text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROOSEVELT BURRELL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0035
    Opinion filed March 31, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Maria McCarthy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Roosevelt Burrell, was convicted of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4) and the attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4) of Thomas Ward and the attempted murder of Kevin Lucas (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4). Defendant was sentenced to concurrent terms of 10 years’ imprisonment for the aggravated battery, and 50 years’ imprisonment for the attempted murder, of Thomas Ward. He was also sentenced to a consecutive term of 30 years’ imprisonment for the attempted murder of Kevin Lucas, for a total of 80 years’ imprisonment. On appeal, defendant argues that (1) the trial court abused its discretion in denying his request to substitute retained counsel for appointed counsel; (2) he was denied a fair trial when the police officers’ bullet-marked, bloodstained uniforms were sent to the jury room; (3) he was denied a fair trial by the prejudicial testimony concerning Officer Ward’s injuries; (4) he was denied a fair trial by prosecutorial misconduct during closing argument; (5) the trial court denied him a fair trial or an effective closing argument by sustaining objections to proper comments in his closing argument; (6) his conviction for aggravated battery must be vacated under the one-act-one-crime rule or, in the alternative, his sentence must be reduced or vacated and remanded; and (7) the trial court abused its discretion in imposing an extended sentence for one count of attempted murder or in making the sentences on the attempted murder counts consecutive. We affirm in part, vacate in part and reduce sentence in part.

On January 1, 1987, defendant, Roosevelt Burrell, was charged with the attempted murders of Chicago police officers Thomas Ward and Kevin Lucas, and the aggravated battery of Thomas Ward. At trial, Pamela Rendels testified that at about 4 p.m. on December 31, 1986, she had a fight with Marvin Stewart at her home at 234 N. Hoyne Street, Chicago. Stewart is her boyfriend and the father of one of her children. Ms. Rendels went to a neighbor’s home and telephoned the police to report the domestic disturbance. When she returned home, Stewart was not there.

While Ms. Rendels was on her front porch, defendant came up to her and said “hello sister-in-law, what’s up?” Ms. Rendels had known defendant for years because he once dated her sister. Ms. Rendels testified that she thought defendant, wearing a long coat over an army jacket, came from the alley behind her.

As Ms. Rendels and defendant spoke, a marked squad car approached. Police officers Thomas Ward and Kevin Lucas, in uniform with bullet-resistant vests, were responding to a radio call of the domestic disturbance. As the officers drove northbound on Hoyne Street, Ward testified, he saw defendant, who was wearing a green camouflage fatigue jacket over a light-colored coat and dark pants. Ward stated that defendant turned and looked at the police officers, then turned around, walked back across the street, and walked up to the porch at 234 N. Hoyne Street, where Ms. Rendels was standing. As Ward parked the car, got out, and approached Ms. Rendels, defendant turned around with a weapon he took from under his coat and started firing. Ward, who heard gunshots and saw muzzle flashes, was shot in the upper left chest. The gunshot knocked him backwards, and he ran to get behind the car. Before getting there, he was shot in his right side. He then dove underneath the car and began crawling towards the other side of the car. On the way to the hospital, Ward told Officer Michael Chasen that the offender was a male black wearing a green jacket or a field jacket.

Lucas testified that he got out of the car after Ward. Even though a bush was obstructing his view, Lucas saw a woman and another person standing on the porch. As he began to walk toward the front of the car, he heard gunshots and saw muzzle flash coming from the porch. Lucas stated that it was not the woman, but the other person, who was firing. As he saw Ward fall, Lucas dove for cover. He drew his weapon and looked over the car to see who was shooting at them. He then crawled to the other side of the car and pulled Ward back. Lucas radioed for help, and several patrol cars and an ambulance soon arrived.

When the shooting began, Ms. Rendels went inside and locked her door. She heard four or five gunshots and glass breaking. When she looked out again she did not see defendant. When the police arrived about five minutes later, Ms. Rendels identified defendant as the shooter and gave them a description.

Ms. Rendels further testified that she did not remember telling the police that Marvin Stewart was just leaving when she returned from her neighbor’s or that she was leaving her house a second time to call the police when defendant came from the alley. There was a stipulation that Detective Harrington would testify that Ms. Rendels made those statements to him.

Ward was taken to Cook County Hospital, where he underwent surgery. The gunshot wound to his right side shattered his kidney, a portion of which was removed. A second gunshot wound went through his chest, collapsing his lung, which was repaired and reinflated. The treating physician testified that because of the severity of the wounds, Ward was classified as a grade four, meaning that his injuries were life-threatening, but survival was possible. Defense counsel objected to the testimony concerning the classification of injuries. Ward was hospitalized for 14 days, but received continuing care until July 1987. He suffered permanent injuries to his lung and his kidney. While awaiting surgery, Ward received his last rites. Although Lucas did not require medical attention, a bullet was recovered from the chest portion of his bullet-resistant vest and another from his clothing.

Marvin Stewart testified that after arguing with Ms. Rendels on December 31, 1986, he left because the police were being called. He walked three to four blocks to his house. He neither saw any police officers nor heard any gunshots. Stewart further testified that he never owned or handled a weapon like the one used in the shooting, and he did not shoot two uniformed police officers.

Tina Howard testified that about 5 p.m. on December 31, 1986, she was outside 2029 W. Lake Street when she heard four or five gunshots. She ran inside and went to Ms. Holloway’s apartment on the seventh floor. Ms. Holloway’s son, Terry, was the father of Ms. Howard’s children and a friend of defendant’s. About 10 or 20 minutes later, defendant arrived, out of breath, and asked if Terry or his brother were there. When Ms. Holloway answered “no,” defendant asked to make a phone call. After defendant made the phone call, Ms. Howard reached into his sweater for a cigarette and saw a gun, which she identified as exhibits 33 and 34.

Defendant then borrowed some tissue, went into the bathroom, and closed the door. Shortly afterwards, defendant left. Ms. Howard testified that defendant was wearing a gray or blue or green coat with a hood, a white shirt, and a white sweater. She further testified that he was not wearing an army jacket. She did not remember telling the police about an army jacket. The parties stipulated that Detective Harrington would testify that Ms. Howard told him that defendant was wearing a blue or gray coat with a hood and an army jacket.

Police officers Steele, Keller, and Smulevitz testified that after the shooting they looked for defendant at several locations. Steele testified that he and his partner went to Ms. Holloway’s apartment, where they found a loaded .30 caliber enforcer carbine and two magazines under a mattress in a bedroom. Keller stated that the family handed him and his partner a gray coat with a hood. Smulevitz testified that he recovered a field jacket at defendant’s sister’s apartment.

Police officer and firearm examiner Donald Smith testified that he examined the forensic evidence. The .30 caliber carbine was officially classified as a semi-automatic pistol. It was similar to the Ml carbine used during World War II and the Korean War. To be fired, each round required an independent trigger pull of approximately seven pounds. In his opinion, the carbine had fired the nine cartridge cases recovered at 234 N. Hoyne Street, the two fired bullets recovered from the clothes of Ward and Lucas, and two bullet fragments or fired bullet jackets recovered from the trunk of the police squad car. He was unable to identify a fragment recovered from the trunk of the squad car or a fragment recovered from Lucas’ vest.

An “all-call message” concerning defendant went out to all police officers on duty. Various units were looking for defendant and interviewing family members. At 3 a.m. on January 1, 1987, defendant turned himself in at the police station.

Following the closing arguments, the jury found defendant guilty of the attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4) of Kevin Lucas and the attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4) of Thomas Ward. Following a hearing, the motion for a new trial was denied.

At the sentencing hearing, two witnesses testified in aggravation. Tina Howard testified that after defendant arrived at Ms. Holloway’s apartment, he made a telephone call during which she overheard him say, “I shot a police [sic].” Assistant State’s Attorney Michael O’Donnell, who was assigned to felony review on December 31, 1986, testified that when he questioned defendant about the shooting of the two police officers, one who was in critical condition, defendant was laughing. The State informed the trial court that defendant had two prior convictions for theft and one prior conviction for armed robbery, for which he spent time in prison.

Eight witnesses testified in mitigation. David Wright testified that he was an Operation Sergeant for the United States Army, through which he met defendant seven years earlier. Defendant, who was qualified on a machine gun and an M-16 rifle, was part of the Reserves. Wright stated that defendant was prompt, responsible, and had been promoted prior to the shooting. Defendant always did what he was told and carried his share of the load within the unit.

