Opinion filed July 25, 2016 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2016

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-14-0196 v. ) Circuit No. 10-CF-821 ) CORNELIUS D. CARTER, ) Honorable ) Walter D. Braud, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Justice McDade specially concurred, with opinion. Justice Wright dissented, with opinion. _____________________________________________________________________________

OPINION

¶1 Defendant, Cornelius D. Carter, argues on appeal that his conviction for aggravated

battery with a firearm should be reversed because the trial court abused its discretion in allowing

the State to present an excessive amount of other-crimes evidence related to an alleged escape

attempt from the county jail. We affirm defendant's conviction. We also vacate the fines and

fees imposed by the circuit clerk pursuant to the State's confession of error and remand with

directions. ¶2 FACTS

¶3 Defendant was charged with aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)

(West 2010)). In October 2012, while incarcerated in the Federal Bureau of Prisons, defendant

requested a disposition of all pending Illinois charges through the interstate Agreement on

Detainers statute (730 ILCS 5/3-8-9 (West 2012)). The detainer documents listed another

pending Illinois case in addition to the instant case.

¶4 The State filed a motion in limine requesting that the court deem evidence of defendant's

alleged escape attempt from the county jail in July 2013 to be admissible at defendant's

aggravated battery trial. Said evidence would include defendant's audiotaped phone calls from

jail, physical evidence, testimony, and photographs. Defendant objected. Following a hearing

on the State's motion, the trial court ruled that evidence of defendant's escape attempt was

admissible. The court advised the State that it wanted "as little [evidence] as possible" regarding

the escape attempt. The court added, "I want the case to be about the shooting, not about the

escape."

¶5 A jury trial was held. Kameron Angel testified that he had known defendant since he was

10 or 11 years old and they had been close friends. On the evening of August 30, 2010,

Kameron was socializing with his brother, Granvil Angel, defendant, and several other people.

Defendant was wearing a black hooded sweatshirt, dark colored pants, and hospital gloves.

Defendant had been wearing the hospital gloves all day, and Kameron did not think it was

strange. Defendant showed Kameron a handgun that he had in the pocket of his hooded

sweatshirt. Kameron asked if he could purchase the gun, and defendant said Kameron could

purchase it after defendant was done with it. A few minutes later, defendant asked Kameron to

go somewhere with him.

2 ¶6 Kameron walked with defendant to a garage near a store called Jesse Mart. They entered

the garage, and defendant told Kameron there was a gun under a dresser. The garage was dark

so Kameron used his cell phone as a light. Kameron bent down to look for the gun, and

defendant shot him in the back of his neck and his back. Kameron fell to the ground. Defendant

took Kameron's cell phone and called or texted someone with it. Defendant then shot Kameron

three more times in the back and arm. Kameron lay down and did not move.

¶7 Defendant left the garage. After a minute or two, Kameron got up and jogged to Jesse

Mart. The clerk at Jesse Mart called 911, and several police officers and an ambulance arrived.

Kameron told the officers that defendant shot him. Kameron was taken to the hospital to be

treated. While at the hospital, Kameron picked defendant out of a photographic lineup as the

individual who shot him. Kameron was in the hospital for several days and continued to have

back problems because a bullet was still in his spine.

¶8 Kameron did not have his cell phone after the shooting. Kameron did not send a text

message to Granvil on the night of the shooting saying that he was going to Kia's house. Kia

was the mother of Kameron's son.

¶9 Kameron spoke to Tresvour Robertson in jail approximately a year prior to trial, and

Robertson told Kameron that defendant was paid to kill Kameron. Kameron and Granvil had

obtained a pound of cannabis from Marcus Hampton and Robertson's cousin, T.J. Everett, prior

to the shooting and decided not to pay for the cannabis.

¶ 10 Kameron acknowledged that he had previously pled guilty to the offense of "going armed

with intent" for throwing a golf club at someone, for which he was on probation.

¶ 11 Granvil testified that he was Kameron's brother. At approximately 9:30 p.m. on the

evening Kameron was shot, Granvil, Kameron, defendant, and several others were smoking

3 cannabis together. Defendant asked Granvil to go somewhere with him. Granvil told defendant

he did not feel like walking anywhere. Defendant asked Granvil a second time, and Granvil

again refused. Defendant then asked Kameron, and Kameron agreed. Defendant and Kameron

began walking toward Jesse Mart. Defendant was wearing black clothing and latex gloves.

¶ 12 At approximately 10:15 p.m., the police came to the house where Granvil and his friends

were smoking. The police banged on the door and said someone had been shot. Granvil left and

started walking because he had a "really bad feeling in the gut of [his] stomach." While he was

walking, Granvil received a text message from his father stating that Kameron had been shot.

