Opinion
No. 1-05-1535
March 31, 2008.
Appeal from the Circuit Court of Cook County, No. 02 CR 3169, Reginald Baker Judge Presiding.
ORDER
Defendant James Smith was convicted of first degree murder for the shooting death of his live-in-girlfriend's estranged husband following a jury trial and was sentenced to 60 years' imprisonment. Defendant contends on appeal that the circuit court erred by excluding defendant's family members from the courtroom during voir dire and improperly instructing the jury. Defendant further asserts that the prosecutor impermissibly drew attention to his decision not to testify, misstated the law relative to self-defense, and improperly referenced the victim's family to arouse the jury's sympathy. Finally, defendant claims that themittimus must be corrected to reflect one count of first degree murder and the proper sentence for a firearm enhancement.
For the reasons that follow, we affirm the judgement of the circuit court as herein modified.
BACKGROUND
In 1995, Loletta Brown and Ronald Branch married. Brown along with her two biological children, Loletta Wise, Jonathan Wise and Neon Branch, Brown and Branch's child, lived together in Park Forest, Illinois. In 2000, Brown met defendant at work and began a romantic affair. In August 2000, Branch learned of the affair and physically attacked Brown in their home. Branch began to choke Brown so severely that Loletta Wise called the police.
Following the attack, Brown and the three children moved out of Branch's house and temporarily lived with a friend. Brown testified at trial that Branch began to stalk her at her friend's home. Brown and her children then moved into defendant's home several blocks from Branch's home in Park Forest. Brown testified that Branch continued to stalk her at defendant's house and at her place of employment where defendant was also employed.
Brown testified that as a result of Branch's stalking, she lost her job and took on new employment at the Glenshire nursing home. In September 2000, while defendant was picking up Brown at the nursing home where she worked, Branch appeared and attacked defendant. Brown testified that she and defendant were attempting to leave the nursing home parking lot for lunch when Branch cut them off by blocking the only exit with his work van. Branch pulled defendant from the vehicle and began to beat him about the face and head. Defendant brandished a knife and cut Branch's hand. The altercation was broken up when the police arrived. On another occasion, Brown testified that Branch followed defendant in his car and attempted to drive him off of the road.
Brown testified that Branch told her to come home and that he threatened kill defendant on many occasions. Branch showed Brown a gun that he purchased soon after Brown moved out of Branch's home. Brown also stated that a neighbor witnessed Branch throw a brick through defendant's house window and that the men repeatedly threatened each other. Defendant refused to be in the same place with Branch and did not attend Jonathan's birthday party on January 12, 2002, because Branch would be present.
Following their separation, Branch had regular visitation with his son, Neon, and Brown's children Loletta and Jonathan Wise. Due to the history between the two men, Branch and Brown had an arrangement for visitation whereby Branch would pick-up and drop-off the children at a nearby park so that defendant would never have to see Branch at his house. On January 14, 2002, Branch picked up Neon and Jonathan and took them shopping for Jonathan's birthday. The three left at approximately 4:00pm and were gone for about 3 hours.
Brown testified that she, Loletta and defendant were home with defendant that evening and defendant became highly agitated. Defendant repeatedly told Brown that if Branch came to his house he would kill him. Brown reminded defendant that her children were with Branch, to which defendant responded "oh well." Brown further testified that defendant had a gun in one hand and a butcher knife in the other while he paced the hallways of his home and argued with Brown. Brown testified that defendant would not allow her to use the telephone to call the police, so she instructed Loletta to pack her belongings and those of her brothers, which Loletta did. Brown returned her house key to defendant and took the bags outside and attempted to put them in her car which was in the driveway when Branch arrived with the boys in his work van.
Brown testified that defendant was already outside on the sidewalk or at the end of the driveway when Branch arrived. Branch's work van came to a stop across the street from defendant's house such that the driver's side was facing defendant's house. Brown testified that she observed defendant walk up to Branch's van and fire more than one shot at Branch's work van. According to Brown, Branch's van began to move forward until it hit a tree about a block away from the shooting. Brown testified that Branch did not lower his window, open the door or get out of the van.
Loletta Wise also testified that while she and her mother were trying to get into the car, Branch arrived in his work van and parked across the street. She testified that defendant walked up to the van and fired one shot at the ground, shouted "hey you" and fired two shots into the passenger compartment of the vehicle. Both Loletta and Brown testified that the driver's side window shattered following the shooting.
