People v. Carlisle , 35 N.E.3d 649 ( 2015 )

2015 IL App (1st) 131144
No. 1-13-1144
Fifth Division
June 30, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
) No. 10 CR 2330
v. )
) The Honorable
RASHAUN CARLISLE, ) Carol A. Kipperman,
) Judge Presiding.
Defendant-Appellant. )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant was found guilty by a jury of five counts of attempted first degree murder,
one count of aggravated battery with a firearm, and one count of aggravated discharge of a
firearm after he used a sawed-off shotgun to shoot police officer Robert Vicari and shot at
police officer Terry Carr in Stone Park, Illinois. 720 ILCS 5/9-1(a)(1) (West 2008); 720
ILCS 5/12-4.2(a)(1) (West 2010); 720 ILCS 5/24-1.2(a)(3) (West 2010). After hearing
arguments in aggravation and mitigation, defendant was sentenced to 60 years with the
Illinois Department of Corrections (IDOC) for five counts of attempted first degree murder.
No. 1-13-1144
¶2 On this direct appeal, defendant claims that: (1) the trial court erred by barring the
testimony of expert witness Donald Mastrianni, a gun store owner whose testimony would
have helped establish defendant's intent; (2) defendant received ineffective assistance of
counsel because defense counsel failed to lay a proper foundation to introduce into evidence
a supplementary investigation report from Detective Christopher Pavini, which defendant
claims would have impeached the testimonies of Vicari and Carr, and supported defendant's
claim as to his intent, and; (3) the mittimus should be corrected to reflect only two counts of
attempted first degree murder, and the counts of aggravated battery with a firearm and
aggravated discharge of a firearm should be merged into the two counts of attempted first
degree murder. At to the last point, the State agrees and the mittimus is corrected
accordingly.
¶3 Defendant's five counts of attempted first degree murder derive from two single acts,
and they must be reduced to two counts of attempted first degree murder pursuant to the one-
act, one-crime rule. People v. King, 66 Ill. 2d 551, 566 (1977). Further, pursuant to the oral
pronouncement given by the trial court, defendant's counts for aggravated battery with a
firearm and aggravated discharge of a firearm are merged into the two counts of attempted
first degree murder. Thus, the mittimus should reflect only two counts of attempted first
degree murder and is corrected accordingly.
¶4 For the following reasons, we do not find persuasive defendant's claims: (1) that the
trial court erred in barring the testimony of Donald Mastrianni; and (2) that the denial to enter
into evidence Carr's and Vicari's previous statements to Detective Christopher Pavini was
error and prejudiced defendant. We affirm.
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No. 1-13-1144
¶5 BACKGROUND
¶6 We provide a detailed description of the testimony below, but in sum, the State's
evidence at trial established that on May 8, 2010, at 2:50 a.m., defendant stood on the median
strip of Mannheim Road near Division Street in Stone Park, Illinois, and fired two rounds
from a sawed-off shotgun at police officers Robert Vicari and Terry Carr, who were called to
investigate a disturbance. Officer Vicari was wounded in the face and shoulder, and Officer
Carr was not injured. Defendant fled the scene and was subsequently apprehended.
¶7 I. Pretrial Motions
¶8 Before trial, the trial court allowed Donald Mastrianni, the owner of Illinois Gun
Works and a certified instructor of firearm and gun safety classes, to examine the sawed-off
shotgun used by defendant. Based on Mastrianni's visual inspection and firing of the sawed-
off shotgun and measurements of the crime scene, Mastrianni was prepared to opine that the
shotgun was not deadly at the distance from which it was fired.
¶9 On March 8, 2012, the State sought to bar his testimony, and the court held a hearing
on the admissibility of his expert opinions. The State argued that, pursuant to Illinois case
law, 1 the State would not be required to prove that a gun is a deadly weapon. The State
argued that, because a gun is a per se deadly weapon, there was no reason for defense
counsel to call an expert witness who would opine that the shotgun was not a per se deadly
weapon from a certain distance. Defense counsel agreed that a sawed-off shotgun was a per
se deadly weapon; however, "[w]hat our expert would testify to is that [the sawed-off
shotgun is] old and the distance from which it was fired, it is not deadly." Defense counsel
and the State then engaged in the following exchange:
1
The case cited by the State is People v. Merritt, 367 Ill. 521 (1937).
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No. 1-13-1144
"DEFENSE COUNSEL: *** I think the gun, the sawed-off shotgun from the
distance we're all here, clearly it's deadly, but that's not what's being done here. And
[defendant] he's certainly no firearm expert. He can have some knowledge of the gun.
He knows what it can do. He could testify what he thought it could do from the
distance that he fired it. That's for the trier of fact. But the expert could bolster,
reinforce, that indeed what [defendant's] perception was was true. And that's what we
want to do.
THE STATE: Judge, and my argument is that's exactly what Counsel is trying to
do, is get in through the back door the argument that his client didn’t intend to kill.
This would prelude or at least allow Counsel to not put his client on the stand to
testify to what this defendant's intent was that night. That's totally improper, Judge.
That would be an improper purpose for the expert to come in and testify as to this
defendant's intent when he fired that sawed-off shotgun at Officer Vicari."
¶ 10 The trial court barred the expert testimony, finding as a matter of law, a gun is
considered a deadly weapon. On February 20, 2013, after jury selection, defense counsel
renewed his motion to allow the testimony of Mastrianni, which was denied.
¶ 11 II. Evidence at Trial
¶ 12 The State's evidence consisted of the testimony of eight witnesses: (1) a Stone Park
police officer, Andrew Morales, who observed the shooting; (2) a Stone Park police officer,
Robert Vicari, who was shot by defendant; (3) a Stone Park police officer, Terry Carr,
Officer Vicari's partner; (4) a Cook County sheriff's police officer, Sergeant Melvin Jenkins,
who observed the shooting; (5) a Franklin Park police officer, Sergeant Michael Jones, the
arresting officer; (6) Mark Pomerance, a forensic scientist who analyzed the shotgun used by
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No. 1-13-1144
defendant; (7) a Stone Park police detective, Christopher Pavini, who investigated the
shooting; and (8) as assistant State's Attorney (ASA), who interviewed defendant.
¶ 13 A. Officer Andrew Morales
¶ 14 Police Officer Andrew Morales testified that at 2 a.m. on May 8, 2010, he was on
patrol when he responded to a call to close a bar located in a strip mall on North Mannheim
Road in Stone Park, Illinois, in response to complaints of gang activity. Morales was in
uniform and was driving a marked police Ford Expedition. Morales was familiar with the bar
as a frequent "hang out" location for the Latin Kings. Morales, joined by a number of other
police officers at the strip mall, closed down the bar. The patrons of the bar were compliant
with the officers' requests to vacate the premises, and the patrons promptly exited the bar and
the bar's parking lot.
