People v. Mayberry
| Decision Date | 08 September 2020 |
| Docket Number | No. 1-18-1806,1-18-1806 |
| Citation | 166 N.E.3d 278,445 Ill.Dec. 249,2020 IL App (1st) 181806 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David MAYBERRY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Richard Dvorak, of Dvorak Law Offices, LLC, of Willowbrook, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Hareena Meghani-Wakely, and William Bruce, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Following a shooting incident on October 7, 2012, defendant David Mayberry was convicted of the attempted murders of Sedgwick Reavers, Marlon Triplett, Sharrod Corhn, Anthony Wise, and Daniel Willis. On appeal, Mayberry argues that his conviction must be reversed because (1) the trial court admitted improper hearsay testimony that "Lil Dave from our hood" was the shooter, (2) the trial court erred by excluding evidence that an alternate suspect committed the shootings, and (3) Mayberry's counsel was ineffective for failing to move to suppress Willis's identification of him. We disagree and affirm.
¶ 3 At around 4:30 p.m. on October 7, 2012, Reavers was driving to his home in the Roseland area of Chicago, accompanied by his brother Triplett and his friends Corhn and Wise. Reavers parked outside the house, and the four men exited the car. As they were walking to the house, a man opened fire on them from behind.
¶ 4 Corhn testified that when he heard the gunshots behind him, he fled without looking back to see who the shooter was. Corhn, Triplett, and Wise all ran into the gangway alongside the house. (Corhn did not see what happened to Reavers.) At the end of the gangway was a small gate, which Triplett and Wise jumped over; Corhn climbed over the gate, slower than the others because he had been shot in the foot. He could still hear gunfire behind him as he was climbing.
¶ 5 By the time Corhn made it over the gate, Wise was gone. Triplett, who had also been shot, was lying on the ground. Corhn helped Triplett to his feet and asked, "Who was that?" Triplett did not reply. With Triplett limping from his injuries, the two of them jogged a couple blocks to a neighbor's house and told them to call an ambulance. Once they were inside, Corhn again asked, "Who was that?" Triplett said, "Lil Dave from our hood." The defense raised a hearsay objection to this testimony, but the trial court admitted it as an excited utterance.
¶ 6 Reavers testified that when he heard the gunshots, he looked behind him and saw the shooter, then ran for the gangway with the others. As he reached the gangway, he was shot in the hip and fell to the ground, unable to run farther.
¶ 7 The shooting was witnessed by Willis, an off-duty Chicago police officer who lived in Roseland. Willis was driving home in his personal vehicle when he saw a man step from between two parked cars and fire at a group of men standing across the street. Willis estimated he was around 30 to 50 feet away from the shooter when he initially saw him.
¶ 8 Willis observed the victims run into a nearby gangway. The shooter briefly pursued them, crossing in front of Willis's car, and then came back the other way, again crossing in front of Willis's car before running into an alley. Willis drove into the alley, accelerated, and hit a speed bump, causing his car to go "up in the air" and then stop. The shooter also stopped, turned around, and fired two shots at Willis's car, striking the windshield. He was standing approximately 50 feet away and Willis could see his face.
¶ 9 Willis opened his car door and, while using the door as cover, fired around six shots at the shooter. The shooter fled. Willis cautiously drove to the exit of the alley, but the shooter was nowhere in sight. According to Willis, the entire exchange lasted around 30 to 45 seconds.
¶ 10 Afterwards, police and paramedics arrived on the scene. Reavers, Corhn, and Triplett were all taken to the hospital and treated for gunshot wounds. When Triplett was brought to the emergency room, he reported a pain level of 10 out of 10; he had a gunshot wound to the base of his penis, two gunshot holes on the front of his right scapula, and two gunshot holes on his right buttock. Meanwhile, at the scene, Willis described the shooter to police as a black man around 6'0? to 6'1? tall, with a light complexion and wearing a black skull cap, a black hoodie, and dark pants.
¶ 11 On the same day, Tiffany Davis was visiting her mother, who lived in Roseland around two blocks away from Reavers and Triplett's house. Shortly after 4:30 p.m., while Davis was in the living room, she heard gunshots and looked out the window to see what was happening. She saw a man wearing a black hoodie and dark pants walking down the sidewalk towards 107th Street. Davis watched him until he disappeared from her sight. Shortly afterwards, the man re-appeared, walking the other way. Then the man appeared a third time, again walking toward 107th Street, but he was no longer wearing the black hoodie; instead, he had on a white T-shirt. A silver Oldsmobile Alero pulled up nearby, the driver popped open the back door, the man jumped inside, and the car drove away. Davis estimated the entire encounter was 5 to 10 minutes long.
