THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY E. CALLAHAN, Defendant-Appellant.
Fourth District No. 4-99-1043
Fourth District
October 18, 2002
636
STEIGMANN, J., specially concurring in part and dissenting in part.
Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender‘s Office, of Springfield, for appellant.
Mary Kirbach, State‘s Attorney, of Jerseyville (Norbert J. Goetten, Robert J. Biderman, and Kathy Shepard, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE KNECHT delivered the opinion of the court:
A jury convicted defendant, Ricky Callahan, of first degree murder and four counts of armed violence. The trial court sentenced him to a term of natural life imprisonment for the murder conviction and 30 years for each conviction for armed violence, to be served consecutively to each other and to the sentence of natural life. Defendant appeals, raising the following contentions: (1) the trial court erred in allowing
I. FACTS
In January 1998, the State charged defendant by indictment with first degree murder (
Shortly after 12 a.m. on December 27, 1997, Jerseyville police responded to a call concerning an altercation at Lorton‘s Hotel
Defendant, a patron of the bar, was rebuffed by a woman with whom he wished to dance. The woman‘s brother intervened and told defendant, “Hey, man she said no.” Defendant withdrew to his table but then approached the brother and scratched him twice on the neck with the tip of a knife. In response to the bartender‘s request, two patrons then escorted defendant to the exit door of the bar. Defendant appeared willing to leave but then turned back into the crowd and, in a punching motion, stabbed four other patrons. One died and the other three were injured.
Defendant then left the bar, ran across the street, and returned still carrying a bloody knife in his hand, with the blade sticking between his fingers and the palm of his hand. Several patrons struggled with defendant, took him to the pavement, and disarmed him. The police then arrived.
Twelve witnesses testified in varying detail to these events. None of the witnesses knew defendant prior to December 27, 1997, and none testified to anyone provoking defendant.
The parties stipulated deoxyribonucleic acid (DNA) testing revealed blood on the knife was Talley‘s and blood on defendant‘s jeans was Jennifer Williams‘. A fingerprint on the knife was Zachariah Czaia‘s. The parties also stipulated medical evidence indicated wounds found on Almasey, Williams, Talley, and Garrett were consistent with stab wounds inflicted by a knife. An autopsy on Haenitsch indicated the cause of death to be a single stab wound to the chest, which perforated his heart.
Several witnesses testified for defendant about the amount of alcohol he consumed on December 26 and his actions that afternoon and evening. Defendant asserted a defense of voluntary intoxication and presented an expert psychologist, Dr. Richard Wetzel, who testified that, on the night in question, defendant did not have the ability to form the intent to kill or seriously harm someone. The State called a psychiatrist, Dr. Kevin Miller, in rebuttal. Dr. Miller testified he did not believe defendant to have been legally intoxicated on the night in question, and he opined that defendant‘s actions were intentional and purposeful.
Jerseyville police officer Frank Scoggins testified he interviewed defendant at the police station after his arrest. Defendant told him he
The jury deliberated on the foregoing evidence and returned verdicts of guilty on one count of first degree murder and four counts of armed violence.
The trial court held a sentencing hearing on September 2, 1999. The court found no factors in mitigation. In aggravation, the court noted defendant‘s conduct caused serious harm; he had a history of criminal activity; he inflicted severe bodily injury; he attacked five people in the span of only a few seconds, causing death to one and great bodily harm to the other four; the attacks occurred in a public place against unsuspecting individuals minding their own business; the attacks were random and without reason; defendant was not subject to rehabilitation; defendant did not exhibit any remorse; defendant offered no help to his victims but fled the scene; and the randomness of the murder was indicative of brutal and heinous behavior indicating wanton cruelty. It then sentenced defendant to natural life for the murder conviction and consecutive 30-year prison terms on each of the four armed violence offenses, to be served consecutively to the term of natural life.
Defendant filed a motion to reduce sentence on September 21, 1999, which the trial court denied on December 21, 1999. This appeal followed.
