People v. White

• Decision Date: 31 July 2009
• Docket Number: No. 1-06-1034.,1-06-1034.
• Citation: 334 Ill.Dec. 943,917 N.E.2d 1018
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee v. Kenyatta WHITE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

917 N.E.2d 1018

334 Ill.Dec. 943

The PEOPLE of the State of Illinois, Plaintiff-Appellee v. Kenyatta WHITE, Defendant-Appellant.

No. 1-06-1034.

Appellate Court of Illinois, First District, Sixth Division.

July 31, 2009.

Rehearing Denied December 1, 2009.

Anita Alvarez, State's Attorney, County of Cook, James E. Fitzgerald, Ljubica D. Popovic, Assistant State's Attorneys, of Counsel, Chicago, IL, for Appellants.

Ralph E. Meczyk, Law Office of Meczyk, Goldberg, Chicago, IL, and Richard M. Goldwasser, Schoenberg, Finkel, Newman & Rosenberg, LLC, Chicago, IL, for Appellees.

Presiding Justice O'MALLEY delivered the opinion of the court:

Following a bench trial, defendant Kenyatta White was convicted of first degree murder for the shooting death of Aramein Brown and was sentenced to 55 years' imprisonment. Defendant appeals the judgment of the circuit court alleging that he was denied his sixth amendment right to counsel when the circuit court denied co-counsel leave to file an appearance on his behalf and where police barred defendant's attorney from observing witnesses identify defendant in a lineup. For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

On January 6, 2003, Aramein Brown was shot to death at a gas station in Chicago, Illinois, at the corner of 79th Street and Yates Avenue. The Chicago police and the Cook County State's Attorney's office commenced an investigation shortly after the shooting and spoke to several witnesses to the occurrence. Defendant was arrested in East St. Louis, Illinois, on February 20, 2003, pursuant to a warrant and held on one million dollars' bond.¹ He was subsequently tried and convicted of first degree murder in a bench trial.

The evidence at trial consisted of eyewitness testimony of the shooting and an alibi defense offered by defendant supported by the testimony of two individuals. Between the initial statements given by witnesses and the testimony at trial, the only consistent aspects of the occurrence were that a man approached the victim at the gas station on 79th and Yates and shot him several times, ran southbound on Yates to a car and sped away. Beyond these few facts, very little of the eyewitness testimony is consistent.

On the day of trial, attorney Frank Himel moved for leave to file an appearance on behalf of defendant. The State objected to his motion for leave to file an appearance based on a conflict of interest. The State advised the court that Himel previously represented several members of the victim's family, including David Jennings, a cousin of the victim. Jennings allegedly identified defendant as Aramein's killer to federal authorities in an interview with Drug Enforcement Administration (DEA) agents where Himel was present and represented Jennings. Defense counsel and Himel argued in response that the State had not identified any individual who would be called that would create a conflict of interest and indicated that no former clients were on the State's witness list. Counsel further claimed that the State represented to him that it would not call any of Himel's former clients who were related to the victim to testify in this case. The circuit court concluded that a potential conflict existed and denied defendant's motion for leave to file an appearance. The trial commenced with attorney Johnson as defendant's sole representation.

Martina Brewer was called by the State and testified that she was Aramein's girlfriend at the time of his murder. On January 6, 2003, she and Aramein drove in a rented minivan to the gas station at 79th and Yates where Aramein met David Jennings, to purchase marijuana. She testified that when Aramein left the van, he removed a pistol from his waistband and left it in the van's glove compartment. Aramein approached another van in which Jennings and Asim Akbar were sitting while Brewer waited in the car. Brewer grew impatient with Aramein, who indicated to her that he was on his way back to their van when she heard gunshots. Brewer looked in the direction of the sound and observed a man running south on Yates while Jennings and Akbar fled the scene in their van. She immediately ran to where Aramein was lying and found him unresponsive. She returned to the car and retrieved the pistol left there by Aramein and ran in the direction of the shooter. She testified that the shooter disappeared and she did not see his face.

