People v. Powell

THE PEOPLE OF ILLINOIS, THE STATE OF Plaintiff-Appellee, v. POWELL,

ANTHONY Defendant-Appellant. (4th Division) First District No. 1 — 03—1008 Opinion filed December J., concurring. THEIS, specially Bernstein, Appellate of State Moshe both J. Pelletier and Joshua

Michael Office, Chicago, appellant. of for Defender’s (Renee Goldfarb, Samuel Devine, Attorney, Chicago of A. State’s Richard counsel), Attorneys, for the

Shim, McCord, of Assistant State’s and Anne People. QUINN opinion of court: delivered

JUSTICE charged were and three codefendants Anthony Powell Defendant 1(a)(1) (West (720 degree murder ILCS with six counts of first 5/9 — Dotson, a death of Mitchell 2000)), shooting connection with trial, he shot the victim At defendant testified gang rival member. claim, self-defense rejecting defendant’s jury, self-defense. while murder committed degree him of first convicted defendant The circuit court sentenced discharging a firearm. years and 20 for years first murder consecutive terms of 30 the murder the commission of personally discharging a firearm sentencing mandatory enhance- pursuant to Illinois’ “15/20/25-to-life” (West 2000)). (730 8—l(a)(l)(d)(ii) ap- On provision ment ILCS 5/5 — (1) violates sentence enhancement peal, argues defendant Illinois process clauses and due both the failing to ineffective for his trial counsel was Constitution and gang bias potential about request inquire the circuit court reasons, affirm following For the we members. amongst the venire conviction and sentence. defendant’s

BACKGROUND on p.m. trial, that, approximately Taylor testified At James and North standing the corner Lockwood July he was on “Mane,” Bell, and the named Phillip a man Chicago Avenues in car that people standing with several victim. He saw testified that as Taylor on the other side of street. parked another, the street toward one walked across defendant and victim “[Wjhat’s answered, defendant, up?” Defendant the victim asked “This is what up,” pulled gun waistband, from his and shot the victim. Taylor testified that he did not see the victim gun with a or reach for his waist as he and defendant met in the middle of the street.

Samantha that, Miller testified at approximately p.m. July on 12, 2000, she and her four-year-old son were at apartment Minor, Tierra located near corner of North and Lockwood Avenues. leaving After the apartment, she group men, saw a including defendant, standing around boyfriend, the car of her Terrell Pearson. Miller telling denied police gun she saw a under defendant’s shirt or that she saw defendant walk across street toward another men, group of pull “big gun” waistband, from his and shoot the victim. She testified that she never saw the victim reach for his waist pockets into his being before shot. She further testified that she gunshots heard night, but she did not remember where the shots shots, came from. When she heard the grabbed she her son ran into friend’s house to call a cab. She then went to Ieshia Richard- son’s home. January 2001,

In Miller spoke with Assistant Attorney State’s Joe (ASA Cataldo) Cataldo and gave signed statement. She testified that signed she only statement because she was scared and did not want “them to take away statement, [her] son from [her].” her Miller told ASA Cataldo that both defendant and Pearson in the were gang; same she could tell gun shirt; that defendant had a under his group defendant walked toward the of men across the street with his asked, want?”; hand under his you shirt and do “What the victim walked toward defendant while the other three men away; backed pulled “big defendant a gun” shirt, pointed out from under his it at victim, him; and shot she no saw one other than a defendant with gun; and she never saw the victim reach for his waist or into his pockets testified, before however, he was shot. She that she made up everything in her statement and that she had really anything not seen night. that

ASA Cataldo testified that on January he went to Area police headquarters Five and took a statement Ms. from Miller concerning night shooting. what she had seen on the In her statement, up Miller told ASA Cataldo she saw defendant walk to victim, waistband, pull “big gun” from his and shoot the victim anyone in the chest. She stated that she did not see other than gun, defendant did with the victim not reach for his waistband or shot, pockets being just before and the victim there standing “was do- ing nothing [defendant] when shot him.” 2000, that, 12,

Aishe Minor on July babysitting testified she was sister, Minor, Ms. at her apart- Miller’s son with her Tierra sister’s arrived Miller and Mr. Pearson Ms. p.m., approximately ment. At apartment, and left the up her son they picked son. After pick up her phone call. needed to make a upstairs said he back Pearson came rang call, someone making phone 20 minutes after About 15 to she too Minor testified that Pearson left. Miller and doorbell and men, including outside, group she saw and, went left when she group another of the street and defendant, on one side standing standing by seeing defendant After on the other side. standing men then apartment. her She walking back to car, she Pearson’s started defendant, which followed something was say heard someone apartment. ran into the gunshots, she she heard gunshots. When phone from received a call that she Richardson testified leshia 12, told July 2000. Pearson p.m. and 11 on p.m. Pearson between them Jackson and have Jeremy codefendant her to find defendant and baby “he had because his up apartment him at Minor’s pick come and After she found defendant and sitting on him.” people and some were and told Lavergne Avenues the corner of Potomac and Jackson near her, men left. had told them what Pearson about his observa- Balodinas testified After Detective Demosthenes during his he and the evidence recovered tions of the crime scene Cataldo. ASA Cataldo testified investigation, the State recalled ASA January defendant around 1:40 a.m. on spoke that he hour, defendant chose for about an spoke After he with defendant statement, explained defendant give videotaped statement. In his selling drugs “giving problem gang [him] that the had been victim’s this. He stated Lavergne angry and that he was about at and Potomac” by member of the day shooting, he was told first before himself, he victim could later gang, victim’s then corner, being kicked off the Angry corner. drugs sell on that “gonna somebody.” hurt thinking went home he was Lavergne and Po- Later, the corner of defendant went back to told him to leave the approached again him tomac. The victim to Lavergne left and hurt him. Defendant walked area or he would had the victim telling gang a fellow member what Crystal. After Mae” to him, the house of man known as “Mae they told went to they going were to shoot They decided there that discuss the situation. someone. the corner of selling drugs on day,

