                                        2017 IL App (3d) 140514

                                 Opinion filed May 16, 2017
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2017

     THE PEOPLE OF THE STATE                         )      Appeal from the Circuit Court
     OF ILLINOIS,                                    )      of the 10th Judicial Circuit,
                                                     )      Peoria County, Illinois.
            Plaintiff-Appellee,                      )
                                                     )      Appeal No. 3-14-0514
            v.                                       )      Circuit No. 13-CF-299
                                                     )
     DIEUSEUL BROWN,                                 )      Honorable
                                                     )      David A. Brown,
            Defendant-Appellant.                     )      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


¶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 9-1(a)(3) of the Criminal Code (720

     ILCS 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


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     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. 2.01B (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. 2.03A, 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


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     guilty of first degree murder (Type A). IPI Criminal 4th No. 2.03A. 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 defendant’s

     motion to reconsider his sentence was denied and defendant appealed.


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¶ 10                                               ANALYSIS

¶ 11          The defendant argues that his conviction of second degree murder must be vacated

       because a finding of not guilty verdict of first degree murder precluded a finding that he was

       guilty of second degree murder. The State argues that the jury mistakenly filled out extra verdict

       forms. Also, the State argues that the defendant forfeited this issue on appeal because he failed to

       make a timely objection or include the issue in his posttrial motion and did not argue plain error.

       The issue of whether a defendant forfeited an argument on appeal is a question of law that we

       review de novo. People v. Herron, 215 Ill. 2d 167, 174 (2005).

¶ 12          A defendant who fails to make a timely objection and include the issue in a posttrial

       motion forfeits review of the issue. Herron, 215 Ill. 2d at 175. There is no dispute that the

       defendant did neither of these. The defendant argues, though, that he is really raising a

       reasonable doubt argument, which can be made for the first time on appeal. People v. King, 151

       Ill. App. 3d 644, 646 (1987); People v. Walker, 7 Ill. 2d 158, 160 (1955) (“The failure to prove a

       material allegation of an indictment beyond a reasonable doubt is fatal to a judgment of

       conviction, and the question may be raised for the first time upon review.”). The defendant

       contends that the jury’s verdict of not guilty of first degree murder means that the State failed to

       prove a material element of the charge of second degree murder. In Walker, the material

       allegation that was not proved at trial was the identity of the people whose belongings were

       burglarized; the appellate court reversed the conviction because the identity of the victim was an

       essential element of the crime grounded in double jeopardy principles. Id. at 162. In King, the

       defendant argued that his identity was not proven. King, 151 Ill. App. 3d at 648.

¶ 13          The defendant in the instant case is not raising the same argument that the courts in

       Walker and King found to be outside of the waiver rule. The defendant did not argue that his


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       identity was not proven, nor did he argue that he did not shoot the victim. The defendant’s

       argument, although he denies it, is basically that the verdicts were inconsistent. Since the

       defendant argued for plain error review in his reply brief, we will consider the issue for plain

       error under the second prong of the plain error analysis, i.e., where the error is so serious that the

       defendant was denied a substantial right and thus a fair trial. See People v. Williams, 193 Ill. 2d

       306, 348 (2000); Herron, 215 Ill. 2d at 179.

¶ 14          The defendant primarily relies upon People v. Parker, 223 Ill. 2d 494 (2006), wherein the

       Illinois Supreme Court stated that “a finding that the defendant is not guilty of first degree

       murder bars the jury from considering second degree murder, and the jury verdict form of ‘not

       guilty of first degree murder’ would unambiguously establish the jury’s intention to acquit on all

       charges.” Parker, 223 Ill. 2d at 505. In that case, however, the Court was addressing jury verdict

       forms, not inconsistent verdicts. The jury in Parker had been provided with three verdict forms:

       not guilty of first degree murder, guilty of first degree murder, and guilty of second degree

       murder. There was no error in the trial court’s failure to provide a fourth verdict form, a general

       “not guilty” verdict form, because the jury was properly instructed and followed the instructions,

       whereby a finding of not guilty of first degree murder precluded a finding of guilty of second

       degree murder. Id.