¶ 15 Morales then entered a liquor store located in the same strip mall to discuss nearby
traffic issues with the liquor store clerk. An unidentified male entered the liquor store and
complained that he was being harassed by an individual in front of the bar. At this time, the
other officers involved in closing the bar had vacated the strip mall. However, Officer Carr
and Officer Vicari arrived shortly at the liquor store, and Morales instructed them to
investigate the disturbance in front of the bar. Carr and Vicari were dressed in "plain
clothes," but they wore bulletproof vests outside of their clothes, with their police badges
showing, and belts containing their firearms, handcuffs, and other equipment. They were
driving an unmarked police Chevy Malibu.
¶ 16 Morales observed Carr and Vicari handcuff an individual who was shouting outside
the bar. Morales was standing outside of the liquor store, approximately 100 feet away from
Carr and Vicari, when he heard two gunshots. Morales observed an individual standing in the
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No. 1-13-1144
median strip of Mannheim Road pointing a shotgun at Carr and Vicari, 2 who, besides the
individual they had handcuffed, were the only people in the parking lot. Officer Morales
returned the fire at the individual in the road, who promptly fled. Morales gave pursuit but
did not apprehend the individual. Upon returning to the parking lot, Morales observed Vicari
bleeding from his face.
¶ 17 Morales testified, on cross-examination, that when he exited the liquor store the
individual creating the disturbance was yelling but that there was no one else in the parking
lot. He further testified that his marked vehicle was in front of the liquor store and that
neither of the two police vehicles in the strip mall parking lot had its mars lights flashing. On
redirect, Morales identified the sawed-off shotgun that the individual in the median of the
street was holding. This exhibit was later admitted into evidence without objection.
¶ 18 B. Officer Robert Vicari
¶ 19 Police officer Robert Vicari testified that, on May 8, 2010, at 2 a.m., he received a
call to proceed with his partner, Officer Terry Carr, to close down the bar on Mannheim
Road in response to gang activity at the bar. Vicari's and Carr's bulletproof vests had the
word "Police" written on the back, and the parking lot of the bar was well lit. After the bar
and its parking lot were cleared, Vicari and Carr drove to a garage behind the bar to
investigate a report of gang graffiti sprayed on the garage. After observing the graffiti, the
two officers drove to the front of the strip mall, where Officer Morales directed Vicari and
Carr to return to the bar, where an individual was causing a disturbance. The individual was
intoxicated, agitated, and had apparently been arguing previously with "some other unknown
male subject." Vicari handcuffed the individual for the officers' safety and began patting
2
Officer Morales later identified this individual as defendant.
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No. 1-13-1144
down the individual. Vicari then heard a gunshot, took cover, drew his firearm and rose to
return fire. Observing an individual in the median of Mannheim Road, about 60 feet away, he
fired a second shot and then returned to cover. At this point the handcuffed individual
informed Vicari that Vicari had been shot in the face. Vicari then called on his radio that
there was an officer shot and a Hispanic male suspect with a black hoodie, blue jeans, and a
sawed-off shotgun was heading eastbound from Mannheim Road. 3 Vicari testified that he
still had five pellets in his face and one in his shoulder, and that doctors cannot remove the
two pellets remaining in his left eye due to fear that the surgery could result in blindness.
¶ 20 On cross-examination, Vicari testified that, after the bar was cleared out, the only
person left in the parking lot was the individual creating the disturbance. Vicari testified that
before May 8, 2010, he did not know defendant and knew of no reason why defendant would
be angry with him. Vicari confirmed that he gave a statement to Detective Pavini, and
defense counsel then attempted to impeach Vicari, in relevant part as follows:
"DEFENSE COUNSEL: Do you remember what you told him as to what you saw
in front of [the bar]?
OFFICER VICARI: Not verbatim.
DEFENSE COUNSEL: Isn't it true that you told him —
THE STATE: Objection, Judge.
THE COURT: Yes, sustained."
¶ 21 No offer of proof was made by the defense.
¶ 22 C. Officer Terry Carr
3
Officer Vicari did not testify on which street the suspect was heading eastbound.
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No. 1-13-1144
¶ 23 Police officer Terry Carr testified that on May 8, 2010, at 2 a.m., he was partnered
with Officer Vicari. Both officers were wearing bulletproof vests with "Police" written on the
back; their badges were on the front of the vests, and their duty belts, holding their
equipment, were around their waists. Carr confirmed that, after the bar was closed, the
parking lot was completely cleared. Carr testified that he and Vicari checked on some graffiti
behind the bar and returned, at the behest of Officer Morales, to question an individual
causing a disturbance in front of the bar. During the questioning, Carr heard a gunshot and
felt glass ricochet around him. The glass was from the windows of the bar, which shattered
upon being hit by pellets from the shotgun. Carr took cover, moved to the front of his police
vehicle, and then observed a muzzle flash in the median of Mannheim Road. The muzzle
flash was pointed directly at the two officers. Carr began to pursue the suspect; however, his
pursuit ended when he heard Vicari on the radio reporting that he was shot. Carr then
returned to Vicari and radioed that there was a "male black subject" running eastbound from
Mannheim Road.
¶ 24 On cross-examination, Carr testified that prior to May 8, 2010, he did not know
defendant and knew of no reason why defendant would be angry with him. Defense counsel
and Carr then engaged in the following exchange over possible impeachment:
"DEFENSE COUNSEL: On May 11th do you remember giving a statement to
Detective Pavini concerning this incident?
OFFICER CARR: No, I did not.
DEFENSE COUNSEL: Pardon me?
OFFICER CARR: May 11th?
DEFENSE COUNSEL: May 11th? [sic]
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No. 1-13-1144
OFFICER CARR: I don't recall.
DEFENSE COUNSEL: Is it possible you gave him this statement?
OFFICE CARR: Very possible.
DEFENSE COUNSEL: Was he a supervisor of yours at the time?
OFFICER CARR: He is the chief detective, correct.
DEFENSE COUNSEL: Do you remember—strike that. No further questions,
Judge."
¶ 25 D. Sergeant Melvin Jenkins
¶ 26 Police sergeant Melvin Jenkins testified that on May 8, 2010, at 2:50 a.m., he was
leaving the scene of an arrest and heading northbound on Mannheim Road when he heard a
gunshot near the intersection of Mannheim Road and Division Street. As he heard the
gunshot he observed a muzzle flash to his left. Jenkins slowed his vehicle and observed a
second muzzle flash from the same position as the first muzzle flash. Jenkins observed that
the individual shooting the shotgun was pointing the shotgun at "one marked police car,
which was behind another unmarked car. But I was able to notice that there were a couple of
police officers and what appeared to be a citizen or someone that they had in custody near the
back side of a marked vehicle." He did not observe any other individuals in the strip mall
parking lot. Jenkins turned on his mars lights and pursued the suspect while using a spotlight
to illuminate the area. He drove to 39th Street and exited his vehicle, where a number of
other law enforcement agencies arrived to surround the area in which the suspect had fled.
