Opinion
1-18-2425
02-14-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDON MURRY, 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 Cook County. No. 16 CR 17357 Honorable Pamela M. Leeming, Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court. Justices Mary Coghlan and Carl Walker concurred in the judgment.
ORDER
PUCINSKI JUSTICE
¶ 1 Held: We affirm defendant's conviction and sentence over his contentions that there was insufficient evidence to find him guilty of aggravated robbery and that his sentence was excessive and reflected improper considerations.
¶ 2 Following a bench trial, defendant Brandon Murry was found guilty of aggravated robbery (720 ILCS 5/18-1(b)(1) (West 2016)) and sentenced to 14 years in prison. On appeal, defendant contends he was not proven guilty beyond a reasonable doubt when the State relied on the testimony of a drug-addicted felon. He further contends that his sentence is excessive when no one 1 was injured, he had "substantial" potential for rehabilitation, and the trial court improperly considered the sentencing range for another offense and the application of good time credit. We affirm.
¶ 3 Defendant was arrested and charged with armed robbery (counts I and II) and aggravated robbery (count III) following an October 15, 2016 incident involving Robert Williams. Counts I and II alleged, respectively, that defendant was armed with a firearm and a bludgeon; count III alleged that defendant indicated verbally or by action that he was armed with a firearm or other dangerous weapon.
¶ 4 At trial, Williams testified that he had prior convictions for burglary, retail theft, and criminal damage to property. On the afternoon of October 15, 2016, he was in Berwyn Gardens to purchase marijuana and cocaine from an individual named "Matthew," whom he identified in court as defendant. When he arrived, Williams sat with others, then went to an alley to urinate. He heard sounds, turned, and saw defendant and another man. The second man, whom Williams did not know, put a firearm to Williams' head, and defendant said to "get that shit." Initially, Williams believed defendant was joking because they had a business relationship. However, defendant said it was not "a mother*** joke," removed Williams' wallet, money, and phone from his pockets, and walked away. Williams contacted police, gave defendant's phone number to a detective, and identified defendant in a photographic array.
¶ 5 During cross-examination, Williams denied using cocaine or marijuana the day of the robbery but acknowledged drinking a beer. Williams planned to purchase marijuana for a friend and cocaine for himself, but when defendant took too long to arrive, Williams called defendant to cancel and made other arrangements. At the scene, Williams told officers that he had planned to 2 purchase drugs, but then canceled the order and was robbed by a person he knew. He told the police that "Matthew" robbed him, because he did not know defendant as Brandon Murry.
¶ 6 Berwyn police detective Brad Mann testified that during a phone call on October 16, 2016, Williams gave him a cell phone number. Mann ran a search, learned defendant's name was associated with the phone number, and compiled a photographic array.
¶ 7 Berwyn police detective Karlas Robinzine testified that he showed a photographic array to Williams, who identified the offender. Robinzine identified defendant in court as the person Williams identified. A DVD which chronicled the identification process was admitted and played for the court.
The record on appeal contains a DVD which purports to contain the video documenting the administration of the photographic array. However, when viewed by this court, the footage was of a police station lobby and parking lot.
¶ 8 Berwyn police officer Vince Esposito testified that he arrested defendant on October 27, 2016. Defendant initially identified himself as "Matthew" before stating his name was Brandon.
¶ 9 The defense admitted a stipulation that Berwyn police officer Matthew Pechota would testify that on October 15, 2016, Williams said that he received a call from a drug dealer, "Matt," approximately 30 minutes before the incident. Matt asked if Williams needed "any weed," but Williams declined. Pechota would further testify that Williams did not state that he canceled his order, but that he was not purchasing narcotics that day and was merely present at the location where he usually met Matt to purchase narcotics.
¶ 10 In closing argument, the defense argued, relevant here, that Williams, a convicted felon, testified inconsistently and could not be trusted. In rebuttal, the State argued that drug users and 3 felons were entitled to justice, and had Williams fabricated a story, he would have chosen one less "embarrassing" than being robbed while urinating in an alley.
