People v. Brakes

Decision Date30 August 2021
Docket Number1-18-1737
Citation2021 IL App (1st) 181737,186 N.E.3d 1066
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tarik BRAKES, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Douglas R. Hoff, and Adrienne N. River, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Daniel Piwowarczyk, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 In three separate indictments, the State charged Tarik Brakes with armed robbery of Reginald Williams and Steve Martin, attempted armed robbery of Demacio Bailey and Demario Bailey, and first degree murder for the shooting death of Demario. Three other codefendants—Isaiah Penn, Carlos Johnson, and Tarik's brother, Deafro Brakes—were charged with similar offenses. During Tarik's jury trial, the trial court allowed the State to introduce a photo of him, taken two months before the charged offenses, showing Tarik holding a gun next to Johnson, who is contorting his hands in what Johnson's counsel described as a gang sign. After hearing the remaining evidence against Tarik, the jury found him guilty on all relevant charges. The trial court sentenced him to an aggregate term of 45 years in prison.

¶ 2 Tarik challenges the admission of the photograph of him with Johnson, arguing (i) it was irrelevant, (ii) it served as a back door for prejudicial gang evidence, and (iii) whether relevant or not, it was more prejudicial than probative. We agree with Tarik that the photograph was irrelevant because the State provided no link between the photograph and the charged offenses. But we find the error in admitting the photo harmless. The State introduced the photograph through one witness and never mentioned it again. Moreover, the evidence against Tarik was strong enough to override any possible effect the photograph may have had on the jury.

¶ 3 Tarik, a minor at the time of the offenses, also challenges his sentence. First, after People v. Buffer , 2019 IL 122327, 434 Ill.Dec. 691, 137 N.E.3d 763, his 45-year sentence is an unconstitutional de facto life sentence that the trial court did not intend to impose. And secondly, if his sentence is constitutional, then the truth-in-sentencing law requiring him to serve 100% of his first degree murder sentence is not. The State agrees that the trial court did not intend to impose a life sentence but argues that, because Tarik is entitled to good-conduct credit for the attempted armed robbery offenses, he will only serve 39 of 45 years under Buffer ’s 40-year ceiling. This court has repeatedly rejected the State's request to consider good-conduct credit in this context ( People v. Peacock , 2019 IL App (1st) 170308, 434 Ill.Dec. 498, 136 N.E.3d 1023 ), but after oral argument, the Illinois Supreme Court decided People v. Dorsey , 2021 IL 123010, 451 Ill.Dec. 258, 183 N.E.3d 715, and overruled Peacock and its progeny. See id. ¶ 1 ("a statutory scheme that affords a juvenile an opportunity to be released from prison after serving 40 years or less of the term imposed does not constitute a de facto life sentence").

¶ 4 Now bound by Dorsey , we conclude Tarik did not receive a de facto life sentence, and his constitutional challenge to the term of years of his sentence must fail. Dorsey also undermines Tarik's as-applied challenge to the statutory sentencing scheme requiring him to serve 100% of his 33-year first degree murder sentence. He argues the mandatory scheme violates Miller because it does not give him a chance to demonstrate rehabilitation before the term of his sentence expires. Dorsey reaffirms the principle that the relevant sentencing scheme need only provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation before he spends more than 40 years in prison. " (Emphasis added and internal quotation marks omitted.) Id. ¶ 65. Nothing requires the General Assembly to guarantee an opportunity for release before 40 years. See id. ¶¶ 53-54. Adding on the consecutive sentences for which he may receive good time credit, his sentence still falls below Buffer ’s 40-year line.

¶ 5 Background

¶ 6 Because Tarik does not challenge the sufficiency of the evidence against him, we briefly recount the narrative of the offenses, including detail relevant to our analysis.

¶ 7 Tarik, Deafro, Johnson, and Penn met at Tarik's house. There, they discussed committing robberies. Tarik had a "block gun," a semiautomatic .380-caliber handgun that anyone on the block could use. The group went to a viaduct on 63rd Street in Chicago.

¶ 8 Once there, the group robbed Williams. A boy, eventually identified as Tarik, pointed a gun at him and members of the group took Williams's phone and some money. The group then crossed the viaduct and robbed Martin. Martin also identified Tarik as the person who pulled out a gun and took Martin's phone from his pocket. After taking the phone, the group left but came back briefly to have Martin unlock his phone.