Jenkins then received notification over his radio that the suspect was apprehended, and he
identified the suspect in custody as the same man he observed fleeing the shooting; however,
the suspect was no longer wearing a dark-colored "pullover" (sweatshirt) that he was wearing
9
No. 1-13-1144
during the shooting. Jenkins searched the area and located a dark sweatshirt, which had been
"stuffed" into a bush. Jenkins identified defendant as the suspect he observed shooting at
Carr and Vicari.
¶ 27 On cross-examination, Jenkins testified that he could not positively state that the gun
held by the suspect was pointing directly at the squad cars or officers. He could only testify
that the gun was being pointed west and that this was in the same direction where the squad
cars and officers were located.
¶ 28 E. Sergeant Michael Jones
¶ 29 Police sergeant Michael Jones testified that, on May 8, 2010, just before 3 a.m., he
was monitoring the radio at the Franklin Park police station. The Franklin Park police
department shares a radio band with the Stone Park police department. He received a radio
call that a Stone Park officer had been shot, and he and several other officers exited their
police station to respond to the radio call. Upon arriving at the intersection of 39th Street and
Division Street, Jones joined other officers in searching for the suspect involved in the
shooting. Jones observed defendant walking in the area and "looking back" while he was
walking. Jones proceeded to take defendant into custody. On cross-examination, Jones
testified that he was not at the bar when the shooting occurred and did not observe how many
individuals were in the bar parking lot during the shooting.
¶ 30 F. Firearms Examiner Mark Pomerance
¶ 31 Mark Pomerance, a firearms examiner for the Illinois State Police, Division of
Forensic Services, testified that he analyzed the sawed-off shotgun. The shotgun's double-
barrel stock was sawed off and the butt of the shotgun had also been shortened. On cross-
examination, Pomerance testified that the shotgun was at least 50 years old and that he did
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No. 1-13-1144
remove the pellets from the shells he used during his examination to lessen the recoil of the
shotgun. He also testified that he did not have any pellets to compare with and made his
conclusion that a size six pellet was used during the shooting because the spent shotgun
shells at the crime scene were marked size six.
¶ 32 G. Detective Christopher Pavini
¶ 33 Police detective Christopher Pavini testified that, on May 8, 2010, at 2:50 a.m., he
received a phone call at his home alerting him that an officer had been shot. He proceeded to
40th Street to aid in the search. During the search, Pavini recovered a discarded shotgun,
which was then sent to the Illinois State Police in the same condition that it was found. Upon
cross-examination, Pavini testified that he wrote a supplementary investigation report.
Defense counsel then handed the report to Pavini and the State requested a sidebar. At the
sidebar, the following occurred:
"DEFENSE COUNSEL: Judge, I have a three-page supplementary investigation
signed by Detective Pavini under his auspices where he interviewed Morales, Carr
and Vicari about the investigation. These were done on it looks like May 11th, May
11th and May 13th.
THE COURT: So there's a page for each one?
DEFENSE COUNSEL: No. There's a paragraph for each one.
And they make statements to Pavini that are very different than the statements
they made when they testified. And that's what I want to bring out.
This is—this is the police—that is the product of the police department, Judge.
Supplementary investigation.
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No. 1-13-1144
THE STATE: And I don't question the report, Judge. Here's the problem. All
three of those individuals took the stand. None of them were confronted about those
statements.
***
DEFENSE COUNSEL: This is important defense material to Mr.—
THE STATE: The importance—
THE COURT: I think it should have been set up properly.
***
THE COURT: Okay. The first statement.
DEFENSE COUNSEL: Talking about Carr's statement, Judge?[4]
THE COURT: Yes.
THE STATE: There's nothing impeaching.
DEFENSE COUNSEL: It's impeachable. It talks about him being in the
northbound lane when he saw the muzzle flash. The northbound lanes of Mannheim
traffic. That's the inconsistency with his statement.
THE STATE: That isn't an inconsistent statement.
DEFENSE COUNSEL: He said he fired the gun from the median, [the State].
That puts him another 15 feet further.
***
4
Officer's Carr's statement in Detective Pavini's supplementary investigation report
stated, in relevant part, "Carr stated the following in summary and not verbatim or in its
entirety.*** Offender was in center lane of N/B Mannheim Rd. Carr began to run after
offender***."
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No. 1-13-1144
DEFENSE COUNSEL: And this one talks about to go [sic] investigate a large
group in front of [the bar].[5]
THE STATE: Again, it's not—
THE STATE: It's not necessarily impeaching, because we don't know if it's the
first time he's there or the second time he's there.
***
DEFENSE COUNSEL: Judge, you were giving me a hard time because this was
not their report when I tried to go with it with [sic] Vicari. This was not Vicari's
report.
THE STATE: No. We gave you a hard time because you just started reading from
the report without asking him any questions, which is improper.
THE STATE: You didn't lay the right foundation was our opinion, and that was
the nature of our objection, that you weren't laying the right foundation to confront
them with those—that statement. At least with Officer Vicari. Because with the other
two officers you didn't even ask them about that.
THE COURT: He didn't ask him.
DEFENSE COUNSEL: Right. No argument. Well, let me just bring it up with
Vicari.
THE STATE: It's still improper.
5
Officer Vicari's statement in Detective Pavini's supplementary investigation report
stated, in relevant part, "Vicari stated the following in summary & not verbatim or in its entirety.
Vicari stated there was a large group in front of [the bar] which OFC Morales told Vicari and his
partner Carr to go check out. Vicari stated he came in contact with [individual creating a
disturbance] who was screaming, swearing."
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No. 1-13-1144
THE STATE: Because we'd have to put Vicari back on the stand. He might be
able to explain away why that statement reads the way it does, but never had the
opportunity. So you can't now impeach him when he wasn't given the opportunity to
explain that statement.
THE STATE: And there's no context.
THE COURT: Yes. You can't do it.
DEFENSE COUNSEL: So I’m not allowed to put this into evidence?
THE COURT: No."
¶ 34 The trial court sustained the State's objection, holding that defense counsel did not
establish a foundation to introduce Pavini's report into evidence.
