2021 IL App (1st) 182372-U No. 1-18-2372 September 14, 2021 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 7168 ) TONY BRAWLEY, ) Honorable ) Vincent M. Gaughan Defendant-Appellant. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment. ORDER ¶1 Held: Defendant’s conviction for second degree murder is affirmed because a reasonable factfinder could conclude he did not act in defense of another. Defendant’s sentence is not excessive where it is within the statutory range and defendant does not show that the court failed to consider mitigating evidence and his rehabilitative potential. No. 1-18-2372 ¶2 Following a bench trial, defendant Tony Brawley was found guilty of second degree murder (720 ILCS 5/9-2(a)(2) (West 2016)) and sentenced to 11 years’ imprisonment. ^[1] Defendant argues on appeal that the State failed to prove beyond a reasonable doubt that he was not justified in acting in defense of another. Defendant further argues that his sentence is excessive because the trial court failed to adequately consider mitigating evidence and his rehabilitative potential. We affirm. ¶3 Defendant was charged by indictment with six counts of first degree murder (720 ILCS 5/9-1(a) (West 2016)) for shooting and killing Sergio Zaragoza. The State nol-prossed counts I- IV. Count V charged defendant with intentionally or knowingly shooting and killing Zaragoza (720 ILCS 5/9-1(a)(1) (West 2016)) and count VI charged defendant with shooting and killing Zaragoza knowing that his conduct created a strong probability of death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 2016)). ¶4 Before trial, defendant raised the affirmative defenses of self-defense and defense of others. Defendant also filed a motion in limine, pursuant to People v. Lynch, 104 Ill. 2d 194 (1984), to introduce evidence of prior violent acts by Zaragoza and another individual present during the incident, Luis Cruz. Following a hearing, the court granted defendant’s motion as to three prior instances for Zaragoza and three prior instances for Cruz. ¶5 Neil Chamness testified that, around 1 p.m. on September 11, 2016, he went with his wife and three-year-old son to the home of Gabriel Moskolis on the 1600 block of North Karlov Street, in Chicago, for a barbecue and to watch a football game. Chamness, his wife, and some other

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No. 1-18-2372 attendees sat on the front porch. On Chamness’s left sat a man wearing dark jean shorts and a blue

T-shirt.

¶6 Around 3:07 p.m., two men approached the home. They entered the front gate, and one threw a punch at a woman sitting on the porch stairs. Chamness did not see if the punch connected.

The man who had been sitting on Chamness’s left then descended the stairs, drew a firearm, and fired one shot, hitting the man who threw the punch. After firing the shot, the man ran up the stairs

and through Moskolis’s apartment on the first floor. Chamness took his wife and son into the bathroom in Moskolis’s apartment in case other people began shooting. The three then exited the bathroom, heard sirens, and returned to their home nearby. On the way, Chamness told a police officer what he had seen. The court asked whether anyone else at the party or the two individuals who approached the house had weapons, and Chamness denied that he saw any other weapons at the barbecue.

¶7 On September 18, 2016, Chamness met with police officers and viewed a photograph lineup. At trial, Chamness identified People’s Exhibit Nos. 4 and 5 as the advisory form he signed and the photo array he viewed. Chamness identified the person in the top middle photograph as the shooter, and identified that person in court as defendant. Chamness had never previously met defendant or the person he shot.

¶8 On cross-examination, Chamness testified that approximately four or five men, five or six women, and some children were in the front yard of the house when he arrived. The front yard was

enclosed by a wrought iron fence. Chamness denied that he saw anyone in the yard “signal” to the two men who entered the front gate, but agreed that he heard someone “comment” to them.

Chamness did not know the woman sitting on the steps, and she did not speak or make any

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No. 1-18-2372 movement toward the man who tried to punch her. Chamness could not tell whether the man made

contact with the woman, but she fell back. Defendant then descended the steps and confronted the man who swung at the woman. After the shooting, when Chamness left the apartment, he saw the man who had been shot lying on the ground and bleeding. He did not see the other man who had been with him and did not know where that man went.

¶9 Defense counsel asked if Chamness told the officer that he saw the man take two swings at the woman, and Chamness responded that he recalled one punch, but perhaps he recalled two punches when he spoke with the officer. Chamness did not know if the officer took notes.

¶ 10 On redirect examination, Chamness agreed that the woman fell back when the man swung his fist at her, but Chamness did not remember her falling to the ground. Chamness did not hear any more shots after he entered the apartment, or see anyone with a weapon when he left.

