Defendant’s convictions for first degree murder and discharging a firearm in a shooting death were upheld over his contentions, inter alia, that potential jurors were not asked whether they accepted the Zehr principles, that the medical examiner who performed the autopsy did not testify, that his sentence was excessive, and that the mittimus should be corrected to reflect only one murder, since the violation of Rule 431(b) was not plain error, the State’s failure to present the examiner who performed the autopsy was not reversible error, and his sentence was not an abuse of discretion, but a correction of the mittimus was ordered.
Appeal from the Circuit Court of Cook County, No. 08-CR-13128; the Hon. James B. Linn, Judge, presiding. Judgment Affirmed; mittimus corrected.
Rachel Moran, of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Jon Walters, Assistant State's Attorneys, of counsel), for the People.
Panel JUSTICE HYMAN, Justices Lavin and Sterba concurred in the judgment and opinion.[*]
¶ 1 A jury found Tyrone Brewer, the defendant, guilty of first degree murder and personally discharging a firearm in the shooting death of Jeremy McEwen. Brewer was sentenced to 50 years' imprisonment on the first degree murder conviction and a consecutive 30 years for personally discharging a firearm that caused McEwen's death. Brewer appealed his conviction and sentence raising the following six issues for review: (1) the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) by failing to ask potential jurors during voir dire whether they understood and accepted the principles set forth in People v. Zehr, 103 Ill.2d 472 (1984); (2) the trial court erred in failing to give a limiting instruction after the State rehabilitated codefendant Finley by presenting his videotaped prior consistent statement as substantive evidence; (3) his sixth amendment right to confront and cross-examine witnesses was violated because the medical examiner who performed the autopsy did not testify; (4) his right to present a defense was violated because the trial court barred his expert witness from testifying about his police related post-traumatic stress disorder (PTSD), which was relevant in assessing the credibility of his statement; (5) his 80-year sentence was excessive; and (6) the mittimus should be corrected to reflect only one murder conviction.
¶ 2 The appellate court addressed only one issue, reversing Brewer's conviction and remanding for a new trial after finding the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), by failing to ask potential jurors during voir dire whether they understood and accepted the principles set forth in People v. Zehr, 103 Ill.2d 472 (1984). People v. Brewer, No. 1-07-2821 (2010) (unpublished order under Supreme Court Rule 23). Our supreme court denied the State's petition for leave to appeal but entered a supervisory order directing the appellate court to vacate and reconsider its judgment in light of People v. Thompson, 238 Ill.2d 598 (2010) (trial court's violation of amended Rule 431(b) was not structural error requiring automatic reversal nor grounds for reversal under second prong of plain error analysis absent a showing error affected fairness of trial or integrity of judicial process). People v. Brewer, No. 110429 (Ill. Jan. 26, 2011) (supervisory order). We now address the Rule 431(b) issue in light of Thompson as well as the other five issues raised by the appeal. For the following reasons, we affirm.
¶ 3 I. Factual Background
¶ 4 Jeremy McEwen was fatally shot on June 26, 2001, at about 10:15 p.m., while sitting in his car near 8800 South Clyde Avenue in Chicago. Kimberly Smith, a friend of McEwen's, was in the car with him when the shooting occurred. She and McEwen had agreed to meet at a gas station on 87th Street before heading downtown for dinner. Smith arrived first. McEwen then pulled up to her car and told her to follow him. When they got to Clyde Avenue, Smith parked in front of McEwen. She got out of her car and saw two men approaching. She quickly got into McEwen's car. McEwen was holding money in his left hand. Smith put her hand over McEwen's hand and pushed it down, because she did not want the two men to see the money. While McEwen and Smith were still parked, the two men approached the car. One man was wearing a black hoodie and had his hair in braids; the other man wore a red shirt and had low-cut hair. The man in the red shirt was standing three cars away and looking around. The man in the black hoodie approached the driver's side window, pointed a gun at McEwen and said, "this is a stickup, give me your money." McEwen did not say anything but looked at the gunman and turned down the volume on the car radio. The man in the black hoodie shot the gun once in the air. The man in the red shirt was now standing next to Smith's door, preventing her from getting out. The shooter again demanded money. McEwen started to drive away, and the shooter shot into the car. McEwen continued driving, hit a car, drove onto a lawn, and came to a stop when he crashed into a fence. After he was shot, Smith heard McEwen say "T-Man." Smith later identified the man in the red shirt in a lineup as the lookout.
¶ 5 Police officers investigating the shooting learned Brewer went by the nickname "T-Man." The morning after the shooting, they picked up Brewer at his girlfriend's house and took him to the police station, where he was placed in an interrogation room and advised of his Miranda rights. During initial questioning, Brewer implicated himself and two friends, Rashaune Finley and Terrell Ivy, in the murder but said Finley was the shooter. When the police questioned Brewer again, later that day, he identified himself as the shooter and gave a handwritten statement to former Assistant State's Attorney Patrick Brosnan.
