People v. Brown

• Decision Date: 11 August 2020
• Docket Number: No. 1-19-0828,1-19-0828
• Citation: 447 Ill.Dec. 320,2020 IL App (1st) 190828,173 N.E.3d 963
• Court: United States Appellate Court of Illinois
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andre BROWN, Defendant-Appellant.

2020 IL App (1st) 190828

173 N.E.3d 963

447 Ill.Dec. 320

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

v.Andre BROWN, Defendant-Appellant.

No. 1-19-0828

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed August 11, 2020

Rehearing denied September 3, 2020

Modified upon denial of rehearing September 14, 2020

Karl Leonard, David B. Owens, and Debra Loevy, of The Exoneration Project at the University of Chicago Law School, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and David H. Iskowich, Assistant State's Attorneys, of counsel), for the People.

JUSTICE COGHLAN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Andre Brown, was convicted of murder in connection with the 1996 shooting death of Enrique Fuentes (Enrique). No physical evidence connected him to the crime, but he was identified at a showup by five eyewitnesses. The State's theory of the case was that Brown, a member of the Blackstone street gang, mistakenly believed Enrique to be a member of a rival gang.

¶ 2 In 2016, Brown filed a postconviction petition asserting his actual innocence and alleging that his due process rights were violated. Following a third-stage evidentiary hearing, the trial court denied his petition, and Brown now appeals. For the reasons that follow, we affirm the judgment of the trial court.

¶ 3 BACKGROUND

¶ 4 Trial Evidence and Proceedings

¶ 5 At around 7 p.m. on September 30, 1996, Enrique and his brother, Leodegareo Fuentes Roman (Leodegareo), were sitting outside a store on the corner of 48th Street and Laflin Street in Chicago. A man approached on a bicycle, shot Enrique multiple times, and then fled eastbound. Based on a contemporaneous witness report, the police issued a radio dispatch to look for a black male riding a mountain bike and wearing a black jacket, black cap, and dark pants.

¶ 6 Less than five minutes later, Officer Mike Ward encountered Brown riding his mountain bike three blocks south of the shooting on Laflin Street. Brown was wearing a black-and-white Oakland Raiders jacket over a dark shirt with white stripes, a black knit cap with a white Nike swoosh on the front, and black pants. Ward observed that Brown was riding slowly and did not appear to be in a hurry, but he was sweating profusely and breathing heavily, and when Ward did a protective pat down of Brown, his heart was beating rapidly. Ward did not find a gun on Brown's person. Officers later conducted a thorough search of the area, including the path they thought Brown might have traveled, and could not find the murder weapon.

¶ 7 Ward brought Brown to the scene of the shooting in a squad car, with the tire of Brown's bicycle visibly sticking out of the trunk. Brown was wearing the black cap and black jacket when he was placed in the squad car. At the scene, officers were stationed with the witnesses, keeping them apart and making sure they did not speak with each other. Ward conducted a showup of Brown to five witnesses: Leodegareo, Timothy Hopper, Karla Navarette, Don O'Reilly, and Juan Campos. All five witnesses identified Brown at the scene and, later, at trial.

¶ 8 Leodegareo testified that neither he nor his brother were gang members. At 7 p.m. on the day of the shooting, they were sitting outside the store at 48th Street and Laflin Street when a man on a bicycle approached them. A Hispanic man was talking with Enrique but ran away as the cyclist drew near. The cyclist stopped around 10 feet away from the Fuentes brothers, lifted his shirt, and pulled a gun from his waistband. Enrique lifted his hands and said, "No, bro," and then the cyclist shot him "seven [or] eight times."

¶ 9 Police and paramedics arrived on the scene. Enrique was taken away by ambulance and later died of his injuries. Approximately 10 to 15 minutes after the shooting, an officer brought Leodegareo to a squad car in which Brown was sitting. Based on Brown's face and his clothes, Leodegareo identified him as the shooter.

¶ 10 Hopper testified that he lived in an apartment with a clear view of 48th Street. At 6:30 p.m. on the day of the shooting, from his second-story window, he noticed a man on a mountain bike cycling back and forth in front of his house for around 15 minutes. Hopper did not pay much attention at first, since cyclists were common in the neighborhood, but started watching him closely because he did not leave. When Hopper first saw the cyclist, it was still daylight, although the sun was starting to set; nothing obstructed his view, and he could see the man clearly. He observed the cyclist was a black man wearing a black knit hat, a black jacket with "maybe a couple of white stripes," and dark pants.