¶ 15          While the jury in the instant case was similarly correctly instructed, it is clear that the

       jury did not follow the instructions because it filled out more than one verdict form and signed

       the form on the allegation that the defendant personally discharged the firearm. It is without

       question that second degree murder is a lesser mitigated offense of first degree murder. Parker,

       223 Ill. 2d at 504-05 (citing People v. Jeffries, 164 Ill. 2d 104, 122 (1995)). Thus, the jury found

       essential elements, the elements of first degree murder, to exist and to not exist, resulting in


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       inconsistent verdicts. People v. Lefler, 2016 IL App (3d) 140293, ¶ 20 (jury verdicts are legally

       inconsistent when an essential element of each offense is found to exit and to not exist, even

       though the offenses arise out of the same set of facts); People v. Porter, 168 Ill. 2d 201, 214

       (1995) (verdicts that defendant was guilty but mentally ill of both second degree and first degree

       murder for the death of his mother were inconsistent because they found the murder both

       provoked and unprovoked at the same time).

¶ 16          This is not a case of inconsistent guilty verdicts, but rather a guilty verdict that is

       inconsistent with an acquittal on another count. The United States Supreme Court, in United

       States v. Powell, 469 U.S. 57 (1984), extended earlier precedent, Dunn v. United States, 284 U.S.

       390 (1932), which held that a criminal defendant convicted by a jury on one count could not

       attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another

       count, to cases where the acquittal was on a predicate offense and the conviction was on the

       compound offense. Powell, 469 U.S. at 65. The Powell court found that inconsistent verdicts

       were in error, but not of a constitutional nature. Id. at 66. The rationale for not allowing the

       defendant to challenge such an inconsistent jury verdict was that the government could not

       challenge the acquittal and it was unclear who the jury’s error favored. Id. Also, the error could

       have been the result of juror lenity. Id. Finally, the defendant was protected against jury

       irrationality or error because of sufficiency of the evidence review. Id. at 67.

¶ 17          Illinois initially did not follow Powell, finding that it was decided under the Supreme

       Court’s supervisory powers and was not of constitutional magnitude. People v. Klingenberg, 172

       Ill. 2d 270, 277 (1996). In Klingenberg, the defendant argued that the jury verdict convicting him

       of official misconduct was legally inconsistent with the verdict acquitting him of theft. Id. at 272.

       The Klingenberg panel took issue with the idea of juror lenity when the jury acquits of the


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       predicate offense and convicts of the compound offense. Id. at 278. However, the Illinois

       Supreme Court later overruled Klingenberg and applied Powell in People v. Jones, 207 Ill. 2d

       122 (2003). In Jones, the defendant was acquitted of aggravated battery but convicted of mob

       action. The Court pointed out that there were not two guilty verdicts but rather one guilty and

       one acquittal. Id. at 135-36.

¶ 18          The difference between the instant case and the Powell and Jones line of cases is that

       those defendants were convicted of the lesser-included offense and acquitted of the greater

       offense, while the defendant in this case was convicted of the lesser-mitigated offense and

       acquitted of the greater offense. However, the rationale of Powell still applies. While it is clear

       that the jury was in error in returning inconsistent verdicts, in the words of the U.S. Supreme

       Court in Powell, “it is unclear whose ox has been gored,” and it is unclear who the jury’s error

       favored. See Powell, 469 U.S. at 65. The government could not challenge the acquittal. Also, the

       verdict could still be explained as the result of juror lenity: second degree murder is a “lesser”

       offense than first degree murder because its penalties are lesser. See People v. Newbern, 219 Ill.

       App. 3d 333, 353 (1991). Finally, the defendant was protected against jury irrationality or error

       because he could have sought a review of the sufficiency of the evidence. The dissent contends

       that the acquittal of first degree murder demonstrates the insufficiency of the State’s evidence for

       second degree murder, but Powell requires a review of the sufficiency of the evidence

       “independent of the jury’s determination that evidence on another count was insufficient.”

       Powell, 469 U.S. at 67. This sufficiency of the evidence review, which will protect a defendant

       against jury irrationality, requires us to independently assess the evidence adduced at trial and

       determine if it would support any rational determination of guilt of second degree murder beyond




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       a reasonable doubt. See id. Thus, although the defendant fails to point to any specific evidentiary

       insufficiencies, we will assess the evidence admitted at trial.