The next while defendant him and said Crystal, approached and leshia Richardson Lavergne and the victim and apartment her that Pearson was at sister’s street. standing corner across the gang were on the members of his and guns, defendant get Mae’s house to some going After Mae walked, defendant they to North and Lockwood. As Jackson went gun checked to make sure that the loaded and it put was under his shirt. he got Lockwood, When to North and he saw the victim stand- ing across the recognized street with few other men he as members of the gang. victim’s He did not them holding any see weapons. After the victim approached him and asked him you “What on?” defendant pulled gun out his and shot the victim in the chest. Defendant then stood over and pulling victim started the trigger, gun but his jammed. Defendant he “pissed” gun stated that was jammed his [the because he wanted to “shoot victim] some more” then and “shoot of rest them.” Defendant ran then back to Mae Mae’s house. rested, After the State defendant testified his on own behalf. Defendant testified that he was a member Four Corner Hustlers. He supreme stated that the victim awas “five star leader” Mafia Insane Vice Lords Nation. He testified that he first saw the victim a couple days shooting before the driving in a car with two other men. As defendant was on the standing corner of Potomac and Lavergne selling drugs, said, up the victim to him and “Shorty, drove get off I you.” this corner before hurt Defendant testified that the shotgun” lap. victim had a “little in his Defendant then left the corner. later, A standing few hours while defendant was on the corner of Kamerling and friends, Potomac with few of his the victim drove by again, pointing at defendant shaking his head. evening July 12, 2000,

On the while defendant again selling drugs on the corner Lavergne, of Potomac and Ieshia Richardson came up to him and told him that members the Mafia Insane Vice Lords gang had apartment surrounded Pearson her sister’s on North and Hearing this, defendant and Lockwood. codefendant Jackson obtained guns safely apartment. went to escort Pearson from the When they arrived at the apartment, group defendant saw a of Mafia Insane standing defendant, Vice Lords across the street. The victim asked you victim, on?” Shorty “[D]on’t “What Pearson told ask what he’s on.” Defendant testified that then victim started to walk toward defendant his hand under his shirt. Defendant testified it reaching gun, looked like the victim was for a he admitted but actually gun. see, that he never saw a Not wanting to wait defendant shot the victim he because “was scared” feared for his going life. Defendant that he kill testified believed the victim was upon him reputation hurting people based the victim’s and the fell, earlier After the kept pulling victim’s threats. victim jammed. then Mae trigger, gun but his Defendant ran to Mae’s house. making videotaped statement. He testi-

Defendant admitted that he shot the police fied that he did not tell the ASA Cataldo

129 cross-examination, asked. On he was not in because victim self-defense Vice Mafia Insane angry at all the that he was testified defendant all of and that he shoot on that corner wanted gang members Lords them. rejected defendant’s self-defense jury closing arguments, the

After circuit court degree murder. The of first theory guilty found him The court degree first murder. years for to 30 sentenced jury found consecutively, because served years, 20 to be added murder, had personally defendant, committing degree first to file a motion granted defendant’s This court discharged firearm. appeal. late notice of

ANALYSIS OF ILLINOIS’S I. CONSTITUTIONALITY STATUTE “15/20/25-TO-LIFE” alia, murder dur- charged, degree first Defendant inter with discharged personally of which he a firearm. ing the commission 2000). 1(a)(1) (West jury After the convicted defendant ILCS 5/9 — murder, years’ trial court sentenced him to 30 degree first added 20 imprisonment degree murder. The circuit court then for first years pursuant to Illinois’s to defendant’s sentence “15/20/25-to-life” states, which mandatory sentencing provision, murder], “if, during degree [of first part, the commission pertinent personally discharged years shall be added person imprisonment imposed the court.” 730 the term of ILCS 5/5—8— (West 2000).1 1(a)(1)(d)(ii) 20-year enhance- argues Defendant provision, a defendant’s sentence 1Under the “15/20/25-to-life” committing degree of first if he utilizes firearm while offense enhanced 2000). (a)(l)(d)(iii) (West 8—l(a)(l)(d)(i) through murder. See 730 ILCS 5/5 — “personally discharged firearm” or If the defendant either was “armed murder, court must add committing first the circuit a firearm” while 8—l(a)(l)(d)(i), sentence, years respectively. to his See 730 ILCS 15 or 20 5/5 — 2000). (West (a)(l)(d)(ii) discharged If, however, a firearm that “personally he disability, permanent bodily harm, permanent great proximately caused years up person, or to a term of natural disfigurement, or death another imposed imprisonment court.” life shall be added to the term of (West 2000). (a)(1)(d)(iii) ILCS 5/5 —8—1 sections, charged three of these but Defendant in this case was under all “personally discharged” add-on jury only to the was instructed other counts provision. happened not indicate what to the two The record does alleging why jury the count that defendant was not instructed as to discharged proximately to another firearm that caused death merit violated both the process and due clauses of the Illinois Constitution.

A constitutional, statute is presumed and the party challenging the statute bears the of demonstrating burden invalidity. its People v. Malchow, (2000). 413, 418, 793 N.E.2d 433 A court has a duty to construe a in a statute manner upholds validity its if constitutionality it can reasonably Malchow, be done. 193 Ill. 2d at The question of whether a statute is constitutional is subject to de novo People Carney, review. 752 N.E.2d 1137 (2001).

A. Proportionality argues Defendant first years that the addition of 20 to his sentence under Illinois’s mandatory sentencing enhancement “15/20/25-to-life” provision proportionate violated the penalties clause of the Illinois Specifically, Constitution. defendant contends that the provision (first punishes degree a less serious crime murder committed while firearm) personally discharging a severely more than similar offenses greater that constitute safety threats to the health and public (aggravated battery a aggravated with firearm and discharge of a firearm).