Around that time, Granvil also received a "weird text message" from Kameron's cell phone

which said that Kameron was with Kia. Granvil could not remember if he received the text

message from Kameron's phone before or after the text message from his father. Granvil later

talked to Kia and learned that she had not spoken with or seen Kameron that night. Kameron

later told Granvil that he did not send that text message.

¶ 13 After he received the text message from his father, Granvil saw a car driving down an

alley and motioned for the car to stop. Granvil recognized the driver as Arletha Farmer and

asked for a ride to the hospital. Granvil then noticed that defendant was in the backseat. Farmer

agreed to give Granvil a ride, and Granvil got in the backseat with defendant. Granvil repeatedly

asked defendant what happened to Kameron. Defendant said, "I don't know, I just ran."

Defendant was sweating profusely and smoking cigarettes. Defendant twice asked Farmer to

pull over so he could get out, but she did not pull over. Defendant was wearing different clothes

than he had worn earlier in the evening. Specifically, defendant was wearing blue jeans and a

white muscle shirt. When the car arrived at the hospital and Granvil got out, the car sped off.

4 ¶ 14 Granvil testified that approximately one week before the shooting, Granvil and Kameron

obtained one pound of cannabis, which was worth approximately $1000, from Everett,

Robertson, and Hampton. Kameron and Granvil later discovered that the cannabis was bad and

refused to pay for it. Everett, Hampton, and Robertson called Granvil a few days later after he

refused to pay for the cannabis and told Granvil that they were going to kill him and Kameron.

They said that the "hit [was] going to be so close that [he was] not going to see it coming."

¶ 15 Farmer testified that she had known defendant for about five years. On the evening of

the shooting, Farmer was driving around with a friend. At approximately 10:30 or 11 p.m.,

Farmer saw defendant walking down the street and gave him a ride. A few minutes later, Farmer

saw Granvil. Farmer did not know Granvil, but she knew of him. Granvil asked for a ride to the

hospital, and Farmer drove him to the hospital. Farmer heard defendant and Granvil greet each

other when Granvil got into the car, but they did not talk much during the ride. Farmer dropped

Granvil off at the hospital and drove away. Farmer did not recall telling a police officer that

defendant told her someone had been shot when she picked him up.

¶ 16 Police Officer Greg Whitcomb testified that when he interviewed Farmer the day after

the shooting, Farmer said that when she picked defendant up, he told her there had been a

shooting.

¶ 17 Police officers who investigated the shooting testified that when they responded to the

911 call, Kameron told them defendant shot him in an abandoned garage. The officers observed

bullet wounds on Kameron's neck and left arm. An officer later located the garage and found a

pool of blood and what appeared to be bullets. Whitcomb testified that he showed Kameron a

photographic lineup, and Kameron identified defendant as his shooter.

5 ¶ 18 Robertson testified that he knew Everett and Hampton. Kameron and Granvil obtained

approximately one pound of cannabis from Everett, who had received the cannabis from

Robertson. Kameron and Granvil did not pay for the cannabis. Prior to the shooting, Robertson

saw Everett speaking with defendant in a car parked in Robertson's backyard. After Everett

spoke to defendant, Everett told Robertson that defendant was going to "get Kameron." After the

shooting, defendant asked Robertson to tell Everett to pay defendant. Robertson stated that he

did not hire defendant to kill Kameron. Robertson believed the marijuana Kameron and Granvil

took was worth approximately $800 and was not worth killing someone over. Robertson was

currently incarcerated for the offense of intimidation with a dangerous weapon, which was

unrelated to the instant case. The State agreed not to prosecute Robertson for hiring defendant to

shoot Kameron if Robertson testified against defendant.

¶ 19 The remaining evidence, which concerned defendant's attempted escape from the county

jail, was admitted over defendant's objection. Edward Schliltz, a correctional officer, testified

that while working at the county jail on July 23, 2013, he smelled smoke near the inmates' cells.

Schliltz and other officers thoroughly searched the inmates, the cells, and the day rooms. One

officer found a hacksaw handle, cell phone, cell phone charger, and a mop handle with several

pieces of a torn T-shirt wrapped around it in a garbage can in one of the day rooms. Defendant

had the same T-shirt material that was found in the garbage can wrapped around his hand. The

officers also found a hollowed-out Bible containing a socket cover in one of the common areas.

