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People v. Brown

Illinois Appellate Court, Fourth District
Oct 25, 2023
2023 Ill. App. 4th 220105 (Ill. App. Ct. 2023)

Opinion

4-22-0105

10-25-2023

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEOFFREY BROWN, Defendant-Appellant.


This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Winnebago County No. 17CF2917 Honorable Joseph G. McGraw, Judge Presiding.

PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justices Zenoff and Knecht concurred in the judgment.

ORDER

DeARMOND PRESIDING JUSTICE.

¶ 1 Held: The appellate court affirmed, holding the State proved defendant guilty beyond a reasonable doubt and defendant received effective assistance of trial counsel.

¶ 2 In January 2020, following a bench trial, the court found defendant, Geoffrey Brown, guilty of one count of first degree murder during which he personally discharged a firearm which proximately caused a death (720 ILCS 5/9-1(a)(1) (West 2016); 730 ILCS 5/5-8-1(d)(iii) (West 2016)), a Class M felony, and one count of aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)), a Class X felony. Defendant filed multiple posttrial motions, culminating in an amended motion for a judgment notwithstanding the verdict or, alternatively, for a new trial, which the court denied. On February 4, 2022, the court sentenced defendant to an aggregate 60-year term in the Illinois Department of Corrections (DOC), followed by 3 years' mandatory supervised release (MSR).

¶ 3 On appeal, defendant raises three challenges to his convictions, arguing: (1) the State failed to prove him guilty beyond a reasonable doubt of first degree murder because the State's eyewitness was not credible and did not make a reliable identification, (2) the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm because the victim did not sustain an injury, and (3) trial counsel rendered ineffective assistance by not moving to admit prior inconsistent statements as substantive evidence. We disagree and affirm the convictions.

¶ 4 I. BACKGROUND

¶ 5 In November 2017, by way of a bill of indictment, the State charged defendant with 20 counts arising from a May 2016 shooting in Rockford, Illinois. Relevant to this appeal, the State charged defendant with the first degree murder of James Tomlinson and alleged a firearm enhancement. 720 ILCS 5/9-1(a)(1) (West 2016); 730 ILCS 5/5-8-1(d)(iii) (West 2016). Specifically, the State alleged defendant unlawfully, and with the requisite intent to kill, shot Tomlinson with a firearm, causing his death. 720 ILCS 5/9-1(a)(1) (West 2016). For the enhancement, the State alleged defendant "personally discharged a firearm that proximately caused [Tomlinson's] death." 730 ILCS 5/5-8-1(d)(iii) (West 2016). The State also charged defendant with aggravated battery with a firearm, alleging, when committing a battery, he knowingly and unlawfully discharged a firearm, causing injury to Levar Wright. 720 ILCS 5/12-3.05(e)(1) (West 2016). The matter culminated in a bench trial.

¶ 6 A. General Undisputed Facts

¶ 7 The evidence from various witnesses, exhibits, and stipulations established principal facts the defense does not dispute. On the afternoon of May 18, 2016, Lavar Wright and James Tomlinson were driving around in Wright's girlfriend's car, a gold Chevrolet Impala. After stopping by Tomlinson's mother's home at around 2 p.m., the two men went to a barbershop near the intersection of 7th Street and 15th Avenue in Rockford, Illinois. Wright parked the car along the road on 15th Avenue and the two men entered the barbershop. Approximately 30 or 35 minutes later, Wright exited the shop, went to the car, and sat in the driver's seat. Tomlinson followed a few minutes later and sat in the front passenger seat. While Wright and Tomlinson sat talking in the Impala, Wright noticed two vehicles approaching at a high rate of speed. In Wright's words, "A gray car pulled up too fast as if they were trying to cut the car off," while "a red car pull[ed] up too close to the car" on the Impala's driver's side. Seeing this, Wright believed "something [was] going to happen, a shoot out or something like, something like I didn't expect to happen." As gunshots rang out and bullets hit the Impala, Wright jumped to the back seat, where he "was able to still look through the tinted windows, and still see what was going on." Wright recalled five to seven shots were fired at the Impala. He testified he sustained a graze wound to his left lower back or buttock.

¶ 8 When the shooting ended, Wright exited through the car's back seat passenger door. He began running away, and when he looked back, he saw Tomlinson standing outside the car but then falling down, face forward. Wright grabbed a phone from the car and fled. He called his girlfriend to tell her what happened. He testified he left the scene because there was a warrant out for his arrest and he did not want to go to jail.

