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                              Appellate Court                            Date: 2017.08.09
                                                                         14:41:33 -05'00'




                   People v. Brown, 2017 IL App (3d) 140514



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           DIEUSEUL BROWN, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-14-0514



Filed             May 16, 2017



Decision Under    Appeal from the Circuit Court of Peoria County, No. 13-CF-299; the
Review            Hon. David A. Brown, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier and Jay Wiegman, of State Appellate Defender’s
Appeal            Office, of Ottawa, for appellant.

                  Jerry Brady, State’s Attorney, of Peoria (Richard T. Leonard, of
                  State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.



Panel             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 of
     2012 (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 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
     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

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       A), and count I, the felony murder count, which was referred to as first degree murder (Type
       B). The parties agreed that Illinois Pattern Jury 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 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.

¶ 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. Id. at 175. There is no dispute that the defendant did neither of

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       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. Walker, 7 Ill. 2d 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 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.” Id. 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. Id. 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 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 exist 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

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       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 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 United States 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 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


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       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 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 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

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       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”
       (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 to 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 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

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       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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