3-96-0334 | Ill. App. Ct. | Apr 16, 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" date_filed="1984-05-25" court="Ill." case_name="People v. Taylor">102 Ill. 2d 201, 206, 209, 464 N.E.2d 1059" date_filed="1984-05-25" court="Ill." case_name="People v. Taylor">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 201" date_filed="1984-05-25" court="Ill." case_name="People v. 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 201" date_filed="1984-05-25" court="Ill." case_name="People v. 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" date_filed="1991-12-27" court="Ill. App. Ct." case_name="People v. Driskel">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" date_filed="1990-05-16" court="Ill. App. Ct." case_name="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" date_filed="1992-07-02" court="Ill. App. Ct." case_name="People v. Perry">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.