¶ 9 Emergency responders soon arrived at the scene. They encountered a gunshot victim (Tomlinson) who was taken to the hospital, where he was later pronounced dead. Meanwhile, law enforcement photographed and collected evidence at the scene, including a cartridge case on the road near the Impala's front driver's side, bullet holes in the Impala, Tomlinson's personal items on the ground outside the passenger-side doors, and fresh tire marks that could have been left by one of the vehicles that pulled up alongside the Impala.

¶ 10 An autopsy performed the next day confirmed Tomlinson died from a gunshot wound to the chest. The report detailed the bullet "entered the left chest between left ribs 3 and 4 that perforated that upper lobe of the left lung, the heart, the lower lobe of the right lung and exited that right chest cavity through rib 9." The autopsy report documented "the wound track[ed] left to right, front to back, and downward."

¶ 11 B. Identification Evidence

¶ 12 Wright testified he saw the shooter seated in the front passenger seat of the gray car that pulled up alongside the Impala's front driver's side. He said his window directly faced the front passenger window, which allowed him to see the shooter, whom he identified as defendant. When asked to describe "[h]ow good of a look did you get at [defendant] in the car," Wright said, "To me I looked him right in the eyes." He recalled defendant's window was down, and he saw defendant with a gun.

¶ 13 Wright further testified he had seen defendant earlier that day. At around 7 or 8 in the morning on May 18, 2016, Wright was driving the Impala near the intersection of Broadway and Kishwaukee Streets in Rockford. While he sat through a traffic light, a red van pulled up next to him at a high speed. Wright rolled down his window and pointed a gun at defendant, who was in the van's front passenger seat. Defendant's girlfriend, whom Wright knew through another person, yelled they had a child in the van. She drove off toward Kishwaukee Street and 15th Avenue and Wright followed them, testifying, "I just wanted to scare them." But he eventually turned off to pick up Tomlinson. He did not see defendant again until the shooting later that afternoon.

¶ 14 On the witness stand, Wright equivocated on how he knew defendant and how he knew his name, claiming he never saw him before May 18, 2016. He maintained Tomlinson had previously met defendant. Wright evaded the police when they tried to locate him immediately after the shooting. The day after the shooting, Wright spoke with police on the phone, describing the shooter "as a Puerto Rican, Mexican little sucker." Wright acknowledged he was otherwise uncooperative with law enforcement in the days following the shooting.

¶ 15 1. Photo Lineup

¶ 16 After Wright was shot in an unrelated incident on or about May 26, 2016, he began giving more information to law enforcement. While he was in the hospital, police interviewed him about the May 18 and May 26 shootings. He testified he told the police everything, but he claimed he did not give them defendant's name. However, Detective Bob Veruchi of the Rockford Police Department, who interviewed Wright at the hospital, testified Wright did give him defendant's name. He explained he used defendant's name by entering it "in to [ sic ] the Winnebago County Offender Track System" to get defendant's picture and then compile a photo lineup with "five other subjects that had the same physical descriptors of defendant." Veruchi asked Detective Jim Lake of the Rockford Police Department to conduct the lineup with Wright because Lake was uninvolved with the investigation.

¶ 17 Wright agreed to look at a photographic lineup while in the hospital on May 26, but he asked that it not be recorded. He recognized one person in the six-person photo lineup, number three, defendant. Wright testified he identified defendant as the person who shot him and Tomlinson on May 18, 2016, and, per Lake's instructions, he circled defendant's photo and signed the form. Lake also testified about showing the lineup to Wright in the hospital. He explained the advisement forms to Wright, who then signed them. Lake testified Wright "pointed to subject No. 3," the "subject in the upper right of the photo lineup." Wright told Lake, "I've seen him around before." He said, "that's the f*** that shot my man." According to Lake, Wright "then placed the blade hand portion down across the bridge of the nose of subject No. 3 and he said, he was wearing a bandana and I won't forget what he looks like," although Wright had already denied putting his hand over defendant's picture. On cross-examination, Lake acknowledged Wright did not immediately identify defendant in the photo lineup. He likewise noted Wright never said defendant's name during the identification.

¶ 18 2. Wright's Written Statement

¶ 19 Wright's discussions with police resulted in a written statement narrating the May 18 shooting. Detective Paterson typed it, and Wright read and then signed it. According to Wright, his statement included everything he had told police at that point in time. On cross-examination, defense counsel asked about the positioning of the bandana the shooter wore. In Wright's written statement he said the black bandana covered the shooter's nose and mouth. At trial, however, Wright testified the bandana was never over the shooter's face but had slid down to under the shooter's chin. In fact, when testifying, Wright was adamant the bandana was not covering the shooter's face and he never said so. By contrast, Detective Paterson testified Wright did say "the shooter[ ] had a black bandana pulled up over his nose and mouth."

