| People v. Willis, No. 1-96-0697
1st Dist. 10-28-98 |
THIRD DIVISION
October 28, 1998
(NUNC PRO TUNC AS OF SEPTEMBER 23, 1998)
No. 1--96--0697
Plaintiff-Appellee, v. TERRANCE WILLIS, Defendant-Appellant. Circuit Court of Cook County. Honorable Daniel Locallo, Judge Presiding. JUSTICE BURKE delivered the opinion of the court: Following a jury trial, defendant Terrance Willis was convicted
and sentenced to 40 years' imprisonment for the attempted first
degree murder of Demetrious McTizic, 10 years' imprisonment for
the attempted first degree murder of Tyrone Rush, the sentences
to run consecutively, and 30 years' imprisonment for armed
violence, the sentence to run concurrently with defendant's
40-year sentence.(1) Defendant appeals his convictions and
sentences, contending that: the trial court erred in allowing the
jury to hear McTizic's and his doctor's testimony at the Cook
County Hospital, the prejudicial effect of which deprived
defendant of a fair trial; defendant was not proven guilty beyond
a reasonable doubt of the attempted murder and aggravated battery
with a firearm of McTizic and Rush, and armed violence against
McTizic; and the trial court abused its discretion in sentencing
defendant to consecutive sentences and an extended sentence. For
the reasons set forth below, we affirm. On July 27, 1994, defendant was arrested after a gang-related shooting incident,
and subsequently indicted. On December 11, 1995, defendant filed a motion in limine
requesting that the trial court deny a motion by the State to allow McTizic and his
physician's testimony to be taken at the Cook County Hospital trauma ward.
Defendant argued that he would be prejudiced by the taking of this testimony in the
hospital because: McTizic's injuries would be "unduly highlighted without adding
anything of probative value"; the jury would concentrate on McTizic's injuries more
than on whether defendant was guilty or not guilty; "[b]y taking the extraordinary
measure of transporting the jury to the hospital," the members of the jury would be
given the impression that the injuries of the witness are more important than the
testimony they will hear in court"; the jury would be exposed to other patients
whose "many and varied traumatic injuries *** could horrify or disgust members of
the jury"; hospital nurses and doctors might "convey personal opinions to the jury
and subvert the objective decision making process"; the trial court would not be
able to control "the unknown and unpredictable circumstances that could prejudice
the defendant"; and the jury would be given the impression that McTizic's condition
was due only to the initial injury and not to the "many intervening circumstances
that caused injury" to him. Defendant also argued that McTizic's testimony was not
crucial to the State's case because McTizic never made an identification of
defendant; taking McTizic's physician's testimony in the hospital would prejudice
defendant; and defendant would further be prejudiced because the jury would see
defendant in the custody of the sheriff. Defendant contended that there were
alternative methods of taking McTizic's testimony, "such as videotape testimony,
deposition testimony, or stipulated testimony," which defendant offered to do. The
trial court denied defendant's motion. At trial, Rush testified that he became a member of the Gangster Disciples street
gang when he was 16 years old, remained a member for about five years and was no
longer a member by the summer of 1994. McTizic and Deandre Bishop were Rush's
friends, and McTizic and Deandre were brothers. On the evening of July 27, 1994,
while it was still light out, Rush and Deandre drove in Rush's car to 7751 South
Phillips in Chicago to pick up McTizic where McTizic lived with his girl friend.
Rush had never been in the area before. When they arrived, Rush waited in the car,
which was double-parked with the windows rolled up and the motor running, while
Deandre went inside to get McTizic. Rush further stated that after Deandre went inside, two men approached Rush's car
from each side. The man standing on the driver's side of the car, who had his hands
under his sweat shirt, was defendant. Rush had known defendant for a period of
about three or four years before this incident because defendant's father had lived
in the same neighborhood as Rush when Rush was about 13 years old, but Rush had not
seen defendant since Rush joined the Gangster Disciples. Rush "raised the window
down" on the car's passenger side, and the man asked Rush, "Is you a psyche,"
meaning are you "Folks" or Gangster Disciples, and Rush told the man, "I ain't
nothing." The man then told Rush to "pull over," and Rush said, "I will pull over
to show you that I ain't nothing." The man near Rush's passenger window also told
defendant, "Don't shoot him yet." Rush then pulled the car over near the corner of
Phillips Street. Theafter, Rush saw Deandre and McTizic in his side mirror coming out of the
apartment building, and when 7 to 10 boys came "from everywhere" and jumped on
Deandre, Deandre fell and then ran, and then jumped on the trunk of Rush's car.