Neon Branch was called to testify on behalf of the State and indicated that after shopping for his brother's birthday present, Branch was dropping them off at defendant's home. Jonathan hugged Branch and left the van and Neon did the same. Neon was taking the bags out of the van when he heard a loud noise and breaking glass. He heard his father yell and swear before he slumped over the steering wheel. The van began to move forward and ran over Neon's foot while he tried to get away from the vehicle. Once the van moved beyond Neon's field of view, he observed defendant standing in the street holding a gun. The van continued to roll forward until it struck a tree several houses down the street.
Defendant's neighbor, George Martens testified that he was at home with his wife on January 14, 2002. He heard gunshots outside and brought his wife into the kitchen, took cover and called the police. Martens left his house and saw "Smitty" (defendant) standing in his driveway with a gun in his hand. Martens told defendant to "put that thing down" and back away. Defendant dropped the gun and walked away with his hands above his head. Martens testified that he later found a bullet hole in his front window.
The Park Forest Police arrived on the scene within minutes of the shooting. Martens pointed out defendant to Officer Oldenburg who asked defendant if the weapon belonged to him. Defendant replied "I did the shooting, I'm tired of all this shit." Defendant was taken into custody and searched. The search of defendant's person revealed six rounds of ammunition in his robe pocket and one round in his pants pocket. In addition, there were three remaining rounds in the recovered weapon and three spent shell casings in the cylinder. Officer Baugh of the Park Forest Police approached the van that had struck the tree and found Branch unresponsive and slumped over the steering wheel.
The State called Dr. Denton of the Cook County Medical Examiner's Office. Dr. Denton testified that Branch was shot in the left arm and the left chest and died as a result of multiple gunshot wounds. Dr. Denton further indicated that the "stippling" or "tattooing" on Branch's skin evidenced a shooting at a range of between one and two feet from Branch's left arm. The State rested its case-in-chief and defendant moved for a directed verdict, which was denied.
Defendant called Deata Stevens, his neighbor, to testify on his behalf. Stevens testified that Branch would drive his work van past defendant's house many times per week and he would also park his van outside of defendant's home. At times, the van would be parked down the street and the children would run toward the van, however, on many occasions, she testified that no children were around or near the van when it was parked near defendant's home.
Officer Baker of the Park Forest Police investigated the scene and photographed and inventoried the van. Baker found items used in Branch's window installation business and a duffel bag. In an outside pocket of the duffel bag, Baker discovered and photographed a utility knife. Baker testified that he could not determine what items, including the duffel bag, shifted in the collision following the shooting.
Finally, the defense called John Rea, a private investigator hired by defense counsel. Rea testified that he interviewed Brown at her place of employment regarding Branch's shooting. During the interview, Brown indicated that she and her daughter, Loletta, were trying to get into a car when defendant shot Branch. She stated that the incident occurred very fast and she did not see defendant fire the shots, but she heard the shots as they were fired. Rea testified that the only records of the interview were his handwritten notes. Defendant and the State rested their cases.
The jury was given instructions on first degree murder, self-defense and second degree murder. Following deliberations, the jury found defendant guilty of first degree murder. Defendant was sentenced to 30 years' imprisonment on the first degree murder count. Defendant was sentenced to an additional 30 years' imprisonment to run consecutively under section 5-8-1(a) (d) (iii) of the Code of Criminal Procedure (the Code) ( 730 ILCS 5/5-8-1(a) (d) (iii) (West 2004)), for personally discharging the firearm that proximately caused Branch's death.
Defendant filed this timely appeal alleging that the circuit court: (1) violated his right to a public trial when it excluded members of his family during voir dire; (2) improperly instructed the jury on self defense despite the fact that neither party's theory supported the instruction; and (3) failed to instruct the jury that Branch's prior actions could be used to support a finding of second degree murder. Defendant contends that the State: (1) impermissibly drew attention to defendant's choice not to testify at trial; (2) inappropriately appealed to the jury's sympathy; and (3) misstated the law relative to self defense.