¶ 11 Chicago police detective Joseph Marszalec, who administered the photo array to

Chamness, testified that Chamness identified defendant as the shooter, and identified People’s

Exhibit Nos. 4 and 5 as the advisory form and photo array he showed Chamness.

¶ 12 Moskolis testified that, on September 11, 2016, he lived on the first floor of a two-flat

apartment building on the 1600 block of Karlov. A person named Israel lived in the second-floor apartment with his wife or girlfriend and two children. On September 11, 2016, Moskolis and Israel hosted a barbecue for a football game. People began gathering on the porch and in the gated front yard between 11 a.m. and noon. Chamness’s family were the only people Moskolis knew.

¶ 13 Moskolis spent most of the barbecue inside his apartment watching the game. He could see

out the front windows. Israel and defendant, whom Moskolis had never previously met and identified in court, entered Moskolis’s apartment to use the restroom. Defendant returned outside, 182375

No. 1-18-2372 and Moskolis could see him on the porch through the windows. Chamness, his wife, and his son spent most of the barbecue on the front porch.

¶ 14 Around 3:07 p.m., Moskolis was in his apartment and heard what sounded like one gunshot, screaming, and yelling. The gunshot came from right outside the open front window.

Moskolis ran to the windows to see what happened. Defendant entered through the front door and proceeded down the hallway; Moskolis assumed he exited through the back door. Chamness and his wife and son then entered the apartment and went into the restroom. Moskolis locked all the doors to the house. Moskolis did not see defendant when he locked the back door, and never saw defendant again. Chamness and his wife told Moskolis what happened and left. Police officers arrived, and Moskolis spoke with them.

¶ 15 On September 24, 2016, Moskolis spoke with a detective, who showed Moskolis a photograph lineup. Moskolis identified the advisory form and accompanying lineup as People’s

Exhibit Nos. 6 and 7. Moskolis circled defendant’s photo and told the detective that defendant

entered the apartment to use the restroom, and after Moskolis heard the gunshot, re-entered the apartment and, Moskolis believed, exited through the back.

¶ 16 On cross-examination, Moskolis testified that the front yard was surrounded by a wrought iron fence separating it from the sidewalk. Moskolis did not see defendant with a weapon when defendant entered Moskolis’s apartment to use the restroom or after the shooting when defendant ran through the apartment.

¶ 17 The State entered a stipulation that the detective who administered the photograph lineup to Moskolis would identify People’s Exhibit Nos. 6 and 7 as the advisory form and photo array, 182376

No. 1-18-2372 and testify that Moskolis identified the person in position number four as the person who ran through his apartment after the shooting.

¶ 18 Andrew Lepkowski, a paramedic with the Chicago Fire Department, testified that he was dispatched to a call of a gunshot wound at approximately 3:09 p.m. on September 11, 2016. He

arrived at the home approximately two minutes later. An adult male was lying on his back on the sidewalk surrounded by 15 to 20 people. The scene was “chaotic,” with people yelling, screaming, arguing, and possibly touching the victim.

¶ 19 Lepkowski approached the man, whom he later learned was Zaragoza. Zaragoza had a single gunshot wound on the left side of his chest. In the ambulance, Lepkowski noticed an exit wound below Zaragoza’s left shoulder blade. The paramedics took Zaragoza to a hospital.

Lepkowski did not notice any weapons around Zaragoza while on the scene or recover any weapons from his body.

¶ 20 On cross-examination, Lepkowski confirmed that the crowd was “rowdy” and “frantic.”

Approximately 10 or 15 people were there. Lepkowski did not recall anyone touching Zaragoza, but stated it was possible, and agreed that someone could have removed something from where

Zaragoza lay before Lepkowski arrived. On redirect examination, Lepkowski denied seeing anyone remove anything from Zaragoza.

¶ 21 Chicago police detective Ruben Weber testified that he investigated the shooting and learned that the suspected shooter was the boyfriend of Yaritza Rosario. An address associated with Rosario listed defendant as another possible resident. From a police database, Weber obtained a photograph of defendant, whom he identified in court. Weber then saw photographs of defendant and Rosario together on Facebook.

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¶ 22 On cross-examination, Weber testified that he did not interview Rosario or another individual, Erick Salgado, even though a report listed Salgado as a witness and included his address. Weber interviewed Cruz on October 1, 2016, but did not arrest him for battering Rosario or planning an attack on her.