The State contends that it is inappropriate to conduct proportion- a ality analysis here because legislative the purposes behind the offenses of first degree personally firearm, murder while discharging ag- gravated battery firearm, aggravated with a and firearm argues that, differ. The State also even if the purposes behind these same, provision statutes are the the enhancement does not violate the clause because first murder while discharging just a firearm is not ag- more serious offense than either gravated battery firearm, with aggravated discharge a firearm or of a it is “the most serious crime in society.” committed proportionate penalties clause of the Illinois Constitution provides penalties that “all shall according be determined both the objective seriousness of the offense restoring and with the the of- 1970, fender citizenship.” I, § to useful Ill. Const. supreme art. Our recognized court has three situations in which this clause is violated: (1) the punishment particular cruel, degrading, where for offense is wholly disproportionate so to the shock the offense as to moral (2) community; sense of the compared where similar offenses are public conduct that creates a less serious threat to the health (3) safety punished harshly; is more where identical offenses are person. testimony provided note this We because defendant’s confession and evidentiary support for count. this

131 495, 503-04, Davis, Ill. 2d v. People sentences. different given (1997). N.E.2d 24 provision case, challenges the enhancement

In this the “cross- to as only; commonly referred test test under the second Arnold, analysis.” People comparison (2004). analysis, the cross-comparison Under the N.E.2d (1) statutory purposes of determine whether court must offense with the offenses are similar and whether compared offense with the less severe than the penalty is more serious harsher 462, 475-76, N.E.2d 91 Lombardi, penalty. People v. (1998). the offenses defendant Thus, inquiry here is whether the first statutory purpose. cross-comparison have a similar proffers a cross- asked to conduct Lombardi, supreme court was our violence, ag- of armed amongst the offenses comparison analysis as- criminal sexual battery aggravated gravated analysis such Lombardi, The court found at 477-81. sault. offense differed. purpose behind each inappropriate because Lombardi, Specifically,the court stated: 184 Ill. 2d at 478. violence statute is

“Generally, problem targeted the armed weapon during of a presence the risk of harm associated with felony. felony underlying charge of of a When the the commission substance, possession is of a controlled armed violence particular legislature danger connected evil addressed felony. presence By weapon type with the contrast, battery aggravated with a firearm purpose inflicting injury discourage by know- statute is to individuals from discharging a the armed violence ingly [Citation.] firearm. Unlike statute, battery statute is not with a firearm and is weapons deter the use of other than firearms intended to felony.” another specifically not aimed at conduct committed Lombardi, 184 Ill. 2d at 478-79. concluded, “[g]iven of these statutes are purposes

The court that the distinct, analysis is comparative appropriate.” (1) Lombardi, its 184 Ill. 2d 479. The court noted that decision (2) decisions, legislature, afforded the the prior consistent with its duty in its constitutional “necessary performing deference” defines, that it determining penalty for the offenses appropriate the powers principles violating separation and potentially avoided serious, offense was more making the difficult decision about which determining in thereby legislature’s on the historic role trampling it elected “punishment” society “crime” and for the has both which Lombardi, 184 Ill. 2d at 480. governs. it See over which (2002), Walden, N.E.2d 928 In v. People our supreme court was asked compare statutory the purposes 15-year behind the “armed with a firearm” enhancement to the of- robbery fenses of armed and armed predicated upon ag- violence gravated robbery. reviewing In legislative history behind the of- robbery fense of armed possession while in as well as its prior dealing cases with the purpose behind the armed statute, violence the court found that the offenses clearly “[shared] two a common statutory Walden, purpose.” at 396. According court, to the statutory “identical purpose” that these two offenses shared was “to deter the use firearms in the Walden, commission of felonies.” 2d at Finding that these two statutes shared the same purpose, the court held 15-year enhancement to the defendant’s sentence for robbery proportionate armed violated the penalties clause of the Illinois punished Constitution because it robbery less serious crime of armed possession while in of a firearm more severely than the more crime serious of armed violence predicated upon aggravated robbery. Walden, 199 Ill. 2d at 396-97. Moss, People 503, 520-33,

In (2003), 206 Ill. 2d 795 N.E.2d 208 supreme again court was asked a cross-comparison to undertake analysis, this time comparing the 15- and enhancements to robbery, aggravated sentences for armed kidnapping, hijacking vehicular to the unenhanced sentences for aggravated bat- tery with firearm and aggravated court, discharge of a firearm. The citing Walden, its decision concluded regarding “issue stage first cross-comparison analysis already has been decided.” Moss, supreme Ill. 2d at 525. The court found purpose behind each statute was “to deter the use of firearms in the commis- *** and, therefore, sion of felonies” “the circuit correctly court carrying concluded that the statutes the 15- and 20-year sentence enhancements a similar purpose had to the for aggravated statutes battery with a aggravated discharge Moss, firearm and of a firearm.” 206 Ill. 2d however, at 526. There seems to an inconsistency, be Lombardi, amongst “statutory purpose” Walden, holdings in Moss. Walden,

In behind the purposes the court found that offenses robbery possession of armed while in of a firearm and armed violence Walden, Lombardi, “identical.” In were at 396. court statutory purposes found that behind the offenses of armed “distinct,” and aggravated battery violence a firearm were mak- ing cross-comparison analysis Lombardi, inappropriate. 184 Ill. 2d at Moss, found, despite holding Lombardi, 478-79. the court its purposes ag- behind the firearm provisions gravated enough engage a firearm similar in a battery with were