McTizic was "a couple seconds behind" Deandre. Between 7 and 10 people started
hitting McTizic on the head "with bottles and stuff." Rush then saw defendant shoot
at his car, the window shattered and he ducked; Rush then grabbed the steering
wheel and the left side of his face and thought he was shot; Rush turned the corner
on 78th and Phillips, at which time Deandre jumped on the back of the car; and Rush
drove slowly so that McTizic could catch up, but McTizic only made it to the door
handle of the car and fell in the street on the side of Rush's car by the back
wheel. Rush further testified that he had seen defendant stand over McTizic and shoot
downward at him; McTizic was lying on the ground "balled up"; and Rush did not see
anyone else on the scene with a gun, except defendant. At that time, Rush "just
took off" and drove west on 78th Street to the corner of the next block, where his
car hit a van. Deandre then "flew off of the car and went into the tree." Both
Rush's car and the van were "totaled." Rush had "messed up" his legs, but climbed
out of the car, started running down Yates, ran as far as he could, and then fell
down and played dead. Rush also stated that he spoke to some police officers on the scene, but did not
give a description of defendant or defendant's name. An ambulance took Rush to Cook
County Hospital; Rush's jaw was cut open and he had glass in his face. Rush spoke
to Officers Boylan and McDermott in the emergency room, but did not tell them
defendant's name. Rush was released from the hospital the next day, the police came
to his home and asked him if he could identify defendant, he subsequently told the
police that defendant had been wearing green pants and a "red little stripe on the
shirt," and he viewed a lineup at police headquarters and identified defendant.
Rush further testified that he had to wear a patch on his face for a month after
the shooting incident and, at the time of trial, he still had glass in his left
cheek. The trial court subsequently transported the jury and defendant to a conference
room at Cook County Hospital to hear McTizic's testimony. McTizic testified that on
July 27, 1994, he was living at 7751 South Phillips with his girl friend, Allena
Taylor, and her mother. At about 8 p.m., Deandre and Rush came to pick him up. When
McTizic and Deandre left McTizic's apartment building, there were about 15 people
around Rush's car, McTizic and Deandre "rushed to the car" and, when McTizic got to
the car, someone yelled, "Capri killer." As McTizic tried to open the door of the
car, Rush pulled away and McTizic was dragged about three feet by the car and then
fell. Deandre was able to jump on top of the car as Rush pulled away. McTizic got
up, tried to run and heard gunshots going off. He covered his head and the last
gunshot hit him in the ear and he fell. While he was lying on the ground, people
began gathering around him. An ambulance arrived and took him to Cook County
Hospital, where it was determined that he had been shot two times in the abdomen,
once in the left shoulder, once in his left ear and once in his right elbow.
McTizic further stated that he had been under continuous medical care since that
day, he could walk but not like he used to, and he could no longer eat normally.
McTizic also stated that he was not in a gang on the day of the shooting incident,
but had been in the Gangster Disciples before. Dr. John Barrett, a trauma surgeon and the director of the trauma center at Cook
County Hospital, testified that he was McTizic's physician and that McTizic was
brought to the hospital on July 27, 1994, with multiple gunshot wounds to his head,
his right shoulder and his abdominal cavity. The bullet wounds to McTizic's
abdominal cavity were life threatening injuries because they perforated McTizic's
intestines and he would have died if an operation had not been performed on him.
Dr. Barrett further stated that McTizic's gall bladder was removed and his small
intestine had to be shortened from 25 feet to 3 feet; the surgeons attempted to
repair McTizic's duodendum, but failed; McTizic had 8 to 10 operations and had been
under continuous medical care; McTizic was still in the intensive care unit because
of his need for constant intensive care; and the complications experienced by
McTizic were directly related to his gunshot wounds. Thereafter, the jury returned to the courtroom. Allena Taylor then testified that
after McTizic and Deandre left her apartment on the day of the shooting, she heard
gunshots, and went outside and saw McTizic lying on the ground "balled up." John Stella, a forensic investigator for the Chicago Police Department's Crime Lab,
testified that he collected three cartridge cases from the crime scene. No
fingerprints were lifted from the cartridge cases because the intense heat from
firing would have dissipated the fingerprints, if any. Officer Robert Furlong testified that he investigated the accident between Rush's
car and the van. The van was "smashed up" and the car had "extensive damage."
Furlong found Rush and Deandre lying on the grass alongside the car. Rush's face
was bleeding and was "faint." Rush told Furlong that the shooter was wearing a
green shirt with a red orange emblem on it and green pants. Furlong further testified that he spoke to Deandre who "was very upset almost to
the point of going into shock" and was crying, trembling and shaking. At that time,
Deandre told Furlong that his name was Emmett Carter. Officer Furlong and two other
police officers, Otten and Coleman, toured the area for five or six blocks around
78th and Yates in an unmarked squad car with Deandre. On the corner of 78th and
Phillips, there was a large group of 15 to 20 people, including 7 or 8 young black
males. Deandre told them to stop and back up, and then identified defendant who was
standing in the group. Defendant was on a "little bike" at the time. Officer
Furlong walked through the crowd, trying "to make it look like *** [he] wasn't
going for anybody in particular," and went up to defendant and identified himself
as a police officer. Furlong searched defendant and did not find anything on him.
