People v. Walker

Citation911 N.E.2d 439,392 Ill. App. 3d 277
Decision Date15 June 2009
Docket NumberNo. 1-07-1926.,1-07-1926.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Brian WALKER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Patricia Unsinn, Deputy Defender, Marion Buckley, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, Peter Fisher, Asst. State's Attorneys, of counsel), Chicago, IL, for Appellee.

Presiding Justice ROBERT E. GORDONdelivered the opinion of the court:

Defendant Brian Walker, age 20, was convicted by a jury of felony murder, for the shooting death of 24-year old Dehombre Barnett, a barber shop owner, during an attempt armed robbery at the victims's barber shop. In addition to finding defendant guilty of first-degree murder, the jury also found that defendant personally discharged the firearm that proximately caused Barnett's death. On June 22, 2007, defendant was sentenced to 35 years for felony murder, plus a mandatory 25-year enhancement for killing the victim with a firearm, for a total of 60 years in prison.

On this direct appeal, defendant claims: (1) that the trial court abused its discretion by allowing the State to proceed on solely a felony murder charge, thereby precluding defendant from seeking jury instructions on self-defense and second-degree murder; (2) that the trial court erred by refusing to allow the defense to present evidence that a co-offender was not charged; (3) that the trial court erred by refusing to give defendant's issues instruction on armed robbery; and (4) that defendant's sentence was both excessive and improper, because the trial court considered in aggravation matters that were implicit in the offense and facts unsupported by the evidence. For the following reasons, we affirm the conviction, but we remand for resentencing.

BACKGROUND

A 12-count indictment initially charged defendant with first degree murder, felony murder and attempt armed robbery. Before trial, the State dismissed all the charges except for one count, which was the count for felony murder, predicated on attempt armed robbery. On April 16, 2007, prior to jury selection, the prosecutor indicated the State's intent to proceed on solely the felony murder charge, and the defense offered no objection.

At trial, the State's evidence consisted primarily of: the defendant's written statement; testimony by witnesses who observed events immediately before or after the shooting; and forensic evidence from various sources, including a firearms examiner and pathologist. The only individuals inside the barber shop at the time of the shooting were: (1) defendant; (2) Matthew Moss, the uncharged co-offender; and (3) the murder victim. There were no witnesses at trial who described the actual shooting. Forensic evidence revealed that no gunshot residue was present on defendant's hands a few hours after the shooting

The defense case consisted of stipulations that a police officer had recovered "two plastic bags of a crushed plantlike substance" from the victim's clothing and that the substances proved to be "narcotics." This evidence supported the defense theory of the case which was that defendant entered the barber shop to purchase marijuana from the victim.

At trial, Tasha Fuller testified that she was a hairdresser in the victim's barber shop and that she was working in the shop on the day of the murder. She testified that she was in the shop, both immediately before and immediately after the murder. However, at the moment of the murder, she testified that she was outside the shop, and had just loaded various hair supplies into the trunk of her vehicle.

Fuller testified as follows, about what she saw and heard on the day of the murder. On July 8, 2005, Fuller was working at the "Prototype" barber shop, which was located at the corner of Clyborn Avenue and Goethe Street in Chicago, and which was owned by Dehombre Barnett, the murder victim. At approximately 8 p.m., she was packing up some things and preparing to go home. The only other people in the barber shop at that time were Lavelle Archer, who was another barber, and Barnett. As Fuller was packing up, a man entered, asked Barnett the price of a haircut, and exited a few seconds later. After the man left, Fuller told Barnett that the man was "on some bullsh —." A few seconds later, the man reentered, accompanied by defendant. Defendant sat down in one of the barber chairs, while the other man stood next to defendant and spoke with Barnett. Fuller exited the shop, placed some things in her vehicle, and returned to the shop. Shortly after she returned, defendant and the other man exited the shop together.

