People v. Brown

• Decision Date: 02 December 1991
• Docket Number: No. 1-90-1305,1-90-1305
• Parties: , 165 Ill.Dec. 176 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 355

584 N.E.2d 355

222 Ill.App.3d 703, 165 Ill.Dec. 176

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

No. 1-90-1305.

Appellate Court of Illinois,

First District, Sixth Division.

Dec. 2, 1991.

Anita Rivkin-Carothers, Chicago, for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Michael Latz, Gregory Vaci, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice RAKOWSKI delivered the opinion of the court:

Following a bench trial, defendant was found guilty of murder, but defense counsel filed a motion for a new trial which was granted. Defendant was retried before a jury and again found guilty of murder. He was sentenced to 40 years in the Illinois Department of Corrections. The issues on appeal are: (1) whether defendant's retrial was barred by double jeopardy under the V and XIV amendments of the United States Constitution; (2) whether the testimony of several of the State's witnesses was prejudicial and constituted reversible error; (3) whether defendant was denied a fair trial because of the prosecutors' misconduct during the trial and in opening and closing argument; (4) whether the trial court erred in refusing to give the jury the voluntary manslaughter instruction; and (5) whether defendant was prejudiced by the State's witness' comments to the judge in the presence of the jury that he was fearful of his family's safety. We affirm.

Defendant was charged with the murder of Gregory Nelson. His first trial was a bench trial in September 1988, before Judge Themis N. Karnezis. At that trial, the State presented the testimony of Tommorah Dukes who was purportedly one of the eyewitnesses to the victim's murder. At the hearing on defendant's motion for a new trial, Dukes recanted her trial testimony and testified that she had been given money by the State to temporarily relocate in Texas as well as for other living expenses. The trial judge granted defendant's motion for a new trial based on the State's failure to disclose to defense counsel that Dukes had been relocated and had received funds from the State's Attorney's office as well as her recanted testimony. The second trial in March 1990, was a jury trial before Judge Thomas J. Maloney.

At that trial, Officer Henry Hill testified that at around 2:30 a.m. on February 3, 1987, he was driving his squad car when he was informed by a passenger of another vehicle that a man had been shot in the alley at 47th Street and Evans Avenue. When Hill arrived at this location he found the victim lying face down with blood by his head. Hill spoke to Vernon Williams who was also at the scene. Williams informed Hill that the victim had been shot by defendant. Hill then sent a message over the police radio giving defendant's description and his last known location.

Vernon Williams testified that he was with Tommorrah Dukes and the victim at Dukes' apartment on the night of the shooting. Sometime after 1:30 a.m. Dukes went to the store, and when she returned Williams overheard her talking to defendant on the back porch. Williams stated that defendant was arguing with Dukes about having sex with him, and Dukes responded that defendant was too young for her. The victim went to the back porch and told defendant to leave Dukes alone. Defendant replied "Fuck you" and threatened the victim. When the victim told defendant to leave, defendant said "I will shoot your ass." Defendant then went downstairs but continued to threaten the victim. At one point, defendant told the victim to come downstairs so that he could kill him. When this occurred the victim went inside and had a drink with Williams and Dukes.

At around 2:20 a.m. the victim wanted to go out to start his car. Williams looked outside and saw that defendant was sitting in his car at the edge of the alley. Williams told the victim that defendant was still in the alley and warned him not to go out, but the victim disregarded the warning and left. When the victim went downstairs Williams heard a gunshot. He went out on the back porch where he saw defendant standing over the victim who was lying face down in the alley. Williams saw a pistol in defendant's hand, and as he ran downstairs he heard another gunshot. He then saw defendant shoot the victim several more times before defendant fled.

Williams stopped a squad car and told the police officer what had occurred. Williams then went with the officer to the police station where he was shown a picture of defendant's brother, Virgil Brown. Williams told the police that the coat Virgil Brown was wearing in the picture was the one defendant had worn that night but that Virgil Brown was not the one who shot the victim.

At the end of his testimony Williams told the trial judge that he was afraid of his family being harmed. After some comment, the trial judge sustained defense counsel's objection. He told the witness not to be concerned and denied a motion by defense counsel for a mistrial.

