People v. Peoples , 2015 IL App (1st) 121717 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Peoples, 2015 IL App (1st) 121717
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES PEOPLES, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-12-1717
Filed June 30, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-15238; the
Review Hon. Angela Munari Petrone, Judge, presiding.
Judgment Affirmed in part; reversed in part; mittimus corrected; and cause
remanded with directions.
Counsel on Michael J. Pelletier, Alan D. Goldberg, Patrick Morales-Doyle, and
Appeal Rachel Moran, all of State Appellate Defender’s Office, of Chicago,
for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Tasha-Marie Kelly, Brian Hodes, and Paul J. Connery, Assistant
State’s Attorneys, of counsel), for the People.
Panel JUSTICE ELLIS delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Howse concurred in the
judgment and opinion.
OPINION
¶1 This case involves a drive-by shooting on the south side of Chicago that turned into a
shootout between the offenders and the targets along two city blocks. After a jury trial,
defendant James Peoples was convicted of first-degree murder and two counts of attempted
first-degree murder and sentenced to an aggregate term of 70 years’ imprisonment. For the
reasons that follow, we reverse defendant’s first-degree murder conviction and remand for a
new trial. We affirm the attempted murder convictions. We affirm the sentences for attempted
murder and order the mittimus corrected.
¶2 Defendant raises several issues on appeal. First, he contends the State failed to prove him
guilty beyond a reasonable doubt because there was no physical evidence connecting him to
the crime, and the State’s witnesses were not credible for various reasons. He argues that the
trial court erred in responding to the jury’s request for a definition of reasonable doubt by
stating, “Reasonable doubt cannot be defined for you. That is for you to determine.” He also
claims that the trial court abused its discretion by denying his request for a continuance to
obtain a presumably neutral witness’s testimony that would have corroborated a defense
witness’s testimony. We reject these arguments.
¶3 We agree, however, that the trial committed reversible error when, in its response to
another jury question, the trial court injected into the trial a theory of guilt by accountability.
The State charged defendant with first-degree murder only as a principal shooter and did not, at
any time, argue that defendant was guilty on an accountability theory. Defendant’s murder
conviction must be reversed and remanded.
¶4 Defendant also raises three issues regarding his sentence. He first argues that his sentence
was excessive. We disagree that the remaining sentence, after our reversal of the murder
conviction and sentence, was excessive. The State agrees with defendant’s additional two
arguments regarding presentence credit and fines. There is no dispute that the mittimus should
be corrected to reflect a presentence credit, for the days spent in presentence custody, of 1,722
days (instead of 1,535 days), and the fines, fees, and costs order should reflect an outstanding
balance of $530. We order the mittimus corrected accordingly.
¶5 I. BACKGROUND
¶6 On June 27, 2007, at approximately 12:30 a.m. in the vicinity of 73rd Street and South
Stewart Avenue in Chicago, a shootout occurred involving several individuals. As a white van
drove by 7308 South Stewart Avenue, several gunshots were fired at the porch, and gunfire
was returned by the intended targets. Roosevelt Wilson, who had been standing on the
sidewalk, was shot in the head and died. As the van continued southbound on South Stewart
Avenue toward 75th Street, two individuals followed and opened fire at the van.
¶7 Shortly thereafter, Chicago police officer Richard Griffin went to St. Bernard’s Hospital in
response to a call of a person with a gunshot wound. When Officer Griffin arrived at the
hospital, he saw defendant sitting on a gurney soaking his hand in a solution. After detectives
arrived and interviewed defendant, the police took defendant into custody and brought him to
the police station.
¶8 On July 23, 2007, defendant was charged by indictment with the first-degree murder of
Roosevelt Wilson, as well as the attempted first-degree murder of Taft Wilson, the attempted
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first-degree murder of Michael Watson, and aggravated discharge of a firearm. Prior to trial,
the court heard and denied defendant’s motion to quash his arrest and suppress evidence and
his motion to suppress statements. Defendant was tried before a jury from May 31 to June 3,
2011. A summary of the relevant testimony follows.
¶9 A. State’s Case-in-Chief
¶ 10 The State’s evidence included testimony from six occurrence witnesses: Roosevelt Gray,
Taft Wilson, Michael Watson, Shawn Bowens, Willie Thomas, and Antoinette Burrage. Three
of these witnesses, Taft Wilson, Michael Watson, and Shawn Bowens, identified defendant as
an occupant of the white van. Because defendant argues on appeal that these three State
witnesses contradicted each other, testified incredibly regarding their own involvement in the
crime, and had a motive to curry favor with the State in relation to their own criminal acts by
falsely accusing defendant, we will consider their testimony in detail.
¶ 11 1. Taft Wilson
¶ 12 Taft Wilson testified that he lived at 7308 South Stewart Avenue with his mother, three
brothers, and sister. Michael Watson was his brother, and Roosevelt Wilson and Roosevelt
Gray were his cousins. On June 27, 2007, at 12:30 a.m., he was standing to the side of his
house talking with his cousin, Roosevelt Wilson, when he heard Shawn Bowens, who was
standing on a porch across the street, shout a warning that a white van was approaching with its
passenger side door open.
¶ 13 Taft Wilson further testified that there was a light on inside the van, and he recognized the
individuals in the van because they were his friends, had all attended the same school, and were
about the same age as him. The individuals he saw in the van were defendant (nicknamed
Midget), Robert Davis (nicknamed Snuggles), Kevin Stanley (nicknamed K-Up-Slow) and
Dimarko (whose last name he did not know). He testified that he could see defendant aiming a
gun at Roosevelt Wilson and him. He saw Robert Davis in the front passenger seat, Kevin
Stanley behind the driver, and Dimarko in the third row of the van. He testified that defendant
fired three to seven shots at him and Roosevelt Wilson (although he initially told police that it
was three to five shots). He “ducked down” for about seven seconds. When he got up, he saw
Roosevelt Wilson lying on the ground. Taft Wilson then fired a semiautomatic 9-millimeter
pistol at the van six times. He chased the van as it slowly travelled south. After firing at the van,
Taft Wilson ran inside his house and called 911. He stated that he had “found” the gun he fired
that night. He initially told the police that he put the gun in a sewer following the incident but
later admitted that he gave it to Roosevelt Gray.
¶ 14 Although Taft Wilson testified that he had not seen the white van before, he admitted that
he had told the police that he had seen the white van earlier. At trial, he stated that he had not
paid close attention to the van. He also testified that, five minutes before the shooting, he saw
Robert Davis drive by as the passenger in a green Grand Am. Taft Wilson also testified that his
brother, Michael Watson, was not in the area during the shooting. He claimed he did not see his
brother riding a bicycle that night, and that his brother returned home on foot after the
shooting.
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¶ 15 2. Michael Watson
¶ 16 Michael Watson testified that he also lived at 7308 South Stewart Avenue and was outside
at 12:30 a.m. on June 27, 2007. Moments before the shooting, with his brother, Taft Wilson,
present, Roosevelt Wilson asked Watson to go purchase some cigarettes for him. As Watson
began to leave on his bike, he heard someone shout to watch out for a van.