In defendant's cell, the officers discovered a four-inch square hole in the window, which was

covered with a piece of plastic. The window's steel frame and beam had been cut through with a

hacksaw. No other inmate shared a cell with defendant. Schliltz believed that the officers found

a piece of paper in defendant's cell that contained several phone numbers that were found in the

6 cell phone retrieved from the day room. A different inmate claimed that the cell phone the

officers found belonged to him.

¶ 20 Jason Patterson, a sheriff's department employee, testified that he investigated a hole in

the window of defendant's cell on July 23, 2013. Defendant had occupied the cell since

December 28, 2012. No one else occupied the cell at the time the hole was found. Sixteen

photographs were admitted into evidence. Patterson identified and described the photographs,

which depicted defendant's cell, including the hole in the window and the cut marks on the

window's metal bar, the day room at the county jail, and items of contraband found by the

officers. Patterson found hacksaw blades in defendant's toilet and strips of fabric in defendant's

cell. The contraband items found in the common areas included: a cell phone and charger, a

hollowed-out book containing a socket plate with burnt edges, strips of a t-shirt that were tied

together, and fabricated paper rods. Some of the pictures showed defendant's cell window from

outside the building. Electrical tape and a light socket were found on the roof underneath

defendant's cell window.

¶ 21 The parties stipulated that a sheriff's department employee would testify that he provided

investigator Mindy Meyers with a compact disc (CD) that included recordings of 14 telephone

and visitation conversations of defendant between June 1 and July 27, 2013. The CD was

admitted into evidence but not played for the jury. Whitcomb was recalled as a witness and

testified that he listened to all the recorded conversations contained on the CD. Whitcomb was

familiar with defendant's voice and reported that all the recordings contained defendant's voice

except two or three conversations.

¶ 22 Mindy Meyers, an investigator employed by the sheriff's department, testified that she

was assigned to listen to defendant's recorded telephone and visitation conversations. Meyers

7 briefly described 12 recorded conversations of defendant, which were contained on the CD

previously offered into evidence but not played for the jury. In one conversation with an

unknown man, defendant asked the man to give someone named DeShawn "a little bit of bread"

because DeShawn was "getting things" for defendant. Most of the other conversations that

Meyers described involved defendant asking various people to obtain a cell phone for him, buy

minutes for his cell phone, call him, or bring him things.

¶ 23 The State also introduced a different CD containing a recording of a visitation

conversation between defendant and Shakera Abbey. Meyers testified that, based on her

investigation, she believed Abbey was defendant's girlfriend. The CD was played for the jury,

and a transcript of the conversation was introduced into evidence.

¶ 24 During defendant's conversation with Abbey, defendant told Abbey he would probably

not be there next month. Abbey responded, "You trying to pull it off this month?" Defendant

replied, "I just… there's a chance that I might not be here next month." Abbey told defendant not

to do anything he would regret. Defendant replied that he was going to trial. He then stated,

"See, hopefully I won't make it to trial *** so I'm hoping, but I'm supposed to go to trial, you

know, if I loose [sic] my trial…shhhh…man, I'm trying to breaking [sic] me out or something.

*** I am gonna win in my own way man. Somehow someway [sic] man." Defendant told

Abbey that she would see him soon under "certain circumstances." Abbey told defendant to call

her. Defendant replied, "I'm for real man." Abbey responded, "I know, you probably tired of

being in here." Defendant then said, "We're going off in the sunset together."

¶ 25 Defendant asked Abbey to get a pen and directed her to draw a picture. Defendant asked

Abbey if she remembered what he told someone named "Deshar" to get for him, and Abbey

replied that she remembered. Defendant told Abbey to call Deshar and ask if he was going to get

8 it. Defendant asked Abbey to get it for him herself if she could not reach Deshar. Defendant

said that he needed it before Wednesday. Defendant said that Abbey would be able to get the

items at Walmart, Menards, K & K, True Value, or any hardware store. Defendant told Abbey

that she had to be careful because the items would be sharp. Defendant then added: "[Y]ou just

got to make sure, hell, that no matter what kind you get that you got the kind that go through

handcuffs alright?"

¶ 26 Meyers testified that she also took pictures of the outside of the jail in connection with

the investigation into the contraband found in defendant's cell. She took a photograph of black

electrical tape, which was found on the ground outside the jail. The photograph had previously

been introduced into evidence during Patterson's testimony. Finally, Meyers testified that when

the inmates were in their jail cells, no one was able to come in or out of the cell without a

correctional officer opening the door. The inmates leave their cells during the day and stay in the

day room. The cell doors are locked, and no inmates are able to access their own cells or other

inmates' cells during that time.

