People v. Brunson ( 2021 )

2021 IL App (1st) 181957-UFOURTH DIVISION
March 25, 2021
No. 1-18-1957
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE APPELLATE COURT
OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. )
) No. 12 CR 21251 (02)
TIMOTHY BRUNSON, )
)
Defendant-Appellant. )
) Honorable
) Allen F. Murphy,
) Judge Presiding.
______________________________________________________________________________
JUSTICE REYES delivered the judgment of the court.
Justice Martin concurred in the judgment.
Presiding Justice Gordon specially concurred.
ORDER
¶1 Held: Affirming the judgment of the circuit court of Cook County as to defendant’s
murder charge where the trial court did not err when it declined to instruct the
jury on a lesser included offense. Reversing the judgment of the circuit court of
Cook County where the State failed to prove the corpus delicti that defendant
personally discharged a firearm and vacating the corresponding mandatory 20-
year sentence.
¶2 Following a jury trial, defendant Timothy Brunson, who was 19 years old at the time of
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the offense, was convicted of first degree murder under an accountability theory. The jury also
specially found him to have personally discharged a firearm in the commission of the offense.
The trial court sentenced defendant to the minimum 20 years’ imprisonment for murder plus a
mandatory 20 years’ imprisonment for firearm enhancement. On appeal, defendant argues (1)
the trial court committed reversible error in failing to instruct the jury on the lesser included
offense of aggravated discharge of a firearm, (2) the State failed to establish the corpus delicti
that he personally discharged a firearm, and (3) his 40-year sentence violates the proportionate
penalties clause of the Illinois Constitution as applied to him. For the following reasons, we
affirm the judgment of the circuit court of Cook County as to defendant’s murder charge, but
reverse the finding that defendant personally discharged a firearm during the commission of the
offense and vacate the 20-year mandatory sentence for personal discharge of a firearm.
¶3 BACKGROUND
¶4 Defendant was charged by indictment in pertinent part with the first degree murder of
Bryant Jones under an accountability theory. The indictment alleged that on October 21, 2012,
defendant, without lawful justification, intentionally or knowingly shot and killed Bryant while
armed with a firearm. The indictment further alleged that, during the commission of the offense,
he personally discharged a firearm. Cecil Ross, a codefendant, was also charged with the first
degree murder of Bryant.
¶5 The matter then proceeded to a joint bench trial where both defendant and codefendant
were represented by separate counsel. After hearing all of the evidence, the trial court found
defendant and codefendant guilty of first degree murder. While posttrial motions were pending,
the State filed a disclosure with the court that one of its witnesses, Shaundre Pickett, had been
charged with a weapons offense during the pendency of the defendant’s case. The State further
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asserted that the nondisclosure prior to trial was not the result of any error on behalf of the State.
A new trial was ordered, and defendant and codefendant requested to be tried by separate juries.
¶6 Trial
¶7 The evidence at defendant’s jury trial established the following facts. On the evening of
October 21, 2012, around 8:30 p.m. the victim, Bryant Jones, was with his cousins, Shaundre
Pickett and Tyreece Evans, smoking marijuana on the back porch of the apartment building
where Bryant resided. While Bryant was outside, defendant, Cecil, and Sebastian Bunville
entered an adjoining apartment occupied by Bryant’s family member Brandon Darty, his
girlfriend Carmen Gaskin, their one-month-old daughter, and Michelle Clay and her six-week-
old daughter. Earlier that evening, defendant drove Cecil and Sebastian to Michelle’s apartment.
They entered the apartment where Cecil looked at Michelle’s sick baby. Sebastian sat in a chair,
and defendant stood by the front door. Carmen observed Brandon going back and forth between
the living room and the back porch where Bryant was smoking. According to Shaundre, during
this time Brandon was asking if he could smoke with them, but they declined his requests.
Brandon then requested that Shaundre, Bryant, and Tyreece come with him into his apartment.
They agreed and stood in the kitchen where they could view defendant, Cecil, and Sebastian.
According to Carmen, Cecil then called her baby ugly and so she asked them to leave.
Thereafter, defendant, Cecil, and Sebastian exited the apartment building and left in defendant’s
white Saturn Vue SUV.