Furlong then handcuffed defendant and told him why he was being arrested. Furlong
further stated that Deandre identified defendant as the shooter. Detective James Boylan testified that the Black Stones street gang frequented the
area of "73rd Street to 83rd Street, from Yates east to approximately Colfax." The
Gangster Disciples frequented the area of "73rd Street to 83rd Street, from Colfax
east to the lake." The area of 78th and Phillips was Black Stones territory. The
"People" were gangs aligned with the Vice Lord street gang and the "Folks" were
gangs aligned with the Gangster Disciples. The Black Stones were aligned with the
People. During the summer of 1994, the Gangster Disciples were at war with the
Black Stones. Defendant had told Boylan that he was affiliated with the Black
Stones on June 9, 1994. Boylan subsequently went to the hospital and interviewed
Allena Taylor and Rush in the emergency room. Rush told Boylan that Deandre jumped
on the hood of the car and yelled for Rush to drive off. Rush also told Boylan that
he turned westbound on 78th Street, heard a volley of gunfire, saw several black
men with guns in their hands, and one of the men with a gun who approached his car
"was medium complected [sic] about 19 to 20 years old wearing a green fuzzy hat
with the brim turned up, red shirt and blue jeans." Boylan later interviewed
Deandre. The next day, Boylan conducted a lineup, which included defendant. Rush
viewed the lineup and identified defendant within seconds. Deandre testified that he was McTizic's brother and that Rush was his friend.
Deandre physically indicated how he had looked behind him after jumping on Rush's
car and had seen defendant's face and saw defendant shoot McTizic five times while
McTizic was "[b]alled on the floor covering his head." Deandre was a car length
away when he saw McTizic being shot. Deandre also testified that defendant was the
only person with a gun. After the police arrived, Deandre told the police what had
happened and told them his name was Emmett Carter because he was too scared to give
his real name. The police placed Deandre in their car and handcuffed him for about
five minutes, then took the handcuffs off. Deandre rode with the police officers to
the corner of 78th and Phillips, Deandre then told the police to back up after
driving past a group of people, and identified defendant in the group to the
police. The police then "grabbed" defendant and asked Deandre if he was certain of
his identification and Deandre said he was sure that defendant was the one who shot
McTizic. The State rested, and defendant called Officer Marvin Otten as a witness. Otten
testified that he spoke to Deandre at 78th and Yates. Deandre gave a description of
the shooter as a male black wearing green pants and a green shirt with orange or
red writing. Otten also corroborated Furlong's testimony. Defendant then rested. The jury subsequently found defendant guilty of the
attempted first degree murder of McTizic and Rush, aggravated battery with a
firearm of McTizic and Rush, and armed violence against McTizic. At his sentencing hearing, defendant moved for a new trial, arguing, among other
issues not raised in this appeal, that he was prejudiced as a result of the jury's
visit to the hospital to hear McTizic's and Dr. Barrett's testimony. The trial
court denied defendant's motion, stating, in pertinent part: The trial court then heard arguments in aggravation and mitigation. The State requested that
defendant be sentenced to an extended term because of the extremely brutal nature of the crimes,
and argued that no facts in mitigation existed while several factors in aggravation did. Defendant
called witnesses in mitigation and his counsel argued that there were factors in mitigation,
particularly hardship to defendant's family, his nonviolent nature as perceived by his family, and
his rehabilitative potential. Defendant made a statement that he "condone[d] the jury's feelings"
regarding "the bodily harm done to the guy *** in the hospital," but that he did not commit the
crimes and he wished there was some way for him to prove to the court that he did not commit
the crimes. Thereafter, the trial court, in sentencing defendant, stated: The trial court sentenced defendant to 40 years' imprisonment for
the attempted first degree murder of McTizic and 10 years for the
attempted first degree murder of Rush, the sentences to run
consecutively. The trial court found that the aggravated battery
with a firearm counts merged into the attempted murder counts.
The trial court also sentenced defendant to 30 years'
imprisonment for armed violence, to run concurrently with
defendant's 40-year sentence for the attempted murder of McTizic.
This appeal followed. Defendant first contends that the trial court erred in allowing
the testimony of McTizic to be taken at Cook County Hospital.