¶ 35 H. Defendant's Statement
¶ 36 An ASA testified that on May 8, 2010, at 8 a.m., she arrived at the Stone Park police
department to interview defendant. She informed defendant that she was an assistant State's
Attorney, that she was a lawyer working with the police, and that she did not represent
defendant, and she read defendant his Miranda rights. She then interviewed defendant and
memorialized the interview, with defendant's permission, by writing down what defendant
said, having defendant review the statement, and then having defendant sign each page of the
statement. The statement was admitted into evidence without objection. The ASA then
published the statement to the jury as follows:
"[Defendant] states that on May 8th, 2010, in the early morning hours [his
girlfriend] drove him to the liquor store near Mannheim Road and Division in Stone
Park, Illinois. [Defendant] states that he is a regular at the liquor store. Meaning that
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No. 1-13-1144
he goes there a lot, and he knows that the liquor store is open until at least 4:00
o'clock a.m.
[Defendant] states that [his son] was inside the car in a car seat in the back seat
when he arrived at the liquor store. [Defendant] states that the liquor store is next
door to a nightclub. [Defendant] states that he bought a 40 ounce bottle of
Milwaukee's Best Ice Beer from the liquor store.
[Defendant] states that he left the store and walked to his car, which was parked in
the liquor store parking lot. As [his girlfriend] pulled out of the parking lot, she took a
left onto Division Street in order to drive eastbound to their apartment on 34th
Avenue.
As [Defendant] left the parking lot, he saw one guy flash Latin King gang signs
from the parking lot of the nightclub. [Defendant] states that when [his wife] stopped
at the stop sign on Division the Latin King continued to flash gang signs and yelled
Kings.
[Defendant] states that he got out of the car and wanted to talk to the guy man to
man because he didn't think he had to be harassed by them, and he didn't have to live
like that. Especially because he hadn't done anything.
[Defendant] states that as he spoke with the one guy other cars kept pulling up.
Three cars. And about 7 to 15 guys were there. [Defendant] states that he told them
that he had a kid in the car and that he lived around there, and didn't a [sic] appreciate
it, and that he wasn't on that. [sic] Meaning he/[defendant] wasn't a gangbanger.
[Defendant] states that, as he spoke with the initial guy, another guy punched him
in the side of the face from the side. [Defendant] states that he fell down, and all of
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No. 1-13-1144
the guys who were male and Hispanic kicked him and stomped on him when he was
on the ground.
[Defendant] states that all of the guys left, and he got back into the car and drove
home with [his girlfriend]. [Defendant] states that it took them five minutes to get
home. [Defendant] states that he was upset when he got home. [Defendant] states that
he was mad that he got jumped by the Latin Kings.
[Defendant] states that he had a 12 gauge sawed off shotgun in his closet that he
bought a couple years ago for $100. [Defendant] states that the shotgun was loaded
with two rounds shotgun shells. [sic] [Defendant] states that he also had other shotgun
shells in the closet, and that he put two additional shotgun shells in his pocket.
[Defendant] states that he was mad about what happened and walked back to the
nightclub. [His girlfriend] tried to calm [defendant] down after [defendant] grabbed
the shotgun. [Defendant] states that he wanted to shoot or hurt them because they, the
Latin Kings, beat him up for no reason.
[Defendant] states that he walked from his house to Mannheim Road where the
nightclub was with the loaded shotgun, which was about eight blocks. As [defendant]
walked toward Mannheim Road, he cut through a parking lot and was walking east to
west.
[Defendant] states that he stood in the northbound lane of Mannheim Road when
he saw the guys who jumped him. [Defendant] states that he knew it was them and
that he immediately recognized them.
[Defendant] states that the Latin Kings were in the nightclub parking lot and that
there were at least seven Latin Kings in the lot near several cars along with other
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No. 1-13-1144
people. [Defendant] states that as he stood near the median in the northbound lane of
Mannheim Road he fired the shotgun two times and squeezed the trigger two times at
the Latin Kings in the parking lot.
[Defendant] states that he aimed the shotgun at the crowd of Latin Kings.
[Defendant] states that after he fired the two shots he ran back in the direction he
came from, eastbound through the parking lot along Division Street toward 40th
street.
[Defendant] states that he threw the shotgun under some bushes as he ran away
and then took off the black hoodie he was wearing and threw it on the ground as he
ran."
¶ 37 I. Defendant's Wife
¶ 38 The State then rested its case. Defense counsel moved for a directed verdict, which
was denied. The defense's case consisted of two witnesses: (1) Guadalupe Vazquez,
defendant's the girlfriend and currently his wife, and (2) defendant.
¶ 39 Guadalupe Vazquez testified that on May 8, 2010, at 1 a.m., Vazquez, defendant, and
their son were returning from "downtown" when they stopped at a liquor store in a strip mall
on Mannheim Road. Defendant went into the liquor store and made a purchase. As they were
exiting the strip mall in their vehicle, defendant asked Vazquez to stop the vehicle. He then
exited the vehicle and began speaking to two Hispanic males. A van arrived and "eight to ten
guys" attacked defendant. Vazquez shifted her vehicle to drive and "proceeded to act like
[she] was going to hit them." The attackers then fled. Vazquez drove defendant, herself, and
their son back to their apartment, making a short stop to purchase cigarettes. Once they had
arrived at their apartment, Vazquez put their child in his crib and defendant cleaned himself.
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No. 1-13-1144
Defendant then left the apartment, appearing upset but he did not express any anger toward
the police.
¶ 40 On cross-examination, Vazquez testified that the liquor store where defendant
purchased alcohol was in the same strip mall where the bar is located. Vazquez testified that
the apartment she shared with defendant was eight blocks from the strip mall. She further
testified that defendant did take his shotgun before exiting their apartment. Vazquez denied
telling detectives in the morning of May 8, 2010, that she was unaware that defendant owned
a gun. Vazquez also testified that there is a police station across the street from the strip mall
but that she and defendant did not go to the police station to report the attack on defendant
because her "instinct was to go home. That's where [she] felt safe."
¶ 41 J. Defendant
¶ 42 Defendant testified that, on May 8, 2010, at 1 a.m., he, Vazquez, and their son were
driving home from "downtown" when they stopped at a liquor store in a strip mall on
Mannheim Road. Defendant went into the liquor store and then entered the vehicle with
Vazquez and their son, and Vazquez began to drive them to their apartment. As they were
exiting the parking lot, defendant observed "a few Latino guys" flashing gang signs at their
vehicle. Defendant asked Vazquez to stop the vehicle. Defendant then approached the
individuals flashing gang signs because he wanted them to know that he and his family lived
in the neighborhood and did not "want any problems." As defendant was talking to these
men, more and more men began to gather around him. Then a van arrived; at least one person
exited the van and everyone around defendant began to beat him. There were at least eight or
nine attackers. Vazquez shifted her vehicle into drive and the attackers "scattered." Once
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No. 1-13-1144
defendant, Vazquez, and their son arrived back at their apartment, defendant washed himself
and took his shotgun. Defendant believed that the shotgun was a "close range weapon."
