People v. Brazziel

FIRST DIVISION
November 22, 2010
No. 1-08-1455
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
JAMAEL BRAZZIEL, ) The Honorable
) Nicholas R. Ford,
Defendant-Appellant. ) Judge Presiding.
JUSTICE LAMPKIN delivered the opinion of the court:
A jury convicted defendant, Jamael Brazziel, of first degree
murder proximately caused by his personal discharge of a firearm.
Defendant was sentenced to an aggregate of 60 years’
imprisonment. On appeal, defendant contends that (1) the State
failed to prove him guilty beyond a reasonable doubt; (2) the
trial court’s failure to comply with the mandates of Supreme
Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April
11, 2007), R. 431(b), eff. May 1, 2007) entitles him to a new
trial; (3) the State improperly raised the issue of the defense
witnesses’ moral character; and (4) his sentence was excessive in
light of mitigating factors. Based on the following, we affirm.
FACTS
On April 26, 2006, the victim, Larry Brown, was shot to
death following an altercation on the west side of Chicago,
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Illinois.
Prior to conducting voir dire, the trial judge, in relevant
part, told the prospective jurors:
“Under the law, a defendant is presumed to be
innocent of the charges against him. The presumption
remains with him throughout every stage of the
proceeding. It is not overcome unless from all the
evidence in this case you are convinced beyond a
reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of
defendant beyond a reasonable doubt. The burden
remains on the State throughout the case. The
defendant is not required to prove his innocence nor is
he required to present any evidence in his own behalf.
He may not even testify if he chooses to do so. He
doesn’t even have a duty to do so. He may rely simply
on the presumption of his innocence in this case.
* * *
You shall be bound by your oath as jurors to
follow the law as it is given to you. You may not
disregard the law as given to you and apply the law
that you think individually or collectively should be
the law. In other words, I’m going to give you rules
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and those are the rules. You’re to follow the rules
that I give you in conjunction with your review of the
evidence, okay? That’s important.
* * *
If you become convinced beyond a reasonable doubt
from all the charges in this case that the defendant is
charged guilty within the indictment, it will be your
duty to find him guilty. Do you all understand that?
(Nodding.)
Everybody is nodding.
Is there anyone who cannot follow that law?
I don’t see anyone that’s indicating that they
couldn’t.
On the other hand, if after hearing all the
evidence in this case you are not convinced beyond a
reasonable doubt of the defendant’s guilt, it will be
your duty to find him not guilty. Do you all
understand that instruction?
Everybody is indicating yes.
Is there anyone who doesn’t understand that
instruction?
I got no one raising their hand. So that won’t be
something I’ll address further.”
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While conducting voir dire of the first panel, the trial
court asked the first prospective juror:
“Q. Do you understand if the State proves their
case beyond a reasonable doubt, that it will be your
duty to find the defendant guilty?
A. Yes, I do.
Q. Do you understand also that if you feel that
the defendant’s guilt hasn’t been proven beyond a
reasonable doubt, it would be your duty to find him not
guilty?
A. Correct.
Q. Would you follow those rules along with all the
other rules in this case in reaching a verdict?
A. Yes.”
The judge then directed his inquiry to the entire first panel:
“THE COURT: I’m going to ask that of all of you in
the audience, do all of you understand that?
THE VENIRE: Yes.
THE COURT: And would all of you follow that law
along with all the other law I give you in the case?
THE VENIRE: Yes.
THE COURT: All indicating yes. That’s important
stuff also, folks.”
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Later, while questioning a different prospective juror from
the first panel, the judge inquired:
“Q. Do you understand the defendant–-and I’m
talking to all of you now and I’m going to see if
anybody has a problem with it, just raise your hand.
Do you understand the defendant doesn’t have to
prove anything; it’s the State’s burden to prove the
defendant guilty beyond a reasonable doubt. Do you
understand that?
A. Yes.
Q. And would you follow that law along with all
the other law I give you in this case?
A. Yes.”
Ten jurors were selected from the first panel. Nine of the
ten were asked individually some version of whether the juror
could find defendant guilty if the evidence had demonstrated
defendant’s guilt beyond a reasonable doubt or find him not
guilty if the evidence had not demonstrated defendant’s guilt
beyond a reasonable doubt. Of that group of nine, one juror was
asked whether he understood that “defendant has to prove
nothing.” The juror replied “yes.” One other juror in the group
of nine was asked, “You heard me talk about the burden of proof
and the other things with everyone else. Were there any
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questions that you had for me[?]” The juror responded, “No. I
understand and I could be objective, yes.”
Prior to conducting voir dire of the second panel, from
which two jurors were selected, the judge addressed the entire
panel:
“THE COURT: Good morning. Again, folks, I’ve
given several times the law that you’ll all follow as a
group. Have you all understood what I’ve been talking
about all morning here?
THE VENIRE: Yes.
THE COURT: And would you follow the law that I’ve
been talking about all morning along with all the other
law I give you in this case in reaching a verdict?
THE VENIRE: Yes.
THE COURT: Everyone has indicated yes.
If there was one of these questions that I asked
before where you kind of raised your hand, bring it to
my attention now when I begin to question you
individually.”
The judge asked the eleventh impaneled juror:
“Q. Do you understand that it’s the State’s burden
to prove the defendant’s guilt beyond a reasonable
doubt and that burden remains with him throughout the
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entire case?
A. Yes.
Q. If the State failed to prove the defendant’s
guilt beyond a reasonable doubt, could you find him not
guilty?
A. Yes.
Q. If the State did succeed at proving his guilt
beyond a reasonable doubt, could you find him guilty?
A. Yes.”
The judge asked the twelfth impaneled juror:
“Q. Would you follow all the law I gave you in
this case in reaching your verdict?
A. Yes, sir.
Q. You’ve heard me talk about it with many of the
jurors before. Do you have any problem following all
of the law that I’ve given so far?
A. No.
Q. And would you do so?
A. Yes.”
Voir dire concluded on a Friday. Opening statements and the
presentation of witnesses began the following Monday. Prior to
swearing in the jury, the judge said:
“Do you all – and I’m going to ask this of the
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group. Do you remember the rules of law that I gave
you on Friday?
