Opinion
No. 1-15-0086
08-22-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMONY NUNLEY, Defendant-Appellant.
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).
Appeal from the Circuit Court Of Cook County.
No. 13 CR 11499
The Honorable Matthew E. Coghlan, Judge Presiding.
JUSTICE NEVILLE delivered the judgment of the court.
Justices Pierce and Mason concurred in the judgment.
ORDER
¶ 1 Held: A recanted statement, partially corroborated by a thumbprint on the murder weapon, sufficiently supported a murder conviction. Defendant did not show ineffective assistance of counsel when his attorney may have had a strategic reason for deciding not to proffer the accomplice witness instruction. The mandatory sentencing enhancement for use of a firearm is not unconstitutional, and it required the trial court to enhance a 35 year sentence for murder to a 60 year sentence for murder committed with a firearm.
¶ 2 A jury found Jamony Nunley guilty of murder. The trial court sentenced Nunley to 60 years in prison: 35 years for murder, plus a 25 year enhancement because he used a firearm. On appeal, we find (1) a recanted statement, partially corroborated by Nunley's thumbprint
on the murder weapon, sufficiently supported the conviction; (2) Nunley did not show that his attorney provided objectively unreasonable assistance when he failed to offer the accomplice witness instruction; (3) the 25 year addition to the sentence for the use of a firearm comports with the constitution; and (4) the trial court did not abuse its discretion when it imposed a sentence of 60 years. Accordingly, we affirm the trial court's judgment.
¶ 3 BACKGROUND
¶ 4 The City of Chicago installed cameras at a number of locations throughout the city, including the intersection of Ashland Avenue and 72nd Street. Around 10 a.m. on March 21, 2012, the camera by that intersection showed a man in a white shirt sitting on a bench at a bus stop on the east side of Ashland Avenue. Another man came out of a store on the northwest corner of Ashland and 72nd Street. The man in the white shirt crossed Ashland and shot the man who came out of the store. When police arrived at the scene, they found Deon Freeman lying in the street, dead from multiple gunshot wounds. No one at the scene had a good opportunity to see the shooter. The camera did not capture a clear image that would allow for identification of the shooter.
¶ 5 A police officer collected six cartridge cases from the scene. Later, another officer, following an anonymous tip, went to an abandoned house on 72nd Street, less than a block from the site of the shooting. The officer found a gun on the floor of the abandoned house. Tests showed that the gun the officer found fired all six of the cartridges found near Freeman's dead body. A police laboratory found one useful fingerprint on the gun. The print matched a print from Nunley's left thumb.
¶ 6 Police arrested Nunley on August 18, 2012, and they released him, without charging him, on August 20, 2012. Police arrested Nunley again in May 2013. A grand jury indicted Nunley for the murder of Freeman.
¶ 7 At Nunley's jury trial, the prosecution presented evidence concerning the retrieval of the bullets and the gun, the tests used to establish that the gun fired the fatal bullets, and the fingerprint expert's identification of the thumbprint on the gun.
¶ 8 The prosecutor also called to the stand Russell Junius, who testified that he knew both Freeman and Nunley from the neighborhood. Junius admitted that courts had twice found him guilty of unlawful use of a weapon, and at the time of trial, he remained in prison on the more recent conviction. Junius testified that he did not know where he had been on March 21, 2012, and he did not remember whether he saw a shooting that day. Junius admitted that police arrested him in November 2012. He did not remember whether he spoke to detectives about the March 21 shooting.
¶ 9 The prosecutor showed Junius several typewritten pages with names written in ink. Junius testified that although the page had his name written in ink, he did not remember signing the page. Later he said the pages did not bear his signature. The pages purported to record a statement Junius made to an assistant State's Attorney. The prosecutor read to Junius each sentence from the document and asked whether Junius said that to the assistant State's Attorney. Junius sometimes said he did not remember making the statement, and sometimes he asserted that he had not made the statement. He sometimes testified that he had not spoken with any assistant State's Attorney about the shooting, and sometimes he said
he did not remember speaking with an assistant State's Attorney about the shooting. He had no recollection of testifying to a grand jury.
¶ 10 An assistant State's Attorney testified that he spoke with Junius on November 29, 2012, and Junius signed the typewritten pages that reported the statement he made to the assistant State's Attorney. The court permitted the assistant State's Attorney to read the statement to the jury.
¶ 11 According to the typewritten document, Junius said that rival factions of the Gangster Disciples controlled the area around Ashland and 72nd Street. The S-Dub faction controlled the area west of Ashland and the J-Town faction controlled the area to the east. Junius had belonged to J-Town, but he had left the gang by the time of the statement.
