People v. Townsend
| Decision Date | 01 June 2016 |
| Docket Number | No. 1-13-0862,1-13-0862 |
| Citation | 2015 IL App (1st) 130862 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY TOWNSEND, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
The Honorable James B. Linn, Judge Presiding.
¶ 1 Held: Judgment affirmed over defendant's challenge to the sufficiency of the evidence to sustain his murder conviction, claims of ineffective assistance of trial counsel and prosecutorial misconduct.
¶ 2 Defendant, Anthony Townsend, was convicted of first degree murder on a theory of accountability for his participation in an attempted armed robbery when he was identified in a lineup and his DNA was found on a hat at the murder scene. Defendant seeks to have his conviction reversed arguing insufficiency of the evidence where the eyewitness identification was allegedly unreliable. Alternatively, defendant seeks to have his conviction reversed due to ineffective assistance of counsel for, among other things, failing to present the testimony of an expert witness on the unreliability of identifications. Third, defendant also raises arguments of prosecutorial misconduct based on various statements made by the prosecutor in closing argument. For the reasons that follow, we affirm.
¶ 4 Defendant was charged by indictment with first degree murder, based on responsibility, attempt first degree murder, aggravated discharge of a firearm, attempt armed robbery, and aggravated unlawful restraint for events that occurred on December 23, 2006. Defendant was found guilty of the first degree murder of Muhaiman Karim on November 27, 2012, following a jury trial.
¶ 5 The following relevant facts are from the record, as summarized in the parties' briefs.
¶ 6 On December 23, 2006, one partially masked man shot and killed Muhaiman Karim outside of his barbershop after Muhaiman1 came to the aid of his employee, Dameon Johnson, while Dameon was involved in a struggle with a second partially masked man. Johnson and a second eyewitness, Jemere Smith, described the two offenders as black males who were dressed in black clothing and wore black masks over the lower half of their faces. Johnson and Smith described one of the offenders as medium-complected. In a lineup on April 22, 2010, Johnson identified defendant, recognizing defendant as one of his customers at the barbershop some time before the murder occurred. Defendant's DNA matched one of two DNA profiles from a mixed sample collected from a black knit hat recovered from the rear of the barbershop where Muhaiman was killed.
¶ 7 At trial, Abdul Karim testified that Muhaiman Karim was one of his four children. Abdul last saw Muhaiman on December 22, 2006, when they attended religious services.
¶ 8 Dameon Johnson worked as a barber at Karim's Kuts barbershop at 8237 South Cottage Grove Avenue, which had been in operation for about 10 years. Johnson had worked there for six years. Muhaiman, who was a friend, owned the barbershop. Johnson was in the process of purchasing the barbershop at the time of Muhaiman's murder. At the time of trial, Johnson owned the barbershop.
¶ 9 The barbershop is located at the end of a section of several stores, and two parking spots are designated for the barbershop at the end of a parking lot behind the storefronts, next to a brick wall. Customers enter the barbershop through the front door. There was a locking gate for the front door when the store closed. There was a rear door at the back of the barbershop, which employees used. There was lighting above the back door.
¶ 10 On December 23, 2006, Muhaiman parked his car next to the brick wall, and Johnson parked next to him. The barbershop was very busy that day with customers getting their hair cut for the holidays, so Johnson and Muhaiman worked from 9 a.m. until 10 p.m. Smith helped clean up the barbershop that evening. Around 10:20 p.m., Johnson, Smith, and Muhaiman began to clean up to close and lock the barbershop. Johnson left work around 10:30 p.m., exiting the back door behind Smith, who was taking out the garbage. When Johnson exited, he looked to the right and saw the top of a dumpster open and two African American men come out with guns in their hands. The men wore masks which covered the lower half of their faces, from the bridge of their noses down.