¶ 43 Defendant testified that he walked back to the strip mall and stood in the second lane
of the northbound lanes of Mannheim, but he did not reach the median before firing both
shots from his shotgun. Defendant testified that there were four lanes of traffic between
where he fired his shotgun and the corner of the strip mall where the defendant was pointing
his shotgun. Defendant testified that he was shooting at the men who had previously attacked
him, who were standing in the same area where they had attacked him. Defendant testified
that he only intended to frighten these men, in retaliation for the fear they had created.
Defendant did not observe any police officers or police vehicles in the parking lot. After
firing the shotgun, defendant ran away and was subsequently apprehended. Defendant further
testified that, as he was running away, but before he was apprehended, a vehicle with a
number of Latin Kings drove past him and that the passengers of this vehicle attempted to
shoot at him.
¶ 44 Defendant testified that he did give a statement to an ASA, but he did not say that he
wanted to "shoot or hurt the Latin Kings in front of the nightclub." Defendant testified that
"[he] the gun from a longer distance because [he] knew it was a close range weapon, and [he]
didn't really want to hurt nobody." Defendant did not realize that a police officer had been
shot until defendant arrived at the police station. Defense counsel handed defendant a
diagram of Mannheim Road. Defendant identified the location from which he had fired his
shotgun at the Latin Kings and testified that, according to the diagram, this placed defendant
73 feet and 8 inches from the Latin Kings. This exhibit was later admitted into evidence
without objection.
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No. 1-13-1144
¶ 45 On cross-examination, defendant testified that he could not identify a specific
distance from where the sawed-off shotgun could be shot at a target without being deadly.
The State and defendant then engaged in the following exchange:
"THE STATE: Okay. But you know enough about this gun to know that it's a
short range gun, is that correct?
DEFENDANT: Yes.
THE STATE: How short is short range?
DEFENDANT: Um, I know it's not for distance shooting.
THE STATE: When you say distance, how far are we talking?
DEFENDANT: I can't give you an exact—
THE STATE: Then how would you know where you were standing was a safe
location to fire this gun?
DEFENDANT: I can't give you that answer.
THE STATE: So you didn't know, did you?
DEFENDANT: I know it's—I know it's not for 73 feet.
THE STATE: Where did you learn that?
DEFENDANT: I am not stupid.
THE STATE: Where did you learn it?
DEFENDANT: I never been in [sic] gun school, you know. I am sorry.
THE STATE: So where did you learn that 73 feet is a safe distance to fire this?
DEFENDANT: I never learned it.
20
No. 1-13-1144
THE STATE: You are guessing, aren't you? You just picked that number out of
the air, didn't you?
DEFENDANT: No.
THE STATE: Well, then where did you learn it?
DEFENDANT: Where did I learn it? I was told by Mastrianni.[6]
***
THE STATE: And when Mr. Mastrianni told you that, you had been charged with
this crime already, hadn't you?
DEFENDANT: Yes.
***
THE STATE: The night you fired that gun, May 8th of 2010, did you know 73
feet was a safe distance?
DEFENDANT: No, I did not.
THE STATE: And so when does this gun become dangerous?
DEFENDANT: It's a weapon. All guns are dangerous."
¶ 46 Defendant further testified that, when he fired his shotgun at the men that attacked
him, there were seven or eight of his attackers standing at the corner of the strip mall.
Defendant could not observe the faces of these men from where he was standing in the
highway, but he knew that these were the men who attacked him because they were
"standing in the same spot."
6
"Mastrianni" is the gunshop owner whose testimony was barred at trial.
21
No. 1-13-1144
¶ 47 K. State's Rebuttal
¶ 48 The defense then rested, and the State called police detective Christopher Pavini in
rebuttal. Detective Pavini testified that on May 8, 2010, at 7:20 a.m., he interviewed
Guadalupe Vasquez. During this interview, Vazquez stated that she had no knowledge of
defendant owning a firearm. The State then rested in rebuttal.
¶ 49 III. Conviction and Sentencing
¶ 50 On February 22, 2013, the jury returned a verdict of guilty against defendant for five
counts of attempted first degree murder, one count of aggravated battery with a firearm, and
one count of aggravated discharge of a firearm.
¶ 51 On April 2, 2013, defendant argued his posttrial motion for a new trial, which was
denied. In aggravation, the trial court heard defendant's criminal history for battery and
domestic battery, and that defendant was on probation for battery and aggravated driving
under the influence at the time of the incident. The court found that the sentencing range of
20 to 80 years was sufficient to protect the public, so there was no need for an extended
sentence or for consecutive sentences. The court then sentenced defendant for 60 years with
IDOC, followed by 3 years of mandatory supervised release. Defense counsel then made a
motion to reconsider the sentence, which was denied. The court then engaged in the
following exchange with defendant:
"DEFENDANT: And I had a question. You sentenced me to 60 years. Was that
like for everything or was it—
THE COURT: No, some of those sentences were for 30 years, but they all merge.
They telescope in.
The attempt murder to police officer, those sentences are 60 years.
22
No. 1-13-1144
DEFENDANT: Yes.
THE COURT: Then you have agg bat [sic] to a police officer with a firearm, and
that's a 30-year sentence.
And aggravated discharge to a police officer is also a 30-year sentence, but none
of these are additional."
¶ 52 Defendant filed a timely appeal.
¶ 53 ANALYSIS
¶ 54 On appeal, defendant claims: (1) that the trial court erred by barring the testimony of
expert witness Donald Mastrianni; (2) that defendant received ineffective assistance of
counsel when defense counsel failed to lay a proper foundation to introduce into evidence a
supplementary investigation report by Detective Pavini, which defendant claims would have
impeached Officer Vicari and Officer Carr; (3) that the mittimus should be corrected to
reflect only two counts of attempted first degree murder; and (4) that the mittimus should
also be corrected to reflect that the counts of aggravated battery with a firearm and
aggravated discharge of a firearm were merged into the two counts of attempted first degree
murder. The State agrees with the corrections to the mittimus.
¶ 55 For the following reasons, we do not find persuasive defendant's claims: (1) that the
trial court erred in barring the testimony of Donald Mastrianni; and (2) that the failure to lay
a proper foundation for the previous statements by Carr and Vicari to Detective Pavini was
ineffective assistance of counsel. We do, however, correct the mittimus to reflect only two
counts of attempted first degree murder and that the counts of aggravated battery with a
firearm and aggravated discharge of a firearm are merged into the two counts of attempted
murder.
23
No. 1-13-1144
¶ 56 I. Elements of Offense
¶ 57 Defendant's claims all concern his assertion that he did not have the requisite intent to
commit attempted murder.
