People v. Joiner

• Decision Date: 30 March 2018
• Docket Number: No. 1–15–0343,1–15–0343
• Citation: 2018 IL App (1st) 150343,104 N.E.3d 1251
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Antuan JOINER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 150343

104 N.E.3d 1251

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

v.Antuan JOINER, Defendant–Appellant.

No. 1–15–0343

Appellate Court of Illinois, First District, FIFTH DIVISION.

March 30, 2018

Michael J. Pelletier, Patricia Mysza, and Michael H. Orenstein, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins, and Dylan Rakestraw, Assistant State’s Attorneys, of counsel), for the People.

PRESIDING JUSTICE REYESdelivered the judgment of the court, with opinion.

¶ 1 After a bench trial, 16–year–old defendantAntuan Joiner was convicted of first degree murder ( 720 ILCS 5/9–1(a)(1)(West 2012) ) and two counts of attempted murder ( 720 ILCS 5/8–4(a)(West 2012) ) and sentenced to 71 years' imprisonment in the Illinois Department of Corrections.On appeal, defendant contends his trial counsel provided ineffective assistance by failing to move to suppress suggestive photo array and lineup identifications.Defendant also contends that the State failed to prove beyond a reasonable doubt that he was the perpetrator of the offense and that his due process rights were violated when the trial court improperly shifted the burden of proof.Defendant further maintains that his sentence is unconstitutional under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407(2012), and that the new juvenile sentencing provisions making firearm enhancements discretionary apply retroactively, requiring this matter to be remanded for resentencing.For the reasons that follow, we affirm the judgment of the circuit court finding defendant guilty of murder and attempted murder, but remand the matter for resentencing.

¶ 2 BACKGROUND

¶ 3Defendant was charged by indictment in pertinent part with the first degree murder of Shakaki Asphy(Asphy) and the attempted murders of Leon and Thomas Cunningham.The indictment alleged that on June 16, 2012, defendant personally discharged a firearm in the direction of the victims and that defendant's actions caused the death of Asphy as well as serious injury to Leon.Defendant, who was 16 years old at the time of the offense, was prosecuted as an adult (see705 ILCS 405/5–130(1)(a)(i)(West 2012) ).The matter then proceeded to a bench trial.

¶ 4Leon Cunningham testified as follows.On June 16, 2012, he was 18 years old and a member of the Gangster Disciples, "70th Set"(a faction within the Gangster Disciples streetgang).He was also bound to a wheelchair because he is paralyzed from the waist down.At 7 p.m., he was socializing with friends, including Thomas and Asphy, outside an abandoned building on the 2000 block of West 70th Place when he observed a gray vehicle drive past.Leon testified that he observed defendant, who he knew by the nickname "Monkey Man," inside the vehicle.Leon explained that while he did not know defendant personally, he had seen him around the neighborhood and was aware defendant was a member of the "D–Block" faction of the Gangster Disciples.According to Leon, when the vehicle drove past he felt something was "wrong," but nevertheless remained outside the house.

¶ 5 Shortly thereafter, everyone except Leon, Thomas, and Asphy left.Leon was in his wheelchair at the base of the porch stairs, Thomas was standing at the top of the stairs, and Asphy was perched on the porch railing near the top of the stairs.Suddenly, Leon observed a man wearing a black hooded sweatshirt, with the hood drawn over his head, appear in the east-side gangway of the abandoned building holding a firearm.Leon identified this individual as defendant, who he continued to refer to by his nickname, "Monkey Man."Leon testified he was 10 or 15 feet away from defendant when he began shooting.Leon further testified that he had a clear view of the weapon, which he identified as a semiautomatic "9" with an "extended clip."As defendant fired his weapon, Thomas ran from the porch.With nowhere to go, Leon remained at the base of the porch.

¶ 6 After the shooting ceased, Leon observed defendant run back through the gangway.Leon noticed Asphy lying on the porch and wheeled himself over toward his own home next door to seek assistance, but remained outside on the sidewalk.Shortly thereafter he recognized that he was bleeding, having been shot in the left knee.Paramedics and police officers arrived and removed both Leon and Asphy in separate ambulances to Christ Hospital.Leon testified that when he was at the hospital he informed the police officers that "Monkey Man" shot him, but did not provide them with a physical description of the perpetrator.

¶ 7 Leon further testified that the following day, a detective visited him at the hospital and presented him with a photo array.According to Leon, "Monkey Man" was not depicted in the photo array.On June 18, 2012, Leon was presented with a second photo array and identified defendant as the perpetrator of the offense.