ANALYSIS I. SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL
The question of whether a defendant's constitutional rights have been violated is reviewed de novo by this court. People v. Burns, 209 Ill. 2d 551, 560 (2004). Defendant asserts that the circuit court deprived him of his Sixth Amendment right to a public trial when it "excluded members of [defendant's] family from the court room during jury selection" when no overriding interest for closing the proceedings existed, the court failed to consider reasonable alternatives to closure or make findings on the record. The State responds with the singular argument that defendant has waived his right to a public trial by failure to object at trial or in post trial motion. For this proposition the State citesWaller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 2215, 81 L. Ed.2d 31, 38 (1984), stating "[a]lthough the right to a public trial belongs to the accused and not the public, this right may be waived when the accused does not contemporaneously object to the exclusion of the public." Although we agree that the Sixth Amendment right to a public trial protects the accused and the First Amendment protects the public, we disagree with the State's proposition that an accused waives his right to a public trial by failing to contemporaneously object to closed proceedings. We find no legal support for its contention inWaller or any other binding authority.
The United States and Illinois Constitutions guarantee a criminal defendant the right to a public trial. U.S. Const. amend. VI; Ill. Const. art. I, § 8. Without a doubt, this guarantee applies at the jury selection stage of trial proceedings. See Press-Enterprise Co. v. Superior Court of California Riverside County, 464 U.S. 501, 508, 104 S. Ct. 819, 823, 78 L. Ed. 2d 629, 637 (1984); People v. Willis, 274 Ill. App. 3d 552, 553, (1995). Generally, the benefits of a public trial are essential to our judicial structure even though they are "frequently intangible, difficult to prove or a matter of chance." Waller 467 U.S. at 49 fn 9, 104 S. Ct. 2210, 81 L.Ed. 2d 31. Specifically, however, the United States Supreme Court, referring to an accused's right to a public trial, stated that "[n]o right ranks higher than the right of the accused to a fair trial."Press-Enterprise, 464 U.S. at 508, 104 S. Ct. at 823, 78 L. Ed. 2d at 637.
Furthermore, the Waller court expressed that "[t]he central aim of a criminal proceeding must be to try the accused fairly, and [our] cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant. *** The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions[.] *** In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." [Citations omitted.] Waller. 467 U.S. at 46, 104 S. Ct. at 2215, 81 L.Ed. 2d at 38.
In our view, the right to a public trial is a basic protection that the Constitutional Framers viewed as indispensable to a fair trial, (SeeWalton v. Briley, 361 F. 3d 431 (7th Cir. 2004)), holding that a public trial concerns an accused's right to fair trial. Waller, 467 U.S. at 46, 104 S. Ct. at 2210, 81 L.Ed. 2d at 38. The United States Constitution requires that every effort be made to ensure that an accused has not unknowingly relinquished such a basic protection. Schneckloth v. Bustamonte, 412 U.S. 218, 241-42, 93 S.Ct. 2041, 36 L.Ed. 2d 854 (1973). As a result, every reasonable presumption should be against" waiver of a fundamental right. Walton, 361 F. 3d at 433, quoting Hodges v. Easton, 106 U.S. 408, 412, 1 S. Ct, 307, 27 L.Ed. 2d 169 (1882). TheWalton court points out that this heightened standard has been applied to plea agreements, the right against self incrimination, the right to a trial by jury, the right to an attorney and the right to confront a witness. Walton, 361 F. 3d at 433-34 citing: Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L.Ed. 2d 747 (1970);Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966); Moltke v. Gillies, 332 U.S. 708, 723-26, 68 S. Ct. 316, 92 L.Ed 2d 70 (1962). We agree with the Walton court that neither this country's jurisprudence nor Constitution support a conclusion that defendant waives his right to an open and public trial by failing to contemporaneously object to the court's closing of a trial or any part thereof. Walton, 361 F. 3d at 433-34.
That being said, we must now address defendant's claim with regard to the circuit court's alleged exclusion of his family members from the court room. Prior to voir dire the circuit court made the following statement to individuals in the public gallery of the courtroom:
"THE COURT: I have already explained that in your absence to one part of the family at least. Ladies and gentlemen, by the fact that we hare going to be bringing 50 [prospective jurors] down, we just don't have the seats for you. And the thing about it is, is once the jury is selected, then you will be welcomed to stay — it is a public courtroom — come each and every hearing. But the sheriffs will probably be asking you to step out of the courtroom during the jury selection process. I hope you understand that, okay.
So, I mean, basically you are welcome to stay around, because I don't think we will be hearing any evidence today. So if you have other matters you need to take care of today, feel free to do that. But all we are doing is picking the jury today."