Charles Hearns, who was a First Sergeant in the Army, had known defendant for five or six years. He testified that defendant was a model soldier, a hard worker, and did everything he was asked. Defendant, who went to all the unit’s support missions, was there on time and did his job very well. Hearns testified that defendant had an alcohol habit and occasionally used drugs.

Walter Bush testified that he had known defendant for six years through the Army. Defendant was a good person, easy to get along with, and always happy. When asked to do something, defendant did it with no questions or back talk.

Othello Anderson testified that he is a college professor and program director at Miles Square Health Center. Thirteen years ago, defendant was one of his students, and they had kept in touch over the years. Anderson described defendant as very bright, very forthright, very honest, and interested in pursuing a career in broadcasting. He further testified that when questioned about problems and small altercations, defendant would invariably laugh due to his inability to understand or articulate what the situation was.

Titis Sims testified that he had known defendant for 12 to 15 years from the neighborhood and from school. Sims stated that defendant was a good person who was always happy. Marvin Thomas testified that he knew defendant all his life and described him as an outgoing person.

Defendant’s oldest brother, Willie Burrell, testified that 12 family members were present in court and characterized defendant as quiet and always helpful. He stated that defendant was a very inquisitive person, always willing to learn something new, and not the type of person to shoot two police officers. Defendant’s mother, Jessie Burrell, stated that whenever she needed defendant, he was always around. Defendant was the third youngest of 14 children. Defendant offered, “I feel very bad about what happened to the officer even, just feel very bad about it, Your Honor.”

In making its ruling, the trial court stated that defendant was cool, calculating, intelligent, and resourceful. He described the crime as a planned, prepared, well-executed, and almost an execution of two Chicago police officers. The trial court sentenced defendant to concurrent sentences of 10 years’ imprisonment for the aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4) and 50 years’ imprisonment for the attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4) of Officer Ward. Additionally, defendant was sentenced to a consecutive term of 30 years’ imprisonment for the attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 8 — 4) of Officer Lucas, for a total of 80 years’ imprisonment.

On appeal, defendant asserts that the trial court abused its discretion in denying his request on the day of trial for a continuance to substitute retained counsel for appointed counsel. Defendant had been in custody from January 1, 1987. At his arraignment on February 13, 1987, an assistant public defender was appointed. There were two hearings in April and two in June.

On August 27, 1987, defendant requested appointment of counsel other than the assistant public defender. The trial court stated, “If you want to hire private counsel — otherwise, the public defender is the attorney the State provides for persons who don’t have funds to hire their own attorney.” The assistant public defender responded that he spoke with defendant’s mother, who indicated that she did not know anything about hiring a private attorney. Defendant’s mother then told the trial court that she had tried to get an attorney from legal aid because the family did not have the funds to hire a private attorney.

The trial court informed defendant that unless he gave a reason why he was not being properly handled by his current attorney, his motion would be denied. Defendant responded that being ordered to go to a psychologist was enough of a reason. The trial court denied the motion, ruling that he would not continue the trial to change attorneys unless defendant wanted to hire a private attorney. The case was then continued to November 2, 1987, for trial.

Defense counsel moved to advance and reset the case for September 14, 1987, for the purpose of a plea conference. On September 14, 1987, the case was continued for two days to allow the victims to be present. On September 16, 1987, the victims were present but defendant was in the hospital. The case was set for a jury trial on November 2, 1987, when it was held on call until November 3, 1987. After the assistant public defender argued preliminary motions on November 3, 1987, the case was passed for IV2 hours at which time the jury was to be chosen.

When the case was called later that day, defendant again asked for a continuance to retain a private attorney, explaining that he had been introduced to a private attorney, who was ready to take his case, but wanted three days. The trial court denied the continuance, stating that defendant had had plenty of time to hire a private attorney. Furthermore, the trial court expounded, the attorney named had been in the courtroom that morning on another case, but said nothing to the trial court about defendant’s case nor filed an appearance in the case. The jury was then chosen.

The next day, before opening statements, defendant again asked for a continuance to hire a private attorney. Defendant stated that private counsel was planning to be in court that morning, but did not appear that day. Moreover, defendant informed the trial court that he did not call the attorney on the previous day. The motion for continuance was denied, and the opening statements were heard.

While an accused’s right to counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8; Ill. Rev. Stat. 1985, ch. 38, par. 113 — 3) is absolute and unqualified, the right to choice of counsel is limited, although fundamental. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 196.) The exercise of the right to choice of counsel may not be denied unless it will unduly interfere with the administration of justice. (Spurlark, 67 Ill. App. 3d at 196.) It is within the discretion of the trial court to determine when the defendant’s right to select counsel unreasonably interferes with the orderly process of judicial administration. Spurlark, 67 Ill. App. 3d at 197.

In balancing the judicial interest of trying the case with due diligence and the defendant’s constitutional right to counsel of choice, the court must inquire into the actual request to determine whether it is being used merely as a delaying tactic. (People v. Washington (1990), 195 Ill. App. 3d 520, 525.) Factors to be considered are whether the defendant has been continuously in custody, whether he has informed the trial court of efforts to obtain counsel, and whether he has cooperated with appointed counsel even though dissatisfied with that counsel. (People v. Willis (1972), 6 Ill. App. 3d 980, 982.) The denial of a motion for continuance to obtain new counsel is not an abuse of discretion if new counsel is not specifically identified or does not stand ready, willing, and able to make an unconditional entry of appearance instanter. People v. Cole (1977), 47 Ill. App. 3d 775, 779.

The State maintains that the defendant waived this issue because he did not raise it in his motion for a new trial. Failure to raise an issue in the written motion for a new trial constitutes a waiver of that issue. (People v. Pickett (1973), 54 Ill. 2d 280, 282.) Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), however, provides an exception to the waiver rule where there has been plain error if it is plainly apparent from the record that an error affecting substantial rights was committed or where the evidence is closely balanced. (Pickett, 54 Ill. 2d at 283.) Although the defendant failed to preserve the issue for review by including it in his post-trial motion, the right to counsel of choice is a fundamental right. (Spurlark, 67 Ill. App. 3d at 196.) Therefore, we will consider the issue to determine whether it was plain error.

Both defendant and the State cite cases that are distinguishable. Defendant cites cases that were reversed because the trial court did not inquire into the defendant’s assertions. See People v. Green (1969), 42 Ill. 2d 555 (church had paid for private attorney, who had not yet filed an appearance and was not present in court on the day of trial); Washington, 195 Ill. App. 3d 520 (court received a call from the secretary of the private attorney the defendant claimed to have retained and the assistant public defender informed the court that he had the name of the retained private attorney).

The State cites cases where the trial court’s denials of the motion for a continuance to retain new counsel were affirmed. See People v. Washington (1968), 41 Ill. 2d 16 (defendant’s private attorney filed an appearance four months earlier, defendant was responsible for earlier trial delay, no particular need was stated for changing attorneys, and no dissatisfaction was expressed until the day of trial); People v. Winfield (1987), 160 Ill. App. 3d 983 (there had been 10 continuances previously granted, the trial date was delayed five months, defendant was out on bail and never complained of the quality of representation from the assistant public defender); People v. Solomon (1962), 24 Ill. 2d 586 (assistant public defender had been appointed two weeks before trial, but the defendant refused to cooperate with him).

Although these cases are all distinguishable, they provide general guidelines. Here, the assistant public defender had been appointed nine months earlier and was prepared to go to trial. Although defendant was in continuous custody for 11 months, he had ample time to retain private counsel. When defendant had asked for a new attorney four months earlier, the trial court informed him that the only way he would get another attorney was if he retained private counsel, which defendant did not do. Defendant’s mother informed the trial court that the family had attempted to retain private counsel, but lacked adequate funds.

When defendant again raised the issue on the day of the trial, he told the trial court that he had just met a private attorney who was willing to take his case. The attorney, however, did not file an appearance or make any attempt to inform the court of his involvement with the case. Although the attorney had been present in the courtroom on another case, he gave no indication to the trial court of his intention to take defendant’s case. Defendant stated that the attorney would be present in court on November 3, 1987, but he never appeared. While the attorney’s name was given to the trial court, there was no evidence that the attorney was ready, willing, or able to take the case. The trial court did inquire whether defendant had called the attorney on the previous day and defendant replied that he had not called. Consequently, the trial court did not abuse its discretion in denying defendant’s motion for a continuance to retain private counsel.

