People v. Beverly

2019 IL App (4th) 160168-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID BEVERLY, Defendant-Appellant.

NO. 4-16-0168

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

August 6, 2019

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 Champaign County

No. 15CF510

Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Presiding Justice Holder White and Justice Knecht concurred in the judgment.

ORDER

¶ 1 Held: Neither the admission of defendant's social media post nor testimony regarding other-crimes evidence constituted plain error. In sentencing defendant, the trial court did not improperly consider an unconstitutionally void prior conviction as a factor in aggravation.

¶ 2 A jury found defendant, David Beverly, guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2014)). The trial court sentenced him to 75 years in prison. On appeal, defendant argues (1) the State presented irrelevant evidence that defendant posted violent lyrics from a rap song on a social media site, Facebook, shortly before the murder; (2) the State presented inadmissible other-crimes evidence that defendant had been arrested and convicted on a prior occasion; (3) when considered cumulatively, the jury's consideration of improper evidence of defendant's Facebook post and his prior arrest and conviction resulted in the denial of a fair trial; and (4) the trial court erred in considering a void prior conviction as an aggravating factor in sentencing defendant. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In April 2015, the State charged defendant with the first degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) of Arsenio Carter who was shot and killed with a firearm. Defendant's jury trial was held in January 2016. The State presented evidence that around 6 p.m. on April 10, 2015, police officers responded to a shooting at a barbecue at Oakwood Trace Apartments in Champaign, Illinois.

¶ 5 Dreshana Caston, the victim's girlfriend, testified she witnessed the murder. On April 10, 2015, Caston attended a barbecue at Oakwood Trace Apartments with her brother, Robert Caston, and Carter, arriving at around 4 p.m. or 5 p.m. Caston drove to the barbecue in a Dodge Durango.

¶ 6 When they arrived at the barbecue, they sat in Caston's vehicle talking for about ten minutes. Caston testified she recognized several of the individuals in attendance. Her uncle, Christopher Hugger, came up to her vehicle to say hello. Caston subsequently left the barbecue for about five or ten minutes with her brother and Carter, going "[u]p the street" to Caston's grandmother's house.

¶ 7 Caston testified they returned to the barbecue with Caston in the driver's seat, Carter seated next to her in the front passenger seat, and Robert in the back. Caston parked in a lot located near Third Street and Burr Oak Court in the vicinity of Oakwood Trace Apartments.

¶ 8 When they returned to the barbecue, Caston saw her ex-boyfriend, Joseph Carter, defendant, and Matt Carter. Caston stated, "[t]he first time [she] s[aw] [defendant], he was in thegroup talking" and then he "came around [a] truck." Caston could see defendant's face and recognized his tattoos as well as his dreadlocks. She further explained that when she initially saw defendant, he was wearing a black hoodie with the "hood on" but it "wasn't [drawn] tight and [defendant's] dreads [were] out."

¶ 9 When asked how "sure [she was] of [her] identification" of defendant at that time, Caston stated she was "pretty sure." Caston explained she knew defendant and she had seen him on about five prior occasions when he was "out" and "going into clubs and stuff like that ***." Caston stated that defendant had also been to her house for a "get-together."

¶ 10 Caston further testified that when she pulled into the parking lot she also saw Deveonta Lindsey, an individual she knew from the "neighborhood" and school. During the barbecue Lindsey "pulled [Caston's] brother to the side, talked to [her brother], and then after [Lindsey] [was] done talking to him, [Lindsey] was standing in the back of [Caston's] [vehicle]." Caston testified that she "didn't really hear what [Lindsey] was talking about ***." Caston "got out of [her] car to try [to hear] *** but [her] brother was getting back in [her] car by then."

¶ 11 Caston testified she was "very worried" when she got back inside her car because, in her side-view mirror, she saw Lindsey with a black hoodie that he pulled tight as he stared, "mean mugging," meaning Lindsey was "looking at [Caston's] car" with a "mean face" as though he had "a problem or something." Caston further testified that Lindsey "[j]ust stood there" toward the "back of [Caston's] car" on the "driver's side[.]" According to Caston, Robert said, "Man, I don't know what's going on." Carter, who was sitting in the front passenger seat smoking a cigarette with his window rolled down, replied, "Yeah, we need to get ready to go."

