*1
legislature
Further,
to make
amendment
retroactive.
is
only
remaining
sue
time
to be resolved at the
this statute took effect was
fee
rejected
award. The settlement offer had been
made
sev
Therefore,
prior
eral
to
amendment of the statute.
rele
act or
already
vant
omission addressed
amendment
had
oc
prior
legislation.
curred
to the enactment
of the
See Champaign
County,
previous
117 Ill.
3d at 78.
version
the statute had
comparable provision;
plaintiff
any
no
it
be said that
cannot
had
that
rejection
notice
of the settlement offer could later
result
Thus,
attorney
the forfeiture of
fees.
to apply the statute in this case
deny attorney
fees
to
unjust
would lead
unreasonable
or
results.
Co.,
Hathaway
(1905);
v. Merchants’ Loan & Trust
For foregoing circuit Page reversed, County Du this cause is remanded for a new remand, hearing. On the circuit shall take evidence as to which plaintiff’s petition in the items fee are attributable to the Consumer Fraud Act only count and shall award fees those dif- items so ferentiated.
Reversed and remanded with directions.
GEIGER, BOWMAN, J., P.J., and concur. ILLINOIS, Plaintiff-Appellee, PEOPLE THE OF THE STATE OF v. LARRY SIMPSON, Defendant-Appellant. L.
Third District No. 3 — 94—0597
Opinion filed March 1997. *2 part. dissenting in SLATER, J., concurring part and specially Ottawa, Office, Karalis, of Appellate Defender’s A. of State Thomas appellant. (John Douglas, Attorney, X. Marshall E. State’s of Rock Island Breslin Hansen, Attorneys Appellate and Robert M. both of State’s Prosecutor’s Of- counsel),
fice, People. for the opinion court: JUSTICE HOLDRIDGE delivered the jury trial, L. Following Larry Simpson was convicted (720 1(a)(1)(West 1992)) degree of the first ILCS ag murder (two counts) (720 14(a)(2) gravated criminal sexual assault (West 1992)) of five-year-old imposed Amber Sutton. con secutive sentences of natural life for murder and 60 each for 5/5—8—2(a)(2), the Class X criminal sexual assaults 5 (West (b)(4)(i) 1992)). (b)(2), —5—3. 2 (1) on appeal issues are whether the trial erred in (2) denying for a imposing defendant’s motion mistrial and extended- follow, X sentences for the Class offenses. For reasons we affirm defendant’s convictions and sentences.
FACTS trial, At the State who about introduced witnesses testified 29, 1993, May abduction and murder Amber Sutton. Amber’s mother, Martin, Anna testified that defendant their came to home p.m. go around permission play 5:30 Amber asked Martin’s daughter, Ashley. request Martin denied the *3 dinner, told Amber she had to inside come to eat. After a few bites of Amber go play was allowed to back outside children the neighborhood. again family. She was alive never seen her p.m. p.m.,
Between and 6:30 Amber several witnesses saw and four-year-old walking Damion Barnett with defendant in the area be- tween an power Martin’s home and about abandoned house seven Shelly blocks away. play- Webb and Shawn Lee observed defendant ing vicinity power with the children in the house and then picking up girl building. the little a near broken window of the About later, walking they away minutes saw defendant the from build- ing alone. police VanDyle
At p.m., dispatcher 6:55 Beth received two 911 reported missing, the calls. The first Damion Barnett and second parking Spencer a reported boy that little was found in the lot apartments. picked Towers was when mother Damion unharmed his up Spencer him a minutes at few later Towers. p.m. p.m.,
Between 6:30 at the home of and defendant arrived friend, kept his Arthur at Wilson. Defendant his clothes Wilson’s p.m., up again. home. He washed and then left Around 7:15 defen- walking bag grocery dant was with a bundle of in a when he clothes money gave liquor encountered Joe Liddell. Liddell defendant friend, Morrison. Oscar their home of him at the agreed to meet and at friends joined He later bushes. bag into some threw the Defendant the entered police the bicycle when Oscar’s, on Liddell’s he left neighborhood. report police the telephoned Lee
Shortly p.m., after 10 Shawn evening missing the on girl reported sighting of the little his earlier Amber’s bloodied house where power the police He led the news. time, same Around the badly body beaten was found. The Haven. sta- to Jim’s Rib gas a and then walked