Defendant next asserts that he was denied a fair trial when, over defense objection, the police officers’ bullet-marked and bloodstained uniforms were sent to the jury room during deliberations. Defendant argues that since the primary issue was the offender’s identification, the uniforms were not relevant or material to any issue that the jury had to decide. He cites cases where the court ruled that evidence was improperly submitted to the jury. (See People v. Arnold (1910), 248 Ill. 169; People v. Elwell (1977), 48 Ill. App. 3d 628; People v. Garlick (1977), 46 Ill. App. 3d 216; People v. Manley (1971), 133 Ill. App. 2d 882.) Defendant also argues that the clothing was not ordinary clothing, but official police uniforms, which are symbols charged with emotion.

The State responds that the uniforms were relevant to the issues of great bodily harm and the intent to kill. It contends that the location of the bullet holes in the victims’ clothing was probative as to whether defendant had the intent to kill the officers when he fired bullets in their direction. Furthermore, the State argues, the bullet holes and bloodstains on Officer Ward’s clothing were relevant to show that defendant intended to cause great bodily harm. The State cites cases where the evidence submitted to the jury was relevant to issues that the jury was to decide. See People v. Shum (1987), 117 Ill. 2d 317; People v. Morando (1988), 169 Ill. App. 3d 716.

Since evidence present in the jury room during deliberations gives the party producing it a distinct advantage (People v. Kirkpatrick (1953), 413 Ill. 595, 599), potentially prejudicial evidence must be closely scrutinized. (Manley, 133 Ill. App. 2d at 884.) If tangible objects that have been admitted into evidence are relevant to any material issue, they can go into the jury room during deliberations (People v. Arnold (1985), 139 Ill. App. 3d 429, 435) unless they are more prejudicial than probative. If the evidence is prejudicial such that it serves only to arouse and influence the emotions of the jury, it is error to submit it to the jury. (Elwell, 48 Ill. App. 3d at 630.) Even if none of the evidence is admissible, however, there is no need for a new trial unless the defendant is prejudiced. People v. Greer (1980), 79 Ill. 2d 103, 117.

While the police officers’ clothes were probative to the issues of intent to kill the officers and great bodily harm on the aggravated battery charge, their prejudicial effect outweighed their probative value. The jury saw the shirt, bullet holes, and blood during the trial. Lucas even put his fingers through the bullet holes during his testimony. The error, however, was harmless because the evidence of defendant’s guilt was overwhelming and the extent of the injuries was severe.

Defendant waived his argument that he was denied a fair trial by prejudicial testimony that Officer Ward’s injuries were graded life-threatening, that his last rites were administered, and that he was awarded the Chicago police department blue star for those seriously injured in the line of duty. Defendant did not object to that testimony at trial and did not include it in his post-trial motion. Since the evidence showed overwhelmingly that defendant was guilty and the complained-of testimony did not involve substantial rights, it is not plain error.

Defendant also waived his objections to the State’s closing argument comments concerning the risks taken by police officers on the job, Officer Lucas’ medal of honor, that the defense counsel wanted the jury to believe that Officer Ward lied under oath, and that the jury should return to the police officers the service and protection they gave to the jurors each and every day of their lives. Failure to object to closing remarks at trial and not including the issue in the post-trial motion generally constitutes waiver of the issue. (People v. Threadgill (1988), 166 Ill. App. 3d 643, 650.) These comments did not constitute prejudicial error in this case.

Defendant then asserts that the State improperly commented on the prosecution witnesses’ lack of motivation to lie or to frame defendant for the offenses. The cases defendant cites are inapplicable. The courts in People v. Ferguson (1988), 172 Ill. App. 3d 1, and People v. Cole (1980), 80 Ill. App. 3d 1105, ruled that it was improper to inform the jury that it must find that every State witness was lying in order to believe the defense witnesses. The State’s comments here properly addressed the issue of the witnesses’ credibility by discussing their lack of motivation to lie and to conspire against defendant.

The State’s rebuttal comments, which defendant claims to be improper, were invited by the defense’s closing argument. A defendant may not claim he has been prejudiced by comments made by the State that were invited or provoked by the defense counsel. (People v. Barney (1982), 111 Ill. App. 3d 669, 677.) During his closing argument, the defense counsel alluded to the police officers’ “emotional bent to get this case solved, to get someone arrested and to get to the bottom of what they think the bottom of this case is. *** They are emotionally ridden in this case.” The defense also stated that Pamela Rendels’ testimony did not make sense and that someone other than the defendant did the shooting. To find defendant not guilty, the State properly rebutted that the jury would have to believe that Officer Ward wanted the real offender to walk the street just to convict defendant.

Defendant then asserts that the State improperly commented upon his opening statement. His argument has no merit.

Further, defendant contends that the State improperly commented that the defense’s closing statement did not mention Tina Howard’s testimony. The State maintains that its remarks about Tina Howard in rebuttal were in response to the defense counsel’s comments that defendant was not the man who shot the police officers. The State asserts that it was reminding the jury of Ms. Howard’s testimony about events immediately after the shooting, including her observation of defendant’s clothing and the gun that the ballistics expert testified fired the shots which injured the police officers.

New arguments should not be allowed in rebuttal, but should be restricted to answering the arguments put forth by defense counsel. (United States v. Taylor (7th Cir. 1984), 728 F.2d 930, 936-38.) Although the rebuttal about Ms. Howard improperly raised new arguments since her testimony was not addressed in the defense counsel’s closing argument, it did not prejudice defendant and was, therefore, harmless error.

Defendant’s assertion that he was denied an effective closing argument and a fair trial because the trial court twice improperly sustained objections to his proper closing arguments is without merit. The State’s objection to the defense comment that Officer Ward identified defendant as the offender for the first time since the shooting was properly sustained because the defense counsel was arguing evidence that was not in the record. Likewise, the trial court properly sustained the State’s objection to the defense counsel’s improper statement about the law. The defense counsel argued that because the police did not investigate Marvin Stewart, “[t]here was doubt who committed the crime, and if there is doubt as to who committed the crime — .” In sustaining the objection, the court commented that counsel’s argument was not a proper statement of the law. It is well-established law in Illinois that it is improper for counsel to define “reasonable doubt” for a jury. (People v. Faysom (1985), 131 Ill. App. 3d 517, 524.) The defense counsel was not only defining “reasonable doubt” for the jury, he was changing the standard from reasonable doubt to any doubt.

Finally, defendant asserts various sentencing errors. Defendant asserts that his conviction for aggravated battery must be vacated because it arose out of the same physical act as his conviction for the attempted murder of Ward or, in the alternative, his sentence for aggravated battery must be reduced, vacated or remanded since it was an improper extended-term sentence.

The State contends that the defendant waived the issue because he did not object at trial or raise the issue in a post-trial motion. In order to preserve errors which occurred at the sentencing hearing, a defendant is not required to file a post-sentencing motion seeking a new sentencing hearing. (People v. Hargis (1983), 118 Ill. App. 3d 1064.) Since the alleged error took place after the motion for a new trial had been filed, heard, and denied, there is no duty to file a post-sentencing motion.

While defendant failed to object to the imposition of aggravated battery and attempted murder sentences, the alleged errors clearly affected defendant’s fundamental right to liberty and impinged on his right not to be sentenced based on improper factors. (People v. Martin (1988), 119 Ill. 2d 453, 458.) Because the issue raised by defendant affects substantial rights, it will be reviewed under the plain error rule.

A defendant who commits more than one criminal act in an episode or transaction may be prosecuted for more than one offense unless the charges involved precisely the same physical act. (People v. Segara (1988), 126 Ill. 2d 70, 75-77.) Officer Ward was struck in the chest and abdomen by two separate bullets from defendant’s gun, constituting two separate acts. Therefore, it was proper for the jury to convict defendant of both attempted murder and aggravated battery.

Defendant next asserts that the trial court abused its discretion in imposing an extended sentence of 50 years’ imprisonment for the attempted murder of Thomas Ward based on the brutal and heinous nature of the crime, indicative of wanton cruelty. An extended-term sentence may be imposed if the court finds the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, or the defendant has a history of prior criminal activity. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2, 1005— 8 — 2.) The trial court did not abuse its discretion in sentencing defendant to an extended term for the attempted murder of Thomas Ward because it found that the crime was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The shooting was systematic, unprovoked, continued after Officer Ward was struck, and lacked any logical reason. Furthermore, defendant laughed about the crimes hours later at the police station.

The extended-term sentence for aggravated battery, however, must be reduced. Under Illinois law, an extended-term sentence can only be imposed for the conviction of the most serious class of offenses which a defendant has been convicted of committing. (People v. Jordan (1984), 103 Ill. 2d 192, 205-06.) In this case, attempted murder is the most serious class of offense. Therefore, defendant’s sentence for aggravated battery is reduced from 10 years’ to 5 years’ imprisonment, which is the maximum allowed for aggravated battery, a Class 3 felony. Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 4(e), 1005 — 8—1(a).