Everybody is indicating yes.
And will you follow that along with all the other
law that I give you in this case in reaching your
verdict?
Everybody is indicating yes.”
The trial evidence demonstrated that a crowd of teenagers
was gathered on the street around 9 p.m. on April 26, 2006. The
victim had been “slap boxing” with a girl named Jean McDaniel.
McDaniel alerted her cousin, Anthony “Red” Raper. In response,
Raper began searching for the victim. When McDaniel identified
the victim, Raper approached him. Raper and the victim exchanged
punches, none of which made contact. The victim then ran in the
opposite direction and the crowd on the street, including Raper,
chased after him. Raper’s cousin, defendant, was at the front of
that crowd with Raper. Defendant then drew a handgun and pointed
it at the victim. He fired one fatal shot to the back of the
victim’s head. The victim immediately fell to the ground.
The State called six witnesses, all of whom testified to
being in or near the crowd when the shooting occurred. Yolanda
Floyd, who lived on the street where the crowd was gathered, and
Raper testified that they witnessed defendant shoot the victim as
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the victim ran away from the crowd.
Raper said he was next to his cousin, defendant, when
defendant pulled a handgun from his waist, pointed the weapon at
the victim, and shot the victim. On cross-examination, however,
Raper testified that he never saw defendant with a handgun or
knew that defendant had a gun. Raper said he did not see
defendant at the time of the victim’s shooting. Raper testified
that he was interviewed by the police in the presence of his
mother and he implicated defendant out of fear of being charged
himself. Then, on redirect examination, Raper testified that
defendant was the shooter. Raper said his direct testimony was
the truth. Raper added that he was afraid to testify against his
cousin. Raper acknowledged that he was three feet away from
defendant when he witnessed defendant draw a handgun and shoot
the victim.
Floyd testified that she lived at 5512 W. Cortland Street in
Chicago, Illinois. Floyd said she heard commotion on the night
in question and exited her house to see 50 to 100 people on her
street. Floyd then attempted to retrieve her young children that
were playing outside at the time. She heard a female yell,
“there he is” and saw someone swing at the victim, Lloyd’s
neighbor. The victim returned a swing and then ran toward his
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house. Lloyd saw defendant raise a revolver and shoot the gun at
the victim. Lloyd was approximately eight feet from defendant
when he shot the victim. The victim was approximately one to two
feet from Lloyd when he was shot. Lloyd identified defendant as
the shooter in a photographic array and during a lineup. Lloyd
testified that her son was friends with the victim.
Shontrice Smith testified that she was with Lakesha Gibbs
and the victim on the night in question. Smith witnessed the
fight between the victim and Raper and saw the crowd chasing the
victim. Smith said she heard a gunshot and saw that the victim
had been shot. In response, Smith ran in the opposite direction
of the crowd. According to Smith, she was 5 or 10 feet away from
the victim when he was shot. Smith testified that she did not
remember if she saw the shooter. Smith testified that she was
interviewed in her mother’s presence a few hours after the
shooting. She provided a statement to the police and identified
defendant as the shooter in a photographic array. Smith
testified that she could not recall identifying defendant as the
shooter; however, Smith admitted that she and her mother signed
each page of her statement. The State introduced Smith’s
handwritten statement. Smith also identified defendant as the
shooter before the grand jury. At trial, however, Smith said she
could not remember testifying before the grand jury. Smith was
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treated as a hostile witness. The State introduced Smith’s grand
jury testimony, in which Smith testified that she was five feet
away from defendant when he shot the victim.
Gibbs testified that she saw a crowd approach Cortland
Street on the night in question. Gibbs witnessed Raper and the
victim exchange swings. The victim then walked toward his house.
Gibbs could not recall whether the crowd followed the victim.
Gibbs did not see anything else. She could not recall hearing a
gunshot or seeing defendant shoot the victim. Gibbs recalled
speaking to the police following the incident, but did not recall
providing a written statement. Gibbs acknowledged that her
statement provided that she was off to the side of the victim
when defendant fired a handgun. In the statement, Gibbs said she
could clearly see defendant and he was the only individual with a
handgun. The State introduced Gibbs’ signed, handwritten
statement. Gibbs testified that she did not recall testifying
before the grand jury. Gibbs did not remember testifying that
she was a couple of inches away from defendant when he shot the
victim. The State introduced Gibbs’ grand jury testimony
inculpating defendant.
DeSean Henry testified that he witnessed the fight between
Raper and the victim; however, Henry was at home prior to the
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shooting and did not see anything. Henry testified that he spoke
to the police and provided a handwritten statement following the
incident while in the presence of his mother, but said the
statement was untrue. Henry testified that he provided the false
statement because he was threatened by the police. Henry and his
mother signed each page of the statement. The State introduced
Henry’s statement and his grand jury testimony, both of which
reflected that Henry reported being near defendant when defendant
shot the victim. Henry testified at trial that he lied in his
grand jury testimony because the police told him what to say.
A law clerk from the State’s Attorney’s office later
testified that, while accompanying Henry to the courtroom prior
to his testimony, Henry was talking on his cellular telephone.
The clerk overheard Henry say that “Red flipped” and that if he
testified that “I don’t remember, they can’t do anything.” Henry
admitted having a phone conversation in front of the law clerk.
Henry admitted reporting that “Red flipped,” but denied saying,
“if I say I don’t remember, they can’t do anything to me.”
Johnny Ceasar testified that he was walking on the street
where the crowd was gathered when he heard two gunshots. Caesar
did not see anyone get shot. Ceasar ran home in response.
Ceasar initially said he spoke to the police and the prosecutor;
however, Ceasar testified that the police told him what to say in
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the statement under threat of being charged with an offense.
Later in his testimony, Ceasar denied having provided a
statement. Ceasar wavered regarding whether he signed the
statement; however, Ceasar identified his signature on the
statement. The State read Ceasar’s statement into the record.
