People v. Barnes

847 N.E.2d 679, 364 Ill. App. 3d 888, 301 Ill. Dec. 669, 2006 Ill. App. LEXIS 218
Appellate Court of Illinois·Decided March 24, 2006·No. 1-03-2334·Published·Cited by 51 cases

Opinion

PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

After a bench trial, defendant Keith Barnes was convicted of attempted murder, two counts of aggravated battery with a firearm, and two counts of unlawful use of a weapon by a felon, all resulting from a November 2001 incident in which he was accused of firing a handgun at a group of five men. Barnes was sentenced to 17 years’ imprisonment for the attempted murder conviction, plus concurrent terms of 6 years’ imprisonment for each of the aggravated battery counts and 5 years’ imprisonment for each of the weapons counts. He appeals, contending that the identification evidence produced at trial was insufficient to prove beyond a reasonable doubt that he was the perpetrator of the crime; that the evidence was insufficient to prove beyond a reasonable doubt that he intended to kill; that the 17-year sentence for the attempted murder count was an improper increase of his punishment following a motion for resentencing; and that the trial court improperly failed to consider his oral claims of ineffective assistance of counsel. We affirm his convictions and sentences, and remand for further proceedings on Barnes’ ineffective assistance claim.

FACTS

Joseph Nevels testified that at approximately 1:30 a.m. on November 24, 2001, he was standing with four friends in front of the multiunit apartment building where he shared a residence with his parents and that he heard one of his companions, Brian Stein, say “[W]atch out. Look at that dude. He don’t look right.” Nevels testified that he and his friends had been standing inside a fence which enclosed the building’s entryway, and that at Stein’s words, he turned toward the fence gate and saw an individual on the outside of the gate, approximately five feet from him. The individual was wearing all black, including a black sweatshirt with a hood covering his head, and a bandanna covering the portion of his face from the tip of his nose down. Nevels heard the person say “What’s up, folks?” and then saw him reach into a pocket at his waist and pull out a handgun. Nevels tried to close the gate, but was hit in the chest by a gunshot and fell to the ground. He heard several more shots and saw the gunman run away from the scene. Nevels testified that he had not seen the gunman before the incident.

Antonio Branham testified that he lived with his family in a different apartment in the same building as Nevels and that he was one of the five standing outside the building at the time of the shootings. He said that his attention had not been directed toward the street until he heard the words “What’s up, folks?” He turned around upon hearing the words, saw a person pointing a gun at him from a distance of three to five feet, and was shot in the shoulder and both legs. Bran-ham further testified that he heard between five and nine shots fired in total. His description of the gunman’s clothing matched that given by Nevels, and he also described the man as having a scar above his left eyebrow and a “fat, wide” nose. Antonio described himself as 6 feet 4 inches tall and said that the gunman was shorter.

Antonio’s brother Guillermo Branham also testified that he was present at the time of the shooting. He testified that he saw the gunman walking toward their group on the other side of the street and that he observed the gunman’s approach from a distance of approximately 13 feet away to a distance of 4 or 5 feet. Guillermo’s description of the gunman’s clothing was substantially identical to that of Nevels and his brother: dark clothing, hooded sweatshirt, and a bandanna covering the bottom portion of his face. Guillermo testified that despite the bandanna, he took notice of the gunman’s nose, and that it was “wide and puffy.” He described himself as 6 feet tall and said that the gunman was shorter than himself. Guillermo also heard the gunman say, “What’s up, folks?” and saw him pull a handgun from his waist and start firing. He saw his brother being struck by the shots and saw Nevels also struck as he tried to close the gate they stood inside. Guillermo saw the gunman run away from the scene.

Guillermo testified that when police showed him a number of photographs the following day, he identified Barnes’ picture as that of the gunman. He said that he had seen Barnes before the night of the shooting: he had previously seen Barnes coming in and out of the apartment building where the shooting took place, and that at the time of one of those sightings, Barnes had named an elementary school and asked him if he had attended it. Guillermo said that he had also seen Barnes “a couple of times” while doing maintenance work in the building where Barnes lived. Guillermo said that he had previously noticed Barnes’ wide nose. Guillermo again identified Barnes as the gunman in a lineup conducted on the same day he viewed the photo array and identified Barnes again in court at trial.

On cross-examination, Guillermo testified that he had not noticed a scar over Barnes’ eye; that he did not identify Barnes as the gunman at the time of the attack; and that he concluded that he knew the gunman only after he had helped take his brother to the hospital. He further testified that although the gunman’s nostrils were covered by the bandanna, he was able to see the portion of his face from the area above the tip of the nose to the an area just below the top of his forehead. Guillermo also said that although the incident occurred at night, some light from the apartment building entrance brightened the scene.

Barnes did not present evidence in his defense. His counsel argued that the identification testimony lacked reference to numerous specifics of the gunman’s appearance: complexion, presence or absence of facial hair, age and weight. Defense counsel also argued that there was no evidence that any of the witnesses had described the gunman to police as having a distinctive nose, and that the police reports did not reflect any indication that any witness reported knowing the gunman prior to the shooting.

The trial court noted that Barnes had “very unique” features, and specifically referred to the scar identified by Antonio Branham and the wide nose mentioned by both Branham brothers. The court further noted that Guillermo had encountered Barnes on a number of occasions and that he had an opportunity to observe Barnes approaching the group from across the street and firing at them from a distance of 5 feet. The court then found that firing a gun at an individual from such a short distance was evidence of intent to kill that individual, and accordingly found Barnes guilty of attempted murder, two counts of aggravated battery with a firearm, and two counts of unlawful use of a weapon by a felon.

At his sentencing hearing, Barnes denied that he had committed the shootings. He also suggested that he had not been satisfied with the defense presented on his behalf:

“And your honor, I mean to say that I really don’t feel like I had a fair chance at this, your Honor, due to the simple fact that I wasn’t able to really prepare myself. You know, I asked for transcripts, your Honor, and I never received them. I asked them to investigate witnesses on my behalf, but it never happened.

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People v. Barnes, 847 N.E.2d 679, 364 Ill. App. 3d 888, 301 Ill. Dec. 669, 2006 Ill. App. LEXIS 218 (Ill. Ct. App. 2006).

847 N.E.2d 679 (People v. Barnes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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