After reviewing the record in its entirety and defendant's claims in his opening and reply briefs, we cannot conclude that the circuit court closed the proceedings to the public during the voir dire.
The basis for defendant's conclusion comes entirely from the circuit court's comments to the spectators in the gallery prior to voir dire. As indicated in the record, the circuit court apprised the public that 50 jurors would be brought into the court room for voir dire. The possibility existed that the sheriff might ask some to leave to accommodate the prospective jurors. The record, however, is completely devoid of any request or order by the circuit court barring any member of the public from attending. In every case relied upon by defendant, some action by the circuit court resulted in preventing members of the public from attending some part of a public trial. In Waller, the trial court in Georgia ordered the entire suppression hearing of multiple defendants closed to the public to preserve certain evidence that was subject to spoilation. Waller, 467 U.S. at 42, 104 S. Ct. at 2213, 81 L.Ed. 2d at 37. In Press-Enterprise, the California trial court ordered voir dire closed to the public and refused to furnish transcripts to the press following the private proceedings. Press-Enterprise, 464 U.S. at 508, 104 S. Ct. at 823, 78 L. Ed. 2d at 637. In Willis and People v. Taylor, the circuit court made findings on the record and issued orders identifying specific individuals who would be excluded during part of a public trial, to which defendant would be entitled to have the public present. Willis, 274 Ill. App. 3d 552; People v. Taylor, 244 Ill. App.3d 460 (1993). In Walton, although the circuit court did not issue a specific order or prohibit any individual from attending the defendant's trial, the circuit court effectively excluded the public by commencing trial after the court house closed and the public access doors had been locked. In addition to holding the trial at a time when the public had no access to the court house, the defendant's fiancee in that case testified that she attempted to attend the defendant's trial without success because the court was closed.
Although we make every effort to express the importance of a public trial in our legal system and in democratic society generally, we cannot equate the circuit court's mere warning that there may not be enough seats to accommodate everyone in the future, with denying the defendant his Sixth Amendment right to a public trial. We also point out that defendant does not allege either in his briefs or by affidavit, that any individual was, in fact, subsequently asked by the Sheriff or circuit court to leave or that any individual chose to leave as a result of the court's warning of a potential seat shortage. In our view, there is a distinction to be made between ordering that part of a public trial be closed and warning the public that seats may be scarce during that portion of the trial. Moreover, we point out that the circuit court reminded the public that all proceedings were public and anyone was welcome to attend "each and every hearing." As a result, we hold that the circuit court neither closed the court room during voir dire nor denied defendant his Sixth Amendment right to a public trial.
II. JURY INSTRUCTION AND ERRORS IN CLOSING ARGUMENTS
Next, defendant contends that the circuit court and the State's Attorney committed several errors during the course of the trial. With regard to the circuit court, defendant alleges that it improperly instructed the jury on self-defense by a defendant who responds to force that he provoked. It is also alleged that the circuit court instructed the jury that it could consider Branch's prior violent and threatening acts for purposes of defendant's self-defense claim, however, it did not instruct the jury that the same could also be used for a finding of second degree murder. Relative to errors during argument by the State, defendant asserts that the State impermissibly drew attention to defendant's choice not to testify at trial, misstated the law pertaining to when a person was required to retreat before using force, argued to the jury that it had a duty to convict defendant and inappropriately appealed to the jury's sympathy by making repeated references to Branch's family. We disagree with defendant and hold that, unlike defendant's right to a public trial, failure to contemporaneously object during trial and subsequently in a post-trial motion has resulted in waiver of such claims on appeal.People v. Enoch, 122 Ill. 2d 176, 186 (1988) ("Both a trial objectionand a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial" (Emphases in original)).
In this case it is undisputed that defendant failed to object to any of the alleged errors contemporaneously at trial or following the proceedings in a post-trial motion. The waiver principle is designed to encourage a defendant to raise issues by objecting before the trial court, allowing the court to correct its own errors and disallowing the defendant to obtain a reversal through inaction. People v. Herron, 215 Ill. 2d 167, 175 (2005), citing People v. Roberts, 75 Ill. 2d 1, 11 (1979) and quoting People v. Ford, 19 Ill. 2d 466, 478-79 (1960) ("An accused may not sit idly by and allow irregular proceedings to occur without objection and afterwards seek to reverse his conviction by reason of those same irregularities.")
