People v. Branch

• Decision Date: 16 January 2018
• Docket Number: No. 1–15–0026,1–15–0026
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Deshawn BRANCH, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 150026

140 N.E.3d 776

435 Ill.Dec. 726

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Deshawn BRANCH, Defendant–Appellant.

No. 1–15–0026

Appellate Court of Illinois, First District, Second Division.

Rehearing denied January 3, 2018

January 16, 2018

Michael J. Pelletier, Patricia Mysza, and Darrel F. Oman, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Clare Wesolik Connolly, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 Following a jury trial, defendant Deshawn Branch was convicted of one count of attempted first degree murder ( 720 ILCS 5/8–4(a), 9–1(a)(1) (West 2010) ) and sentenced to 40 years' imprisonment. Defendant's sentence included a 25–year minimum enhancement because he personally discharged a firearm which caused great bodily harm to another person. 720 ILCS 5/8–4(c)(1)(D) (West 2010). On appeal, defendant contends that (1) the State failed to prove his guilt beyond a reasonable doubt because the two eyewitnesses, Kevin McAdory and Tayshonna Mitchell, who identified him as the shooter, provided unreliable identification testimony; (2) his conviction should be reversed because the State engaged in prosecutorial misconduct during closing argument; and (3) his 40–year sentence is excessive in light of his youth and potential for rehabilitation. For the reasons set forth herein, we affirm the judgment of the trial court.

¶ 2 Defendant was charged by indictment with multiple counts of attempted first degree murder, aggravated battery with a firearm, aggravated discharge of a firearm, aggravated unlawful restraint, and unlawful restraint. The State nol-prossed eight counts, and the case proceeded to jury trial on one count of attempted first degree murder predicated on the personal discharge of a firearm which caused great bodily harm to the victim and one count of aggravated battery with a firearm.

¶ 3 Kevin McAdory testified that, shortly after midnight on October 15, 2011, he walked from his house at 14100 South School Street to his girlfriend's house on Tracy Street in Riverdale, Illinois. He stated that the streetlights "were on for the whole block." While walking on Tracy Street, McAdory saw defendant, whom he had been familiar with for six years, standing near a car with a group of people. He also saw a woman, named Tayshonna, with whom he was also familiar, sitting inside a car. McAdory identified defendant in court and testified about an incident between defendant's brother and another man from the neighborhood that occurred on March 23, 2011. During that incident, McAdory was shot. After the incident, McAdory spoke with the police and told them that defendant's brother had been present at the altercation.

¶ 4 When McAdory saw defendant, on October 15, 2011, defendant greeted him and asked him for a cigarette. McAdory gave defendant a cigarette and spoke to him for "a couple of seconds." As he did so, defendant pulled out a ".38 caliber revolver" and said "[w]hy you snitch on bro?" Defendant then shot him four times. McAdory threw his hands up into the air and told defendant that he "didn't snitch on bro." He then started to run across the street but was hit in the back of the head with a gun and lost consciousness. When McAdory regained consciousness, he saw that everyone who had been in the area was gone. He stood up and attempted to walk home but again lost consciousness in the street. When he regained consciousness, police and paramedics were assisting him. He testified that he briefly spoke with a police officer before he was taken to the hospital. He did not remember the ambulance ride or arriving at the hospital.

¶ 5 At the hospital, about twelve hours after the shooting, McAdory spoke with Detective Glenn Williams and Lieutenant Bailey of the Riverdale Police Department. McAdory was on medication at the time and testified that he was "in and out of consciousness, going back to sleep." He spoke with the officers but did not tell them who shot him. McAdory stated that he "wasn't able to stay up" while speaking with the officers. Two days later, on October 17, 2011, the officers returned to the hospital and McAdory was "able to stay up for just enough to talk to them." He told the officers that defendant had shot him. On October 18, the officers returned to the hospital to conduct a photo array. After signing a photo spread advisory form, McAdory identified a photograph of defendant as the person who shot him.

¶ 6 McAdory testified that he remained in the hospital for almost a month. He detailed multiple surgeries, including a surgery to remove a bullet from his lung, and displayed his scars in open court. He also identified a jacket that he had been wearing on the night of the incident, which had two bullet holes in the back.

