People v. Brown

2021 IL App (3d) 170621

175 N.E.3d 789

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Darren D. BROWN, Defendant-Appellant.

Appeal No. 3-17-0621

Appellate Court of Illinois, Third District.

Opinion filed February 23, 2021

James E. Chadd, Peter A. Carusona, and Dimitri Golfis, of State Appellate Defender's Office, of Ottawa, for appellant.

Jodi Hoos, State's Attorney, of Peoria (Patrick Delfino, Thomas D. Arado, and Nicholas A. Atwood, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE DAUGHERITY delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant was found guilty of first degree murder ( 720 ILCS 5/9-1(a)(2) (West 2014)) and aggravated battery (id. § 12-3.05(e)(1)) and was sentenced to consecutive prison terms of 55 years and 8 years, respectively. Defendant appeals his convictions and sentences, arguing that (1) the trial court erred in allowing the State to present testimony at defendant's jury trial regarding the contents of defendant's cell phone records and (2) the statutory sentencing scheme that required the trial court to sentence the 22-year-old defendant (at the time of the offense) to a de facto life without parole sentence for first degree murder was unconstitutional, either on its face or as applied to defendant. We agree with defendant's first argument. We, therefore, reverse defendant's convictions and remand this case for a new trial. Having reached that conclusion, we decline to rule upon defendant's second argument.

¶ 2 I. BACKGROUND

¶ 3 On July 14, 2015, shortly before 11 p.m., Nikko Smith and Charles Shelton were shot in the kitchen of Smith's home on West Kettelle Street in Peoria, Illinois. Smith died as result of his injuries. The following day, Shelton identified defendant in a photo lineup as the person who had committed the offenses. A warrant was issued for defendant's arrest. About two weeks later, defendant was taken into custody in the state of Georgia, where he lived.

¶ 4 The following month, in August 2015, defendant was charged by indictment with first degree murder for the killing of Smith and with aggravated battery for the shooting of Shelton.¹ The indictment alleged, among other things, that in committing the murder, defendant had "personally shot" Smith, an allegation that, if proven, would trigger a 25-years-to-life sentencing enhancement ( 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2014)) for the offense.

¶ 5 In July 2017, after an earlier mistrial, defendant's case proceeded to a jury trial. The evidence presented at trial established that just prior to the shooting, Smith, who was 25 years old, was seated at the kitchen table in his home on West Kettelle Street in Peoria, Illinois, packaging cocaine for sale. Smith sold cocaine out of the home on a regular basis and packaged cocaine in the home about twice a week. Also present in the home at that time were Smith's father, Jessie, who was blind; Smith's uncle, Charles Shelton; Kendrick Wilson, who went by the nickname of "Big Four"; and Freddie Dothard. Shelton and Wilson were in the kitchen with Smith, Jessie was in the bathroom, and Dothard was in the front of the home.

¶ 6 At about 10:50 p.m., a male subject (referred to hereinafter at times as the intruder or the offender) with dreadlocks in his hair entered the kitchen carrying a silver revolver in his hand. The intruder ordered Shelton and Wilson to get on the floor, put the gun to Smith's head, and indicated to Smith that he was taking the money and the drugs. Upon either receiving or taking those items from Smith, the intruder headed for the back door, which was located in the kitchen, taking Smith with him at gunpoint. The back door was missing a doorknob and was barricaded using a wood two-by-four to keep it from being opened from the outside. As the intruder was trying to remove the barricade, Smith resisted. A struggle ensued. Shelton jumped up, and the intruder shot Shelton in the stomach and leg. Wilson ran to the front door and escaped. Jessie came out of the bathroom, and Shelton yelled at Jessie to stay where he was, as Shelton crawled toward the hallway.

¶ 7 The police arrived a short time later and cleared the residence. Upon doing so, the officers found Smith lying dead facedown on the kitchen floor with a large pool of blood around his head. He had been shot once underneath the chin at close range. The bullet went through his mouth and neck, fractured his second cervical vertebrae, and severed his spinal cord. He died almost instantly.