¶ 17 Watson saw the light inside the van come on and heard shots. Watson testified that the van
was travelling at a slow speed, and he saw defendant and Robert Davis shoot at Watson’s
family members in front of his house. He testified that they fired “numerous shots” and it “was
a crossfire.” In contrast to his brother’s testimony, he stated that Robert Davis was behind the
driver’s seat, defendant was behind the front passenger seat, and Kevin Stanley was in the front
passenger seat. Watson jumped off his bike and took cover behind a car as the van “slowly
rolled” toward him. They started firing at Watson, who returned three or four shots with a
semiautomatic 9-millimeter pistol. Watson testified that he followed the van on his bicycle to
get the license plate number but was unsuccessful because the van picked up speed and ran the
stop sign. Watson went home where he saw his cousin, Roosevelt Wilson, on the ground,
unresponsive. Watson said he went inside his house and watched the scene from his window.
¶ 18 Similar to his brother, Watson claimed that he “found” the gun he used. He testified that he
found it in a lot next to his house “15 seconds” before the shooting started. Watson testified
that his younger brothers and his daughters played in that lot, and he picked up the gun out of
concern for the children’s safety. He testified that he put the gun in a sewer after the incident.
¶ 19 3. Shawn Bowens
¶ 20 Shawn Bowens was the third witness to testify that he saw defendant in the white van. At
the time of trial, Bowens was incarcerated for a parole violation. Bowens had a pending felony
charge being prosecuted by the Cook County State’s Attorney’s office. He also had prior
convictions for aggravated unlawful use of a weapon, unlawful use of a weapon by a felon,
possession of a controlled substance, and possession of a controlled substance with intent to
deliver.
¶ 21 Bowens testified that, on June 27, 2007, at about 12:30 a.m., he was at 7308 South Stewart
Avenue, his friend Taft Wilson’s house. Roosevelt Wilson, Roosevelt Gray, and Taft Wilson
were outside. Bowens stated that he was on the front porch of 7308 South Stewart Avenue with
Blair Davis. This testimony contradicted that of Roosevelt Gray and Taft Wilson, who said that
Bowens was across the street, on the east side of South Stewart Avenue, when Bowens warned
them about the approaching van. Bowens testified that at no time that night was he across the
street from Taft Wilson’s house, although he later admitted that he had told the grand jury that
he had been across the street earlier that night, before he sat on the porch.
¶ 22 Bowens testified that, while he was sitting on the porch, he noticed a white van and saw the
sliding door open on the rear passenger’s side. He stated that the interior lights were on inside
the van and he saw defendant, Robert Davis, Kevin Stanley, and Dimarko Jones in the van, but
placed them in a configuration that was different from both Taft Wilson’s and Michael
Watson’s testimony. Bowens testified that Jones was in the front passenger seat, and the other
three men were in the van’s back row. He later admitted that he told the grand jury that Davis,
not Jones, was in the front passenger seat. Bowens testified that defendant got up and moved
toward the door of the van, so he shouted to watch out for the van. Bowens then went inside the
house, where he stayed until the shooting ended. Bowens heard about four gunshots coming
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from the van and then, in a matter of seconds, he heard a second set of 25 to 50 shots coming
from the area right next to him where Taft Wilson and Roosevelt Wilson had been standing.
When Bowens came back out, he saw Taft Wilson with a gun.
¶ 23 4. Roosevelt Gray
¶ 24 Roosevelt Gray, who was Roosevelt Wilson’s son, testified that he was present at the scene
but did not identify anyone in the van. He testified that he was walking from his car toward the
front porch of 7308 South Stewart Avenue, where his cousins, Taft Wilson and Michael
Watson, lived. Roosevelt Wilson and Taft Wilson were standing on the sidewalk, just south of
the house. Blair Davis was on the porch. As Gray ascended the stairs, he heard Shawn Bowens,
who was across the street on the east side of South Stewart Avenue, shout to “watch out” for
the van.
¶ 25 Gray testified that he saw a person hanging from the van but he could not “tell anything
about the people inside.” He dropped to the ground on the porch and heard “a lot” of gunshots
coming from the van and additional gunshots “going back towards the van.” After the gunshots
stopped, Gray got up and found his father lying on the ground, shot in the head. He followed
the ambulance to the hospital, where he learned that his father had died.
¶ 26 5. Willie Thomas
¶ 27 Willie Thomas, a retired Chicago police officer who lived at 7338 South Stewart Avenue,
witnessed the incident from his front porch. At around 12:30 a.m., he heard gunshots in the
area of 73rd Street and South Stewart Avenue. He saw “what looked like a gray van accelerate
hard heading south towards 74th.” Thomas testified that he saw a black male hanging out of
the van’s passenger side sliding door, facing backwards, firing a handgun back toward the
north as the van travelled south. Two black males chased the van returning fire, one on foot and
the other on a bicycle. The van went to the area of 75th Street and South Stewart Avenue.
Thomas then heard additional gunshots from the vicinity of 75th Street and South Stewart
Avenue. Shortly thereafter, Thomas saw a man riding a bicycle north toward 73rd Street, with
a second man riding on the handlebars. The man on the handlebars appeared to be the same
person who had chased the van on foot. When they reached the area of 7300 South Stewart
Avenue, the two men took off their shirts and discarded them. Thomas called 911, flagged
down the tactical unit, and spoke to the officers on the scene that night. However, Thomas was
unable to identify the shooter in the van or the two men who chased the van and returned on the
bicycle.
¶ 28 6. Antoinette Burrage
¶ 29 Antoinette Burrage testified that defendant was her boyfriend. On the night of the shooting,
she had an argument with defendant while at 75th Street and South Stewart Avenue. Burrage
left him and went to the other side of South Stewart Avenue. Shortly after midnight, she was
standing at the bus stop at 75th Street and South Stewart Avenue with two female friends when
she heard gunshots. She testified that the gunshots came from the direction of “73rd, 72nd and
Stewart.” After somebody said the shots were headed toward 75th Street and South Stewart
Avenue, everybody scattered, including Burrage. She and her two friends hid in a basement
stairwell in a backyard until they heard police sirens. Burrage left with her friends and began
walking down South Stewart Avenue toward her friend’s house on 73rd Street when a gray
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Charger pulled up to her. A person she knew as “Gargamel” was driving and defendant was in
the passenger seat. Defendant told her to get in the car and that they were going home. Once in
the car, she saw that defendant’s hand was wrapped in a white T-shirt because he was bleeding
from a gunshot wound. They drove to St. Bernard’s Hospital.
¶ 30 Burrage testified that, on the way to the hospital, defendant instructed her to fabricate a
story to the police. Specifically, he told her to tell the police that defendant was at the bus stop
on South Stewart Avenue when a white car pulled up and started shooting. At the hospital,
Burrage was questioned by the police and told them that false story. She reiterated this false
story at the police station. She eventually told the detectives the truth, namely, that “when the
shots rang out, [she] ran in a backyard with two other girls,” that defendant had not been with
her at that time, and that defendant had given her the idea for the false alibi. Burrage testified
that, in fact, she had not seen defendant at all during the time between their argument and
defendant picking her up in the car.
¶ 31 Burrage also testified that when she had emerged from the hiding place in the backyard,
she saw Dimarko Jones lying across the street at the intersection of 75th Street and South
Stewart Avenue by a liquor store. She testified that he was bleeding and had been shot, but she
did not know how he had been shot.