¶ 58 "To prove a defendant guilty of attempted murder, the State must prove: (1) that
defendant performed an act that constituted a substantial step toward committing a murder;
and (2) that he had the criminal intent to kill the victim." People v. Teague, 2013 IL App
(1st) 110349, ¶ 22 (citing People v. Green, 339 Ill. App. 3d 443, 451 (2003)); 720 ILCS 5/8-
4 (West 2010); 720 ILCS 5/9-1(a) (West 2008). In the case at bar, defendant denied only the
second element, that he did not have the intent to kill Officers Vicari and Carr.
¶ 59 "The question of [a] defendant's state of mind at the time of the crime [is] a question
of fact to be determined by the jury ***." People v. Pertz, 242 Ill. App. 3d 864, 903 (1993)
(citing People v. Elder, 219 Ill. App. 3d 223, 225 (1991)). "Mental states, such as the intent
to kill or to cause great bodily harm, are not commonly established by direct evidence and
may be inferred from the character of the defendant's conduct and the circumstances
surrounding the commission of the offense." People v. Adams, 308 Ill. App. 3d 995, 1006
(1999) (citing People v. Summers, 202 Ill. App. 3d 1, 10 (1990)). These surrounding
circumstances may include the character of the assault, the use of a deadly weapon, and the
nature and extent of the victim's injuries. People v. Green, 339 Ill. App. 3d 443, 451 (2003);
see also People v. Williams, 165 Ill. 2d 51, 64 (1995). Further, an intent to kill " 'may be
inferred if one wilfully does an act, the direct and natural tendency of which is to destroy
another's life.' " People v. Cavazos, 2015 IL App (2d) 120171, ¶ 88 (quoting People v.
Migliore, 170 Ill. App. 3d 581, 586 (1988)).
24
No. 1-13-1144
¶ 60 "Under the doctrine of transferred intent, if a defendant shoots at one person, with the
intent to kill, but kills an unintended victim, he may be convicted of the crime of murder for
the death of the unintended victim." People v. Thompson, 313 Ill. App. 3d 510, 516 (2000).
"Moreover, the doctrine of transferred intent is applicable in attempt[ed] murder cases."
People v. Hill, 276 Ill. App. 3d 683, 688 (1995) (citing People v. Burrage, 269 Ill. App. 3d
67, 76 (1994)).
¶ 61 II. Expert Testimony
¶ 62 Defendant claims that the trial court erred by barring the testimony of expert witness
Donald Mastrianni, because his testimony would have helped establish that defendant did not
have the requisite intent to commit attempted first degree murder.
¶ 63 The decision of whether to admit expert testimony is within the sound discretion of
the trial court, and the trial court's ruling will not be reversed absent an abuse of that
discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010); People v. Reid, 179 Ill. 2d 297, 313
(1997). "Such an abuse of discretion will be found only where the trial court's decision is '
"arbitrary, fanciful or unreasonable" ' or ' "where no reasonable man would take the view
adopted by the trial court." ' " People v. Illgen, 145 Ill. 2d 353, 364 (1991) (quoting People v.
M.D., 101 Ill. 2d 73, 90 (1984), quoting Peek v. United States, 321 F.2d 934, 942 (9th Cir.
1963)).
¶ 64 "When considering the reliability of expert testimony, the court should balance its
probative value against its unfairly prejudicial effect." People v. Allen, 376 Ill. App. 3d 511,
522 (2007) (citing People v. Enis, 139 Ill. 2d 264, 290 (1990)). " 'In the exercise of his
discretion, the trial judge should also carefully consider the necessity and relevance of the
expert testimony in light of the facts in the case before him prior to admitting it for the jury's
25
No. 1-13-1144
consideration.' " Allen, 376 Ill. App. 3d at 522 (quoting Enis, 139 Ill. 2d at 290). "[E]xpert
testimony is not admissible on matters of common knowledge unless the subject is difficult
to understand and explain." People v. Gilliam, 172 Ill. 2d 484, 513 (1996).
¶ 65 If a trial court excluded expert testimony in error, it does not commit reversible error
if the exclusion is harmless. See People v. Sutton, 349 Ill. App. 3d 608, 618 (2004). "An
erroneous evidentiary ruling constitutes harmless error if the State can establish beyond a
reasonable doubt that the error did not contribute to the jury's verdict." People v. Denson,
2013 IL App (2d) 110652, ¶ 24 (citing People v. Patterson, 217 Ill. 2d 407, 428 (2005)). "In
deciding whether [an] error is harmless, a reviewing court may '(1) focus on the error to
determine whether it might have contributed to the conviction; (2) examine other properly
admitted evidence to determine whether it overwhelmingly supports the conviction; or (3)
determine whether the improperly admitted evidence is merely cumulative or duplicates
properly admitted evidence.' " Denson, 2013 IL App (2d) 110652, ¶ 24 (quoting People v.
Becker, 239 Ill. 2d 215, 240 (2010)).
¶ 66 We first note that, at trial, defense counsel stated "[w]hat our expert would testify to
is that [the sawed-off shotgun is] old and the distance from which it was fired, it is not
deadly." The trial court held that, as a matter of law, a gun is a per se deadly weapon, citing
People v. Merritt, 367 Ill. 521 (1937). As such, defense counsel was not allowed to introduce
testimony that the shotgun was not deadly from the distance at which it was fired. It appears
as though, at trial, defense counsel was arguing that defendant did not take a substantial step
toward committing murder, because the shotgun was not close enough to actually cause
death. Teague, 2013 IL App (1st) 110349, ¶ 22 (first element of attempted murder).
However, we have consistently held that guns are per se deadly weapons. People v. Blanks,
26
No. 1-13-1144
361 Ill. App. 3d 400, 411 (2005). Thus, Mastrianni's testimony that the shotgun in this case
was not dangerous was not relevant to proving the first element of attempted murder, namely,
a substantial step. Allen, 376 Ill. App. 3d at 522; Teague, 2013 IL App (1st) 110349, ¶ 22.
Further, because Officer Vicari was shot in the face with pellets and could have been killed if
the pellets struck him in a dangerous area, expert testimony is not needed to prove that which
is obvious. See People v. Mertz, 218 Ill. 2d 1, 75-76 (2005).
¶ 67 On appeal, defense counsel argues that the trial court erred in barring Mastrianni's
testimony because his testimony would have helped establish that defendant lacked the
second element, namely, the requisite intent to commit murder. However, Mastrianni's
testimony was also not relevant to whether defendant intended to commit murder, because
Mastrianni could not testify as to what defendant knew about the shotgun's capabilities.
Defendant admitted at trial that, at the moment he fired the shotgun, he did not know that 73
feet was a safe distance, and he learned this fact only after the offense from Mastrianni.
