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People v. Brown

Court of Appeals of Illinois, Third District

June 29, 2017

RAY A. BROWN, JR., Defendant-Appellant.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 14-CF-406 Honorable John P. Vespa, Judge, Presiding.

          JUSTICE CARTER delivered the judgment of the court, with opinion Justice McDade concurred in the judgment and opinion Justice Wright concurred in part and dissented in part, with opinion.



         ¶ 1 Defendant, Ray A. Brown, Jr., appeals following his conviction for domestic battery. He argues that his counsel rendered constitutionally ineffective assistance when she requested a jury instruction on self-defense but presented in closing argument a theory of the case inconsistent with such an instruction. Alternatively, defendant argues that counsel was constitutionally ineffective in that she proceeded under an actual conflict of interest in posttrial proceedings, where the only issue she raised was her own ineffectiveness at trial. Finally, defendant contends that a number of monetary assessments were imposed by the circuit clerk without authority, and he requests that this court vacate those assessments. We affirm in part, vacate in part, and remand with instructions.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged by indictment with domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2014)). The cause proceeded to a jury trial on September 15, 2014.

         ¶ 4 Prior to commencing jury selection on the first day of trial, the circuit court summarized for the record an in-chambers discussion held between the parties and the court. Per the court's summary, defense counsel had expressed a possible need to file a notice of the affirmative defense of self-defense. Counsel had explained in chambers that while such a defense conflicted with defendant's own version of events, she had discovered evidence in a police report that would nevertheless support such a defense. The court found that because the evidence of self-defense would be brought through the State's own witness, there was no possibility of surprise to the State. Thus, the court ruled that the defense could argue self-defense at trial, despite not having filed a formal motion. Further, the court ruled that if any evidence was in fact put forth supporting a theory of self-defense, the corresponding jury instruction would be delivered. The parties agreed to the accuracy of the court's summarization.

         ¶ 5 At trial, Holly Howard testified that she and defendant were in a dating relationship on June 5, 2014. On that day, she and defendant argued over the phone. After the argument, defendant invited Howard to his grandmother's house, where the two spent time together that evening. Howard testified that at approximately 10:30 p.m., defendant again became angry and began yelling at her. She testified that defendant lunged at her and choked her. Howard also recalled "hitting the side of the house." She was eventually able to leave and call for a ride. A friend later took her to a hospital. Howard testified that she did not strike defendant.

         ¶ 6 Officer Patrick Jordan testified that he spoke with Howard at St. Francis Hospital on June 6, 2014. After meeting with Howard and observing bruises on her neck and arms, Jordan and another officer went to defendant's residence. Jordan testified that defendant's story changed multiple times throughout their conversation. Defendant first disavowed knowing anyone by the name of Holly Howard. He then admitted that he knew her but told Jordan that she had not come to his house the previous night. Defendant eventually admitted to Jordan that he had been with Howard the night before and that the two had engaged in an argument.

         ¶ 7 Jordan recounted what defendant told him next: "He said during the course of the argument, she accused him of cheating and pushed him, so he grabbed her by the neck to push her off of him, and then when she wanted to walk away, he grabbed her."

         ¶ 8 Defendant testified in his own defense. He testified that he knew Howard as Holly Brown, as that was the name she had originally given him. The two had dated, but he had ended the relationship approximately six months earlier. The two remained friends on Facebook, and defendant admitted that they exchanged messages through that medium on June 5, 2014. However, defendant denied actually seeing Howard on that day.

         ¶ 9 Defendant was "pretty sure" he had last seen Howard on June 4, 2014. He testified that he and Howard did not argue on that day and they did not engage in any sort of fight, be it verbal or physical. Defendant testified that he did not make any of the statements that Jordan ascribed to him. Specifically, defendant denied ever telling Jordan that he pushed Howard away from him. On cross-examination, when asked if he recalled telling Jordan that Howard pushed him, defendant responded: "I never said no such thing." He denied ever putting his hands on Howard.

