Opinion
1-19-0404
03-31-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY L. ANDERSON, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 14 CR 15488 Honorable Geraldine D'Souza, Judge, presiding.
JUSTICE ROCHFORD delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.
ORDER
ROCHFORD, JUSTICE
¶ 1 Held: Defendant's conviction for attempted murder is affirmed where the State proved he had the specific intent to kill the victim and his motion for new trial based on newly discovered evidence was not erroneously denied.
¶ 2 Following a bench trial, defendant Anthony L. Anderson was found guilty of attempted first degree murder, aggravated battery, and aggravated discharge of a firearm. The court merged the counts into the count for attempted first degree murder and sentenced defendant to 32 years' imprisonment. On appeal, defendant argues that the State failed to establish his specific intent to kill the victim and, therefore, did not prove him guilty of attempted murder. He also contends that the court erred in denying his motion for new trial based on newly discovered evidence of actual innocence. For the following reasons, we affirm.
¶ 3 Defendant was charged by indictment with multiple offenses based on an incident which occurred on August 2, 2014. The State proceeded on one count of attempted first degree murder, three counts of aggravated criminal sexual assault, one count of aggravated kidnapping, one count of aggravated battery, and one count of aggravated discharge of a firearm.
¶ 4 Relevant here, the count for attempted first degree murder alleged that defendant, without lawful justification and with intent to kill, shot B.N. with a firearm, which constituted a substantial step towards first degree murder, and during the offense, personally discharged a firearm that proximately caused great bodily harm to B.N. See 720 ILCS 5/8-4(a), 9-1 (a)(1) (West 2014).
We use B.N.'s initials to protect her privacy because the testimony described sexual conduct against her. See People v. Munoz-Salgado, 2016 IL App (2d) 140325, ¶ 1 n.1.
¶ 5 At trial, B.N. testified that she was on probation for criminal damage to government property. On August 2, 2014, she lived in Country Club Hills, Illinois, as did defendant, her friend since childhood, whom she identified in court and knew as "Awol." Early that morning, she was at a neighbor's house drinking alcohol. Defendant texted and called her, and they planned to meet with another neighbor, Darelle Young. B.N. picked up defendant, then Young. She parked at a Girl Scouts center and drank tequila while defendant and Young smoked marijuana.
Darelle Young's name is spelled various ways in the record. We adopt the spelling he provided at the hearing on defendant's motion for new trial.
¶ 6 B.N. eventually took Young home and then drove with defendant directly to Fawn Ridge Park. Defendant said, "So are we going to f***?" B.N. refused. Defendant did not respond, but lowered his pants, exposed his penis, and pushed B.N.'s head into his lap three or four times. B.N. pulled away, but her lips contacted defendant's penis.
¶ 7 Defendant then raised his pants, drew a black firearm, and placed it on his lap, pointed at B.N. Defendant said," [S]ince you are acting drunk and acting like you don't want to do this, then take *** me home, b***." Instead, B.N. drove towards the police station. Defendant lifted the firearm and pointed it towards B.N.'s face. She placed her left hand over the right side of her face; defendant fired and B.N. felt pain in her left hand. Then, defendant shot her in the chest. Defendant lowered the window, climbed outside, and ran. B.N. did not see what happened to the firearm.
¶ 8 While in and out of consciousness, B.N. accidentally called her friend Tamera and then dialed 911. She could not remember her conversation with the dispatcher. The State published a recording of the call; in it, B.N. could not tell the dispatcher her exact location.
¶ 9 B.N. was transported by ambulance to Christ Hospital, where she learned that a bullet entered the right side of her chest, exited her left breast, entered her left arm toward the brachial artery, and exited through the back of her left arm. She had surgery on her left arm to repair a torn major artery and received stitches for the bullet wound to her left hand. Due to the gunshot wound to her hand, she could no longer extend her left ring and pinky fingers.
¶ 10 B.N. identified text messages and call logs from her cell phone. In the texts, defendant asked if he can "come over again?" and B.N. replies that they could "chill" in her vehicle. The texts and calls occurred before B.N. picked up defendant. There was also a call to Tamera at 4:36 a.m., and one to 911 at 4:39 a.m.