¶8 A few minutes later Cecil called Michelle’s cell phone. Carmen testified that Michelle
handed the phone to Brandon who became increasingly more agitated. Brandon hung up the
phone and informed Carmen that “they are going to kill me.” Brandon then obtained a butcher
knife and went upstairs to his cousins Danyelle and Kiona Davis’ apartment. Bryant, Shaundre,
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and Tyreece were already in Danyelle and Kiona’s apartment. Shaundre, noticing Brandon with
the butcher knife, told him to put it away and Brandon left. Shaundre, Bryant, and Tyreece then
went outside. Upon exiting the apartment building they observed defendant’s SUV parked in the
parking lot directly adjacent to the front yard of the building with the passenger side of the
vehicle closest to them. Defendant, Cecil, and Sebastian were all standing outside of the vehicle.
¶9 Shaundre testified that he walked to the front of the SUV while Bryant walked toward the
passenger side of the vehicle. According to Shaundre, Bryant was saying that Brandon did not
want to fight, and that they should go home. As Shaundre walked toward the SUV, he noticed
defendant pulling up his pants like he was going to take a swing at Bryant. According to
Shaundre, the sound of a handgun cocking made him look in Cecil’s direction. Shaundre then
observed Cecil come around the hood of the SUV, point the weapon at Bryant, and shoot. Cecil
was approximately five feet away from defendant at the time. Shaundre then turned and ran into
the apartment building. Shaundre did not see defendant with a weapon.
¶ 10 Carmen testified that prior to the shooting she came outside and told Cecil to leave. Cecil
responded to her by saying, “you called me over here” and moved toward the driver’s side of the
SUV. Carmen then observed Cecil reach into the backseat and pull out a weapon. Carmen
watched as Cecil discharged his weapon in Bryant’s direction three or four times. According to
Carmen, once Cecil commenced shooting, she turned and ran into the apartment building. She
did not see defendant with a weapon.
¶ 11 No one observed defendant, Cecil or Sebastian leave the scene. Initially after the
shooting, some of Bryant’s family members were unable to find him. Shortly thereafter, he was
discovered across the street face down in the grass. He was pronounced dead at the scene by the
first responders. An autopsy revealed that Bryant sustained a gunshot wound to the shoulder.
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The bullet traveled through his shoulder and entered his chest cavity where it damaged his lungs
and heart, ultimately exiting out his back.
¶ 12 Crime scene investigators found Cecil’s driver’s license in the parking lot close to four
fired 9-mm cartridge casings. One fired 9-mm bullet was also recovered. An expert in toolmark
identification testified that the four fired cartridge casings and the fired bullet were each
discharged from the same firearm. Shaundre and Carmen identified Cecil in separate lineups as
the individual who shot Bryant. Shaundre, Carmen, and Danyelle also identified defendant as an
individual who was at the scene.
¶ 13 Charles Cramer, defendant’s friend, testified that at 9:45 p.m. on October 21, 2012,
defendant called him and asked him if he could hide a “demo” for him. Charles testified that he
did not know what a “demo” was, and defendant later sent him a text stating, “never mind.” The
next day at 1:30 p.m. Charles was at Prairie State College with Sebastian when defendant called
Sebastian’s cell phone. Sebastian handed the phone to Charles and defendant asked Charles to
accompany Sebastian to a house located in Chicago Heights. Charles drove with Sebastian to
meet defendant. Defendant handed Charles a 2-inch by 2-inch box wrapped in a plastic bag.
Charles placed the bag in the trunk of his vehicle. Defendant then told Charles what had
happened the previous evening. According to Charles, defendant told him that someone “ran up
on” them and defendant shot him in the shoulder and the back. Defendant said the victim ran
away and defendant “kept shooting.” Defendant informed Charles that the victim was “slumped
over” before he ran off.
¶ 14 Charles further testified that later that day, after receiving a phone call from his friend,
Kevin Petit, Charles drove to Kevin’s residence with the box still in the trunk. Once he arrived
at Kevin’s residence, he watched as Kevin went to the back yard, jumped the fence, and came
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back with another plastic bag. They both sat down at Kevin’s kitchen table, put gloves on, and
opened the two bags. According to Charles, it was at this time he realized that they were
handling a handgun and ammunition.