Finally, defendant contends that the trial court abused its discretion in making both the attempted murder sentences consecutive. We agree. Consecutive sentences are to be imposed only where the nature and circumstances of the offense and the history and character of the defendant indicate that a consecutive term is required to protect the public from further criminal conduct of the defendant. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4.) That was not the situation in this case. The consecutive sentence was not required and was error.

Based on the foregoing, the judgment of the circuit court regarding the two attempted murder convictions is affirmed. The extended-term sentence of 50 years’ imprisonment for the attempted murder of Thomas Ward is affirmed, to run concurrently with the sentence of 30 years’ imprisonment for the attempted murder of Kevin Lucas. The consecutive sentence is vacated. The aggravated battery conviction is affirmed, but the extended-term sentence for the aggravated battery is reduced from 10 years’ imprisonment to 5 years’ imprisonment, to run concurrently with the sentence of 50 years’ imprisonment for the attempted murder of Thomas Ward.

Affirmed in part; vacated in part and sentence reduced in part.

GREIMAN, P.J., and TULLY, J., concur.

      Justice White heard oral argument prior to his retirement. Justice Tully was substituted, reviewed the briefs and the record and concurred with the opinion.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ALLEN et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—88—0576, 1—88—1614 cons.
    Opinion filed March 31, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellant David Allen.
    Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant Mannie Maddox.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Pamela A. Paziotopoulos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant David Allen was convicted of one count of first degree murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1), two counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1) and one count of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2) in a jury trial. Allen was sentenced to an extended term of natural life imprisonment and three consecutive terms of 30 years’ imprisonment. Codefendant Mannie Maddox was convicted of one count of first degree murder, two counts of attempted murder and two counts of armed robbery in a simultaneous bench trial. Maddox was sentenced to concurrent extended terms of 70 years’ and 60 years’ imprisonment. On appeal, Allen contends that (1) the prosecutor committed reversible error when he referred to facts not supported by the evidence, attacked the integrity of defense counsel, and appealed to the passions and sympathies of the jury in his closing argument; (2) the trial court committed reversible error when it permitted Officer Christophersen to testify on redirect examination about the content of his conversation with Allen; and (3) the sentence of natural life imprisonment and three consecutive terms of 30 years’ imprisonment imposed by the trial court is excessive and should be vacated or reduced. Maddox contends that (1) the trial court committed reversible error when it restricted defense counsel from cross-examining the State’s key witness about any bias or motive to falsely testify; (2) the trial court forgot the crux of Maddox’s defense, engaged in improper reasoning processes which were not supported by the evidence and relied on unsupported theories of the evidence when it reached its determination of his guilt; and (3) the State failed to prove him guilty of murder and attempted murder beyond a reasonable doubt. We affirm.

On October 6, 1986, Van Jackson and cab driver Robert Dixon were at a restaurant located at 63rd Street and Marshfield Avenue in Chicago, Illinois. John Gardner, Allen and Maddox entered the restaurant and asked Dixon if he could drive them somewhere in his cab for a fare. Dixon agreed. The five men entered Dixon’s cab and drove to his apartment, where all five men went inside and used cocaine. When the cocaine was depleted, the men drove to Maddox’s sister’s apartment to get money for more cocaine. Maddox was unable to get any money. The men then drove to Ella Phillips’ apartment, who is Allen’s girl friend, to get money. Phillips told Allen that she had given her money to her mother. The men then drove to Phillips’ mother’s apartment. Dixon drove the cab to 53rd and Bishop Street and parked in an alley. Allen left the vehicle while the others remained in the cab. Allen returned about two minutes later, and immediately upon reentering the cab, shot Gardner once in the face. He then shot Dixon three times, once in the neck, once in the right shoulder and once in the head. Allen then shot Jackson once in the back. Jackson pretended he was dead by resting his head against the dashboard. Jackson then witnessed Maddox steal money from Dixon and cocaine from Gardner. As Maddox started going through Jackson’s pockets, Maddox said to Allen, “He’s moving. *** Shoot him.” Allen then shot Jackson once in the leg. Allen and Maddox fled. Jackson drove the cab to 51st and Peoria Street, where he flagged down a police squad car. The occupants of the cab were taken to the hospital, where Dixon died from the multiple gunshot wounds he sustained during the robbery. Gardner survived, but remains partially paralyzed. Jackson has fully recovered.

In a joint trial, the jury found Allen guilty of first degree murder, two counts of attempted murder and one count of armed robbery. After waiving his right to a jury trial, the trial court found Maddox guilty of one count of murder, two counts of attempted murder and two counts of armed robbery. Following a hearing on whether to impose the death penalty, the trial court sentenced Allen to an extended term of natural life imprisonment and three consecutive 30-year terms of imprisonment for the two attempted murder convictions and the armed robbery conviction. Maddox was sentenced to concurrent extended terms of 70 years’ imprisonment on the murder charge and 60 years’ imprisonment on each of the attempted murder charges. This appeal followed.

Allen contends that the prosecutor committed reversible error by referring to facts not supported by the evidence in his closing argument when he told the jury that Maddox escaped from a second-floor window when police arrived at Allen’s apartment to question Allen about the shootings. The prosecutor is allowed wide latitude in his closing argument to the jury, so long as his arguments are based on the evidence presented or any reasonable inferences that can be drawn therefrom. (People v. Malone (1991), 211 Ill. App. 3d 628, 636, 570 N.E.2d 584, 590.) We find that there is sufficient evidence in the record to support a reasonable inference that the individual who escaped through the second-floor window of Allen’s apartment was Maddox.

Allen next argues that the prosecutor committed reversible error when he contrasted Allen’s “cool” behavior with Maddox’s “panicky” behavior in his closing argument. We are unable to see how Allen was prejudiced by the prosecutor’s comments. Furthermore, even if we were to find that Allen was prejudiced by the comments, any prejudice that resulted was cured when the trial court sustained defense counsel’s objection to the prosecutor’s comments. See People v. Thomas (1990), 199 Ill. App. 3d 79, 100, 556 N.E.2d 1246, 1260.

Allen next argues that the prosecutor committed reversible error when he improperly appealed to the passions and fears of the jury when he suggested that Allen is the source of the climate of violence now existing in the cities of this country and that if they did not convict Allen, he would return to retaliate against Jackson and Gardner for testifying at trial. Whether a prosecutor’s closing statements improperly inflamed the passions and fears of the jury is to be determined from the totality of the circumstances surrounding the comments, including the language used and its relationship to the evidence presented in the case. (People v. Jenkins (1989), 190 Ill. App. 3d 115, 136, 545 N.E.2d 986, 1000.) Based on a review of the prosecutor’s closing argument in its entirety and the overwhelming evidence presented at trial of Allen’s guilt, we find that any implication by the prosecutor that Allen is the source of the climate of violence in the United States or that Allen would retaliate against Jackson and Gardner does not constitute reversible error.

Defense counsel also argues that the prosecutor improperly appealed to the jurors’ sympathies when he stated in his closing argument that the medical examiner had to dig into the head ánd brain of Robert Dixon in order to recover the bullets. We find that the record adequately supports the prosecutor’s comments.

Allen next contends that the prosecutor improperly attacked defense counsel’s integrity when he stated in his closing argument that defense counsel tried to put words into the mouth of Jackson and that defense counsel was suggesting to the jury that the prosecutors were involved in a conspiracy to frame Allen. After reviewing the closing argument in its entirety, we find nothing improper with the prosecutor’s comments.

Allen next argues that the trial court committed reversible error when it permitted Officer Christophersen to testify on redirect examination about the content of his conversation with Allen. During cross-examination, Allen’s defense counsel questioned Officer Christopher-sen about a noise he heard in a closet at Allen’s apartment while investigating Allen’s involvement in the shootings. The following line of questioning took place during cross-examination by defense counsel of Officer Christophersen:

“Q. Now, while — so, when you heard this noise but in fact Mr. Allen was talking to you or had invited you in was talking to the police when all of this happened, is that right?
A. Well then, we were informed that nobody else was in the apartment other than the kids. And then, we heard the noise and the room—
Q. That’s when you heard a—
A. After [Allen] said there was nobody else in the apartment, then we heard the noise.
Q. So, he was talking to you and invited you in?
A. Correct.
Q. That’s when you heard this noise. Somebody — and somebody from the outside said someone had jumped out?
A. That’s correct.”