¶ 8 On cross-examination, Leon testified that the gray automobile drove past him quickly and did not stop, so he was "guessing" that he observed "Monkey Man" inside the vehicle.He further testified that he was "guessing" that defendant was a member of "D–Block."Leon also testified that there were "problems,"i.e. , shootings, between the "70th Set" and the "D–Block."Leon testified that he had fought with members of "D–Block," but not with defendant personally.

¶ 9 Leon also testified that he did not inform the responding officers that "Monkey Man" had shot him, but did relay to the paramedics that he observed the shooter.He did not, however, inform the paramedics that "Monkey Man" shot him.

¶ 10 Leon further testified on cross-examination that his brother Thomas visited him at the hospital on June 19, 2012, and they discussed the shooting and their desire to find the perpetrator.Leon was also extensively questioned regarding the color of the hooded sweatshirt, and, even after being impeached with his grand jury testimony, insisted the sweatshirt was black and not gray.

¶ 11Thomas Cunningham, who was 17 years old at the time of the incident, testified that on June 16, 2012, at 7 p.m., he was sitting on the porch of an abandoned house with Leon and Asphy celebrating a friend's birthday and smoking marijuana.Leon was in his wheelchair at the base of the stairs.Thomas then observed "Monkey Man" come through the gangway with a gray hood tied around his head.¹Thomas identified "Monkey Man" as defendant and testified he had known him from the neighborhood "for a while."Defendant was 10 feet away from Thomas and his face was clearly visible despite the hood being tied around it.At that moment, defendant then started firing his weapon, initially toward Asphy and then at him.Thomas ducked behind the brick porch wall then he jumped off the porch and ran across a vacant lot.When he could no longer hear gunfire, Thomas returned to the abandoned house and discovered Asphy lying on the porch.Thomas was unaware his brother had also been shot and left the scene before his brother was placed in the ambulance.

¶ 12 On the evening of June 18, 2012, police officers came to Thomas' residence and requested he come to the police station to view a lineup.Thomas, accompanied by his mother, viewed a lineup at the police station where he identified defendant as the individual who had shot at him.

¶ 13 On cross-examination, Thomas testified that Leon was also smoking marijuana at the time of the shooting.Thomas further testified that he did not tell the responding officers that defendant shot at him, nor did he go to the police station of his own volition to inform them of the identity of the shooter.Thomas also testified that he went to the hospital to visit his brother on June 18, 2012.Thomas further testified that while he had spoken with Leon prior to identifying defendant in the lineup, they did not discuss the identity of the shooter.

¶ 14 Thomas was also extensively questioned by defense counsel as to how he was acquainted with defendant.Thomas testified that he knew defendant from the neighborhood for "a couple of years," but when pressed to give a precise number, Thomas replied colloquially that, "I known [sic ] him for a minute.I can't give you no years.I know him from the neighborhood."Thomas further testified that he was not friends with defendant and had never spoken with him.Thomas also testified that he was surprised that defendant would "come and shoot" him "[b]ecause I ain't never did nothing to [the] dude [sic ]."

¶ 15Cornelius Byther(Byther) testified that at 7 p.m. on June 16, 2012, he was washing his vehicle in the alley in the 7100 block of South Damen Avenue when he heard some "pops" coming from the north.Minutes later, in the corner of his eye, he noticed two young men running south in the alley toward him.He could not recall what they were wearing and did not observe their faces.He did, however, see them climb over a garbage can and jump over a fence to an abandoned house.Shortly thereafter the police arrived and Byther informed them of what he had observed.

¶ 16 Officer Lester Vaughan(Vaughan) of the Chicago police department testified that on June 16, 2012, he responded to a call of shots fired in the area of 70th Place and Damen Avenue.Vaughan and his partner, Marshaun Wright(Wright), responded instead to the area of West 71st Street and South Seeley Avenue based on their knowledge of a gang feud between "D–Block" and the "70th Set."Specifically, Vaughan went to an abandoned building on the 7100 block of South Seeley Avenue, which was used by "D–Block" members.Approaching the house from the rear, Vaughan observed an open basement door and a black baseball cap on the stairs going down to the basement.Vaughn and Wright proceeded into the basement to look for an offender.In doing so, he observed a gray hooded sweatshirt on the floor with a 9mm handgun on top of it and he noticed a loaded magazine...