¶ 15 The next day, Charles and Kevin contacted the Blue Island Police Department and
informed the police that they wanted to turn in a handgun and ammunition. They met with Blue
Island police officers in a parking lot and turned over the weapon, a 9-mm Taurus semiautomatic
handgun. They also turned over a dozen rounds of 9-mm ammunition from the plastic bag and
10 rounds of 9-mm ammunition that were inside the gun case. A firearm expert testified at the
trial that the weapon turned over by Charles was the weapon that was used in the shooting. He
also testified that the shell casings and the fired bullet were discharged from the same weapon.
¶ 16 Defendant was arrested on the afternoon of October 22, 2012. Defendant subsequently
gave a videotaped statement to detectives. In the statement, defendant informed them that prior
to the shooting he had purchased a 9-mm handgun and ammunition. Defendant also stated there
had been bad blood between Cecil and Brandon ever since high school. According to defendant,
on the day of the shooting, he, Cecil, and Sebastian drove to Michelle’s apartment building with
the firearm in the vehicle. Sebastian wanted to bring the firearm into the apartment, but
defendant dissuaded him. Then, when they returned and parked in the parking lot, defendant was
aware that Cecil had the weapon on him when he exited the SUV. Defendant stood on the
driver’s side of the SUV. When he heard gunshots, he ducked down. Cecil then ran by him and
defendant grabbed the weapon from Cecil’s hand and shot it twice down the street as Bryant ran
away. Defendant further stated that after the shooting he gave Charles a box of ammunition and
Kevin the weapon. The videotaped statement was admitted into evidence and published to the
jury.
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¶ 17 Additional physical evidence was presented at the trial including a black hooded
sweatshirt recovered from Cecil’s vehicle. A gunshot residue test was performed, and gunshot
residue was discovered on the left cuff of the black hooded sweatshirt. A mixture of DNA from
at least three different individuals from which Cecil could not be excluded was discovered on the
black hooded sweatshirt. Such a match would occur in one in 19 quintillion African American
individuals, one in 7.2 sextillion Southwest Hispanics, or one in 160 sextillion white unrelated
individuals. Defendant, Sebastian, Charles, and Kevin were excluded from being a match to the
DNA discovered on the black hooded sweatshirt. Defendant’s white Saturn Vue SUV was also
recovered and the items within the vehicle were inventoried. A black jacket was discovered in
the cargo area of the vehicle and was also tested for gunshot residue. That test came back
negative for gunshot residue. A DNA test was performed on the black jacket and it contained a
mixture of at least two DNA profiles, one being Cecil’s. Such a match to Cecil’s DNA profile
would occur in one in 150 quintillion African American individuals, one in 49 sextillion
Southwest Hispanics, or one in 1.4 sextillion white unrelated individuals. Defendant, Sebastian,
Charles, and Kevin were excluded from being a match to this DNA.
¶ 18 The State rested and defendant moved for a directed verdict, which was denied. The
defense did not present any live testimony but did enter a stipulation that Cecil signed a consent
to search form with his left hand. The defense also admitted into evidence a still image from the
videotape of Cecil signing the consent to search form, which was published to the jury.
¶ 19 Outside the presence of the jury, the trial court conducted a jury instruction conference
wherein defendant objected to the jury being instructed on accountability. The trial court
overruled the objection. Defendant then sought to have the jury instructed on the lesser included
offense of aggravated discharge of a firearm, which the trial court denied.
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¶ 20 After hearing closing arguments and jury instructions, the jury commenced deliberations.
Approximately 45 minutes later, the jury sent out a note stating, “Not able to agree.” The trial
court noted that the jury had barely begun to deliberate and directed them to continue to
deliberate. The jury shortly thereafter sent out two additional notes. One note asked for Charles’
testimony and a copy of his written statement given at the police station. The other note stated,
“We are split 1 to 11 no hope under this charge. Lesser charge???” The trial court observed that
the jury had sent out three notes after only 90 minutes of deliberation, which included the time
the jury was eating lunch. The trial court continued to question whether the jury was
deliberating. The parties discussed an appropriate response and the court ultimately informed the
jury that Charles’ written statement was not in evidence and directed it to continue to deliberate.