¶ 20 C. Motive Evidence

¶ 21 The State called Tyler Filipowicz, who testified about his connections to Wright and defendant. He confirmed he knew both men in May 2016. He had known defendant for seven or eight years because defendant was his sister's boyfriend. He considered defendant family and affirmed their relationship was "very close." After identifying defendant in the courtroom, Tyler acknowledged he set up a deal for defendant to sell cannabis to Wright. He testified he saw the exchange between Wright and defendant, which occurred in front of Tyler's house. He noted, "[Wright] pulled up and I went on the porch and that and they made an exchange and they pulled off." Immediately after the deal, Tyler heard defendant say Wright paid with "a fake $500 bills [ sic ] and $50 bills." Tyler recalled he and defendant discussing the drug deal again, but he could not remember specific details of those conversations.

¶ 22 When asked if he recalled giving the police a written statement on May 26, 2016, Tyler answered "yes." In the statement, Tyler said after the drug deal between defendant and Wright, defendant "called me a few minutes later and he was really mad and said that he was going to get [Wright] for ripping him off." He also said defendant told him "he was going to f*** [Wright] up." In his written statement, Tyler told police he saw defendant at a Mother's Day cookout in 2016, where defendant told him "if he did not get his money from [Wright] that he was going to kill him." Tyler said defendant "showed me what looked like a black 9 mm handgun that he had in his waistband of his pants." In his statement, Tyler said he spoke with defendant several times after the drug deal and "every time [defendant] said that he was going to kill [Wright] for ripping him off."

¶ 23 On the stand, Tyler did not recall making those statements to police. He recognized his written statement when tendered by the State and acknowledged having previously read, signed, and initialed it. At trial, however, Tyler claimed he lied to police back in May 2016. He said he told the truth about being on the porch during the drug deal but, otherwise, he lied in the "whole statement basically." He described his own statement as "mostly made up." Besides admitting to setting up the drug deal between Wright and defendant and then observing it from his front porch, Tyler either disavowed his prior statements as lies or could not remember making specific statements. Tyler testified he lied to police because he was trying "to get out of there as quickly as [he] could really."

¶ 24 On cross-examination, defense counsel asked Tyler to explain the circumstances surrounding his statements to police and why he was "just trying to get out of there." Tyler said he felt "like [he] was being pressured into saying stuff and [he] was confused." He said he spoke with police both in the police cruiser on the way to the station and then in an interrogation room in May 2016. He testified he felt trapped. He claimed the police were yelling at him and "[t]hey kept trying to force me [to] say stuff." According to Tyler, the police brought up the gun and told him he had seen defendant with a gun. Tyler again claimed he never saw defendant with a gun. When asked to describe his state of mind when he gave the police his statement, Tyler answered, "I was in a bad shape because I was sick from drugs." He said when he spoke with police, he was coming down off a heroin high and having withdrawals, which made him "feel pain all over," and his "head [was] blurry." When police were yelling at him, Tyler described his feelings as "[i]n my head I was just saying whatever I could do [ sic ] get out of there as quickly as possible." He stated he wanted to leave the police station so he could go buy more drugs, which he did.

¶ 25 Tyler next testified about freely going to defense counsel's office to give an affidavit. At that time, he wanted to provide a truthful statement since he previously lied to police. He testified he made the affidavit because "[i]t was the right thing to do." Tyler stated defendant never made threats against Wright.

¶ 26 D. The Defense

¶ 27 Once the State rested its case-in-chief, defense counsel moved for a directed verdict, arguing the State's case rested on Wright's testimony, whom he described as "unqualified" and an "unverifiable witness." The trial court denied the motion.

¶ 28 The defense's evidence consisted of a picture of Prince Chatman, the man who shot Wright in 2017, and a stipulation. The parties stipulated that the Rockford Police Department received information on May 24, 2016, from a confidential informant who claimed Cordaine Harris and Jason Simmons shot and killed Tomlinson because Wright had robbed them. The parties further stipulated the police followed up on the tip in July 2018 by trying to locate Harris through his cousin, Natasha Gordon. Per the stipulation, Gordon phoned the police on August 1, 2018, to tell them Harris did not want to talk, though the officer could hear a voice he believed to be Harris's in the background. The trial court accepted the stipulation. It next inquired whether defendant wanted to testify. Defendant stated he understood the decision was his, he discussed the decision with his attorney, and, of his own free will, he decided not to testify. With that, evidence was closed, and defense counsel again moved for a directed verdict, which the court again denied.