133 purpose the If Moss, 206 Ill. 2d at 526. analysis. cross-comparison during a firearm possession for 15-year enhancement behind the armed purpose to the felony is “identical” the commission statute is armed violence statute, of the purpose and the violence battery awith aggravated purpose behind “distinct” from 15- or statute, purpose behind how can firearm commit- discharge of a firearm while possession for purpose behind enough or similar to ting felony the same be cross-comparison battery of a firearm statute warrant aggravated goes: analysis? syllogism ancient As the = violence) enhancement) (armed (15-year B If A firearm) (armed violence) battery (aggravated with B ^ C And enhancement) battery (aggravated with a (15-year A ^ C Then firearm). punish is to enhancements

Though intent of the firearm commission of firearm, they only do so in connection with use of a or first aggravated kidnapping, felony, robbery, it armed another be (West 2000); 2, 2, 18—4 degree murder. See ILCS 10— 5/18— (a)(l)(d)(iii) (West 2000). 8—l(a)(l)(d)(i) theOn through ILCS 5/5 — ag- hand, battery with a firearm the offenses of other (which the use of seek to deter gravated discharge of firearm also firearms) at conduct committed specifically are “not aimed (stating statu- Lombardi, Ill. 2d at that the felony.” another is “to discour- aggravated battery a firearm tory purpose behind with discharging a inflicting injury by knowingly age individuals from firearm”). statutory seems, the “common problem, it is how define cross-comparison

purpose” proffered for each that is for offense it is permitted broadly, If be defined analysis. purpose (see Burdunice, People v. single-subject analysis under for instance 269, (stating “criminal 811 N.E.2d 678 statute)), all single subject then qualifies legitimate as a for law” By merely qualify cross-comparison analysis. for criminal statutes will prevention of each offense is “the arguing purpose that the behind i.e., cross-comparison, for crime,” any could offer offense (720 (West 2000)) to theft first murder ILCS comparing 5/9—1 2000)). (720 (West This, ILCS property or lost or mislaid 5/16—2 judicial course, results and waste of would lead to both absurd for, only step cross-comparison the first resources would legislature in to the meaningless, but the deference owed test become establishing ap determining what conduct to criminalize See Lom would be eviscerated. propriate punishment for that conduct bardi, respect to offenses that (explaining 184 Ill. 2d at 476 are enacted for “different purposes, presume we legislature considered different factors in establishing penalties them, legislative] [that we defer to judgment”); Moss, see also 206 Ill. 2d at 523; Walden, 199 Ill. 2d at 395.

If, hand, on the other statutory “common purpose” is defined too narrowly, just opposite then will occur: few crimes will be amenable to proportionality analysis. instance, argument For an could be made purposes aggravated battery behind ag- a firearm and gravated discharge because, of a firearm differ while both offenses criminalize conduct committed through firearm, the use only of former criminalizes conduct that in physical injury results a victim; to the latter’s purpose arguably is only to deter an individual from alarm- ing by shooting another at or near that person. See 720 ILCS 5/12— (West 2000) 4.2 (aggravated battery firearm); with a 720 ILCS 5/24— (West 2000) firearm). 1.2 (aggravated discharge of a

We need not determine here whether the proffered by offenses statutory purpose. share common Even assuming, argu- endo, that the proffers offenses defendant here have purposes, similar it seriously argued cannot be that the crime of degree first murder personally discharging while a firearm a less is serious threat to the public safety health and aggravated than either battery with a firearm aggravated discharge of analyzing a firearm. In prong second of cross-comparison analysis:

“The determination of a particular whether offenseis more serious than another is limited to an examination of degree of harm consideration, inflicted. While that is relevant legislature may factors, consider other such the frequency as of the high bodily crime and the Also, risk of harm associated with it. legislature may perceive a stringent penalty need to enact a more provision to halt particular an increase commission institution, crime. an legislature As is equipped better than the judiciary identify remedy to confronting society the evils our capable gauging and is more of an seriousness offense. Therefore, generally legislature’s courts will defer to the conclusion particular that a People offense is more serious than another.” v. (2003). Moore, App. 343 Ill. 3d 797 N.E.2d 217 only, out, Not as points by itself, the State is murder in a class (Class X) opposed aggravated battery to with a or aggravated firearm (Class discharge 1), recently firearm this court characterized the degree seriousness of first personally murder while discharging firearm:

“[W]e note that while murder has been characterized as ‘the most [citations], discharging offense[ ]’ serious murder while case, egregious as in this more in terms of the seriousness

135 heightened unparalleled is an solely there because offense Ar- a firearm.” offender’s results from an danger nold, App. 3d at 676. 349 Ill. sentence found that have

Though courts “15/20/25-to-life” ap when clause violated provision enhancement (see Moss, 206 Ill. 2d degree first murder other than plied to offenses to armed applied when unconstitutional (finding at 531 Morgan, 203 Ill. hijacking); People v. robbery vehicular (2003) (finding enhancement 470, 491-92, N.E.2d 994 2d 786 murder); Wal degree attempted first applied unconstitutional when den, added to armed rob (15-year enhancement Ill. 2d at 396-97 401, unconstitutional); Garcia, v. bery People conviction (2002) 115, (same); 3d Dryden, App. v. People N.E.2d 208 (2004) home invasion violates (15-year enhancement N.E.2d found the enhancement clause)), no court has penalties proportionate (see degree People murder applied when first unconstitutional (finding 968-72, 808 N.E.2d 1064 App. Ill. Zapata, 347 discharging a firearm enhancement for constitutional); Arnold, murder of first the commission (same); Moore, App. 3d at 343-47 673-76 person enhancement for (upholding constitutionality 25-year bodily great caused harm ally discharging proximately a firearm that murder); degree People the of first v. or death commission 522, 526-33, Sawczenko-Dub, 345 Ill. N.E.2d (2004) (same)). Tolbert, (same); People App. 3d supreme holding court’s in Moss heavily upon Defendant relies the 20-year the is unconstitu- support argument to his enhancement Moss, punishes severely. it serious crime more tional because less compared danger robbery supreme the court the of “armed with firearm, personal personal discharge aggravated kidnapping of a firearm, hijacking with discharge aggravated and vehicular of (which discharge referred to col- personal of a firearm” the court offenses”) lectively “aggravated battery as the “Public Act 91—404 Moss, “aggravated discharge of a firearm.” with a firearm” supreme Ill. 2d at 523-25. The affirmed the circuit court’s order court unconstitutional, 20-year finding both the 15- and enhancements to be aggravated holding aggravated battery with a firearm and that both Public discharge of a firearm more serious because the Act 91— were it “require only discharged, the firearm be not that 404 offenses Moss, person.” in the of a at 529. discharged be direction placed rejected argument the State’s that the circuit court The court “degree respective the emphasis too much on the of harm caused offenses,” stating:

“Moreover, in making its determination as to the relative serious- offenses, of ness the circuit court considered only degree bodily harm but risk of harm example, as well. For compar- ing aggravated discharge of a firearm with the Public Act 91—404 involving personal discharge offenses of a the circuit court noted former firing offense focuses on ‘the intentional of a weapon in the direction (emphasis added), individuals’ require only while latter offenses discharged, that the firearm be discharged not that it be person. in the direction of a The risk of bodily clearly greater harm is where an offense involves the discharge someone, a firearm at than it is where the offense merely requires Thus, only firearm. it was not of harm that the circuit court considered in determining offenses; the seriousness of these also high court considered the n bodily (Emphasis original.) Moss, risk of harm.” 206 Ill. 2d at 529-30.

The court found that the 15- and enhancements to convictions robbery, aggravated for armed kidnapping, aggravated vehicular hijacking violated clause because the more serious aggravated battery offenses of aggravated discharge with a firearm and punished of a firearm severely. Moss, were less See 206 Ill. 2d at 530- 31. Turning enhancement, its 25-years-to-life attention supreme adopted finding court of the circuit court that 25- “the years-to-life harm, for causing great bodily permanent disability, permanent disfigurement, or death” disproportion- was not Moss, ate. 206 Ill. 2d at 532. Moss does not support argu- defendant’s for ment two reasons.

First, the court in Moss limited its decision to instances where the enhancements applied were robbery, ag- convictions armed gravated kidnapping, aggravated Moss, hijacking. vehicular Specifically, 2d at 531. the court noted: conclude, below,

“We as did the circuit court that the less serious proscribed involving conduct in the Public Act 91—404 offenses add-on) possession (15-year personal discharge of a firearm add-on) (20-year punished harshly a firearm more than is the targeted more serious conduct the statutes for bat- tery aggravated discharge with a firearm of a firearm. Accord- and (720 ingly, regard robbery with to the statutes armed ILCS for (West 2000)), (720 kidnapping aggravated ILCS 5/18—2 5/10—2 (720 (West2000)), aggravated hijacking and vehicular ILCS 5/18—4 (West 2000)), 20-year the 15- and add-ons mandated Public Act proportionate penalties 91—404 violate the clause of the Illinois added.) Moss, (Emphasis Constitution.” Ill. 2d at 531. 206 case, charged In this because defendant and convicted of was personally the discharging during a firearm the commission of offense (730 8—1(a)(1)(d)(ii)(West 2000)), of murder ILCS degree first 5/5 — holding dispositive. in Moss is not court’s Second, concerning the seriousness reasoning court’s in Moss committing an offense while 20-year enhancements for of the 15- applicable firearm is here. discharging a personally armed with battery with a Moss, aggravated found that supreme In court discharge more serious than of a firearm were aggravated firearm and required the former offenses Act 91—404 offenses because the Public individual. See shoot at an actually either shoot or that the defendant discharge hand, the Moss, “personal the other Ill. 2d at 528-29. On firearm be “only that required of a firearm” enhancement person.” discharged in the direction it be discharged, not an armed imagine scenarios where Moss, 529. One could 15-year triggering the pocket, gun his robber enters bank with (b) (West (see 2000)), 2(a)(1), or shoots into ILCS add-on 5/18 — (see ILCS enhancement air, 20-year for the thereby qualifying 2000)). (b) (West that because supreme court held 2(a)(3), 5/18 — directed at an individual did not to be discharge the firearm have of enhancement, degree and risk both 20-year qualify to for aggravated in the offenses of than that found harm were less serious Moss, of a firearm. See discharge battery aggravated a firearm or Ill. 2d at dur- case, the firearm it is that the mere In true for the qualified defendant ing charged of the offense the commission defendant was However, the offense for which enhancement. 20-year discharg- his degree, in the act charged here was murder first of that murder. ing committed the commission firearm was applied 20-year Unlike those where the 15- or enhancement cases an element of nor to offenses harm to an individual is neither where offense, for either charged impossible qualify inherent in the it is to 8—1(a) 15-, 20-, under section or 25-to-life enhancement 5— having murdered. the victim been Unified Code of Corrections without 2000). 8—l(a)(l)(d)(i) (a)(l)(d)(iii) (West through ILCS See 730 5/5 — fact, holding 25-years-to-life very basis for Moss’s aggravated robbery, like armed applied enhancement as to offenses not violate the hijacking did vehicular kidnapping, 15-, holding our applicable is equally clause are first murder 20-, 25-years-to-life enhancements for those required harm to the victim constitutional: serious apply. enhancements that, the constitu- upheld cases which have recognize those

We discharging tionality during firearm the commission of the degree murder, offense of first the defendant did raise the not same offenses cross-comparison that defendant raises here. Arnold,

In argued the defendant “that the less serious of offense theory murder based on a accountability of personally discharg- while ing firearm, a even if the offender victim, causes no harm the to is given a harsher punishment than the more serious person- conduct of ally inflicting the by fatal wounds means other than a firearm.” Ar-

nold, Ill. App. 3d at 675. appellate rejected The court argu- this ment, quoting holding in Moore: “ ‘Comparative proportionality review is inappropriate here provisions

because the new first-degree firearms of the murder sentencing second, statute serve a specific more purpose target and a unique type of danger that is absent when the offender does not ” possess Hill, a Arnold, firearm. See at 458.’ 349 Ill. App. Moore, 3d quoting at App. 343 Ill. 3d at 346. Following reasoning Moore, the court held “murder while discharging case, a in this is egregious more in terms of solely seriousness of the offense because there unparalleled is an and heightened danger that results from discharge an offender’s Arnold, firearm.” Ill. App. 3d at 676.