Two minutes later, the jury requested a transcript of defendant’s videotaped statement and was
informed it was not available. Three minutes later, the jury sent out a fifth note stating that it
could not reach an agreement. Again, with the agreement of counsel, the trial court instructed
the jury to continue deliberating. Forty-five minutes after that, the jury sent out two notes
indicating that it “has a personal bias against the charge of 1st Degree [murder],” and that it was
“Deadlocked.” The trial court again noted the short time the jury had been deliberating and
defense counsel requested the court issue an instruction set forth in People v. Prim, 53 Ill. 2d 62(1972). The trial court agreed and so instructed the jury.
¶ 21 After the Prim instruction was issued, the jury deliberated for an additional 90 minutes
before finding defendant guilty of first degree murder and that he personally discharged a firearm
in the commission of the offense. Defense counsel filed a motion for a new trial, which was
denied.
¶ 22 At the sentencing hearing on September 11, 2018, the trial court heard evidence in
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aggravation and mitigation. The State presented victim impact statements from three of the
victim’s relatives and stressed the seriousness of the crime. In mitigation, the defense
emphasized defendant’s lack of criminal history, his strong family ties, the fact he graduated
high school and was viewed as a positive role model for his peers. The defense also presented
the live testimony of defendant’s high school counselor and two statements from high school
classmates. Defendant addressed the court in allocution. He expressed remorse for his
involvement in the shooting but maintained he did not kill Bryant.
¶ 23 After considering all the factors in aggravation and mitigation, as well as reviewing the
presentence investigation report, the trial court sentenced defendant to 20 years’ imprisonment
for first degree murder with a mandatory 20-year firearm enhancement, for a total sentence of 40
years’ imprisonment. In rendering this sentence, the trial court expressed frustration that the
minimum sentence it could impose was 40 years and believed such a sentence was excessive
considering defendant’s role in the offense, his background, and his potential for rehabilitation.
The trial court even went so far as to research the law of the eighth amendment and the
proportionate penalties clause of the Illinois Constitution to see if it had any discretion when
sentencing defendant. After reviewing Miller v. Alabama, 567 U.S. 460 (2012), People v.
Harris, 2016 IL App (1st) 141744, People v. Thompson, 2015 IL 118151, and People v. House,
2015 IL App (1st) 110580, the trial court concluded its hands were tied and, following our
supreme court’s words in People v. Petrenko, 237 Ill. 2d 490 (2010), stated that the judiciary is
bound to fashion a sentence within the parameters set by the general assembly. Defendant
thereafter filed a motion to reconsider sentence and, while arguing his sentence was excessive,
did not raise any constitutional claims. The trial court denied the motion and this appeal
followed.
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¶ 24 ANALYSIS
¶ 25 On appeal, defendant argues (1) the trial court committed reversible error in failing to
instruct the jury on the lesser included offense of aggravated discharge of a firearm, (2) the State
failed to establish the corpus delicti that he personally discharged a firearm, and (3) his 40-year
sentence violates the proportionate penalties clause of the Illinois Constitution as applied to him.
We address each issue in turn.
¶ 26 Jury Instructions
¶ 27 Defendant argues the trial court improperly refused to instruct the jury on aggravated
discharge of a firearm as a lesser included offense of first degree murder. The State agrees that
aggravated discharge of a firearm is a lesser included offense of first degree murder in this case
but maintains that the jury could not have rationally convicted him of that offense while
acquitting him of first degree murder and therefore the trial court did not err in refusing the
instruction. For the reasons which follow, we agree with the State.
¶ 28 A defendant is entitled to a lesser included offense instruction only if the evidence at trial
is such that a jury could rationally find the defendant guilty of the lesser offense yet acquit him
of the greater. People v. Medina, 221 Ill. 2d 394, 405 (2006). In Illinois, courts apply the
charging instrument approach when determining whether an offense qualifies as a lesser-
included offense. People v. Kennebrew, 2013 IL 113998, ¶ 41. Under this approach, “the lesser
offense need not be a ‘necessary’ part of the greater offense, but the facts alleged in the charging
instrument must contain a ‘broad foundation’ or ‘main outline’ of the lesser offense.” Id. ¶ 30.
