SIXTH DIVISION March 24, 2006
No. 1-03-2334
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) ) v. ) No. 01 CR 31619 ) ) The Honorable. KEITH BARNES, ) Catherine M. ) Haberkorn, Defendant-Appellant ) Judge Presiding
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 1-03-2334
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 multi-unit 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 entry way,
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
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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. Branham 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
3 1-03-2334
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
4 1-03-2334
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.
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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.
Witnesses on my behalf, your Honor, I could have
proved to you, your Honor, that I was nowhere in sight
around 1524 West Pratt, your Honor, at 1:00 or 2:00 in
the morning because I had no business being outside at
that time, not when I'm on probation, I know."
The trial court was not persuaded by Barnes'
contentions:
"One thing you mentioned that your lawyers didn't
investigate certain witnesses or didn't give you any
transcripts. That relationship between your lawyer is
between you and your lawyer.
Nothing was ever brought to my attention during
the court that work was not being done. This is the
first time that you're saying that, and your lawyers
had plenty of time to prepare the case, and nothing was
ever said previous to that. So, that has to do with
6 1-03-2334
legal strategy, and that was between you and your
lawyers, and I don't have anything to do with that."
The court first pronounced Barnes' sentence on the attempted
murder conviction: "At this time, the defendant shall be
sentenced to - - it will be ten years on the Class X felony plus
fifteen years under the statute which says since he was armed
with a firearm. That'll be twenty-five years in the Illinois
Department of Corrections." Barnes was also sentenced to six-
year terms for each of the two aggravated battery counts and
five-year terms for each of the unlawful use of weapon counts,
with all sentences to be served concurrently.
In a motion to reconsider his sentence, Barnes advised the
court that the enhancement provision that added 15 years to an
attempted murder sentence where a firearm was used (720 ILCS 5/8-
4(c)(1)(B) (West 2000)) had been held unconstitutional by our
supreme court. (People v. Morgan, 203 Ill. 2d 470, 491 (2003).) The court granted Barnes' motion to reconsider the 25-year
sentence for the attempt murder conviction, and resentenced him
to a 17-year prison term for that offense. Barnes' motion for
reconsideration of that sentence was denied, and this appeal
followed.
DISCUSSION
Sufficiency of Identification Evidence
Barnes first contends that he was not proved guilty of the
charged offenses beyond a reasonable doubt because the
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identification testimony against him was insufficient to allow a
reasonable trier of fact to find him guilty of the crimes. He
correctly notes that the factors to be considered in evaluating
the reliability of an identification are (1) the opportunity of
the witness to view the offender at the time of the crime; (2)
the witness's degree of attention; (3) the accuracy of the
witness's prior description of the offender; (4) the level of
certainty shown by the witness at the identification
confrontation; and (5) the length of time between the crime and
the confrontation (People v. Curtis, 262 Ill. App. 3d 876, 881 (1994)), and contends that the identification here was unreliable
because the gunman wore a hood and a bandanna, covering most of
his face; because the incident happened quickly; because it was
dark; and because Guillermo Branham's identification rested
solely on his characterization of Barnes' nose.
None of the claimed identification shortcomings render the
testimony against Barnes sufficiently unreliable that his
convictions must be disturbed. Illinois courts have consistently
rejected challenges to identifications under circumstances
similar to, and even less favorable than, those surrounding the
testimony in the instant case.
Though the witnesses testified that most of the gunman's
face was covered by a bandanna at the time of the attack, both
Antonio Branham and his brother Guillermo testified that enough
of the attacker's nose was uncovered to allow them to see that it
8 1-03-2334
was notably wide. In People v. Zarate, 264 Ill. App. 3d 667
(1994), this court rejected the contention that a perpetrator's
disguise made an eyewitness identification unreliable. There,
the identification was found to be sufficiently positive and
reliable to support a conviction even though the witness, the
victim of an assault in her home, was able to view her attacker's
face only through eye holes in a bag he wore over his head to
conceal his identity. 264 Ill. App. 3d at 674-75.
This court has similarly rejected the claim that brevity of
the witness's observation undermines his identification
testimony: in People v. Parks, 50 Ill. App. 3d 929, 930-33 (1977), an encounter as abbreviated as "five to ten seconds" (50
Ill. App. 3d at 930) was held to be sufficient to support a
conviction. We have also held that testimony based on night
observations illuminated only by artificial light may serve as
proof of identification beyond a reasonable doubt. People v.