¶ 11 On cross-examination, B.N. testified that she picked up defendant around 3 a.m. That night, starting about an hour before she left her friend's house, she drank approximately 2½ cups of tequila. She did not own a firearm, know what type of firearm defendant had, or know much about firearms.
¶ 12 Defense counsel showed B.N. photographs from her Instagram account wherein she identified herself holding a handgun. She did not know the type of handgun, denied personally posting one of the photographs, which bore the caption, "Fofo, it will leave ya casket closed," and denied knowing what that phrase meant.
These exhibits are not included in the record on appeal.
¶ 13 On redirect examination, B.N. denied having a sexual relationship with defendant or entering a store to buy lubricant while defendant waited in her vehicle.
¶ 14 Country Club Hills police sergeant Wilson testified that he responded to a reported shooting around 4:45 a.m. on August 2, 2014, and observed B.N. in the driver's seat of a vehicle with a gunshot wound to her chest. B.N. stated that defendant shot her. Wilson knew that defendant, whom he identified in court, used the nickname "Awol." Wilson asked, "Awol?" and B.N. replied, "Yes." Wilson asked B.N. why defendant shot her and she responded, "Raped."
Sergeant Wilson's first name does not appear in the report of proceedings.
¶ 15 Cook County Sheriff's Police investigator Tom Shader testified that around 9 a.m. on August 2, 2014, he and his partner arrived at the scene and observed a vehicle with the driver's compartment covered in blood. The investigators photographed a .40-caliber shell casing under the front passenger's seat and a .40-caliber spent projectile in the grass outside the driver's door. They administered "trace tapes" to collect DNA evidence from the front passenger seat, and recovered a latent fingerprint from the front passenger seatbelt buckle.
¶ 16 On cross-examination, Shader testified that he did not observe bullet holes on the vehicle. The projectile recovered outside the vehicle matched the shell casing recovered inside the vehicle. According to Shader, bullets may "drop off after going through something."
¶ 17 Country Club Hills police detective Demere Terry testified that on August 2, 2014, she went to Christ Hospital, where B.N. reported that "Awol" shot her. Terry generated a photo array wherein B.N. identified defendant. Terry found defendant and transported him to the police station.
¶ 18 At the station, Terry administered a gunshot residue (GSR) test to defendant and he allowed police to search his cell phone. The State entered a text message from defendant's phone dated August 2, 2014, reading, "I'm broke. I had to buy some bullets." The response read, "Aw well, s*** I'm fixin to see bro. I got you[.] It's hella people."
¶ 19 On cross-examination, Terry stated that "fofo" is slang for "firearm," but she had never heard marijuana referred to as a "bullet." During her investigation, Terry learned that a friend of B.N. named Tamera approached officers who responded to the scene.
¶ 20 The State entered the stipulated testimony of four forensic scientists. Jamie Bartolotta, Heather Wright, and Lauren Wicevic would testify that they received the tapings and a latent print lift, but no evidence was suitable for comparison. Robert Berk would testify that he received a GSR kit containing adhesive lifts from defendant's hands and room air control. GSR may be dislodged from a surface with normal activity; after six hours, a GSR test may be negative even when the subject discharged a firearm. Wiping or washing the hands after discharging a firearm may remove PGSR particles. Based on the test, defendant may not have discharged a firearm.
¶ 21 Defendant testified that he knew B.N. for 10 years. B.N. always liked him, and they began a sexual relationship as teenagers. On August 2, 2014, he had a girlfriend and was not involved with B.N. Between 1 and 3 a.m. that morning, B.N. texted him asking to hang out. She and Young picked up defendant, who noticed that B.N. was drunk. They drove to the "Girl Scout place," where they all smoked and B.N. drank.
¶ 22 At some point, B.N. and defendant dropped off Young. Then, sometime after 3 a.m., B.N. and defendant drove to a gas station and a Walmart. While B.N. was in a store, defendant called her and asked her to drive him home. Instead, B.N. drove to Fawn Ridge Park and asked defendant to commit a robbery. Defendant refused, but B.N. said it would be easy if she "up[ped]" her firearm. Defendant again refused, and B.N. became angry.