The charging instrument approach requires a two-step analysis. Id. First, we determine whether
an offense is a lesser-included offense. Id. Then, we examine the evidence at trial to determine
“whether there is some evidence in the record that, if believed by the jury, will reduce the crime
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charged to a lesser offense.” (Emphasis in original.) People v. McDonald, 2016 IL 118882,
¶ 25. Whether an offense is a lesser included offense of a charged crime is an issue of law that
we review de novo. Kennebrew, 2013 IL 113998, ¶ 18; People v. Kolton, 219 Ill. 2d 353, 361
(2006).
¶ 29 “[T]he second step—examining the evidence adduced at trial—should not be undertaken
unless and until it is first decided that the uncharged offense is a lesser-included offense of a
charged crime.” Kolton, 219 Ill. 2d at 361. “When the trial court, after reviewing all the
evidence, determines that there is insufficient evidence to justify the giving of a jury instruction,
the proper standard of review of that decision is abuse of discretion.” McDonald, 2016 IL
118882, ¶ 42. “Common sense dictates that, for a reviewing court to determine whether the trial
court abused its discretion, it must undertake a review of the relevant evidence. This is necessary
because an abuse of discretion occurs where the trial court’s decision is arbitrary, fanciful, or
unreasonable to the degree that no reasonable person would agree with it.” Id. ¶ 32.
¶ 30 We initially agree with the parties that aggravated discharge of a firearm is a lesser-
included offense of defendant’s first degree murder charge. Here, the State proceeded to trial on
only first degree murder, which alleged that defendant:
“WITHOUT LAWFUL JUSTIFICATION, INTENTIONALLY OR KNOWINGLY
SHOT AND KILLED BRYANT JONES WHILE ARMED WITH A FIREARM, AND
DURING THE COMMISSION OF THE OFFENSE HE PERSONALLY
DISCHARGED A FIREARM[.]”
This charge essentially alleges that defendant intentionally or knowingly shot Bryant with a
firearm. It thus contains a “broad foundation” or “main outline” of the lesser offense of
aggravated discharge of a firearm, which occurs when a defendant intentionally or knowingly
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“[d]ischarges a firearm in the direction of another person or in the direction of a vehicle he or she
knows or reasonably should know to be occupied by a person.” 720 ILCS 5/24-1.2(a)(2) (West
2012).
¶ 31 The next inquiry in our analysis is whether the evidence was sufficient to uphold a
conviction of aggravated discharge of a firearm. Kennebrew, 2013 IL 113998, ¶ 30. “A
defendant is entitled to a lesser included offense instruction only if the evidence at trial is such
that a jury could rationally find the defendant guilty of the lesser offense yet acquit him of the
greater.” Medina, 221 Ill. 2d at 405. This is an “evidentiary prerequisite [that] must be met
before a right to have the jury instructed on a lesser-included offense arises.” Id.¶ 32 We find that defendant could not be rationally found guilty of aggravated discharge of a
firearm yet not guilty of first degree murder. The State tried defendant in this case under a
theory of accountability. A person is legally accountable for the conduct of another if “[e]ither
before or during the commission of an offense, and with the intent to promote or facilitate such
commission, he solicits, aids, abets, agrees, or attempts to aid, such other person in the planning
or commission of the offense.” 720 ILCS 5/5-2(c) (West 2012). Under the common design rule,
“where two or more persons engage in a common criminal design or agreement, any acts in the
furtherance of that common design committed by one party are considered to be the acts of all
parties to the design or agreement and all are equally responsible for the consequences of the
further acts.” People v. Perez, 189 Ill. 2d 254, 267 (2000). “Words of agreement are not
necessary to establish a common purpose to commit a crime.” Id. The common design can be
inferred from the circumstances surrounding the perpetration of the unlawful conduct. People v.