¶ 11 Hopper saw the cyclist ride a block away, towards 48th Street and Laflin Street, and lift up his jacket, revealing a gun. Hopper called 911, described the cyclist, and then ran outside so he could report to police where the cyclist went. He heard two gunshots and then "clearly" saw the cyclist standing at the corner of 48th Street and Laflin Street, firing several more shots. Afterwards, the cyclist headed eastbound on 48th Street.

¶ 12 Shortly afterward, an officer asked Hopper whether Brown, who was sitting in a squad car, "was the person that did the shooting." Hopper did not initially identify Brown because "by then it was dark" and he could not see him clearly. The officers later took Brown out of the squad car. Once Hopper "could see his face," he identified Brown as the shooter. At the time he made his identification, he was not told that others had also identified Brown.

¶ 13 Navarette was 16 when the shooting occurred. At around 7 p.m., she was walking home past the corner store at 48th Street and Laflin Street. She saw a man on a mountain bike wearing a skull hat and black jacket and riding in circles on 48th Street. She kept her eyes on him the entire time because he "seem[ed] suspicious." After she passed Laflin Street, she heard gunshots and ran to her house. She did not actually see anyone firing a gun. After the shots stopped, her parents brought her back to 48th Street and Laflin Street, where police asked her to see if the guy sitting in the police car was the same guy she had seen on the bike. She recognized him although she testified he was not wearing the same clothes: instead of the jacket he was wearing earlier, he had on a sweater, and he was holding his hat in his hands.

¶ 14 O'Reilly testified that, in 1996, he was a La Raza gang member, and the La Razas were at war with the Blackstones. At around 7 p.m., O'Reilly was at 47th Street and Laflin Street, talking with friends, when he heard gunshots. He ran toward 48th Street and saw a man on a mountain bike around 50 feet away. The lighting was "pretty good." The cyclist fired a shot at O'Reilly, who ducked to the ground. When he got up, he saw the cyclist leaving, going east. Later that evening, police asked O'Reilly to look at Brown, who was sitting in the back of a squad car. They shone a flashlight into the car and asked if he could identify Brown as the shooter. O'Reilly said, "That's him." Brown was wearing a striped T-shirt when O'Reilly identified him sitting in the police car, but he was wearing a black cap and jacket at the time of the shooting.

¶ 15 Campos testified that in 1996, he was 16 years old and a La Raza gang member. At the time of trial, he had a felony conviction for aggravated unlawful use of a weapon and was in custody for marijuana possession, but he had made no deals with the prosecution. At 6:30 p.m. on the day of the shooting, Campos was using the phone at the corner store at 48th Street and Laflin Street. A man on a mountain bike pulled up to around five feet away from him and "threw up the pitchfork," a gesture indicating his affiliation with the Folks Nation (Folks). (La Raza is part of the Folks; Blackstone is not.) Campos did not believe the cyclist was a Folks affiliate and told him so.

¶ 16 The cyclist lifted up his shirt, revealing a pistol in his waistband. Campos ducked for cover and then ran. He heard "more than five" gunshots. Minutes later, he returned to the scene and identified Brown "as the guy that was shooting at [him]." Brown was standing outside of the car, and Campos could see him clearly; he recognized Brown as the shooter based on his clothes (which he testified were the same as when he saw him earlier) and his face.

¶ 17 At around the same time as Ward stopped Brown, police stopped two other suspects in the area. Detective John Halloran stopped a black man riding a moped at 54th Street and Bishop Street but released him upon learning that the offender was not riding a motorized vehicle. Halloran testified that other officers stopped a man on a bicycle at 52nd Street and Ashland Avenue, but that man was also released.

¶ 18 After being identified by five eyewitnesses at the scene, Brown was taken to Area 1 for processing. Halloran did not conduct a lineup because the results would have been tainted by the witnesses' prior identifications. Brown's hands were not tested for gunshot residue because he had already been identified by five witnesses and because his profuse sweating and the fact that he had used his hands to remove his coat and hat in the police car might have altered the test results.

¶ 19 Scott Rochowicz, an employee at the state police crime lab, testified for the defense that he performs gunshot residue tests. In such tests, a suspect's hands are swabbed and the swabs are analyzed for the presence of antimony, barium, and lead. A positive result indicates that the suspect either fired a gun, was nearby when a shot was fired, or handled a recently fired gun. Rochowicz acknowledged that sweat could prevent gunshot residue from sticking to one's hands, as could gripping the handlebars of a bike or rubbing hands against clothes or other items.

¶ 20 Brown testified in his own defense that he did not shoot anyone. He stated that he left the...