Mastrianni's testimony about what defendant learned only later was not relevant to
defendant's intent at the time of the shooting. People v. Thingvold, 145 Ill. 2d 441, 455
(1991) (holding that testimony from a witness who could testify only to the defendant's intent
at a different time than when the offense occurred was not relevant).
¶ 68 For the foregoing reasons, we cannot find that the trial court abused its discretion
when it barred the testimony of Donald Mastrianni. Becker, 239 Ill. 2d at 234.
¶ 69 III. Ineffective Assistance of Counsel
¶ 70 Defendant claims that he received ineffective assistance of counsel based on his trial
counsel's failure to impeach Officers Vicari and Carr with their prior statements to Detective
Panini.
27
No. 1-13-1144
¶ 71 The Illinois Supreme Court has held that, to determine whether a defendant was
denied his or her right to effective assistance of counsel, an appellate court must apply the
two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Colon,
225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504, 526
(1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his
attorney's actions constituted errors so serious as to fall below an objective standard of
reasonableness; and (2) absent these errors, there was a reasonable probability that his trial
would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434
(2007) (citing Strickland, 466 U.S. at 687-94).
¶ 72 Under the first prong of the Strickland test, the defendant must prove that his
counsel's performance fell below an objective standard of reasonableness "under prevailing
professional norms." Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220
(2004). In considering whether counsel's performance was deficient, a court must indulge a
strong presumption that the challenged action, or inaction, was the result of sound trial
strategy. People v. Smith, 195 Ill. 2d 179, 188 (2000); People v. Evans, 186 Ill. 2d 83, 93
(1999). "Generally, the decision whether or not to cross-examine or impeach a witness is a
matter of trial strategy which will not support a claim of ineffective assistance of
counsel." People v. Pecoraro, 175 Ill. 2d 294, 326 (1997). Under the second prong, the
defendant must show that, "but for" counsel's deficient performance, there is a reasonable
probability that the result of the proceeding would have been different. (Internal quotation
marks omitted.) Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. "[A] reasonable
probability that the result would have been different is a probability sufficient to undermine
confidence in the outcome—or put another way, that counsel's deficient performance
28
No. 1-13-1144
rendered the result of the trial unreliable or fundamentally unfair." Evans, 209 Ill. 2d at
220; Colon, 225 Ill. 2d at 135. In other words, the defendant was prejudiced by his attorney's
performance. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011).
¶ 73 To prevail, the defendant must satisfy both prongs of the Strickland test. Colon, 225
Ill. 2d at 135; Evans, 209 Ill. 2d at 220. "That is, if an ineffective-assistance claim can be
disposed of because the defendant suffered no prejudice, we need not determine whether
counsel's performance was deficient." People v. Graham, 206 Ill. 2d 465, 476 (2003). We do
not need to consider the first prong of the Strickland test when the second prong cannot be
satisfied. Graham, 206 Ill. 2d at 476.
¶ 74 In the case at bar, we need not determine if defense counsel was ineffective in failing
to impeach Officers Vicari and Carr with their previous statements to Detective Pavini.
Graham, 206 Ill. 2d at 476. The overwhelming evidence of defendant's guilt in this case
precludes defendant from being capable of showing that there was a reasonable probability
that the outcome of the case would have been different if defense counsel had managed to
introduce Officers Vicari's and Carr's previous statements into evidence. See People v. Clay,
379 Ill. App. 3d 470, 480 (2008); People v. Williams, 368 Ill. App. 3d 616, 622 (2006).
¶ 75 Defendant testified at trial that he stood in the middle of a street and deliberately fired
a shotgun toward several people. There is no dispute that he hit one person, causing lasting
and permanent damage. There are no claims of accident or self-defense. Because the
undisputed evidence of defendant's guilt is overwhelming, we need not determine if defense
counsel was ineffective in failing to impeach Officers Vicari and Carr with their previous
statements to Detective Pavini. Graham, 206 Ill. 2d at 476.
29
No. 1-13-1144
¶ 76 First, defendant claims that Officer Vicari's previous statement to Detective Pavini,
that he was told to "check out" a "large crowd" in front of the bar, would have impeached
Officer Vicari's testimony that there were no Latin Kings in the bar parking lot and would
have supported defendant's claim that there was a large crowd of individuals in the parking
lot. However, Officer Vicari's statement to Detective Pavini was very brief. It is not clear
from the statement if the "crowd" Officer Vicari was sent to "check out" is referring to the
first time Officer Vicari was sent to the bar or the second time. Moreover, the statement
explicitly says "in summary & not verbatim or in its entirety," so it is questionable if the
statement would have truly impeached Officer Vicari.
¶ 77 However, even if Officer Vicari's previous statement had been raised at trial and the
term "crowd" was a discrepancy with his trial testimony, defendant has not raised a
reasonable probability that it would have affected the outcome of his case. It further appears
that the issue as to whether there were other people in the parking lot may be a collateral
matter, and impeachment of a collateral matter cannot be error. See People v. Sanders, 2015
IL App (4th) 130881, ¶ 49. Defendant's claim rests on the idea that four police officers
perjured themselves by falsely stating that there were no Latin Kings in the bar parking lot.
However, even if, for the purpose of reviewing defendant's claim, we were to assume that all
four of these officers were impeached, there is still overwhelming evidence for the jury to
find defendant's guilt. In defendant's statement to the ASA, defendant stated that he wanted
to "shoot or hurt" the Latin Kings. Defendant admitted at trial to shooting at a group of men,
although he claimed he was firing to frighten, not kill, the gang members who had beaten
him. However, " '[t]he very fact of firing a gun at a person support[s] the conclusion that the
person doing so acted with an intent to kill.' " People v. Ephraim, 323 Ill. App. 3d 1097, 1110
30
No. 1-13-1144
(2001) (quoting People v. Thorns, 62 Ill. App. 3d 1028, 1031 (1978)). " '[T]he intent to
murder can be inferred from the act of firing a gun at a person because the natural tendency
of such an act is to destroy another's life.' " People v. Garcia, 407 Ill. App. 3d 195, 201
(2011) (quoting People v. Smith, 258 Ill. App. 3d 1003, 1027 (1994)). Thus, there was ample
evidence for the jury to conclude that defendant had an intent to commit murder. The fact
that defendant intended to murder the Latin Kings is not relevant, because defendant's intent
is transferred to the officers, at whom defendant fired. People v. Hill, 276 Ill. App. 3d 683,
688 (1995). As a result, defendant has not demonstrated a reasonable probability that, if
defense counsel had laid a proper foundation for the introduction of Officer Vicari's previous
statement, the result of the proceeding would have been different, as Strickland requires.