¶ 23 The State entered a stipulation that an evidence technician would testify he arrived at the scene around 5:01 p.m. on September 11, 2016, at which time the scene had been taped off and secured, and he filmed and photographed the area. The technician recovered swabs from suspect bloodstains, then went to the hospital, photographed Zaragoza’s body, and fingerprinted him.

¶ 24 Lastly, the State entered a stipulation that Dr. Matthew Fox, an assistant Cook County

medical examiner, would testify that he examined Zaragoza’s body, did not recover a projectile, and determined that Zaragoza died of a gunshot wound to the chest and that the manner of death

was homicide. Defense counsel added that Defense Exhibit No. 1, an amended toxicology report, showed that Zaragoza’s ethanol level of the vitreous humor was 140 and his cavity blood was 107.

¶ 25 Defense counsel called Rosario, who testified that, on September 11, 2016, she and defendant had been dating for four years. Around noon that day, Rosario and defendant went to her brother Israel’s house, on Karlov, for a barbecue. Salgado lived next door and also attended the barbecue.

¶ 26 Rosario had a daughter with Isaac Rojas, also known as “Convict D.” Rojas dropped off

their daughter at the barbecue and drove away. Shortly thereafter, Rosario saw a green Blazer or “Jimmy truck” circle the block a few times. Rosario did not recognize the vehicle.

¶ 27 About an hour later, Rosario heard someone ask if she was “Convict D’s baby momma[.]”

Rosario turned and saw Zaragoza, who had asked the question, and Cruz. Rosario knew them;

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Cruz, Zaragoza, and Rojas had all been “Young Latino Organized Disciples” (YLOD), but Rojas was no longer in the gang. Rosario thought Cruz had a firearm. Defendant was approximately 10 feet away. Zaragoza then punched Rosario in the back of the head and kicked her, and she crawled up the stairs and heard a gunshot. Rosario was 5’2” and weighed 140 pounds.

¶ 28 On cross-examination, Rosario testified that she and defendant were still in a relationship at the time of trial. Defendant was close with her family and daughter. Rosario and defendant sometimes stayed together, and financially and emotionally depended on each other. Defendant and Rojas did not like one another. Defendant did not know the other members of the YLOD gang.

Rosario agreed that Rojas was “on the run” from his former gang and Zaragoza.

¶ 29 Rosario and defendant drove her vehicle from their apartment to the barbecue and parked in front. Rosario did not see defendant bring a firearm or know that he had one. Rosario drank a few beers between noon and 3 p.m., but defendant did not drink. Rosario confirmed that, while

Rojas dropped off his and Rosario’s daughter, Rojas “got into it” with defendant before leaving.

¶ 30 Rosario was walking up the stairs when she heard Zaragoza. Zaragoza was between the bottom of the stairs and the first step, and Rosario was on the second step. She turned and saw

Zaragoza already swinging. Rosario also saw Cruz a few feet away, holding a black firearm on his waistband. Cruz was on Zaragoza’s right side. Rosario grew frantic and quickly turned back around, and Zaragoza punched her in the back of the head. She fell on the stairs. Zaragoza hit her

“a couple times,” mostly in the head, and kicked her body. She tried to crawl up the stairs into the house. Defendant was on the porch, a few feet from her.

¶ 31 Rosario freed herself from Zaragoza, then heard a gunshot, but she did not look to see where it came from. She entered Moskolis’s apartment, grabbed her keys, and exited the front

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No. 1-18-2372 door. She left without speaking to anyone and left her daughter, who had run upstairs, with her brother. As she walked to her vehicle, she saw Zaragoza on the ground where he had been when he hit her.

¶ 32 Rosario went to a friend’s house. Defendant arrived a little while later. They discussed what happened, but not in detail. Rosario never saw defendant’s firearm. Rosario suffered bumps on her head and bruises but did not photograph her injuries, go to the hospital, or see a doctor. She did not wait for a paramedic after the shooting because she feared the gangs. Rosario and defendant lived together until January 2017, when defendant was arrested. Rosario learned defendant’s charges, but never spoke with the police or told them that Cruz had a firearm.

¶ 33 On redirect examination, Rosario confirmed that there was a “shoot-on-sight” for Rojas from Cruz and Zaragoza’s gang. Defendant knew about the shoot-on-sight.

¶ 34 On recross examination, Rosario testified that, because of the shoot-on-sight for Rojas, she and her daughter were in danger from other gang members when they were around Rojas, including

Cruz and Zaragoza. Rosario told defendant about the danger prior to September 11, 2016, and defendant knew that Cruz and Zaragoza were looking for Rojas. Rosario denied that she would be in less danger if Zaragoza or Cruz were killed, because there were more gang members.