¶ 27 The State rested. Defendant did not present any evidence. During its initial closing

argument, the State did not mention the escape evidence. Defense counsel argued that defendant

was only using the hole in his jail cell window to smuggle in cigarettes and a cell phone and was

not attempting to escape. During its rebuttal argument, the State contended that defendant was

using the hacksaws to cut through his window in an attempt to escape.

¶ 28 During deliberations, the jury requested a copy of the transcript of defendant's

conversation with Abbey. The jury found defendant guilty. The trial court sentenced defendant

to 30 years' imprisonment to be served consecutively with his sentence in his federal case.

¶ 29 ANALYSIS

9 ¶ 30 I. Other-Crimes Evidence of Attempted Escape

¶ 31 Defendant argues that the trial court erred in allowing an excessive amount of other-

crimes evidence regarding defendant's attempted escape from the county jail such that the trial

court conducted a trial within a trial on defendant's escape attempt.

¶ 32 It is a longstanding proposition of Illinois law that evidence of the crime of attempted

escape and the related crime of flight is admissible for the purpose of showing a defendant's

consciousness of guilt. Jamison v. People,

(1893) (attempted escape); People v.

Duncan,

(1913) (suicide attempt as attempted escape); People v. Bundy,

(1920) (flight); People v. Limeberry,

(1921) (attempted flight);

People v. Spaulding,

(1923); People v. Talbe,

(1926) (attempted

escape); People v. Rappaport,

(1936) (flight); People v. Gambino,

(1957) (escape and attempted escape); People v. Harper,

(1967)

(attempted escape); People v. Yonder,

(1969) (two hacksaw blades hidden in

the defendant's shoe were evidence of attempted escape); People v. Gaines,

(1981) (escape); People v. Gacho,

(1988) (letter indicating that defendant

wanted to escape admissible as evidence of consciousness of guilt).

¶ 33 Other-crimes evidence is admissible only if the probative value of the evidence is not

outweighed by its prejudicial effect. People v. Adkins,

(2010); Ill. R. Evid. 403

(eff. Jan. 1, 2011) ("Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence."). A trial court's decision to admit other-crimes evidence will not be

overturned absent a clear abuse of discretion. Adkins,

. Even if relevant, other-

10 crimes evidence should not become a focal point of the trial. People v. Boyd,

(2006). "Courts have warned against the dangers of putting on a 'trial within a trial,' with

detail and repetition greatly exceeding what is necessary to establish the particular purpose for

the evidence."

(quoting People v. Bartall,

(1983)).

¶ 34 We find that the trial court did not abuse its discretion in allowing the State's evidence

regarding defendant's escape attempt. First, the escape evidence had high probative value in that

it showed defendant's consciousness of guilt. We find the evidence offered by the State was

reasonably necessary to show defendant's escape attempt. Defendant's recorded conversation

with Abbey was needed to show that defendant intended to escape from jail. During the

conversation, defendant told Abbey, "I'm trying to breaking [sic] me out or something." He also

directed Abbey to obtain an item from a hardware store for him that could cut through handcuffs.

Defendant's conversation with Abbey showed that the items of contraband that were

subsequently connected to him were related to an escape attempt rather than a smuggling

operation, as defense counsel argued at trial.

¶ 35 Evidence of the discovery of hacksaw blades in defendant's toilet and other items of

contraband linked to defendant showed that the escape plan defendant discussed with Abbey

went beyond mere fantasy and that defendant was actually in the process of executing the plan.

The additional recordings of defendant's telephone and visitation conversations in which he

sought cell phones and other items helped link him to the items of contraband that were

ultimately found.

¶ 36 We reject defendant's contention that the probative value of the attempted escape

evidence in the instant case was low because it is unlikely that defendant would have been able

to cut a sufficiently large hole in his window to actually escape. We note Illinois courts have

11 admitted evidence of possession for the means of escape or the intent to escape to show

consciousness of guilt even when no actual escape was attempted. See Yonder,

(hacksaw blades hidden in the defendant's shoe); Gacho,

(letter defendant

sent from jail stating that he believed he could escape).

¶ 37 Similarly, we find no merit to defendant's contention that the probative value of the

escape evidence was somehow lessened due to the fact that he was serving a federal sentence and

was facing charges in another Illinois case. Evidence of attempted escape is admissible even

when a defendant is incarcerated on multiple charges. See In re L.F.,

(1983); People v. Day,

(1979). As defendant presented no evidence

either at the hearing on the State's motion in limine or at trial that his escape attempt was related

to anything other than the instant case, for which he was awaiting trial at the time of the escape

attempt, we decline to find that the probative value of the escape attempt was lessened due to

defendant's other charges. See People v. Ligon,

(1973).