In Zapata, the defendant argued 20-year that the enhancement for a discharging during firearm the commission of first disproportionate murder was the penalty by for murder other Zapata, means. App. rejecting argument, 347 Ill. 3d at 968. In this this “unique, pervasive court considered the and danger enhanced created an possession offender’s of a firearm.” Specifically, this court noted: gives perpetrator strong victim;

“[A] firearm a advantage a over the effectively particularly deters the victim’s is escape; lethal to the underlying victim of the vicinity; crime as well as others in the al- perpetrator effortlessly lows the instantaneously execute an formed; intent to kill once it is and allows an offender to harm a greater rapidly number of victims more than weapons other deadly people inflict wounds on a number of within a wide area and within short amount of time. [Citation.] short, In not issue is whether it is more serious offense to during firearm a murder than to murder other Rather, deterring carry- means. the threshold issue is whether specific ing purpose or use a firearm a murder is a more general Following and distinct from that of the murder statute. Hill, Moore, Sawczenko-Dub, that the court concludes legislative purpose deterring person’s use of firearms when person is committing an offense distinct specific is more purpose cases, applies even in murder unique, based on the pos- offender’s results from an danger and enhanced pervasive comparative proportionality Accordingly, firearm. session App. at Zapata, 3d in this case.” inappropriate review prong the first relied on and Arnold courts Zapata compared holding purposes analysis, cross-comparison supreme doing so, courts considered those statutes are distinct. provide basis Moss did holding in and held that Moss court’s enhancement unconstitutional. find the upon which if Arnold, Even App. at 675. 968; Zapata, of the statutes purposes agree we with defendant were to related, we next have are the same or would compared this case more serious penalty the harsher whether the offense with consider Moss, Ill. 2d at penalty. See than the offense with the less severe Arnold, 969; 454; 347 Ill. 3d at 523; Hill, Zapata, App. Ill. 2d at App. 3d at 675. discharging a while degree First murder committed 730 ILCS years prison. of 40 to 80 firearm carries sentence 8—1(a)(1)(d)(ii) (West 2000)). contrast, battery By aggravated 5/5 — (b) (West (720 2000)), X 4.2(a)(1), a Class ILCS with a firearm 5/12 — (730 years ILCS felony, imprisonment of 6 to 30 penalty carries (West 8—1(a)(3) 2000)), discharge of a firearm aggravated 5/5 — (720 (West (b) 2000)), 1.2(a)(2), felony, carries a Class ILCS 5/24 — (West 2000)). (730 8—1(a)(4) years range of 4 to 15 ILCS 5/5 — However, above, battery with aggravated because both stated discharge constitute a less serious firearm and of firearm degree first murder public safety, threat to the health and while punished severely, more personally discharging rightly a firearm is might seriously injure or unnerve the though the former offenses victim, Consequently, the victim’s life. because the latter ends of the cross- satisfy prong the second defendant has failed to test, mandated under analysis 20-year comparison (730 sentencing statute ILCS degree murder first 5/5 —8— (iii) 1(a)(1)(d) (West 2002)) clause not violate the does the Illinois Constitution. Process

B. Due enhance mandatory 20-year next argues Defendant that “it is not a reasonable right process ment violates his to due because punishes objective since the statute accomplish method to the statute’s that it is meant severely risk of harm than the actual harm more Though purpose behind the prevent.” defendant concedes that in the com i.e., to deter the use of a firearm proper, enhancement is (see 488), argues that of an 203 Ill. 2d at he Morgan, mission offense the enhancement is an unreasonable means to achieve that purpose 20-year because the minimum mandatory equivalent add-on is to the degree sentence for first murder. He contends “the add-on punishes the risk harm, is, the risk associated with the to, equally severely more than the actual harm caused—the murder itself.” process due clause of the Illinois Constitution mandates that person life, deprived

“[n]o shall be liberty or property without due process of nor equal law be denied the protection of the laws.” Ill. 1970, I, § Const. art. 2. Where challenges validity an individual a statute that does not affect a right, compliance fundamental its process substantive due requirements is determined under the rational (2000). basis People Wright, 1, 24, test. v. 194 Ill. 2d 740 N.E.2d 775 “ Under test, the rational basis upheld statute is where it ‘bears public served, reasonable to a relationship interest be and the means adopted are a reasonable of accomplishing objec- method the desired ” Wright, tive.’ 194 Ill. 2d at quoting People Adams, 144 Ill. 2d (1991). 381, 390, 581 N.E.2d 637 In the challenge context of a to a statute, criminal legislature we note that the has wide discretion in establishing penalties Marin, for criminal offenses. People v. (2003). 795 N.E.2d 953 argues