Fuller further testified as follows. Barnett's cousin Marvin1 entered the shop; and then Archer (the other barber) and Marvin eventually left. Fuller was still packing up, when defendant and the other man reentered the shop together. Fuller walked past the two men, and while standing behind them, she turned and gave Barnett "a look like is everything okay." Barnett nodded "like it was okay for [Fuller] to leave," and Fuller said that she would see Barnett tomorrow. Fuller exited the shop, placed some things in the trunk of her vehicle and entered her vehicle. While sitting in the driver's seat, Fuller heard two gunshots coming from the shop and then she saw defendant and the other man running down the street.

Fuller further testified as follows. After exiting her vehicle, she looked for Barnett through the windows of the shop and could not see him. Marvin was walking back towards the shop. Fuller grabbed Marvin by the arm and told him to accompany her into the shop, because she believed the two men had shot Barnett. When Marvin and Fuller entered the shop, they saw Barnett lying on the floor, with "blood all around his head." The police and an ambulance arrived shortly after. Later that day, Fuller picked the defendant out of a police lineup and identified him as one of the two men whom she had seen running out of the shop.

On cross-examination, Fuller testified that she had known Barnett approximately eight years, prior to his murder, and she denied knowing either that he sold drugs out of the barber shop or that he carried a gun. Fuller identified a photograph of the other man who had entered the shop with defendant.

The State's next witness was Marvin Pierce, the victim's cousin who, with Tasha Fuller, discovered the victim's body. Pierce testified as follows. On July 8, 2005, he lived only a block from his cousin's barber shop. At approximately 8:15 p.m., he walked over to the shop to visit Barnett. As he was walking, he observed defendant and another man. Pierce, who was 19 years old at the time of the offense, had known defendant since the fourth or fifth grade. While Pierce did not "personally" know the other man, he recognized him generally. Defendant and his companion were on the sidewalk, approximately 35 feet away from the corner where the barber shop was located. As Pierce approached, he noticed "a brown handle of a gun sticking out" of the left pocket of defendant's shorts. Pierce nodded to defendant as he walked by, and continued toward the barber shop. While Pierce was talking to Barnett inside the barber shop, defendant and his companion entered the shop, together. At that time, the only people inside the shop were Pierce, Barnett, defendant, defendant's companion, and Fuller who was "gathering all type of hair equipment."

Pierce testified as follows. Pierce exited the shop, and he was walking north, towards his home, when he heard two gunshots coming from the barber shop. Pierce turned around and saw defendant and his companion, running towards him. Pierce then headed back to the barber shop, where he observed Barnett lying on the floor, with blood around him. Fuller was also present. A few minutes later, the police arrived and Pierce informed them who had been in the shop. The next day, Pierce identified defendant out of a police lineup.

On cross-examination, Pierce testified that prior to his visit at approximately 8 p.m. on July 8, 2005, he had already been to the shop two or three times that day. Pierce denied knowing either that Barnett was selling marijuana out of the barber shop or that Barnett carried a gun. Pierce testified that he had not seen much of defendant's companion before and that he had identified the companion at a police station in July 2005.

The State's next witness was Frank Juett, the owner of a nearby barber shop. Juett testified as follows. At approximately 8:30 p.m. on July 8, 2005, he was standing in his shop, when he observed two men running up the street, and he heard Tasha Fuller scream.

The jury then heard a stipulation, entered by the parties, that if Officer Joseph Bembynista were called, he would testify that he has been employed by the Chicago police department for 30 years, that he has been a forensic investigator for fifteen years, and that he processed the crime scene located at 1251 North Clyborn Avenue, on July 8, 2005. He recovered a fired bullet from the street, in front of the building; and two fired 9-millimeter (9-mm.) cartridge cases. One cartridge case was located on the floor, near the front of the barber shop, and the other was underneath a barber chair. He also recovered a 22-caliber semi-automatic handgun, from under some folding chair. The handgun contained one magazine, which contained nine live rounds of ammunition.

The stipulation further stated that he administered a gunshot residue test: (1) to defendant's hands., on July 8, 2005, at approximately 11:10 p.m.; and (2) to the victim's hands, at the medical examiner's office. The gunshot residue kits, the ammunition, and the handgun were all sent to the Illinois State Police crime laboratory.

Another stipulation between the parties stated that, if Scott Rochowitz were called, he would testify...

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