¶ 38 In addition to finding that probative value of the attempted escape evidence was high, we

find that the prejudicial impact of the escape evidence was low. That is, evidence that defendant

wished to escape from jail and acquired various items of contraband including hacksaw blades to

do so was unlikely to inflame the passions of the jury. This is especially true when compared

with the strong evidence of the relatively more heinous offense of attempted murder. Kameron

testified that defendant, who had been his friend since childhood, shot him multiple times in an

abandoned garage. The testimony of police officers confirmed that Kameron adamantly claimed

that defendant was his shooter immediately after the shooting. Kameron's, Granvil's, and

Robertson's testimony tended to establish defendant's motive for shooting Kameron—namely,

that he had been paid to do it.

12 ¶ 39 Thus, due to the high probative value and low prejudicial impact of the attempted escape,

we find that the trial court did not abuse its discretion in allowing the evidence of defendant's

escape attempt. The amount of escape evidence presented did not greatly exceed what was

necessary to establish the escape attempt such that a trial within a trial occurred. See Boyd,

.

¶ 40 In coming to this conclusion, we reject defendant's reliance on People v. Nunley,

(1995), People v. Bedoya,

(2001), People v. Richee,

(2005), and People v. Thigpen,

(1999), in support of his argument

that his conviction should be reversed because the admitted evidence of his escape attempt was

too extensive. Initially, we note that none of those cases involved other-crimes evidence of

escape or other-crimes evidence showing consciousness of guilt. Nunley,

(other-crimes evidence admitted to show the "continuing narrative" of the defendant's arrest and

confession); Bedoya,

(intent); Richee,

(modus operandi); Thigpen,

(common plan or scheme). Additionally, all

four of defendant's cited cases, unlike the instant case, either found the other-crimes evidence to

lack probative value or be unduly prejudicial.

¶ 41 In Bedoya and Richee, the courts first found that the other-crimes evidence at issue was

irrelevant to the purpose for which it was admitted and should not have been admitted at all.

Bedoya,

; Richee,

. Both cases found in the

alternative that even assuming the other-crimes evidence was relevant, the probative value of the

evidence was outweighed by its prejudicial impact due to the excessive amount of evidence

presented at trial and its inflammatory nature. Bedoya,

(other-crimes

13 evidence that the defendant shot at three buildings, including the residence of a cardinal); Richee,

(other-crimes evidence of multiple burglaries).

¶ 42 Similarly, in Thigpen, a murder case, the trial court found that some other-crimes

evidence that defendant had previously committed a double murder may have been relevant to

show a common plan or scheme. Thigpen,

. The court held, however,

the detailed evidence of the double murder that was admitted at trial—including the introduction

of a photograph of the victims' corpses, which was subsequently sent to the jury room—was not

relevant.

It was not only the amount of evidence of the double murder that the court found

constituted reversible error, but the inflammatory and prejudicial effect of detailed evidence of a

double murder on the jury.

.

¶ 43 In Nunley, extensive other-crimes evidence that the defendant was under arrest for

stabbing his mother and killing her dog at the time he confessed to the robbery and murder for

which he was on trial was admitted to show the "continuing narrative" of the defendant's arrest

and confession. Nunley,

. On review, the Nunley court held that due to

the "extremely inflammatory nature of the prior conduct evidence," it was an abuse of discretion

to allow other-crimes evidence beyond the fact that defendant was in custody for the aggravated

battery of his mother at the time of his confession.

¶ 44 In the instant case, unlike in Bedoya, Richee, and Thigpen, all the other-crimes evidence

was relevant to the purpose for which it was introduced, that is, to show defendant's

consciousness of guilt by way of his attempted escape from jail. Unlike in Nunley, Bedoya,

Richee, and Thigpen, the other-crimes evidence in this case—namely, that defendant planned to

escape from jail and possessed contraband items in connection with his attempted escape—was

not particularly inflammatory or unduly prejudicial. Additionally, the evidence of the escape

14 attempt in the instant case was largely based on inferences drawn from defendant's statements,

actions, and the surrounding circumstances. Consequently, a greater amount of evidence was

needed to show the escape attempt in this case than in Nunley, Bedoya, Richee, and Thigpen,

where the other-crimes evidence at issue was either completely irrelevant or could serve its

relevant purpose in small amounts.