Colon, 225 Ill. 2d at 135 (citing Strickland, 466 U.S. at 699).
¶ 78 Defendant also claims that defense counsel was ineffective for failing to use Officer
Carr's previous statement to Detective Pavini, that defendant was firing from the second lane
of Mannheim Road, to impeach Officer Carr, who testified at trial that defendant was firing
from the median of Mannheim Road. "[W]hen assessing the importance of the failure to
impeach for purposes of a Strickland claim, '[t]he value of the potentially impeaching
material must be placed in perspective.' " People v. Brown, 371 Ill. App. 3d 972, 978 (2007)
(quoting People v. Jimerson, 127 Ill. 2d 12, 33 (1989)). Defendant testified at trial that he
was 73 feet and 8 inches away when he started firing and that he did not know whether this
was a safe distance from which to fire his shotgun at a target. Therefore, whether defendant
was a few feet closer, as the officer testified, or 73 feet and 8 inches, as defendant testified,
was not relevant to defendant's intent since, by his own admission, he did not know whether
the further distance was safe. As a result, defendant has not demonstrated a reasonable
31
No. 1-13-1144
probability that, if defense counsel had laid a proper foundation for the introduction of
Officer Carr's previous statement, the result of the proceeding would have been different, as
Strickland requires. Colon, 225 Ill. 2d at 135 (citing Strickland, 466 U.S. at 699).
¶ 79 IV. Correcting the Mittimus
¶ 80 Defendant claims that the trial court erred by listing on the mittimus: (A) all five
counts of attempted first degree murder; and (B) the counts for aggravated battery with a
firearm and aggravated discharge of a weapon. Defendant claims that the mittimus should be
corrected to reflect only two counts of attempted first degree murder. The State agrees that
the mittimus should be corrected to reflect only two counts of attempted first degree murder.
For the following reasons, we correct the mittimus accordingly.
¶ 81 A. One-Act, One-Crime Rule
¶ 82 First, defendant claims that under the one-act, one-crime rule articulated in People v.
King, 66 Ill. 2d 551, 566 (1977), the trial court erred in listing all five counts of attempted
first degree murder on the mittimus.
¶ 83 Whether defendant was incorrectly sentenced for multiple offenses based upon the
same act is a question of law that this court reviews de novo. People v. Nunez, 236 Ill. 2d
488, 493 (2010); People v. Artis, 232 Ill. 2d 156, 161 (2009); People v. Kolton, 219 Ill. 2d
353, 361 (2006). De novo consideration means we perform the same analysis that a trial
judge would perform. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25 (citing Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)). While defendant did not file a motion
to reconsider his sentences before the trial court, our supreme court has held that any
forfeited one-act, one-crime arguments may be evaluated by a reviewing court under the
second prong of the plain error rule because they implicate the integrity of the judicial
32
No. 1-13-1144
process. Nunez, 236 Ill. 2d at 493 (citing Artis, 232 Ill. 2d at 167-68). The plain error rule
"allows a reviewing court to consider unpreserved error when (1) a clear or obvious error
occurred and the evidence is so closely balanced that the error alone threatened to tip the
scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear
or obvious error occurred and that error is so serious that it affected the fairness of the
defendant's trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing People
v. Herron, 215 Ill. 2d 167, 186-87 (2005)). Our supreme court permits review of forfeited
one-act, one-crime claims under the second prong. Nunez, 236 Ill. 2d at 493 (citing Artis, 232
Ill. 2d at 167-68).
¶ 84 In the case at bar, defendant was found guilty of three counts of attempted first degree
murder for the single act of shooting at Officer Vicari. Defendant was also found guilty of
two counts of first degree murder for the single act of shooting at Officer Carr. According to
the one-act, one-crime rule, defendant should have been sentenced for only one count of
attempted first degree murder stemming from each act. King, 66 Ill. 2d at 566. Both parties
ask us to make this correction. Thus, we correct the mittimus to reflect only two counts of
attempted first degree murder, not five counts. People v. Mitchell, 234 Ill. App. 3d 912, 921
(1992) ("[T]his court may court may correct the mittimus without remanding to the trial
court").
¶ 85 B. Merging the Lesser Counts
¶ 86 Defendant's next claim is that the trial court erred by not merging the counts of
aggravated battery with a firearm and aggravated discharge of a weapon into the two counts
of attempted first degree murder, as the trial court verbally stated it would do. The question
33
No. 1-13-1144
of whether defendant's mittimus should be corrected is a purely legal issue, subject to de
novo review. People v. Lewis, 2012 IL App (1st) 102089, ¶ 23 (citing People v. Jones, 397
Ill. App. 3d 651, 656 (2009)). While defendant did not file a motion to reconsider his
sentence, a corrected mittimus may be issued at any time. People v. Anderson, 2012 IL App
(1st) 103288, ¶ 35 (citing People v. Quintana, 332 Ill. App. 3d 96, 110 (2002)).
¶ 87 "Although a written order of the circuit court is evidence of the judgment of the
circuit court, the trial judge's oral pronouncement is the judgment of the court." People v.
Whalum, 2012 IL App (1st) 110959, ¶ 41 (citing People v. Smith, 242 Ill. App. 3d 399, 402
(1993)); People v. Lewis, 379 Ill. App. 3d 829, 837 (2008) (also citing Smith). " 'When the
oral pronouncement of the court and the written order are in conflict, the oral pronouncement
controls.' " Whalum, 2012 IL App (1st) 110959, ¶ 41 (quoting Smith, 242 Ill. App. 3 at 402);
Lewis, 379 Ill. App. 3d at 837; People v. Jones, 376 Ill. App. 3d 372, 395 (2007) (citing
Smith); see also People v. Diaz, 377 Ill. App. 3d 339, 351 (2007).
¶ 88 In the case at bar, the trial court stated that it would merge the counts of aggravated
battery with a firearm and aggravated discharge of a firearm into the counts of attempted first
degree murder. However, the mittimus contains both of the lesser counts. Both parties ask us
to correct the mittimus to merge the lesser counts. Accordingly, we correct the mittimus and
merge the counts of aggravated battery with a firearm and aggravated discharge of a firearm
into the counts of attempted first degree murder. Mitchell, 234 Ill. App. 3d at 921.
¶ 89 For the foregoing reasons, we correct the mittimus to reflect only two counts of
attempted first degree murder.
34
No. 1-13-1144
¶ 90 CONCLUSION
¶ 91 In sum, we do not find persuasive defendant's claims: (1) that the trial court erred in
barring the testimony of Donald Mastrianni, and; (2) that defendant received ineffective
assistance of counsel. We do, however, correct the mittimus to reflect only two counts of
attempted first degree murder.
¶ 92 Affirmed; mittimus corrected.
35