Ceasar then admitted stating that he saw a crowd moving down the
street; that he saw defendant at the front of the group; and that
he saw defendant discharge his handgun. Ceasar, however, said
that his statement was untrue. Ceasar maintained that the police
told him what to say. In the statement, Ceasar identified
defendant as taller than the others in the group and wearing a
red shirt.
Detective Michael Landando testified that neither Henry nor
Ceasar was threatened in order to obtain a statement.
Assistant State’s Attorney (ASA) Michael Clarke testified
that he interviewed Smith, Gibbs, Henry, and Ceasar. ASA Clarke
said all of the witnesses provided handwritten statements. Each
witness signed each page of his or her statement. All of the
witnesses reported that they were treated well by the police and
that no threats or promises were made in exchange for their
statements.
ASA Diana Garcia-Camilo testified that she examined Smith,
Gibbs, and Henry before the grand jury. ASA Garcia-Camilo
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testified that each witness identified defendant as the shooter.
Moreover, each witness testified that no threats or promises were
made by the State or the police. Henry never reported being
threatened by the police.
Defendant was arrested at his home located two blocks from
the scene of the shooting. Defendant is 6 feet 4 inches tall.
Three witnesses testified for the defense. Samuel Harris,
Curtis Palmer, and Eric Harris all testified that they were “good
friends” with defendant. Samuel testified that he was with his
cousin Eric, defendant, “Roni,” and “Terrell” on the night in
question. Samuel had known defendant for 12 years. They learned
that a fight was in progress and went to watch. Samuel said they
saw Raper and the victim exchanging punches while a crowd was
gathered nearby. Samuel was standing two houses away from the
fight. Samuel reported seeing a flash from the crowd and hearing
a gunshot. As a result, the group ran to safety approximately
one block away. Samuel said the group remained together for an
hour after they fled. Samuel testified that defendant was with
him throughout the time in question and was not armed with a
handgun. Samuel testified that he never reported what he
observed to the police.
Palmer testified that he was with four or five friends on
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the night in question. Palmer had known defendant for over 10
years. Later in his testimony, Palmer said he was with
defendant, Samuel, and Eric, “[t]hat’s about it.” The group went
to observe a fight; however, due to his height, Palmer could not
see anything. Palmer reported that when he heard a gunshot
defendant was standing next to him and did not have a handgun.
Palmer said he and defendant ran away after the gun was fired.
Palmer did not know whether Samuel ran with them. The group met
back together approximately one block from where the shooting
took place. Palmer remained with defendant at the meeting spot
for 45 minutes or an hour. Palmer never reported what he
observed to the police because he “didn’t want to get in the way
of their work.”
Eric testified that he was with Samuel, Palmer, defendant,
“Roni,” and “Terrance” while watching the fight between Raper and
the victim. Eric had known defendant for 10 years. Eric
reported seeing the victim run away and that a gunshot was fired
from the crowd in front of his group. Eric testified that
defendant was standing directly in front of him when the shot was
fired and did not have a gun in his hand. Eric and the members
of his group ran from the scene after the gunfire and remained
together for 45 minutes or an hour. Eric did not report what he
observed to the police.
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In closing, while instructing the jury, the court said:
“The defendant is presumed to be innocent of the
charge against him. The presumption remains with him
throughout every stage of the proceedings *** every
stage of trial and during your deliberations on the
verdict and is not overcome unless from all the
evidence in this case you are convinced beyond a
reasonable doubt that he is guilty.
The State has the burden of proving the guilt of
the defendant beyond a reasonable doubt and this burden
remains on the State throughout the case. The
defendant is not required to prove his innocence.
The State has alleged that during the commission
of the offense of first degree murder, the defendant
personally discharged a firearm that proximately caused
the death of another person. The defendant is presumed
to be innocent of this allegation.
This presumption remains with the defendant
throughout every stage of the trial and during your
deliberations on the verdict and is not overcome unless
from all the evidence in this case you are convinced
beyond a reasonable doubt that the allegation is
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proven.
The State has the burden of proving the allegation
beyond a reasonable doubt, and this burden remains on
the State throughout the case. The defendant is not
required to disprove the allegation.
The fact that the defendant did not testify must
not be considered by you in any way in arriving at your
verdict.”
The jury found defendant guilty of first degree murder and
that defendant personally discharged a firearm that caused the
death of the victim. Defendant’s motion for a new trial was
denied.
The trial court sentenced defendant to an aggregate 60-year
prison term, 35 years’ imprisonment for the first degree murder
conviction and 25 years’ consecutive imprisonment for the firearm
enhancement. Defendant’s motion to reconsider his sentence was
denied.
DECISION
I. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to prove
his guilt beyond a reasonable doubt where the State’s evidence
was unreliable.
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When reviewing a challenge to the sufficiency of the
evidence, we must determine "whether, after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis in original.)
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99
S. Ct. 2781, 2789 (1979). It is not the reviewing court’s
function to retry the defendant or substitute its judgment for
that of the trial court. People v. Evans, 209 Ill. 2d 194, 209,
808 N.E.2d 939 (2004). The trial court assesses the credibility
of the witnesses, determines the appropriate weight to be given
to the testimony, and resolves conflicts or inconsistencies in
the evidence. Evans, 209 Ill. 2d at 211. In order to overturn
the trial court’s judgment, the evidence must be "so
unsatisfactory, improbable or implausible” to raise a reasonable
doubt as to the defendant’s guilt. People v. Slim, 127 Ill. 2d
302, 307, 537 N.E.2d 317 (1989).
A defendant is guilty of first degree murder1 when the State
proves beyond a reasonable doubt that, in performing the acts
which cause the death of an individual:
1
Defendant does not expressly challenge the jury’s finding
as to his personal discharge of a firearm.
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"(1) he either intends to kill *** that
individual *** or knows that such acts will
cause death to that individual ***; or
(2) he knows that such acts create a
strong probability of death *** to that
individual ***; or
(3) he is attempting or committing a
forcible felony other than second degree
murder.” 720 ILCS 5/9-1(a)(1) through (3)
(West 2002).