¶ 45 Lastly, even if we were to accept defendant's argument that an excessive amount of

evidence was presented regarding the escape attempt, we find that any error in the admission of

the escape evidence was harmless. We acknowledge that the jury requested to view the

transcript of defendant's conversation with Abbey during deliberations. However, in light of the

overwhelming evidence of defendant's guilt, we do not believe that the result of the proceedings

would have been different even if no evidence of the escape attempt had been presented. People

v. McKown,

(2010) ("Error will be deemed harmless and a new trial

unnecessary when 'the competent evidence in the record establishes the defendant's guilt beyond

a reasonable doubt and it can be concluded that retrial without the erroneous admission of the

challenged evidence would produce no different result.' " (quoting People v. Arman,

(1989))). Additionally, we are mindful of the decisions in People v. McKibbins,

(1983), and Bartall,

, where the court held that no prejudicial

error occurred where an excessive amount of relevant other-crimes evidence was admitted at

trial.

¶ 46 II. Fines and Fees

¶ 47 Finally, defendant argues that this case should be remanded to the trial court for entry of

a proper order of fines and fees because the circuit clerk improperly assessed fines against

defendant after it was too late for defendant to challenge them. The State concedes that the

15 matter should be remanded for the trial court to address the issues defendant raises with regard to

the fines and costs assessed against him. After considering defendant's arguments and reviewing

the record, we accept the State's concession of error.

¶ 48 Therefore, we vacate all of the fines and fees, and we remand the cause with the

following directions: (1) the trial court shall expressly impose any and all fines; (2) the circuit

clerk may impose any individual fee or court cost; (3) the amount of each fine, fee, assessment or

court cost defendant has been ordered to pay as part of the sentence shall be set forth in a written

order bearing the court's signature; (4) the written order shall provide the statutory authority for

each individual financial charge; and (5) the trial court shall calculate and offset defendant's fines

by the appropriate amount of $5-per-day presentence incarceration credit.

¶ 49 CONCLUSION

¶ 50 The judgment of conviction entered by the circuit court of Rock Island County is

affirmed. The fines and fees imposed by the circuit clerk are vacated, and the cause is remanded

for entry of an order for fines and fees in accordance with the above directions.

¶ 51 Affirmed in part and vacated in part. ¶ 52 Cause remanded with directions.

¶ 53 JUSTICE McDADE, specially concurring.

¶ 54 I agree with Justice Carter that existing Illinois law requires a holding that the circuit

court did not err when it admitted the other-crimes evidence regarding the defendant’s activities

while in the Rock Island county jail. I also agree with Justice Carter that reversal and remand is

warranted with regard to the defendant’s fees and fines. I write separately to express my strong

disagreement with the propriety of using the concept of consciousness of guilt in the context of

incarceration.

16 ¶ 55 I recognize that the supreme court has consistently demonstrated its belief in the concept,

but I believe that evidence related to an escape or an attempted escape from incarceration should

not be admissible at a defendant’s trial as evidence of consciousness of guilt for multiple reasons.

As a general premise, I find consciousness of guilt to be a flawed concept in any context because

it runs afoul of the foundational principle of our jurisprudence that a criminal defendant is

presumed innocent until proven guilty. More specifically, to be used as consciousness of guilt of

the charged offense, evidence that one has escaped or attempted to escape from incarceration

invites—indeed, requires—the fact-finder to presume that the individual is guilty of that

underlying crime.

¶ 56 The consciousness-of-guilt concept also offends logic in that its operation is circular. In

the instant case, for example, in order to serve as proof of the defendant’s guilt of the charged

crime, the concept requires the fact-finder to presume his unproven guilt and find that his

conduct at the jail—arguably an attempt to escape—was solely motivated by his awareness of

that guilt. This is a logical fallacy.

¶ 57 But I am certainly not alone in questioning the validity of the concept and its use in the

courts. While consciousness of guilt has long been accepted as admissible evidence, the

problematic nature of the concept has also long been recognized. See, e.g., Robert M. Hutchins

& Donald Slesinger, Some Observations of the Law of Evidence–Consciousness of Guilt,

(1929) (critiquing consciousness of guilt for being scientifically unverifiable and

citing, inter alia, John Henry Wigmore’s treatise on evidence and his book, The Principles of

Judicial Proof (1913)). Context is extremely important when consciousness-of-guilt evidence is

proffered:

17 “ ‘The same symptom is often the result of exactly opposite psychological

conditions. This sort of evidence is admitted because there is a certain degree of

uniformity in its meaning, but the variations from uniformity are so frequent, and

depend so much upon personal character and local circumstances that no fixed

rules should be laid down. Repeated judicial warnings tell us that the evidence is

merely to be estimated as best we can in the light of our knowledge of human

nature in general and of the accused in particular. . . . The general principle, as

applied to the conduct of one accused of crime, finds illustration in a great variety

of instances. In those which have led to judicial rulings, there has seldom resulted

an exclusion, because usually none but conduct having at least plausibly a guilty

significance is commonly offered.’ ”

at 728-29 (quoting John Henry

Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at

Common Law § 273 (2d ed. 1923)).