¶ 12 In the typewritten document, Junius purportedly said that on March 21, 2012, he walked north on Ashland heading towards 72nd Street. He stayed on the east side of Ashland to avoid S-Dub territory, but he intended to cross Ashland to go to the store on the northwest corner of Ashland and 72nd Street. He saw Freeman of the S-Dubs come out of the store. A man Junius knew as G-Money from the J-Town faction crossed Ashland and shot Freeman repeatedly. Junius identified a photograph attached to the document as a picture of G-Money.
¶ 13 According to the typewritten document, Junius said he ran to the home of his friend Davelle Tunage, who belonged to J-Town. G-Money was already at Tunage's home, along with several other gang members, when Junius arrived. G-Money "kept talking about changing his clothes and getting a haircut." Junius said he saw a gun in G-Money's waistband.
¶ 14 Another assistant State's Attorney testified that he watched Junius testify before the grand jury, and a transcript marked as an exhibit accurately recorded Junius's testimony. The court permitted the witness to read to the jury from that transcript. According to the transcript, Junius said that on March 21, 2012, he walked north on the east side of Ashland heading toward 72nd Street. He saw G-Money get up from a bench at the bus stop and cross Ashland, where he shot Freeman repeatedly. When Junius got to Tunage's home, he saw five other persons whose nicknames he recounted. G-Money "was just stressing that he needed to change his clothes; to go get his haircut, cut his dreads off his head."
¶ 15 The jury saw the videorecording of the shooting, which showed the man in the white shirt holding the gun in his right hand when he shot Freeman. The recording shows a man walking north on Ashland, but that man did not have the body shape of Junius. The camera as it pivoted briefly showed the back of another man walking in the street on Ashland, heading east, not at all following the path ascribed to Junius in the transcript and the typewritten document identified by an assistant State's Attorney as Junius's statement. The man in the video passed the shooter immediately before the shooter got up from the bench and crossed Ashland.
¶ 16 Over Nunley's objection, the trial court sent back to the jury the typewritten statement ascribed to Junius, together with the photograph that, according to the assistant State's Attorney, Junius identified as a picture of G-Money. The prosecutor noted that "the jury would be able to look at that Exhibit [which] refers to just the nickname G-Money but then they would be able to look at the photograph and see that's the defendant."
¶ 17 The jury found Nunley guilty of first-degree murder. In a motion for a new trial, Nunley argued that the video proved Junius had not seen the murder, because the only man shown walking north on the east side of Ashland was not Junius. The court denied the motion for a new trial. In response to the argument about Junius, the court said:
"The Court did have the opportunity to view the video at trial, and I have viewed it since then as well. There is an individual in the video immediately before the shooting who matches the description of Mr. Juni[u]s. And by way of an[ec]dote, I spoke to the jury and they saw that individual, too, when they thought that he nodded to the individual who would be the shooter ***[. T]he jury viewed the video several times and considered the evidence closely and they, apparently, agreed that Mr. Juni[u]s was on the scene, if he was not walking north on Ashland, but was [coming] from a different vantage point[. T]hat was certainly a decision for them to make."
¶ 18 The presentence investigation report showed that Nunley, a high school graduate with some college education, had no prior convictions. Nunley was only 19 years old at the time of the shooting. The trial court sentenced Nunley to 35 years in prison for the murder, plus the mandatory 25 year additional term because he used a firearm, for a total sentence of 60 years. Nunley now appeals.
¶ 19 ANALYSIS
¶ 20 Nunley argues that (1) the evidence does not support the conviction; (2) his attorney provided ineffective assistance when he failed to request an accomplice witness instruction;
(3) the 25 year addition to his sentence for use of a firearm violates the Illinois and United States Constitutions; and (4) the trial court imposed an impermissibly harsh sentence.
¶ 21 Sufficiency of the Evidence
¶ 22 When a defendant in a criminal case challenges the sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the prosecution, and determine whether any rational trier of fact could find that the prosecution proved all the elements of the crime beyond a reasonable doubt. People v. De Filippo, 235 Ill. 2d 377, 384-85 (2009). The appellate court should reverse the conviction only if the evidence "is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt." People v. Brown, 2013 IL 114196, ¶ 48.
¶ 23 A recanted statement can sustain a conviction. People v. Douglas, 2014 IL App (5th) 120155, ¶ 28. The statement in evidence here, ascribed to Junius, poses some special problems.