¶ 11 The trial court found defendant guilty of aggravated robbery, and not guilty of armed robbery. In so holding, the court acknowledged that Williams was a "convicted felon" and admitted "drug user," but found him to be "credible on the stand" and "very honest." The court acknowledged "minor inconsistencies" in Williams' testimony, including that when talking to the officer, he initially "own[ed] up" to buying narcotics and then "walk[ed] back" by saying he canceled the sale. The court determined that Williams had no motive to "unnecessarily" implicate defendant.
¶ 12 Defendant filed a motion for a new trial alleging, in pertinent part, that he was not proven guilty beyond a reasonable doubt when the State's only witness was a drug-using felon whose testimony contained numerous inconsistencies. The trial court denied the motion.
¶ 13 Defendant's presentence investigation report (PSI) listed prior convictions for possession of a controlled substance and forgery, as well as misdemeanor convictions for "Bad Checks," resisting or obstructing a peace officer, criminal trespass to land, gambling, possession of cannabis and manufacture or delivery of a controlled substance. During defendant's childhood, his father was absent and his mother prioritized her boyfriend. Defendant graduated from high school, previously worked at Walmart, and had three children. Defendant denied ever seeing a psychiatrist, being prescribed psychotropic medication, or using any "illicit drugs."
¶ 14 At sentencing, the defense argued in mitigation that defendant completed the "Fatherhood of Action" program while in jail, would comply with the terms of probation, and was unlikely to 4 reoffend. Trial counsel requested probation, positing that defendant "finally got it" while "sitting" in jail for two years and that an excessive sentence would be a hardship on his children.
¶ 15 The court stated that it declined to impose probation based on the PSI, and instead imposed a 14-year prison term. Defendant filed a motion to reconsider sentence arguing that the trial court failed to consider his potential for rehabilitation and the impact his incarceration would have on his children and did not permit him to speak in allocution.
¶ 16 After hearing argument on the motion, the trial court vacated the sentence and held a new sentencing hearing. Defendant apologized, took responsibility for his actions, and explained that at the time of the offense he not taking his "psych meds" and was "high." He asked for a second chance to be with his family and promised to be "better" and "never commit another crime again."
¶ 17 The trial court thanked defendant for his "genuine and heartfelt" statement, noted that it "already" heard evidence in aggravation and mitigation, and just heard additional mitigation evidence. Trial counsel then noted that defendant took responsibility, expressed remorse, and understood his actions were wrong, and asked the court to consider this when sentencing defendant.
¶ 18 The trial court then asked the State whether defendant would receive day-for-day credit or serve 85% of his sentence. The State indicated the former, and court stated that it had "looked it up," but wanted to confirm. The court stated that it previously heard evidence in aggravation and mitigation, heard additional evidence in mitigation, heard defendant's statement, and considered the facts of the case, the PSI, and the certificate from the fatherhood training course.
¶ 19 The court sentenced defendant to 14 years in prison, stating that it considered that defendant was a "young man" with his "whole life" ahead but was 5
"running around sticking people with a gun, or what *** look[ed] like a gun. That's what you were doing. Okay? And you were facing, as charged, armed robbery, which carries with it 21 years mandatory minimum in prison up to 30 years. Had [the court] found you guilty of armed robbery, sir, you would have been doing a little over ten years in prison.
[The court] considered your rehabilitative potential and *** the facts of this case. *** You have served almost two years in the penitentiary. It's day for day. You're looking at five years, which is a lot better than what you would have served under the armed robbery statute, which would have been more than ten years in prison. So your sentence is already half of what you were looking at in this case."
¶ 20 Defendant did not file a motion to reconsider sentence.
¶ 21 On appeal, defendant first contends that he was not proven guilty beyond a reasonable doubt when the State's sole witness was a drug-addicted felon whose testimony contained numerous inconsistencies.
