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People v. Middleton

Court of Appeals of Illinois, First District, Third Division

June 6, 2018

KEITH MIDDLETON, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 12 CR 12617 The Honorable Charles P. Burns, Judge Presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.


          LAVIN JUSTICE.

         ¶ 1 Following a jury trial, defendant Keith Middleton was found guilty of first degree murder while personally discharging a firearm and sentenced to 53 years in prison. Defendant appeals, arguing that he was not proved guilty beyond a reasonable doubt because he was identified by a single occurrence witness, whose description of defendant was severely impeached. Namely, there was conflicting evidence as to whether defendant wore a full or half-ski mask and whether the single occurrence witness could see defendant's face. Defendant also contends the State improperly introduced a demonstrative exhibit during closing arguments depicting defendant with a half-ski mask superimposed over his arrest photograph, but the State neglected to introduce this exhibit at trial. In addition, defendant contends the State elicited improper hearsay statements at trial, the court erred in overruling certain objections, the court erred in admitting video evidence, his trial counsel was ineffective, the State offered improper closing argument, and the court erred in sustaining objections to defense counsel's arguments. While we hold the evidence was sufficient to prove defendant guilty beyond a reasonable doubt, we conclude the State's first-time presentation of the altered arrest photograph during closing rebuttal argument resulted in prejudicial error requiring a new trial.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend's brother Ricky Brown, then age 30, on March 21, 2012, on the sidewalk outside Brown's home. At trial, the victim's neighbor Toryion Conner testified that he was standing on his front porch around 8:30 a.m. on March 21 at 739 West 61st Street, between South Halsted Street and South Union Avenue, when he saw defendant near the sidewalk across the street and several houses east from where 13-year-old Conner stood.[1] Conner testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black writing and the hood was hanging down. Defendant wore a ski mask that covered only the lower half of his face, which Conner described as going up "right here to the nose." Conner saw defendant look in his direction as he drew a silver revolver from his hoodie. Conner said he saw defendant as he "rammed up on" Brown, who was standing on the sidewalk. Conner knew the victim lived nearby at 720 West 61st Street. Conner heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but "came back like he wasn't *** finished with him, " and shot the victim again in his upper body. Conner then saw defendant get into a white car and drive off toward Halsted Street. Conner moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. Conner could see defendant's whole upper body and from his nose "all the way up." The prosecutor clarified for the record that Conner "was moving his hand upward towards his forehead and the top of his head." The State, however, did not present the ski mask at trial or ask Conner to identify any image of defendant wearing a ski mask.

         ¶ 4 Conner testified that he later went to school, where he told his teacher he had witnessed a murder, but denied giving the teacher any additional details. The police were ushered in to interview him, but he denied telling officers that the shooter wore a hoodie or a full ski mask with Velcro. Less than three months later, on May 2, 2012, Conner identified defendant as the shooter from a photo array. On June 7, 2012, Conner identified defendant from a lineup. The State did not ask Conner to identify defendant's mug shot taken on arrest.

         ¶ 5 Chicago Police Detective Gregory Buie interviewed Conner in his mother's presence at his school the day of the shooting. Detective Buie testified that Conner described the shooter as a black male with long dreadlocks, wearing a gray hoodie with black pants, and a black, half-ski mask. To demonstrate what the ski mask looked like, as Conner described it, Detective Buie held both of his hands right at his nose. In a supplemental report prepared by a different police officer, however, Conner was said to have described the offender as simply wearing a gray hoodie with black trim, a black ski mask, and black jogging pants.

         ¶ 6 Additionally, Chicago Police Detective Arthur Davis prepared a report the day of the shooting wherein the offender was described as a black male with long dreadlocks and a partial ponytail who was wearing a full, black ski mask with Velcro straps, along with a gray hoodie with black trim and black lettering on the front. Detective Davis also noted that defendant was listed in a police report as being 6 foot 3 inches tall and weighing 225 pounds, facts which Conner never related to any officer.