Notwithstanding defendant's waiver by failure to object to any jury instructions or prosecutorial misconduct at any point in the trial below, he urges this court to review the alleged errors under the plain error doctrine because the result of the trial mistake, both individually and cumulatively, denied defendant a fair trial. See Illinois Supreme Court Rule 615(a) (creating an exception to the waiver rule by allowing appellate courts to note "[p]lain errors or defects affecting substantial rights.") (134 Ill. 2d R. 615(a)); Illinois Supreme Court Rule 451 (c) (otherwise waived "substantial defects" are reviewable if the interest of justice so require.) 134 Ill. 2d 451(c)); Herron, 215 Ill. 2d at 178-79 (stating that when an improper jury — instruction prejudices a defendant, reversal is warranted and the defendant must be granted a new trial); People v. Starks, 116 Ill. App.3d 384, 389-90 (1983) and People v. Blue, 189 Ill. 2d 99, 139 (2000) (reviewing as plain error, cumulative errors, including alleged prosecutorial misconduct.) Defendant further argues that should this court not find plain error, we may nevertheless address the merits of his claims because his counsel was ineffective for failing to object at the appropriate time. People v. Edmunds, 101 Ill. 2d 44, 65-66 (1984) (finding that where an appellant contends that error is due to ineffective assistance of counsel, a reviewing court may consider an issue that might otherwise be waived).
"Plain error encompasses those errors which are obvious from the record, which affect substantial rights of the accused, and which, if uncorrected, would be an affront to the integrity and reputation of the judicial system." People v. Campbell, 264 Ill. App. 3d 712, 725 (1992), citing People v. Young, 215 Ill. 2d 1, 46 (1989) (finding that "plain error may be considered where the record clearly shows that an alleged error affecting substantial rights was committed"). "The plain-error doctrine, however, does not instruct a reviewing court to consider all forfeited errors, as it is not a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court, but rather, a narrow and limited exception to the general waiver rule whose purpose is to protect the rights of the defendant and the integrity and reputation of the judicial process." Herron, 215 Ill. 2d at 177. [Citations omitted]; 134 Ill. 2d R. 615(a). As a result, the plain error doctrine bypasses normal forfeiture principles and allows for a review of unpreserved error only when the evidence is closely balanced or the error was so fundamental that the defendant was denied a fair trial.Herron, 215 Ill. 2d at 186-87.
In the instant case, defendant does not claim that the evidence was so closely balanced that this court should invoke the plain error doctrine. We conclude that he cannot because the evidence in the record overwhelmingly supports a conviction for first degree murder. Although defendant was allowed to and presented some evidence of self-defense, the jury rejected such a theory because the evidence presented did not show that Branch engaged in any threatening or aggressive behavior on the day of the shooting. Defendant instead relies on the fundamental unfairness aspect of the plain error doctrine.
"Plain error marked by `fundamental unfairness' occurs only in situations which `reveal breakdowns in the adversarial system,' as distinguished from `typical trial mistakes.'" People v. Keene, 169 Ill. 2d 1, 17 (1995). It is defendant's burden to show that the error of which he complains rises to the level of "fundamental unfairness." Herron, 215 Ill. 2d at 187. Generally speaking, a putative jury instruction error is subject to forfeiture if the defendant does not object to the instruction or offer an alternative instruction at trial and does not raise the instruction issue in a posttrial motion.Herron, 215 Ill. 2d at 187. Further, it is both a proper and threshold issue for a reviewing court to determine whether error occurred in the first instance. People v. Wade, 131 Ill. 2d 370-376 (1989).
In our view, the circuit court did not err in instructing the jury in this trial. Relative to the "initial aggressor instruction," we find that it was neither wholly inapplicable to defendant's case nor inconsistent with the evidence defendant was allowed to introduce regarding Branch's prior actions. The initial aggressor instruction provides:
"A person who initially provokes the use of force against himself is justified in the use of force only if the force used against him is so great that he reasonably believes he is in imminent danger of death or great bodily harm and he has exhausted every reasonable means to escape the danger other than the use of force which is likely to cause death or great bodily harm to the other person." IPI 24-25.09.
Defendant fails to note in his brief that the circuit court followed IPI 24-25.09 with IPI 24-25.09X, 4th Ed., which states:
"A .person who has not initially provoked the use of force against himself has no duty to attempt to escape the danger before using force against the aggressor."