¶ 22 When reviewing a challenge to the sufficiency of the evidence, "the question is '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.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from the facts presented at trial. Id. "In reviewing the evidence, this court will not retry the defendant, nor will we substitute our judgment for that of the trier of fact." Id. We do not reverse a defendant's conviction "simply because the evidence is contradictory or because the defendant claims that a witness was not credible." People v. Gray, 6 2017 IL 120958, ¶ 36. Rather, a defendant's conviction will be reversed only when the evidence is so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of his guilt. People v. Newton, 2018 IL 122958, ¶ 24.
¶ 23 Here, defendant was charged with aggravated robbery in that he knowingly took a cell phone and other property from Williams by using or threatening force and while indicating verbally or by his actions that he was armed with a firearm or other dangerous weapon. See 720 ILCS 5/18-1 (b)(1) (West 2016). In order to sustain a conviction for aggravated robbery, the State must establish that the victim had an objective reason to believe that the defendant was armed. See People v. Hall, 352 Ill.App.3d 537, 543 (2004).
¶ 24 Taking the evidence in the light most favorable to the State, a rational trier of fact could find that defendant committed aggravated robbery. Williams testified that defendant and another man approached him in an alley as he urinated, the other man put a firearm to his head, and defendant said, "get that shit." Defendant stated it was not a "mother*** joke," and took Williams' cell phone, wallet, and money. Williams' testimony established the elements of aggravated robbery, as charged, based on defendant's personal actions and accountability for the co-offender's conduct, and therefore, is sufficient to sustain defendant's conviction. See People v. Siguenza- Brito, 235 Ill.2d 213, 228 (2009) ("the testimony of a single witness, if positive and credible, is sufficient to convict").
¶ 25 Defendant, however, contends that Williams' prior conviction for theft, drug use, and inconsistent testimony were fatal to his credibility.
¶ 26 A witness's drug use and prior conviction for a crime relating to dishonesty bear on his credibility. See People v. Herman, 407 Ill.App.3d 688, 705 (2011) (the "testimony of a narcotics 7 addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars" (internal quotation marks omitted)); People v. Diehl, 335 Ill.App.3d 693, 704 (2002) (a conviction for theft "speaks" to a person's truthfulness and prior convictions are "crucial in measuring *** credibility"). These considerations, however, do not necessarily render a witness incredible. Rather, these facts are a consideration when assessing the witness's credibility. Herman, 407 Ill.App.3d at 705; see also People v. Howard, 376 Ill.App.3d 322, 329 (2007) ("A convicted felon is not automatically precluded from providing credible testimony.").
¶ 27 On review, a court must "carefully examine the evidence while bearing in mind that the trier of fact is in the best position to judge the credibility of witnesses, and due consideration must be given to the fact that the fact finder saw and heard the witnesses." Herman, 407 Ill.App.3d at 704. "Where findings of fact depend on the credibility of witnesses, a reviewing court will defer to the findings of the trial court unless they are against the manifest weight of the evidence." People v. Clark, 2014 IL App (1st) 130222, ¶ 26.
¶ 28 At trial, Williams admitted to his prior convictions and drug use, and identified defendant as his drug dealer. Thus, the trial court could consider these facts when assessing Williams' credibility. Defendant is correct that Williams testified on direct examination that he planned to purchase marijuana and cocaine from defendant, and on cross-examination, stated that he canceled the order because defendant took too long to arrive. However, Williams also testified that he told officers at the scene that he planned to purchase drugs but canceled the order, and that he was robbed by a person he knew.
¶ 29 Although Officer Pechota's stipulated testimony indicated that Williams stated that defendant called him, he declined to make a purchase, and he just happened to be at the place 8 where he usually purchased drugs from defendant, Williams consistently stated that defendant robbed him. Thus, the inconsistencies related to how Williams came to be in the area, not whether defendant took items from him. See Howard, 376 Ill.App.3d at 329-30 (minor inconsistencies in testimony do not "compel a finding" that testimony was not credible, "given the consistency with which [witnesses] testified to the essential elements of the offenses"). Here, the court acknowledged that Williams was a felon, used drugs, and had minor inconsistencies in his testimony, and notwithstanding, found Williams' testimony that defendant and another man took items from him to be credible as evidenced by its judgment. The resolution of witness credibility is reserved for the trier of fact. See Gray, 2017 IL 120958, ¶ 35.
