People v. Himber

• Decision Date: 17 March 2020
• Docket Number: No. 1-16-2182,1-16-2182
• Citation: 150 N.E.3d 148,440 Ill.Dec. 88,2020 IL App (1st) 162182
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian HIMBER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 162182

150 N.E.3d 148

440 Ill.Dec. 88

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

v.Brian HIMBER, Defendant-Appellant.

No. 1-16-2182

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed March 17, 2020

Rehearing denied May 14, 2020

James E. Chadd, Patricia Mysza, and Alison L. S. Shah, of State Appellate Defender's Office, of Chicago, for appellant.

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

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

¶ 1 Following a jury trial, defendant was convicted of first degree murder and sentenced to 50 years' imprisonment. On appeal, defendant challenges his conviction and the sentence imposed thereon, arguing that the circuit court erred in (1) denying his request to provide the jury with an instruction on the lesser-included offense of involuntary manslaughter, (2) allowing prejudicial autopsy photographs of the victim to be published to the jury, (3) precluding him from presenting expert witness testimony, and (4) imposing an excessive sentence. For the reasons explained herein, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 On July 22, 2012, defendant, an Illinois state trooper, shot and killed his girlfriend, Tracy Mays, at a middle school graduation party. After shooting Mays, defendant shot himself. Defendant, however, survived his injuries and was subsequently charged with first degree murder.

¶ 4 At trial, Dominic Carmignani¹ testified that his parents hosted a party at their residence located at 1090 Nelson Street, in Westchester, Illinois, on July 21, 2012, to celebrate his graduation from middle school. Defendant, who was a "close friend" of his father, Scott, attended the party with his girlfriend, Tracy. Sometime around midnight, Dominic was in his living room talking with Jack Rizzi and Jeff Vitek, two of his friends, when defendant walked into the house. Dominic recalled that defendant was carrying a beer bottle and that he "was walking in a fast pace very angrily." Tracy was following him. Defendant proceeded to walk through the house and out of the front door, slamming the door and causing a vase to fall as he exited the residence. Dominic went to pick up the vase, and after doing so, he looked out of the front door window. Through the window, he observed Tracy sitting on the front porch with her phone in her hand. Dominic then looked to his left and observed defendant walking down the street in the direction of his parked car. As he was walking, defendant threw the beer bottle that he was holding, and it shattered in a neighbor's driveway.

¶ 5 At that point, Dominic walked into the kitchen and informed his father what defendant had done. He then went to speak to his mother, who was in the backyard, before he returned to the front door and resumed looking out the window. Tracy was still sitting on the front porch steps, and defendant was standing in front of her approximately four or five feet away. He also observed his father cleaning up the broken beer bottle glass in their neighbor's driveway. Dominic testified that he then turned around and began walking back to the living room to rejoin his friends. As he was doing so, he heard four gunshots being fired from the front of his house. Dominic immediately walked into the garage, which faced the front of the house. The garage door was open, and he observed his father holding defendant, who was "on the ground bleeding." Dominic's father instructed him to call 911, and Dominic immediately screamed for someone inside the house to call 911. When Dominic reentered the house, he saw Tracy lying on the ground in the front hallway. Although she was bleeding from her chest, she was still conscious and yelled, "call 911, I've been shot." Dominic testified that he walked to his bedroom, where he remained until law enforcement personnel and an ambulance arrived.

¶ 6 On cross-examination, Dominic testified that he had known defendant for several years prior to the shooting and that he was aware that defendant and Tracy's relationship had some "problems"; however, he admitted that defendant and Tracy had seemed happy together on the evening of his graduation party. Dominic also acknowledged that he had heard defendant and Tracy talking in the front of the house before the shots were fired; however, he was unable to hear exactly what was being said. Finally, he admitted that he did not see the shooting itself.