¶ 23 Defendant asked B.N. to take him home, but she drove in the wrong direction. When B.N. stopped at a light, she said, "So since you don't want to help me," drew a firearm from the left side of the vehicle with her left hand, and pointed it at defendant. He "feared for [his] life," so he pushed the firearm toward B.N. and it discharged. He did not see where the bullet went. The vehicle door was locked, so he climbed through the window and went home. He did not wash his hands, shower, or wash his clothes. He later awoke to police knocking on his door.
¶ 24 Defendant denied owning a handgun or carrying one that morning. He stated that his text message about "bullets" referred to rolling paper for marijuana, and asserted that" [n]othing sexual happened" between him and B.N.
¶ 25 On cross-examination, defendant testified that he initially told detectives that he saw B.N. drinking and smoking with other people between 7 and 8 p.m., and that she tried to shoot him; he denied stating that he arrived home between 1 and 2 a.m. Defendant acknowledged lying to the police because he was "scared," and did not tell them that B.N. asked him to commit a robbery.
¶ 26 The following day, defendant was interviewed by an assistant State's Attorney (ASA) and Detective Terry. Defendant told them that he was in a vehicle with B.N. and she pointed a firearm at him. He denied stating that B.N. tried to kidnap him, that she tried to force him to have sex with her, that he grabbed the firearm and tried to leave, and that he fired the weapon once in the vehicle and once outside the vehicle. He did not state that B.N. wanted him to commit a robbery, but he reported that B.N. stopped at a gas station and Walmart. On redirect examination, defendant denied exposing his penis or forcing B.N.'s head down to "orally copulate" him.
¶ 27 In rebuttal, the State recalled Terry, who testified that during interviews on August 2, 2014, defendant stated he saw B.N. smoking with other people and went home at 1 or 2 a.m. Defendant did not state that he had been in B.N.'s vehicle or that she drew a firearm when he refused to commit a robbery.
¶ 28 During another interview the next day, defendant stated that while he was with B.N. in her vehicle, she drew a firearm and tried to kidnap him and force him to have sex. He grabbed the weapon, fired it, climbed through the window, shot a second time from outside the vehicle, dropped the weapon, and fled. Defendant did not state that B.N. asked him to commit a robbery and became angry when he refused, or that B.N. drove to a gas station or Walmart.
¶ 29 The trial court found defendant guilty of attempted first degree murder, aggravated battery, and aggravated discharge of a firearm, and acquitted him of the other charges. According to the court, B.N.'s testimony was "very credible," and the Instagram photographs were not impeaching because they did not establish that she owned a firearm or knew about different types of firearms. Further, she denied writing the corresponding caption, and there was no evidence to the contrary. Defendant's testimony that B.N. was the aggressor did not "make sense," as he claimed she brandished the firearm with her left hand but she suffered separate wounds to her left hand and right chest. Nor did it make sense to the court that the firearm discharged merely from defendant pushing it away in the manner he described.
¶ 30 The court understood "someone being scared of the police," but questioned why defendant told detectives that B.N. wanted sex yet testified at trial that she wanted him to commit a robbery. The court further questioned why an aggressor would drive toward the police station. B.N.'s 911 call corroborated that "she was not the one in control" of the events preceding the shooting because she could not describe her exact location although she was "possibly losing her life." Further, the fact that a bullet was found outside the vehicle did not contradict B.N.'s testimony about where the firearm discharged because Shader testified that bullets may dislodge after striking an object.
¶ 31 Defendant filed an amended motion for new trial asserting, in relevant part, that he was actually innocent based upon newly discovered evidence: an affidavit that Young provided after trial. Young averred that B.N. picked him up before defendant, and while Young and B.N. were alone, B.N. brandished a silver handgun and spoke about committing a robbery. Defendant contended that Young's affidavit contradicted B.N.'s testimony and undermined her credibility.
The copy of Young's affidavit contained in the record on appeal is neither signed nor dated.