         ¶ 10 Following the close of evidence, the parties and the court held an off-the-record conference in chambers. Upon return to the courtroom, the court explained that the defense was requesting an instruction on self-defense. While the State initially opposed the instruction, it withdrew that opposition.

         ¶ 11 After the jury reentered the courtroom, the parties proceeded to their closing arguments. Defense counsel argued that the State's evidence was insufficient. Specifically, counsel attacked Howard's credibility, arguing that she had concocted the story as revenge against defendant for ending their relationship. Following arguments, the court delivered instructions to the jury. Those instructions included the following directive: "A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force."

         ¶ 12 The jury found defendant guilty. Prior to sentencing, defendant filed a pro se letter in an apparent attempt to file an appeal. In the letter, defendant stated that he wished to appeal the jury's verdict "for a couple of reasons." Explaining one of those reasons, defendant simply wrote: "One witness of mine was not evoked to court." At a subsequent hearing, the court declared that it would not consider defendant's pro se filing, both because he was represented by counsel and because it was premature.

         ¶ 13 The cause proceeded to sentencing on November 12, 2014. The hearing on that date commenced with defense counsel making an oral motion to set aside the verdict. Explaining the motion, counsel stated: "[Defendant] wrote a written motion which we would adopt as part of our motion, I guess, as part of the motion to set aside." Asked by the court if she was asking that the pro se motion be considered in its entirety, counsel explained further:

"As far as, Judge, there's-I wouldn't know necessarily there's anything of substance in there, but we did make an allegation or make a statement about a witness which I believe boils down to our communications issue between him and I. But in any case, he was not able to call a witness that he wanted to call and as far as that motion brings forward, we would adopt that part."

         ¶ 14 The court asked if defense counsel had any witnesses regarding her motion, to which counsel replied that she would proceed through proffer. Due to its relevance to this appeal, we will reproduce defense counsel's ensuing remarks in their entirety:

"Your honor, through the course of preparing the case and meeting with [defendant], part of the process what we go through is, do you have any witnesses that you'd like to call, what do you expect them to testify to, those sorts of things. [Defendant] and I had those conversations. And as a part of those conversations, I recall him bringing forth that he had a cousin that was an occurrence witness to this particular event that he would like to call as a witness. He was probably- when he first mentioned his cousin he gave me the cousin's name. He at a subsequent time provided the name Latisha Wilson as a cousin. He did not know her address, so we weren't able to issue a subpoena for her, but he felt friendly with her at that time and felt he could either communicate through family to her to have her present on the court date. I forget if she had a new job or moved or something, but she had no reason she was not able to be here for the court hearing. But in any case, I only recall there being one cousin that he wanted here as an occurrence witness. However, my client asked me about his cousin and he actually indicates that there were two cousins that were occurrence witnesses and there was a Lori Giles *** that was also an occurrence witness. And I think that basically the overlap of those two people, where he didn't have addresses for the same, they had the exact same testimony and those sorts of things; they were interpreted to be the same individual, not two separate individuals based on what he told me they would say, testify to, et cetera and whatever information he had on them.
So in any case, my client got to trial not being able to call Latisha Wilson or Lori Giles. I guess basically Latisha, because we didn't have an address and she wasn't subpoenaed to demand her appearance, but Lori Giles, because she was mistakenly communicated between him and I as a to be Latisha Wilson and not a separate individual. For that reason, it got to trial that day and I remember him saying, Well, what about my my other cousin? And I said, What other cousin? And he said[, ] [T]he other cousin[.] [A]nd it was after we had already begun the trial and tendered witness lists and it was too late to add somebody by the time this was realized. So, in any case, he had to proceed to trial without calling all available witnesses.
He does believe that if he were able to call Lori Giles and also for that matter, Latisha Wilson, that they would be able to testify to his innocence in this regard. So we'd ask the Court to reconsider the verdict or to set aside the verdict of the jurors on the basis that this was nothing short of just a miscommunication and that it's a miscommunication between him and me that led to him not being able to call all the ...

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