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