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People v. Brown

Court of Appeals of Illinois, Third District

May 16, 2017

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

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Circuit No. 13-CF-299, Honorable David A. Brown, Judge, Presiding.

          JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion, Justice McDade dissented, with opinion.

          OPINION

          O'BRIEN, JUSTICE

         ¶ 1 The defendant, Dieuseul Brown, appealed his conviction of second degree murder.

         ¶ 2 FACTS

         ¶ 3 The defendant was charged with two alternative counts of first degree murder for the shooting death of Kelsey Coleman. Count I alleged a charge of felony murder, in that Coleman was shot during an armed robbery, in violation of section 9-l(a)(3) of the Criminal Code (720 UXS 5/9-1 (a)(3) (West 2012)). Count II alleged that the defendant shot Coleman, knowing that the act created a strong probability of death or great bodily harm, and in fact caused the death of Coleman, in violation of section 9-1 (a)(2) of the Criminal Code (720 ILCS 5/9-1 (a)(2) (West 2012)). The case went to a jury trial. The evidence at trial indicated that, on April 4, 2013, Coleman had returned home with his three children and their mother at around 9 p.m. A handyman, John McNulty, was there performing some renovations. McNulty testified that, around midnight, the back door crashed opened and the defendant came in with a gun. The defendant held a gun to McNulty's head and walked McNulty through the house. The defendant ran into Coleman in the hallway, and Coleman and the defendant started wrestling. The fight continued into the kitchen, and McNulty heard gunshots. Coleman was walking stiffly from the kitchen and told McNulty that he had been shot. McNulty helped Coleman sit down in the hallway.

         ¶ 4 The mother of Coleman's children, Melodie Richardson, testified that she heard a loud bang and soon afterward the defendant came into her room with a gun pointed at McNulty's head. The defendant demanded money, and Richardson called out for the Coleman. McNulty and the defendant went back down the hallway, and Richardson hid with her daughter in the bedroom closet. While in the closet, she heard two gunshots and heard McNulty yell out to call the police. She came out of her room and saw Coleman staggering down the hallway. She saw that he had been shot. She ran out of the house, because her cell phone battery was dead. McNulty had already left. When the paramedics arrived, Coleman was already dead. Richardson identified the defendant from a photo array, and McNulty identified the defendant in a lineup.

         ¶ 5 The defendant testified at trial that he went to Coleman's house around midnight on April 4, 2013. The defendant sold heroin and could not reach his usual supplier. He knocked on the back door of Coleman's house, and Coleman let him in. Coleman gave the defendant the drugs he asked for, but Coleman thought that the money paid by the defendant was not the right amount. The defendant tried to give the drugs back to Coleman and asked for his money back. Coleman refused and started throwing punches at the defendant. The defendant punched back, and he thought that Coleman was trying to kill him. When the defendant fell to the ground, his gun fell out of his waistband. The defendant testified that he picked it up and fired a warning shot, but that did not stop Coleman. The defendant testified that he felt that he had no choice but to shoot Coleman, so he fired the gun into Coleman's back, while Coleman was on top of the defendant on the ground. The defendant then ran from the house, leaving the drugs and money behind.

         ¶ 6 At the jury instruction conference, the trial court approved instructions pertaining to self- defense and second degree murder. The first degree murder instructions were modified by agreement to differentiate between Count II, which was referred to as First Degree Murder (Type A), and Count I, the felony murder count, which was referred to as First Degree Murder (Type B). The parties agreed that Illinois Jury Pattern Instruction, Criminal, No. 2.0IB (4th ed. 2000) (hereinafter, IPI Criminal 4th) was to be given, modified to refer to first degree murder (Type A), which provided:

"Under the law, a person charged with first degree murder may be found (1) not guilty of first degree murder; or (2) guilty of first degree murder; or (3) guilty of second degree murder." IPI Criminal 4th No. 2.01B.

         ¶ 7 The jury was also given IPI Criminal 4th No. 2.03 A, which instructed that if the State proved beyond a reasonable doubt that the defendant was guilty of first degree murder (Type A), then the defendant had the burden of proving by a preponderance of evidence that a mitigating factor was present so that he was guilty of the lesser offense of second degree murder and not guilty of first degree murder (Type A). IPI Criminal 4th No. 2.03 A. The jury was also instructed that it could not consider whether the defendant was guilty of the lesser offense of second degree murder unless it first determined that the defendant was proved guilty beyond a reasonable doubt of first degree murder. With respect to the charge of first degree murder (Type A), the jury was given three verdict forms: (1) not guilty of first degree murder (Type A); (2) guilty of first degree murder (Type A); and (3) guilty of second degree murder. The judge instructed the jury to select one verdict and sign it and not to write on the other two forms. The jury was also given four other verdict forms: (1) not guilty of first degree murder (Type B); (2) guilty of first degree murder (Type B); (3) the allegation that the defendant personally discharge the firearm was proven; and (4) the allegation that the defendant personally discharged the firearm was not proven.

         ¶ 8 After deliberations, the jury returned its verdicts. It did not follow the directions regarding signing only one of the verdict forms relative to first degree murder (Type A) and only signing the discharge of firearm verdicts if it found the defendant guilty of first degree murder. The jury signed two verdict forms: not guilty of first degree murder (Type A) and guilty of second degree murder. The jury also signed the verdict forms stating that defendant was not guilty of first degree murder (Type B) and that the allegation that the defendant had personally discharged the weapon was proven. The jury was not polled, the verdicts were received and entered, and the jury was discharged.

         ¶ 9 The defendant filed a motion for a new trial, arguing, among other things, that he was not proved guilty beyond a reasonable doubt. The trial court denied the motion and proceeded to sentencing. The defendant was sentenced to a 24-year term of imprisonment. The ...


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