¶ 35 Cruz testified that he saw Zaragoza almost every day. Cruz denied that he and Zaragoza were in the same gang, stating that he was a Latin Disciple and Zaragoza was an “SD.”

¶ 36 On September 11, 2016, Zaragoza picked up Cruz and a woman in a Chevrolet Blazer, and they drove around and drank. They drove past the home on the 1600 block of Karlov and saw people on the porch. Cruz did not know who lived there. Cruz confirmed that Zaragoza told him

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No. 1-18-2372 he did not like Rosario and Salgado, who was in the same gang as Cruz. Zaragoza wanted to stop but they left, went to the liquor store, and then picked up a woman named Laura.

¶ 37 The group returned to the house on Karlov to beat up Salgado. They parked down the street and Zaragoza and Cruz exited the vehicle, while the women remained inside.

¶ 38 When Zaragoza and Cruz arrived at the house, the gate was open. No one invited them to the barbecue or waved them over. Cruz did not see Salgado. Zaragoza hit Rosario, and Rosario’s brother got “involved.” Cruz did not know if Rosario said anything to Zaragoza before he hit her.

Rosario was standing, Zaragoza hit her one time, and Rosario did not fall backwards.

¶ 39 Cruz confirmed that, after “the incident,” he ran back to the vehicle and then returned to the scene, where an officer later placed him in a police vehicle. Cruz did not tell the officer that he arrived with Zaragoza, but did tell the officer that he was there when Zaragoza punched Rosario.

Later that day, Cruz spoke with Weber, but did not tell Weber that he arrived with Zaragoza, that

he was there when Zaragoza attacked Rosario, or that they went there to beat up Rosario or Salgado. Responding to a question from the court, Cruz confirmed that he told Weber he was walking by the yard when he heard a gunshot.

¶ 40 Cruz testified that, on February 20, 2009, Zaragoza was arrested for attempting to stop a police officer from arresting Cruz. Cruz was also with Zaragoza when Zaragoza was arrested on

July 29, 2009, but Cruz denied seeing Zaragoza throw flammable liquid at a vehicle during that incident.

¶ 41 On cross-examination, Cruz testified that neither he nor Zaragoza had a firearm when they approached the house on September 11, 2016. When Zaragoza struck Rosario, Rosario’s brother tried to hit Zaragoza but Cruz pushed him off. Cruz saw a person on the porch stand, draw a

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No. 1-18-2372 firearm, and aim at them. Cruz touched Zaragoza’s chest, told him to watch out, ducked, and exited the gate to the sidewalk. Cruz stopped when he only heard one gunshot, but did not see who was

shot or where the shooter went. Cruz returned to the Blazer, told one of the women to call the police, returned to the house, and held Zaragoza. After a few minutes, Cruz saw Salgado and they fought. Police officers arrived and separated them.

¶ 42 On redirect examination, Cruz testified that, after officers separated him and Salgado, they put Cruz in the back of a police vehicle and interviewed him. The officers did not ask Cruz to take them to the vehicle he arrived in. Officers did not impound the Blazer and Cruz did not know if they searched it.

¶ 43 Defense counsel entered a stipulation that a police officer would testify that he arrested defendant without incident at defendant’s place of employment on January 9, 2017. Defense counsel then entered certified copies of convictions for Zaragoza for robbery in 2007 and resisting a peace officer in 2009, and for Cruz for battery in 2005 and battery causing great bodily harm in 2010.

¶ 44 In rebuttal, the State called Laura Calvillo, who testified that Zaragoza and Cruz picked

her up from work at 2:57 or 2:58 p.m. on September 11, 2016. Zaragoza was her ex-boyfriend, and she had known Cruz for about a year. Another woman she had never met was also in the vehicle. Calvillo sat in the front passenger seat, and Cruz and the other woman sat in the back.

Calvillo did not see Zaragoza with a weapon.