¶ 12 Caston testified that defendant then walked up to Caston's car. When asked howcertain she was of defendant's identity as he approached, Caston responded, "[i]t was David." She further stated, "Yes[,]" it was "[t]he [d]efendant, Mr. Beverly[.]" Caston explained that she could see defendant's tattoos, face, and hair. She further explained that it was light outside and she could see "a blue glove on [defendant's] hand" as he approached her car. Caston stated, "[W]hy would [defendant] just be walking around with a blue glove on his hand unless he's going to do something to somebody[?]" When shown a picture of the blue glove depicted in the State's exhibit No. 7, Caston identified the glove in the picture as the same glove she saw defendant wearing at the time of the shooting.

¶ 13 As Caston attempted to back her car out of the parking space, defendant pulled out a short black gun. As she was trying to drive away, defendant "shot in [Caston's] car at Arsenio [Carter] and shot him in the chest." Defendant was standing about three feet away from Caston's car at the time. When Caston heard the gunshot, she "sped off."

¶ 14 Caston drove Carter to the hospital for medical treatment. Blood was coming out of his chest as she was driving. By the time they arrived at the hospital, Carter was unable to speak as he gasped for air. Carter subsequently died at the hospital that day.

¶ 15 At the hospital, police officers spoke to Caston about the shooter's identity. Caston testified that she "pulled up" defendant's Facebook photo on her cell phone. Caston testified she knew defendant by the nickname "Glocc" and his Facebook name was "Glocc Murdablock Krazi[.]"

¶ 16 On cross-examination, Caston stated she "didn't see [defendant]" when she first arrived at the barbecue. However, after visiting her grandmother's house and returning to the barbecue, Caston saw defendant in a white truck with her ex-boyfriend, Joseph Carter, and MattCarter.

¶ 17 Caston testified that when police officers questioned her at the hospital, she told them the shooter was wearing light jeans. Caston later spoke to Detective Funkhouser at the police department about the shooting. Detective Funkhouser showed Caston a picture of defendant, and Caston responded, "that was him." Caston testified the picture she was shown was a "mug shot."

¶ 18 On re-direct examination, Caston testified that, at the time of the shooting, she saw a blue glove "hanging out of [defendant's] pocket." She explained defendant pulled the glove from his pocket and then held the gun with the glove when he shot Carter.

¶ 19 Police Officer Justus Clinton testified he was on duty at 6 p.m. on April 10, 2015, when he received a report of shots fired near "Fourth and Beardsley [Avenue]." He stated the parking lot where the shooting occurred was west of Oakwood Trace Apartments. Another police officer, Arthur Miller, stated he located "a single spent shell casing" in the parking lot.

¶ 20 Dr. Shiping Bao testified that he performed an autopsy on Carter. Dr. Bao stated the cause of death was a gunshot wound to the chest.

¶ 21 Police Officer Thomas Petrilli testified he went to the hospital after the shooting. He secured Caston's car and observed "blood on the passenger *** side step board" and the "center console area of the vehicle." Officer Petrilli also testified that he spoke to Caston at the hospital. He stated Caston was "flustered" and "pacing back and forth." She seemed "pretty worked up at the time." He testified that Caston showed officers a picture of defendant on her phone.

¶ 22 Detective Dustin Sumption testified he was asked to assist with investigatingdefendant's Facebook information. Detective Sumption received a picture of defendant's Facebook page. He testified that State's exhibit No. 5 depicted "a snapshot" of a Facebook profile picture. Beneath the profile picture was the name "Glocc Murdablock Krazi." Detective Sumption testified that the Facebook profile picture depicted defendant "wearing a black Adidas coat and a black stocking cap." Detective Sumption identified State's exhibit No. 15 as another "shot" of defendant's Facebook page displaying defendant's profile picture and "one post."

¶ 23 Detective Sumption testified that during his investigation, he obtained photographs of defendant from the Secretary of State that included defendant's "driver's license photograph as well as an Illinois Department of Corrections photograph." Detective Sumption explained he was able to compare those photographs to defendant's Facebook profile picture that Caston had showed officers at the hospital. Detective Sumption testified he was able to identify defendant as the individual in the Facebook profile picture Caston had showed to officers the day of the shooting.

¶ 24 Cynthia Lubamba testified next. She began dating defendant after they met in February 2015. She identified defendant in court. Lubamba...