¶ 29 E. The Decision, Posttrial Motions, and Sentencing

¶ 30 Following closing arguments and a one-day recess, on January 31, 2020, the trial court announced its decision on the record. The court noted it reviewed all the evidence, but it would address only certain pieces. The court began by acknowledging the defense's theory of mistaken identity, namely, "someone other than [defendant] fired the shots that wounded Levar Wright and killed James Tomlinson." It "carefully evaluated" the picture of Prince Chatman and noted facial similarities between him and defendant. The court next addressed Tyler's testimony, finding his account of the drug deal credible and reasoning Tyler had "no reason to lie about any of that." The court noted Tyler's account of the drug deal placed Wright there for the transaction and gave "Wright the opportunity to see" defendant "through the window of a car at arm's length." The court deemed Tyler a "reluctant witness" and observed he did not want to testify about his prior statement to police "because his awareness that what he told the police was now going to point the finger directly at [defendant] in a court of law where he's on trial for murder." The court explained it "assessed [Tyler's] manner while testifying" and considered the "context of the various statements; whether there was a factual basis for them; whether they fit into the overall context of the case; and why he would be reluctant to testify against his-not his brotherin-law, but clearly someone he considered to be like family."

¶ 31 The trial court then turned its attention to Wright's testimony, particularly his credibility. The court noted Wright's criminal record and his criminal conduct that led to this murder. But the court recalled Wright's testimony described the shooting "in detail" and noted Wright's account was consistent with the extrinsic evidence like tire marks on the street, the location of the car with the shooter, the direction of the gunshots, the number of shots, and the autopsy findings. Addressing Wright's various claims about the positions of the shooter's bandana, the court observed, "In the issue of whether the bandana was up over the nose or had slid down, it probably depends on at what point he was seeing [defendant]." The court credited Wright's identification of defendant in the photo array, noting Wright previously "had various opportunities to observe [defendant]." It explained "the court assessed [Wright's] testimony while he testified and the Court independently, through its own observations of Levar Wright and his manner while testifying, found his account of the events of May 18th was credible."

¶ 32 Based on the identity evidence, the trial court found "beyond a reasonable doubt that [defendant] is the person who pulled alongside; shot intending to kill Levar Wright and shot him, but the remaining shots struck James Tomlinson or struck the car resulting in James Tomlinson's death." Furthermore, the court found beyond a reasonable doubt that defendant had the requisite intent for first degree murder. It noted defendant's behavior-shooting into Wright's car at close range coupled with his statements to Tyler-showed he acted intentionally. Alternatively, the court noted defendant's behavior suggested he knew his actions would cause death or great bodily harm. Finally, as it related to the murder counts and the firearm enhancement, the court found "defendant was armed with a handgun, *** that he discharged the firearm in the condition [ sic ] of this crime [and] *** that his discharge of the firearm proximately caused the death of James Tomlinson beyond a reasonable doubt."

¶ 33 The trial court then addressed the aggravated battery with a firearm count. It found the evidence showed defendant shot Wright in the hip. The court concluded the State proved beyond a reasonable doubt "that [defendant] discharged the firearm and that his firing of the gun proximately caused injury to Levar Wright." The court summarized its decision: "So for the reasons of record, I find that the defendant is guilty of first degree murder. I believe all the other counts merge into count 1. I'd also find him guilty of Count 18 for the shooting of Levar Wright. That'd be the judgment of the Court."

¶ 34 Much occurred (or did not occur, actually) posttrial. Within a month, in February 2020, defense counsel moved for a new trial, alleging several trial errors. But counsel later moved to withdraw when defendant stated his intent to hire new counsel in March 2020. Due to the COVID-19 pandemic and new defense counsel's repeated requests for continuances, defendant did not file an amended motion for judgment notwithstanding the verdict or, alternatively, a new trial until April 2021. Among other arguments, the motion alleged trial counsel was ineffective and the State failed to provide sufficient evidence to prove him guilty beyond a reasonable doubt. The court heard defendant's motion in a September 2021 hearing and denied it.

¶ 35 Following more delays, the parties reconvened for a sentencing hearing on February 4, 2022. The State presented an amended verdict dispositional order, explaining "the prior one indicated that all counts merged with Count 1, but it actually would be Count 4 since the Court found the firearm enhancements." The trial court accepted the amended order nunc pro tunc to January 31, 2020, and proceeded to sentencing. Defendant decided against making a statement in allocution. After hearing argument, the court sentenced defendant to an aggregate 60-year sentence in DOC-consecutive terms of 50 years for first degree murder and 10 years for aggravated battery-followed by 3 years' MSR.

¶ 36 This appealed followed.