We find that the instructions were proper because the defense offered evidence that called into question the identity of the initial aggressor. Defendant admitted evidence that Branch had been stalking him, physically attacked him and Brown, attempted to run him off the road, threw a brick through his front window, appeared in front of his house unannounced and had a utility knife within his reach at the time defendant shot him. Relying on this evidence, although thin, defendant theorized that the events leading up to the shooting show that Branch was the initial aggressor.
The State, in response to defendant's theory, produced evidence that defendant told Brown that he would kill Branch if he came to his house, had armed himself with a hand gun and butcher knife, waited for Branch outside of his house and shot him at close range while he was hugging his son. Defendant also produced evidence that Branch pulled up to his house and was reaching down in the area where the utility knife was later found when the shooting occurred. In light of defendant's implication that Branch could have been reaching for the utility knife to use as a weapon against defendant, the State argued that if the jury believed this claim, then defendant should be viewed as the initial aggressor.
The State and the defendant are both entitled to have the jury instructed on their theories of the case, and an instruction is warranted if there is even slight evidence to support it. People v. Heaton, 256 Ill. App. 3d 251, 257 (1994), citing People v. Barnard, 208 Ill. App. 3d 342, 349-50 (1991). Moreover, the jury is the sole judge of the credibility of the witnesses and the weight and sufficiency of the evidence presented at trial. People v. Johnson, 254 Ill. App. 3d 74, 82 (1993). Contrary to defendant's assertion that the evidence did not support the complained of instruction, the evidence created a dispute as to who could have been the initial aggressor. In our view, the circuit court did not err by giving the jury the instructions of which defendant now complains, thus, application of the plain error doctrine would be inappropriate.
Additionally, the defense's arguments that the circuit court failed to properly instruct the jury relative to second degree murder and that the State misstated the law and raised improper arguments during its closing are similarly without merit. After thoroughly reviewing the record, and without recounting the significant evidence undermining these arguments which is discussed at length in this order, it is sufficient to say that the jury simply rejected any notion that second degree murder was applicable here in spite of any perceived error which defendant raises for the first time on appeal. Further, we have read the transcripts of the State's and defendant's closing arguments and we find no error in the State's recitation of the law, improper references to defendant's failure to testify or improper appeals to the jury's sympathy by focusing on Branch's family that would prejudice defendant.
First, defendant's claim that the prosecutor misstated the law was based on the assumption that the circuit court improperly instructed the jury. We have ruled that the circuit court properly instructed the jury, thus, defendant's claim fails. Second, the prosecutor did not draw attention to defendant's failure to testify at trial. Rather, the State argued that none of the witnesses, including Brown, Loletta and Jonathan, testified that defendant was scared or engaged in activity that was indicative of his fear of Branch prior to the shooting. Third, the references made to Branch's family were in response to defendant's implication that Branch was reaching down toward the area where the utility knife was found and that Branch engaged in an on-going pattern of violence and stalking against defendant. The State produced evidence that he had taken Jonathan and Neon out shopping for Jonathan's birthday and that he was saying good bye and hugging his children before they left his van. The State referenced this evidence in closing to show that Branch was neither planning an attack on defendant nor reaching for the utility knife. People v. Soto, 342 Ill. App. 3d 1005, 1017 (2003) (holding that remarks in closing argument, even if improper, do not warrant reversal unless they are so prejudicial as to constitute a material factor in the defendant's conviction that the jury likely would have reached a different verdict had the remarks not been made).
Finally, defendant's claim that his counsel was ineffective for failing to object to the jury instructions must also fail in light of our rulings that the instructions were proper and no error occurred in closing arguments. Defendant cannot make the necessary showing that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) that the attorney's inadequate performance prejudiced defendant such that, absent the errors, the outcome would have been different because there was no error to which counsel could object. People v. West, 187 Ill. 2d 418, 432 (1999).
We therefore hold that the circuit court's instructions to the jury were proper and supported by the evidence, the argument based on the jury instruction made by the State during closing was neither misstated nor improper, references to others' testimony and Branch's family in closing by the State was neither improper nor prejudicial, defendant's counsel was not ineffective for failing to object to perceived errors by defendant and, to the extent that any error occurred, it is waived and is not reviewable under the plain error doctrine.
