People v. Brown

• Citation: 161 N.E.3d 972,2020 IL App (1st) 170980,443 Ill.Dec. 320
• Decision Date: 27 March 2020
• Docket Number: No. 1-17-0980,1-17-0980
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kiar BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 170980
161 N.E.3d 972
443 Ill.Dec. 320

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kiar BROWN, Defendant-Appellant.

No. 1-17-0980

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed March 27, 2020
Rehearing denied May 8, 2020

James E. Chadd, Patricia Mysza, Linda Olthoff and Michael Gentithes, of State Appellate Defender's Office, of Chicago, for appellant.

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

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

443 Ill.Dec. 322

¶ 1 Following a jury trial, defendant Kiar Brown was found guilty of first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2008)) and sentenced to 55 years' imprisonment. We affirmed defendant's conviction on direct appeal. People v. Brown , 2013 IL App (1st) 110453-U, 2013 WL 244478.

¶ 2 In November 2013, defendant pro se filed a petition pursuant to the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2012)), in which he asserted, inter alia , a claim of ineffective assistance of counsel based on his counsel's failure to inform the trial court that defendant had overheard an assistant state's attorney tell a witness the contents of previous witnesses' testimonies. The circuit court advanced the petition to the second stage of proceedings under the Act and, on the State's motion, dismissed defendant's petition. Defendant appeals, arguing the court erred by dismissing his petition where he made a substantial showing of a constitutional violation of his right to effective assistance of counsel. We affirm.

¶ 3 I. JURISDICTION

¶ 4 The circuit court dismissed defendant's postconviction petition on March 22, 2017. Defendant filed his notice of appeal on April 4, 2017. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), governing appeals in postconviction proceedings.

¶ 5 II. BACKGROUND

¶ 6 Defendant's arrest and prosecution arose out of the April 25, 2009, shooting death of Zachary Allmon, which occurred at approximately 4:30 p.m. on the 5200 block of South Carpenter Street in Chicago. The shooting was witnessed by two young girls, M.O. and A.M., who were playing outside at the time, and Andrell Singleton, who was eating in his car directly across the street from where the final shots were fired. M.O., A.M., and Singleton identified defendant as the shooter both in a lineup and at trial.

¶ 7 Prior to defendant's jury trial, the parties made a mutual motion to exclude witnesses, which the trial court granted.

¶ 8 At trial, M.O. testified that she was 12 years old at the time of the shooting. At approximately 4 p.m. on April 25, 2009, she, her cousin A.M., and her four-year-old sister were outside her father's house on the 5200 block of South Carpenter Street playing with her father's dog. The girls played on the outside of a fenced area

161 N.E.3d 975

443 Ill.Dec. 323

because A.M. was scared of the dog, which was inside the fenced area. Allmon, who M.O. knew from the neighborhood, walked by, and they said "hey" to each other.

¶ 9 Shortly thereafter, M.O. heard gunshots. She pushed her little sister to the ground and got on top to cover her. Three to four seconds later, M.O. looked up and saw Allmon lying on the sidewalk with defendant standing over him. Defendant then shot Allmon three or four times. In total, M.O. heard 9 or 10 gunshots. A.M. leaned on a gate in M.O.'s father's yard, and the dog ran out and chased defendant. Defendant ran to a light blue van, got in the passenger seat, and the van drove off "fast." M.O. identified defendant in court as the shooter.

¶ 10 The girls ran inside M.O.'s father's house after the shooting stopped. When police arrived at the scene, M.O. described the shooter as a "light-skinned boy with box braids with beads on it." M.O. also told police the shooter was wearing an all-black outfit and a black hat. His jacket had the brand name "Coogi" on it. On cross-examination, M.O. admitted that when she first spoke with police, she did not say defendant had box braids; instead she told them he had "braids with beads, clear or white."