¶ 12 After the car left, Davis heard sirens and saw police in the area. She went outside and told the officers what she had seen. One of those officers was Officer Hernandez. After hearing Davis's story, Hernandez searched the area and, two-to-four houses away, found a black skull cap and a black hoodie behind a bush. Hernandez guarded the items until they were collected by an evidence technician.
¶ 13 In the days following the incident, Willis had several conversations with Charlene Hardley, who was Reavers and Triplett's grandmother. Hardley provided Willis with a name: David Mayberry. After their final conversation on November 8, 2012, Willis looked up David Mayberry on Facebook, found a picture of him, and recognized him as the shooter.1
¶ 14 Willis forwarded this information to detectives who were working on the case. Later that evening, detectives showed Willis an array of six photos, including Mayberry's photo. Willis identified Mayberry as the shooter and was "100 percent certain" of his identification. On the same day, police showed the same photo array to Davis, who identified Mayberry as the person she saw walking back and forth in front of her mother's house.
¶ 15 At trial, defense counsel vigorously cross-examined Willis regarding his identification. Counsel asked if it was true that Willis initially only gave police a vague description of the shooter as a black man in his 20s wearing black clothes. Counsel also asked: "[I]sn't it true that your memory of the incident got better, much better, after you saw the Facebook page?" Willis denied both of these things, saying that he gave police a detailed description and that Mayberry's face was "etched in [his] memory" from the actual incident. He stated that, as a former SWAT officer, he learned over the years to pay attention to details.
¶ 16 Defense counsel additionally questioned Willis about the photo lineup. Willis acknowledged that the six lineup photos had different colored backgrounds—including light blue, yellow, and gray—but Mayberry's photo was the only one with a white background. Willis also acknowledged that Mayberry was the only light-skinned individual in the lineup.
¶ 17 On December 21, 2012, detectives interviewed Reavers, who was in prison for an unrelated offense. Reavers viewed a photo array and signed a photo of Mayberry. He also signed a lineup advisory form stating that he understood that he was not required to make an identification and that the suspect might or might not be in the photo lineup. Nevertheless, at trial, Reavers testified that he was "100 percent sure" that the shooter was not Mayberry, with whom he had been friends since he was 12 years old. He claimed that in the December 21 interview, the detectives asked him if he knew anyone in the photo array; he told them that he knew Mayberry and signed Mayberry's photo solely to signify that fact. He denied telling the detectives that Mayberry was the one who shot him. He admitted that he "beat [Mayberry] up" a week or two before the shooting, but he claimed the incident was not indicative of ill will between them, saying: "I fight with all my friends and brothers."
¶ 18 In contrast, Detective Danny Stover, one of the interviewing detectives, testified that Reavers identified Mayberry as the shooter. Reavers told Stover that he and Mayberry, who was also known as Lil Dave, were both members of the Black P. Stone Nation. A week or two before the shooting, Reavers got into a fight with Mayberry because he believed Mayberry had wronged a friend of his. During the shooting, while Reavers was lying in the gangway pretending to be dead, he saw that Mayberry was the shooter. Reavers signed the picture of Mayberry in the photo array, but then told Stover:
¶ 19 Mayberry was arrested on December 28, 2012. The next day, Willis and Davis both identified Mayberry at an in-person lineup. A DNA sample from Mayberry was compared with DNA found on the hoodie recovered at the scene.2 Three DNA profiles were present on the hoodie, one of which was identified as the major profile and matched Mayberry's DNA profile. This DNA profile would be expected to occur in approximately 1 in 240 quintillion black, 1 in 2.3 sextillion white, or 1 in 15 sextillion Hispanic unrelated individuals. Additionally, gunshot residue testing of the hoodie revealed gunshot residue on the left cuff, the right cuff, and the inside of the right front pocket.
¶ 20 Finally, Kimberly Hofsteadter, an employee at the Cook County Department of Corrections, published several phone calls made by Mayberry...
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People v. Sapp
...and (3) a relation between the statement and the circumstances of the event." (Internal quotation marks omitted.) People v. Mayberry , 2020 IL App (1st) 181806, ¶ 27, 445 Ill.Dec. 249, 166 N.E.3d 278. We review the trial court's determination regarding the excited utterance exception for an......