United States v. Morales

572 F.Supp.3d 502

UNITED STATES of America,

v.Darius MORALES

Case No. 19 CR 874

United States District Court, N.D. Illinois, Eastern Division.

Signed November 15, 2021

AUSA, Charles William Mulaney, III, Assistant US Attorneys, United States Attorney's Office, Chicago, IL, Pretrial Services, Probation Department, for United States of America.

Jon F. Erickson, Jon Robert Neuleib, Erickson & Oppenheimer, Ltd., Chicago, IL, for Darius J. Morales.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, United States Circuit Court Judge

On August 12, 2021, following a three-day trial, the jury returned a guilty verdict as to Defendant Darius Morales on the count of knowingly being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Defendant has filed a motion for a new trial and for judgment of acquittal. (Doc. 106). For the reasons discussed below, Defendant's motion is denied.

BACKGROUND

A federal grand jury returned a single-count indictment, on November 19, 2019, charging Defendant with knowingly being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (Doc. 1, Indict.). Defendant pleaded not guilty to the charge, and the case proceeded to a jury trial. Before trial, defense counsel filed a motion in limine to bar evidence of a shooting in an alley on the day in question pursuant to Federal Rules of Evidence 104(b), 404(b), and 403. (Doc. 43; Doc. 73). The Court denied the motion, concluding that the evidence of the shooting was not Rule 404(b) "other acts" evidence, but rather direct evidence of Defendant's possession of the firearm, his motivation to flee the scene, and part of the chronology of events. (Doc. 89). The Court further concluded that any potential prejudice under Rule 403 could be cured by an appropriate jury instruction. The parties agreed to the Court's proposed jury instruction that clarified that Defendant was not charged with discharging a firearm.

At trial, the evidence established that on May 8, 2019, at approximately 3:30 p.m., shots were fired in the alley between the 2100 blocks of Darrow and Dewey Avenues in Evanston, Illinois. Four witnesses—Brian O'Malley, Melissa Coward, Evanston Police Department Detective Anthony Sosa, and Evanston Police Department Detective Amin Virani—testified at trial about the circumstances of the shooting. Brian O'Malley testified that he saw an individual facing a grey Jeep in the alley, shooting at a man dressed in red and black. According to Mr. O'Malley, the person shooting the gun was clean shaven and wore dark clothing, "sort of like track pants." (Doc. 112, 128:8–9). Mr. O'Malley also testified that the individual was large, but not heavy set.¹ After the shooting stopped, Mr. O'Malley took a video with his cellphone of the Jeep driving out of the alley toward Simpson Street.

Ms. Coward testified that on May 8, 2019, she lived at 2121 Darrow Avenue. Ms. Coward testified that she was home in her third-floor apartment when she heard gunshots and looked out of her window that had a view of the alley. She saw a person in dark clothing get into the passenger side of a grey vehicle. Ms. Coward then observed the vehicle drive through the alley toward Simpson Street. The jury viewed bodycam footage from an Evanston Police Officer that showed Ms. Coward's window, balcony, and line of sight.

Detective Anthony Sosa saw a grey Jeep leave the alley, heading west on Simpson Street. Detective Sosa activated his lights and sirens, and proceeded to follow the Jeep. During the chase, Detective Sosa momentarily lost sight of the Jeep, but eventually caught up with the Jeep after it had crashed into a residential fence, knocking it flat. The residence was on the corner of Lincoln Street and Sherman Avenue in Evanston. Dashcam footage from Detective Sosa's vehicle captured his pursuit from the mouth of the alley to where he saw the Jeep crashed into the fence.

Alan Grampp, who lives on the corner of Lincoln and Sherman where the Jeep crashed, testified that he was home when he heard a loud noise, and looked out his window. Mr. Grampp saw the Jeep hit the fence. He also observed two men exit the Jeep. According to Mr. Grampp, the passenger was wearing dark clothing and the driver was wearing a white and black windbreaker. Mr. Grampp observed the occupants of the Jeep run away from the vehicle.

Richard Buchannan testified that he lives on Lincoln Street and has Nest cameras installed on his garage. After hearing the commotion in his neighborhood, he checked his Nest camera footage and forwarded the footage to the Evanston Police Department. The footage shows two individuals who were later identified as Defendant and Twan Daniels-Robinson. In the footage, Defendant and Daniels-Robinson can be seen running through backyards adjacent to the crash site. Defendant is dressed in black clothing, and Daniels-Robinson is wearing a white and blue jacket. Evanston Police Officers arrested Defendant a few blocks away from the crashed Jeep.

