People v. Brown

• Decision Date: 16 November 2017
• Docket Number: No. 1–15–0132,1–15–0132
• Citation: 2017 IL App (1st) 150132,90 N.E.3d 604
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Pernell BROWN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 150132

90 N.E.3d 604

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

v.Pernell BROWN, Defendant–Appellant.

No. 1–15–0132

Appellate Court of Illinois, First District, Fourth Division.

November 16, 2017

Rehearing denied January 4, 2018

Michael J. Pelletier, Patricia Mysza, and Gilbert C. Lenz, of State Appellate Defender's Office, of Chicago, for appellant.

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

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

¶ 1 Petitioner, Pernell Brown, who was found guilty of first degree murder and sentenced to 50 years' imprisonment, appeals from the Cook County circuit court's order denying him leave to file a successive pro se postconviction petition under the Post–Conviction Hearing Act (Act) ( 725 ILCS 5/122–1 et seq. (West 2014)). He maintains that he set forth a colorable claim of actual innocence based on affidavits that he argues identify someone else as the shooter. Because the affidavits do not raise the probability that it is more likely than not that no reasonable juror would have found petitioner guilty, we affirm.

¶ 2 In denying petitioner leave to file his successive postconviction petition, the trial court summarized the relevant trial evidence, which we repeat here due to the nature of petitioner's claims.

¶ 3 Petitioner's conviction stems from the January 16, 2001, shooting of Robert Byrd, known as "Rah–Rah," who was killed in the Super Sub Shop on North Cicero Avenue in Chicago, Illinois.

¶ 4 At trial before Judge Lawrence Fox, Walter Thomass¹ testified that he was 48 years old and lived in the neighborhood where the offense occurred. On the evening of the shooting, Thomass went to the sub shop with some friends. About 1:15 a.m., Thomass was standing by the glass front door of the sub shop when he observed a small red Buick pull up in front of the shop. There were two people in the car. The driver got out, reached under the driver's seat, and pulled out a gun. He walked into the sub shop and fired the gun twice. Thomass fled the shop, then heard several more shots after he left. Thomass testified that petitioner was the driver and shooter. He stated that he recognized petitioner from the neighborhood and had seen him approximately 10 or 15 times before the shooting. He also testified that he identified petitioner as the driver and shooter in a photo array on the day after the shooting and in a subsequent police lineup on May 26, 2001. Thomass also testified that he accompanied detectives, who walked him through a parking garage, to see if he could identify the vehicle that was used in the offense. Thomass spotted the vehicle and identified it for the detectives.

¶ 5 Venice Blackburn testified that she was 47 years old, that she had four children who were between 15 and 28 years old, and that she lived in the area where the shooting occurred. Blackburn was with some friends at the sub shop shortly before 1 a.m. on January 16, 2001, and she was still there, laughing and joking, when someone came in shooting. She testified that, after being shot three or four times, Byrd fell to the floor and reached toward Blackburn's leg. Blackburn testified that petitioner was the shooter. She also testified that she had previously identified petitioner as the shooter in a photo array later in the morning of January 16, 2001.

¶ 6 Blackburn testified that she had lived in the neighborhood where the shooting occurred for 13 or 14 years and that she had seen petitioner in the neighborhood for the same length of time. Although Blackburn testified that she did not personally know petitioner, she also stated that he used to play basketball with her children.

¶ 7 Both Thomass and Blackburn admitted to using narcotics on the day of the shooting. Blackburn stated that she was still high at the time of the shooting but that neither her memory nor perception were impaired. Blackburn testified that she had two drug convictions, for which she received a sentence of probation. Blackburn completed probation satisfactorily, and at the time of her testimony, she had participated in treatment and had not used drugs in over two years.

¶ 8 Cory Gilmore testified that he grew up with individuals who went by the nicknames of "Rah–Rah" and "Von," whom he identified as petitioner. The prosecutor asked Gilmore if he recalled speaking with the police on February 7, 2001, and Gilmore responded that he did not remember because his drug use impaired his memory. Over petitioner's objection, the trial court allowed the prosecutor to present Gilmore's handwritten statement given to an assistant State's Attorney (ASA).