After reviewing the record, we find the evidence was
sufficient to support defendant’s conviction. Six witnesses
testified that they saw defendant shoot the victim. Two of the
six testified at trial that defendant was the shooter, while the
remaining four witnesses were impeached with their handwritten
statements identifying defendant as the shooter. Three of the
four witnesses impeached with their handwritten statements were
also impeached with their grand jury testimony implicating
defendant. One of the witnesses that positively identified
defendant at trial was defendant’s cousin. The other witness
that identified defendant at trial was a woman who exited her
home when she heard commotion outside on the street and then saw
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defendant point and shoot his weapon at the victim as the victim
attempted to run away.
“A single witness’ identification of the accused is
sufficient to sustain a conviction if the witness viewed the
accused under circumstances permitting a positive
identification.” Slim, 127 Ill. 2d at 307. Generally,
identification testimony is assessed pursuant to the factors
announced in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93
S. Ct. 375 (1972), which include: (1) the opportunity the
witness had to view the offender at the time of the crime; (2)
the degree of attention given by the witness; (3) the accuracy of
the witness’ prior description of the offender; (4) the level of
certainty the witness demonstrated when identifying the
perpetrator in person; and (5) the amount of time that lapsed
between the crime and the in-person identification. Slim, 127
Ill. 2d at 307-08.
Defendant challenges Lloyd’s identification, arguing it was
unlikely Lloyd would have seen the shooter, whom she described as
being within eight feet of her, because a person in a similar
situation would have “at least instinctively covered her face” to
protect against the gunshot. Lloyd, however, testified that she
clearly saw defendant when he raised his revolver and shot the
victim in the back of the head. Investigator William Moore
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confirmed the likelihood that defendant used a revolver to shoot
the victim because no discharged cartridges were found at the
scene. According to Investigator Moore, cartridges are not
discharged from revolvers; rather, cartridges remain in the
cylinder of a revolver after the bullet is shot. Lloyd
positively identified defendant in a photographic array on May 2,
2006, and positively identified defendant in a lineup on May 7,
2006, within days of the April 26, 2006, shooting. To the extent
defendant infers from the unclear record that Lloyd provided a
contradicting account of the victim’s distance from her when he
was shot, it was the jury’s duty to resolve inconsistencies in
the witness testimony. See Evans, 209 Ill. 2d at 211.
Defendant does not challenge the circumstances surrounding
Raper’s identification. Defendant, instead, challenges the
reliability of Raper’s trial testimony where he stated on cross-
examination that his handwritten statement in which he identified
defendant was coached by the police. We note, however, that on
redirect examination Raper confirmed that his direct testimony
identifying defendant as the shooter was accurate as given.
Moreover, it was the jury’s duty to assess Raper’s credibility.
See Evans, 209 Ill. 2d at 211. Therefore, the identification by
Raper or Lloyd alone would be sufficient to sustain defendant’s
conviction.
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As to the four witnesses that were impeached at trial,
“[v]ariances between a witness’ trial testimony and pretrial
statements raise questions of credibility which the trier of fact
must assess in making a determination of guilt.” Slim, 127 Ill.
2d at 308. It was the jury’s duty to resolve inconsistencies
across the witnesses’ testimony. Evans, 209 Ill. 2d at 211.
The jury was entitled to believe that Smith, Gibbs, Henry, and
Ceasar provided truthful handwritten statements shortly after the
incident and that Smith, Gibbs, and Henry testified truthfully
before the grand jury. Moreover, ASAs Clarke and Garcia-Camilo
and Detective Landando refuted Henry’s and Ceasar’s testimony
that they were threatened prior to making their statements.
Defendant contends that, contrary to the State’s witnesses,
the defense witnesses provided “strong” and “consistent” accounts
of what transpired on the night in question. Defendant maintains
that Samuel, Palmer, and Eric all presented credible testimony
that defendant was with them while watching the fight between
Raper and the victim. According to Samuel, Palmer, and Eric,
defendant was standing next to them when a gun was discharged,
but defendant was not armed. The jury, however, was not
obligated to believe defendant’s alibi over the State’s
witnesses, especially where Samuel, Palmer, and Eric each
reported being defendant’s “good” friend for 10 to 12 years, yet
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none came forward with his version of the events during the
investigation.
We conclude that the evidence was not so unsatisfactory,
improbable, or implausible to create a reasonable doubt regarding
defendant’s guilt. The evidence supported the jury’s verdict.
II. Rule 431(b)
Defendant contends the trial court failed to comply with the
mandates of Rule 431(b), and he, therefore, should be afforded a
new trial. Defendant admits he did not object at trial or
include the error in a posttrial motion (People v. Enoch, 122
Ill. 2d 176, 186, 522 N.E.2d 1124 (1988)); however, he contends
that we should relax the rules of forfeiture and find plain
error. The State responds that defendant failed to establish
error. The State contends that, in the event we find error, this
court should apply a harmless error analysis because a violation
of Rule 431(b) is not a structural error requiring automatic
reversal.
We review a trial court’s compliance with a supreme court
rule de novo. People v. Suarez, 224 Ill. 2d 37, 41-42, 862
N.E.2d 977 (2007).
We first address whether the trial court erred.
Supreme Court Rule 431(b) codified our supreme court’s
holding in People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d 1062-23-
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(1984). The rule was amended effective May 1, 2007, prior to the
April 4, 2008, date jury selection began in this case. See
Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431,
eff. May 1, 2007. The amended rule places a sua sponte duty on
trial courts to ensure compliance with the mandates of Rule
431(b). People v. Thompson, No. 109033, slip op. at 6 (October
21, 2010). The amended rule provides:
“The court shall ask each potential juror,
individually or in a group, whether that juror
understands and accepts the following principles: (1)
that the defendant is presumed innocent of the
charge(s) against him or her; (2) that before a
defendant can be convicted the State must prove the
defendant guilty beyond a reasonable doubt; (3) that
the defendant is not required to offer any evidence on
his or her own behalf; and (4) that the defendant’s
failure to testify cannot be held against him or her;
however, no inquiry of a prospective juror shall be
made into the defendant’s failure to testify when the
defendant objects.