¶ 24 First, the statement only names G-Money as the shooter, and no witness identified Nunley as G-Money. However, the jury saw the picture that, according to the assistant State's Attorney, Junius identified as a photograph of G-Money. The jury could determine whether the picture of G-Money showed Nunley. See People v. Thompson, 2016 IL 118667, ¶ 70; People v. Sykes, 2012 IL App (4th) 111110, ¶ 42.
¶ 25 Second, Nunley contends that the statement conflicts with evidence that police found the murder weapon less than 30 minutes after the murder. The argument depends on a misreading of the testimony. The officer who found the gun testified that he arrived at the crime scene less than 5 minutes after he received the assignment, and less than 20 minutes
later, he found the gun. But no one asked the officer for the time he received the assignment or the time he reached the abandoned house where he found the gun. The discovery of the weapon does not conflict with the evidence that Junius saw G-Money at Tunage's home carrying a gun - a gun which Junius could not identify as the murder weapon.
¶ 26 Nunley's third objection to the statement carries more weight. Nunley correctly asserts that the videorecording contradicts the statement, as the recording shows that Junius was not walking north towards 72nd Street on the east side of Ashland at the time indicated in the statement. According to the court, the jury rejected that part of the statements ascribed to Junius, and identified him as a man seen crossing Ashland from west to east, apparently coming from the northwest corner of Ashland and 72nd Street. We find the conflict between the videorecording and Junius's statement insufficient to remove from the jury's consideration the question of the credibility of the statement, especially because Nunley's thumbprint on the murder weapon partially corroborates the typewritten statement. We find that the evidence sufficiently supports the conviction. See People v. Curtis, 296 Ill. App. 3d 991 (1998).
¶ 27 Ineffective Assistance of Counsel
¶ 28 When a defendant claims he received ineffective assistance of counsel, he bears the burden of proving that "his attorney's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." People v. Patterson, 192 Ill. 2d 93, 107 (2000). "Judicial scrutiny of counsel's performance is highly deferential, and there is a
presumption that, under the circumstances, the challenged omission was sound trial strategy." People v. Davis, 353 Ill. App. 3d 790, 795 (2004).
¶ 29 Nunley points out that the typewritten statements ascribed to Junius could support a finding that Junius acted as the shooter's accomplice. Jurors said that they saw a person on the video who could have been Junius, and that man nodded to the shooter immediately before the shooter rose from the bench and crossed Ashland. According to the statement, Junius then went to the home of Tunage, where he met up with G-Money. Junius, who admitted he had been a member of J-Town, did not report the crime to police. The statement provides probable cause for finding Junius liable as an accomplice to the shooting. See People v. Perez, 189 Ill. 2d 254, 267 (2000). Thus, if defense counsel had proffered the accomplice witness instruction, the trial court should have given it. See Davis, 353 Ill. App. 3d at 795.
¶ 30 However, we find that Nunley has not overcome the presumption that sound trial strategy led counsel to decide not to proffer the accomplice witness instruction. No evidence apart from the statements Junius denied making tied Junius to the shooting. To find that Junius acted as an accomplice, the jury would need to find the statements credible, at least in part. Nunley's counsel consistently pursued a strategy of discrediting the statements ascribed to Junius.
¶ 31 We find this case similar to People v. Gonzalez, 664 N.W.2d 159 (Mich. 2003). In Gonzalez, the court found that defense counsel could have had a strategic reason for failing to proffer an accomplice witness instruction, because a finding that the witness acted as an accomplice would conflict with the defense theory of the case, and the accomplice witness
instruction would suggest that the jury should believe some evidence that implicated the defendant. Gonzalez, 664 N.W.2d at 164; see also Vickers v. State, 898 S.W.2d 26, 28-29 (Ark. 1995); State v. Johnson, 848 P.2d 496, 499 (Mont. 1993). Nunley's counsel could have had a similar reason not to proffer the accomplice witness instruction here. Nunley has not overcome the presumption that his counsel had a sound strategic reason for deciding not to request the accomplice witness instruction. We find that Nunley has not shown that he received ineffective assistance of counsel.
¶ 32 Firearm Enhancement
¶ 33 Nunley argues that the mandatory addition of 25 years to his sentence because he used a gun (see 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)) violates Article I, section 11 of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) and the Eighth Amendment to the United States Constitution (U.S. Const., amend. VIII). The statute makes the 25 year enhancement mandatory, so that the court cannot consider Nunley's age, 19 at the time of the offense, or his rehabilitative potential.