         ¶ 7 The State's theory, as explained in greater detail below, was that the shooting related to a personal vendetta against Brown and that defendant drove off in the victim's car after killing him. Brown's girlfriend, Marquea Ambrose, testified that she knew defendant, who went by Thomas, to be dating the victim's sister. On the day in question, she was with the victim at his house when he left for his job at the post office after having parked his white Chevy in front, although he typically parked his car two blocks away presumably due to "concerns." After he left, Ambrose heard two gunshots, then a brief pause before more gunshots were fired. She looked out the window and observed her boyfriend's white Chevy driving toward Halsted Street, although she was unable to see the driver. She then saw Brown dead on the ground.

         ¶ 8 Pursuant to the State's pretrial motion "regarding prior bad acts, " Damien Parker, the victim's childhood friend, testified that days before the shooting, defendant had threatened the two of them with a handgun. Parker also knew defendant by the name of Thomas and knew him to be the boyfriend of the victim's sister, Rachel Brown. On March 9, 2012, Parker and the victim were just leaving Parker's home (78th Street and Ada Street) when they saw Rachel's van pull up behind, notably near where the victim had parked his white Chevy. According to Parker, the victim became "panicky [and] nervous, " and the two decided to follow the van to determine whether defendant was inside. The van slowed down as it drove past Ambrose's home, which made the victim "really agitated, " but then drove off at a high speed. Parker eventually pulled up next to the van and saw defendant was the driver. The victim tried to hide from view by leaning back. Defendant made eye contact with Parker, nodded and then turned. Parker stopped following defendant. On cross, Parker acknowledged they had followed defendant without any prompting, and defendant at that point had made no threats.

         ¶ 9 Some 20 minutes after leaving home, Parker and the victim again encountered defendant's van behind Parker's house. Defendant exited the van and told the two to "get the fuck out of the car." Parker eased his car toward defendant, who was about 15 feet away, but then he saw defendant retrieve a chrome handgun from the van, which he placed in his pocket while again ordering them to get out. Defendant eventually took the gun from his pocket, waving it at the two men while exclaiming, "I got your ass. Get your ass out of the car." While Parker wanted to hit defendant with his car, the victim instead urged him to back up because defendant "might start shooting." Parker did as his friend suggested, prompting defendant to repeat "I got your ass, " before returning to his own vehicle. Parker and the victim then flagged a police officer and reported the incident with defendant's name and the license plate, although they did not fill out a formal police report. On the day in question, Parker saw the victim lying dead on the sidewalk and shortly thereafter spoke with police. In June, Parker also identified defendant from a lineup as the person he had seen on March 9.

         ¶ 10 No fired cartridge cases or bullets were recovered from the crime scene, and the parties stipulated that a revolver does not automatically eject any cartridge cases. Police did find Brown's car a short distance away, where they found the keys in the ignition along with his wallet and several cell phones. The State theorized that on the day of the shooting, defendant drove the victim's car around the corner, where he then hopped into Rachel's van. The victim's car was swabbed biological evidence. None of the DNA swabs taken from the victim's car, including the driver's door latch and handle, steering wheel, and gear shift, matched defendant, and in fact, defendant was excluded from some of the human DNA profiles identified. Similarly, a latent fingerprint taken from the exterior driver's side door did not match defendant. Additionally, the State's medical examiner testified that the victim was shot in the chest and buttocks.

         ¶ 11 The same day of the shooting, the police were looking for defendant, with Detective Davis making active efforts to locate him. The day after, on March 22, defendant appeared at the police station, although there was no warrant for his arrest or investigative alert at that time. Defendant signed a consent form for police to take his DNA by buccal swab, but he was not then arrested and ultimately left the police station.

         ¶ 12 Months later, in June 2012, following Conner's identification of defendant and other investigation, police appeared at defendant's workplace where they identified themselves. Defendant fled, jumping onto a dumpster outside the loading docks and then over a 10-foot fence, where he fell to the ground. He was then handcuffed and taken into custody. Detective Davis identified defendant's arrest photograph, ...

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