¶ 37 II. ANALYSIS

¶ 38 Defendant challenges his convictions on three grounds: (1) the State failed to prove him guilty beyond a reasonable doubt of first degree murder because Wright's testimony and the identity evidence was not credible, (2) the State failed to prove him guilty beyond a reasonable doubt of aggravated battery with a firearm because it failed to prove Wright sustained an injury, and (3) trial counsel rendered ineffective assistance by failing to perfect impeachment of Wright with his prior written statement. We disagree and affirm the trial court's judgment.

¶ 39 A. Sufficiency of the Evidence

¶ 40 "The due process clause of the fourteenth amendment to the United States Constitution requires that a person may not be convicted in state court 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" People v. Cunningham, 212 Ill.2d 274, 278, 818 N.E.2d 304, 307 (2004) (quoting In re Winship, 397 U.S. 358, 364 (1970)). When a defendant appeals his convictions, arguing the State failed to satisfy this burden of proof, a reviewing court will not retry the defendant but asks " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis in original.) Cunningham, 212 Ill.2d at 278 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

¶ 411. The State Sufficiently Proved Defendant Shot Wright and Tomlinson

¶ 42 An essential element in any crime is identity-who did it? This means the State bears "the burden of proving beyond a reasonable doubt the identity of the person who committed the crime." People v. Slim, 127 Ill.2d 302, 307, 537 N.E.2d 317, 319 (1989). Testimony from one credible eyewitness can provide proof beyond a reasonable doubt to establish identity and sustain a conviction. Slim, 127 Ill.2d at 307; see People v. Smith, 185 Ill.2d 532, 541, 708 N.E.2d 365, 369 (1999). When evaluating an eyewitness's identification, the factfinder should consider the circumstances surrounding both the crime and the identification process, including the well-known factors from Neil v. Biggers, 409 U.S. 188 (1972), namely: "(1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the witness's level of certainty at the identification confrontation; and (5) the length of time between the crime and the identification confrontation." People v. Standley, 364 Ill.App.3d 1008, 1014, 848 N.E.2d 195, 200 (2006) (citing Slim, 127 Ill.2d at 307-08). Considering these factors, a conviction can be sustained as long as the single witness viewed the accused under circumstances permitting a positive identification. People v. Lewis, 165 Ill.2d 305, 356, 651 N.E.2d 72, 96 (1995). Any inconsistencies between the witness's pretrial identification and trial testimony or in the witness's description of the accused do not automatically raise reasonable doubt when the witness has made a positive identification. Slim, 127 Ill.2d at 309. Instead, such inconsistencies "raise questions of credibility" for the factfinder to resolve when determining the verdict. Slim, 127 Ill.2d at 308. We defer to the factfinder's credibility determinations. See Smith, 185 Ill.2d at 542.

¶ 43 This case hinged on identity in the trial court, with the State arguing the evidence confirmed defendant was the shooter who gunned down Tomlinson and the defense arguing defendant was not at the scene because no physical evidence placed him there. Defense counsel expounded: "The evidence they brought was Levar Wright. That's it. There'[s] no DNA evidence. There's no gun. There's no independent ID. There's no video considering where-this is on a main street. There is no other evidence to prove that my client was the shooter except for Levar Wright." On appeal, identity remains the central issue. Defendant attacks the sufficiency of the evidence, premising his argument on the view that both Wright's identification of him and Wright's testimony were unreliable and incredible and the trial court should have rejected both. Without the identification evidence, defendant concludes, the State's case was insufficient. We disagree with defendant's premise and conclusion-Wright's identification was both reliable and credible, and the evidence sufficiently proved defendant's guilt beyond a reasonable doubt.

¶ 44 The trial court found Wright's testimony, including his identification of defendant in the photo lineup, to be credible. The court outlined its credibility determination by noting it assessed Wright's testimony, observed Wright's manner while testifying, and those independent observations led it to conclude Wright's "account of the events of May 18th was credible." It falls to factfinders, not appellate courts, to judge witness credibility, so we defer to those determinations. See Smith, 185 Ill.2d at 542 ("[Credibility of a witness is within the province of the trier of fact ***."); Slim, 127 Ill.2d at 307 ("In a bench trial it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence."). On appeal, as at trial, defendant attacks Wright's credibility, highlighting his criminal history, his drug use, and inconsistencies in his pretrial statements and trial testimony. The court noted these points, too, and it still believed Wright. Consequently, we will not disturb the court's determination that Wright's testimony describing the shooting and identifying defendant as the shooter was credible.

¶ 45 Although Wright's testimony alone, since reliable and believable, was sufficient to sustain the convictions (Slim, 127 Ill.2d at 307), we note there was also evidence of Wright's identification of defendant in the photographic lineup. Defendant also challenges the identification evidence as unreliable. Applying the Biggers factors as recited in Standley, we disagree.