Defendant argues that the jury's hearing of McTizic's testimony
at the hospital had very little probative value "but very high
prejudicial value" and the jury was unduly influenced by the
hospital setting, thereby depriving defendant of his right to a
trial by an impartial jury. Defendant further contends that under
Rule 804 of the Federal Rules of Evidence, McTizic was
unavailable as a witness and the trial court abused its
discretion in allowing McTizic to testify. Defendant also
maintains that because Supreme Court Rule 414 provides that the
court may order a witness to submit to an evidence deposition if
it is possible that the witness would be unavailable for the
trial, the trial court erred in ordering the jury to travel to
the hospital to hear McTizic's testimony rather than using the
alternative methods of taking McTizic's deposition or by
affidavit or allowing defendant to stipulate to McTizic's
testimony, which would have avoided "the undue prejudicial effect
of the hospital visit." The State argues that the trial court acted within its discretion
in allowing the jury to travel to the hospital to hear McTizic's
testimony because he was unable to leave the hospital. The State
maintains that it was not required to accept defendant's offer of
a stipulation, it had the right to prove every element of its
case and McTizic provided testimony that defendant's actions
caused him great bodily harm and evidence regarding the events
surrounding the crimes. The State further contends that the trial
court "took strict measures to ensure that the jury was not
exposed to" unnecessary factors while at the hospital and that
"defendant was protected by the careful manner of the
proceedings." It is well settled that "the prosecution is not disabled at trial
from proving every element of the charged offense and every
relevant fact, even though the defendant fails to contest an
issue or is willing to stipulate to a fact." People v. Bounds,
171 Ill. 2d 1, 46, 662 N.E.2d 1168 (1995). For example, in People
v. Speck, 41 Ill. 2d 177, 201, 242 N.E.2d 208 (1968), where the
defendant had agreed to stipulate to the identity of the
decedents involved and the cause of their deaths, the defendant
maintained that it was prejudicial error by the trial court to
allow the admission of photographs of the bodies of the deceased
women because they lacked any probative value and were so
shocking in nature that they would inflame the passions of the
jurors, and to allow the testimony of a pathologist and the
victims' relatives. The Speck court, in rejecting the defendant's
argument as to the admission of the photographs and testimony of
the pathologist, held that the State "had the right under the
defendant's plea of not guilty to prove every element of the
crime charged and was not obligated to rely on the defendant's
stipulation." Speck, 41 Ill. 2d at 201. The Speck court further
stated: "A court, in its discretion, may permit a jury to view evidence
outside of the courtroom." People v. Loggins, 257 Ill. App. 3d
475, 481, 629 N.E.2d 137 (1993). In the present case, we find that the trial court did not abuse
its discretion in allowing the jury to hear McTizic's testimony
at the hospital. While hearing McTizic' testimony in the hospital
setting may have been upsetting to some jurors, the State had the
right to present evidence of every element of the crimes charged
against defendant, which included McTizic's testimony regarding
the severity of his bodily injuries and his memory of the
incident in which he was injured, notwithstanding that
alternative methods for obtaining McTizic's testimony, as argued
by defendant, existed. The State was entitled to prove this
element and we believe that the probative value of this testimony
outweighed any prejudicial effect. Moreover, we fail to see how
viewing McTizic at the hospital would be any different than
viewing him in a courtroom in light of the fact that his medical
condition would have required him to be accompanied by medical
personnel and machines in the courtroom, as he was at the
hospital. We briefly note that the cases and evidentiary rules relied upon
by defendant are completely inapplicable to the issue at bar.
Defendant cites to Rule 804 of the Federal Rules of Evidence (28
U.S.C.A. Rule 804) which contains a definition of what
constitutes the unavailability of a witness. Defendant provides
no authority supporting why federal rules of evidence are
applicable in a State criminal proceeding. Moreover, Rule 804
does not limit a State trial court's discretion in allowing a
jury to hear the testimony of a witness at a hospital and, in
fact, the clear purpose of Rule 804 is to establish when
statements by an unavailable declarant are admissible as an
exception to the hearsay rule. Similarly, nothing in Supreme
Court Rule 414 (134 Ill. 2d R. 414), which provides that a trial
court may order an evidence deposition of an unavailable witness,
specifies any prohibition of where a deposition may be taken, and
defendant fails to cite to any authority in support of his
argument otherwise. Defendant also relies on McDonald v. Pless, 238 U.S. 264, 59 L.
Ed. 1300, 35 S. Ct. 783 (1915), People v. Preston, 76 Ill. 2d
274, 391 N.E.2d 359 (1979), and People v. Nuccio, 54 Ill. 2d 39,
294 N.E.2d 276 (1973), for the proposition that "when a jury is
unduly influenced by events external to the jury members
themselves, such as the hospital setting in this case," his "6th
amendment right to trial by [an] impartial jury is compromised."
However, these cases are distinguishable from the present case;
none of them involved the propriety of transporting a jury to a
hospital to hear the testimony of a crime victim. McDonald, 238
U.S. at 269 (the Court held that the losing party in a case
cannot use the testimony of jurors to impeach their verdict in
order to have a new trial); Preston, 76 Ill. 2d at 278 (the court
considered the propriety of a supplemental instruction given to
the jury, the "alleged failure of the trial court to explore
fully a response made by a juror during the polling of the jury,"
and the trial court's refusal to admit a post-trial deposition of
a juror); Nuccio, 54 Ill. 2d at 40-41 (the court considered the
defendant's claims that the trial court erred in allowing the
prosecution 13 peremptory challenges and failed to question
jurors regarding an allegation of jury contamination, he was
deprived of a fair trial by prejudicial comments made by the
prosecutor in closing argument, the prosecution knowingly offered
false and prejudicial testimony, and the evidence was
insufficient to prove him guilty of murder). Defendant also
contends that the trial court erred in allowing Dr. Barrett to
testify at the hospital, "thereby buttressing the victim's
testimony and increasing the prejudicial effect." Defendant
argues that the trial court's wish to make testifying convenient
and accommodating to Dr. Barrett "trampled on the constitutional
right of the [defendant] to a fair and impartial trial."