On redirect examination, the prosecutor then inquired, over defense counsel’s objection, into the content of the remainder of the conversation between Officer Christophersen and Allen. The completeness doctrine permits a party to introduce the balance of an utterance or writing in order to convey its true meaning or to explain, qualify or otherwise shed light on that portion of a statement introduced by an opponent. (People v. Hudson (1990), 198 Ill. App. 3d 915, 924-25, 556 N.E.2d 640, 647; In re W.D. (1990), 194 Ill. App. 3d 686, 702-03, 551 N.E.2d 357, 368.) Here, defense counsel elicited, albeit unintentionally, a portion of Officer Christophersen’s conversation with Allen during his cross-examination of Officer Christophersen. The prosecutor, therefore, is entitled to develop all circumstances within the knowledge of Officer Christophersen during redirect examination to explain or qualify his previous testimony or to convey the true context of that conversation to the trier of fact. Accordingly, we conclude that the trial court did not commit reversible error when it permitted Officer Christophersen to testify on redirect examination about the content of his conversation with Allen.

Allen next contends that the sentence of natural life imprisonment and three consecutive terms of 30 years’ imprisonment imposed by the trial court is excessive and should be vacated or reduced. Section 5 — 8—1(a)(1)(b) of the Unified Code of Corrections (Code) permits the trial court to sentence a defendant to an extended term of natural life imprisonment if it determines that a murder is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b).) At the sentencing hearing, the trial court imposed an extended term of natural life imprisonment to run consecutively with three 30-year terms of imprisonment. Allen argues that the murder in the present case involved the simple shooting of Dixon in the head, and that because he died instantly and did not suffer, the murder was no more exceptionally brutal, heinous or indicative of wanton cruelty than the conduct of defendants in numerous other cases.

Here, Dixon was fatally shot three times; Gardner was shot once at point-blank range in the face and is permanently paralyzed, described by the trial court as a vegetable; Jackson was shot twice and described by the trial court as “lucky [to be alive], lucky when you (Allen) took your last couple of cracks at him that you ran out of bullets.” Our review of the record reveals that the trial court’s finding is consistent with the evidence presented. We therefore hold that the extended-term sentence of natural life imprisonment imposed by the trial court was not an abuse of discretion.

Allen next contends that the trial court abused its discretion when it imposed consecutive rather than concurrent terms of imprisonment for each of his convictions. Section 5 — 8—4(b) of the Code permits a trial court to impose consecutive sentences if it determines that the nature and circumstances of the offense and the history and character of the defendant require the imposition of consecutive sentences in order to protect the public from further criminal conduct. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4.) The record indicates that the trial court properly reviewed the nature and circumstances of the offense and the history and character of Allen when it determined that consecutive sentences here were required in order to protect the public from further criminal conduct.

Allen, relying on People v. Parker (1986), 141 Ill. App. 3d 643, 490 N.E.2d 1076, next argues that once a defendant is sentenced to natural life imprisonment, the necessity to protect the public from further criminal conduct is eliminated. We disagree. We find that the public interest may be served by consecutive sentences if Allen’s sentence is subsequently modified, commuted or reduced. People v. Leger (1991), 208 Ill. App. 3d 333, 340, 567 N.E.2d 68, 73; see also People v. Wilson (1985), 138 Ill. App. 3d 513, 485 N.E.2d 1264; People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514.

Allen next contends that the sentence of natural life imprisonment plus three consecutive terms of 30 years’ imprisonment imposed by the trial court violates section 5 — 8—4(c)(2) of the Code because the aggregate of consecutive sentences exceeds the sum of the maximum terms authorized under section 5 — 8—2 of the Code for the two most serious felonies involved. (Ill. Rev. Stat. 1985, eh. 38, pars. 1005 — 8— 2, 1005 — 8—4.) This contention is without merit. Sections 5 — 8—2(a)(1) and (a)(2) of the Code permit the trial court to impose a sentence of up to 80 years for a defendant convicted of murder and up to 60 years for a defendant convicted of attempted murder or armed robbery, both of which are Class X felonies. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—2, 8—4, 18—2.) Thus, the trial court may impose consecutive sentences for a period up to 140 years in the present case. Here, the total period of incarceration imposed by the trial court totals only 90 years, well below the maximum period of incarceration permitted under the statute.

For all the foregoing reasons, we conclude that the trial court did not abuse its discretion when it imposed the sentence of natural life imprisonment and three consecutive terms of 30 years’ imprisonment.

Maddox argues that the trial court committed reversible error when it restricted defense counsel from cross-examining Jackson, the State’s key witness, about any bias or motive to falsely testify. Maddox contends that the trial court refused to consider that Jackson had a strong motive to falsify his testimony because his participation in the drug transaction here would constitute a violation of his probation. The record, however, does not support Maddox’s contention.

During cross-examination of Jackson, defense counsel elicited from Jackson that he had previously been convicted of possession of a stolen motor vehicle and bail bond violations, and charged but not prosecuted for possession of a controlled substance. While it is true that defense counsel was not permitted to cross-examine Jackson about the effect his involvement or participation in a drug transaction might have on the status of his probation, the record reflects that the trial court was fully aware of the facts and circumstances surrounding Jackson’s pending drug charges and probationary status. Defense counsel made the following comments during his closing argument:

“If you believe the only witness against Maddox, what you have is presence and flight, but then you have Van Jackson, a felon, dealing drugs that evening, on probation, with, at least, a reasonable expectation that he will be treated more favorably by testifying for the State.
He denied that that was a consideration, but here’s a man who had a case nolle prossed [sic] during the process. After the case was charged, he was charged with something on his own, and it was nolle prossed [sic], which means the State chose not to pursue it, and they could have reopened it.
He also was on probation when he testified. His violation of probation could easily have been filed for having been involved in a drug deal. It wasn’t. So, he had some motive to favor the State’s position and, of course, his testimony here differs from what he originally told the police officers.”

In its ruling as to the determination of Maddox’s guilt, the tridl court stated:

“There were a lot of comments by [defense counsel] as to the credibility of Jackson’s testimony, but as you review Jackson’s testimony, it is very consistent. *** [Jackson] is not a nice person. He’s been convicted of crime, but by the same token, as you listen to his testimony, there’s no reason to disbelieve him. He could have just as easily, if he was lying, say that Maddox shot him, but he said Allen — Allen is the one who did all of the shooting.”

Thus, although defense counsel was unable to fully cross-examine Jackson about the effect his participation or involvement in a drug transaction might have on his probationary status, it is clear that the trial court was fully aware that Jackson may have had a motive to favor the State’s position when he testified about the shooting incident. We, therefore, conclude that the trial court did not commit reversible error when it restricted defense counsel’s cross-examination of Jackson.

Maddox further contends that the trial court “forgot the crux of [Maddox’s] defense when entering judgment,” “engaged in improper reasoning processes which were not supported by the evidence” and “relied on unsupported theories of the evidence as a major linch-pin in his decision.” There is nothing in the record to support these contentions. They are therefore without merit.

Maddox next contends that the State failed to prove him guilty of murder and attempted murder beyond a reasonable doubt. We disagree.

A person will be found legally accountable for the conduct of another if, either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 5 — 1, 5 — 2.) The reviewing court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 48-49, 538 N.E.2d 461, 472.) On review, the trial court’s judgment will not be set aside unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to defendant’s guilt. People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319.

A careful review of the record in a light most favorable to the prosecution demonstrates that a rational trier of fact could have found that Maddox was responsible for the crimes charged or accountable for Allen’s conduct beyond a reasonable doubt. There is nothing unsatisfactory, improbable or implausible about the evidence presented by the State in this trial. In Maddox’s statement to Assistant State’s Attorney Barry Gross, Maddox admitted that he set out with Allen on the evening in question with full knowledge that Allen was carrying a gun. He admitted that he met with Gardner, Jackson and Dixon and engaged in the smoking of cocaine. After the cocaine was exhausted, they set out to find more cocaine. He admitted that he was present when the shooting occurred, although he denied that he searched through the victims’ pockets after they had been shot. He remained with Allen after the incident, fled the scene of the shooting with Allen, and was present at Allen’s apartment hiding in a closet when police arrived to question Allen about his involvement in the shootings.

Maddox’s statement was substantially corroborated by Jackson, who indicated that Maddox’s involvement in the crimes was more active than Maddox had acknowledged. Jackson testified that he observed Maddox search through Gardner’s and Dixon’s pockets for money and cocaine after Allen had shot them. Jackson further testified that while Maddox was going through his pockets after he had been shot, Maddox yelled to Allen, “He’s moving. *** Shoot him.” We, therefore, conclude that the State proved Maddox guilty of murder and attempted murder beyond a reasonable doubt.