The court’s method of inquiry shall provide each
juror an opportunity to respond to specific questions
concerning the principles set out in this section.”
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(Emphasis added.) Official Reports Advance Sheet No. 8
(April 11, 2007), R. 431(b), eff. May 1, 2007.
Supreme court rules are not aspirational; they must be “obeyed
and enforced as written.” Bright v. Dicke, 166 Ill. 2d 204, 210,
652 N.E.2d 275 (1995).
The trial court erred in this case by conducting a voir dire
that failed to fully comply with Rule 431(b). Prior to
individually questioning the prospective jurors, the trial judge
provided three of the four Zehr principles, in narrative form.
The trial judge did not advise the prospective jurors that
defendant’s decision not to testify could not be held against
him. More importantly, the trial judge did not ask the venire
whether they understood or accepted any of the Zehr principles.
Much later in his opening remarks, the trial judge secured the
venire’s understanding and acceptance of the State’s burden of
proof. The prospective jurors, however, were never given an
“opportunity to respond” to the remaining three Zehr principles.
While individually questioning a prospective juror from the
first venire, the trial judge turned his attention to the entire
first panel and asked whether they would follow the law regarding
the State’s burden of proof “along with all the other law I give
you in the case?” The venire responded in the positive. Then,
although the judge seemingly addressed the entire first panel
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when he stated that the defendant does not have to prove
anything, the record does not reflect that the judge secured the
venire’s understanding and acceptance of this principle. Ten
jurors were selected from the first panel.
While addressing the entire second panel, the trial judge
asked whether the group understood and would follow “the law that
I’ve been talking about all morning.” The trial judge then
specifically asked one of the two impaneled jurors whether he
understood and accepted the law regarding the State’s burden of
proof. The juror responded in the positive.
Prior to swearing in the jury, the trial judge referenced
the “rules of law” that were given during jury selection and
secured that the jurors “remembered” and would follow “that along
with all the other law” given in the case.
We find the trial court fell short of complying with Rule
431(b). The trial judge’s narrative recitation of three of the
four Zehr principles was not timely connected to specific
questions providing the jurors with an opportunity to express
their understanding and acceptance of those principles. People
v. Wheeler, 399 Ill. App. 3d 869, 874, 927 N.E.2d 829 (2010).
The trial judge only secured the jurors’ understanding and
acceptance of the Zehr principle regarding the State’s burden of
proof. The trial judge’s questions as to whether the jurors
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would follow all of “the law” given was “a general question
concerning the juror[s’] willingness to follow the law,” which is
a practice the rule sought to prohibit. 177 Ill. 2d R. 431(b),
Committee Comments, at 1xxix. Our supreme court recently
instructed:
“Rule 431(b), therefore, mandates a specific
question and response process. The trial court must
ask each potential juror whether he or she understands
and accepts each of the principles in the rule. The
questioning may be performed either individually or in
a group, but the rule requires an opportunity for a
response from each prospective juror on their
understanding and acceptance of those principles.”
Thompson, slip op. at 6.
Here, the trial court violated Rule 431(b).
Our court has been divided as to whether a harmless or plain
error analysis is appropriate when such error is found. The
supreme court’s recent decision in Thompson, however, resolves
the question regarding the impact of a Rule 431(b) violation.
In Thompson, the supreme court relied on its prior decision,
People v. Glasper, 234 Ill. 2d 173 (2009), to conclude that a
trial court’s failure to comply with Rule 431(b) is not a
structural error requiring automatic reversal. Thompson, slip
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op. at 9-10. The supreme court recognized that the Glasper court
was addressing the preamended version of Rule 431(b), which
required Zehr questioning only when requested by the defendant;
however, the court determined that the structural error
discussion in Glasper equally applied to the amended Rule 431(b).
Thompson, slip op. at 8-9. In relevant part, the supreme court
reasoned that “[a]n error is typically designated as structural
only if it necessarily renders a criminal trial fundamentally
unfair or an unreliable means of determining guilt or innocence.”
Thompson, slip op. at 8. The supreme court found that a
violation of Rule 431(b) does not necessarily result in a biased
jury; rather, “Rule 431(b) questioning is simply one way of
helping to ensure a fair and impartial jury.” Thompson, slip op.
at 9. The court added that “violation of [Rule 431(b)] does not
necessarily render a trial fundamentally unfair or unreliable in
determining guilt or innocence.” Thompson, slip op. at 9. The
supreme court concluded that where there is no evidence that a
defendant was tried by a biased jury, a Rule 431(b) violation
does not fall within the very limited category of structural
errors requiring automatic reversal. Thompson, slip op. at 9-10.
Because there is no structural error for Rule 431(b)
violations, we may review defendant’s forfeited contention only
if there was plain error. Thompson, slip op. at 10. As was the
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case in Thompson, we find that the rules of forfeiture should not
be relaxed in this case. Pursuant to the Sprinkle doctrine, the
rules of forfeiture may be relaxed only in extraordinary
circumstances where a trial judge oversteps his authority in
front of the jury or when counsel’s objection would fall on deaf
ears. See Thompson, slip op. at 10. There is no indication in
the record that either circumstance existed here. We, therefore,
do not find it appropriate to relax the forfeiture rule.
Turning to the question of plain error, the plain error
doctrine (134 Ill. 2d R. 615(a)) allows us to review an issue
affecting substantial rights despite forfeiture in two instances:
“First, where the evidence in a case is so closely
balanced that the jury’s guilty verdict may have
resulted from the error and not the evidence, a
reviewing court may consider a forfeited error in order
to preclude an argument that an innocent person was
wrongly convicted. [Citation.] Second, where the error
is so serious that defendant was denied a substantial
right, and thus a fair trial, a reviewing court may
consider a forfeited error in order to preserve the
integrity of the judicial process.” People v. Herron,
215 Ill. 2d 167, 178-79, 830 N.E.2d 467 (2005).
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Once it is determined that an error occurred at trial, the burden
is on the defendant to establish plain error. Thompson, slip op.
at 11.
