People v. Brown

2019 IL App (4th) 160767-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARKEL R. BROWN, Defendant-Appellant.

NO. 4-16-0767

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

January 29, 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. 16CF184

Honorable Thomas J. Difanis, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Knecht and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: Defendant failed to prove a speedy-trial violation and several trial errors, and the State's evidence was sufficient to find defendant guilty beyond a reasonable doubt of criminal sexual abuse.

¶ 2 In February 2016, the State charged defendant, Markel R. Brown, by information with one count of criminal sexual abuse (720 ILCS 5/11-1.50(a)(2) (West 2016)). The State later charged defendant with one count of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2016)). After a July 2016 trial, a jury found defendant guilty of criminal sexual abuse but not guilty of criminal sexual assault. Defendant filed a motion for a new trial. At a joint September 2016 hearing, the Champaign County circuit court denied defendant's posttrial motion and sentenced him to three years' imprisonment for criminal sexual abuse.

¶ 3 Defendant appeals, contending (1) his statutory right to a speedy trial was violated, (2) the circuit court failed to properly admonish the jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (3) the court erred by admitting into evidence two videos, (4) the State's evidence was insufficient to prove him guilty beyond a reasonable doubt, and (5) the prosecutor improperly misstated the evidence during closing arguments. We affirm.

¶ 4 I. BACKGROUND

¶ 5 The State's information charging defendant with criminal sexual abuse alleged that, on February 3, 2016, defendant, knowing T.F. was unable to give consent, committed an act of sexual conduct with T.F. in that he knowingly touched or fondled the vagina of T.F. for the purpose of defendant's sexual gratification. On February 12, 2016, the circuit court arraigned defendant on the aforementioned charge. One week later, the circuit court appointed the public defender to represent defendant, and defendant entered a plea of not guilty.

¶ 6 At the March 15, 2016, pretrial hearing, defendant indicated he was ready for trial, and the State asked for a continuance. Defense counsel objected, and the circuit court denied the State's request for a continuance. On March 18, 2016, the State filed a written motion for a continuance, noting, inter alia, a kit containing alleged evidence of sexual conduct was sent to the crime lab on February 11, 2016, and it had not yet been tested. Jennifer Stafford, a forensic scientist, indicated the kit would hopefully be tested within the next month. At a March 28, 2016, hearing, the court continued the case to April 12, 2018, pursuant to section 103-5(c) of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/103-5(c) (West 2016)) and over defendant's objection.

¶ 7 On April 11, 2016, the State filed another written motion for a continuance, stating forensic scientist Aaron Smith had verified the lab had the kit but the work was still not complete as of the day of the motion. The State also filed a motion for supplemental discoveryand a motion to consume evidence, requesting, inter alia, defendant submit to the taking of buccal swabs. At an April 12, 2016, hearing, the circuit court entered an order requiring defendant to submit to buccal swabs of his mouth. Pursuant to section 103-5(c) of the Procedure Code, the court over defendant's objection continued the case to May 31, 2016.

¶ 8 The State filed another motion for a continuance on May 31, 2016, noting the following: (1) the swabs containing samples of defendant's deoxyribonucleic acid (DNA) were delivered to the lab on April 22, 2016; (2) a forensic scientist identified possible DNA samples that were taken from the sexual assault kit on May 9, 2016; and (3) a comparison of defendant's DNA and the DNA obtained from the kit had not been completed. At a May 31, 2016, hearing, the circuit court again over defendant's objection continued the case to July 5, 2016, under section 103-5(c) of the Procedure Code. On July 5, 2016, the court set the case for a July 25, 2016, trial. The State noted it had not yet received the lab report but had spoken to lab personnel on the telephone about the results.

¶ 9 Before trial, the State filed a motion in limine to admit an audio-video recording of the alleged crime. The next day, defendant filed a motion in limine seeking to bar the video. The circuit court held a hearing and found the video would be admitted at defendant's trial if the foundational evidence was as the State described it. The State also filed an additional count against defendant, alleging he committed the offense of criminal sexual assault against T.F. on February 3, 2016. Specifically, the charge asserted defendant committed an act of sexual penetration with T.F. in that he placed his penis inside T.F's vagina and defendant knew T.F. was unable to give knowing consent.