¶ 32 On the day of the hearing, defendant filed a second amended motion for a new trial. According to defense counsel, the second amended motion was "essentially the same" but included a new, notarized version of Young's affidavit that omitted his allegations regarding the color of the firearm and B.N.'s statement about a robbery. Neither the second amended motion nor new affidavit is included in the record on appeal.
¶ 33 Defendant called Young, who testified that on August 2, 2014, between 1:32 and 2:30 a.m., he smoked in a vehicle with B.N. and defendant. Defense counsel asked if Young "picked those individuals up or did they pick you up," and he responded, "They picked me up." He then clarified that B.N. picked him up before picking up defendant. Afterwards, they drank and got high, and B.N. "showed her little gun." The following colloquy occurred:
"Q. At what point did [B.N.] show you the gun?
A. Probably before we picked up Anthony, probably.
Q. You're not sure?
A. I am not sure."
¶ 34 Young could not recall the firearm's appearance. B.N. put the firearm away and they all continued to drink and smoke before B.N. dropped off Young.
¶ 35 On cross-examination, Young testified that he knew defendant had been arrested for shooting B.N. After the incident, Young moved several times within Illinois. He denied speaking to defendant about the case, but knew what was happening because defendant's family contacted him. Defense counsel contacted Young once, but he never received a subpoena. Terry also contacted Young, but he did not want to participate in the investigation.
¶ 36 On redirect examination, Young testified that he made himself available after defendant's trial because he knew defendant and "wouldn't want to see this happen to him at the end of the day." Both defendant and B.N. were Young's friends, but only defendant was a "close friend."
¶ 37 The trial court denied defendant's motion for a new trial, finding that Young's evidence was not newly discovered because he was known before trial, and was immaterial and cumulative because B.N. and defendant were alone during the shooting. Further, Young contradicted himself by initially testifying that B.N. and defendant picked him up, but then testifying that B.N. picked him up alone. Young also testified that B.N. showed the firearm while defendant was present, but then said he did not know when she displayed the firearm. The court concluded that Young's testimony was "rambling and incredibly inarticulate," and would not change the result on retrial. Additionally, B.N. denied knowing about or owning a firearm, and even if she possessed one that day, it would not contradict her testimony because she was not asked that specific question at trial.
¶ 38 Following a sentencing hearing, the court merged the counts for aggravated battery and aggravated discharge of a firearm into the count for attempted first degree murder and imposed a sentence of 32 years' imprisonment. The record does not indicate defendant filed a post sentencing motion.
¶ 39 On appeal, defendant first argues that the State failed to prove him guilty of attempted murder because it did not establish that he had the specific intent to kill B.N., his longtime friend, where the incident stemmed from a misunderstanding and he left the scene without killing her.
¶ 40 On a challenge to the sufficiency of the evidence, the standard of review is whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. People v. Hardman, 2017 IL 121453, ¶ 37. "This standard of review does not allow the reviewing court to substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses." People v. Jackson, 232 Ill.2d 246, 280-81 (2009). Rather, the trier of fact must decide the witnesses' credibility and the weight of their testimony, resolve conflicts in the evidence, and draw reasonable inferences therefrom. People v. Brooks, 187 Ill.2d 91, 132 (1999). "A reviewing court will not reverse a conviction unless the evidence is unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant's guilt." (Internal quotation marks omitted.) Jackson, 232 Ill.2d at 281.
¶ 41 As charged, a person commits attempted first degree murder when, with the intent to kill the victim, he takes a substantial step towards the offense. 720 ILCS 5/8-4(a), 9-1 (a)(1) (West 2014); see also People v. Thompson, 2020 IL App (1st) 171265, ¶¶ 35, 75. "Proof of a specific intent to kill is a necessary element of the offense." People v. Vega, 2018 IL App (1st) 160619, ¶ 41. Because the specific intent to kill is "a state of mind, it is rarely proven through direct evidence." (Internal quotation marks omitted.) Id. Instead, it is usually inferred from the circumstances. Thompson, 2020 IL App (1st) 171265, ¶ 75. These include the character of the assault, the use of a deadly weapon, and the nature and extent of the victim's injuries. Id.
