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People v. Brown

Court of Appeals of Illinois, First District, Second Division

September 19, 2017

NORMAN BROWN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 10 CR 3493 Honorable Mary Margaret Brosnahan, Judge, presiding.

          JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Mason concurred in the judgment and opinion.



         ¶ 1 Norman Brown appeals from the first-stage dismissal of his postconviction petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). Brown contends that the trial court erred in dismissing his petition because he presented an arguable claim that his trial counsel was ineffective for failing to investigate and present to the jury the knife used by the victim during the altercation in which Brown shot the victim.

         ¶ 2 We affirm. Brown could have raised counsel's failure to investigate or obtain the knife on direct appeal. Accordingly, this claim is forfeited and was properly dismissed as frivolous and patently without merit. And, even if not forfeited, Brown's allegation that trial counsel was ineffective for failing to investigate the knife is meritless. We also correct the mathematical miscalculation in the fines, fees, and costs order. But, Brown cannot resurrect in this appeal issues on the merits of assessments (which would have been properly raised, if preserved, in his direct appeal) as if he were applying the ministerial correction of a mathematical calculation called for under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2010)). Brown has not persuaded us to ignore the lack of appellate jurisdiction. See People v. Griffin, 2017 IL App (1st) 143800, ¶ 21 (rejecting effort to "revest" appellate court with jurisdiction when jurisdiction never revested in trial court).

         ¶ 3 Background

         ¶ 4 In September 2010, Brown went to a jury trial on one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2010)) for shooting Robert Jacks. The facts presented at trial follow.

         ¶ 5 In 2010, Brown and Mary Chatman were married but divorcing. Brown lived in Indiana; Chatman in Chicago. They shared custody of their daughter. On January 10, 2010, Brown was scheduled to return their daughter to Chatman after a weekend visitation. Chatman told Jacks, her friend and second-floor neighbor, that she was worried about how the exchange would go with Brown.

         ¶ 6 That evening, Brown brought their daughter up to Chatman's apartment instead of meeting Chatman downstairs as arranged. Chatman asked Brown to leave and texted Jacks, alerting him to Brown's arrival. Brown used her bathroom, made sexual advances toward her, and attempted to discuss reconciliation.

         ¶ 7 Jacks and his daughter, Tracy, left their apartment to meet the child in the front of the building, but no one was there. Jacks called the police and went upstairs with Tracy to check on Chatman. Their arrival agitated Brown. He pushed them out into the hallway and locked the door. Tracy used a spare key to reenter, further agitating Brown. He yelled, pushed Tracy down, and grabbed Jacks's arm. Jacks grabbed Brown's arm. Tracy was a few feet inside the apartment; Jacks was in the hallway.

         ¶ 8 Chatman left the apartment with their daughter. Jacks blocked Brown from following them. Brown backed Jacks and Tracy into the hall. Tracy was between Brown and Jacks. Jacks testified that Brown drew his gun and aimed it at him and Tracy. In response, Jacks pulled out a knife, which he testified was small, sharp-pointed, and primarily used for cutting small items like butter. He kept the knife with him for protection in the neighborhood. Jacks testified that he did not swing the knife at Brown or threaten him with it.

         ¶ 9 Brown fired at the ground in front of Jacks' feet several times, hitting Jacks' leg with his last shot. Jacks was taken to the hospital, where it was determined that the bullet went through his leg. Tracy testified that she was in front of her father and never saw a knife.

         ¶ 10 Chicago police officer Edwin Jones, an evidence technician, recovered one fired .32-caliber bullet and .32-caliber bullet casing and observed blood on the hallway floor outside of Chatman's apartment. He recovered nothing else in either the hallway or apartment.

         ¶ 11 Brown testified that he drew his gun after Jacks pulled out a kitchen knife with an eight-inch blade, reached around Tracy, and tried to cut Brown with it, nicking his arm. He repeatedly told Jacks to drop the knife, telling him "[d]rop the damn knife[, ] I'm not playing with you." He "wasn't trying to shoot [Jacks]. [He] just figured he was a damn fool in the first place." Asked whether he shot Jacks on purpose or to scare him, Brown responded that he "just wanted him to drop the knife" and "wasn't planning on shooting at all." He "just wanted to let [Jacks] know he wasn't playing with him" where Jacks had "came out like a coward and reached around and came straight at" him. After the shooting, Brown immediately left and drove back to Indiana. He admitted he discarded the gun along the way.

         ¶ 12 In closing, defense counsel argued that Jacks was irrational and "unbalanced" and Brown was justified in discharging his gun because Jacks was coming at him with a knife and Brown had no alternative. The jury ...

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