¶ 45 Zaragoza parked near the 1600 block of Karlov, and he and Cruz exited the vehicle and said they would be right back. Within a minute, Calvillo heard “a big boom,” and Cruz returned to the vehicle and told her to call an ambulance because Zaragoza had been shot. Calvillo called

- 11 - No. 1-18-2372 911, then exited the vehicle, ran to Zaragoza, and held his hand. Based on Calvillo’s indications in the courtroom, the State noted that the vehicle was approximately 30 feet from Zaragoza. Calvillo did not know what Cruz did while she held Zaragoza. Calvillo never saw Cruz with a firearm, and did not see a firearm on Zaragoza’s person or the ground around him. ¶ 46 On cross-examination, Calvillo testified that she had known Zaragoza for about three years. Calvillo had been friends with Zaragoza’s sister for 12 years and called her when she learned Zaragoza was shot. Calvillo never saw Cruz lift his shirt, reach for his waistband, or hold a firearm. Calvillo was “in shock” when Cruz returned to the vehicle and told her what happened, and focused on getting Zaragoza help. ¶ 47 Following closing argument, the trial court found that the State proved the elements of first degree murder, but that defendant acted with an unreasonable belief that he was acting in defense of others, and therefore found defendant guilty of two counts of second degree murder. ¶ 48 Defendant filed a motion to reconsider or for a new trial, arguing in relevant part that the court erred in finding that defendant’s belief his conduct was necessary to defend Rosario was unreasonable. The court denied the motion. ¶ 49 Defendant’s presentence investigation report (PSI) showed that he was 39 years old on the date of the offense, was formerly involved with the Latin Kings gang, and had convictions in 1994 for murder, attempt murder, and aggravated battery with a firearm, and in 2012 for being a felon in possession of a firearm. Defendant was raised by his mother, was expelled after one month of high school when he was arrested and incarcerated, and earned a GED and 51 college credits while incarcerated. Defendant was employed at Tempel Steel from 2014 until his arrest for the instant offense. - 12 - No. 1-18-2372 ¶ 50 At the sentencing hearing, the State entered victim impact statements from Zaragoza’s brother and sister. The State also called Samantha Rodriguez, who testified that Zaragoza was her boyfriend and the father of her three children. Rodriguez read her victim impact statement, in which she called Zaragoza’s death emotionally scarring and a “devastating experience” for her family, and stated that two of her children were attending therapy and struggling with the loss of their father. ¶ 51 Defense counsel entered letters from defendant’s ex-girlfriend, cousin, and employer. Defendant’s ex-girlfriend wrote that her son viewed defendant as a father figure. The letter from defendant’s employer, Tempel Steel, indicated that defendant had worked there from November 2014 through January 2017, and received promotions in 2015 and 2016. Defendant’s cousin wrote that, after defendant completed a 16-year term of incarceration that began when he was a teenager, he planned family events, raised another of their cousin’s sons when the mother was imprisoned, enjoyed work, and kept gangs out of their grandmother’s neighborhood. ¶ 52 In aggravation, the State argued that defendant’s conduct caused serious harm and defendant’s convictions for murder and for being a felon in possession of a firearm showed an inability to abide by society’s rules. According to the State, it was necessary to deter others from committing similar crimes. In mitigation, defense counsel argued that Zaragoza and Cruz were the initial aggressors, defendant believed his conduct was necessary to stop the attack on Rosario, his prior murder conviction should be given less weight because he was 15 years old at the time, defendant gained his GED and college credits while incarcerated, and he was twice promoted quickly at work. - 13 - No. 1-18-2372 ¶ 53 The court described the events as “a tragedy,” noting that Zaragoza’s children were left without a father, his family was suffering, and defendant’s family was also losing someone. The court announced it would consider the factors in aggravation and mitigation, the facts of the case, the victim impact statements, defendant’s chances for rehabilitation, and the letters submitted on defendant’s behalf, and balance that evidence against what was best for society. ¶ 54 The court sentenced defendant to 11 years’ imprisonment, but immediately vacated the sentence and allowed defendant the opportunity to speak in allocution. Defendant apologized to Zaragoza’s family and stated that he wanted to continue working and helping his family. The court expressed appreciation for the concern defendant showed Zaragoza’s family and loved ones, and again sentenced defendant to 11 years’ imprisonment. ^[2] Defendant’s motion to reconsider sentence was denied. ¶ 55 On appeal, defendant first argues that the State failed to prove beyond a reasonable doubt that he was not justified in defending Rosario with deadly force where he shot Zaragoza one time after Zaragoza and Cruz entered the yard uninvited, Zaragoza assaulted Rosario after asking if she was the mother of Rojas’s child, and there was evidence that Zaragoza and Cruz had a shoot-on- sight for Rojas. ¶ 56 When a defendant challenges the sufficiency of the evidence, the reviewing court views the evidence in the light most favorable to the State and determines whether any rational factfinder could find the essential elements of the crime beyond a reasonable doubt. People v. Harris, 2018 IL 121932, ¶ 26. It is the responsibility of the trier of fact to resolve conflicts in the testimony,