visited station looking for police the were attendant, alerted that who had been tion apprehended defendant, p.m., police the police. At 10:30 called the restaurant. in the restroom of that defen- later, bag of clothes days Liddell recovered Two children. Liddell was with the two wearing when he seen dant was established Forensic evidence parcel police. over to the turned clothing, and debris from spattered was on the that Amber’s blood Pathologist shoes. was on defendant’s power the floor of the house autopsy an performed Mary testified that she Dr. Jumbelic fracture strangulation and a skull that Amber died from determined bleeding of could also have died from caused blunt trauma. She organs. vagina, the anus or internal Arnold, State as girlfriend, testified for the Christine State, Arnold said she kicked a for the well as the defense. As witness May 1993. following argument on defendant out of her house defense, had a and defendant Testifying Arnold said that she cross-examination, stated Arnold relationship. On normal sexual then asked Arnold enjoyed prosecutor anal that defendant sex. kicked him argued day she what defendant had about she and he give him no sex and "Because I wouldn’t responded, out. Arnold my daughter.” kidnapping talked about chambers, prosecu- In
Defense counsel moved for mistrial. occasions, and on several tor stated that he had interviewed Arnold Arnold had argument was about sex. always she had said that the Noting daughter. quantity against a threat her never mentioned defendant’s motion. already presented, the court denied of evidence testimony improper jury that court instructed redirect, counsel clarified disregard On defense they should it. own child. daughter referred to was defendant’s that the Arnold had *4 finding deliberations, jury returned verdicts Following their the assault, aggravated criminal sexual guilty defendant of murder and penalty. the death charged. jury impose chose not to as imprison eligible for natural life subsequently found defendant (West 1992). 8—1(a)(1)(b) In addi- ment for murder. 730 tian, imposed 60-year, ag- sentences for gravated criminal sexual assault.
MOTION FOR MISTRIAL argues Defendant first that the trial court granted should have his motion for mistrial prejudice because the by caused Arnold’s testimony by could not be cured the court’s admonishments. The State concedes that Arnold’s unsolicited comment improper was contends that defendant has failed to show prejudiced by that he was it. improper
Where
testimony is inadvertently introduced in a
trial,
jury
generally may
error
by
be cured
sustaining
objec
tion
instructing
jury
disregard
the testimony. People v.
(1992).
Speight,
In this nonresponsive Arnold’s testimony clearly was unprovoked surprised prosecutor. ruling Before on defen mistrial, dant’s motion for the trial judge noted that the comment high because, carried a prejudice risk of if jury, believed it indicated kidnap defendant’s intent child. See Bailey, However, 3d 616 N.E.2d judge denied the motion overwhelming because of the guilt already evidence of presented. court, In open judge admonished Arnold to confine her comments to the questions put to her and jury admonished the to dis regard Then, the witness’ reference to kidnapping. on redirect exam ination, defense precise, counsel asked a leading question clarify that it was daughter defendant’s own that Arnold had referred to. No further reference was made to the improper testimony.
Based on the vast amount of unmet circumstantial evidence con necting brief, to the we do not find that unsolicited comment possibly Arnold could jury’s have affected the LeCour, verdict. See (1988). Numerous witnesses saw walking with the victim in the direction of the power abandoned house within minutes of her disappearance from home. Defendant picking up was observed victim near a broken building body window of the where her later leaving found and then alone. Witnesses testified that defen himself, subsequently clothes, dant changed washed discarded the them, clothes with the victim’s blood on and then drank with friends.
1039
by
guilt was further demonstrated
consciousness of
Defendant’s
McDonald,
People v.
in on him. See
police
his reactions as the
closed
(1995).