II. ANALYSIS
A. Ineffectiveness of Counsel in Failing To Move To Dismiss Late Filed Additional Charges on Speedy-Trial Grounds
Defendant remained in custody from his arrest on December 27, 1997, until his trial. A speedy-trial demand pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (
Defense counsel made no objection to the filing of the charges despite being filed on the eve of trial. The trial court allowed them to be filed. After they were filed, defense counsel made no motion to dismiss the new charges on speedy-trial grounds. The trial was continued until July 19, 1999.
On appeal, defendant argues defense counsel was ineffective for failing to move to dismiss the newly filed charges on speedy-trial grounds. The standard of review for assessing ineffective assistance of counsel is the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), as adopted by People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56 (1984), in which a defendant must show counsel‘s performance was objectively deficient and defendant was prejudiced by such deficiency. He must show counsel made errors so serious he was not functioning as the “counsel” guaranteed under the sixth amendment. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To establish prejudice, a defendant must show a reasonable probability that, but for counsel‘s unprofessional errors, the result would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The rule regarding speedy-trial considerations on later-filed charges was set forth in People v. Williams, 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846 (1981):
“Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained.”
Counsel‘s failure to move for a speedy-trial discharge of the new and additional charges under these circumstances may constitute ineffective assistance of counsel. People v. Stanley, 266 Ill. App. 3d 307, 310, 641 N.E.2d 1224, 1226 (1994).
Where charges are required to be brought in a single prosecution under the compulsory-joinder provisions of section 3-3(b) of the Criminal Code of 1961 (
Included offenses that are charged later are not subject to the Williams rule. An indictment for a particular offense serves as an indictment for all included offenses, and the later-filed included offenses are not “new and additional” charges. They are deemed to have been before the court when earlier continuances were granted. People v. Dressler, 317 Ill. App. 3d 379, 387, 739 N.E.2d 630, 637 (2000) (Third District).
The State elected to go to trial on just four of the later-filed charges, armed violence, and the original first degree murder charge. The armed violence counts arose from the same acts as the original charges and the facts were long known by the State. The armed violence counts were filed after the 120 days of the speedy-trial term had expired. None of the continuances granted prior to filing of the armed violence charges would then be attributable to defendant under the Williams rule, and the charges would be amenable to dismissal on speedy-trial grounds unless the later-filed charges were included offenses.
The State argues armed violence is an included offense of attempt (first degree murder) and, as such, is not barred by the speedy-trial rule set forth in Williams.
To determine whether an offense is an included offense of another, the supreme court has endorsed the “charging-instrument” approach. People v. McLaurin, 184 Ill. 2d 58, 104, 703 N.E.2d 11, 33 (1998). The instrument charging the greater offense must, at a minimum, set out the main outline of the lesser offense. McLaurin, 184 Ill. 2d at 104-05, 703 N.E.2d at 33; People v. White, 311 Ill. App. 3d 374, 386, 724 N.E.2d 572, 582 (2000). A charging instrument setting forth the “main outline” of an offense includes allegations of all the essential elements of that offense. See McLaurin, 184 Ill. 2d at 105, 703 N.E.2d at 33; White, 311 Ill. App. 3d at 386-87, 724 N.E.2d at 582.
Where the State has charged two different offenses and is required to prove an additional element to obtain a conviction of one of the offenses as alleged in the charging instrument, that offense cannot be an included offense of the other. People v. Lindsey, 324 Ill. App. 3d 193, 201, 753 N.E.2d 1270, 1277 (2001). Even though the language of
The State cites People v. Bowens, 307 Ill. App. 3d 484, 718 N.E.2d 602 (1999) (First District), in support of its argument that armed violence is an included offense of attempt (first degree murder). In Bowens, the court found armed violence, as charged by the State, is an included offense of attempt (first degree murder). Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610. In Bowens, both charges stated the defendant, while armed with a knife, stabbed the victim in the throat and repeatedly kicked the victim about the head and neck. For the armed violence charge, the aggravated battery on which it was predicated was based on defendant‘s alleged intent and knowledge his actions would cause bodily harm and permanent disability to the victim. Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610-11.
Specifically, the attempt (first degree murder) charge in Bowens alleged:
“‘[H]e without legal justification [and] with intent to commit the offense of first degree murder intentionally and knowingly attempted to kill [the victim] by cutting [the victim] on or about the throat area with a knife and kicked [the victim] repeatedly about the head, face[,] and neck area.‘” Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610-11 (quoting count I of indictment).