Accordingly, the judgments of the circuit court are affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE COLLIER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1350
    Opinion filed March 31, 1992.
    Randolph N. Stone, Public Defender, of Chicago (Violet T. Ricks and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Loren A. Seidner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Maurice Collier was convicted of attempted first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1) and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2) in a bench trial and sentenced to 16 years’ imprisonment. On appeal, defendant contends that (1) the statute creating the offense of first degree murder violates the due process and equal protection clauses of the fourteenth amendment to the United States Constitution; and (2) the sentence imposed by the trial court is excessive and should be vacated or reduced. We affirm.

At approximately 1:30 a.m. on November 26, 1987, Chicago police officers Charlene Byrd and Harrison Speakes observed defendant driving an automobile southbound on Halsted Street between 119th and 120th Streets in Chicago, Illinois, without its headlights turned on. Defendant turned left onto 120th Street and then backed up onto Halsted Street and parked in a bus stop in front of the Superior Club Tavern and Liquor Store located on the southeast comer of Halsted and 120th Streets. The officers turned the blue mars lights on top of their vehicle on and pulled directly in front of defendant’s automobile. The officers exited their vehicle. Defendant stepped out of his automobile and the officers asked defendant for his driver’s license. Defendant complied, and the officers issued defendant a citation for failing to exercise due caution while backing into traffic (Ill. Rev. Stat. 1985, ch. 951/2, par. 11-1402).

After handing defendant the citation, the officers explained to defendant that they did not issue him a second citation for driving an automobile without its headlights on and asked defendant to move his automobile from the bus stop. Defendant told the officers, “You have already issued me a ticket and that’s enough. I’m not moving.” The officers repeated their request that defendant move his automobile for a second and then a third time. Defendant refused to comply.

The officers then asked defendant to get out of his automobile. Defendant refused. Officer Speakes opened the driver’s side door of defendant’s automobile and defendant exited the automobile. The officers told defendant to put his hands on the roof of his vehicle so they could search him. Defendant refused to comply with the officers’ request. The officers again ordered defendant to put his hands on the roof of his vehicle so they could search him and defendant again refused to comply.

Officer Speakes then attempted to force defendant to put his hands on the roof of his automobile. Officer Speakes turned defendant around. Defendant pushed Officer Speakes. Officer Speakes grabbed defendant and informed him that he was under arrest. A struggle ensued between Officer Speakes and defendant, and as they struggled, Officer Byrd attempted to handcuff defendant. While attempting to handcuff defendant, Officer Byrd noticed for the first time that defendant had a gun and hollered, “He’s got a gun.” Officer Speakes then threw defendant into the street. Defendant landed on his back and Officer Speakes landed on top of him. At this point, defendant’s gun discharged twice and Officer Speakes rolled off defendant clutching his stomach. Defendant got up on one knee, aimed his gun at Officer Speakes and fired two additional shots into Officer Speakes’ chest from a distance of no more than two feet. Defendant then pointed his gun at Officer Byrd and fired one shot at her. Officer Byrd was not struck.

Defendant fled north on Halsted Street and then west onto 120th Street. Officer Byrd gave chase. When Officer Byrd came around a corner of a nearby church, defendant fired one shot at her face from a distance of no more than four feet. Officer Byrd dove backwards to avoid being struck by the shot. Defendant again fled. Officer Speakes was taken to St. Francis Hospital in Blue Island, Hlinois, where doctors retrieved four bullets from his holster, star case and bulletproof vest.

At least 10 Chicago police vehicles arrived on the scene. The ensuing search for defendant took the officers to the Kingsway Restaurant parking lot located at 122nd and Halsted Streets. The officers spotted defendant lying on the ground near a dumpster. Defendant had been shot twice and was bleeding from his upper abdomen and his right leg. Defendant was captured and placed under arrest and charged with attempted first degree murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9— 1), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2) and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4). Defendant was found guilty in a bench trial of attempted first degree murder and armed violence and sentenced to 16 years’ imprisonment. This appeal followed.

Defendant argues that his conviction must be vacated because the statute creating the offense of first degree murder violates the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. We disagree. A plethora of recent decisions by this court have specifically addressed and rejected defendant’s constitutional challenge to the Illinois murder statutes. (See People v. Guidry (1991), 220 Ill. App. 3d 406, 581 N.E.2d 38; People v. Brown (1991), 218 Ill. App. 3d 890, 578 N.E.2d 1168; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215; People v. Cook (1991), 217 Ill. App. 3d 299, 576 N.E.2d 1242; People v. Hrobowski (1991), 216 Ill. App. 3d 711, 575 N.E.2d 1306; People v. Thomas (1991), 216 Ill. App. 3d 469, 576 N.E.2d 1020; People v. Collins (1991), 213 Ill. App. 3d 818, 572 N.E.2d 1005; People v. Lyons (1991), 213 Ill. App. 3d 617, 572 N.E.2d 1163; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041; People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373; People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.) In the written briefs and at oral argument, defense counsel failed to present any new arguments which would necessitate our reconsideration of prior rulings by this court. Accordingly, for the reasons set forth in the above-mentioned cases, we hold that sections 9 — 1 and 9 — 2 of the Criminal Code of 1961 do not violate the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1, 9 — 2.

Defendant next argues that the sentence imposed by the trial court is excessive and should be vacated or reduced. We disagree.

Attempted first degree murder and armed violence are both Class X felonies carrying a sentence of not less than six years and not more than 30 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 33A — 2, 1005 — 8—l(aX3).) The sentencing judge is in the best position to consider matters relating to sentencing determinations and is vested with wide discretion in making a reasoned judgment as to the penalty appropriate to the particular circumstances of each case. (People v. O’Neal (1988), 125 Ill. 2d 291, 297, 531 N.E.2d 366, 368.) A sentence within the statutory guidelines that is alleged to be excessive will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense. People v. Cabrera (1987), 116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716.

Defendant contends that the sentence of 16 years’ imprisonment imposed by the trial court was excessive and unduly harsh in relation to the nature and circumstances of the offense and the history and character of defendant. This contention is without merit. Defendant fired six shots at two police officers in the performance of their duties from a distance of no more than four feet, striking one of the officers four times. While it is true, as defendant argues, that neither of the officers sustained serious bodily injuries as a result of defendant’s actions, we cannot disregard the fact that the only reason that Officer Speakes is alive today is because he was wearing a bulletproof vest.

The record reflects that the trial court took into consideration defendant’s age, education, background, employment status, family status and lack of a significant criminal history when determining defendant’s sentence. We, therefore, find no basis to conclude that the trial court abused its discretion when it sentenced defendant to a term of 16 years’ imprisonment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

TULLY and CERDA, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WILLIAMS, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—0074
    Opinion filed March 31, 1992.
    Rita A. Fry, Public Defender, of Chicago (Murray M. Coffey, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Barbara L. Jones, and Stephen Dinolfo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, James Williams, was convicted of aggravated arson (Ill. Rev. Stat. 1987, ch. 38, par. 20 — 1.1) (the Act) following a jury trial in the circuit court of Cook County and was sentenced to 20 years’ imprisonment. On appeal, he contends that (1) the trial court abused its discretion in sentencing him to 20 years’ incarceration; and (2) the Act is unconstitutional.

We affirm.

Defendant’s conviction stems from a fire that occurred on October 8, 1988, at a three-story apartment building located in Chicago. Joanne Winfield, landlord of the building, testified that she lived in the second-floor apartment of the building with her daughter, Lattice, son, Joseph, and boyfriend, Albert Wade. Claudia Craig lived in the first-floor apartment with her two daughters, three grandchildren and one adopted child, who is severely retarded. Iverson Dumas lived alone in the basement apartment.

The witness testified that she became romantically involved with defendant in January 1988, and that he moved into her apartment. She stated that she ended the relationship after she was mistreated by defendant. Defendant moved out of the apartment in August 1988. The witness further stated that defendant harassed her at work, at home, and over the telephone for approximately three weeks after he moved.

Winfield testified that she and Wade went to bed at approximately 10:30 p.m. on October 8, 1988. She stated that they were awakened by her daughter telling them the house was on fire. The witness further stated that both the front and back doors were engulfed in flames and that the only way to escape was by jumping out of the window. She further stated that her daughter seriously injured her leg by the jump and was taken to the hospital.

Lattice Wade, a college student, testified that on October 8, 1988, she left the apartment to take a friend home at 9:30 p.m. She stated that she saw defendant sitting in an adjacent alley talking to another person at that time. The witness further stated that when she returned home at 11:30 p.m., defendant was still sitting in the alley. She testified that about 45 minutes after she went to her room, she heard noises at the burglar gate outside her room. She testified that she and her brother went to the back door and saw “big red flames.”