¶ 32 7. Physical Evidence
¶ 33 Several witnesses testified regarding the physical evidence and the police investigation.
The jury was told about the 13 shell casings that were recovered, the locations of the bullet
holes that were found near both crime scenes, the bloodstains found at both crime scenes, the
recovered T-shirt stained with blood, and the weapons involved in the shootout (three and as
many as five separate firearms). The weapons were not recovered.
¶ 34 At the close of the State’s case, defendant moved for a directed verdict, which the trial
court denied.
¶ 35 B. Defendant’s Case-in-Chief
¶ 36 Defendant presented Dimarko Jones. He testified that he was defendant’s friend and had
known defendant, Shawn Bowens, Michael Watson, and Taft Wilson for about 13 years. He
testified that at 12:30 a.m. on the night in question, he was at the bus stop at 75th Street and
South Stewart Avenue with three females, where he had been for several hours. He testified
that one of the females was named Crystal, one was named Rashon, and he did not know the
third one’s name. He testified that defendant was standing by the liquor store across the street.
¶ 37 Jones testified that he heard shots fired to the north from the area of 73rd Street and South
Stewart Avenue, and then a white van “came flying” past the group and continued south
toward 76th Street. Next, a person pulled up on a moped and shots were fired into the crowd.
Jones turned to run, was shot in the back, and fell to the ground. Jones testified that, after he
had been shot, defendant crossed the street toward them, telling everyone it was time to leave.
He also testified that, after the shooting started, he did not see where defendant went and that
defendant and the three females “ran towards the back of the house.” Jones later testified that,
after he had been shot, “the only person [he] saw” was a “Caucasian lady” who was holding
him. Jones testified that defendant had been shot, and he believed that defendant drove himself
to the hospital.
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¶ 38 Jones testified that he was taken by ambulance to Christ Hospital. Jones admitted that he
did not tell the police officers that night that the moped driver was the person who shot him,
that instead he told the officers he did not see the shooter. He also denied being in a van with
defendant shooting at a porch that night in the area of 7300 South Stewart Avenue. Jones
remained in the hospital, where he was treated for his gunshot wound for two or three days.
¶ 39 The defense had subpoenaed another witness, Celia Robles, who had been served the day
before, but she did not respond to her subpoena and was not present in court. The defense
requested a continuance to find Robles and made an offer of proof that Robles would testify as
follows: that she was on a porch at 7506 South Stewart Avenue when she heard shooting and
she ran into the house; that, when she came back out, she saw a black male on a bike firing a
gun, and she saw Dimarko Jones lying on the curb; and that she was interviewed by police after
the incident and gave them this information.
¶ 40 The court denied the defense’s request for a continuance, deciding that Robles was not a
material witness. The court noted that numerous witnesses had already testified to the evidence
in the proffer. The court stated that Robles’s testimony would be cumulative and not material
to the issue of whether defendant was the person who shot and killed Roosevelt Wilson or
committed the attempted murders.
¶ 41 C. State’s Rebuttal
¶ 42 In rebuttal, the State called Chicago police officer Sanders, who spoke to Dimarko Jones at
Christ Hospital while he was being treated for his gunshot wound. Officer Sanders testified
that Jones did not tell him that: (1) Jones had seen the individual who shot him; (2) the
individual who shot Jones was on a moped; (3) Jones was with females named Rashon and
Crystal; or (4) Jones saw a white van speeding down South Stewart Avenue.
¶ 43 D. Jury Instructions
¶ 44 For each of the three charged offenses, the State tendered corresponding
firearm-enhancement instructions, which the court accepted. For the two attempted murder
charges, the State alleged that defendant personally discharged a firearm, which, if proven
beyond a reasonable doubt, would require a 20-year enhancement to any sentence for
attempted murder he would receive. For the murder charge, the State alleged that defendant
personally discharged a firearm that proximately caused Roosevelt Wilson’s death, which
would enhance any sentence for murder by 25 years if proven beyond a reasonable doubt. The
State did not tender accountability instructions.
¶ 45 E. Closing Arguments
¶ 46 In its closing argument, the State argued that defendant personally shot and killed
Roosevelt Wilson. The State did not present an accountability theory in its closing argument.
The defense did not address accountability in its closing argument.
¶ 47 F. Jury Deliberations
¶ 48 After the jury began its deliberations, the jurors sent a series of notes to the court over the
next several hours. One of the notes contained multiple questions, notably asking: (1) for
clarification on the difference between the first-degree murder charge and the “ ‘personally
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pulling trigger’ allegation”; (2) “What is reasonable doubt?”; and (3) “If defendant was in van
[sic] as part of a group who meant to kill someone, do we find him guilty?” In response to the
first question requesting clarification on the difference between the first-degree murder charge
and the “ ‘personally pulling trigger’ ” allegation, the court stated: “[T]he answer is contained
in the instructions you just received.”
¶ 49 In response to the second question–“What is reasonable doubt?”–the court stated:
“[R]easonable doubt cannot be defined for you. That is for you to determine.” Outside the
jury’s presence, the court said that it believed its response to this second question was “in
keeping with case law and [the Illinois Pattern Jury Instructions],” and neither party objected.
¶ 50 In response to the third question (“If defendant was in van [sic] as part of a group who
meant to kill someone, do we find him guilty?”), the court stated: “you must determine the
facts of the case, apply the law to the facts, and in this way reach your verdicts.” Remarking on
this last question, the court stated that it “did not want to answer the question as if [the court
were] commenting on their statement of this fact as true.” The court further explained that its
“interpretation of the evidence was that the allegation was the defendant was the actual shooter
and not accountable.” Both sides agreed that the court’s response to the question was
appropriate.
¶ 51 In another note, the jury asked: “Are their [sic] other accomplises [sic] from this crime that
have been tried or will be tried at some time in the future?” The parties agreed to the following
response from the court: “The only person you are to concern yourselves with is James
Peoples.”
¶ 52 The jury’s final question, sent at 8 p.m., was, “Can someone be guilty of first degree
murder [and] not pull the trigger? We are struggling with the concept of a guilty verdict but not
having enough evidence that shows or proves James Peoples was the shooter. Your assistance
is most welcome! Thanks, Jury.”
¶ 53 In discussing the question outside the presence of the jury, the court asked the parties for
their thoughts. Initially, the defense suggested the jurors be instructed to continue deliberating,
while the State suggested they be told that they had their collective recollection of the
testimony and evidence, the exhibits in front of them, and the law. The court commented that
these responses did not answer the jury’s question. As the court explained: “They don’t have
the law that answers this question. *** [Their question is] a question of law. *** They do not
have this law in front of them.” But defense counsel argued that “[t]hat law is not applicable.”
The court determined it was obligated to answer a question of law and that the jury’s question
was a question of law “under a theory for which the law was not provided.” As the court stated:
“They don’t have the law about the theory of accountability.” Defense counsel responded that
it was “not the applicable law in this case” and noted there was no indicted count stating that
defendant was “accountable for anyone else’s actions.” Eventually, over the defense’s
objection and request for a mistrial, the court responded at 8:40 p.m.: “Dear Jury, The answer
is Yes. Judge Petrone.” Five minutes later, at 8:45 p.m., the jury returned its verdicts.