The supreme court in Thompson reaffirmed the Glasper finding
that the second prong of plain error review is equated with
structural error. Thompson, slip op. at 12. Relying on the
reasoning in Glasper, the Thompson court said a structural error
is a systemic error that erodes the integrity of the judicial
process and undermines the fairness of trial. Thompson, slip op.
at 12, citing Glasper, 234 Ill. 2d at 197-98. The supreme court
clarified that the 2007 amendment did “not indicate that
compliance with the rule is now indispensable to a fair trial.”
Thompson, slip op. at 12. Moreover, “[a] violation of Rule
431(b) does not implicate a fundamental right or constitutional
protection, but only involves a violation of [the supreme]
court’s rules.” Thompson, slip op. at 13. The supreme court
concluded that a defendant must demonstrate he was tried by a
biased jury to establish under the second plain error prong that
his right to a fair trial and the integrity of the judicial
process were affected. Thompson, slip op. at 12.
Here, defendant challenges the trial court’s Rule 431(b)
error under both prongs of plain error. We first address
defendant’s second-prong attack in light of Thompson. The jury
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was admonished and instructed on the Rule 431(b) principles.
Although the jurors received some, but not all, of the Rule
431(b) questioning, defendant did not present any evidence
demonstrating that the jury was biased. As a result, defendant
failed to meet his burden of establishing that the trial court’s
error affected the fairness of his trial and challenged the
integrity of the judicial process. Thompson, slip op. at 13.
Therefore, there was no second-prong plain error.
Turning to defendant’s first-prong attack, defendant
contends the evidence was closely balanced because “the State
called two unreliable witnesses who identified Brazziel from the
stand, while the defense called three strong witnesses who
testified Brazziel was not shooter” and the State’s remaining
occurrence witnesses did not “affirm their prior
identifications.” We recognize that the question of whether the
evidence is closely balanced is distinct from a sufficiency of
the evidence challenge. People v. Piatkowski, 225 Ill. 2d 551,
566, 830 N.E.2d 467 (2007). After reviewing the evidence, we
find defendant failed to meet his burden of demonstrating that
the evidence was closely balanced. On the contrary, we find that
the strength of the evidence was overwhelming.
Two eyewitnesses, Raper and Floyd, identified defendant as
the shooter. Raper testified against his cousin that he was next
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to him when defendant shot the victim. Floyd testified that she
was in front of her home within eight feet of defendant when he
shot the victim. Four additional witnesses, Smith, Gibbs, Henry,
and Ceasar, identified defendant as the shooter in handwritten
statements given within days of the victim’s murder, and Smith,
Gibbs, and Henry also inculpated defendant before the grand jury.
Although Smith, Gibbs, Henry, and Ceasar did not identify
defendant as the shooter at trial, their prior statements were
admitted as evidence. We conclude that defendant’s forfeiture
may not be excused based on the first prong of plain error.
III. Propriety of the State’s Cross-examination and Rebuttal
Argument
Defendant contends the State committed prosecutorial
misconduct when the defense witnesses’ moral character was
attacked during cross-examination and highlighted by the State
during rebuttal closing argument. The State responds that
defendant forfeited review of this contention. In the
alternative, the State contends its cross-examination of the
defense witnesses and rebuttal closing argument were proper.
“Generally, cross-examination is limited in scope to
the subject matter of direct examination of the witness
and to matters affecting the credibility of the
witness. [Citations.] However, this limitation is
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construed liberally to allow inquiry into whatever
subject tends to explain, discredit, or destroy the
witness’ direct testimony. [Citation.]” People v.
Terrell, 185 Ill. 2d 467, 498, 708 N.E.2d 309 (1998).
It is within the trial court’s discretion to determine the
latitude to be given on cross-examination. People v. Hall, 195
Ill. 2d 1, 23, 743 N.E.2d 146 (2000). We will not interfere with
the trial court’s decision unless the court clearly abused its
discretion such that there is manifest prejudice to the
defendant. Hall, 195 Ill. 2d at 23.
Defendant takes issue with certain portions of the State’s
cross-examinations of the defense witnesses. In regard to the
cross-examination of Samuel, defendant challenges the following
exchange:
“Q. You don’t–-did you care that anybody could
have got shot over there?
A. Yes, I did care, but...
Q. You did care?
A. Mm-hmm.
Q. Because you’re a caring person, right?
A. Yes.
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Q. And you’re such a caring person that if someone
got shot, you would want to go tell the police what you
saw, right?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A. Yeah.
Q. Okay. But you didn’t?
A. No, because I was young.
Q. Even though there’s police officers all over
the place, right?
A. Yep.
Q. You could have walked up there and talked to
one of the officers, right?
A. No. I was young.
Q. You were young?
A. Mm-hmm.
Q. So that stops you from talking to a police
officer?
A. What was I gonna tell?”
As the cross-examination continued, Samuel admitted that, despite
his knowledge that the police wrongly arrested defendant for the
victim’s murder, Samuel did not share this information with the
police, the ASAs, any newspapers, or any television stations.
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Defendant challenges the portion of Palmer’s cross-
examination after the State asked Palmer who he was with as he
fled after the gunshot. Palmer maintained that the group of
friends intended to meet back together; however, Palmer’s primary
focus was on getting himself to safety. In response, the State
asked, “right, because you’re really concerned ultimately about
yourself, right.” Defense counsel’s objection was overruled and
Palmer replied, “yes.” Later, Palmer testified that he and
defendant waited at the meeting place until the entire group
arrived and then they went their separate ways. The State asked
in response, “because you care about yourself, right?” Defense
counsel objected and the objection was sustained.
During his cross-examination, Eric testified that it was not
important to him to tell the police what occurred on the night in
question. Defendant challenges the following exchange:
“Q. You didn’t really care about anybody who got
shot out there, right?
A. It wasn’t none of my people.
Q. None of your people, right, so you really don’t
care about them?
A. I ain’t saying I don’t care about them. It
wasn’t none of my people.
Q. Who’s your people?
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DEFENSE COUNSEL: Objection.
A. My friends.
THE COURT: Overruled.
Q. So if some random guy gets shot, because he’s
not one of your people, you really don’t care about
him, right?