Defendant asserts that convenience and accommodation are not
"enveloped in the definition of availability" within "the Federal
Rules of Evidence, Supreme Court Rules or case law." Defendant
argues that Dr. Barrett's testimony dealt exclusively with
McTizic's injuries and "had no probative effect as it related to"
defendant. The State argues that the trial court properly acted within its
discretion, and that "it was natural and proper for the trial
court to accommodate Dr. Barrett and allow him to testify" at the
hospital. The State maintains that Dr. Barrett's testimony was
important to demonstrate the grave bodily harm experienced by
McTizic. The State also argues that because Dr. Barrett's
testimony would have been the same in the hospital or the
courtroom, defendant was not prejudiced by the jury hearing his
testimony at the hospital. The trial court has the discretion to allow the jury to hear
testimony outside of the courtroom. Loggins, 257 Ill. App. 3d at
481. From the facts presented here, especially considering the
fact that the jury was already in the hospital to hear McTizic's
testimony, we find that the trial court did not abuse its
discretion in allowing Dr. Barrett to testify in the conference
room at the hospital. Dr. Barrett's testimony supported an
element of proof of the State's case against defendant, i.e.,
that McTizic suffered great bodily harm, and even though
Barrett's testimony may have been "difficult" for the jury to
hear becaue of the nature of McTizic's bodily injuries, "[a]
party cannot have competent evidence excluded merely because it
might arouse feelings of horror and indignation in the jury."
Speck, 41 Ill. 2d at 202, quoting Jenko, 410 Ill. 478. Moreover,
we find no undue influence flowing from the taking of Dr.
Barrett's testimony at the hospital because the jury had already
heard McTizic's testimony in the hospital surroundings and any
alleged undue influence would have been present as a result of
hearing McTizic's testimony there, as discussed above. We briefly note that defendant again relies on Rule 804 of the
Federal Rules of Evidence and Supreme Court Rule 414 in arguing
that the convenience and accommodation of Dr. Barrett are not
"enveloped in the definition of availability." Defendant's
argument is meritless because, not only in light of our
discussion above regarding the inapplicability of Rule 804, Dr.
Barrett was not an "unavailable" witness, Rule 414 is
inapplicable since Barrett was not an unavailable witness, and
the trial court's decision to accommodate Dr. Barrett was within
the trial court's discretion. Defendant's reliance on McDonald,
Preston and Nuccio is also misplaced for the same reasons stated
above regarding McTizic's testimony. Defendant next contends that the jury erred in finding him guilty
beyond a reasonable doubt of the crimes charged and that, absent
the prejudice imposed upon defendant by the trial court in
allowing the jury to hear McTizic's and Dr. Barrett's testimony
at the hospital, the jury would not have found him guilty.
Defendant argues that Rush was not a credible witness based on
Rush's "multiple convictions, pending cases, gang membership, and
little if any opportunity to observe" the shooter. Defendant also
asserts that Rush was not credible because, after being driven
around by the police to look for the shooter immediately after
the shooting, Rush failed to tell the police that he knew
defendant was the shooter.(2) Defendant further argues that
because McTizic did not identify defendant "as being the shooter
or even being present as one of the 15 gang members who attacked
him," Rush's testimony identifying him was uncorroborated.
Accordingly, defendant maintains that the testimony of McTizic
and Rush was not enough to prove him guilty beyond a reasonable
doubt. Defendant does not make any argument regarding Deandre's
testimony. Defendant lastly argues that "[t]here was no testimony
offered linking [him] to the injuries suffered by Mr. Rush and no
basis for an accountability or transferred intent theory as well
as no jury instructions in that regard." The State contends that the jury properly found defendant guilty
beyond a reasonable doubt, arguing that considering the evidence
presented in the light most favorable to the State, "there is no
reasonable doubt of defendant's guilt" and that the jury was free
to accept the witnesses' testimony and that the jury believed
that Rush and Deandre properly identified defendant. "The standard to be applied in considering the sufficiency of the
evidence is 'whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.'" (Emphasis in original.) Bounds, 171 Ill. 2d
at 46, quoting People v. Collins, 106 Ill. 2d 237, 261, 478
N.E.2d 267 (1985). The credibility of witnesses is within the
sole province of the trier of fact. People v. Steidl, 142 Ill. 2d
204, 226, 568 N.E.2d 837 (1991). Here, the State's evidence against defendant was substantial.
The State presented the identification testimony of Rush and
Deandre regarding the shooting incident. Deandre testified that
defendant was the only person he saw with a gun, Rush and Deandre
saw defendant stand over McTizic and shoot him, both Rush and
Deandre testified that defendant attempted to shoot Rush, and
police officers witnessed Rush and Deandre's identification of
defendant after the crimes. The State also presented unrefuted
testimony showing that defendant was a member of the Black Stones
gang and the gang was involved in a "war" with the Gangster
Disciples at the time of the incident in question. After viewing
the evidence in the light most favorable to the prosecution, we
find that it is clear that a rational trier of fact could have
found the essential elements of the crimes with which defendant
was charged beyond a reasonable doubt. Briefly, we note that defendant's argument, that the jury's
verdict would have been different if the jury had not heard
McTizic's and Dr. Barrett's testimony at the hospital, is
unconvincing. As discussed above, the trial court did not abuse
its discretion in allowing the jury to hear testimony at the
hospital and, moreover, even absent the testimony of McTizic and
Dr. Barrett, the State presented overwhelming evidence of
defendant's guilt which a rational trier of fact could have found
that defendant committed the crimes for which he was charged.