Defendant employed by the method the statute is court, however, rejected unreasonable. Two divisions of this have due process mandatory attacks to the enhancement for first personally discharging Arnold, murder while a firearm. See 349 Ill. App. (rejecting process argument 3d at 676 due defendant’s that “punishes culpable severely”); the statute less conduct Zapata, more Ill. at App. (rejecting argument 347 3d 972 the defendant’s that “the reasonably not legislature related to the evil that the greater i.e., gun). deemed to be a threat to the murder public,” with Defendant any why has not offered reason this court should not follow Therefore, the decisions in Arnold and Zapata. because first gun murder egregious by is “more murder other [than means] solely in terms of the seriousness the offense because there is an unparalleled heightened danger that results from an offender’s 676), (Arnold, Ill. 3d App. firearm” 349 at and due to legislature fashioning penalties the deference accorded to the in for 722), (Marin, 342 Ill. find the 20- App. criminal offenses 3d at we year accomplishing goal means enhancement is reasonable and, thus, deterring gun process. violence does not violate due II. ASSISTANCE DURING VOIR DIRE INEFFECTIVE trial ineffective for argues

Defendant next that his counsel was about question veniremembers failing request that the trial court “to Strain, Defendant, v. relying heavily People on possible gang bias.” (2000), “evidence 467, contends 2d 742 315 Ill. N.E.2d 194 gangs, by references to” argument permeated at trial were “[djefense be gang evidence would knew counsel this case defense,” and [defendant’s] case and to to the State’s pivotal both “[djefense allowing jury to be by [defendant] prejudiced thus counsel on to assert intelligent basis which ‘informed and with no formed ” peremptory challenges.’ challenges cause or to exercise a defendant established when assistance of counsel is Ineffective (1) objective fell an below representation that: his counsel’s shows prejudiced counsel’s error reasonableness and standard of of the shortcomings, the outcome in that but for counsel’s Washington, 466 Strickland v. proceeding have been different. would Albanese, (1984); v. 668, 674, People L. Ed. 2d 104 S. 2052 U.S. 80 Ct. (1984). The fundamental concern 504, 473 N.E.2d 1246 undermined the underlying this test is “whether counsel’s conduct so functioning process that the trial cannot be proper adversarial Strickland, at having produced just relied on result.” 466 U.S. 692-93, 686, 2d S. at 2064. Defendant must 80 L. Ed. at Ct. strong challenged action or inac- presumption overcome the product strategy tion was the of sound trial and not of counsel Coleman, 366, 701 incompetence. People v. 183 Ill. 2d N.E.2d 1063 (1998). “a reason- prejudice prong requires of the Strickland test result, merely a possibility.” People able of a different probability (1988). 117, 129-30, Moreover, Gacy, 125 Ill. 2d v. N.E.2d juror on a question potential as to whether to “[t]he decision particular subject strategy, has is considered to be one of trial which People Furdge, no v. 332 Ill. bearing competency on the counsel.” 1019, 1026, (2002), Palmer, citing People 3d N.E.2d 415 v. App. (1989). App. 3d 545 N.E.2d 743 rejected argument The exact defendant was advanced here 1026-27, Furdge, App. People this court both (2004). 714, 733-34, 724-25 Benford, 812 N.E.2d In Furdge, the court stated: *** case, note that in the victim and the defendant “We both as mat- gang

were members. It is reasonable that defense counsel questioning the venire strategy ter of trial concluded that about since the victim against gangs purpose bias would serve no both Here, similarly gang where the situated. defendant were explain evidence was limited to motive and victim also member, reasonably concluded as gang defense counsel could have strategy questioning, which could serve to a matter trial that his unduly emphasize issue, the gang outweighed any potential prejudice may Moreover, a venire member have had. defense reasonably counsel could have any concluded prejudice against that gang operated State, members wouldhave also against since its only eyewitness victim and was an gang Furdge, admitted member.” App. 332 Ill. 3d at 1026. reasoning This was followed the court in quot- After Benford.

ing much paragraph, of the above the court in held: Benford “Defendant allege any juror does not displayed potential that gang jurors bias and dismisses the fact that the agreed each they fairly. could decidethe case Where defendant cannot overcome the presumption (here, that counsel’s strategy decision was trial overemphasizing gang membership), avoid his ineffectiveness Benford, counsel claim fails.” Ill. App. 3d at 733-34. case, member, while defendant was gang an admitted so too were the victim and the eyewitness, State’s main Taylor. James Furdge, Just inas defendant’s trial reasonably counsel “could have any prejudice concluded that against gang members would have also operated against the State.” 332 Ill. Furdge, App. 3d at 1026.

Furthermore, though gang permeated trial, evidence both sides chose to utilize it. While the State used this evidence to show defendant’s shooting victim, motive for defense counsel relied it upon support defendant’s self-defense claim. Specifically, defendant testified that the victim had him threatened on at least two prior drugs occasions for selling gang’s on his turf and that the victim reputation Defendant, therefore, had a for violence. needed this support theory evidence to his self-defense and it is reasonable to as- sume that defense counsel made the request conscious decision bias; question regarding possible gang trial court the venire that, defense, upon proffered decision based theory of was a mat- 734; ter strategy. Benford, App. Furdge, of sound trial 349 Ill. 3d at 1026-27; App. Williams, People see also 456, 469, 692 N.E.2d 723 (finding no ineffective assistance where defense counsel did not tender supplemental questions voir dire plausible because “it is that defense counsel chose not to tender supplemental questions order to having jury might avoid witnesses, place more credence in the State’s occurrence as most of members”). gang them were

Finally, though jurors specifically their were not asked about members, opinion gang juror the court that he gangs on each told fairly by applying or she would be able to decide the case the law Thus, provided by parties. to the presented court facts defendant has failed to establish that his trial counsel was ineffective. 733-34; App. Ill. Furdge, 332 3d at Benford, App. See 1027. (2000), to Strain, Ill. 2d 467 upon People