¶ 54 G. The Jury’s Findings
¶ 55 The jury found defendant guilty of two counts of first-degree murder and two counts of
attempted first-degree murder. The jury found that defendant personally discharged a firearm
during the commission of the attempted first-degree murder of both Michael Watson and Taft
Wilson. However, the jury also found that the State did not prove the allegation that, during the
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murder of Roosevelt Wilson, defendant personally discharged a firearm that proximately
caused Roosevelt Wilson’s death.
¶ 56 H. Posttrial Motion
¶ 57 Defendant filed a timely posttrial motion, raising numerous issues. His memorandum of
law filed in support of his motion focused solely on the trial court’s response to the final
question posed by the jurors during deliberations. After hearing arguments, the court denied
defendant’s motion.
¶ 58 I. Sentence
¶ 59 The court sentenced defendant to 70 years of incarceration. The court merged the two
murder counts and sentenced defendant to a 40-year term for murder. On each attempted
murder count, the court sentenced defendant to a 30-year term, which included the 20-year
mandatory firearm enhancement. The court ordered the attempted murder sentences to run
concurrently with one another, but to run consecutively to the murder sentence. This appeal
followed.
¶ 60 II. ANALYSIS
¶ 61 A. Sufficiency of the Evidence
¶ 62 We first address defendant’s argument that the State’s evidence was insufficient to prove
him guilty beyond a reasonable doubt where it consisted primarily of “incredible and
contradictory identification testimony” from witnesses who had a clear motive to curry favor
with the State regarding their own criminal acts. He notes that the two State eyewitnesses
without such a motive–Roosevelt Gray and Willie Thomas–were unable to identify anyone in
the white van. Defendant also argues that there was a complete lack of physical evidence
connecting him to the shooting, aside from the gunshot wound to his hand, which he claims
demonstrated only that he was a victim. Defendant argues that we should reverse his
convictions outright.
¶ 63 When a defendant challenges the sufficiency of the State’s evidence, we must determine
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 offense beyond a reasonable doubt.
People v. Baskerville, 2012 IL 111056, ¶ 31. “This standard of review ‘gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” People v.
Brown, 2013 IL 114196, ¶ 48 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The
trier of fact is also in the best position to resolve any conflicting inferences produced by the
evidence. People v. Bonaparte, 2014 IL App (1st) 112209, ¶ 41. “[T]he trier of fact is not
required to disregard inferences that flow from the evidence, nor is it required to search out all
possible explanations consistent with innocence and raise them to a level of reasonable doubt.”
(Internal quotation marks omitted.) Id.
¶ 64 As a court of review, it is not our function to retry the defendant or to substitute our
judgment for that of the jury. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). “A defendant’s
conviction will not be reversed ‘simply because the evidence is contradictory [citation] or
because the defendant claims that a witness was not credible.’ ” People v. Alvarez, 2012 IL
-9-
App (1st) 092119, ¶ 52 (quoting People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009)).
However, although a jury’s determinations of the credibility of witnesses and the weight of the
evidence are entitled to deference, they are not conclusive. People v. Brown, 2013 IL 114196,
¶ 48. “Rather, a criminal conviction will be reversed where the evidence is so unreasonable,
improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” Id.
¶ 65 The State’s case against defendant relied on evidence that included, among other things,
the gunshot wound sustained by defendant, the testimony of Burrage that defendant asked her
to lie to the police regarding her knowledge of defendant’s whereabouts at the time of the
crime, and the testimony of three witnesses who identified defendant as the shooter. The
testimony of a single credible witness may be sufficient to sustain a conviction, even if it is
contradicted by the defendant. People v. Sullivan, 46 Ill. 2d 399, 401 (1970); People v. Fultz,
2012 IL App (2d) 101101, ¶ 45.
¶ 66 Defendant argues that all three of the State’s identification witnesses were incredible. Taft
Wilson, Michael Watson, and Shawn Bowens all testified that they saw defendant in the van
and saw him shooting. These three witnesses were able to identify the occupants of the van
and, in addition to defendant, identified Kevin Stanley and Robert Davis. Both Taft Wilson and
Shawn Bowens also saw Dimarko Jones in the van. Defendant points to the numerous
inconsistencies among the witnesses’ testimony. He notes that the witnesses gave
contradictory testimony regarding where each occupant was located within the van. He
contrasts Michael Watson’s testimony that he was in the area and that his brother Taft Wilson
was present, with Taft Wilson’s testimony that his brother Michael Watson was not in the area
when the shooting took place. Defendant also notes the inconsistent testimony regarding
whether Shawn Bowens was across the street before he sat down on the porch where the
shooting took place. Defendant further argues that Bowens’s identification of him was
severely undermined if, “as the evidence suggests, Bowens was actually on the east side of
Stewart [Avenue] when the van arrived.” Defendant asserts that, if that were true, “there is no
way that [Bowens] would have been able to see [the van’s] occupants because the open
passenger-side of the van never would have been visible to someone on the east side of Stewart
[Avenue].”
¶ 67 “The mere existence of conflicting evidence at trial does not require a reviewing court to
reverse a conviction.” People v. Goodar, 243 Ill. App. 3d 353, 357 (1993). “That one witness’s
testimony contradicts the testimony of other prosecution witnesses does not render each
witness’s testimony beyond belief.” People v. McCarter, 2011 IL App (1st) 092864, ¶ 22; see
also People v. Cunningham, 212 Ill. 2d 274, 283 (2004). “Any discrepancies in the testimony
were a question for the jury.” People v. Thomas, 384 Ill. App. 3d 895, 899 (2008). “The trier of
fact is free to accept or reject as much or as little of a witness’s testimony as it pleases.” People
v. McCarter, 2011 IL App (1st) 092864, ¶ 22; see also People v. Logan, 352 Ill. App. 3d 73, 81
(2004). “It is sufficient if all of the evidence taken together satisfies the trier of fact beyond a
reasonable doubt of the defendant’s guilt.” McCarter, 2011 IL App (1st) 092864, ¶ 22; see also
People v. Jackson, 232 Ill. 2d 246, 281 (2009). Also, where identification testimony is positive,
precise consistency as to collateral matters is not required to establish guilt beyond a
reasonable doubt. People v. Miller, 101 Ill. App. 3d 1029, 1040 (1981); People v. Reed, 84 Ill.
App. 3d 1030, 1036 (1980).
¶ 68 Defendant argues that the jury should not be allowed to accept beyond a reasonable doubt
the witnesses’ testimony that defendant was in the van, but “reject so many incredible portions
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of the witnesses’ testimony–how they obtained their guns, what they did with the guns
afterward, whether Watson was on the scene and participated in the shootout, and whether
Dimarko Jones was in the van during the shooting, to name a few.”
¶ 69 In defendant’s closing argument, he pointed out these inconsistencies to the jury. The jury
determined that these inconsistencies were not significant enough to outweigh the accounts of
defendant’s involvement by these witnesses.
¶ 70 The State noted in its rebuttal that these individuals all knew each other, had grown up
together, and had attended school together. Taft Wilson, Michael Watson, and Shawn Bowens
all testified to the nicknames of the individuals they saw in the van and each stated that
defendant’s nickname is “Midget.” As the State argued to the jury, this case was not about
“identification” but, rather, it was about “recognition.”