¶ 19           To sustain the defendant’s second degree murder conviction, the State was required to

       prove that the defendant performed the acts that actually caused Coleman’s death and that the

       defendant knew that such acts created a strong probability of death or great bodily harm to

       Coleman. Those elements are not in dispute; the defendant testified at trial that he went to

       Coleman’s home and shot Coleman in the back. The State also had to prove, though, that the

       defendant was not justified in using deadly force and that the defendant’s belief that the

       circumstances justified deadly force as unreasonable. The defendant testified that he was invited

       into Coleman’s home and that he shot Coleman during an altercation in which Coleman was the

       aggressor in an argument over drugs and money. The defendant testified that Coleman was on

       top of the defendant on the ground, choking the defendant, and defendant believed he had to

       shoot Coleman. McNulty and Richardson testified, though, that the defendant was an aggressive

       intruder who held a gun to McNulty’s head, demanded money, and was looking for Coleman.

       Although neither saw the shooting, they both saw the defendant on his feet after the shooting,

       rather than lying on the ground. We find that the evidence was sufficient so that a jury could

       rationally determine that the defendant was the aggressor, that he was not justified in using

       deadly force, and that any belief that deadly force was necessary was unreasonable.

¶ 20           While we find that the jury erred by returning inconsistent verdicts, the entry of a

       conviction inconsistent with an acquittal is not of a constitutional nature and it did not deny the

       defendant a substantial right. The defendant has, therefore, failed to meet his burden of showing

       that the error affected the fairness of his trial or challenged the integrity of the judicial process.

       Accordingly, the second prong of plain-error review does not provide a basis for excusing the


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       defendant’s procedural default, and we affirm the defendant’s conviction of second degree

       murder.

¶ 21                                              CONCLUSION

¶ 22          The judgment of the circuit court of Peoria County is affirmed.

¶ 23          Affirmed.

¶ 24          JUSTICE McDADE, dissenting.

¶ 25          The majority has affirmed the conviction of defendant, Dieuseul Brown, of second degree

       murder, finding, in essence, that Brown forfeited his protection against jury irrationality or error

       by failing to challenge the sufficiency of the State’s evidence. Because he has clearly raised

       precisely that challenge, I respectfully dissent from this finding.

¶ 26          Despite having been instructed multiple times by the court that they were to complete

       only one verdict form, the jurors, at the end of their deliberations, presented two signed verdicts

       to the court. One verdict acquitted Brown of first degree murder and the second found him guilty

       of second degree murder.

¶ 27          Despite having instructed the jury multiple times that they were to complete only one

       verdict form, the court, upon learning that the jurors had executed two forms, accepted and

       entered judgment on both verdicts.

¶ 28          Brown’s acquittal of first degree murder cannot be before this court in this appeal. Brown

       has neither a reason nor a right to raise it because he was found not guilty. Ill. Const. 1970, art.

       VI, § 6 (stating that “after a trial on the merits in a criminal case, there shall be no appeal from a

       judgment of acquittal”); People v. Pearson, 16 Ill. App. 3d 543, 549 (1973). The State is legally

       prohibited from raising it because Brown was acquitted by the jury. People v. Kapande, 23 Ill. 2d

       230, 236 (1961) (holding that “[t]he State’s appeal from the judgment of ‘not guilty’ in the

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       criminal case is dismissed and no citation of authority is necessary for the proposition that the

       State cannot appeal from a ‘not guilty’ judgment”).

¶ 29          Thus, the only issue properly before this court is Brown’s challenge to his conviction of

       second degree murder. The sole argument Brown has advanced is that the State has failed to

       prove an essential element of the crime—that he is guilty of first degree murder. Throughout his

       initial and reply briefs, he has persisted in that very argument. Nowhere in his briefs has he

       raised a claim of inconsistent verdicts. Nor does his argument implicate the principles or

       precedent relating to lesser included offenses. See supra ¶¶ 17-18.

¶ 30          Because Brown has not raised these issues and because that case does not deal with a

       murder statute such as the one applicable in the instant case, the decision of the United States

       Supreme Court in United States v. Powell, 469 U.S. 57 (1984), on which the majority relies, is

       inapposite. Powell was a claim of inconsistent verdicts in a drug prosecution pursued via

       multiple claims in multiple counts. Citing its earlier decision in Dunn v. United States, 284 U.S.