420,
police
came into
SENTENCING authority to next the court lacked Defendant contends aggravated criminal impose extended-term sentences for his two disagree. sexual We assault convictions. provides that
Section 5 — 8—2 of the Unified Code of Corrections may a not be sentenced
"in of the maximum authorized Section excess sentence 5 — 8—1 for the class of the most serious offense of which the of aggravation fender was convicted unless the factors in set forth in (b) paragraph present. of Section 5 — 5—3.2 were found to be judge present, may Where the finds that such factors were he following: an sentence offender to the
(1) murder, degree for first a term shall be not less than 60 years years; and not more than 100
(2)
felony,
for a
X
than
Class
term shall be not less
30
(a)(2)(West
8—2(a)(1),
years.”
and not
than
more
60
730 ILCS 5/5 —
1992).
general
The statute stands for the
rule that where a defendant
is
classifications, only
multiple
varying
convicted of
offenses of
the of
may
term.
fenses within the most serious class
draw an extended
(1984).
Jordan,
192,
Ill.
People v.
103
2d
As defendant
the rule of
Henderson,
applied consistently. Compare
v.
People
(1990) (where
murder,
penalty imposed
N.E.2d 1041. case, murder,
In this in addition to defendant was convicted of assaults, X aggravated two Class criminal sexual for which the years maximum nonextended sentence was 30 each. 730 ILCS 5/5— 1(a)(3) (West 1992). imposing After a natural life sentence for 8 — aggravating the court found that present, factors were (730 5—3.2(b)(4)(i)(West 1992)) including age the victim’s ILCS 5/5 — accompanied by the fact that the offenses were exceptionally (730 brutal or heinous cruelty behavior indicative of wanton ILCS 5—3.2(b)(2)(West 1992)).Therefore, applying pursu the statute Young, ant to we hold that the trial in imposing court did not err 60 year, aggravated extended-term sentences for defendant’s criminal (730 (West 1992)). 8—2(a)(2) sexual assault convictions
CONCLUSION judgment of the circuit County court of Rock Island is af- firmed.
Affirmed. J.,
HOMER, concurs. specially concurring part dissenting JUSTICE SLATER in in part. majority’s judgment regard imposi-
I dissent from the to the aggravated tion of extended-term sentences for each of the Class X majority recognizes general criminal rule sexual assaults. The multiple varying that where a defendant is convicted of offenses of classifications, only class the offenses within the most serious Jordan, 469 N.E.2d 103 Ill. 2d People v. an extended term. draw (1984). However, supreme court’s deci majority relies on the (1988), as an Young, 124 Ill. 2d sion in exception to this rule. in court, set forth following the rationale supreme Young,
In
(1985),
concluded that
Neal,
489 N.E.2d
People v.
8—2(a)
Corrections
the Unified Code of
5/5—
section
of
5—
1992))
2(a) (West
murder convictions
apply only to
logically
could
8 —
than
a term of
shorter
was sentenced to
where
apply
5 — 8—2 could
Consequently,
term.
as section
the extended
life,
multiple
natural
a defendant convicted
to sentences of death or
for the most serious
an extended-term sentence
offenses could receive
Ill. 2d
While the in apply Young, recent in did not the rule decision Henderson rely controlling. as majority Young nonetheless continues to on majority reasoning simply in remarks that the Young lauds the Young overrule when it decided supreme court did not intend to disagree. Henderson. 1 in and Henderson cannot be
Clearly, Young the decisions Subsequent reconciled. to its decision *7 8—2, and it chose
again opportunity had the to construe section 5 — explicitly did not its earlier rationale. While Henderson follow reasoning did so. rejection implicitly Young’s overrule its Askew, See court is that an extended- guidance
most recent from the offense of which the imposed only for the most serious be convicted, when one of those offenses defendant has been even imposition murder. I therefore conclude that assaults criminal sexual sentences for each of improper.