¶ 46 The evidence established Wright had an opportunity to view the shooter during the crime. When recounting the shooting, Wright testified he saw the cars approach the Impala at a high speed and he recalled the gray car, the one with the shooter, was positioned so his front driver's side window directly faced the gray car's front passenger window, giving him a good view of the shooter. He stated the gray car's front passenger window was down and he saw the shooter-defendant. Wright testified: "I looked him right in the eyes." And the trial court noted Wright had seen defendant before the shooting, too. As for his degree of attention, Wright testified he could see the shooter during the whole shooting because the cars were so close. Even when he jumped from the front seat to the back seat, Wright maintained a high degree of attention by looking through the window the whole time.

¶ 47 Wright gave a description of the shooter before he actually identified him in the photo array. He told police the person who shot him and Tomlinson was "a Puerto Rican, Mexican little sucker." As for the accuracy of Wright's description of defendant's ethnicity and size, the State admitted the photo array, which allowed the trial court to see all of the pictures. The court also had the firsthand opportunity to compare Wright's description to defendant's real-life appearance. Further, the court had the advantage of assessing the degree of certainty Wright exhibited when identifying defendant at trial and throughout extensive cross-examination on the issue.

¶ 48 Turning to Wright's level of certainty when identifying defendant in the photo array, we note initially that defendant did not want the identification process recorded. So we must rely on his and Lake's testimony. Wright stated he selected defendant's picture because "that's the person [he] *** recognized" who "shot [him] and killed [Tomlinson]." Wright said he did not recognize the other five people in the lineup. Detective Lake recalled Wright viewed the lineup and pointed to defendant's picture, saying, "I've seen him around before." When Lake asked if Wright was identifying defendant as the shooter, Wright said: "[T]hat's the f*** that shot my man." Lake testified Wright "then placed the blade hand portion down across the bridge of the nose of subject No. 3 [(defendant)] and he said, he was wearing a bandana and I won't forget what he looks like." Seeking to weaken Wright's certainty, defense counsel asked Lake how long it took Wright to make an identification. Lake answered Wright's identification was not immediate. The defense further highlighted how Wright denied putting his hand across defendant's picture and saying he was wearing a bandana over his nose and mouth. The trial court heard these same things, and having observed Wright and Lake testify, while taking all relevant factors into consideration, concluded they were credible identification witnesses. Indeed, the court found Wright's conduct during the photo lineup indicated "he was being thoughtful and deliberate in being sure that it was [defendant]." Finally, we note a short time elapsed between the crime and the identification confrontation. Wright identified defendant eight days after the shooting. Eight days is not a significant period of time sufficient to undermine the identification. Slim, 127 Ill.2d at 313 ("[T]he interval of 11 days was not significant."). Viewing the facts and circumstances of this case through Standley's five-factor lens, we see no error in the trial court considering and crediting Wright's identification of defendant.

¶ 49 The record, therefore, shows the trial court gave due deliberation to all of the identification evidence and found it reliable and credible. We defer to these determinations since weighing evidence and judging witness credibility lies within the factfinder's purview, as it hears the evidence firsthand and watches the witness testify. See Best v. Best, 223 Ill.2d 342, 350-51, 860 N.E.2d 240, 245 (2006). More importantly, though, we will not disturb the trial court's assessment of the identification evidence because a factfinder "could reasonably accept the testimony as true beyond a reasonable doubt." Cunningham, 212 Ill.2d at 279.

¶ 50 The analysis, however, must continue since defendant also argued the entirety of the State's evidence failed to prove him guilty beyond a reasonable doubt. We observe the identification evidence comprised only part of the State's case. The State presented other evidence tying defendant to the May 18, 2016, shooting. Tyler's testimony established a motive by confirming the drug deal between Wright and defendant where Wright paid with counterfeit money. The other evidence confirmed Wright's version of events. For instance, the tire marks on the street near the Impala support Wright's statement that the gray car approached at high speed. The number of bullet holes in the Impala supported Wright's recollection there were five to seven shots fired. The direction of the bullets supported Wright's statement that the shooter was in the gray vehicle, positioned near the front of the Impala. Tomlinson's autopsy also confirmed the direction and trajectory of the bullets.