Taylor, 164 Ill. 2d 131, 141 (1995). “Proof that defendant was present during the perpetration of
the offense, that he maintained a close affiliation with his companions after the commission of
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the crime, and that he failed to report the crime are all factors that the trier of fact may consider
in determining the defendant's legal accountability.” Id.¶ 33 In this case, we cannot say that the trial court abused its discretion when it determined
that the jury could not have rationally convicted defendant of aggravated discharge of a firearm
yet acquitted him of first degree murder. The evidence established defendant’s guilt of first
degree murder in this case. Defendant drove Cecil and Sebastian in his vehicle to Brandon
Darty’s apartment where the offense occurred. According to defendant’s statement, he was
aware that Cecil did not get along with Brandon and that a firearm was in his vehicle at the time
they traveled to Brandon’s apartment. Then, after the three left the apartment building,
defendant drove away only to return a few minutes later. The evidence demonstrated that Cecil
made a phone call during this time and had spoken to Brandon Darty indicating that he was
going to fight him. After defendant parked the SUV next to the apartment building, Sebastian sat
on the hood of the vehicle while defendant stood outside next to the driver’s side. When Bryant
and Shaundre began approaching the SUV, Sebastian slid off the hood and defendant pulled up
his pants and approached Bryant in a manner that appeared to Shaundre and Carmen that
defendant was preparing to fight. Cecil then reached into the vehicle, obtained the handgun, and
fired at Bryant. Defendant informed the detectives that he then approached Cecil, took the
weapon from him, and fired the weapon in Bryant’s direction as Bryant ran away. The evidence
demonstrates Shaundre and Carmen were running into the apartment building at this time and did
not notice if defendant fired the weapon. Danyelle’s testimony, however, indicated that she
heard two gunshots followed by a pause and then more gunshots. This is consistent with
defendant’s account that he took the firearm from Cecil and then began shooting. While the
medical examiner’s evidence corroborates defendant’s assertions to the detectives that he did not
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strike Bryant, it does not negate his accountability in Bryant’s murder.
¶ 34 Defendant nonetheless argues that there was a possibility that the jury could have
convicted him of the lesser offense of aggravated discharge of a firearm based on the content of
the notes sent to the court by the jury during its deliberation. Specifically, defendant maintains
that the jury expressly requested to be instructed on a lesser charge and therefore the jury could
have reasonably determined he was not guilty of first degree murder based on the witnesses’
testimony and guilty instead of aggravated discharge of a firearm.
¶ 35 We observe that defendant cites no case law supporting his proposition that the jury itself
can determine whether it should have been provided with instructions on a lesser included
offense. Indeed, it is not the jury that makes that determination, but the trial court. McDonald,
2016 IL 118882, ¶ 42. As previously stated, the trial court’s determination on which instructions
to give is reviewed for an abuse of discretion. Id. Contrary to defendant’s claim, the evidence
established that defendant participated in a common criminal design where he not only drove
Cecil to the apartment building, but also used the firearm, himself, to fire multiple shots in
Bryant’s direction as he fled. A jury could not rationally find, under these circumstances, that
defendant fired shots at Bryant, but was nevertheless not guilty of first degree murder under a
theory of accountability. We find that defendant was not entitled to a jury instruction on the
lesser included offense of aggravated discharge of a firearm; and, consequently, the trial court
did not err in refusing the instruction. See People v. Perez, 108 Ill. 2d 70, 83 (1985) (finding the
evidence underlying the accountability theory precluded any possibility of the jury finding the
defendant guilty of aggravated battery and therefore the trial court did not err in refusing to give
the defendant’s tendered lesser included offense instruction).
¶ 36 Corpus Delicti
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¶ 37 Defendant first asserts that the State failed to prove the corpus delicti of personally
discharging a firearm thereby requiring the reversal of the finding that he personally discharged a
firearm. According to defendant, the State failed to present any evidence corroborating
defendant’s admission that he fired the weapon. Defendant argues that because the corpus
delicti cannot be proven by statements alone, the evidence is insufficient to support the jury’s
finding that he personally discharged a firearm.
¶ 38 When a defendant challenges the sufficiency of the evidence, the reviewing court must
consider whether, viewing the evidence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of a crime beyond a reasonable doubt. People v.
Brown, 2013 IL 114196, ¶ 48. Specifically, the State must prove two propositions beyond a
reasonable doubt: (1) that a crime was committed, also known as the corpus delicti; and (2) that
the defendant committed the crime. People v. King, 2020 IL 123926, ¶ 53; People v.
Underwood, 2019 IL App (3d) 170623, ¶ 10. Importantly, a confession alone is insufficient to
prove the corpus delicti of an offense; there must be some corroborating evidence tending to
prove that a crime has been committed. People v. Lara, 2012 IL 112370, ¶¶ 17, 45. This
corroborating evidence need only tend to show the commission of an offense and correspond
with the circumstances related in the confession. Id. ¶ 32. It is not necessary that the
independent evidence establish that the defendant committed a crime beyond a reasonable doubt.