The armed violence charged in Bowens alleged:
“‘[W]hile armed with a dangerous weapon, to wit: a knife, [he] committed the offense of aggravated battery’ by ‘kicking [the victim] repeatedly about the head, face[,] and neck area and stabbing [the victim] in the neck with a knife *** without legal justification’ and with the intent and knowledge that his actions would cause ‘bodily harm and permanent disability’ to the victim.” Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 611 (quoting counts IV and V of indictment).
The court in Bowens noted that to allege the offense of armed violence, all that was needed was to substitute the defendant‘s “intent and knowledge” his actions would cause bodily harm in the armed violence count for his intent to kill his victim in the attempt (first degree murder) count. The fact the victim would have suffered bodily injury as a result of the defendant‘s actions was implicit in the attempt (first degree murder) charge. Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 611.
In this case, the State added two sets of armed violence charges
“[D]efendant, while armed with a knife with a blade of at least three inches in length, performed an act prohibited by Illinois Compiled Statutes[,] Chapter 720, Act 5[,] Section 12-4(a), being Aggravated Battery, in that defendant struck [the victim] in [the neck/lower abdomen/posterior lower back] with said knife, thereby causing great bodily harm to [the victim].” (Emphasis added.)
The other set of armed violence charges alleged:
“[D]efendant, while armed with a knife with a blade of at least three inches in length, performed an act prohibited by Illinois Compiled Statutes[,] Chapter 720, Act 5[,] section 12-4(b)(8), being Aggravated Battery, in that defendant struck [the victim] in [the neck/lower abdomen/posterior lower back] with said knife, while [the victim] was at the Lorton‘s Hotel Restaurant & Bar, a public place of amusement.” (Emphasis added.)
The attempt (first degree murder) charge in this case alleged:
“[D]efendant, with the intent to commit the offense of Murder in violation of section 9-1(a)(2) of Act 5 of Chapter 720 of the Illinois [C]ompiled Statutes, performed a substantial step toward the commission of the offense, in that said defendant, without lawful justification, struck [the victim] in [the neck/lower abdomen/posterior lower back] with a knife, knowing such act created a strong probability of death to the [the victim], thereby causing great bodily harm to [the victim], in violation of Chapter 720, Act 5, Section 8-4(a) of the Illinois Compiled Statutes.” (Emphases added.)
The State elected to go to trial solely on the armed violence counts predicated on aggravated battery alleging defendant struck the victims with a knife in excess of three inches while in a public place of amusement. These armed violence charges contained the elements “armed with a knife with a blade of at least three inches in length” and that the acts of defendant occurred “while [the victim] was at *** a public place of amusement.” These elements were not contained in the attempt (first degree murder) charge and, thus, were not required to be proved for a conviction of attempt (first degree murder). Therefore, armed violence was not an included offense of attempt (first degree murder) as charged by the State.
Because the charging-instrument approach is the analysis endorsed by the supreme court in determining whether an offense is included in another offense, it does not matter whether those additional elements were actually at issue at trial.
Failure to move to dismiss the armed violence counts on speedy-trial grounds was prejudicial to defendant because dismissal on that
B. Ineffectiveness of Counsel for Failure To Tender Jury Instruction Defining Recklessness
The jury instruction for involuntary manslaughter (Illinois Pattern Jury Instructions, Criminal, No. 7.07 (3d ed. 1992) (hereinafter IPI Criminal 3d)) was tendered by the State and given by the court. That instruction reads:
“A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual *** by acts which are performed recklessly and are likely to cause death or great bodily harm to another.” IPI Criminal 3d No. 7.07.
The committee note beneath this instruction states that IPI Criminal 3d No. 5.01 defining “recklessness” is to be given with IPI Criminal 3d No. 7.07. IPI Criminal 3d No. 7.07, Committee Note. No instruction defining “recklessness” was tendered by either party or given by the court.
Defendant argues defense counsel was ineffective in failing to tender IPI Criminal 3d No. 5.01, defining the mental state of recklessness, one of the essential elements of involuntary manslaughter, as the failure to do so was prejudicial error. Defendant cites People v. Howard, 232 Ill. App. 3d 386, 597 N.E.2d 703 (1992), and People v. Bolden, 103 Ill. App. 2d 377, 243 N.E.2d 687 (1968).