¶ 9 Two members of the group then came up to Demario and Demacio, who were walking together through the viaduct. One of the group grabbed Demario, and the other grabbed Demacio. Demario was able to break free and hit the person holding Demacio. A boy wearing a camouflage jacket walked up, and a gunshot went off. Demario fell to the ground and later died from a gunshot wound. Penn, one of the codefendants, testified that Tarik shot Demario.

¶ 10 Mercedes Austin and Ciera Wilson were walking on 63rd Street near the viaduct when they saw a group of four boys running from the viaduct. Though neither could see their faces, Austin said one of the boys wore a camouflage jacket. Of the offenders who robbed Martin, he described the one with the gun as having a chipped tooth and wearing a camouflage jacket. Williams described his gun-wielding assailant similarly—having a chipped tooth and black camouflage pants and jacket.

¶ 11 Williams and Martin both went to a nearby gas station after the robberies. Police eventually arrived with Johnson and a man named Jermaine Jones for a show-up identification. Williams identified both as involved in the robbery—one took his phone and one had the gun. Martin only identified Johnson as a robbery participant. Sergeant Shawn Ryan later had Williams view a lineup containing Johnson and Jones. Williams again identified them, but Jones was later released because "it was determined he was excluded as a suspect." In a separately conducted photo array, Williams signed his name and identified Tarik as the person who held the gun and had a chipped tooth. Martin also viewed a photo array; he identified Tarik as the person with the chipped tooth. Demacio also viewed several photo arrays but was unable to identify, though he did point out Tarik in court.

¶ 12 Shortly after Demario's murder, Demacio identified Tracy Norwood, David Phillips, and Leshawn Norwood as three of the offenders. Officers obtained security footage from a nearby high-rise residence, which showed the three leaving the elevator at various times more than 30 minutes after the robberies and murder. The three were never charged.

¶ 13 During Penn's testimony, which largely corroborated the victims’, the State attempted to admit a Facebook photo showing Tarik and Johnson together. The trial court had earlier denied Tarik's motion in limine seeking to exclude the photo. It shows Tarik holding a gun that is pointing toward the camera. Tarik stands next to Johnson, who is manipulating his hands in a way that Johnson's counsel argued was a gang sign. The photo was posted about two months before the robberies and murder. The trial court allowed Penn to testify about the photo, and he identified both Tarik and Johnson. He then explained that Tarik was holding a different type of gun than the murder weapon.

¶ 14 The only physical evidence recovered was a .380-caliber shell casing that had been ejected from a semiautomatic firearm. The gun was never found.

¶ 15 The jury found Tarik guilty of Demario's murder, attempted armed robbery of Demario, and armed robbery of both Martin and Williams. Tarik filed a motion for a new trial arguing, in part, that the trial court erred in allowing the State to introduce the Facebook photo. The trial court denied the motion.

¶ 16 After hearing evidence and arguments at sentencing, the trial court found that "nobody set out to murder Demario Bailey or anyone else." The court added that "evidence for rehabilitation is not insubstantial," given Tarik's and Johnson's strides in pursuing an education while incarcerated. The court avoided a de facto life sentence by declining to impose a discretionary firearm enhancement on Tarik. Instead, the trial court sentenced Tarik to a 33-year prison sentence for first degree murder. That sentence had to run consecutively with a six-year sentence for attempted armed robbery, which also had to run consecutively with two concurrent six-year sentences for armed robbery. Tarik's aggregate sentence, then, is 45 years. The trial court denied Tarik's motion to reconsider his sentence—in part on eighth amendment grounds.

¶ 17 Analysis

¶ 18 Tarik challenges his conviction on one ground: the trial court erroneously admitted the Facebook photograph from two months before the offenses showing Tarik with a gun and Johnson flashing an alleged gang sign. We agree the photograph is irrelevant, and so the trial court erred in admitting it. The error was harmless, however, given the State's limited use of the photograph and the otherwise sufficient evidence.

¶ 19 As to his sentence, Dorsey instructs us that Tarik did not receive a de facto life sentence, and his constitutional challenge fails.

¶ 20 Photographic Evidence

¶ 21 Tarik argues the trial court erroneously admitted a photograph...

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