People v. Koger ( 1997 )

                              No. 3 96 0334

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                               A.D., 1997

PEOPLE OF THE STATE OF        )    Appeal from the Circuit Court

ILLINOIS,                     )    of the 21st Judicial Circuit

                             )    Kankakee County, Illinois

    Plaintiff-Appellee,      )                             

                             )

    v.                       )    No. 95 CF 696

                             )

FRED KOGER,                   )    Honorable

                             )    Robert Adcock

    Defendant-Appellant.     )    Judge, Presiding.

                             )

_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________

    The defendant, Fred Koger, Grant Smith and Nicholas Tang, who

was known to defendant as Melik, committed an armed robbery of two

men.  Melik killed the victims while defendant stood nearby with a

shotgun.  Defendant was subsequently arrested and charged with six

counts of first degree murder and one count of armed robbery.  A

jury convicted defendant of the armed robbery and first degree

murder of both victims, and he was sentenced to natural life in

prison for the murders.  He appeals the murder convictions and

sentence.  We affirm.

                                  FACTS

    On November 7, 1995, defendant, Smith and Melik met at Mario

Gray's house.  Melik said that he knew two men who he believed had

marijuana and suggested that they rob these men at gunpoint.  A man

named Jamier Allen testified that during this conversation he heard

Melik say he was going to kill the victims.  Allen stated that

defendant and Smith agreed no one would be killed, and the three

men decided to commit the crime.  Melik left the house to set up a

meeting with the victims in an alley near Gray's house at

approximately 2:30 p.m. on the pretext of making a drug deal.

    The three men were armed when they arrived in the alley;

defendant was carrying a shotgun.  Melik told the passenger,

Stevenson Earl, to get out of the car and turn over his valuables.

He then had Earl lie on the ground at the rear of the car.  At

gunpoint, defendant ordered the driver, Arthur Loud, Jr., to lie on

the ground by Earl.  Smith put his gun on the passenger seat and

searched the car while the other two men guarded the victims.

    Melik silently stood behind Earl and shot him in the head,

execution-style, from a distance of 6 to 18 inches.  He killed Loud

in the same manner.  The three defendants then ran down the alley,

appeared to exchange something, and continued to run.  Eventually,

they met back at Gray's house.  Defendant asked Melik why he had

killed the two men; Melik answered that he had "something personal

for them."

    Two days later, when the police arrested defendant they found

a watch belonging to one of the victims.  Defendant was questioned

for several hours at the police station and gave a written

confession.  He was subsequently charged with six counts of first

degree murder (720 ILCS 5/9 1(a)(1) (West 1994)) and one count of

armed robbery (720 ILCS 5/18 2 (West 1994)).

    Defendant sought to quash the arrest and suppress his

confession, but the trial court denied both motions.  Defendant

also filed a motion in limine to bar the introduction of his prior

conviction for aggravated discharge of a firearm.  The trial court

denied the motion in a written order, finding that the conviction's

probative value outweighed the prejudice to defendant.

    After the close of the State's case, defendant moved for a

directed verdict, which the trial court denied.  Defendant

unsuccessfully renewed this motion after the close of all of the

evidence.  A jury convicted defendant of the armed robbery and

first degree murder of both victims.  The trial court sentenced

defendant to natural life in prison for the murders, and defendant

filed a timely notice of appeal.  Because the trial court had not

sentenced defendant for the armed robbery conviction, a second

sentencing hearing was later held.  Defendant was sentenced to 30

years for the armed robbery, and he filed a second notice of

appeal.  This court consolidated the two appeals.

    (The discussion of the following issues is not to be published

pursuant to Supreme Court Rule 23 (Official Reports Advance Sheet

No. 15 (July 20, 1994), R. 23, effective July 1, 1994).)

    Nonpublishable material omitted under Supreme Court Rule 23.

                                   V.

                                   A.

    Defendant next contends that the mandatory life imprisonment

provision in section 5/5 8 1 of the Unified Code of Corrections

(Code) (730 ILCS 5/5 8 1(a)(1)(c)(ii) (West 1994)) violates article

I, section 11 of the Illinois constitution because it does not

consider the defendant's rehabilitative potential.

    Defendant was sentenced to natural life under section 5 8 1

because he was convicted of a double homicide.  Article I, section

11 requires that criminal penalties be determined in accordance

with the seriousness of the crime, keeping in mind the objective of

returning the defendant to a useful place in society.  Ill. Const.

1970, art. I, §11.  However, a defendant's rehabilitation potential

need not be given more weight than the severity of the offense.

People v. Taylor, 102 Ill. 2d 201, 206, 209, 464 N.E.2d 1059, 1062,

1064 (1984).  The legislature is assumed to have considered the

relevant factors in establishing sentences, and the resultant

scheme is presumptively proper.  Taylor, 102 Ill. 2d at 206, 464

N.E.2d at 1062.

    Illinois courts have upheld section 5 8 1 against similar

constitutional challenges where the defendant was either the actual

killer (Taylor, 102 Ill. 2d at 206, 209, 464 N.E.2d at 1062, 1064)

or an accomplice to the killer (People v. Driskel, 224 Ill. App. 3d

304, 317, 586 N.E.2d 580, 588 (1991)).  In addition, two courts

have found that section 5 8 1 is constitutional when applied to

defendants who have been found guilty by accountability.

    In People v. Foster, 198 Ill. App. 3d 986, 998-99, 556 N.E.2d

1214, 1222-23 (1990), the defendant asserted that the trial judge's

discretion was unduly limited because the statute did not allow him

to consider the difference between a perpetrator and a defendant

guilty by accountability.  The court rejected the defendant's

contention, reasoning that the focus of section 5 8 1(a)(1)(c) was

the nature of the homicides, not the defendant's role in them.

This reasoning was followed in People v. Perry, 230 Ill. App. 3d

720, 722, 595 N.E.2d 736, 738 (1992).

    In this case, defendant was found guilty of two execution-

style murders.  We agree with the reasoning of the courts in Perry

and Foster and find that section 5 8 1 is not unconstitutional

under article I, section 11 as applied to those found guilty by

accountability.

    (The discussion of the following issue is not to be published

pursuant to Supreme Court Rule 23 (Official Reports Advance Sheet

No. 15 (July 20, 1994), R. 23, effective July 1, 1994).)

    Nonpublishable material omitted under Supreme Court Rule 23.

                               CONCLUSION

    The judgment of the circuit court of Kankakee County is

affirmed.

    Affirmed.

    McCUSKEY and SLATER, JJ., concur.