In Howard, reversible error was found where the jury instruction for involuntary manslaughter was given but not the instruction defining recklessness. Howard, 232 Ill. App. 3d at 392-93, 597 N.E.2d at 708. However, the court also found the evidence was closely balanced and the prosecutor made an improper closing argument. Howard, 232 Ill. App. 3d at 392, 597 N.E.2d at 708.
In Bolden, 103 Ill. App. 2d at 379-80, 243 N.E.2d at 689, the involuntary manslaughter instruction itself omitted any reference to the act having to be performed recklessly. The Bolden court found the failure to mention and define the mental state of recklessness, one of the essential elements of involuntary manslaughter, was prejudicial error. Bolden, 103 Ill. App. 2d at 382, 243 N.E.2d at 690. The court also found the evidence to have been closely balanced.
Where the evidence is not closely balanced, no prejudice could have resulted, and defense counsel‘s failure to tender the jury instruction defining recklessness has been found not to be ineffective representation. People v. Lake, 298 Ill. App. 3d 50, 54-55, 697 N.E.2d 1147, 1150-51 (1998).
Despite defendant‘s assertion on appeal that the primary issue at trial was whether his actions were reckless or intentional, the focus at trial was on his affirmative defense of voluntary intoxication. The case did not hinge on which mental state defendant possessed but on whether he was intoxicated and without the requisite mental state.
Defendant did not seriously contest the issue of whether his actions constituted involuntary manslaughter or first degree murder. We find defense counsel‘s failure to tender the jury instruction defining recklessness along with the tendered instruction for involuntary manslaughter was harmless beyond a reasonable doubt.
C. Valid Waiver of Defendant‘s Miranda Rights
After defendant was arrested, he was interrogated at the police station. Officer Scoggins read him his Miranda rights. Defendant acknowledged he understood his rights. Officer Scoggins did not read the last item on the “Miranda rights” card prepared by the Jerseyville police department: “Knowing these rights, do you want to talk to me without having a lawyer present? You may stop talking to me at any time and you may also demand a lawyer at any time.”
Defendant argues he did not waive his rights before he spoke to Officer Scoggins because he was not asked if he wished to waive them and he did not otherwise state he was waiving them. He does not contend he was not advised of his rights or that he did not understand them. He asserts only that he made no valid waiver because it was not expressed.
The trial court denied defendant‘s motion to suppress the statements made to Officer Scoggins. The State contends defendant waived this argument on appeal as he did not include it in a posttrial motion, as required by People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). We agree and find the argument has been waived.
The trial court sentenced defendant to natural life in prison for first degree murder and consecutive terms on each of four counts of armed violence. Under Illinois law, punishment for first degree murder is normally imprisonment for a term of not less than 20 nor more than 60 years.
Defendant argues this sentencing procedure is unconstitutional because the enhancing factor (brutality and wanton cruelty) was not charged, submitted to the jury, and proved beyond a reasonable doubt. In support of his position he relies on Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348.
The general rule of Apprendi is as follows:
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
Defendant asserts the first degree murder charge of which he was convicted did not include the additional “facts” or “elements” of brutality and wanton cruelty found by the trial court and used to enhance his sentence beyond the normal, statutory maximum penalty. Thus, the imposition of his sentence of natural life in prison violated Apprendi.
The majority of Illinois Appellate Court decisions have held Apprendi prohibits a trial court in a noncapital case from imposing a sentence beyond the normal range merely because it finds the defendant engaged in exceptionally brutal or heinous behavior if that aggravating factor is not submitted to a jury and proved beyond a reasonable doubt. See People v. Johnson, 333 Ill. App. 3d 935, 940 (2001) (Fifth District); People v. Bryant, 325 Ill. App. 3d 448, 457, 758 N.E.2d 430, 437-38 (2001) (First District, Fourth Division); People v. Nitz, 319 Ill. App. 3d 949, 968, 747 N.E.2d 38, 54 (2001) (Fifth District); People v. Chanthaloth, 318 Ill. App. 3d 806, 816, 743 N.E.2d 1043, 1050 (2001) (Second District). In these cases, the findings of brutality and wanton cruelty improperly increased the defendants’ exposure to greater punishment. As noted by the court in Nitz, the trial judge made a factual finding that increased the range of penalties, thus increasing defendant‘s exposure to punishment. Nitz, 319 Ill. App. 3d at 967, 747 N.E.2d at 53.