Shortly after arresting Defendant, Evanston Police Officers asked Brian O'Malley to make an identification. The audio from Mr. O'Malley's identification was caught on dashcam footage and played to the jury. Upon seeing Defendant—and when asked if Defendant was the shooter in the alley—Mr. O'Malley simply answered "no." Mr. O'Malley did not qualify his negative identification. At trial, Mr. O'Malley explained his negative identification, claiming that he was unable to identify anyone, not that Defendant was not the shooter. Defense counsel vigorously cross-examined Mr. O'Malley on this point.

Detective Virani, who also works as an evidence technician, processed both the crash site and the site of the shooting. He recovered a firearm from the fence in front of the Jeep, a magazine to the firearm from the roof of the Jeep, two water bottles (one from the Jeep's front console and one from the Jeep's backseat), and a black sweatshirt from the ground outside the passenger's side of the Jeep. While processing the evidence, Detective Virani observed a fingerprint impression on the firearm, and took a photograph of it. Detective Virani brought the photograph to fingerprint examiner Larry Miller. He then swabbed the handgrip of the firearm for DNA testing, and applied dusting powder, fuming, and dye-staining to the firearm to make the fingerprint impression more visible. Detective Virani also swabbed both water bottles for DNA. In addition, he recovered cartridge casings from the scene of the shooting and photographed them, noting that the casings were the same as those recovered from the magazine found on the roof of the Jeep.²

Mr. Miller testified as an expert on fingerprint examination. Mr. Miller testified that he conducted his fingerprint analysis by comparing the photograph of the fingerprint from Detective Virani to the fingerprint impression on Defendant's fingerprint card. Mr. Miller concluded that the fingerprint impression on the firearm matched that of Defendant's right thumb. On direct examination, and again during cross-examination, Mr. Miller testified that the fingerprint was one of the best he had seen.

Karl Witt, an Evanston Police Department Officer, testified that he collected buccal swabs from Defendant and Twan Daniels-Robinson two days after their arrest. Maria Salazar, an expert on DNA analysis, testified that she compared the DNA profiles from the firearm and the two water bottles recovered from the Jeep. She concluded that the DNA from the water bottle in the front seat matched to Daniels-Robinson, and that Defendant was excluded. Ms. Salazar further concluded that there were three contributors for the DNA on the grip of the firearm, but that there was only one major profile suitable for comparison analysis. That major profile was a match to Defendant, and Daniels-Robinson was excluded as a contributor of DNA. Ms. Salazar lastly concluded that the DNA profile for the water bottle in the back seat of the Jeep was a match to Defendant.

The parties entered into several stipulations at the trial. First, Defendant stipulated that, prior to May 8, 2019, he had been convicted of a crime punishable by a term of imprisonment exceeding one year, and that he knew he had been convicted of such a crime. He also stipulated that a gunshot residue analysis performed by the Illinois State Police concluded that Defendant and Daniels-Robinson may not have discharged a firearm with either hand, and that if they did discharge a firearm, then particles were not deposited, were removed by activity, or otherwise not detected by the procedure.

Defense counsel extensively cross-examined each witness, raising issues such as Ms. Coward's visibility, the quality of the fingerprint, and inconsistencies with the witnesses’ testimony such as Mr. O'Malley's statement that the shooter was wearing track pants while Defendant was clearly wearing denim. Defense counsel also played footage from an Evanston pod camera, showing another individual who was large but thin, wearing black track pants, and holding a firearm near the mouth of the alley at around the same time as the shooting.

During closing arguments, the government made several statements tying Defendant to the shooting in the alley: "Why did he have this gun in his hand? He was trying to shoot someone in the alley between Dewey and Darrow. He had a get-away driver, and they fled in his Jeep"; and "But the shooting explains why defendant had the gun. His motive for possessing the gun was to shoot at the guy in the red and black, the intended victim." (Doc. 112, 482:17–19; 486:17–19). The government also tied Defendant to the black sweatshirt found at the scene: "Now, because the defendant was the shooter in the alley, he tried to get rid of the evidence tying him to the shooting. He leaves his black sweatshirt on the ground by the passenger side. He leaves the magazine on the Jeep and the gun on the fence." (Doc. 112, 488:13–17). Defense counsel did not object to any of these statements....