¶ 71 Here, three witnesses identified defendant as one of the individuals in the van. Taft Wilson
testified that defendant was the person who aimed the gun at Roosevelt Wilson and him and
fired three to seven shots. Michael Watson testified that defendant was shooting at his family
members in front of his house. Shawn Bowens testified he saw defendant in the van moving
toward the door and then heard gunshots coming from the van. The witnesses’ testimony, if
believed by the jury, was sufficient to establish defendant’s guilt beyond a reasonable doubt. It
was the jury’s function to determine whether witnesses, including Taft Wilson, Michael
Watson, and Shawn Bowens, were credible. As shown by the jury’s verdict, and its specific
finding that the State proved the allegation that defendant personally discharged a firearm
during the commission of the attempted first-degree murders, the jury found these State
witnesses credible. We conclude that the evidence, viewed in the light most favorable to the
State, was sufficient to prove defendant guilty of the charged offenses beyond a reasonable
doubt.
¶ 72 B. Denial of Defendant’s Request for Continuance
¶ 73 Defendant next argues that the trial court committed reversible error by denying
defendant’s request for a continuance to obtain Celia Robles’s testimony. The State argues that
defendant forfeited this argument by failing to raise it in a posttrial motion, and the issue could
only be reviewed, if at all, under a plain-error analysis.
¶ 74 The plain-error doctrine is a limited and narrow exception to the general rule of procedural
default. People v. Walker, 232 Ill. 2d 113, 124 (2009). The doctrine allows a reviewing court to
consider unpreserved error when a clear or obvious error occurs and one of two conditions is
met: (1) 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) the 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).
¶ 75 Defendant first argues that we should not consider the argument forfeited, despite his
failure to include the issue in a posttrial motion, because the trial court had an opportunity to
consider the issue fully. In the alternative, defendant claims that we should consider it as plain
error under either prong of the analysis. Because we ultimately conclude that no error occurred
here, it makes no difference whether we consider the issue as preserved error or plain error. See
People v. Kitch, 239 Ill. 2d 452, 462 (2011) (if no error occurred at all, by definition no plain
error occurred).
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¶ 76 After a trial has begun, the decision to grant a continuance is within the sound discretion of
the trial court. People v. Ward, 154 Ill. 2d 272, 304 (1992). On appeal, the trial court’s refusal
to grant a continuance will be reversed only when it is shown that the trial court abused its
discretion, and the refusal resulted in prejudice to the defendant. Id. “In reviewing the denial of
a request for a continuance sought to secure the presence of a witness, the factors to be
considered are: (1) whether defendant was diligent; (2) whether defendant has shown that the
testimony was material and might have affected the jury’s verdict; and (3) whether defendant
was prejudiced.” Id. at 307.
¶ 77 As noted earlier, the defense proffered that Robles would testify that she was on a porch at
7506 South Stewart Avenue when she heard shooting and ran into the house; when she came
back out, she saw a black male on a bike firing, and she saw Dimarko Jones lying wounded on
the curb. Defendant argues that this testimony was critical to corroborate the testimony of
Dimarko Jones that he was shot while on the street at 75th Street and South Stewart Avenue,
and not while riding in the white van and participating in the shootout that began in the 7300
block of South Stewart Avenue, as the State alleged. Defendant places such importance on
Jones’s claim of being at 75th Street and South Stewart Avenue, away from the initial barrage
and the white van, because Jones is defendant’s alibi–Jones testified that defendant was also at
that intersection at 75th Street and South Stewart Avenue, just across the street from Jones,
when the gunfire first erupted two blocks to the north.
¶ 78 In denying the continuance, the trial court first acknowledged defendant’s lack of diligence
in not serving Robles on an earlier date. But the court stated: “Even so, if I thought the witness
was really material and critical to the prosecution, I would grant a continuance.” Thus, the
court based its decision primarily on the second factor enunciated in Ward, the materiality of
the proffered testimony. See id.
¶ 79 In concluding that Robles was not a material witness, the court reasoned that the proffered
testimony was cumulative. The court noted that the same testimony had been presented to the
jury through numerous witnesses including: (1) Dimarko Jones, a defense witness; (2) Michael
Watson, a friend of the decedent, Roosevelt Wilson; and (3) Willie Thomas, a neutral person.
In the court’s words, the proffered testimony was:
“completely cumulative because the person who was on the bike with the gun Michael
Watson himself testified he was on the bike shooting with a gun, chasing the car. A
neutral person, if you will, [retired] Officer Willie Thomas testified that he was on his
porch on that block looking out when he saw the shooting, and he saw a young black
male on a bike chasing a white van shooting. And Dimarko Jones, the defense witness
*** also testified that a person was on a bike shooting.”
¶ 80 Robles’s testimony was also similar to Antoinette Burrage’s testimony that she was at 75th
Street and South Stewart Avenue, heard gunshots, hid somewhere, and subsequently saw Jones
lying on the curb with a gunshot wound. Thus, insofar as the proffered testimony would
demonstrate that a man on a bike was shooting, or that Jones was lying wounded at 75th Street
and South Stewart Avenue after the shooting had finally subsided, we agree with the trial court
that this testimony added nothing new. In the end, there was no dispute that some gunshots
were fired in the area of 75th Street and South Stewart Avenue by a person on a bike, nor was
there any dispute that Jones was found wounded on a curb at 75th Street and South Stewart
Avenue.
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¶ 81 Defendant claims, however, that the relevance of Robles’s proffered testimony is that it
would bolster Jones’s testimony that Jones was positioned at 75th Street and South Stewart
Avenue when the shooting began two blocks north of that location, which would likewise
bolster his additional testimony that defendant was at the same location, just across the street,
at that same time. If the jury accepted that proposition as true, then of course defendant could
not have been one of the shooters in the white van speeding south toward 75th Street; he was at
75th Street all along.
¶ 82 The problem with this argument, however, is that the proffered testimony did not go that
far. Based on defense counsel’s proffer, Robles’s testimony was simply that she was outside on
the porch before the shooting, that she ran inside her house once she heard gunfire, and that,
when she emerged from her house, she saw a man on a bike firing a gun and Jones lying on the
curb at 75th Street and South Stewart Avenue, bleeding. Robles’s testimony, as proffered,
would not place Jones at 75th Street and South Stewart Avenue at the time the shooting began
up in the 7300 block. Simply put, based on the proffer, Ms. Robles would not have been able to
testify how Jones ended up on that curb–whether he had been in that area all along (as he
claimed) or whether he was dumped out of the white van (as the State claimed). And we are
thus hard-pressed to see how this testimony would have ultimately lent any credence to Jones’s
additional testimony that defendant was with Jones, at 75th Street, all along as an innocent
bystander.
¶ 83 Defendant failed to show that Robles’s testimony was material and might have affected the
jury’s verdict. We conclude that the trial court did not abuse its discretion in denying
defendant’s request for a continuance to obtain testimony from Celia Robles.
¶ 84 C. Jury Question on Reasonable Doubt
¶ 85 Defendant next argues that the trial court erred when it answered the jury’s
question–“What is reasonable doubt?”–by stating, “[R]easonable doubt cannot be defined for
you. That is for you to determine.” Defendant contends that the court’s response was “a
defective reasonable doubt instruction.” Defendant concedes he forfeited this issue but now
invokes the plain-error doctrine.