¶ 34 In People v. Harris, 2016 IL App (1st) 141744 (pet. for leave to appeal allowed, No. 121932 May 24, 2017), the trial court found Harris guilty of murder and attempted murder committed with a firearm, and the court imposed the mandatory minimum sentence. Harris, like Nunley, argued that the 25 year enhancement violated the constitutional provisions limiting sentencing. The Harris court said,
"Illinois courts have repeatedly upheld the constitutionality of the mandatory firearm enhancement statute when reviewing adult defendants' sentences. [Citations.] *** [T]he Illinois Supreme Court stated that 'it would not shock the
conscience of the community to learn that the legislature has determined that an additional penalty ought to be imposed when murder is committed with a weapon that not only enhanced the perpetrator's ability to kill,' but also increased the risk that bystanders would suffer grievous harm or death." Harris, 2016 IL App (1st) 141744, ¶ 45, quoting People v. Sharpe, 216 Ill. 2d 481, 519 (2005).
¶ 35 Following Sharpe, as explained in Harris, we find that the 25 year firearm enhancement is not unconstitutional.
¶ 36 Excessive Sentence
¶ 37 Finally, Nunley argues that the trial court imposed an excessive sentence. This court will not reverse the trial court's sentence unless the trial court abused its broad discretion for sentencing. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). Here, applicable statutes establish a range of 45 to 85 years for the sentence for a murder committed with a firearm. 730 ILCS 5/5-4.5-20(a) (West 2012); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012); People v. Torres, 228 Ill. 2d 382, 398 (2008). Nunley's sentence of 60 years fell within the statutory limits. "[A] sentence within statutory limits will be deemed excessive and the result of an abuse of discretion by the trial court where the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense." Stacey, 193 Ill. 2d at 210. In sentencing, the trial court should consider "such factors as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits, and age." Stacey, 193 Ill. 2d at 209. Each case presents unique circumstances for sentencing, so prior decisions do not bind sentencing decisions in new cases. People v. Fern, 189 Ill. 2d 48, 56 (1999). However, "[a] court considering whether a sentence imposed was
excessive may find it useful to look at the reasoning employed by another court in rejecting, or accepting, an excessiveness claim." Fern, 189 Ill. 2d at 62.
¶ 38 Nunley fired a gun repeatedly at an unarmed man on a busy street in broad daylight. His acts endangered numerous persons either walking, driving past in cars, or in nearby homes and shops. His lack of any prior criminal record and his high school diploma show some potential for rehabilitation.
¶ 39 We find this case similar to People v. Clark, 374 Ill. App. 3d 50 (2007). Clark, a gang member, murdered a member of a rival gang. Clark, 18 years old, barely counted as an adult, and he had a high school diploma and no prior convictions. The trial court sentenced him to 44 years in prison, well within the available range of 20 to 60 years. The appellate court found that "the trial court did not fully consider the mitigating evidence presented at defendant's sentencing hearing, particularly in light of defendant's age and lack of any significant criminal background at the time of the murder." Clark, 374 Ill. App. 3d at 75. The appellate court reduced the sentence to 36 years for the murder, a term 16 years greater than the statutory minimum.
¶ 40 The trial court here imposed a sentence for the murder 15 years in excess of the statutory minimum. The difference between the sentence here and the sentence in Clark comes from the 25 year firearm enhancement. We agree with Nunley that the court imposed a de facto life sentence. See People v. Buffer, 2017 IL App (1st) 142937 ¶¶ 56-62. However, the sentence falls near the middle of the statutory range. We must defer to the trial court, because the trial court, "having observed the defendant and the proceedings, is in a much better position to consider factors such as the defendant's credibility, demeanor, moral
character, mentality, environment, habits, and age." People v. Snyder, 2011 IL 111382, ¶ 36. "In considering the propriety of a sentence, the reviewing court must proceed with great caution and must not substitute its judgment for that of the trial court merely because it would have weighed the factors differently." Fern, 189 Ill. 2d at 53. We cannot say that the trial court abused its discretion by imposing a sentence near the middle of the statutory range.
¶ 41 CONCLUSION
¶ 42 Nunley's thumbprint on the murder weapon, considered in conjunction with the assistant State's Attorney's testimony that Junius said he saw Nunley shoot Freeman, sufficiently supports the conviction of Nunley for murder. Nunley has not shown ineffective assistance of counsel, because his attorney may have had a sound strategic reason for deciding not to proffer the accomplice witness instruction. The mandatory 25 year enhancement for murder committed with a firearm, as applied to Nunley, does not violate the Illinois and United States Constitutions. We cannot say that the trial court abused its discretion when it sentenced Nunley to 35 years in prison for murder, even though the sentence, with the 25 year enhancement, amounts to a life sentence imposed on a person who was still in his teens at the time of the offense. We affirm the trial court's judgment.
¶ 43 Affirmed.