¶ 7 Jeffrey Vitek, a neighbor of the Carmignani family and a friend of Dominic's, testified that he attended the graduation party with several other friends. He arrived around 8 p.m. and socialized, played basketball, and ate. Around midnight, he was sitting in the house talking to several of his friends when he observed defendant, whom he had never met prior to that night, enter the house from the backyard and walk through the house toward the front door. Defendant "looked very angry" and said: "I'm going to kill that b* * *." Vitek stood up and peered down the hallway and observed defendant slam the front door, which caused "something" to fall off the side table located near the door. Vitek then went into the garage to see what defendant was doing because he was "being nosey." When he looked out of the open garage door, he observed defendant exit a parked truck and begin walking toward the front porch, where Tracy was sitting. He recalled that defendant began "screaming at her very loud and she was just standing there, listening, and seemed very upset." Vitek could not make out the words being said and went back inside the house. Shortly thereafter, he heard three or four gunshots. When he looked toward the front door, he saw Tracy stumble into the house and heard her say, "call 911, call 911, I got shot." Vitek testified that he began "freaking out" and hid behind the kitchen counter with Dominic's little brother, who was crying. At some point, an adult instructed the kids to go to the basement, and Vitek and the other kids relocated to the basement until police officers arrived. Vitek provided a statement to law enforcement officers that evening as well as a written statement thereafter. He also viewed a photo array at the Westchester Police Department. Defendant's picture was included in the array and Vitek identified him as the man he observed standing in the front of the Carmignani house prior to the shooting.

¶ 8 Jack Rizzi, Dominic's "best friend[ ]," also attended the graduation party. During the party, the "kids were in the front just playing basketball and [the] parents were mostly in the back, just talking." Around midnight he was inside the house talking with Vitek when he observed defendant, who "looked pretty angry," enter the house. Defendant was "walking pretty fast" and "kind of bumped into" him as he made his way to the front door. Defendant was holding a bottle of beer and said, "I'm going to kill this fu* * * b* * *." Rizzi testified that he "just kind of brushed it off" and "didn't really think much of" defendant's statement. Rizzi testified that, after grabbing food or a drink, he walked toward the front of the house where Dominic was standing by the front door. Dominic told him "don't go out in front," so Rizzi returned to the back of the house. He then heard three gunshots. Rizzi did not know where the shots were coming from and began trying to find a hiding place. When he "peeked" down the front hallway, he saw Tracy. She had been shot in the neck and was bleeding. Rizzi and the other kids then went down to the basement until police officers arrived. Rizzi testified that he spoke to one of the officers and reported what he had seen. Later, he went to the Westchester Police Department with his mother, where he viewed a photo array that contained six pictures. Defendant's picture was included in that array, and Rizzi identified him as the man he had seen at the party who had walked through the Carmignanis' house and out the front door shortly before the shooting.

¶ 9 Scott Carmignani, Dominic's father, testified that "all of [his] closest friends" attended the graduation party that he and his wife hosted on July 21, 2012, including defendant, who attended the party with his girlfriend, Tracy. Scott had known defendant for "roughly five years" and considered him to be a "best friend, son-type to [him]." Defendant was also "very close" to Scott's two sons, especially his eldest son, Dominic.

¶ 10 Defendant and Tracy arrived at his son's party between 5:30 and 6 p.m. The adults, including defendant and Tracy, spent most of the party socializing in the backyard while the kids were "hanging out in the garage listening to music [and] playing basketball." At approximately 11:36 p.m., several Westchester police officers arrived at his house in response to a noise complaint. Scott and his wife spoke to the officers and lowered the music. At that point, "the party was pretty much over," as many of the guests began leaving. Some guests remained at the party after the noise complaint, however, including defendant and Tracy. Sometime around midnight, Dominic approached Scott in the backyard and told him that defendant was "very mad" and had broken a beer bottle in front of their neighbor's house. In response, Scott grabbed a garbage can and broom from the garage and went to clean the broken glass. As he was sweeping, Scott noticed Tracy sitting on his front porch and defendant standing in the middle of his front yard. Defendant and Tracy were talking, but he did not hear exactly what they were saying. Defendant then "began raising his voice and getting kind of loud." Scott approached defendant, who had begun walking away from Tracy. Scott told defendant that his kids "loved him and they didn't need to see him as worked up as he was, and he didn't need to be acting the way he was." Defendant, in turn, responded: "f* * * this,...