Therefore, we conclude that the jury's verdict would not have
been different. Defendant also contends that the trial court erred in sentencing
him to consecutive sentences. Defendant argues that the trial
court, prior to sentencing him to consecutive sentences, was
required, but failed, to make specific findings of fact in the
record that "having regard to the nature and circumstances of the
offense and the history and character of the defendant, it is the
opinion [of the court] that such a term is required to protect
the public from further criminal conduct by the defendant." The State contends that defendant waived this issue by failing to
file a written post-sentencing motion within 30 days of the trial
court's sentence. Alternatively, the State maintains that the
sentence imposed by the trial court was not an abuse of
discretion. The State argues that consecutive sentences are
proper when a defendant has committed a Class X or Class 1 felony
and has caused great bodily injury and, here, defendant was
convicted of two counts of attempted murder, a Class X felony,
and defendant caused great bodily harm. The State further argues
that there is nothing in the sentencing statute that requires the
trial court to recite specific language in imposing consecutive
sentences. Failure to raise a sentencing issue at the time of sentencing or
in a motion to reconsider constitutes waiver for purposes of
appeal. People v. McCleary, 278 Ill. App. 3d 498, 501, 663 N.E.2d
22 (1996). We find that defendant has waived these issues by
failing to raise objections to his sentence at his sentencing
hearing or in a post-sentencing motion to reduce sentence. Notwithstanding defendant's waiver, we also find his arguments
without merit. It is well settled that "[t]he sentence imposed by
a trial judge is entitled to great deference. *** Its ruling will
not be disturbed absent an abuse of discretion. *** A sentencing
judge is presumed to have considered all relevant factors absent
a contrary showing in the record." People v. Back, 239 Ill. App.
3d 44, 80, 605 N.E.2d 689 (1992). The Unified Code of Corrections states, in pertinent part: Attempted murder is a Class X felony for the purposes of
consecutive sentencing. People v. Perkins, 274 Ill. App. 3d 834,
836, 655 N.E.2d 325 (1995). "Under section 5-8-4(a) of the
Unified Code of Corrections ***, a circuit court must impose
consecutive sentences where multiple offenses are part of a
single course of conduct without a substantial change in the
criminal objective, when (1) one of the convictions is a Class X
or Class 1 felony and the defendant inflicted severe bodily
injury, or (2) one of the convictions is for either aggravated
criminal sexual assault or criminal sexual assault." (Emphasis in
original). People v. Arna, 263 Ill. App. 3d 578, 589, 635 N.E.2d
815 (1994). We find that the trial court here did not err in imposing
consecutive sentences and, in fact, the trial court would have
erred if it had not imposed consecutive sentences. The evidence
clearly showed that defendant committed the attempted murder, a
Class X felony, of both Rush and McTizic in a single course of
conduct without a substantial change in his criminal objective
and caused severe bodily injury to McTizic. Accordingly, section
5--8--4(a) of the Code required the trial court to impose
consecutive sentences. We briefly address defendant's argument that section 5--8--4(b)
required the trial court to make specific findings that the
consecutive terms were necessary to protect the public, and we
find it unpersuasive. The statute provides that "[t]he court
shall not impose a consecutive sentence except as provided for in
subsection (a)." 730 ILCS 5/5--8--4(b). Therefore, section
5--8--4(b), rather than imposing additional requirements on the
trial court imposing consecutive sentences under section
5--8--4(a), merely requires the trial court to make these
findings in the event it imposes a consecutive sentence absent
the conditions set out in section 5--8--4(a). Lastly, defendant contends that the trial court abused its
discretion in sentencing him to an extended term. Defendant
argues that the trial court failed to take into account
mitigating evidence and that the trial court abused its
discretion in finding defendant's conduct to be exceptionally
brutal or heinous. Defendant asserts that the trial court's
description of defendant's conduct that he "stood over and fired
down at the victim" was not supported by the record. Defendant
maintains that even if the evidence is considered in the light
most favorable to the State, the "shooter's" conduct was not
"exceptionally brutal, heinous or wantonly cruel or even
out-of-the-ordinary." The State contends that an extended sentence was appropriate
because defendant's conduct was exceptionally brutal or heinous.