Additionally, it was noted as early as 1846 that the flight of an accused:

“is not necessarily an admission of guilt; it may proceed from an unwillingness to

stand a public prosecution, or from a fear of the result, from an inability to explain

certain false appearances, indicating guilt, though the party was innocent. The

conduct of one accused of crime, is the most fallible of all competent testimony.

Those emotions or acts which might be produced in one person by a sense of

guilt, or by the stings of conscience, might be exhibited by another, differently

constituted, by an overwhelming sense of shame, and the degradation consequent

upon a criminal accusation. The same cause producing opposite effects in

18 different persons, owing to weakness or strength of nerve, and other inexplicable

moral phenomena.” (Emphasis added.) Smith v. State,

(1846).

Even if one (like Wigmore) is not troubled by the inability to scientifically verify consciousness

of guilt, notable objections to its use in the courts include that “its manifestations are equivocal;

it may be caused by guilt of another crime than the one charged; or it may be caused by other

emotional disturbances.” Hutchins & Slesinger, supra at 734.

¶ 58 Particular to the prison context, I find such evidence problematic because there are a

multitude of reasons why an individual may attempt to escape from incarceration that are wholly

unrelated to whether he or she committed the charged offense. In this regard, I note Justice

Seymour Simon’s dissent in People v. Gacho,

(1988). In Gacho, a defendant had

been arrested and incarcerated based on his suspected involvement in the murders of two people.

. While incarcerated, he wrote a letter to his girlfriend that included the statement, “ ‘I

still believe I can escape from here one way or the other.’ ”

. The supreme court held

that the statement from the letter was admissible at trial as consciousness-of-guilt evidence.

. Justice Simon dissented, in part due to the fact that the two cases cited by the majority

(People v. Gaines,

(1981), and People v. Harper,

(1967)) involved

actual escapes or attempts to escape, which was not the case in Gacho. Id. at 265 (Simon, J.,

dissenting). Justice Simon then stated:

“Here, the defendant was simply writing about the possibility of leaving prison

sometime in the future. He may have meant that he thought he would be found

innocent and be released or he may have been thinking of escaping because of

harsh conditions in prison. In any case, his statement is not relevant to the issue

19 of whether he is guilty of murder, and permitting the State to cross-examine the

defendant about the statement was reversible error.” Id. (Simon, J., dissenting).

¶ 59 I recognize that case law states that whether an escape or an attempted escape was

motivated by consciousness of guilt or by some other reason is a question for the fact-finder to

decide. See, e.g., People v. Sheridan,

(1977). However, as I stated

above, considering, even as a broader inquiry, whether evidence of an actual or attempted escape

shows consciousness of guilt requires the fact-finder to presume that the defendant is guilty of

the underlying offense. Moreover, it is also dangerous to allow the evidence because of the

likelihood of it being used as evidence of a defendant’s general bad character, rather than

evidence of his or her consciousness of guilt for the charged offense.

¶ 60 The problematic nature of such evidence is exacerbated in a case like the one before us.

Here, whether the defendant’s actions even constituted an escape attempt were particularly

suspect. First, at the time the defendant was transferred to the Rock Island county jail to face the

charges in this case, he had been incarcerated on a federal charge. He was also facing other state

criminal charges. Any purported plan to escape could have been an attempt to evade any or all

of those charges and not the instant aggravated battery with a firearm charge. Second, it is not at

all clear that the defendant was even planning an escape. His actions—including his recorded

statements—could as easily have been the implementation of an operation to smuggle drugs into

the jail as an attempt by the defendant to escape from it.

¶ 61 Unfortunately, despite long-standing doubts of legal scholars and judges about the

general validity of the concept of consciousness of guilt and, more specifically about the

reliability of its application in the context of actual or attempted escapes from incarceration, I am

compelled to concur with the decision to affirm the defendant’s conviction.

20 ¶ 62 JUSTICE WRIGHT, dissenting:

¶ 63 I respectfully dissent. I would find the excessive other-crimes evidence constitutes

reversible error arising out of a trial within a trial.

¶ 64 I am not persuaded by the case law relied on by the majority. First, many of the cases

cited in the majority decision involve prearrest flight to avoid arrest. I distinguish those cases on

the grounds that this defendant did not attempt to flee in order to avoid arrest. Instead, this

defendant voluntarily requested to be returned to Rock Island County, from federal prison, to

answer to two outstanding Rock Island County warrants.