¶ 42 Discharging a firearm at someone supports the conclusion that the shooter intended to kill. Id. ¶ 76; see also, e.g., People v. Garcia, 407 Ill.App.3d 195, 201-02 (2011) (the defendant fired two bullets toward an occupied vehicle on a crowded street); People v. Green, 339 Ill.App.3d 443, 451-52 (2003) (the defendant fired four or five times toward officers in a vehicle); People v. Bailey, 265 Ill.App.3d 262, 273 (1994) (the defendant shot at a breezeway where several people were running). Whether a specific intent to kill exists is a question for the factfinder. Vega, 2018 IL App (1st) 160619, ¶ 41.
¶ 43 Viewing the evidence in the light most favorable to the State, a rational trier of fact could conclude that defendant intended to kill B.N. At trial, B.N. testified that defendant aggressively pursued sexual activity with her, and when she refused, he placed a firearm in his lap and pointed it at her. When B.N. began driving towards the police station, he aimed the firearm at her face. She placed her left hand over the right side of her face, and defendant shot her in the hand and chest before fleeing.
¶ 44 This court has found sufficient evidence of intent to kill when a defendant discharged a firearm at a victim from 40 feet away. People v. Teague, 2013 IL App (1st) 110349, ¶¶ 25, 27. Here, defendant shot B.N. at close range inside a vehicle. Moreover, "[t]he very fact of firing a gun at a person supports the conclusion that the person doing so acted with intent to kill." (Internal quotation marks omitted.) People v. Ephraim, 323 Ill.App.3d 1097, 1110 (2001). Defendant fired at B.N.'s face and chest, and the act of shooting in a manner "the direct and natural tendency of which is to destroy another's life" evidences an intent to kill. (Internal quotation marks omitted) Id. In sum, where B.N. testified that defendant twice shot her at close range, once toward her face and once in her chest, the trial court could reasonably infer he intended to kill her. See People v. Siguenza-Brito, 235 Ill.2d 213, 228 (2009) ("the testimony of a single witness, if positive and credible, is sufficient to convict, even though it is contradicted by the defendant").
¶ 45 Defendant nevertheless asserts that the fact that the firearm was discharged in B.N.'s direction is not dispositive of intent where he did not state that he wanted to kill B.N., a longtime friend, and the situation stemmed from a "misunderstanding."
¶ 46 Although no evidence showed that defendant verbally threatened B.N., she testified that after she rejected defendant's sexual advances, he repeatedly forced her head down towards his exposed penis. When she freed herself, he placed a firearm in his lap and pointed it at her. This evidence suggests that defendant threatened B.N. Additionally, when defendant saw that B.N. was not driving where he instructed, he raised his firearm and discharged it toward her. After shooting her once, hitting the hand she used to protect her face, he fired another shot at her chest. He then fed without calling for help. These circumstances, taken together, support the inference that defendant had the specific intent to kill B.N. See Ephraim, 323 Ill.App.3d at 1110.
¶ 47 Citing People v. Mitchell, 105 Ill.2d 1 (1984), defendant asserts that the State failed to meet its burden because he did not kill B.N. although nothing prevented him from doing so. In Mitchell, the defendant beat her infant daughter over two days, causing the child to have a seizure and lose consciousness. Mitchell, 105 Ill.2d at 6-8. Afterwards, the defendant placed a cool cloth on the child's head. Id. When the child did not respond, the defendant took her to the hospital. Id. Our supreme court found that the evidence did not establish that the defendant possessed the intent to kill, as she had "ample opportunity" to complete the crime but nonetheless attempted to care for the child. Id. at 10.
¶ 48 Here, unlike in Mitchell, defendant did not aid B.N. after twice shooting at her. Instead, he ran home and went to sleep. "[A] abandonment of the intent to kill, once the elements of attempted murder are complete, is no defense to the crime." Id. at 10. Consequently, a rational trier of fact could find that defendant intended to kill B.N. and was proven guilty beyond a reasonable doubt.