Albert Wade testified that he knew Winfield and defendant had a prior relationship which ended on bad terms. He testified that on the day before the fire he saw defendant grab Winfield by the collar and drag her into an adjacent alley. He stated that by the time he ran to the area, defendant had released her.

Claudia Craig testified that she knew both defendant and Win-field. The witness testified that on the day of the fire she spoke with defendant at her home. She stated that defendant threatened to bum down Winfield’s garage if she had it repaired. The witness stated that both the front and back doors of her apartment were engulfed in flames and that she and her family were forced to escape through the front window.

Iverson Dumas testified that he and defendant worked at the same body shop. The witness testified that approximately one week before the fire he saw defendant throw a glass of whiskey in Win-field’s face. The witness further stated that on October 8, 1988, he saw defendant at a neighborhood bar at about 9 p.m. The witness testified that defendant was wearing a white hat and beige jacket. He further testified that he was at home later that evening watching television and that he smelled gas. He stated that he opened the door and saw defendant walking down the alley towards 69th Street. A short time later, the building was on fire.

Dumas further testified that after the police arrived, he pointed out defendant, who was standing across the street. The officer handcuffed defendant and placed him in the back seat of a patrol car with the witness. The witness testified that while in the car defendant told him not to say anything to the police because the “bitch is no good.” Defendant was taken to the police station, and the witness was taken to the hospital.

Following jury deliberations, defendant was found guilty of aggravated arson and was sentenced to 20 years in the Illinois Department of Corrections. Defendant was 65 years old at the time of sentencing.

On appeal, defendant contends that in light of his age and the facts of this case, a 20-year sentence for aggravated arson is excessive.

When imposing a sentence, the trial court must balance between the protection of society and the rehabilitative potential of defendant. (People v. Anderson (1992), 225 Ill. App. 3d 636, 652, citing People v. Cox (1980), 82 Ill. 2d 268, 281.) Further, “[sentencing is largely a matter of judicial discretion and, absent an abuse of that discretion, a sentence may not be altered on review.” People v. Morrison (1991), 218 Ill. App. 3d 403, 405.

Here, the trial court recognized that because defendant was 64 when he was first arrested, any sentence would “significantly impact” the rest of his life. The court further noted that the charge of aggravated arson carries a minimum sentence of 6 years and a maximum of 30 years. However, the court stated that based on the “shocking” and “horrifying” facts of this case, a minimum sentence would be inappropriate. The court, therefore, sentenced defendant to 20 years’ imprisonment.

On balance, we do not believe the trial court abused its discretion in sentencing defendant to 20 years’ imprisonment. Defendant waited until approximately 11:30 p.m., when most of the apartment building residents were asleep, before he ignited both the front and back stairwells of the victims’ homes. Having formerly lived in the building, defendant knew that several children and a severely retarded person lived in the building. The residents on the first and second floors were forced to jump out of windows to save their lives. One victim seriously injured her leg by the jump and had to be taken to the hospital.

We, too, believe that the facts of this case are shocking and horrifying and therefore find that the trial court did not abuse its discretion in sentencing defendant to a term of 20 years’ imprisonment. In doing so, we reject defendant’s contention that his term should be reduced because he was reacting to a set of emotional variables which drove him to an irrational act.

Next, defendant contends that section 20 — 1.1 of the Act is violative of due process because it does not require an enhanced mens rea or any additional culpable intent than simple arson.

In People v. Wick (1985), 107 Ill. 2d 62, and People v. Johnson (1986), 114 Ill. 2d 69, our supreme court found that section 20 — 1.1 of the Act was unconstitutional. The court reasoned that since “aggravated arson, as defined by the statute, [did] not require an unlawful purpose in setting a fire, the statute [swept] too broadly by punishing innocent as well as culpable conduct.” (Johnson, 114 Ill. 2d at 70.) The court further noted that the simple arson statute, a Class 2 felony, required a higher degree of malice or unlawful conduct than aggravated arson, a Class X felony. Johnson, 114 Ill. 2d at 70.

Subsequently, the Act was amended to define an underlying offense which may be enhanced to aggravated offense. The Act states in relevant part as follows:

“A person commits aggravated arson when in the course of committing arson he knowingly damages, partially or totally, any building or structure, *** and (1) he knows or reasonably should know that one or more persons are present therein ***.” Ill. Rev. Stat. 1987, ch. 38, par. 20-1.1.

In People v. Thomas (1990), 137 Ill. 2d 500, 521, the supreme court recognized that the Act, as amended, had been cured of its constitutional infirmities. The current statute, by incorporating the elements of arson, necessarily includes the mental state of knowledge. We therefore find defendant’s contention without merit.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE McNULTY JUSTICE MURRAY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY MITCHELL, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2655
    Opinion filed April 3, 1992.
    MURRAY, J., specially concurring.
    Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Jane Liechty Loeb, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

On October 7, 1985, defendant Leroy Mitchell was charged along with codefendants Fred Halmon and Ruben Young in connection with the 1983 murder of Joyce Partridge, the feticide of her unborn child, the attempted murder of Eugene Anderson (Ms. Partridge’s companion), and the attempted armed robbery of both Partridge and Anderson. Following a combined hearing on motions to quash arrest and suppress evidence, defendants were tried separately. A jury convicted Mitchell of murder (based on an accomplice liability theory) and attempted armed robbery. On July 15, 1988, he was sentenced only for murder to 40 years’ imprisonment.

On appeal, Mitchell alleges not only that the trial court erroneously denied his motion to quash arrest and suppress evidence, but also argues that he was denied a fair and impartial trial because of the trial judge’s bias and improper remarks. Mitchell further maintains that he should be granted a new trial because of pretextual explanations offered by the State in response to defense charges of racial discrimination in its exercise of peremptory challenge of jurors. Finally, Mitchell argues that he should be granted a new sentencing hearing, alternatively, because the sentence imposed was excessive, or because the court erroneously believed that he was eligible for an extended term. For the reasons stated below, we reverse defendant Mitchell’s convictions and remand for an attenuation hearing, a new trial and sentencing hearing.

We have previously set forth the facts surrounding the shooting of Partridge and the attempted armed robbery of Partridge and Anderson in People v. Halmon (1992), 225 Ill. App. 3d 259, 263-64, and hereby adopt that statement for purposes of this appeal. Because the circumstances surrounding the seizure of defendant Mitchell are essentially the same as those in Halmon, we further adopt the Halmon court’s reasoning as regards both the absence of probable cause to arrest this defendant and the lack of this defendant’s consent to voluntarily accompany the police and submit to over 30 hours of intermittent interrogation including a polygraph examination. Accordingly, we conclude that Mitchell, like Halmon, was illegally detained without probable cause. We therefore follow the Halmon holding and reverse the trial court’s denial of Mitchell’s motion to quash arrest and suppress evidence, and remand for an attenuation hearing so that the trial court may determine in the first instance if Mitchell’s confession was sufficiently attenuated from the earlier arrest to purge it from the taint of the illegal seizure.

If, on remand, the trial court determines that there is insufficient attenuation to purge Mitchell’s confession from the taint of the prior illegal seizure, it is directed to suppress the confession and to conduct further proceedings consistent with the remainder of the views expressed herein, also noting that if Halmon’s murder conviction is ultimately reversed, conviction of Mitchell as an accomplice would be clearly erroneous.

If, on the other hand, the trial court concludes that attenuation was sufficient to purge Mitchell’s confession from any prior taint, it must consider his further contention that his confession was in fact coerced. If such is indeed the case, the trial court must suppress the confession and proceed as noted above. Only if Mitchell’s confession is fully attenuated and free from coercion may it be admitted into evidence at a new trial.

We further conclude that Mitchell is entitled to be tried anew, as he was deprived of a fair and impartial trial by the impermissible bias displayed by the trial judge. Illinois courts have long upheld the right of an accused to a fair and impartial trial by jury, “free from influence or intimation by the trial court.” (People v. Sprinkle (1963), 27 Ill. 2d 398, 402, 189 N.E.2d 295, 298. See also People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491.) Our supreme court has cautioned that jurors are “ever watchful of the attitude of the trial judge” and noted that the judge’s lightest word “may prove controlling.” (See People v. Marino (1953), 414 Ill. 445, 450-51, 111 N.E.2d 534.) Moreover, the appellate court has held that a conviction tainted with such judicial error must be reversed “to protect and preserve the integrity and reputation of the judicial process.” People v. Kelley (1983), 113 Ill. App. 3d 761, 767, 447 N.E.2d 973.