¶ 65 Next, I also distinguish three of the decisions cited by the majority that are more

analogous to the facts in this appeal because those cases involve a postarrest escape. In the

oldest postarrest case, People v. Talbe,

(1926), defendant was arrested, placed in

the local jail, and then forcefully removed the jailer’s keys before leaving his jail cell without

permission. Similarly, in People v. Gambino,

(1957), defendant was first

arrested, placed in the local jail, and then left the jail itself without permission. I do not find

these two cases to be helpful because this defendant did not physically depart from either his

Rock Island jail cell or the Rock Island County jail, without permission, at any time.

¶ 66 A third case cited by the majority, People v. Yonder,

(1969), appears to be

on all fours with the facts in the case now before this court. For example, both the facts in the

case at bar and the facts in Yonder involved an inmate who was discovered to be in possession of

hacksaw blades while incarcerated in the jail and awaiting trial.

¶ 67 However, upon closer examination, I submit the holding in Yonder does not provide

persuasive authority in this appeal. Specifically, in Yonder, the defense challenged the

correctness of the trial court’s evidentiary ruling extending the reach of consciousness of guilt

21 evidence to apply where the correctional officers thwarted the plan to escape before the inmate

began to execute an escape.

.

¶ 68 In Yonder, unlike the case at bar, the jury received minimal evidence showing Yonder

possessed hacksaw blades in his shoes while in jail. The evidence linking defendant to the

hacksaw blades paled in comparison to the extensive evidence the jurors received pertaining to

the armed robbery. In that case, the State’s accomplice witnesses and the victims described for

the jury how Yonder woke up the family by attacking the husband as he slept. The armed

robbers, including Yonder, then dragged the other household occupants out of bed; bound them

with tape; gouged out the eyes of the husband causing blindness; forced the wife to witness her

husband’s mutilated face; threatened to cut off the wife’s finger to remove her ring; announced

an intent to have a “sex orgy” with the couple’s 11-year-old son; and encouraged the others to

continue to beat, injure, and burn the women present in the home by applying cigarettes to their

breasts and pubic hairs while “lying naked” on their backs. Further, the jury learned that the

armed robbery yielded $130 in cash, two pairs of pearls, and a ring.

¶ 69 Not surprisingly, our supreme court engaged in a cursory analysis in Yonder, which

explained that, in that particular case, the possession of hacksaw blades was admissible evidence

showing consciousness of guilt. Here, defendant concedes in his brief on this appeal that the trial

court correctly decided some limited evidence of consciousness of guilt could be introduced by

the State in their case-in-chief. However, unlike Yonder, defendant agues the details of the

escape plan, which this jury received, became quite excessive and prejudicial.

¶ 70 Here, the State’s theory was that defendant did not simply acquire and possess

contraband while housed in the Rock Island County Jail but, rather, acquired the various items of

contraband, not limited to the hacksaw blades, as part of a bigger plan to escape from the jail. In

22 support of the State’s escape theory, this jury received 16 photographic exhibits depicting

contraband found in common day areas of the jail and other evidence discovered outside the jail

below defendant’s window.

¶ 71 Further, the jury learned about defendant’s 14 recorded telephone calls from the jail

where defendant made incriminating statements about getting cell phone access and other

unspecified contraband to defendant. Finally, the jury heard one recording of a visitation

between defendant and his girlfriend that took place on June 8, 2013. During this conversation,

defendant dramatically advised his girlfriend that he might not be in jail “next month” and

promised they would be “going off in the sunset together.” Yet, it is undisputed that defendant’s

prediction did not come true and he remained in jail the next month. Thus, the issue of whether

defendant actually intended to escape or was expressing simple bravado on June 8, 2013, created

a trial within a trial documented by the jurors’ request to review a transcript of the conversation

on June 8, 2013.

¶ 72 I also distinguish the facts in Yonder from the instant case because, here, the jury did not

learn that this defendant may have been planning his escape to avoid returning to federal prison

to serve the balance of a 10-year sentence. For obvious reasons, defendant could not

counterbalance the excessive other-crimes evidence–about possessing contraband in a penal

institution while hoping to escape–by informing the jury of an equally plausible reason for his

desire not to return to federal prison to complete a 10-year sentence.

¶ 73 Had the State limited the evidence to the items and physical evidence found in

defendant’s cell on July 27, 2013, I could adopt the majority’s harmless error analysis.

However, my views are premised on the excessive amount of evidence the State elected to

23 introduce, in spite of the court’s warning to minimize the evidence of escape long before the trial

began. I dissent.

24