A. I didn’t say I didn’t care.
Q. Are you happy they got shot?
A. No, I’m not.
Q. Are you sad that they got shot?
A. No, I’m not.
Q. You just have no feelings whatsoever about it?
A. No, sir.
Q. So the boy that got shot over there, you have
no feelings for whatsoever?
A. I never knew him.”
In the two instances where the trial court overruled defense
counsel’s objections to the challenged cross-examination, we find
the court did not abuse its discretion. It is clear from the
record that the State was eliciting testimony regarding the
defense witnesses’ credibility and bringing to light their bias.
“Generally, any permissible kind of impeaching matter may be
developed on cross-examination, since one of the purposes thereof
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is to test the credibility of the witnesses.” Hall, 195 Ill. 2d
at 23. Defendant cannot demonstrate that he suffered manifest
prejudice as a result of the latitude the trial court allowed in
relation to the objected to cross-examination.
In regard to the challenged cross-examinations that
defendant failed to preserve, we find the State did not engage in
prosecutorial misconduct and, therefore, there was no error for
purposes of defendant’s suggested plain error analysis. See
Enoch, 122 Ill. 2d at 186 (an error is forfeited when the
defendant fails to lodge a contemporaneous object and does not
include the alleged error in a posttrial motion). The State was
not attacking the defense witnesses’ morality or lack thereof;
rather, the State attempted to undermine the witnesses’
credibility by attacking the fact that none of the witnesses
reported what occurred on the night in question or attempted to
provide information to the authorities to exonerate defendant.
The State further demonstrated the defense witnesses’ bias by
establishing that Palmer was most concerned about his safety and
that of his group and that Eric’s allegiance was to his group of
friends. “The possible bias of a witness is always material, and
relationship to a defendant is clearly a possible basis for
bias.” People v. Jones, 60 Ill. 2d 300, 306, 325 N.E.2d 601(1975).
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We find the cases cited by defendant in support of his
argument that the State improperly questioned the defense
witnesses’ character are distinguishable. In People v. Rivera,
145 Ill. App. 3d 609, 495 N.E.2d 1088 (1986), the prosecutor
improperly attempted to impeach a witness based on insinuation,
not evidence in the record. Rivera, 145 Ill. App. 3d at 619-22.
Here, the State attacked the witnesses credibility based on their
direct testimony. In People v. Redmond, 50 Ill. 2d 313, 278
N.E.2d 766 (1972), the prosecutor improperly attacked the
defendant’s character unrelated to the crime charged. Redmond,
50 Ill. 2d at 315-16. In People v. Quick, 236 Ill. App. 3d 446,
603 N.E.2d 53 (1992), the prosecutor improperly attacked the
defendant’s religious beliefs when the direct examination was
limited to testimony regarding the defendant’s religious
activities. Again, the State’s attacks discredited the
witnesses’ direct testimony.
Defendant additionally challenges the following remarks made
by the State during rebuttal argument:
“Well, let’s talk about the defense witnesses
because it’s interesting how the defense characterizes
those witnesses. It’s interesting because apparently
they are like three little angels. Oh, they say they
work. Oh, they got kids. They got jobs. What they
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don’t have is credibility. And you know why? You
heard them up there, three different stories. Three
different stories.
You know, it was Eric Harris that stated, and I
think that basically sums up all three of those
witnesses, he doesn’t care about anybody but his
friends. The boy that got shot, doesn’t care. Didn’t
make him happy. Didn’t make him sad. What a wonderful
individual he is. What a great guy. What a great
witness.
And that is why he testified for the defendant
because he didn’t care about anybody but the defendant.
That’s why he got up there and did not tell you the
truth, basically got up there and gave you a cockamamie
story about how they’re just like spectators at a
football game, about a fight that they didn’t know
anything about.
*** Those witnesses were not credible whatsoever
despite what counsel was saying about them.
* * *
That takes *** us to Eric Harris. And once again,
everything is summed up by this guy. Doesn’t care
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about anybody but his people, his friends. Guy got
shot. So what. Doesn’t care. That’s what he’s about.
***
Credible testimony of witnesses came from Anthony
Raper, came from Yolanda Floyd and came from
handwritten statements and Grand Jury testimony of
Lakesha Gibbs, Shontrice Smith, De[S]ean Henry and
Johnny Ceasar. That’s where the credible testimony is,
not with the defense witnesses who can’t get their
story straight, and basically can all be summed up by
Eric Harris. ‘I only care about my people.’ That’s
one of his people, a guy who shoots down Larry Brown in
the head over a squabble with a girl. That’s the type
of person he is.”
A prosecutor is given wide latitude in making a closing
argument. People v. Nicholas, 218 Ill. 2d 104, 121, 842 N.E.2d
674 (2005). During that argument, a prosecutor may comment on
the evidence and any fair and reasonable inferences therefrom.
Nicholas, 218 Ill. 2d at 121. A closing argument must be
reviewed in its entirety and the challenged comments must be
viewed in context. Nicholas, 218 Ill. 2d at 122.
As with the majority of the challenged cross-examination
questions, defendant failed to object to the State’s rebuttal.
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Defendant, therefore, forfeited review of his contention. See
Enoch, 122 Ill. 2d at 186. We emphasize that defense counsel was
obligated to raise a contemporaneous objection because failure to
do so prevented the trial court from having the opportunity to
correct the alleged error immediately or to grant a mistrial.
People v. McLaurin, 235 Ill. 2d 478, 488, 922 N.E.2d 344 (2009).
Nevertheless, we find no plain error occurred.
After reviewing the State’s rebuttal in its entirety, we
find that the State’s arguments were in direct relation to
testimony elicited on cross-examination. The State addressed the
testimony of each defense witness. Contrary to defendant’s
argument, the State was not attacking the witnesses’ general
moral character; rather, the State was arguing that the witnesses
were not credible when they testified that they, along with
defendant, were innocent observers of the victim’s murder, yet
none of them came forward to report what they observed or to
proclaim defendant’s innocence. To the extent the State crossed
the line of propriety when it facetiously called Eric Harris a
“great guy,” we find any error was cured when the jury was
instructed at the end of trial that closing arguments were not
evidence. Nicholas, 218 Ill. 2d at 122-23. The jury is presumed
to have followed the law as given. People v. Taylor, 166 Ill. 2d
414, 438, 655 N.E.2d 901 (1995). Defendant, therefore, cannot
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establish plain error where, as we previously determined, the
evidence was not closely balanced and any minor error was not so
serious as to affect the integrity of defendant’s trial.