¶ 49 Defendant next argues that his motion for a new trial based on newly discovered evidence was erroneously denied where the court stated that it did not find Young credible, rather than determine whether any reasonable trier of fact could have found him credible. Defendant further asserts that the trial court incorrectly recalled Young's testimony by finding that he testified inconsistently as to when B.N. showed him the firearm.
¶ 50 Motions for a new trial based upon newly discovered evidence are disfavored and receive close scrutiny "in order to prevent fraud which parties may be tempted to use as a last resort to avoid an adverse verdict." (Internal quotation marks omitted.) People v. Moleterno, 254 Ill.App.3d 615, 624 (1993). New discovered evidence warrants a new trial when:
"(1) it has been discovered since the trial; (2) it is of such a character that it could not have been discovered prior to the trial by the exercise of due diligence; (3) it is material to the issue and not merely cumulative; and (4) it is of such a conclusive character that it will probably change the result on retrial." People v. Gabriel, 398 Ill.App.3d 332, 350 (2010).
¶ 51 The denial of a motion for a new trial based on newly discovered evidence will not be disturbed on appeal absent an abuse of discretion, which "occurs when a trial court's decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted by the court. People v. Williams, 2020 IL App (1st) 172118, ¶ 33.
¶ 52 In this case, the trial court denied defendant's motion for a new trial based on several factors. The court found that Young's evidence was not newly discovered because he was known before trial, and even if it were newly discovered, it was immaterial and "merely cumulative" because B.N. and defendant were alone when the shooting occurred. B.N. denied knowing about firearms or owning a firearm, and even if she possessed a firearm that day, it would not contradict her testimony because she was not asked that specific question at trial. Further, Young's testimony was "rambling and incredibly inarticulate," and would not change the result on retrial.
¶ 53 We find that the trial court did not abuse its discretion in denying defendant's motion as the presented evidence was not newly discovered.
¶ 54 As noted, evidence discovered after trial is "newly discovered" if it could not have been discovered earlier through due diligence. Gabriel, 398 Ill.App.3d at 350. Here, defendant's testimony established that he knew of Young's connection to the incident before trial, and Young testified at the hearing on defendant's posttrial motion that the defense attempted to contact him. Young moved following the incident, but remained in Illinois and members of defendant's family contacted him. Young's evidence, therefore, was not newly discovered. Under these circumstances, the trial court's determination was not arbitrary, fanciful, or unreasonable. See In re Julie M., 2021 IL 125768, ¶ 75 (the reviewing court "may affirm on any basis presented in the record"); see also Pritchett v. Steinker Trucking Co., 40 Ill.2d 510, 512 (1968) (lack of due diligence is a "primary requisite to the allowance of a motion for a new trial on ground of newly discovered evidence").
¶ 55 In so holding, we reject defendant's reliance on People v. Molstad, 101 Ill.2d 128 (1984), for the proposition that Young's evidence could not have been discovered prior to trial because Young did not provide the affidavit until after the trial.
¶ 56 In Molstad, the defendant was convicted of aggravated battery and criminal damage to property following a trial alongside five codefendants. Molstad, 101 Ill.2d at 130-31. The defendant testified that he was not present during the offense and his parents corroborated his testimony, but none of his codefendants testified. Id. at 132. The defense filed a posttrial motion to reopen the case or for a new trial, providing affidavits from the codefendants averring that the defendant was not present. Id. The supreme court found that the evidence in the affidavits was newly discovered because "no amount of diligence could have forced the codefendants to violate their fifth amendment right to avoid self-incrimination." Id. at 135.
¶ 57 Molstad is inapposite because Young could not invoke the fifth amendment. See People v. Martinez, 2021 IL App (1st) 190490, ¶ 70 ("A witness may invoke the fifth amendment privilege against self-incrimination in any proceeding, criminal or civil, in which he reasonably believes that the information sought could be used against him later at a criminal proceeding."). As nothing in Young's evidence suggests that he had a reasonable belief that his account would be used against him in a criminal proceeding, the defense could have subpoenaed him to testify at trial. Consequently, Young's evidence did not qualify as newly discovered and the trial court did not err in denying defendant's posttrial motion.
¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 59 Affirmed.