Griffin, 12 Ill. App. 3d 193, 198-200 (1973).
Barnes makes much of the fact that the identification
testimony of the Branham brothers centered primarily on his nose;
he notes that Guillermo failed to mention a prominent scar above
his eye and that neither brother offered any details about
numerous other physical characteristics of the gunman, such as
weight, age, or complexion. Our supreme court, however, has held
that omissions in the description offered by a witness do not
render his testimony unreliable. People v. Slim, 127 Ill. 2d
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302, 309 (1989). Illinois courts have consistently adhered to
this principle, repeatedly holding that identification testimony
which fails to mention notable physical characteristics of the
defendant may nonetheless prove a defendant's guilt beyond a
reasonable doubt. People v. Miller, 30 Ill. 2d 110, 113 (1964);
People v. Nims, 156 Ill. App. 3d 115, 121 (1986); People v. Bias,
131 Ill. App. 3d 98, 105 (1985).
Citing People v. Dowaliby, 221 Ill. App. 3d 788 (1991),
Barnes claims that identification testimony focusing primarily on
his nose is inherently vague and insufficient to support a
finding of guilt beyond a reasonable doubt. While the Dowaliby court did find identification testimony focusing on the
appearance of a nose to be "doubtful, vague, unreliable and of no
probative value," (221 Ill. App. 3d at 800) the testimony at
issue in the instant case is readily distinguishable.
In Dowaliby, the witness whose testimony served as
identification of the defendant stated that he had observed "the
profile of a large nose." 221 Ill. App. 3d at 800. The witness
did not note any other characteristics of the individual, and did
not identify a photograph of the individual as the person he had
seen, stating only that the defendant's nose structure "looked
similar to the profile nose structure of the person he saw." 221
Ill. App. 3d at 800. The witness did not identify the defendant
in court as the person he had observed at the crime scene. 221
Ill. App. 3d at 800.
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It is thus apparent that, in contrast to the instant case,
the witness in Dowaliby failed to make a positive identification
of the defendant. It is equally apparent that the Dowaliby court
did not suggest that a positive identification may not be made on
the basis of a witness observation of a distinctive nose. We
therefore conclude that Dowaliby offers no basis for a reversal
of Barnes' conviction.
We find Barnes' remaining assertion of evidence
insufficiency to be equally unpersuasive: he argues that
Guillermo Branham admitted that he "wasn't really paying
attention" and that his "mind really wasn't focused." The full
context of Guillermo's comments reveals that he stated that he
was not paying attention to the gunman's eye structure, and that
his recognition of Barnes as the attacker did not occur to him
until he was at the hospital because his mind was not focused on
identifying the shooter while he was attending to his brother and
his friend.
The testimony of a single credible witness with ample
opportunity to make a positive identification is sufficient to
convict. People v. Jefferson, 183 Ill. App. 3d 497, 501 (1989). The persuasiveness of identification testimony is strengthened
by the witness's prior acquaintance with the accused. People v.
Milam, 80 Ill. App. 3d 245, 251 (1980). On review, the verdict
delivered by a court presiding at a bench trial will not be
overturned unless it is so unsatisfactory, improbable or
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implausible as to justify a reasonable doubt as to the
defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989).
Guillermo Branham's identification of Barnes was positive
and consistent in selecting Barnes' picture from the photo array,
in choosing him from a lineup, and in naming Barnes as the gunman
at trial. The identification was bolstered by the fact that he
had encountered Barnes on multiple occasions prior to the night
of the shooting. Guillermo's identification was corroborated by
his brother's testimony that the gunman had a scar over his eye
and a wide nose, and the trial court noted that those features
were "unique." In light of the foregoing, and in light of the
consistent rejection by Illinois courts of the arguments asserted
by Barnes as bases for considering the testimony against him to
be unreliable, we must conclude that the evidence presented was
sufficient to prove beyond a reasonable doubt that Barnes was the
perpetrator of the charged crimes.
Sufficiency of Intent Evidence Barnes contends that the prosecution failed to prove beyond
a reasonable doubt that he had the intent to kill Joseph Nevels,
and that his conviction for attempt murder must therefore be
reversed. In support of this contention, Barnes notes that no
evidence was presented to indicate that Barnes knew Nevels, was
aiming at him, or had any intent to kill him. He concludes that
in the absence of such evidence, the trier of fact could at most
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infer that he acted recklessly, but not that he intended to kill.