       390 (1932), the Powell court reiterated that “ ‘[c]onsistency in the verdict is not necessary. Each

       count in an indictment is regarded as if it was a separate indictment.’ ” Powell, 469 U.S. at 62

       (quoting Dunn, 284 U.S. at 62). It, thus, rejected Betty Lou Powell’s argument that, because of

       the overlapping nature of the required evidence, the jury’s verdict acquitting her on some of the

       counts was inconsistent with its guilty verdict on the other counts. That is not and never has been

       the claim raised by Brown in this case; his only claim is that the evidence was insufficient to

       convict him of second degree murder because the State failed to prove an essential element of the

       crime. This is a quintessential insufficiency-of-the-evidence claim.

¶ 31          The majority also cites Powell as requiring a review of the sufficiency of the evidence

       “independent of the jury’s determination that evidence on another count was insufficient,”


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       Powell, 469 U.S. at 67, and notes that Brown has failed to point to any specific evidentiary

       insufficiencies. It is unclear exactly what specific insufficiencies he could raise.

¶ 32          It is neither reasonable nor necessary for Brown to either raise or argue the insufficiency

       of any evidence presented by the State that resulted in his acquittal of first degree murder. It was

       at all times the State’s burden to prove Brown guilty beyond a reasonable doubt of first degree

       murder. Brown had no burden of proof regarding that charge in the trial court and he equally has

       no such burden in this court. See, e.g., People v. McGee, 2015 IL App (1st) 130367, ¶ 69

       (holding that “[i]t is axiomatic that an accused is presumed innocent and that the burden of proof

       as to his guilt lies, at all times, with the State”). The jury found Brown not guilty of first degree

       murder, and we have no basis for concluding it did not intend to do so. He had raised the

       affirmative defense of self-defense, and the jurors may well have believed him. The trial court

       entered that verdict as an individual and distinct judgment. There is, quite simply, nothing for

       either party to raise or to prove. Any review of the sufficiency of the evidence to either attack or

       justify the first degree murder acquittal is both improper and unconstitutional.

¶ 33          Moreover, such a procedure would invite the State to come through the back door to

       finesse an argument, as it appears to do here, that the jury really intended to find Brown guilty of

       first degree murder because it intended to find him guilty of second degree murder. If the State is

       constitutionally prohibited from a frontal attack on the jury’s finding of not guilty, it surely is

       similarly barred from assaulting it by indirection or subterfuge.

¶ 34          It is clear that the jury misunderstood the instructions about how to fill out the verdict

       forms and that a mistake was made. It is not at all clear, however, what that mistake was. Despite

       the arguments of the State, there is no actual factual basis for determining that the jurors did not,

       in fact, intend to acquit Brown of first degree murder. Without such a finding, his conviction of


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       second degree murder cannot legally stand. To determine that the jurors did not so intend is to

       engage not only in an unconstitutional review of his acquittal but also in wanton speculation. To

       find Brown guilty of second degree murder in the face of his acquittal of first degree murder flies

       in the face of the plain and unambiguous language of the statute and frustrates the manifest intent

       of the legislature.

¶ 35           In summary, the jury acquitted Brown of the first degree murder of Coleman; that

       acquittal cannot be challenged constitutionally by either the defendant or the State; the statute

       clearly and unambiguously requires, as the first necessary element of proof for second degree

       murder, that the State prove Brown guilty of first degree murder; the State did not—indeed,

       could not—provide such proof because of the acquittal; therefore, the evidence was insufficient

       as a matter of law to prove him guilty of second degree murder. I can see no choice but to

       reverse that conviction. If we do not do so, we will have violated our sworn duty to enforce the

       law as written and enacted by the legislature.

¶ 36           It is possible, but not certain, that Brown was wrongly acquitted of first degree murder.

       He is nonetheless legally not guilty. It seems trite but is nevertheless true to say that it is better to

       risk exonerating a possible wrongdoer than to (1) ignore the unambiguous language of a duly

       enacted statute or (2) intentionally and deliberately undermine the most fundamental

       constitutional principles and procedures undergirding our criminal justice/criminal judicial

       system.




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