III. CORRECTION OF THE MITTIMUS
Defendant contends that the mittimus must be corrected to reflect a conviction for one count of first degree murder instead of two counts of first degree murder and that this court must correct a portion of his sentence (the firearm enhancement) that was based on a count that wasnolle pros'd prior to trial. The State concedes that themittimus must be corrected to reflect one count of first degree murder, however, it "strenuously challenges" defendant's claim that the firearm enhancement should be reduced from 30 years to 20 years.
The State initially charged defendant with eight counts of first degree murder, all related to the shooting death of Branch. Six of the eight charges were nolle pros'd by the State, leaving only two counts, one count of first degree murder (count 7), which the State concedes is proper and one count of first degree murder (count 8) which follows the language in the firearm enhancement contained in section 5-8-1(a) (1) (d) (ii) of the Unified Code of Corrections (the Code) . 730 ILCS 5-8-1(a) (1) (d) (ii) (West 2002). Section 5-8-1(a) (1) (d) (ii) states, in pertinent part:
"if, during the commission of the offense, the person personally discharged a firearm, 20 years shall be added to the term of imprisonment imposed by the court" 730 ILCS 5-8-1(a) (1) (d) (ii) (West 2002).
In contrast, section 5-8-1(a) (1) (d) (iii) states:
"if, during the commission of the offense, the person personally discharged a firearm that proximately caused great bodily harm, permanent disability, permanent disfigurement, or death to another person, 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court. 730 ILCS 5-8-1(a) (1) (d) (ii) (West 2002). [Emphasis added].
Count five of grand jury indictment, which was nolle pros'd track section 5-8-1(a) (1) (d) (iii) and states:
"JAMES SMITH committed the offence of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION INTENTIONALLY OR KNOWINGLY SHOT AND KILLED RONALD BRANCH WITH A FIREARM, AND DURING THE COMMISSION OF THE OFFENSE HE PERSONALLY DISCHARGED A FIREARM THAT PROXIMATELY CAUSED DEATH ***."
Count eight of the grand jury complaint stated:
"JAMES SMITH committed the offense of FIRST DEGREE MURDER in that HE, WITHOUT LAWFUL JUSTIFICATION SHOT AND KILLED RONALD BRANCH WITH A FIREARM, KNOWING THAT SUCH ACT CREATED A STRONG PROBABILITY OF DEATH OR GREAT BODILY HARM TO RONALD BRANCH, AND DURING THE COMMISSION OF THE OFFENSE HE PERSONALLY DISCHARGED A FIREARM ***."
A nolle prosequi is a formal entry of record whereby the prosecuting attorney declares that he is unwilling to prosecute a case. Ferguson v. City of Chicago, 213 Ill. 2d 94, 101 (2004), citingPeople v. Daniels, 187 Ill. 2d 301, 312 (1999). Anolle prosequi order terminates the charge and requires the institution of a new and separate proceeding to prosecute the defendant. Ferguson, 213 Ill. 2d at 101, citing People v. Sanders, 86 Ill. App. 3d 457, 469 (1980). Moreover, any part of a sentence not authorized by statute may be attacked at any time. People v. T.E., 85 Ill. 2d 326, 333 (1981). Here, defendant argues that the State nolle pros'd the only count that alleged the requisite element of proximate causation allowing the circuit court to impose a sentence enhancement of 25 years' to life imprisonment. As a result, the firearm enhancement imposed by the circuit court of 30 years' imprisonment was not authorized by relevant statute, which only allows a 20 year enhancement, and thus must be reduced from 30 years' to 20 years' imprisonment.
While we agree with defendant's statement of the law relative tonolle pros'd charges and sentences that exceed statutory authority, we disagree with the contention that count eight does not encompass proximate causation as stated. Indeed, we can think of no reasonable interpretation of the language that defendant "shot and killed Branch with a firearm, *** and during the commission of the offence he personally discharged a firearm" other than that defendant's conduct in discharging the firearm proximately killed Branch.
A defendant in a criminal prosecution has a fundamental due process right to notice of the charges brought against him. People v. DiLorenzo, 169 Ill. 2d 318, 321 (1996). For this reason, a defendant may not be convicted of an offense he has not been charged with committing.People v. Baldwin, 199 Ill. 2d 1, 6 (2002); see also People v. Knaff, 196 Ill. 2d 460, 472 (2001); People v. Jones, 149 Ill. 2d 288, 292 (1992). The failure to charge an offense is the kind of defect which implicates due process concerns. Such a defect may, therefore, be attacked at any time. DiLorenzo, 169 Ill. 2d at 321. However, when the sufficiency of a charging instrument is attacked for the first time on appeal, the standard of review is whether the indictment apprised the accused of the precise offense charged with enough specificity to: (1) allow preparation of his defense; and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. DiLorenzo, 169 Ill. 2d at 322 (1996).