We disagree.
"'Intent is a state of mind which, if not admitted, can be
established by proof of surrounding circumstances, including the
character of the assault, the use of a deadly weapon, and other
matters from which an intent to kill may be inferred.
[Citations.] Such intent may be inferred when it has been
demonstrated that the defendant voluntarily and willingly
committed an act, the natural tendency of which is to destroy
another's life.'" People v. Green, 339 Ill. App. 3d 443, 451 (2003), quoting People v. Winters, 151 Ill. App. 3d 402, 405
(1986). In Green, this court held that the act of shooting at a
group of police officers was sufficient proof of intent to kill
to support a conviction for attempt murder. Green, 339 Ill. App.
3d at 452. Similarly, in People v. Bailey, 265 Ill. App. 3d 262
(1994), this court held that shooting at a group was an act
sufficient to prove the intent necessary to sustain an attempted
murder conviction. "To sustain a charge of attempted murder, it
is sufficient to discharge a weapon in the direction of another
individual, either with malice or total disregard for human
life." Bailey, 265 Ill. App. 3d at 273. Given the fact that
Barnes fired several shots at the victims, the fact that two
separate victims were in fact struck, and the well-established
principle that such conduct is sufficient to support an attempted
murder conviction, we conclude that Barnes' argument must be
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rejected.
Length of Resentence for Attempted Murder
Barnes next contends that the trial court, in imposing a 17-
year sentence for the attempted murder charge after discovering
the invalidity of the enhancement provision originally utilized
to impose a 25-year sentence, improperly violated section 5-8-
1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c)
(West 2000)), which provides that a court "may not increase a
sentence once it is imposed." Since the 17-year term imposed
upon resentencing is less than his original 25-year attempted
murder sentence, Barnes' argument necessarily presumes that the
trial court's recognition of the invalidity of the enhancement
statute left a valid 10-year sentence which could not then be
increased. We do not agree with this presumption.
Initially, we note that while the trial court referred to
the attempted murder sentence by reference to its component
parts, 10 years plus a required 15-year enhancement, neither the
language of the statute nor the trial court's ultimate
pronouncement of sentence suggests that the penalty imposed for
attempted murder consisted of distinct, independent prison terms
rather than a single 25-year sentence.
Barnes notes that in People v. Baker, 341 Ill. App. 3d 1083 (2003), the Appellate Court for the Fourth District held a
sentencing enhancement provision to be constitutionally invalid,
and as a result vacated the enhanced portion of the prison term,
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However, the Fourth District subsequently emphasized that Baker
did not purport to mandate this remedy: "This court did not hold,
as defendant contends, the defendant's sentence in Baker had to
be set at 25 years as a result of subtracting the 15-year
enhancement from the 40 years imposed initially by the trial
court." People v. Ridley, 345 Ill. App. 3d 1091, 1093 (2004).
The Ridley court affirmed the imposition of a 15-year prison
sentence following the vacation of a 21-year sentence consisting
of a 6-year base sentence plus an invalid 15-year enhancement.
345 Ill. App. 3d at 1093-94.
In addition, the instant case arises from a factual
background significantly distinct from that outlined in Baker. Here, the trial court explicitly indicated that it took the
mandatory enhancement provision into account in imposing the
original sentence: "My original sentence was based on the fact
defense counsel at the time never asked to find the sentencing
guidelines unconstitutional so I stated previously that it was
not that I wanted to sentence him to that amount of years. It
was because in addition to how much I would have to sentence to
the required extra amount of sentencing that is why I chose the
years. It was not my intention to sentence him to ten years at
the time." No similar evidence of commingled analysis was noted
by the Baker court. The trial court's acknowledgment in the
instant case of the inclusion of the invalid enhancement
provision in its initial sentencing analysis demonstrates that
15 1-03-2334
the 25-year term imposed in the case at bar cannot be viewed as
divisible into separate, independent parts.
Barnes' initial sentence was imposed by the trial court
under an erroneous belief that the enhancement provision declared
unconstitutional in Morgan required a 15-year increase in his
sentence. This belief was a mistake of law which rendered the
sentence entered on the charge voidable. People v. Harris, 319
Ill. App. 3d 534, 536 (2001).