¶ 30 We are unpersuaded by defendant's reliance on Herman. In that case, this court reversed the defendant's convictions for multiple offenses, including criminal sexual assault, based upon the finding that the alleged victim was not credible and that her testimony was significantly flawed. Herman, 407 Ill.App.3d at 708-09. The victim was "an admitted crack addict," who was" 'high' during the entire night of the [alleged sexual] encounter" and whose testimony "was fraught with inconsistencies and contradictions." Id. at 705. Therefore, "the flaws [in the victim's] testimony made it impossible for any fact finder reasonably to accept any part of it," when compared to the defendant's "internally consistent, unimpeached and unrebutted" testimony. Id. at 707-09.
¶ 31 Herman is distinguishable from the present case. Williams denied using narcotics on the day of the offense and the inconsistencies in his recitation of events related to the circumstances leading to the offense rather than the offense itself.
¶ 32 We also reject defendant's argument, unsupported by caselaw, that Williams' "account" of events is unworthy of belief because the State did not present the testimony of the responding 9 officers, defendant's companion was not arrested, and neither the companion's alleged weapon nor the items taken from Williams were not recovered. Defendant points to no requirement that a co-offender be arrested, or the proceeds of a robbery be recovered, in order to sustain a conviction. In determining that Williams testified credibly, the trial court noted that he was a convicted felon and drug-user and acknowledged the inconsistencies in his recitation of events but noted also that Williams knew defendant and had no motive to implicate him. When weighing evidence, the trier of fact is not required to disregard inferences flowing naturally from the evidence before it or search out all possible explanations consistent with innocence and raise them to the level of reasonable doubt. In re Jonathon C.B., 2011 IL 107750, ¶ 60.
¶ 33 Accordingly, viewing the evidence in the light most favorable to the State, we cannot say that no rational trier of fact could have concluded that defendant took items from Williams while his companion put a firearm to Williams' head. We reverse a defendant's conviction only when the evidence is so unreasonable, improbable, or unsatisfactory that reasonable doubt of his guilt remains (Newton, 2018 IL 122958, ¶ 24); this is not one of those cases. Defendant's conviction for aggravated robbery is therefore affirmed.
¶ 34 Defendant next contends that his 14-year sentence is excessive because the trial court failed to consider all evidence in mitigation and improperly considered factors in aggravation. Defendant acknowledges that he has forfeited this issue by failing to file a motion to reconsider sentence but requests plain error review. In the alternative, he contends that he was denied effective assistance by trial counsel's failure to file a motion to reconsider sentence.
¶ 35 To preserve a claim of sentencing error, the defendant must make a contemporaneous objection and raise the issue in a postsentencing motion. People v. Hillier, 237 Ill.2d 539, 544 10 (2010). The plain error doctrine permits a reviewing court to consider unpreserved error when (1) the evidence is close, regardless of the seriousness of the error; or (2) the error is serious, regardless of the closeness of the evidence. People v. Herron, 215 Ill.2d 167, 186-87 (2005).
¶ 36 In the context of a sentencing hearing, a defendant must show that an error occurred and either (1) the evidence at the hearing was closely balanced, or (2) the error was so egregious that it denied the defendant a fair hearing. Hillier, 237 Ill.2d at 545. The first step in plain error review is to determine whether an error occurred. See People v. Hood, 2016 IL 118581, ¶ 18 (without error, there can be no plain error). A defendant has the burden to establish plain error. See People v. Thompson, 238 Ill.2d 598, 613 (2010).