¶ 51 All this evidence was admitted and considered by the trial court. Defendant rightly notes no physical evidence places him at the scene on May 18, 2016. No photographs show him there. No video surveillance places him there. No other eyewitnesses saw him there. No forensic evidence ties him to the scene, no DNA. But such evidence is not necessary for a conviction here. Slim, 127 Ill.2d at 307 ("A single witness' identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification."). Viewing all the evidence in the light most favorable to the State and deferring to the trial court's credibility determinations, we hold the evidence reasonably supports a finding of guilt beyond a reasonable doubt for the first degree murder of Tomlinson. See Cunningham, 212 Ill.2d at 278. Based on the above evidence, a rational factfinder could have found the State proved beyond a reasonable doubt all essential elements of the charged crimes-including identity. See Smith, 185 Ill.2d at 541.

¶ 52 2. The State Sufficiently Proved Defendant Shot Wright, Causing an Injury

¶ 53 Defendant next attacks his conviction for aggravated battery, arguing the State failed to prove defendant caused an injury to Wright. We disagree.

¶ 54 Based on the indictment for aggravated battery with a firearm, the State had to prove beyond a reasonable doubt that defendant, while "committing a battery, *** knowingly *** discharge[d] a firearm *** and cause[d] any injury to [Wright]." See 720 ILCS 5/12-3.05(e)(1) (West 2016). On appeal, defendant attacks the injury element only. He discounts Wright's testimony about being shot, and he maintains the State was required to offer additional evidence to "prov[e] up an actual injury." Not only do we disagree, but we note defendant offers no citation for his "prove-up" and "actual injury" propositions.

¶ 55 As defendant acknowledges, the injury element here is a factual question. See People v. Smith, 6 Ill.App.3d 259, 264, 285 N.E.2d 460, 464 (1972) ("Whether aggravated battery is committed when the injury inflicted does not break the skin, does not injure the bones and does not leave disfigurement or permanent injury of any kind, is a question of fact to be determined by the judge or jury."). Wright testified he was shot "[i]n the lower back, in the lower abdomen." When asked by the trial court to point to where he was shot, Wright stood up and pointed to his left hip area. He told the court the bullet "grazed me." Wright had also told Detective Paterson the same thing-he sustained a graze wound from the May 18 shooting. This testimony comprised all the State's evidence for the injury element of aggravated battery with a firearm. Defendant contends this evidence was insufficient. But it was enough. Without direct evidence of injury, "the trier of fact may infer injury based upon circumstantial evidence in light of common experience" (People v. Durham, 312 Ill.App.3d 413, 419, 727 N.E.2d 623, 627 (2000)), which is what happened here. Besides the testimony from Wright and Paterson, the other evidence also allowed the court to infer defendant caused an injury to Wright. Photos from the scene showed bullet holes in the Impala's front driver's side door and window, where Wright was sitting before he moved to the back seat.

¶ 56 As we explained above, the trial court found Wright's account of the shooting, including his injury, to be credible and, based on all the evidence, found defendant guilty of aggravated battery with a firearm. Without citing any authority defining "injury," defendant essentially asks this court to judge Wright's credibility and reweigh the evidence. We can do neither. Best, 223 Ill.2d at 350-51. We defer to the trial court's credibility findings. Best, 223 Ill.2d at 350-51. Consequently, viewing all the evidence in the light most favorable to the State, we conclude any rational factfinder could have found defendant guilty beyond a reasonable doubt of aggravated battery with a firearm. Cunningham, 212 Ill.2d at 278.

¶ 57 B. Ineffective Assistance of Counsel

¶ 58 Finally, defendant argues his trial counsel rendered ineffective assistance by failing to move to admit the written prior inconsistent statements used to impeach Wright and Tyler during cross-examination. We disagree.

¶ 59 The Illinois and United States constitutions guarantee criminal defendants the right to counsel. The latter mandates,"' the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)); U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. When presented with a defendant's ineffective-assistance-of-counsel claim, we apply the well-established two-part Strickland test. The defendant must prove (1) counsel rendered deficient performance, meaning counsel's representation fell below an objective standard of reasonableness as gauged by prevailing professional norms, and (2) counsel's deficient performance prejudiced the defendant, i.e., but for counsel's errors the result of the proceeding would have been different. See People v. Young, 341 Ill.App.3d 379, 383, 792 N.E.2d 468, 472 (2003) (citing Strickland, 466 U.S. at 687, 694); People v. Peck, 2017 IL App (4th) 160410, ¶ 26, 79 N.E.3d 232.

¶ 60 When assessing the deficient-performance prong, "a court must indulge a strong presumption that the challenged action, or inaction, was the result of sound trial strategy." People v. Poole, 2012 IL App (4th) 101017, ¶ 10, 972 N.E.2d 340. Similarly, "a reviewing court will be highly deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel's performance from his perspective at the time, rather than through the lens of hindsight." People v. Perry, 224 Ill.2d 312, 344, 864 N.E.2d 196, 216 (2007). If a defendant fails to prove deficient performance, the court need not consider the prejudice prong, and vice versa. See People v. Torres, 228 Ill.2d 382, 395, 888 N.E.2d 91, 100 (2008); People v. Graham, 206 Ill.2d 465, 476, 795 N.E.2d 231, 238 (2003).