However, our supreme court has held that only valid
sentences may serve as the baseline for assessment of compliance
with prohibitions against increase. In People v. Garcia, 179 Ill. 2d 55 (1997), the court reviewed a contention that a
sentence imposed after a remand was greater than that originally
entered, in violation of a statutory no-increase provision
similar to that at issue here. The Garcia court held the
defendant's original sentence to be void and therefore found the
defendant's contentions of violation of the no-increase provision
to be "inapplicable because they are premised on the erroneous
assumption that there is a valid sentence to increase." 179 Ill.
2d at 73.
Though Illinois courts distinguish the terms "void" and
"voidable" for the purposes of determining the propriety of
collateral attacks (People v. Davis, 156 Ill. 2d 149, 155-56
(1993)), that distinction does not bear upon on the issues raised
by the instant case, since Barnes' original sentence was properly
16 1-03-2334
vacated upon his motion for resentencing. We conclude that the
supreme court's rejection of invalid sentences as comparison
baselines for no-increase provisions applies with equal force to
both properly vacated voidable sentences and the void sentences
at issue in Garcia and in People v. Arna, 168 Ill. 2d 107, 112-13
(1995). We accordingly hold that the imposition of a 17-year
prison term on resentencing of the attempted murder charge was
not an impermissible violation of the prohibition against
sentence increases.
Ineffective Assistance Claims After trial, Barnes advised the court that he did not feel
that he had "a fair chance" at trial; that he had asked his
attorney for transcripts that he did not receive and that his
requests for interviews of witnesses who could have testified
that he was not at the crime scene at the time of the shooting
were not heeded. As noted previously, the trial court, without
further analysis, responded: "Well, Keith, you've touched upon
several things. One thing you mentioned that your lawyers didn't
investigate certain witnesses or didn't give you any transcripts.
That relationship between your lawyer is between you and your
lawyer. Nothing was ever brought to my attention during the
court that work was not being done. This is the first time that
you're saying that, and your lawyers had plenty of time to
prepare the case, and nothing was ever said previous to that.
17 1-03-2334
So, that has to do with legal strategy, and that was between you
and your lawyers, and I don't have anything to do with that."
Barnes contends that the court should have inquired further into
his claims. We agree.
In People v. Moore, 207 Ill. 2d 68 (2003), our supreme court
made clear that a defendant's pro se claims of ineffective
assistance of counsel following trial must receive at least some
investigation. "[W]hen a defendant presents a pro se posttrial
claim of ineffective assistance of counsel, the trial court
should first examine the factual basis of the defendant's claim.
If the trial court determines that the claim lacks merit or
pertains only to matters of trial strategy, then the court need
not appoint new counsel and may deny the pro se motion. However,
if the allegations show possible neglect of the case, new counsel
should be appointed." 207 Ill. 2d at 77-78.
The court continued: "The operative concern for the
reviewing court is whether the trial court conducted an adequate
inquiry into the defendant's pro se allegations of ineffective
assistance of counsel. People v. Johnson, 159 Ill. 2d 97, 125 (1994). During this evaluation, some interchange between the
trial court and trial counsel regarding the facts and
circumstances surrounding the allegedly ineffective
representation is permissible and usually necessary in assessing
what further action, if any, is warranted on a defendant's
claim." Moore, 207 Ill. 2d at 78. Illinois courts have also
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made clear that this claim need not be written to require such
inquiry. People v. Williams, 224 Ill. App. 3d 517, 524 (1992).
In the instant case, Barnes claimed that, to no avail, he
had asked to review transcripts and had advised his counsel of
witnesses who could have proved that he was not at the scene of
the crime. Without inquiry into the substance of these
allegations, the trial court presumed them to be matters of trial
strategy and summarily rejected them. We do not believe that
this brief conclusory review satisfies the requirement for
factual assessment described by the Moore court. We believe that
before dismissing Barnes' claims, the court must conduct some
inquiry into their specifics: what transcripts Barnes requested
but did not receive, and the identities of the claimed alibi
witnesses, the substance of their proposed testimony, and the
extent to which Barnes' counsel was made aware of and acted upon
any knowledge of their existence. Accordingly, we remand the
cause for a preliminary inquiry into Barnes' ineffective
assistance claims.
CONCLUSION
For the foregoing reasons, we affirm the convictions and
sentences imposed by the circuit court of Cook County. We remand
the cause to that court for further inquiry into the defendant's
claims of ineffective assistance of counsel.
Affirmed and remanded.
FITZGERALD-SMITH and O'MALLEY, JJ., concur.