We recognize at least two courts have used a different analysis and found the sentencing scheme in Illinois not to be violative of Apprendi. Following a jury trial, the defendant in People v. Vida, 323 Ill. App. 3d 554, 557, 752 N.E.2d 614, 618 (2001) (First District, Sixth Division), was convicted of first degree murder and was sentenced by the court to an extended term of 100 years in prison under section 5-8-2(a)(1) of the Unified Code (
We agree with the court in Johnson and find the analysis of Vida less than convincing. A defendant‘s guarantee of a trial by jury requires the facts necessary to the determination of a statutory maximum penalty are required to be submitted to a jury. The question
We hold the trial judge‘s finding that defendant‘s behavior was exceptionally brutal and indicative of wanton cruelty was an element that should have been charged and submitted to the jury. The State needed to allege it in the charging instrument and prove it beyond a reasonable doubt. Accordingly, we modify defendant‘s sentence for first degree murder to a 60-year determinate prison term, the maximum sentence the law allows on the facts charged and proved beyond a reasonable doubt.
III. CONCLUSION
As we have reversed defendant‘s convictions for armed violence, his 30-year consecutive sentences for those convictions are also reversed. Thus, defendant‘s arguments regarding the application of Apprendi to consecutive sentencing, the application of Apprendi to truth-in-sentencing provisions, and the propriety of imposing consecutive sentences on natural life sentences are moot. Since we have also reduced defendant‘s sentence from natural life to a determinate 60-year prison term, defendant‘s final argument on his sentence of natural life being excessive and inappropriate is also moot.
We affirm defendant‘s conviction for first degree murder but modify the sentence of natural life imprisonment to 60 years’ imprisonment, we reverse defendant‘s convictions for armed violence, and we remand for issuance of an amended written judgment of sentence.
Affirmed in part as modified and reversed in part; cause remanded with directions.
McCULLOUGH, P.J., concurs.
JUSTICE STEIGMANN, specially concurring in part and dissenting in part:
I agree with the majority‘s decision except its conclusion that defendant received ineffective assistance of counsel when his trial counsel failed to move for dismissal of the armed violence counts on
The majority cites Dressler, which states that the so-called Williams rule does not apply where later-filed charges describe lesser included offenses. Dressler, 317 Ill. App. 3d at 387, 739 N.E.2d at 637. That is exactly what happened in this case.
In Bowens, 307 Ill. App. 3d at 487, 718 N.E.2d at 605, the First District Appellate Court needed to determine whether the entry of multiple convictions against the defendant was proper where those convictions included attempt (first degree murder) and armed violence. As in this case, the convictions arose out of a stabbing incident. The First District concluded that the multiple convictions could not stand because the armed violence counts were lesser included offenses of attempt (first degree murder). Bowens, 307 Ill. App. 3d at 495, 718 N.E.2d at 610-11. The analysis in Bowens is sound, and this court should follow it here.
Further, it must be remembered that this matter comes before us on a claim of plain error (that the trial court erred by permitting the State to file the four new counts of armed violence) or, alternatively, ineffective assistance of counsel (because defendant‘s trial counsel failed to object to the State‘s request to file these additional charges). I conclude neither applies.
From trial counsel‘s point of view, he was asserting the only available defense (voluntary intoxication), given the overwhelming case against his client. The State had already charged his client with attempt (first degree murder) concerning the four victims who were similarly named in the newly added armed violence counts. It is certainly not clear to me that no reasonable lawyer would have failed to object to the filing of these new counts. Similarly, I have serious difficulty finding any prejudicial effect since, as earlier stated, the State was entitled to file these charges because they were lesser included offenses.
Accordingly, I respectfully dissent from the majority‘s decision to vacate defendant‘s convictions for armed violence.