¶ 86 As previously discussed, the plain-error doctrine permits review of unpreserved errors
where (1) the evidence is so closely balanced that the error alone threatened to tip the scales of
justice against the defendant, or (2) the 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. Piatkowski, 225 Ill. 2d at 565. Defendant argues that this issue can be
reviewed under the first prong because the evidence was closely balanced. Defendant also
asserts that this issue is reviewable as second-prong plain error. The first step of plain-error
review is to determine whether any error occurred at all. Kitch, 239 Ill. 2d at 462; People v.
Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 87 During the pendency of this appeal, the Illinois Supreme Court issued its opinion in People
v. Downs, 2015 IL 117934, which resolves the issue presented here. In Downs, the jury sent out
a note asking, “ ‘What is your definition of reasonable doubt, 80%, 70%, 60%?’ ” Id. ¶ 6. The
trial court responded, “ ‘We cannot give you a definition[;] it is your duty to define.’ ” Id. ¶ 7.
Our supreme court determined that there was no error in this response, which the court stated
was “unquestionably correct.” Id. ¶ 24.
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¶ 88 The court in Downs cited with approval the opinion in People v. Thomas, 2014 IL App (2d)
121203. In Thomas, the jury’s question was, “[W]hat is the legal definition of reasonable
doubt?” and the trial court’s response was, “It is for you to determine.” (Internal quotation
marks omitted.) Downs, 2015 IL 117934, ¶ 23. The appellate court in Thomas held that the
response was “unquestionably correct” and that a “trial court’s instruction that the meaning of
reasonable doubt is for jurors to determine is a correct statement of Illinois law.” (Internal
quotation marks omitted.) Id.
¶ 89 In the instant case, the court’s response, that “reasonable doubt cannot be defined for you.
That is for you to determine,” was substantively identical to the response approved by our
supreme court in Downs. Based on Downs, we are compelled to find that the trial court
committed no error. Having determined the trial court did not err in its response, there can be
no plain error.
¶ 90 D. Jury Questions on Accountability
¶ 91 We reach a different conclusion as to the court’s response to the jury’s final question,
regarding accountability. Again, the jury’s last note asked:
“Can someone be guilty of first degree murder [and] not pull the trigger? We are
struggling with the concept of a guilty verdict but not having enough evidence that
shows or proves James Peoples was the shooter. Your assistance is most welcome!
Thanks, Jury.”
¶ 92 The trial court answered “[y]es” to this question. Whether the trial court gave the correct
answer is a question of law we review de novo. People v. Leach, 2011 IL App (1st) 090339,
¶ 16.
¶ 93 When the court received this final question from the jury, defendant requested that the
court instruct the jurors to continue deliberating, but the court decided it was obligated to
answer this question of law. Defendant argues that the trial court committed prejudicial error
because its response of “[y]es” injected a new theory of culpability–accountability–into the
trial, which the State had never raised and against which defendant had no opportunity to
present a defense.
¶ 94 We agree that the trial court’s response was incorrect. Instead of answering yes, the court
should have answered “no.” Accountability was not a theory pursued at trial, and thus, as
applied to the circumstances of this case, it was incorrect for the trial court to instruct the jury
that it could convict on a theory of accountability. While it is ordinarily appropriate for a trial
court to answer a question of law posed by the jury, “the court should not submit new charges
or new theories to the jury after the jury commences its deliberations. [Citation.]” People v.
Millsap, 189 Ill. 2d 155, 160-61 (2000).
¶ 95 In Millsap, the defendant was charged with robbery and home invasion. Id. at 159. The
State charged the defendant only on a direct theory of liability. Id. After the jury had begun its
deliberations, it asked whether the accomplice was equally guilty as an offender who actually
causes the injury in a home invasion. In response, over objection, the trial court instructed the
jurors on the doctrine of accountability. Id. at 160. Our supreme court held that the trial court
committed reversible error in giving this new jury instruction, even though it correctly stated
the law in the abstract, because it injected a new theory into the trial after the jury had begun
deliberating. Id. at 165 (“It was too late for the State to change its theory of the case after the
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case had been sent to the jury.”). The instruction on accountability, given to the jury after it had
begun deliberations, raised the serious possibility that the defendant was convicted on a theory
that the defense never had an opportunity to contest, thereby depriving the defendant of his
right to a fair trial. Id. at 166.
¶ 96 Almost 10 years before Millsap was decided, this court had addressed a similar issue in
People v. Jamison, 207 Ill. App. 3d 565 (1991), a case cited with approval in Millsap. The
court in Jamison concluded that the trial court abused its discretion in giving the jury a
supplemental instruction on accountability after the jury began deliberating because it allowed
the defendant to be convicted on a theory not addressed at trial. Other decisions of this court
are consistent with Millsap. See People v. Laabs, 2011 IL App (3d) 090913, ¶ 20 (“Based upon
Millsap and Jamison, there can be no dispute in the present case, and indeed there is no dispute,
that the trial court erred in instructing the jury on a new theory of guilt, accountability, during
deliberations, in response to the jury’s question.”); People v. Wilson, 312 Ill. App. 3d 276, 287
(2000) (“because the defense never had the opportunity to argue accountability as it pertained
to the murder charge and because the jurors’ query after 10 hours of deliberation implied that
they had not yet reached a verdict on the murder charge and had some concerns as to whether
defendant was the shooter, the trial court abused its discretion in submitting an instruction that
presented a new theory”).
¶ 97 There is no question that the trial court committed reversible error in instructing the jury
that it could convict based on a theory of accountability. Nor, under the circumstances, do we
find this error harmless beyond a reasonable doubt. There is, at a minimum, a serious risk that
defendant was convicted of murder based on a theory never presented to the jury, and which
defendant never had the opportunity to contest. The State did not prosecute defendant as an
accomplice. It only prosecuted him as the principal shooter. Neither the State nor defendant
ever addressed accountability in closing arguments. The theory never came up until the jury
started asking questions about that theory. The jury, at various times during deliberations, sent
out notes seeking “clarification” on the difference between the first-degree murder charge and
the allegation that defendant had “personally” discharged a firearm that proximately caused
death to Roosevelt Wilson (the 25-year enhancement instruction accompanying the murder
charge), and had also asked whether they should find defendant guilty if he was in the van as
part of a group who meant to kill someone. Most notable was the last question, in response to
which the court instructed the jury that it could, in fact, convict defendant of murder based on
accountability.
¶ 98 Equally notable is the jury’s special verdict on the firearm enhancement accompanying the
murder charge–asking whether the State proved beyond a reasonable doubt that defendant
personally discharged a firearm that proximately caused death–in which the jury found that
defendant did not shoot the bullet that killed the victim, or at least that the State did not prove
this fact beyond a reasonable doubt. Because of the serious possibility that the jury convicted
defendant of murder not because it found him to be the principal shooter as charged by the
State but, rather, because the trial court erroneously told the jury that it could convict him
based on accountability, a theory defendant never had the opportunity to address at trial or
during closing arguments, we do not find this error harmless beyond a reasonable doubt. See
Millsap, 189 Ill. 2d at 166 (because defendant might have been convicted on theory that
defendant had no opportunity to address in closing argument, error was not harmless).