Defendant relies failing for ineffective his trial counsel was argument support his any potential venire about question trial request to that the court that, its upon based Strain, supreme court held gang bias. in the circuit practice governing make power “inherent to rules cases,” in as trials criminal courts, regulation jury including the present may be against gangs” street “strong prejudice well as areas,” trial court metropolitan in amongst jurors, “particularly probe request to it the defense’s its when refused abused discretion Strain, Ill. 2d at 475- potential gang for bias. the venire members expose juror to “sought had noting that the defendant 81. After held: toward, against, gangs,” court and bias predisposition to voir dire in a manner required to conduct “The trial court was from bias jurors, free impartial panel selection of an assure the gang probe to for of the trial court’s refusal prejudice. Because intelligent basis on bias, an informed and defendant was denied peremptory chal- challengesfor cause or to exercise which to assert Strain, 194 Ill. 2d at 480-81. lenges.” for three reasons. misplaced Strain is upon Defendant’s reliance was First, defense counsel the issue in Strain was not whether question trial court the venire failing request for to ineffective rather, its but, trial court abused whether the regarding gang bias the venire request question to when it refused the defense’s discretion bias, Furdge. gang about a distinction noted both Benford n.4; 1026- App. 3d at Benford, Furdge, at 733 Second, bystander, caught in victim in Strain an innocent Here, Strain, 194 Ill. 2d at 473. gang the middle of retaliation. See jurors might have had Any bias the gang victim was a rival member. and the gangs against worked both defendant against would have State. Strain, here, defendant chose

Third, unlike the defendant theory. self-defense gang explain support utilize his evidence testimony why had threatened him explaining Without his victim concerning shooting, testimony before the as well his state-of-mind violence, shooting appeared for would have propensity the victim’s Though gang provided act of violence. evidence simply to be random theory motive, defendant’s of self- supported the State with it also defense.

Therefore, failing request for defense counsel was not ineffective that the circuit court question regarding potential venire gang bias.

Affirmed.

REID, EJ., concurs. THEIS, JUSTICE specially concurring: I concur in the result reached by majority, but write separately join because I do not portion in that majority opinion which ad- dresses the the 20-year mandatory sentencing provision first-degree murder. 730 ILCS 5/5—8— (West 2000). (a)(1)(d)(ii)

Defendant has standing no to raise this issue. Courts will consider the validity statutory provision person unless the chal- lenging provision directly by the is affected it or the unconstitutional pervasive feature is so as to render the entire statute People invalid. v. (2003). Morgan, 470, 482, 203 Ill. 2d 994, 786 N.E.2d 1002 In either case, party standing a bring has a challenge only constitutional if the party is able to show himself to be within the aggrieved by class the alleged unconstitutionality. 482, Morgan, 203 2d at 786 N.E.2d at 1002. A ordinarily defendant does not standing challenge have it might statute as be applied to others in different circumstances. Falbe, 635, v. People 644, (2000); M.T., 189 Ill. 2d 727 N.E.2d 200 In re (2004). 131, 139, 352 Ill. App. 354, 816 N.E.2d 362 Essentially, defendant contends that the enhancement for person- ally discharging a firearm the penal- commission a murder is ized severely aggravated discharge firearm, more than which he “substantially culpable activity.” maintains is less Specifically, he argues, Moss, citing 20-year enhancement, that under the actual no harm injury Therefore, need result from the discharge. the enhance- ment is aggravated less serious than the offense of requires the discharged which firearm be in the direction of another person, poses greater an action that risk. Defendant is that, correct hypothetically, may there be in cases which defendant by commits murder weapon by use of a other than a firearm or ac- countability eligible but 20-year is for the 15- or enhancement because discharged he carried or person injured by a firearm and no was Thus, circumstances, firearm. in certain may apply the enhancement establishing without discharge caused serious harm to victim where the victim murdered other means. was problem logic with this is that defendant cannot show himself aggrieved by hypothetical. present to be within class In the

145 discharge of his firearm. from the result case, did indeed actual harm testimony own confession defendant’s The facts established chest, result- in the gun out a and shot victim pulled that he reveal resulted discharge of the firearm ing in the death. Where victim’s enhancement, as argue that the death, has no basis to in discharge of him, than the less serious applied Rather, injury. as merely a harm or in there is risk of firearm which eligible for the 25-to- out, actually defendant was majority points 8—l(a)(l)(d)(iii) to section pursuant enhancement mandatory life 5— proximately caused discharged a firearm that he because (West 2000). (a)(1)(d)(iii) person. to another 730 ILCS death 5/5—8—1 instruction, appropriate jury jury provided Had been mandatory. 730 ILCS would have been 25-to-life enhancement 5/5— l(a)(l)(d)(iii) (West 2000). 8— argue, nor can he

Furthermore, argued, defendant has not The fact that a statute facially invalid. to establish may under some circumstances is insufficient be invalid “ facially only if ‘no set invalidity; facial a statute is unconstitutional ” which the Act would be valid.’ of circumstances exists under added.) 200, 211, (Emphasis C.E., In re 641 N.E.2d 745, Salerno, Ed. (1994), 739, 95 L. quoting United States v. U.S. (1987). 697, 707, 2095, Therefore, long Ct. as there 107 S. validly applied, could be a facial exists situation which statute N.E.2d Cowan, fail. Hill 202 Ill. 2d challenge must (2002). Arnold, already 3d at We have held 673-76, 701-04, that exist at least one situa- 812 N.E.2d at there does Thus, validly applied. where tion in which the statute could be appeal, defendant lacks on I not ad- standing to raise issue would argument. dress the merits his affirming majority I result of the

Accordingly, concur defendant’s conviction and sentence.

Case Details

Case Name: People v. Powell

Court Name: Appellate Court of Illinois

Date Published: Dec 30, 2004

Citation: 822 N.E.2d 131

Docket Number: 1-03-1008

Court Abbreviation: Ill. App. Ct.