Opinion
No. 1-15-1377
02-02-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERMALLE BROWN, 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. 12 CR 15690
Honorable Thaddeus L. Wilson, Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.
Justices Cunningham and Delort concurred in the judgment.
ORDER
¶ 1 Held: The defendant's convictions for first degree murder and home invasion are affirmed over his contention that he was denied a fair trial when the trial court allowed the State to publish to the jury a video recording whose probative value was substantially outweighed by the risk of unfairly prejudicing the jury.
¶ 2 Following a jury trial, the defendant, Jermalle Brown, was found guilty of home invasion (720 ILCS 5/12-11(a)(3) (West 2010) (Renumbered as 720 ILCS 19-6 by Pub Act 97-1108, § 10-5, (eff. Jan. 1, 2013)) and first degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) for the
death of Douglas Bufford during the commission of a forcible felony, and was sentenced to 30 years' imprisonment for the murder. The defendant appeals, contending that the trial court abused its discretion by allowing the jury to view a portion of a video recording which was substantially more prejudicial than probative. For the reasons set forth herein, we affirm.
¶ 3 The defendant and the co-defendant, Anthony Hull, were charged with multiple counts of first degree murder, home invasion, residential burglary, and aggravated unlawful restraint. On January 13, 2015, the State proceeded to trial on one count of home invasion and one count of felony murder. As the defendant does not challenge the sufficiency of the evidence supporting his convictions, we recount the facts here to the extent necessary to resolve the issue raised on appeal.
¶ 4 Dondra Sharkey testified that, in July 2012, he lived in an apartment building owned by his grandparents located on East 73rd Street. At that time, two rival factions of the Gangster Disciples street gang—Little Paris City (LPC) and Sircon Mafia—were engaged in an ongoing "war." Sharkey testified that Stony Island Avenue was the boundary between the factions' territories and that the LPC faction controlled the area east of Stony Island while the Sircon Mafia controlled the area west of Stony Island. The building that Sharkey lived in was located a block west of Stony Island. Sharkey testified that, although he was not a member of the Sircon Mafia, he "hung out" with members of the gang and did not cross Stony Island for fear of being shot, robbed, or kidnapped.
¶ 5 On July 25, 2012, Sharkey was sitting in his room watching television when he looked up and saw a person, whom he identified in-court as the defendant, standing a foot away from him. The defendant did not have his face covered, but he had a blue shirt around his neck and was holding the ends of the shirt with his hands. The defendant told Sharkey to stand up, and another
man, 16-year-old Douglas Bufford, entered the room with a revolver in his hand, a red hat on his head, and a white shirt tied around his face. When Bufford told Sharkey to stand up, another person appeared in the doorway with a shotgun in his hands, a white shirt covering his face, and a hair style of short "dreadlocks." Sharkey testified that he could see another person looking into the room from the hallway. The person with the shotgun told Sharkey to get up and stand by the refrigerator. As Sharkey stood up and began walking toward the kitchen, the shotgun discharged and Bufford was struck in the head. Sharkey ran to his grandparent's apartment and saw the person who had been holding the shotgun run toward Stony Island. He also saw the defendant run the other way "toward the viaduct." Bufford died from his wounds three days later.
¶ 6 When police arrived on the scene, Sharkey told an officer that LPC members were standing on the opposite side of South Blackstone Avenue. Police detained the individuals standing on the corner of 73rd and Blackstone and brought them to the apartment building for a show-up. Sharkey identified four people, including the defendant, as the men who had entered his apartment. In the days following the incident, Sharkey told the police that he "was not sure about" all the identifications that he had made, but was sure about his identification of the defendant.
¶ 7 The State admitted into evidence multiple video recordings of the defendant speaking with police detectives inside an interview room that was equipped with audio and video recording devices. During an interview with Detectives Halloran and Vovos, the defendant told the detectives that, on the date in question, he was in a park playing basketball and smoking marijuana. Bufford, who was drunk, arrived at the park, and told the defendant that he was going to shoot a member of the Sircon Mafia. The defendant attempted to dissuade Bufford, but eventually followed Bufford and the co-defendant, Hull, in order to try to stop him. The
defendant said that he entered the building, but did not enter Sharkey's apartment. He also stated that he did not see anyone with a shotgun. After the defendant heard a gunshot, he and Hull ran out of the building and back across Stony Island.
¶ 8 During an interview with Detectives Reiff and Stanek, the defendant told the detectives that his group "[w]as going over there to shoot somebody" or "blast somebody." In a subsequent interview, the defendant told detectives that he stood outside the apartment and was "looking around" for rival gang members and police officers so that he could give Bufford "a heads up."
¶ 9 Over the defendant's objection, the State admitted into evidence an August 1, 2012, recording of the defendant alone in the interrogation room. In denying the defendant's objection, the trial court stated:
"With respect to the other clip where you say, oh, just bad behavior, if the defendant is making statements that a reasonable person could believe is in direct relation to this case, the charge and the situation the defendant found himself in at the time, they are relevant regardless of whether or not they don't shed your client in a good light."