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¶ 99 We must next determine whether this error requires outright reversal or remand for a new
trial. We would reverse outright if we found that a retrial would violate double jeopardy
principles (see U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10), which would occur in this
instance only if defendant were retried for an offense for which he had been previously
acquitted. People v. Howard, 2014 IL App (1st) 122958, ¶ 13.
¶ 100 Defendant argues that this is precisely such an instance, because in effect he was acquitted
of first-degree murder, based on the jury’s special finding regarding the 25-year firearm
enhancement. In other words, because the jury found that the State failed to prove beyond a
reasonable doubt that he personally discharged the weapon that resulted in Roosevelt Wilson’s
death, the jury did not prove defendant guilty as the principal shooter. Defendant claims that,
“if the trial court had not erroneously injected the issue of accountability into the trial, [he]
would have been acquitted.” The State, on the other hand, finds no inconsistency between the
guilty verdict on the murder charge and the “acquittal” on the special enhancement verdict
form, because it claims that the verdicts required different proof. Thus, the State claims, there
is no bar to retrial of this matter for first-degree murder.
¶ 101 There is no question that the two verdicts are in conflict. Defendant was convicted on two
counts of murder (which were merged into one, because only individual died). One of them
required that the State prove that defendant, “in performing the acts which cause the death[,]
*** either intends to kill *** or knows that such acts will cause death to that individual.” 720
ILCS 5/9-1(a)(1) (West 2006). The other required that the State prove that defendant, “in
performing the acts which cause death[,] *** knows that such acts create a strong probability
of death *** to that individual.” 720 ILCS 5/9-1(a)(2) (West 2006). Compare that language to
the special jury verdict form for the firearm enhancement, which required that the State prove
that defendant, “during the commission of the offense *** personally discharged a firearm that
proximately caused *** death” to Roosevelt Wilson. 730 ILCS 5/5-8-1(d)(iii) (West 2006).
¶ 102 We see no meaningful difference in the language constituting the offense of first-degree
murder and the enhancement language. It is undisputed that the “act” that allegedly “cause[d]
death” in this case was the discharge of a bullet that killed Roosevelt Wilson. It is impossible to
reconcile the jury’s finding that defendant “perform[ed] the acts which cause[d] death” to
Roosevelt Wilson with its finding that defendant did not “personally discharge[ ] a firearm that
proximately caused [the] death” of Roosevelt Wilson. The jury found, in effect, both that
defendant killed Roosevelt Wilson with a bullet from his gun, and that defendant did not kill
Roosevelt Wilson. These two verdicts are diametrically opposed to one another. See People v.
Reed, 396 Ill. App. 3d 636, 647 (2009) (guilty verdict on first-degree murder and acquittal on
firearm enhancement were irreconcilable).
¶ 103 But it does not follow that we should find that defendant was not proven guilty of
first-degree murder beyond a reasonable doubt and reverse that conviction outright.
Inconsistent verdicts–where a defendant is convicted of one crime and acquitted of another
involving the same elements–do not mandate outright reversal of the conviction. See id. at
646-47 (despite inconsistency between first-degree murder conviction and acquittal on firearm
enhancement, outright reversal of murder conviction not required). This has been the law in
Illinois since 2003, when our supreme court reversed its previous rule and aligned itself with
the reasoning in United States v. Powell, 469 U.S. 57 (1984), holding that “defendants in
Illinois can no longer challenge convictions on the sole basis that they are legally inconsistent
with acquittals on other charges.” People v. Jones, 207 Ill. 2d 122, 133-34 (2003); see also
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Reed, 396 Ill. App. 3d at 646-47 (relying on Jones for this proposition). There are many
reasons for this rule, including that in the face of competing verdicts–one guilty, one not
guilty–a reviewing court cannot know which of those verdicts reflected the jury’s true intent
and which did not; “ ‘it is unclear whose ox has been gored.’ ” Jones, 207 Ill. 2d at 130
(quoting Powell, 469 U.S. at 65). Second, even though the inconsistency could injure the State
as much as the defendant, the State could not appeal an acquittal, while the defendant could
appeal a conviction. Id. at 130-31. Third, an inconsistent verdict could be nothing more than a
product of jury lenity, lacking any factual integrity. Id. at 130. And finally, a defendant could
still challenge the sufficiency of the evidence, lending a check on jury irrationality. Id. at 131.
¶ 104 Defendant acknowledges the holding in Jones and likewise concedes that Reed applied
Jones to a situation very similar to the one at hand, namely, a conviction for first-degree
murder but an acquittal on a firearm enhancement related to that murder. See Reed, 396 Ill.
App. 3d at 646. The difference, defendant claims, is that in this case, unlike in Reed, the
murder conviction was tainted by the erroneous answer to the jury question injecting
accountability into the trial. Thus, defendant argues that, unlike in Reed, where the challenge to
the jury verdict on murder was simply based on its inconsistency with the special finding on
the gun enhancement, in this case the jury never “properly” convicted defendant of murder,
and its only “proper” verdict on this score was its acquittal on the firearm enhancement related
to that murder.
¶ 105 Defendant is correct that the circumstances of this case are more favorable to him. In Reed,
there was no argument that the trial court gave an erroneous answer to a jury question that
likely caused the jury to misunderstand the law and convict the defendant of murder. And the
facts of this case strongly suggest that the jury believed that defendant was not proven to be the
principal shooter. After all, the final jury note said as much (“We are struggling with the
concept of a guilty verdict but not having enough evidence that shows or proves [defendant]
was the shooter.”). And when the trial court incorrectly told the jury that it could convict based
on an accountability theory, the jury returned its guilty verdict in no more than five minutes. It
requires no leap of the imagination to speculate that the jury believed that defendant was
present at the crime scene and acting in concert with others (and that defendant fired a weapon
and attempted to kill two individuals), but the jury did not believe that the State proved that a
bullet from defendant’s gun killed Roosevelt Wilson.
¶ 106 But however likely that possibility might be, it is speculation all the same. We may not
guess as to why a jury did what it did, no matter how obvious it may seem to us. See People v.
Spears, 112 Ill. 2d 396, 409 (1986) (“Simply put, courts are not in the business of
second-guessing a jury’s ‘clear intent.’ *** [N]or will this court attempt to metaphysically
divine a jury’s collective intent from a single question that may well have only embodied the
curiosity or concern of a single juror.”). The simple fact is that we cannot altogether rule out
the possibility of jury lenity or compromise, or the remote chance that the jury’s error favored
the State and not the defendant.
¶ 107 Because we cannot say, as a matter of law, that the jury intended to acquit defendant of
first-degree murder, and because we found earlier that there was sufficient evidence to convict
defendant of first-degree murder, the proper course of action is to reverse defendant’s
conviction and remand for a new trial. People v. Ward, 2011 IL 108690, ¶ 50.
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¶ 108 E. Whether Defendant’s Sentence Was Excessive
¶ 109 Defendant next argues that his 70-year aggregate sentence is excessive. Defendant
received 40 years for first-degree murder, and he was sentenced to 30 years for each of his two
convictions for attempted first-degree murder. The two 30-year sentences ran concurrently to
one another but consecutively to the 40-year sentence, for a total of 70 years. Of course, with
our reversal of the murder conviction, only the 30-year sentences remain for consideration.