¶ 6 According to Brewer's statement, which was published to the jury, on the morning of the shooting he decided he was going to rob someone. At around 9:30 p.m., Brewer, Finley, and Ivy were parked at a gas station when they saw McEwen drive up in a white Oldsmobile Cutlass with expensive-looking tire rims. The men agreed Brewer would rob McEwen and Finley would be the lookout. Ivy would drive the getaway car if Brewer and Finley did not steal McEwen's car. The men followed McEwen in their car as he drove a few blocks before stopping to pick up a female friend. While McEwen and his friend were sitting in the car, Brewer and Finley approached on foot. Finley walked past McEwen's car and looked around to make sure no one was watching. Brewer, who had a gun underneath his hooded sweatshirt, walked up to the open driver's side window. He pointed the gun at McEwen, demanded money, and told McEwen to get out of the car. When McEwen did not respond, Brewer became angry and fired the gun in the air. He pointed the gun at McEwen again. As McEwen put the car into drive and began to pull away, Brewer fired at McEwen, hitting him in the chest. Brewer saw McEwen drive off and crash into a yard around the corner. Brewer put the gun under his hoodie, and he and Finley walked away. When Brewer heard someone calling "T-Man, " he and Finley began to run. A few people chased them but they split up and both got away. While Brewer was running, he threw the gun into a yard.
¶ 7 Codefendant Rashaune Finley, who testified after entering a plea agreement with the State, corroborated Brewer's version of events. Finley said he knew Terrell Ivy and Brewer from school, and Brewer went by the nickname "T-Man." On the afternoon of June 26, 2001, Brewer told Finley he sold marijuana to a man who paid with counterfeit money and he was going to find the man and get his money. Brewer offered Finley and Ivy $500 each to act as lookouts and to beat the man up if he did not pay. Later that evening, Brewer, Finley, and Ivy were parked at a gas station when they saw McEwen drive up in a white Oldsmobile Cutlass with expensive tire rims. Brewer told Finley that McEwen was the man who gave him counterfeit money. The men followed McEwen as he drove out of the gas station and then stopped a few blocks away at 89th Street and Clyde Avenue to pick up a female friend. Finley saw Brewer had a .45-caliber or 9-millimeter gun in his lap, which he put in the front pocket of his hooded sweatshirt. Brewer and Finley approached the car from the back. Finley acted as a lookout. Brewer went to the driver's side window, said something to McEwen, and then fired a shot in the air. When McEwen began to drive off, Brewer fired into the car at McEwen. As Finley and Brewer ran away, Brewer took off his hoodie, wrapped the gun in it, and threw it in a yard. Finley was arrested on June 27, 2011, and gave a videotaped statement to the police that was consistent with his trial testimony.
¶ 8 The shooting occurred near Jesse Owens Park, and several witnesses who were in the park testified at trial. Joseph Fields said he heard a "pop" that sounded like a firecracker then saw McEwen's car drive off before he heard a crashing sound. As Fields walked toward 88th Street, he saw two men, one wearing a red shirt and the other wearing a hoodie. Antwan Sneed testified he also heard a loud pop, then saw McEwen's car speeding down Clyde Avenue before it lost control near 88th Street. Sneed ran toward the car and "noticed two dudes in hoodies walking into the dark." Sneed said Brewer, whom he knew as "T-Man, " was wearing a black hoodie. Sneed called out "T-Man" several times, but Brewer picked up his pace and ran away. Sneed later identified Brewer and Finley in a lineup as the two men he saw leaving the scene of the shooting.
¶ 9 Roy Ferguson, who was sitting in his car near the park on the night of the shooting, testified for Brewer. Ferguson said he had known Brewer for almost 10 years and also knew Rashaune Finley. Ferguson identified Finley as the shooter and said he did not see Brewer that night. Ferguson said Finley walked up to a white car, put a hood on, shot two or three times into the car, and ran off.
¶ 10 The autopsy was performed by Dr. Thamrong Chira, who was no longer employed with the Cook County medical examiner's office at the time of trial. Dr. Joseph Cogan, an assistant medical examiner with the Cook County medical examiner's office, testified concerning Dr. Chira's autopsy report. The autopsy revealed McEwen died from a single gunshot that entered the left side of his chest and exited on the right side of his abdomen. The bullet pierced McEwen's pericardial sac and right ventricle and lacerated his diaphragm, bowel, and liver. McEwen's death was classified as a homicide.
¶ 11 On cross-examination, Dr. Cogan said the autopsy report and photographs showed no evidence of close-range shooting, such as gunshot residue. He said, however, evidence could be blocked by a victim's clothing and would not be present if the shooter was more than 18 inches from the victim. When asked if the evidence could be affected by whether the shooter held the gun in his right or left hand, Dr. Cogan stated, "I don't really get into that. I'm sure Dr. Chira doesn't either. The person could be shot with either the right hand or left hand. It doesn't make too much difference. It depends on the police investigation. Is the direction of the gunshot wound consistent with evidence or history and things like that. It's not something I could determine."
¶ 12 After closing arguments, the jury found Brewer guilty of first degree murder and personally discharging a firearm that proximately caused McEwen's death. Brewer filed a motion for a new trial, which was denied. The court sentenced Brewer to 50 years' imprisonment for first degree murder and an additional consecutive 30 years' imprisonment for personally discharging a firearm. A motion to reconsider the sentence was denied.
¶ 13 II. ...