Id. In determining whether the State has met its burden, we will not substitute our judgment for
that of the trier of fact, nor will we reverse a conviction unless the evidence is so improbable or
unsatisfactory so as to raise reasonable doubt of a defendant’s guilt. People v. Wright, 2017 IL
119561, ¶ 70.
¶ 39 The State argues that it is not required to prove every element of the offense of murder
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under the corpus delicti rule, and that it is not required to later prove every element to the jury
beyond a reasonable doubt. However, the personal discharge penalty is not an element of the
offense of murder. See People v. Alexander, 2017 IL App (1st) 142170, ¶ 47 (“personal
discharge of a firearm is not an element needed to convict defendant of first degree murder.”).
The elements of first-degree murder are: (1) an intent to kill or do great bodily harm; and (2)
“acts which cause[d] death.” 720 ILCS 5/9-1(a) (West 2018). Our jury “instructions and the law
of Illinois are clear that first degree murder and a personal discharge allegation contain separate
elements.” People v. Jaimes, 2019 IL App (1st) 142736, ¶ 77. The personal discharge penalty
requires a separate finding by the jury, to be proved beyond a reasonable doubt. See Alexander,
2017 IL App (1st) 142170, ¶ 47 (“pursuant to Apprendi,” personal discharge of a firearm is “a
fact that needed to be submitted to the jury in order for the State to seek the firearm enhancement
sentence”) (citing Apprendi v. New Jersey, 530 U.S. 466, 483 (2000)).
¶ 40 Under the corpus delicti rule, as the parties agree, some proof is required beyond the
statement or admission by the defendant to support a jury’s beyond-a-reasonable-doubt finding.
See Lara, 2012 IL 112370, ¶¶ 17, 45. In this case, there was no proof. The State asserts that the
spent shell casings which were discovered in two different locations lends “some evidence” to
support that defendant also fired the weapon. But this evidence is not sufficient where the
State’s expert testified that the placement of shell casings is not indicative of where an individual
was standing when the weapon was fired. Indeed, the expert testified that shell casings can land
many feet from where the weapon was fired. The location of the shell casings in conjunction
with the trial testimony fails to provide sufficient corroborating evidence that two shooters were
responsible.
¶ 41 The State further argues that the corpus delicti for murder and personal discharge of a
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firearm is Bryant’s dead body, with a gunshot wound. This, however, is not a case where the
defendant is accused of personally causing any injury to the victim. This is a case where the
State accuses defendant of firing a handgun only after the “acts which cause[d] the death.” 720
ILCS 5/9-1(a) (West 2018). As a result, the body itself is not evidence of whether defendant did,
or did not, personally discharge a firearm.
¶ 42 Moreover, we find defendant’s argument that he did not fire the weapon during the
commission of the murder persuasive. Defendant’s admission to the detectives that he fired the
weapon after the murder was completed may make him an accessory after the fact, but it does
not establish that he fired a weapon during the commission of the murder. At trial, Shaundre
testified that Ross fired a handgun at Bryant from three to five feet away, that the shot hit Bryant
in his “left chest shoulder area,” and that Shaundre observed that the force from the impact of the
bullet caused Bryant to swing around. The medical examiner’s testimony corroborated
Shaundre’s testimony that Ross murdered the victim with one shot. The examiner also testified
that the autopsy revealed that one fatal gunshot, which entered Bryant’s left-shoulder area, about
three inches below his shoulder, went through Bryant’s chest, and out his back. Importantly, no
eyewitness testified they observed defendant holding or shooting a firearm.