The State argues that the trial court expressed its intent to
protect the public from defendant at sentencing. The State
maintains that the trial court properly sentenced defendant and
explained its reasoning while doing so. The State further argues
that the mitigating factors presented by defendant "did not stand
much chance of tipping the balance greatly in his favor" in
comparison with the brutal nature of his crimes. The State also
argues that the trial court did take into account the mitigating
factors in sentencing defendant. The State further argues that
the record shows that the trial court's description of
defendant's shooting of McTizic was correct. As this court stated in People v. Champs, 273 Ill. Ap. 3d 502,
652 N.E.2d 1184 (1995): We find that the trial court did not abuse its discretion in
sentencing defendant to an extended term. The trial court made
specific findings that defendant's actions "were exceptionally
brutal and heinous and indicative of wanton cruelty." The fact
that defendant has a different opinion of the severity of his
actions does not show that the trial court abused its discretion. We also reject defendant's argument that the trial court's
characterization of the evidence of defendant's actions was
incorrect based on the court's statement that defendant "stood
over an unarmed, defenseless Demetrios [sic] McTizic and fired
down at him." Contrary to defendant's argument, there was ample
evidence in the record, based on Rush's and Deandre's testimony,
that McTizic was lying on the pavement while defendant stood over
him and shot him several times. We therefore hold that the trial
court did not abuse its discretion in sentencing defendant. For the reasons stated, we affirm the judgment of the circuit
court. Affirmed. CAHILL, P.J., and LEAVITT, J., concur. Footnotes: 1. Defendant was also found guilty of two counts of aggravated battery with a firearm, which
merged with his attempted murder convictions. 2. Defendant has confused Rush's and Deandre's testimony; Deandre, not Rush, accompanied the
police and identified defendant in a group of people while touring through the neighborhood.
THE PEOPLE OF THE STATE OF ILLINOIS,
Appeal from the
" *** [T]his Court recognizes that the Illinois Constitution and Illinois law allows that a
person who is a victim of a crime I believe has a right to testify surrounding the
circumstances of the events which caused the injury.
*** I believe that under People versus Speck, the Prosecution does not have
to accept an offer by the Defense to stipulate to certain testimony. The
Prosecution had a right to proceed to trial in the manner in which they wish
to put on their case.
***
In order for the Prosecution to prove their [sic] case beyond a reasonable
doubt at least as to the armed violence, they had to show not only was the
Defendant Mr. Willis armed with a dangerous weapon, that being a handgun, but
that he also intentionally and knowingly without legal justification caused
great bodily harm to Demetrios [sic] McTizic. There was information brought to
the Court that Mr. McTizic could not be brought into this facility for
purposes of testifying based upon his health. There was a request that the
jury be brought to the hospital.
This Court believes that Mr. McTizic had a right to testify, and that because
of one of the issues was whether there was great bodily harm that the finder
of fact, that being the jury, had a right to assess not only his testimony but
also the testimony regarding his care.
This Court does not see why a witness cannot be an accommodated, that being
Dr. Barrett. We were at the hospital. To me it doesn't make any sense that Dr.
Barrett, who was the head trauma surgeon at Cook County Hospital, could not be
accommodated also. This Court does not believe that we should make it
inconvenient for witnesses to testify. ***
In this particular instance this Court felt it had a duty to allow Mr. McTizic
to tell what he could regarding the events of July 27, 1994. While he could
not identify Mr. Willis, he still could testify about what happened to him and
what happened to him since. And the Prosecution I believe had a right to call
Mr. McTizic to establish if they could before the finder of fact the great
bodily harm to Mr. McTizic.
*** And through no fault of Mr. McTizic, he is in a condition at the hospital.
There is nothing he can do about the fact that he is constantly being treated
and basically being sustained in a sense by machines.
***
I do not find that I should be controlled by a Defense offer to take a
deposition or to proceed by way of stipulation. I believe that this Court took
steps to ensure that the jury was not prejudiced by the fact that they went to
the hospital facility.
***
The jury was brought to a room in a secluded spot in the hospital. No other
personnel, no other injured individuals were brought into the courtroom
besides the attorneys involved. The press was allowed to attend the proceeding
because this is an open society, but this Court took specific steps to ensure
that the jury could only concentrate on the evidence that was presented at the
hospital through Mr. McTizic and Dr. Barrett.
***
And likewise, this Court again does not feel the fact that Dr. Barrett was
accommodated, he is the chief trauma surgeon, and this Court believes that
judges have a duty to do the best they can when it comes to witnesses. And
since we were at the hospital, this Court does not find the fact that Dr.
Barrett was not required to testify in the courtroom, since he was there, this
Court feels that under those circumstances it was best to let him testify
there to accommodate his schedule."
" *** In assessing the appropriate sentence, the Court takes into consideration the facts of this case, the
information the statements of respective counsel and the statements of Mr. Willis.
With respect to mitigation, this Court agrees with Mr. Mayfield [defendant's
attorney], that there are factors in mitigation which exist on behalf of Mr.
Willis. This Court takes into consideration that Mr. Willis is 22 years of
age.
This Court takes in consideration the potential for rehabilitation that Mr.
Willis possesses. *** I believe he can be rehabilitated once he serves his
sentence. *** He does have a family, a family that loves him, obviously. And I
am sure he loves his family. And I am sure that his three children and his
wife or his girlfriend [sic] love him also. He has probably been a good father
to them.