¶ 11 Although one offender said not to run, Johnson ran around Muhaiman's car, along the brick wall, and to the back door of the barbershop, where one of the men was standing andholding a gun. Johnson saw Smith head toward the end of the alley, followed by the other masked man. When Johnson saw the masked man at the back door, he ran toward him, placed his hands on the gun, and pointed it in the air. Johnson got on the side of this masked man; they struggled for the gun and it fired once. Johnson screamed: "Don't shoot, don't shoot." Muhaiman then came outside and put his arm around the masked man's neck and also struggled with the offender. A few seconds later, Johnson heard four or five gunshots above his head, but from a different gun, to the right. Johnson no longer observed Muhaiman. The struggle continued and Johnson bit the offender on the hand. The offender then bit Johnson's forearm. Johnson pushed the offender against the passenger side of his parked car, forced him to the ground, took the gun, and struck the offender three times in the face with it. The offender was able to push Johnson away. The offender then picked up a cartridge that had fallen out of the gun and fled. Johnson tried to fire the gun but it did not shoot. The entire event lasted approximately two minutes.
¶ 12 After the masked offender fled, Johnson noticed Muhaiman lying in the doorway of the barbershop. Johnson ran inside and called the police. Johnson set the gun down at his work station inside the barbershop. When the police arrived, Johnson spoke with the officers and told them that both offenders were wearing black, and he described the man with whom he had the struggle as about the same height, build, and complexion as himself, and wearing a black knit hat. Johnson described the other individual, who fired the four or five shots, as shorter, about 5'7", also wearing a knit cap, and darker complected than the individual with whom he struggled. Johnson testified that both offenders wore hoods as well.
¶ 13 On April 22, 2010, three and a half years after the occurrence, Johnson went to the Area 2 police station to view a lineup. The police told him that they had recovered two hats from the scene and that they had DNA on a hat. When Johnson viewed the photos of the crime scene, heidentified the hat with the Timberland logo at the scene as his. Johnson testified he always wore that hat. Before viewing the lineup, Johnson signed a "Lineup/Photospread Advisory Form" (the State's Exhibit No. 3) which stated, "I understand that the suspect may or may not be in the lineup/photospread." The lineup advisory form also stated, "I understand that I am not required to make an identification." Johnson identified defendant from the lineup: "I recognized him because I used to cut his hair and I knew him from—the moment I saw him, I knew he was the guy that I was wrestling with."
¶ 14 Jamere Smith started working at Karim's Kuts at age 13, four years before the occurrence. Smith referred to Muhaiman as "Uncle Mo." On the date of the murder, Smith was working with Johnson and Muhaiman. At about 10:30 p.m., Smith took out the garbage, exiting the rear door with Johnson walking behind him. Smith saw two parked cars behind the barbershop and the red garbage can to his right had the lid closed. As he walked outside, away from the door, Smith heard scuffling and turned around to see an African American individual wearing a skull cap, point a gun in his face. Smith also saw that the lid to the garbage can was now open. The individual told Smith to get on his knees and take everything off, and Smith complied. While on his knees, Smith heard Johnson behind him saying, "Don't shoot me," and heard a scuffle happening but could not see Johnson. The individual standing in front of Smith fired one shot above Smith's head, and then shuffled to the left and fired four shots toward the doorway. Smith saw "flames" coming out of the gun. Smith saw Johnson struggling with someone. The individual then ran to the right, toward 83rd Street, and Smith started running in the opposite direction, toward 82nd Street, through an alley to a restaurant, where he called police and waited until they arrived. Smith attempted to give a description to the police but became "belligerent and disrespectful" after different officers kept asking him the samequestions, which he found frustrating. Smith went to the police station and recounted the events to the detectives.
¶ 15 On October 5, 2011, the court denied defendant's motion to suppress his lineup identification.
¶ 16 Forensic investigator David Ryan arrived at the scene around 11:45 p.m. and took photographs and marked evidence. Ryan recovered the following items: two black knit caps, one of which was near Muhaiman's feet and the other was a Timberland hat; a live 10 millimeter cartridge near Muhaiman on the pavement; a fired bullet which fell out of Muhaiman's clothing; a 10 millimeter cartridge case; keys; three fired .40 caliber cartridge cases; a metal fragment; and a 10 millimeter Smith & Wesson model 10006 handgun from a counter inside the barbershop. There was no magazine inside but there was a fired cartridge case inside the chamber of the gun. Normally, the cartridge case would eject after being fired. However, if the opening was blocked,...
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