems to suggest 24 that defendant must have been the person who had beaten and killed J.M. because Martin was too small to inflict such severe injuries, the State's forensic pathologist made no such conclusion; nor was it determined whether J.M.'s injuries were caused by a hand or a foot, by a blunt instrument, or by J.M. being struck against some object.