In the video, the defendant is rapping and, at times, it appears that he is making gestures of firing a weapon with his hands. The audio quality of the video makes the defendant's words while he is rapping indecipherable. However, at the end of the recording, in a different tone of voice than he was using while rapping, the defendant can be heard saying, "Mother f***ker, I really f***ed up in this b*****, yo." During his testimony regarding the contents of the August 1, 2012, video, Detective Halloran described the defendant's hand gestures as gang signs.
¶ 10 At the close of the State's case-in-chief, the defendant made a motion for a mistrial, contending that the August 1, 2012, video of him alone inside the interview room and Detective Halloran's description of his hand gestures as gang signs were prejudicial. The trial court denied
the defendant's motion, noting that there was "no basis in law or fact or any ruling on the Court for a mistrial." The court also denied the defendant's motion for a directed verdict.
¶ 11 For the defense, Tyri Harris testified that, before the shooting, he was playing basketball in a park with the defendant. Bufford arrived at the park and told the group that he was going to go into rival gang territory. Hull told Bufford that he would accompany him, and the defendant followed Bufford "saying he was going to calm him down." Harris testified that he did not see anyone at the park holding a gun. About 10 minutes later, Hull returned to the park and said that "[Bufford] was tweaking." The defendant later returned to the park alone, and the group decided to go across Stony Island to see what had happened to Bufford. As the group was standing across the street from the scene, police arrested the defendant, Harris, and two other men.
¶ 12 At the close of evidence, the defendant renewed his motion for a mistrial, arguing that Detective Halloran's testimony about gang signs was prejudicial. The trial court denied the motion reasoning that the defense elicited the testimony and that the statements were not so prejudicial as to deprive the defendant of a fair trial.
¶ 13 During closing arguments, defense counsel argued that the August 1, 2012, video did not "add to anything to whether [the defendant is] guilty or innocent" and that the defendant's behavior during the video, which counsel characterized as jumping up and down, rapping, and pointing, was the normal behavior of a teenager who has been left alone in a room with no stimulation.
¶ 14 After deliberation, the jury found the defendant guilty of first degree murder during the commission of a forcible felony and home invasion. The trial court denied the defendant's motion for a new trial, which argued, inter alia, that the court erred in allowing the State to publish the August 1, 2012, video.
¶ 15 At sentencing, the trial court merged the home-invasion count into the first-degree-murder count, and sentenced the defendant to 30 years' imprisonment.
¶ 16 The defendant now appeals, arguing that he was denied a fair trial when the trial court allowed the State to publish to the jury the August 1, 2012, video because it had no probative value and only served to prejudice the jury.
¶ 17 "Generally, 'all relevant evidence is admissible unless otherwise provided by law.' " People v. Pike, 2016 IL App (1st) 122626, ¶ 33 (quoting People v. Cruz, 162 Ill. 2d 314, 348 (1994); People v. Kirchner, 194 Ill. 2d 502, 539 (2000)). "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)). Otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011). A trial court's evidentiary rulings are discretionary and, therefore, such rulings will not be overturned absent an abuse of discretion. People v. Irwin, 2017 IL App (1st) 150054, ¶ 27. An evidentiary ruling constitutes an abuse of discretion when it is arbitrary, fanciful, or unreasonable. Id. (citing People v. Hanson, 238 Ill. 2d 74, 10 (2010)).
¶ 18 Even if this court determines that a trial court abused its discretion in making an erroneous evidentiary ruling, we need not reverse the trial court's judgment if we determine that the error was harmless. People v. Nixon, 2015 IL App (1st) 130132, ¶ 120. A nonconstitutional evidentiary error is harmless if there is no reasonable probability that the jury would have acquitted the defendant absent the error. People v. Stull, 2014 IL App (4th) 120704, ¶ 104.
¶ 19 Here, even assuming, arguendo, that the trial court did abuse its discretion in allowing the State to publish the video to the jury, we find that the error would be harmless in light of the overwhelming evidence of the defendant's guilt. The defendant told detectives that he, Bufford, and Hull went to the apartment to shoot or "blast somebody." He also told detectives that he looked around for rival gang members and police officers so that he could give Bufford "a heads up." Further, although the defendant claimed that he did not enter the apartment and did not see a shotgun, Sharkey testified that the defendant was the first man to enter his room, followed by Bufford, who came in with a handgun, and Hull, who came in with a shotgun. On the day of the shooting, Sharkey identified the defendant as one of the men who entered his apartment. In the days following the incident, Sharkey told police that he was sure about his identification of the defendant. This evidence, in the context of a conviction for murder predicated on the death that occurred during the commission of a home invasion, is overwhelming. As such, we find that any potential error would be harmless beyond a reasonable doubt. Accordingly, the defendant was not denied his right to a fair trial.
¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 21 Affirmed.