¶ 10 On July 25, 2016, the circuit court commenced defendant's jury trial on the two charges against him, which was 165 days after he was taken into custody. The State presentedthe testimony of the following witnesses: (1) T.F., the victim; (2) Wendy Adams, the girlfriend of defendant's brother; (3) Qwjae McFarland, a friend of T.F.; (4) Deshanti Craig, a friend of T.F.; (5) Susanne Robinson, an Urbana police officer; (6) Matthew McElhoe, an Urbana police officer; (7) Marcus Hancock, an Urbana police officer; (8) Jeremy Hale, an Urbana police officer; (9) David Smysor, an Urbana police detective; and (10) Tim McNaught, an Urbana police officer. Defendant presented the testimony of Steve Guess, an investigator for defense counsel.

¶ 11 T.F. testified she spent the night at the home of her friend Kendall Andrews and woke up at around 10 a.m. on February 3, 2016. After waking up, T.F. started drinking alcohol. T.F. and Andrews went to defendant's home to drink alcohol. T.F. knew defendant because he played dice in the hallways of her apartment complex with her ex-boyfriend. Defendant and T.F. had engaged in sexual intercourse on two prior occasions. T.F. identified defendant in a photograph (State's exhibit No. 1B) and testified the photograph was a fair and accurate depiction of what defendant looked like in February 2016. T.F. also identified defendant in court. When T.F. and Andrews arrived at defendant's home, defendant was not there. T.F. spoke to a woman outside of defendant's home, who stated defendant might be at Joseph Cotton's home.

¶ 12 T.F. and Andrews left defendant's house and went to Cotton's home. There, they went into a front room of the home. Cotton, defendant, and Gerald Jackson were also in the front room. T.F. drank alcohol in the front room. T.F. stayed in the front room for about an hour. She then went into Cotton's bedroom and sat on the floor. T.F. identified two photographs (State's exhibit Nos. 2A and 3A) as depicting Cotton's bedroom. T.F. found a bottle of alcohol on the floor and began drinking it. Everyone else in the room was sitting on the bed. T.F.'s nextmemory after sitting down on the floor in Cotton's room was waking up in the hospital. T.F. did not recall Andrews leaving Cotton's home. T.F. testified she did not consent to having sexual intercourse with anyone on February 3, 2016.

¶ 13 Additionally, T.F. identified herself in three photographs (State's exhibit Nos. 2B, 3B, and 4B) taken from the videos (State's exhibit Nos. V1 and V2). She further testified the outfit she was wearing in the photographs is the one she wore to Cotton's house on February 3, 2016. She did not recall what the other individuals in the photographs were wearing on February 3, 2016. T.F. was not asked to identify the other individuals in the photographs.

¶ 14 Adams testified she went to defendant's home on February 3, 2016, to do laundry. Around the same time Adams arrived at defendant's home, T.F. arrived there. T.F. was specifically looking for defendant, and Andrews was with T.F. Adams described T.F. as being "geeked up" and not acting sober. T.F. and Andrews did not stay long at defendant's home. Adams remained at defendant's home and did her laundry.

¶ 15 At some point, Adams left to go to Cotton's home because his mother was her "auntie." When she arrived at Cotton's home, Adams observed T.F dancing in the front room. Adams also saw Andrews, defendant, Cotton, and Jackson at Cotton's home. After about 20 to 30 minutes, Adams returned to defendant's home to check on her laundry. Both T.F. and Andrews were in the front room of Cotton's home when she left. After about 40 minutes to an hour, Adams received a call from Cotton's sister asking Adams to return to Cotton's home. When Adams arrived back at Cotton's home, T.F. was nonresponsive. Adams watched Cotton carry T.F. and put her in a car. Adams got in the car with T.F. Adams testified T.F. was going in and out of consciousness during the car ride to T.F.'s apartment complex. When they arrived at the apartment complex, Cotton carried T.F. into the apartment building. Adams also testifiedthe State's exhibit No. 1B was a photograph of what defendant looked like on February 3, 2016.

¶ 16 McFarland and Craig both testified that, on February 3, 2016, they went to Cotton's home with Andrews. Craig testified they went there to get T.F. They both remained outside the home and saw T.F. being carried to a car. Both testified T.F. could not walk by herself.

¶ 17 Officer Robinson testified she responded to a possible sexual assault call around 2 p.m. on February 3, 2016, at the Prairie Green Apartments. Upon arrival, she found several people in the...