That probably takes some of the wind out of defendant’s argument, because it was with the
40-year murder sentence that the trial court deviated upward from the minimum rather
significantly.
¶ 110 Regardless, because defendant raised it, and because this may be his only opportunity to
challenge the 30-year sentences on a direct appeal, we will review the 30-year sentences for
excessiveness. If defendant is convicted of first-degree murder on retrial, he will not be
foreclosed from arguing about the excessiveness of whatever sentence he may receive for that
offense, nor will he be prevented from challenging any sentences he received for all of these
convictions in the aggregate.
¶ 111 A reviewing court may not alter a defendant’s sentence absent an abuse of discretion by the
trial court. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Where a sentence imposed is
within the statutory range, this court will not find an abuse of discretion unless the sentence is
“greatly at variance with the purpose and spirit of the law.” (Internal quotation marks omitted.)
People v. Sharp, 2015 IL App (1st) 130438, ¶ 134 (quoting People v. Center, 198 Ill. App. 3d
1025, 1032 (1990)). We defer to the trial court’s judgment on sentencing because the lower
court, “ ‘having observed the defendant and the proceedings, has a far better opportunity to
consider [sentencing] factors than the reviewing court, which must rely on the “cold”
record.’ ” Alexander, 239 Ill. 2d at 212-13 (quoting People v. Fern, 189 Ill. 2d 48, 53 (1999)).
The trial court is in a superior position to weigh the defendant’s credibility, demeanor, general
moral character, mentality, social environment, habits, and age. People v. Stacey, 193 Ill. 2d
203, 209 (2000). The trial court is thus far better suited to balance the need to protect society
against the rehabilitative potential of the defendant. Sharp, 2015 IL App (1st) 130438, ¶ 133.
¶ 112 We will not reweigh the factors considered by the trial court, even if we would have
balanced them differently. Stacey, 193 Ill. 2d at 209. Nor will we find that a minimum sentence
is necessarily warranted simply due to the presence of some mitigating factors. People v.
Flores, 404 Ill. App. 3d 155, 158 (2010); People v. Payne, 294 Ill. App. 3d 254, 260 (1998).
¶ 113 When mitigating factors are presented to the court, there is a presumption that the trial
court considered them in determining the sentence. People v. Burton, 184 Ill. 2d 1, 34 (1998);
People v. Payne, 294 Ill. App. 3d 254, 260 (1998). This presumption can be overcome only
with explicit evidence from record that mitigating factors were not considered by trial court.
Flores, 404 Ill. App. 3d at 158.
¶ 114 Defendant’s sentences for attempted murder were well within the statutory guidelines.
Attempted first-degree murder is sentenced as a Class X felony. See 720 ILCS 5/8-4(c)(1)
(West 2006). The sentence for a Class X felony is 6 to 30 years in prison. See 730 ILCS
5/5-4.5-25(a) (West 2010). On each of the two counts of attempted murder of which defendant
was convicted, defendant received 10 years, clearly at the low end of the range. The court was
required to add an additional 20 years to each sentence because defendant personally
discharged a firearm during the commission of these crimes. See 720 ILCS 5/8-4(c)(1)(C)
(West 2006). Because the trial court had no choice but to impose the mandatory 20-year
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enhancement (People v. White, 2011 IL 109616, ¶¶ 19-20), the only portion of the sentence
that defendant is able to challenge for an abuse of discretion is the court’s imposition of the 10
years, instead of the minimum 6 years.
¶ 115 Defendant contends that his sentence is excessive in light of his: (1) youth–he was 19 years
old at the time of the offense; (2) lack of any criminal history–he has no prior convictions or
delinquency adjudications; and (3) his rehabilitative potential–based on his strong support
network of friends and family and as evidenced by his obtaining his GED and tutoring others
during his pretrial incarceration.
¶ 116 During sentencing, the court heard and considered arguments in aggravation and
mitigation. The factors that defendant describes on appeal were presented to the trial court in
mitigation of defendant’s sentence. Defense counsel told the court that defendant was 24 years
old at the time of sentencing and had no juvenile background or adult convictions. Defense
counsel also stated that defendant was the father of two young sons, was working odd jobs at
the time he was arrested, was no longer a gang member, had attained his GED while in jail, and
had also been tutoring others in jail.
¶ 117 In imposing defendant’s sentence, the court expressly addressed all of these factors, with
the exception of defendant’s age. The court also referred to section 5-5-3.1(a) of the Unified
Code of Corrections (730 ILCS 5/5-5-3.1(a) (West 2006)), which lists statutory factors in
mitigation for a court to consider when imposing a sentence of imprisonment. The court stated
that it agreed with defense counsel that subsection 7 applied. See 730 ILCS 5/5-5-3.1(a)(7)
(West 2006) (“defendant has no history of prior delinquency or criminal activity or has led a
law-abiding life for a substantial period of time before the commission of the present crime”).
The court noted defendant had no prior convictions and had “led a law abiding life for a
substantial period of time before the commission of the present crime.” Although the court did
not expressly mention defendant’s age, we presume that the court considered all of the
mitigating factors that were presented by defense counsel. Burton, 184 Ill. 2d at 34; Flores, 404
Ill. App. 3d at 158.
¶ 118 We find no abuse of discretion. The sentences were only slightly above the minimum
defendant could have received, and the court properly considered the relevant factors. We
affirm defendant’s sentence for attempted murder.
¶ 119 F. Mittimus
¶ 120 Defendant next argues, and the State concedes, that his mittimus must be corrected to
reflect an additional 187 days spent in presentence custody for a total of 1,722 days (instead of
1,535 days), and the fines, fees, and costs order should reflect an outstanding balance of $530.
The State agrees that defendant is entitled to $5 for each day he spent in custody prior to
sentencing, resulting in a credit of $8,610 against all eligible assessments, including the $5,000
felony offense fine. Defendant does not dispute that the $8,610 credit offsets his entire $5,000
felony offense fine, nor does he dispute the State’s contention that his outstanding balance
should be $530 for the fees that cannot be offset. Defendant also agrees with the State that we
need not address his argument regarding the correctness of the imposition of the $5,000 felony
offense fine.
¶ 121 This court has the authority, pursuant to Illinois Supreme Court Rule 615(b) to order the
clerk to correct the mittimus without remanding the matter to the trial court. See, e.g., People v.
Flores, 381 Ill. App. 3d 782, 789 (2008). Accordingly, we direct the clerk of the circuit court to
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correct the mittimus to reflect 187 days of presentence custody credit, and the fines, fees, and
costs order to reflect an outstanding balance of $530.
¶ 122 III. CONCLUSION
¶ 123 For the reasons stated, we conclude that the evidence, viewed in the light most favorable to
the State, was sufficient to prove defendant guilty of the charged offenses beyond a reasonable
doubt. We affirm defendant’s conviction for attempted murder. We reverse defendant’s
conviction for first-degree murder and remand for a new trial. We order the clerk of the circuit
court to correct the mittimus and the fines and fees order in accordance with this order.
¶ 124 Affirmed in part; reversed in part; mittimus corrected; and cause remanded with directions.
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