In the case at bar, the trial judge displayed bias against the defense in numerous ways. At times he made disparaging remarks regarding defense evidence and theories. This occurred when the defense attorney attempted to impeach the State’s complaining witness, Mr. Andersen, who had testified that the public defender who had interviewed him had misrepresented that he worked for the “District Attorney’s Office.” On recross, defense counsel asked Andersen if he was aware that there was no such thing as a district attorney in Illinois. The court interrupted and undermined the value of any impeachment by stating that there was such a thing as a district attorney and such did exist in the Northern District of Illinois. Not only did the judge’s statement distract the jury from any impeachment value, it also belittled defense counsel and represented testimony for the State. The judge further added to the testimony for the State with his remarks about tape recorders. When defense counsel questioned the State’s Attorney who had taken Mitchell’s statement about why he had not recorded it, the judge interjected that tape recorders “are not used in police stations” or in court. Additionally, the trial judge disparaged defense counsel’s queries regarding lack of fingerprint evidence as well as his questions about the atmosphere in which the questioning of Mitchell occurred. When defense counsel asked Detective Vucko if he went to Mitchell’s house to ask him questions, the judge stated:

“Well, you can ask questions like that until midnight, they didn’t go to the garage, they didn’t go to the park, they didn’t go to the moon, they just went to the station and that’s it.”

This mockery of the defense greatly undermined counsel’s theory that Mitchell’s statements were taken in a coercive atmosphere and could not help but communicate to the jury what the judge was thinking. The judge’s attack on defense counsel continued when counsel tried to ask Mr. Mitchell what he told the police when they “asked” him to go to the station to be interrogated:

“DEFENSE COUNSEL (Mr. Scholz): Did he say can I stay out here and you ask me the questions—
PROSECUTOR (Mr. Steed): Objection.
THE COURT: He just said he doesn’t remember his exact words, and its quite obvious there was no conversation like the one you just made up.”

The direct hostility to Mitchell was perhaps even more obvious during counsel’s direct examination of his client. Counsel had just asked Mitchell what happened when the detective left the interrogation room when the following interchange took place:

“MR. MITCHELL: After he left out the room I was walking around the room, walking around the desk saying to myself that I was being charged with a murder which I know I didn’t commit and—
THE COURT: Saying it to who?
MR. MITCHELL: Saying it to myself.
THE COURT: Oh, to yourself.
MR. MITCHELL: Yes, sir. I was saying I was being charged with a murder which I knew I didn’t commit and I said now I am in trouble. I am in trouble with the police and I might be in trouble with (codefendants) Freddie and Ruben if I tell the police what happened.
THE COURT: Was all this to yourself?
MR. MITCHELL: Yes, sir.

THE COURT: Oh. Okay, next question.”

In addition to hostility, disparagement, and testimony for the State, the trial judge’s bias is also evident in his inconsistent rulings of law in favor of the State. No technical restrictions were applied to the State’s opening statement, and the prosecutor explained without interruption the law of accountability and applied the law to the promised evidence. Yet, when defense counsel merely tried to explain to the jury that his client was presumed innocent, the judge interrupted sua sponte with the following interchange:

“DEFENSE COUNSEL (Mr. Scholz): And as he sits there before you, Mr. Mitchell is presumed—
THE COURT: No, no, no. We don’t want to hear about the law. That’s the Court’s position. We just want to hear from you, Mr. Scholz, what you expect the evidence will demonstrate.
DEFENSE COUNSEL: Well, Judge I think the evidence and the law put together—
THE COURT: No, no, no. Just what you expect- the evidence will demonstrate. I’ll instruct the jury as to the law.”

Even if any one set of judicial remarks would not be enough to create prejudice and bias, these remarks were so pervasive at trial that, coupled with the judge’s hostile attitude, they denied Mitchell the fair trial to which he is entitled. We therefore reverse and remand for a new trial.

Even if we were not to grant Mitchell a new trial because of the prejudicial effects of judicial bias, the improper use of prosecutorial peremptory challenges would mandate the same result. The fourteenth amendment forbids a prosecutor from using a peremptory challenge to excuse a juror solely on account of his race. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) Bat-son demands that once a defendant establishes a prima facie case of purposeful discrimination of a juror, the State must offer a race-neutral explanation for its challenge. We address only the propriety of the State’s explanations as the issue of whether defense has made out a case of prima facie discrimination becomes moot once the trial court has reviewed the race-neutral explanations and ruled on the ultimate question of intentional discrimination. (See Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859. See also People v. Walls (1991), 220 Ill. App. 3d 564, 581 N.E.2d 264.) In the instant action, the only peremptory challenges exercised by the State were against the only blacks who had not been excused for cause. The State offered no reason for its challenge to prospective juror Rachel Woodall, stating only that the defense counsel “knows our reason.” The court stated, “I think I know why the State excused Mrs. Woodall.” These remarks do not constitute the race-neutral explanations contemplated by Batson. As to the other black juror, James Harris, the State explained its peremptory challenge on the basis that it had a rap sheet indicating a man with the same name, same age, and same build was once arrested in Los Angeles. However, as defendant notes, there is nothing in the record to suggest that prospective juror James Harris had ever been to Los Angeles, much less that he had ever been arrested there. Moreover, the State’s failure to ask the judge to clarify any discrepancies as to Harris’ identity lends weight to the argument that its excuse for striking him as a potential juror was clearly pretextual. Thus, the State’s explanation for its challenge was not “clear, legitimate, trial-specific, and race-neutral” as required by Batson. (See also People v. Cannon (1992), 227 Ill. App. 3d 551, 554.) We therefore find that the State failed to rebut the Batson challenge and did not offer race-neutral explanations to satisfactorily rebut the inference that it had excluded Woodall and Harris from the jury due to their race. For these reasons as well, Mitchell is entitled to a new trial.

Because we have determined that Mitchell is to be retried because of judicial bias and the improper exercise of peremptory challenges, we do not address his additional claims pertaining to inflammatory prosecutorial remarks.

Mitchell’s final arguments concern the propriety of the 40-year sentence imposed by the trial judge. He claims that the judge incorrectly considered him eligible for an extended term or alternatively abused his discretion by sentencing him to 40 years. While the record reveals that the trial judge considered an extended term appropriate, it also shows that he chose not to impose one, as he noted that “the evidence was not to the effect that this particular defendant held the gun at the time of the shooting.” In light of our previous determination of judicial bias, we consider it appropriate that a new sentencing hearing follow Mitchell’s trial.

Reversed and remanded.

LORENZ, J., concurs.

JUSTICE MURRAY,

specially concurring:

I agree with the well-reasoned majority opinion as it accurately sets forth and applies the law.

As to the use of peremptory challenges to exclude minority jurors only because of their minority status, I believe it’s about time to point out that the first abuse in the common law of using challenges to exclude otherwise fair jurors was to exclude majorities rather than minorities. It occurred in Dublin, Ireland, in 1844. In 1844 the great Irish patriot, Daniel O’Connell, and eight of his political supporters were charged with conspiracy and other misdemeanors. O’Connell was the first Irish Catholic mayor of Dublin. Like Harold Washington, the first African-American mayor of Chicago, he acted with absolute impartiality to all without consideration of political or religious affiliation.

The names of over 20 Irish Catholics (a majority in Dublin) were omitted from the panel of jurors from which the venire persons to decide O’Connell’s and his eight supporters’ case were to be selected. When the jury was being questioned, the English Crown found 11 more “Irish Catholics” on the panel. All 11 were challenged and excluded as jurors in the case. O’Connell and the eight were found guilty, fined and sentenced to one year’s imprisonment.

O’Connell and the eight appealed, charging as the only traverser, or error, the exclusion of the 11 Irish Catholic jurors. Lord Dewman, then chief justice of England’s high court, reversed the convictions on those grounds in a strongly worded opinion. (M. Hayden & G. Moonan, A Short History of the Irish People From Earliest Times to 1920, 492-93 (1921).) Like many of today’s minorities, O’Connell remained in confinement from his conviction to the date it was overturned.

I point these facts out for the sole purpose of showing that prejudice of any sort has no place in our American system of justice.

      The record of the suppression hearing reveals that a full exploration of the alleged coercion was thwarted by the trial judge, who not only barred the cross-examination of Detective Vucko regarding his treatment of Mitchell, but also banned the introduction of relevant evidence (including Mitchell’s denials of involvement as well as claims regarding misrepresentation of the polygraph test) and also impermissibly relied on his own belief that Mitchell was coached by a “jailhouse lawyer.”