We further conclude that defendant cannot establish a claim
for ineffective assistance of counsel. To demonstrate
ineffective assistance of counsel, a defendant must show
counsel’s performance was deficient and such deficient
performance caused substantial prejudice. Strickland v.
Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.
2052, 2064 (1984). To establish prejudice, a defendant “must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 80 L.
Ed. 2d at 698, 104 S. Ct. at 2068. Even assuming, arguendo,
defense counsel should have objected to all of the challenged
cross-examination questions and rebuttal, the evidence
overwhelmingly supported defendant’s guilt and defendant cannot
demonstrate that, but for the challenged questions and comments,
the jury would have found him not guilty.
IV. Excessive Sentence
Defendant contends his sentence was excessive in light of
mitigating factors, namely, his age and lack of a criminal
record.
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A trial court’s sentence may not be disturbed absent an
abuse of discretion. People v. Perruquet, 68 Ill. 2d 149, 154,
368 N.E.2d 882 (1977). A sentence must be balanced between the
seriousness of the offense at issue and the potential for the
defendant’s rehabilitation. See Ill. Const. 1970, art. I, §11.
A trial court’s sentence is entitled to great deference and
weight because the trial court is in a superior position to make
such a determination. Perruquet, 68 Ill. 2d at 154. The trial
court weighs the defendant’s credibility, demeanor, general moral
character, mentality, social environment, habits, and age.
People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626 (2000). A
reviewing court may not substitute its judgment for that of the
trial court simply because it would have weighed those factors
differently. Stacey, 193 Ill. 2d at 209. Moreover, a sentence
within the statutory limits will not be considered excessive
unless it greatly varies with the spirit and purpose of the law
or is manifestly disproportionate to the nature of the offense.
Stacey, 193 Ill. 2d at 210.
The trial court heard arguments in aggravation and
mitigation. Prior to announcing defendant’s sentence, the trial
court said:
“I have reviewed closely the pre-sentence
investigation. And in addition, I’m going to consider
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what the Illinois State Legislature says I should
consider, those statutory factors in aggravation and
mitigation, in reaching my decision regarding what the
number should be in this case.
* * *
As I said, the idea and the notion that one can
point a gun at another person and fire it while that
person runs away from you carries with it a full story
of who that person that is firing is.
* * *
[Defense counsel] correctly points out that
rehabilitation [is] a secondary aspect or another
aspect that I’m considering. I am considering every
one of those statutory obligations or considerations
that I am asked to use. But it cannot be disputed that
no conduct that he could have engaged in on that
afternoon or early evening could have been worse than
that which he did, which the jury found that he did.
It’s for that reason that the sentence today will
reflect the seriousness of this conduct. It will
reflect the arguments in aggravation and mitigation of
the attorneys, the statutory factors, and the pre-
sentence investigation, everything.”
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A first degree murder conviction carries a sentence of not
less than 20 years and not more than 60 years. 730 ILCS 5/5-8-
1(a)(1) (West 2004). The firearm enhancement adds “25 years or
up to a term of natural life” to the sentence. 730 ILCS 5/5-8-
1(a)(1)(d)(iii) (West 2004). Defendant’s aggregate 60-year
sentence, therefore, falls within the permissive statutory range.
The record clearly demonstrates that the trial court
considered both the seriousness of the offense and defendant’s
potential for rehabilitation. The court repeatedly stated that
it had taken into consideration defendant’s presentence
investigation report, the arguments in aggravation and
mitigation, and the statutory factors while fashioning
defendant’s sentence. “The trial court has no obligation to
recite and assign value to each factor presented at a sentencing
hearing.” People v. Hill, 402 Ill. App. 3d 920, 928, 932 N.E. 2d
173 (2010). Rather, “it is presumed that the trial court
properly considered all mitigating factors and rehabilitative
potential before it; and the burden is on the defendant to
affirmatively show the contrary.” People v. Garcia, 296 Ill.
App. 3d 769, 781, 695 N.E.2d 1292 (1998). Defendant has failed
to demonstrate the trial court abused its discretion.
We find that People v. Bolyard, 61 Ill. 2d 583, 338 N.E.2d
168 (1975), is distinguishable from the case at bar. In Bolyard,
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the supreme court reversed and remanded the cause for
resentencing after finding that the trial court abused its
discretion when it denied a request for probation based on an
expressed categorical belief that the defendant fell within the
court’s group of disfavored offenders. Bolyard, 61 Ill. 2d at
586-87. Here, the record demonstrates that the trial court
considered the facts and circumstances of this case and did not
simply apply a blanket policy. This court repeatedly has stated
that the seriousness of the defendant’s offense is the most
important factor and the defendant’s rehabilitation potential
need not be given greater weight. People v. Tye, 323 Ill. App.
3d 872, 890, 753 N.E.2d 324 (2001).
CONCLUSION
We affirm defendant’s conviction and sentence.
Affirmed.
HALL, P.J., and PATTI, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
JAMAEL BRAZZIEL,
Defendant-Appellant.
No. 1-08-1455
Appellate Court of Illinois
First District, FIRST DIVISION
November 22, 2010
Justice Bertina E. Lampkin authored the opinion of the court:
Presiding Justice Hall and Justice Patti concur.
Appeal from the Circuit Court of Cook County.
The Hon. Nicholas R. Ford, Judge Presiding.
COUNSEL FOR APPELLANT
Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601
Patricia Unsinn, Deputy Defender
OF COUNSEL: Jonathan Krieger
COUNSEL FOR APPELLEE
Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602
OF COUNSEL: Alan J. Spellberg, Michelle Fowler,
Rimas F. Cernius and Nancy Colletti
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