¶ 7 On cross-examination, McAdory stated that, on the date in question, he did not have an "issue" with defendant. He denied that, between March 23, 2011, and October 2011, there had been a dispute between him and defendant. McAdory acknowledged that he did not tell the first responding officer who shot him but was able to tell the officer his own name and address. McAdory stated that he did not tell the officers, who visited him in the hospital on October 15, that defendant shot him because he was in and out of consciousness. Defense counsel confronted him with his grand jury testimony, in which he answered a similar question by saying "because I wasn't too sure."

¶ 8 On redirect examination, the State presented McAdory with the next question and answer from his grand jury testimony in which he had explained that "he wasn't too sure" because he was "under medication" and going in and out of consciousness.

¶ 9 Tayshonna Mitchell testified that, on October 15, 2011, she was hanging out with friends and family, including defendant, near her car that was parked on the side of Tracy Street. She stated that, prior to the date in question, she had known defendant for two or three years and that he was a close friend of one of her cousins. When McAdory approached the group, Mitchell heard defendant ask him for a cigarette. She then turned away and heard a gunshot. When she looked in the direction of McAdory and defendant she saw McAdory stumbling across the street. She then saw defendant shoot McAdory two times in the back from two to four feet away. McAdory was able to stumble to the other side of the street. There, defendant got on top of McAdory and hit him with the gun. Mitchell got into her car and drove away.

¶ 10 On October 21, 2011, Mitchell was at work and was approached by police officers, who asked her about the shooting. Mitchell did not tell the officers that she had witnessed the shooting because she did not want to talk about it. The officers drove her to a police station and told her that she could be charged if she was withholding information about the shooting. The officers also told her that they already had defendant in custody and would not allow her to make a phone call. Mitchell then told the officers about the shooting. The next morning, she identified defendant in a lineup as the person who shot McAdory on October 15, 2011.

¶ 11 On cross-examination, Mitchell testified that, on September 5, 2013, she met with defense counsel and an investigator. During the meeting, Mitchell told counsel that she felt pressured by the officers to identify defendant as the shooter. On redirect, Mitchell testified that, although she felt pressured to make an identification, she did not feel pressured to say anything that was not true. She explained that she was not handcuffed when the officers escorted her to the police station on October 21, 2011, and that the officers treated her "[s]ort of kind of like [she] was a victim." On recross, Mitchell testified that the officers did not allow her to drive to the police station in her own vehicle and that she spent the night in a jail cell before viewing the lineup the next morning.

¶ 12 Officer Roudez testified that, on October 15, 2011, he responded to a call of gunshots in the 14000 block of Tracy Street in Riverdale. When he arrived on the scene, he observed a man collapse in the street. Roudez approached the man and noticed a trail of blood coming from the back of his head and two bullet holes in the back of his jacket. Roudez called paramedics and asked the man for his name. He had to ask multiple times because the man was "semiconscious." Roudez was able to make out the man's first name but was unable to elicit more information as the man "attempted to say something, but he was not clear, his mouth moved, but no sounds were coming out." The State then rested its case-in-chief.

¶ 13 Detective Williams testified that, on October 15, 2011, he spoke with McAdory in the hospital. McAdory told Williams that he did not know who shot him. Williams testified that he did not interview a number of witnesses who had been present during the shooting, but was able to interview Tina Bell and Tayshonna Mitchell. He testified that he had spoken to Mitchell and transported her from her place of employment to a police station. Williams initially stated that he had not told her that she was being arrested for obstruction of an investigation. Upon being confronted with a police report he authored, Williams acknowledged that he told Mitchell that she was under arrest because she lied about not witnessing the shooting.

¶ 14 On cross-examination, Williams stated that, when he visited McAdory at the hospital, McAdory was "obviously injured" and appeared to be medicated because he was "not able to answer all of [his] questions."

¶ 15 In closing argument, the State argued that McAdory and Mitchell's testimony proved that defendant attempted to kill McAdory and that he personally discharged a firearm, which resulted in great bodily harm to McAdory.

¶ 16 D...