I take into consideration that Mr. Willis has previously been shot. In 1988 he
was shot in the stomach. And he also was shot in the lower leg in 1994. I
believe that imprisonment here will cause hardship to his dependents. ***
***
With respect to aggravation, the Court recalls vividly the testimony. As far
as the Court is concerned, the heroic testimony of Mr. Rush and *** [Deandre].
They came in here and described vividly the events of July 27th, a situation
where three young men out to enjoy themselves, not affiliated with any gang,
went to a location. Two people went to a location to pick up Demetrios [sic].
The Court recalls the testimony that it was the Defendant who had Mr. Rush pull his car
over because the Defendant was checking on what type of gang Mr. Rush was in, and Rush
was trying to show the Defendant that he was not in a gang.
The Court recalls the vivid testimony about how an unwarranted attack occurred
on Demetrios [sic] McTizic by at least seven individuals who started beating
him. And the Court recalls the vivid testimony about how Mr. Willis, the
Defendant, stood over Demetrios [sic] McTizic and fired his weapon as McTizic
was in a fetal position on the sidewalk, an unwarranted attack on Mr. McTizic.
The Court also vividly recalls the fact that Tyrone Rush in attempting to get
away, that *** [Deandre] was on the car as the car drove off, and the
Defendant had fired at Rush, that the bullet had entered into the vehicle, and
Mr. Rush received a wound from flying glass, and that eventually they did
crash and luckily Mr. Rush and [Deandre] were not further injured when
attempting to get away.
The Court finds that those facts are aggravating. The Court finds with respect
to other factors in aggravation, the Court finds that statutorily the
Defendant's conduct did cause serious harm to McTizic and threatened serious
harm to Mr. Rush.
The Defendant does have a prior history of criminal activity, a conviction for
possession of a controlled substance and delivery of a controlled substance.
It is a criminal history, but the Court will say it is not a significant
criminal history.
With respect to Point 7, this Court finds that the sentence here is necessary
to deter others from committing the same crime. The Court finds that at the
time of this occurrence the Defendant was serving a period of probation,
having been given probation on January 13, 1992.
The Court finds that another factor in aggravation is that this offense was
committed while he was participating I believe in gang related activity,
checking on the status of Mr. Rush and then joining in with fellow gang
members and then being the main instigator in that shooting of Mr. McTizic and
shooting at Mr. Rush.
With respect to an extended term, the Court finds that Point 2 is applicable,
when a Defendant is convicted of any felony and the Court finds the offense
was accompanied by exceptionally brutal or heinous behavior indicative of
wanton cruelty, this Court finds that when Mr. Willis stood over an unarmed,
defenseless Demetrios [sic] McTizic and fired down at him, that based upon the
number of shots and the manner in which Mr. McTizic was nearly executed, I
find that Mr. Willis' actions were exceptionally brutal and heinous and
indicative of wanton cruelty.
It is hard to conceive that Mr. Willis, who in fact has been a victim of a
gunshot wound, would not know the pain and would not know the terror that one
would receive when being shot.
Yet, this Court finds that he had no hesitation in inflicting serious wounds
upon Mr. McTizic. The evidence is overwhelming that there was great bodily
harm to Mr. McTizic as evidenced by the testimony of both Mr. McTizic and Dr.
Barrett."
"'Evidence having a natural tendency to establish the facts in controversy should be
admitted. A party cannot have competent evidence excluded merely because it might
arouse feelings of horror and indignation in the jury. Any testimony concerning the details
of a murder or other violent crime may have such tendencies, but manifestly this could not
suffice to render it incompetent. *** [Q]ueasiness relating to the character of the evidence
offered, and the manner and extent of its presentation, are largely within the discretion of
the trial judge, and the exercise of that discretion will not be interfered with unless there
has been an abuse to the prejudice of the defendant.'" Speck, 41 Ill. 2d at 202-03, quoting
People v. Jenko, 410 Ill. 478, 102 N.E.2d 783 (1951).
"(a) The court shall not impose consecutive sentences for offenses which were committed
as part of a single course of conduct during which there was no substantial change in the
nature of the criminal objective, unless, one of the offenses for which defendant was
convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury,
*** in which event the court shall enter sentences to run consecutively. ***
(b) The court shall not impose a consecutive sentence except
as provided for in subsection (a) unless, having regard to
the nature and circumstances of the offense and the history
and character of the defendant, it is of the opinion that
such a term is required to protect the public from further
criminal conduct by the defendant, the basis for which the
court shall set forth in the record." (Emphasis added.) 730
ILCS 5/5--8--4(a)(b) (West Supp. 1996).
"An extended term sentence may be imposed if the court finds that the offense was
accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. ***
Behavior is exceptionally brutal and heinous where the shooting is systematic, unprovoked,
continues after the victim has been struck, and lacks any logical reason. [Citation.] Cruelty
is a disposition to inflict pain or suffering. [Citation.] A single act that causes death or
injury may be sufficient to demonstrate exceptionally brutal or heinous behavior." Champs,
273 Ill. App. 3d at 510.