We point out that defendant's claim here is that the requisite element of proximate causation is absent from the language in count eight because the State nolle'd the count that contained the words "he personally discharged a firearm that proximately caused death." However, there is only one defendant in this case and one victim. Defendant was charged, under count eight, with shooting and killing Branch with a firearm and personally discharging a firearm. The jury here, specifically found that defendant shot and killed defendant and discharged a firearm.
Defendant does not assert that as a result of the alleged defects in the indictment he was unable to prepare a meaningful defense and was left to guess as to some of the details of the charge. SeeDiLorenzo, 169 Ill. 2d at 322. In fact, he cannot make this assertion because the record belies such a contention. The State, defendant and the court proceeded under the assumption that count eight sufficiently charged defendant with Branch's death and proximately causing it with a firearm that he discharged. During the sentencing phase, the State argued as follows:
"Defendant is eligible for a sentence of First Degree Murder between 20 and 60 years, and an additional consecutive term of years for the commission of First Degree Murder with a firearm, that he permanently [sic] discharged a firearm which caused the death of Ronald Branch, for a consecutive term of years between 25 and life."
In response to that argument, defense counsel stated:
"We understand that that means for First Degree Murder the minimum is 20 years, and because of the conviction for use of a firearm, that that is 25 to life, consecutive sentence, and we request *** the minimum of 25 years *** with a total of 45."
Relative to pleading this conviction as a bar to subsequent prosecution, the indictment and conviction entered pursuant to the indictment are sufficient to support a plea of double jeopardy if necessary. The indictment in this case along with the allegations setting forth the name of the victim, the time, date and place of the offense and the record of the proceedings constitute a clear double jeopardy defense barring a subsequent indictment for this same offense. See People v. Gilmore, 63 Ill. 2d at 30-31 and People v. Grieco, 44 Ill. 2d 407, 411-12 (1970)
We hold that the charges in the indictment were sufficiently specific to allow defendant to prepare a defense and that the words "proximately caused death" are not required under the circumstances in this case to sufficiently charge the element of proximate causation necessary to impose the sentence enhancement contemplated in section 5-8-1(a) (1) (d) (iii) of the Code.
In sum, the mittimus is to be corrected to reflect one count of first degree murder under section 5-9-1(A) (2) of the Criminal Code of 1961 (West 2002) for which defendant is sentenced to 30 years' imprisonment and a firearm enhancement under section 5-8-1(a) (1) (d) (iii) of the Code for which defendant's sentence is to be extended by an additional 30 years. In accordance with Illinois Supreme Court Rule 615 as amended, People v. Miles, 117 Ill. App. 3d 257, 259 (1983) and People v. Mitchell, 234 Ill. App. 3d 912, 921 (1992), the mittimus shall be corrected in a manner consistent with this order.
Finally, we note that the State has submitted a motion to cite authority purportedly in response to questions raised by this court during oral argument. This motion was taken with the case and is denied. In its motion, the State raises an argument that was neither raised at oral argument nor in its brief and cites to authority for the first time after oral argument which is impermissible. People v. Thomas, 164 Ill. 2d 410, 422 (1995), citing People v. Stewart 121 Ill. 2d 93, 105 (1988). Also, the cases cited by the State in its motion are at least three years old and have been available since the pendency of this appeal beginning on November 16, 2006. In any event, we have ultimately determined that there was no reversible error committed by the circuit court and the outcome of this case would not be affected by considering the State's motion.
IV. CONCLUSION
For the foregoing reasons, we hold that defendant was not deprived of his Sixth Amendment Right to a public trial, the circuit court properly instructed the jury relative to self-defense and second degree murder, the prosecutor did not misstate the law, impermissibly draw attention to defendant's failure to testify or improperly appeal the jury's sympathy and themittimus is to be corrected as instructed herein. Accordingly, the judgment of the circuit court is affirmed as modified.
Affirmed.
O'MALLEY, J., with McBRIDE, P.J., and McNULTY, J., concurring.