¶ 37 When determining a sentence, "the trial court has broad discretionary powers." People v. Stacey, 193 Ill.2d 203, 209 (2000). We give substantial deference to the trial court because "the trial judge, 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. Accordingly, a sentence will not be disturbed absent an abuse of discretion. Stacey, 193 Ill.2d at 209-10; see also People v. Willis, 2013 IL App (1st) 110233, ¶ 122. An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. People v. Johnson, 347 Ill.App.3d 570, 574 (2004).
¶ 38 The Illinois Constitution requires that "[a] ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, § 11. The trial court must consider "all factors in aggravation and mitigation, including, inter alia, the defendant's age, demeanor, habits, mentality, credibility, 11 criminal history, general moral character, social environment, and education, as well as the nature and circumstances of the crime and of defendant's conduct in the commission of it." People v. Quintana, 332 Ill.App.3d 96, 109 (2002). Where a sentence falls within the statutorily mandated guidelines, it is presumed to be proper and will be overturned only where there is an affirmative showing that it departs significantly from the "spirit and purpose of the law" or is "manifestly disproportionate to the nature of the offense." People v. Knox, 2014 IL App (1st), ¶ 46. Absent some indication to the contrary, other than the sentence itself, a reviewing court presumes the trial court considered all mitigating evidence presented. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 19. A defendant's rehabilitative potential is not entitled to greater weight than the seriousness of the offense. People v. Reed, 2018 IL App (1st) 160609, ¶ 62.
¶ 39 Here, defendant was found guilty of aggravated robbery, a Class 1 offense with a sentencing range of 4 to 15 years in prison. 720 ILCS 5/18-1 (b)(1), (c) (West 2016); 730 ILCS 5/5-4.5-30(a) (West 2016). The trial court initially imposed a 14-year sentence, but then granted defendant's motion to reconsider sentence, vacated the sentence, and held a second sentencing hearing. At the conclusion of that hearing, the court again imposed a 14-year prison term. This sentence, which is within the applicable statutory sentencing range, is presumed to be proper. Knox, 2014 IL App (1st), ¶ 46.
¶ 40 At the conclusion of the second sentencing hearing, during which defendant apologized, asked for a second chance, and promised never to commit another offense, the court noted that it previously heard evidence in aggravation and mitigation, and had just heard additional mitigation evidence. See Willis, 2013 IL App (1st) 110233, ¶ 123 ("If mitigating evidence is presented to the trial court, we are to presume, absent some indication to the contrary, other than the sentence itself, 12 that the trial court considered it."). The court noted that although defendant was young, he was also "sticking people [up]." After considering the facts of the case and defendant's rehabilitative potential, the court sentenced him to 14 years in prison. See id. (when balancing the interests of society against the ability of the defendant to be rehabilitated, his "rehabilitative potential *** is given less weight than the severity of the crime"); see also People v. Brown, 2015 IL App (1st) 130048, ¶ 41 ("A defendant's potential for rehabilitation is not given greater weight than the seriousness of the crime.").
¶ 41 Defendant argues, however, that his sentence is excessive where his imprisonment will be hard on his children, he is likely to comply with probation and not reoffend, and his criminal history dates from his "young adult" and "teenage years." He submits that he took responsibility and apologized for his actions, which occurred because he was not taking his psychiatric medication and was high, and the offense was nonviolent.
¶ 42 The record, however, shows that the trial court considered the evidence in aggravation and mitigation, including the PSI, defendant's statement, and counsel's arguments at sentencing. Although defendant argues that court failed to adequately consider his drug addiction and mental health issues, substance abuse issues are not inherently mitigating. See People v. Brunner, 2012 IL App (4th) 100708, ¶ 64 (noting, "an abusive childhood, mental-health problems, and substance-abuse issues are not set forth in the list of mitigating factors in section 5-5-3.1(a)" of the Unified Code of Corrections). "Simply because the defendant views his drug abuse history as mitigating does not require the sentencer to do so." People v. Shatner, 174 Ill.2d 133, 159-60 (1996) (our supreme court stated that it "has never held *** that a sentencing judge must consider [a] defendant's drug use as a mitigating factor in sentencing decisions"). Moreover, in the PSI, which 13 the trial court stated that it considered when imposing sentence, defendant denied ever seeing a psychiatrist, being prescribed psychotropic medication, or using any "illicit drugs."