¶ 11 On May 2, 2009, M.O. went to the police station with her mother and A.M. Before she viewed the lineup, the police advised M.O. the shooter may or may not be in the lineup and she was not required to make an identification. Separated from A.M., M.O. identified defendant as the shooter in a live lineup. M.O. testified that defendant's hair and clothing had changed when she viewed the lineup, but she was still able to recognize defendant as the shooter. M.O. also made a handwritten statement, in which she stated defendant's hair was "braided back in French braids" which, according to M.O.'s testimony at trial, were the same as box braids. On May 8, 2009, in front of the grand jury, M.O. identified defendant as Allmon's shooter in a photograph.

¶ 12 A.M. testified that she was 11 years old at the time of the shooting. At approximately 4:30 p.m., she was at her uncle's house on South Carpenter Street with M.O. and M.O.'s sister. As the girls were sitting on the porch, Allmon, who A.M. knew from the neighborhood, walked by, and they said "hey" to each other. The girls then moved to a gate on the side of the house and played with M.O.'s father's dog. The dog stayed inside the fenced area while the girls played outside the fenced area because A.M. was initially scared of the dog.

¶ 13 A.M. heard gunshots, and she and M.O. pushed M.O.'s sister to the ground and covered her. A.M. looked up to the left and saw Allmon lying on the sidewalk. Defendant, who she had seen previously in her neighborhood and who she identified in court, was standing over and shooting Allmon as he lay on the ground. A.M. heard "about eight" gunshots.

¶ 14 A.M. then leaned on the gate, and M.O.'s father's dog ran out of the fenced area and chased defendant to a "bluish green" car. Defendant "jumped in" the passenger side of the car, and the car drove off "fast."

¶ 15 A.M. looked at Allmon and then ran into the house. A.M.'s uncle told the girls to sit on the couch, and he called the police. When the police arrived, A.M. told them the shooter had "box braids," light skin, and was "kind of tall" and "lanky." A.M. also told the police the shooter was wearing a black "Coogi outfit," with black and white shoes and a "hoodie." A.M. saw the "Coogi" logo on defendant's pants, not his jacket. A.M. testified nothing was covering defendant's face at the time of the shooting.

161 N.E.3d 976

443 Ill.Dec. 324

¶ 16 On May 2, 2009, A.M. went to the police station with M.O. and M.O.'s mother. Prior to viewing the lineup, the police advised A.M. the shooter may or may not be in the lineup and she was not required to identify someone. A.M. viewed a live lineup separately from M.O. and identified defendant as the person who shot Allmon. After viewing the lineup, she met with an assistant state's attorney and identified defendant as Allmon's shooter in a photograph. A.M. denied telling the assistant state's attorney that she had only seen the side of defendant's face. On May 8, 2009, in front of the grand jury, A.M. identified defendant as Allmon's shooter in a photograph.

¶ 17 Singleton testified that he knew both Allmon and defendant. He went to school with defendant's sister, defendant went to school with his brother, and Singleton had seen defendant around the neighborhood. At approximately 4:30 p.m. on April 25, 2009, Singleton was sitting in his parked car across the street from his house located in the 5200 block of South Carpenter Street. He saw Allmon standing on the corner of 52nd Street and Carpenter Street. A "sky blue" station wagon "roll[ed] up," and someone got out. Singleton heard two gunshots and ducked down. He looked behind him and saw someone chasing and shooting at Allmon. Allmon fell to the ground in front of Singleton's house, and defendant fired "like five more shots" into Allmon's back. Singleton identified defendant in court as the shooter.

¶ 18 After the shooting stopped, Singleton saw defendant place a gun in his right pocket and walk toward the station wagon. As defendant was walking toward the car, Singleton saw defendant's face and immediately recognized him. At the time, defendant was wearing a White Sox hat, designer jacket, some blue jeans, and gym shoes. Defendant had braids with beads on them. Defendant got into the station wagon, and it sped away south on Carpenter Street.

¶ 19 Singleton got out of his car, ran toward Allmon, and called the police. Singleton told the operator he saw a sky blue station wagon but had "ducked down" in his car and did not see the shooter. Singleton explained he told the operator he did not see the shooter because his primary concern was to get help for Allmon and if he "would have answered one question that would have led to another one, another one, another." Singleton also explained he was not "ducked down" in his car for the entire occurrence. When the police arrived, he spoke to them and told them what he had...