¶ 8 The police processed the scene and collected evidence. The officers found latex gloves, plastic Baggies, and suspected cocaine on the kitchen table. The officers also found latex gloves on Smith's hands. Although the officers checked the scene for fingerprints, they did not find any fingerprints that were suitable for analysis or comparison. The officers did, however, recover two bullets from the kitchen floor of the residence. One of the bullets was found underneath Smith's body; the other was found under the leg of a chair. Lab analysis later showed that both bullets had been fired from the same gun. Also found on the kitchen floor were two pieces of dreadlocked hair. The hair was sent to the crime lab for analysis and deoxyribonucleic acid (DNA) testing.

¶ 9 At trial, the only element of the offenses that was in dispute was the identity of the offender—whether defendant was the person who had committed the crimes. The evidence presented at trial as to that element can be summarized as follows. Shelton took the witness stand and identified defendant in court as the person who had put a gun to Smith's head, stating, "There you go, right there (indicating). I ain't never gonna forget him." In doing so, Shelton commented that defendant no longer had dreadlocks in his hair. During his testimony, Shelton described the opportunity he had to see the offender while the robbery was taking place, stating, "All along, I'm looking dead at him. I'm sitting on the floor looking at him, dead in his face looking at him."

¶ 10 In addition to his in-court identification, Shelton also had previously identified defendant in a photo lineup the day after the shooting and testified about the prior identification in court. Shelton was in the hospital being treated for his injuries at the time of the photo lineup and was discharged from the hospital later that day. The treating doctor had determined that Shelton did not need surgery because the bullets had not penetrated Shelton's abdominal cavity and because there were no bullets still remaining in Shelton's body. The photo lineup identification had been video recorded, and that recording was played for the jury. On the recording, Shelton had his eyes closed as the officer was reading the identification instructions, and the officer had to nudge Shelton or say Shelton's name to get his attention. The officer indicated on the witness stand that he did not know if Shelton was falling asleep or not paying attention, and Shelton himself indicated in his testimony that he did not remember if he had fallen asleep at that time.

¶ 11 Shelton admitted during his testimony that he had smoked marijuana the day of the shooting about four or five hours before the shooting occurred, that he had used crack cocaine "way earlier" in the day, and that he had drunk two or three beers. Shelton did not feel, though, that he was intoxicated. The lab work that was done at the hospital when Shelton was treated for his injuries confirmed that Shelton had marijuana, cocaine, and alcohol in his system. In fact, Shelton's blood alcohol level was 0.202—more than twice the legal driving limit. The doctor who treated Shelton at the hospital, however, indicated that Shelton was alert, awake, and commanding normally and testified that it was difficult to describe the level of intoxication based upon the blood alcohol level because some people were more tolerant to alcohol than others. According to the doctor, some people at that blood alcohol level could be completely normal, and others would probably be in a coma. Shelton also admitted during his testimony that he had prior felony convictions for retail theft in 2004 and for unlawful possession of a controlled substance in 2005. In addition, although Shelton testified that he heard two gunshots during the shooting, he had apparently told the police immediately after the incident that he had only heard one gunshot.

¶ 12 The dreadlocked hair that was recovered from the kitchen floor after the shooting occurred was analyzed and was found to be "Negroid" head hair that contained DNA that matched defendant. Microscopic examination of the hair showed that at least one of the hairs had a "stretched" appearance, which indicated that the hair had been pulled out of a person's head. In addition, the expert who analyzed the dreadlocked hair under the microscope indicated in her testimony that it would not be a normal part of the hair-shedding process for dreadlocks to just drop out of a person's head.

¶ 13 Wilson, who was called to the witness stand by the defense, did not make an in-court identification of the defendant and testified, when asked, that he did not see the offender in the courtroom. Wilson also did not make an identification of the offender when he was shown a photo lineup, which included defendant's picture, the day after the shooting occurred. The presentation of the photo lineup to Wilson had been video recorded, and that recording was played for the jury. In court, Wilson was shown the photo lineup again and stood by his prior statement that he did not see the offender in the lineup.

¶ 14 Wilson's testimony, however, was somewhat inconsistent, and Wilson confirmed during his testimony that he was nervous. When Wilson was asked during his testimony whether he had gotten a look at the intruder and whether he had been able to see what the intruder looked like, Wilson responded, "No, sir." Defense co...