¶ 43 This court has previously found that “[a]lthough driving the shooter away from a murder
assists the shooter in avoiding capture, that conduct does not hold the driver legally accountable
for the murder. [Citation.] That offense is accessory after the fact [citation], not first-degree
murder.” People v. Johnson, 2014 IL App (1st) 122459-B, ¶ 148. Similarly, in the case at bar,
the fact that defendant fired a weapon after the murder may render him guilty of being an
accessory after the fact, but it does not make him guilty of personally discharging a weapon
during the offense. The personal discharge statute provides that, “if, during the commission of
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the offense, the person personally discharged a firearm, 20 years shall be added to the term of
imprisonment imposed by the court.” (Emphasis added). 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West
2018). We thus find that the State has failed to establish the corpus delicti required for
application of the special finding of personal discharge of a firearm and vacate the 20-year
mandatory sentence. See Ill. S. Ct. R. 615(b) (a reviewing court may “reduce the punishment
imposed by the trial court.”).
¶ 44 Sentence
¶ 45 Lastly, defendant argues that his 40-year sentence violates the proportionate penalties
clause of the Illinois Constitution as applied where he was an “emerging adult” at only 19 years
old at the time he committed the offense. Defendant claims that new scientific evidence
concerning brain development in youths and the reasoning set forth in a line of caselaw
beginning with the United States Supreme Court decision in Miller, which prohibits mandatory
life sentences for juveniles who commit murder, should be considered, and applied to his specific
circumstances as a 19-year-old young adult with no prior convictions. Accordingly, defendant
requests we remand this case to the circuit court for a new sentencing hearing. In the alternative,
defendant asserts his counsel was ineffective for failing to raise this issue at sentencing.
¶ 46 Based on our conclusion that the State failed to establish the corpus delicti required for a
special finding of personal discharge of a firearm, we vacate defendant’s 20-year sentence
thereunder pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) (a reviewing
court may “enter any judgment and make any order *** and grant any relief *** that the case
may require.”). See also Ill. S. Ct. R. 615(b) (a reviewing court may “reduce the punishment
imposed by the trial court.”).
¶ 47 Thus, with defendant’s 20-year enhancement vacated, we find his 20-year minimum
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sentence for first-degree murder did not violate the proportionate penalties clause. A sentence
violates the proportionate penalties clause if it is “cruel, degrading, or so wholly disproportionate
to the offense as to shock the moral sense of the community.” People v. Sharpe, 216 Ill. 2d 481,
487 (2005) (citing People v. Moss, 206 Ill. 2d 503, 522 (2003)). We cannot say that defendant
being sentenced to the minimum sentence shocks the moral sense of the community and
defendant provides no argument otherwise. Thus, we affirm the circuit court’s 20-year sentence
for first-degree murder.
¶ 48 CONCLUSION
¶ 49 For the reasons stated above, the judgment of the circuit court of Cook County as to
defendant’s first-degree murder conviction is affirmed. We reverse the special finding that
defendant personally discharged a firearm during the commission of the offense and thus vacate
the corresponding 20-year sentence. We otherwise affirm defendant’s 20-year minimum
sentence for first-degree murder.
¶ 50 Affirmed in part; reversed in part; vacated in part.
¶ 51 PRESIDING JUSTICE GORDON, specially concurring:
¶ 52 I write separately to observe that our finding to vacate the personal-discharge penalty is
also amply supported by the trial court’s findings at sentencing.
¶ 53 At sentencing, the trial court made a specific finding that the 40-year sentence it was
imposing was “excessive,” in light of defendant’s age, background and role in the offense. The
19-year-old defendant had no criminal history, no gang affiliation, no substance abuse issues and
no school disciplinary records. At sentencing, the trial court found that it was codefendant Ross,
not defendant, who “fired the fatal shot” that killed the victim. The trial court further found that
defendant had “rehabilitative potential” and that “40 years is excessive when you consider what
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he did here.” The court observed that even “the jury sent out a note that said we have a moral
dilemma with the first degree murder charge here.” However, the court found that the statute left
it no “discretion” and that it had to impose a 40-year sentence, served at 100%, because that was
the mandatory minimum for first-degree murder with a personal-discharge penalty. In light of
the trial court’s already-existing finding of excessiveness in the case at bar, its imposition of the
minimal possible sentence, its other factual findings concerning defendant’s rehabilitative
potential, and the jury’s apparent frustration with the charges directed against defendant, I find
no need to remand for resentencing after vacating the 20-year sentence for personal discharge.
Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (a reviewing court may “enter any judgment and make
any order *** and grant any relief *** that the case may require”); Ill. S. Ct. R. 615(b) (a
reviewing court may “reduce the punishment imposed by the trial court”).
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