¶ 9 In the statement, Gilmore stated he had known Byrd his whole life. On January 16, 2001, Gilmore was at the Super Sub Shop with Robert Curry when Byrd and two other individuals arrived. He went outside, and petitioner pulled up in a two-door maroon or red Regal. Petitioner was by himself. Gilmore talked to petitioner at the car window. Petitioner did not say anything about Byrd, and Gilmore did not see a gun at that time. Petitioner then pulled off alone in the car. Gilmore then went back inside the sub shop and got Curry so they could leave. Gilmore said they went to a strip club and waited for some other people. After waiting 15 minutes, Gilmore called his friend to see where he was. Gilmore was told by his friend to come back to the sub shop. Gilmore and Curry returned to the sub shop and saw Byrd on the ground with police around him. He never saw who shot Byrd.

¶ 10 Robert Curry testified that on January 16, 2001, he was in the vicinity of 611 North Cicero Avenue with Gilmore. He went into the sub shop and saw Byrd but left because the place was too crowded. He left with Gilmore. They went around the neighborhood and came back. When they returned, Curry saw an ambulance, and they tried to find out what happened.

¶ 11 Kevin Tenard identified petitioner at trial and testified that he knew him by the nickname "Von." Tenard stated that on January 16, 2001, at approximately 1:30 a.m., he was in the vicinity of 4817 West Ferdinand Street, which was the home of Iesha Rials, the mother of petitioner's child. Tenard was there with his brother and Rials's cousin. At that time, petitioner drove up in a red car. Petitioner gave Tenard the keys and asked him to give the keys to Rials. Tenard saw another person with petitioner, but he did not know who he was. Petitioner and the other person then got into another car and left.

¶ 12 Detective Michael Delassandro, who investigated Byrd's shooting, testified that Thomass and Blackburn identified petitioner as the shooter in photo arrays on the morning after the shooting. Detective Delassandro also met with Iesha Rials at 4817 West Ferdinand Street to get Rials's car, a 1989 red Buick. She took him to the garage behind the building at that address, and Detective Delassandro drove the vehicle to area 4. Detective Delassandro asked Thomass and Gilmore to view the vehicle. Both witnesses identified the vehicle as the one they saw petitioner driving. On February 8, 2001, Detective Delassandro met with Tenard, who told him that he was sitting on the porch at 4718 West Ferdinand Street at approximately 1 a.m. on January 16, 2001. Tenard said that he observed a red Buick driven by petitioner, which he parked in front of that address. Petitioner waved Tenard over and gave Tenard the car keys to give to Rials. Petitioner then got into a car that had pulled up behind the Buick and left.

¶ 13 In his defense, petitioner attempted to show that his deceased brother, David Payton, was the actual shooter. Petitioner's mother, Tawana Brown, testified that she had two prior convictions for drug offenses, for which she received four years' imprisonment for each. Brown testified that petitioner was living in Indianapolis at the time of the shooting. She further testified that Payton had once identified himself as petitioner while seeking medical treatment and that Payton had been living in Chicago at the time of the shooting. She did not, however, testify that petitioner and Payton looked alike. Elaine Jefferson, a friend of petitioner's mother, testified that petitioner was staying with her in Indianapolis on the night of the shooting.

¶ 14 Petitioner's trial counsel recalled Blackburn, and counsel presented her with photographs of petitioner and Payton. Blackburn admitted that she had previously been shown the photographs by the defense investigator. She indicated that she did not know who in the photographs was the shooter and that they "favor[ed]" each other. On cross, the State asked Blackburn why she could not identify the shooter from the photographs, and she responded that "you can't see them. I mean, they look alike on there. You can't hardly tell." The State then asked if there was anything in particular about the photographs that prevented her from being able to tell who the shooter was, and Blackburn responded that "Well, one thing, you can't see them clearly, so you really can't [identify them.]"

¶ 15 The trial court entered extensive factual findings, spanning almost 14 pages of the record. Regarding some of petitioner's challenges to the eyewitnesses, the court considered both Thomass's and Blackburn's ability to view petitioner at the time of the shooting and subsequent identifications to police, either by photo array or lineup, as well as their credibility, including their admitted drug use. The trial court further reviewed their testimony alongside the videotape of the shooting, which provided corroboration of their accounts. Specifically, when considering their opportunity to view the shooter, the trial court noted, "Thomass was standing by the door looking out as the car pulls up outside and the shooter exits and walks into the sub shop." Further, "[t]he shooter is basically right in front of Thomass when he...