Detective Allen Szudarski, a Chicago police officer, testified that on February 3, 1987, at around 2:30 a.m. he saw a squad car at 47th Street and Evans Avenue. A woman who was subsequently identified as Tommorah Dukes was waving to him to stop his vehicle. Szudarski then saw Vernon Williams talking to two police officers and also saw the victim's body. Szudarski talked with Dukes for several minutes and then sent a message over the police radio with defendant's name and last known location. A license check made of the brown, 1976 motor vehicle revealed that it was registered in defendant's name. When Szudarski received this information he tried to locate defendant at the residences of defendant's relatives and friends but was unsuccessful. Szudarski then obtained an arrest warrant which was circulated on a nationwide computer. Defendant was apprehended ten months later.

Dr. Mitra Kalelkar, an expert in forensic psychiatry, testified that she performed an autopsy on the victim and found numerous injuries to the face and head and brain matter at the site of these injuries. Kalelkar also found one gunshot wound in the victim's chest and four gunshot wounds to the back of his head. Kalelkar also found alcohol and cocaine in the victim's blood stream. It was Kalelkar's expert opinion that the victim died of multiple gunshot wounds.

Detective John Markham testified that he was assigned to follow up on the outstanding warrant for defendant's arrest. Markham apprehended defendant on December 12, 1987. He was placed in handcuffs and searched. As a result of the search, defendant was found in possession of false identification cards which had defendant's picture but another name. The cards had been issued in May and June 1987, which was subsequent to the victim's murder.

At the police station, defendant was read his Miranda rights and he stated that he understood them. Defendant was then interviewed by Markham and Detective Steve Glynn. When questioned about the victim's murder defendant stated that he had gone to 4711 South Evans to visit his nephew but that he was not home. According to Markham's testimony, defendant claimed that he was coming down the stairs to leave when an argument erupted between him and the victim who was on the second floor. Defendant's brother Virgil Brown intervened, and the argument ended. Defendant claimed that he and his brother left the building, and he did not hear about the victim's death until later that evening. At this point Markham told defendant that there was an eyewitness who had seen defendant shoot the victim and that they had also talked to defendant's brother, Virgil Brown. Defendant then replied that he wanted to tell the truth. According to Markham, defendant then stated that the victim made a remark to him as defendant was walking up to the fourth floor to see his nephew and made another remark when defendant was coming back down. Both men started arguing, but defendant's brother intervened. The argument ended and defendant and his brother left. Defendant then stated that he was walking toward his car when he saw the victim standing in front of the building with a gun in his hand. At this point defendant pulled out his gun and shot the victim three times. Defendant claimed that the victim did not immediately fall to the ground so that he continued shooting until the victim did fall. Defendant then fled and disposed of his gun. After hearing the second version of defendant's account of the shooting, Markham contacted the Felony Review Unit of the State's Attorney's office. Assistant State's Attorney Christopher Cummings responded, and in Markham's presence, interviewed defendant. Markham testified that defendant told Cummings the second version of the shooting. Cummings then asked defendant how the victim had received four gunshot wounds to the back of the head if he had been facing defendant. However, defendant did not respond to the question.

Assistant State's Attorney Cummings testified that on the morning of December 12, 1987, he spoke with Detectives Markham and Glynn regarding the homicide of Gregory Nelson. He also spoke with Vernon Williams and Tommorrah Dukes. Cummings then advised defendant of his Miranda rights and interviewed defendant in the presence of Markham and Glynn. According to Cummings' testimony, defendant claimed that he and the victim had an argument over drugs and defendant shot him in self-defense. However, defendant did not respond when Cummings asked how the victim was shot in the back of the head if he was facing defendant.

Patricia Dorsey, defendant's fiancee, testified in his behalf. She stated that she was dating defendant at the time of the incident and that he was with her on February 2 and 3, 1987.

After Dorsey's testimony, defense counsel moved for a mistrial based on the testimony of Markham and Cummings that defendant did not respond when asked how the victim could have been...