¶ 43 While a sentence should reflect both the seriousness of the offense and the objective of restoring the offender to useful citizenship (People v. Jones, 2015 IL App (1st) 142597, ¶ 38), the most important factor in sentencing, as noted, involves the seriousness of an offense, not mitigating evidence (People v. Harmon, 2015 IL App (1st) 122345, ¶ 123). Moreover, the existence of mitigating factors does not require the imposition of a minimum sentence or prevent the imposition of the maximum sentence. Id. Ultimately, defendant asks us to re weigh the mitigating factors and substitute our judgment for that of the trial court, which we will not do. See Jones, 2015 IL App (1st) 142597, ¶ 40. Here, defendant's sentence is within the applicable sentencing range, and we cannot say that it varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. Knox, 2014 IL App (1st), ¶ 46. Therefore, the trial court did not abuse its discretion.
¶ 44 To the extent defendant alleges the trial court improperly considered the sentencing range for armed robbery, a charge for which he was found not guilty, and also erred by considering that aggravated robbery is an offense eligible for day-for-day sentencing credit, we disagree. The trial court's comments must be viewed in context. People v. Ward, 113 Ill.2d 516, 526-27 (1986) (when determining whether a sentence was improperly imposed, a reviewing court should not focus on a few words or statements of the trial court, but rather, must consider the entire record as a whole). Here, taken in context, the trial court explained the serious nature of the conduct for which defendant was charged, that is, he was "running around sticking people with a gun, or what *** look[ed] like a gun," and the potential sentence associated with that behavior. Moreover, good- 14 time credit is a "part of every sentence," and a sentencing court may consider the "possibility of good-time credit a factor in determining" a defendant's sentence. See People v. Reedy, 186 Ill.2d 1, 7-8 (1999) (collecting cases).
¶ 45 As defendant has failed to establish error, there can be no plain error and his procedural forfeiture must be honored. Hood, 2016 IL 118581, ¶ 18; see also People v. Williams, 2017 IL App (1st) 150795, ¶ 40 ("There was no error, let alone 'plain' error, and so we need not go further in the plain error analysis.").
¶ 46 For the same reason, defendant's claim that he was denied effective assistance because trial counsel did not preserve an excessive sentencing claim by filing a motion to reconsider sentence after the second sentencing hearing also fails. A defendant alleging ineffective assistance must prove prejudice, such that "absent counsel's deficient performance there is a reasonable probability that the result of the proceeding would have been different." People v. Evans, 209 Ill.2d 194, 219-20 (2004) (citing Strickland v. Washington, 466 U.S. 668, 687, 694 (1984)). As the trial court did not abuse its discretion in imposing sentence, defendant cannot demonstrate a reasonable probability that the result would have been different had trial counsel preserved the issue. See, e.g., People v. Brown, 2017 IL App (1st) 142877, ¶ 66 (counsel was not ineffective for failing to file motion to reconsider sentence where there was no reasonable probability that the sentence would have been different had the motion been filed).
¶ 47 This author has previously written extensively about the need to consider the brain development of emerging adults in sentencing defendants between 18 years and 25 years of age. Indeed, scientific research indicates that emerging adults are less culpable than adults when crimes are committed and that society's response should reflect that diminished culpability. (See: People 15 v. Sherman Ward, 2021 IL App (1st) 181402-U, pars 31-37, J. Pucinski, Author; J.Smith concurring; J. Lavin, dissenting).
¶ 48 However, here, the defendant was charged under a theory of accountability, was 22 years old when the crime was committed, gave no indication of peer pressure or reckless or youth-based impetuosity; and the court specifically found the victim a credible witness. Further, the defendant actively participated in the aggravated robbery, knowing full well that his accomplice had and was holding a firearm against the victim; and, finally, the defendant acknowledged this behavior in his allocation.
¶ 49 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 50 Affirmed. 16