¶ 61 Defense counsel's trial strategy appeared to be discrediting the State's primary witness, Wright, and thereby injecting reasonable doubt into the State's case. Counsel cross-examined Wright vigorously, highlighting discrepancies between Wright's prior statements to law enforcement and his trial testimony. At one point, defense counsel questioned Wright on his written statement dated May 31, 2016. He asked Wright, "did you put in a written statement the shooter had a bandana pulled over his nose and mouth?" Wright answered: "I said he had a bandana. I don't remember, recall saying I had it, he had it over his nose and mouth. I don't recall that." Wright went on to repeatedly deny ever saying defendant had a bandana over his nose and mouth during the shooting, insisting defendant had a bandana under his chin. On appeal, defendant maintains Wright's May 31 written statement "directly contradicts his trial testimony and yet the attorney for [defendant] never sought to introduce the written statement or perfect the impeachment so it could be used as substantive evidence."

¶ 62 Section 115-10.1 of Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2018)), sets the parameters for admitting prior inconsistent statements as substantive evidence and not merely for impeachment purposes. Under section 115-10.1, only the inconsistent portions of a witness's prior written statement are substantively admissible. People v. Govea, 299 Ill.App.3d 76, 87, 701 N.E.2d 76, 83 (1998). Here, the only portion of Wright's written statement that would have been admissible as substantive evidence was his assertion that defendant had a bandana over his nose and mouth. From what we can glean from defendant's brief, he agrees. The only statement defendant identified as admissible under section 115-10.1 was Wright's comment about the bandana over the shooter's nose and mouth. We struggle to see how counsel's decision against moving to admit that particular statement as substantive evidence amounted to deficient performance. Moreover, we observe Wright's statement about the bandana being over the shooter's nose and mouth came in as substantive evidence later in the trial. Defense counsel asked Detectives Paterson and Lake about what Wright told them regarding the bandana. Both testified Wright said the bandana was over the shooter's nose and mouth. Furthermore, as we noted above, defense counsel's strategy was to undermine Wright's credibility. He accomplished this by cross-examining Wright about the prior inconsistent statement. We defer to counsel's strategic decisions. Perry, 224 Ill.2d at 344. Accordingly, we cannot say counsel's decision was objectively unreasonable. Young, 341 Ill.App.3d at 383. Having found no deficient performance, we need not address the prejudice prong. Torres, 228 Ill.2d at 395.

¶ 63 Defendant's brief included one final allegation against his trial counsel:

"That the attorney for [defendant] also made mention throughout the trial of having an affidavit from [Tyler] which contradicted his testimony but yet again he did not present the same to perfect the impeachment."

We observe defendant's brief does not identify any specific inconsistent statement from Tyler's affidavit that could be admitted as substantive evidence under section 115-10.1. Likewise, the brief contains no record citations from the common law record or the report of proceedings. We are left to guess what trial counsel should have moved to admit to perfect his supposed impeachment of Tyler. Curiously, appellate counsel faults trial counsel for not presenting the trial court with information that could help defendant, yet he makes the same mistake on appeal. "Bare contentions in the absence of argument or citation of authority do not merit consideration on appeal and are deemed waived." Obert v. Saville, 253 Ill.App.3d 677, 682, 624 N.E.2d 928, 931 (1993) (citing City of Highwood v. Obenberger, 238 Ill.App.3d 1066, 1073-74, 605 N.E.2d 1079, 1083 (1992)). We will not search the record for citations or possible errors. Mielke v. Condell Memorial Hospital, 124 Ill.App.3d 42, 48-49, 463 N.E.2d 216, 222 (1984). Accordingly, we find defendant waived any argument pertaining to admitting portions of Tyler's affidavit as substantive evidence. Obert, 253 Ill.App.3d at 682.

¶ 64 III. CONCLUSION

¶ 65 For the reasons stated, we affirm the trial court's judgment.

¶ 66 Affirmed.


Summaries of

People v. Brown

Illinois Appellate Court, Fourth District
Oct 25, 2023
2023 Ill. App. 4th 220105 (Ill. App. Ct. 2023)
Case details for

People v. Brown

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEOFFREY…

Court:Illinois Appellate Court, Fourth District

Date published: Oct 25, 2023

Citations

2023 Ill. App. 4th 220105 (Ill. App. Ct. 2023)