Shortly after the shooter fled, Jennings returned to check on Brewer. Someone asked her for Aramein's gun and she gave it to him. Aramein's brother, Ajani Brown, arrived at the scene around that time. He questioned Brewer regarding the shooting. Brewer testified that when she told Ajani that she did not see the shooter, he instructed her to tell police that defendant was the shooter. Brewer was unaware of Ajani's reason for asking her to identify defendant, but she stated that she was traumatized by witnessing her boyfriend's murder and was susceptible to Ajani's suggestion. She further testified that Ajani told her that if she did not cooperate with him, he would "cause trouble" for her and her family.

After she received Ajani's instructions, police arrived on the scene and took Brewer to the hospital where Aramein was pronounced dead. Brewer testified that when questioned later at police headquarters, she told investigators that defendant was the shooter and identified him in a photo array. She also testified before the grand jury that defendant was the shooter.

Brewer recanted her statement to investigators and her grand jury testimony at trial, explaining that the victim's brother, Ajani, told her to implicate defendant. Brewer explained that she was now being truthful because she did not want the conviction of an innocent man to be on her conscience. The circuit court advised Brewer that lying to the grand jury was considered perjury and appointed the public defender to consult with her before any further testimony was elicited. Following a consultation with an assistant public defender, Brewer was reluctant to answer questions initially; however, she testified that she did not know who shot and killed Aramein.

Relative to her conflicting testimony before the grand jury and her statements to police identifying defendant as the shooter, Brewer explained that she was fearful of Ajani and thus followed his instructions. Brewer testified that the statement she gave to investigators was false, as was her testimony before the grand jury. Brewer said she was afraid of Ajani because he knew where she and her baby lived as well as where mother and grandmother lived. She stated that Ajani threatened that he would harm her baby if she did not tell the police that defendant shot Aramein. Brewer testified that she felt she had no choice but to accuse defendant of the shooting.

After she recanted her prior testimony, the State questioned Brewer with regard to her original version of the January 6 occurrence. Brewer testified that she previously told the grand jury that someone came up from behind the van she was sitting in and shot Aramein several times. She also told investigators and the grand jury that she saw the shooter and he went by the name of "Yatta" Brewer accompanied police officers to police headquarters from the hospital on the day of the shooting. She selected defendant's picture from a photo array and signed her name and dated the photo. At trial, Brewer did not recall either being shown pictures while before the grand jury or identifying defendant. However, a grand jury transcript, which was not included in this record on appeal, was read to her and suggested that she was in fact shown photographs before the grand jury and identified defendant.² Brewer also testified that following the shooting, an unidentified male approached her at her father's house and told her that defendant could not have been the shooter because he had a "bum leg." Brewer stated that she moved to New Orleans to avoid any involvement in the case, but returned to Chicago to "tell the truth of what really happened."

Homicide and Sex Division Assistant State's Attorney Nick Pappas was called as a witness on behalf of the State. Pappas testified that he was assigned to the grand jury unit of his division on February 27, 2003, the day Brewer testified before the grand jury. Brewer did not indicate in any way that she had been threatened to identify defendant as Aramein's shooter. Brewer told Pappas that Aramein was shot several times from behind while he was running away from his attacker. She told Pappas that the man who shot Aramein went by the name "Yatta." Once Aramein fell to the ground, the shooter began to run away and she followed him. Pappas stated that when shown a picture of defendant, Brewer identified him as the person who shot and killed Aramein.

After a short cross-examination of Pappas's procedures in presenting witnesses before the grand jury, the State called Sherry Collier to testify on the State's behalf. Collier and her five-year-old grandson were present at the gas station on 79th and Yates at approximately 10:30 p.m. on the evening of January 6. Collier stated that she was using the public telephone at the gas station when she noticed a van parked at the pump and a man standing next to the van. She also observed a girl enter the gas station store and came back out to another vehicle. A man who was wearing a matching black outfit approached the van and proceeded toward the victim on 79th Street. He walked within five feet of her, pulled his hood back and opened fire on the people standing near a parked van at the gas pump. The shooter pursued Aramein and continued to shoot until Aramein fell to ground. The shooter ran full speed southbound on Yates. Collier and her grandson ran across the street to a store and waited for police to arrive.

Moments after police arrived, Collier returned to the scene and gave a statement describing the offender as having...