Opinion
No. 1-12-1615
05-20-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE HUNT, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County
No. 09 CR 5980
Honorable James M. Obbish
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Harris and Justice Pierce concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err by merging defendant's convictions into one of his convictions for armed violence and sentencing him on that conviction because armed violence is a more serious offense than aggravated battery with a firearm, as it carries a lengthier minimum sentence. The admission of the victim's testimony that the bullet was not removed from his arm because the doctor who treated him said that doing so might cause him to bleed to death was not plain error because the evidence of great bodily harm to the victim was not so closely balanced that the testimony threatened to tip the scales of justice against defendant. Defense counsel was not ineffective for failing to object to the victim's testimony regarding the doctor's stated reason for deciding not to remove the bullet from his arm because it is not reasonably probable that the result of the sentencing hearing would have been different had counsel made such an objection. ¶ 2 Following a bench trial, defendant Tyrone Hunt was found guilty of multiple crimes in connection with the shooting of Terrence Bridges. The trial court merged all of defendant's convictions into one of his convictions for armed violence and then sentenced him to 20 years' imprisonment. On appeal, defendant contends that the court erred by merging his convictions into a conviction for armed violence and by admitting Bridges' testimony of statements made by the doctor who treated him regarding the reason the doctor did not remove the bullet from his arm. For the reasons that follow, we affirm.
¶ 3 BACKGROUND
¶ 4 Defendant was charged with aggravated battery with a firearm, aggravated intimidation, and communication with a witness in connection with the shooting. Defendant was also charged with one count of armed violence for committing the crime of intimidation while armed with a handgun and another count of armed violence for committing the crime of communicating with a witness while armed with a handgun. ¶ 5 At trial, the State presented evidence showing that defendant shot Bridges in the arm in an attempt to prevent Bridges from testifying at the upcoming trial of Frederick Pigram for the murder of Bridges' brother. Bridges testified that he was shot near the bicep in his right arm and that he was taken to a hospital, where a doctor took an x-ray which confirmed that there was a bullet in his right arm. Bridges also testified that the bullet was not removed because the doctor said that it was located near a vein and that he might bleed to death if it was removed. Upon inspection of Bridges' arm, the court observed that there was a slightly raised bruise mark on Bridges' upper right bicep. Bridges further testified that the doctor stopped the bleeding, cleaned and bandaged the wound, and gave him a sling and that he did not remain in the hospital for more than an hour. The court found defendant guilty of armed violence, aggravated battery with a firearm, intimidation, and communication with a witness and merged all of his convictions into the conviction on the count of armed violence which alleged that defendant committed the crime of intimidation while armed with a handgun. ¶ 6 The court sentenced defendant to 20 years' imprisonment and determined that he was required to serve at least 85% of the sentence pursuant to section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(iii) (West 2008)) because Bridges suffered great bodily harm as a result of defendant's criminal conduct. In finding that Bridges suffered great bodily harm, the court stated that a person who is shot by a gun generally suffers great bodily harm when the bullet enters the victim's body and that the evidence in this case showed great bodily harm to Bridges.
¶ 7 ANALYSIS
¶ 8 I. One-Act, One-Crime
¶ 9 Defendant contends that the trial court erred by merging his convictions into one of his convictions for armed violence and imposing a sentence on that conviction because aggravated battery with a firearm is a more serious offense than armed violence. Under the one-act, one-crime doctrine, a defendant may not be convicted of multiple offenses that are based upon the same physical act and, if a defendant is found guilty of two or more offenses that are based upon the same physical act, then the court must vacate the less serious offenses and impose a sentence on the conviction for the most serious offense. People v. Johnson, 237 Ill. 2d 81, 97 (2010). To determine which offense is more serious, a court compares the relative punishments prescribed by the legislature for each offense. People v. Artis, 232 Ill. 2d 156, 170 (2009). The proscription of a lengthier minimum sentence for an offense represents a legislative determination that the offense is more serious than another offense with a shorter minimum sentence. People v. Cosby, 305 Ill. App. 3d 211, 228 (1999). ¶ 10 Defendant was convicted of armed violence for committing the crime of intimidation while armed with a handgun (720 ILCS 5/33A-2(a) (West 2008)), a class X felony for which he was required to be sentenced to a minimum term of 15 years' imprisonment (720 ILCS 5/33A-3(a) (West 2008)), and aggravated battery with a firearm (720 ILCS 5/12-4.2(a) (West 2008)), a class X felony which required a minimum sentence of six years' imprisonment (730 ILCS 5/5-8-1(a)(3) (West 2006)). Thus, armed violence is a more serious offense than aggravated battery with a firearm because it carries a lengthier minimum sentence. In addition, this court already held that armed violence is a more serious offense than aggravated battery with a firearm for that very reason in People v. Steppan, 322 Ill. App. 3d 620, 634 (2001). While defendant maintains that aggravated battery with a firearm is the more serious offense because it results in a greater harm, this court must compare the relative punishments of the two offenses to determine which is more serious, as "common sense indicates that the legislature will provide a greater punishment for the crime it deems to be more serious." Johnson, 237 Ill. 2d at 97. Further, when two crimes carry the same sentence, the court's next step in comparing the seriousness of the offenses is to determine which has the more culpable mental state, not the greater harm to the victim. Artis, 232 Ill. 2d at 170-71. As such, we conclude that armed violence is a more serious offense than aggravated battery with a firearm and that the trial court did not err when it sentenced defendant on his conviction for armed violence.
¶ 11 II. Hearsay
¶ 12 Defendant also contends that Bridges' testimony that the bullet was not removed from his arm because the doctor said he might bleed to death if it was removed was inadmissible hearsay and that the court erred by admitting that testimony into evidence. Defendant asserts that he was prejudiced by the admission of Bridges' testimony because the court relied upon that evidence in finding that Bridges suffered great bodily harm. Defendant admits that he has not preserved this claim for appellate review because he did not object to the testimony at trial or include the issue in his posttrial motion for a new trial, but maintains that this court may nonetheless review his claim under the plain-error doctrine because the evidence was closely balanced as to whether Bridges suffered great bodily harm. ¶ 13 A reviewing court may consider unpreserved error under the plain-error doctrine when the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). As the first step in conducting plain-error review is to determine whether any error occurred at all (People v. Walker, 232 Ill. 2d 113, 124 (2009)), we now consider whether the challenged testimony was inadmissible hearsay. ¶ 14 A statement made by someone other than the testifying witness that is offered in evidence to prove the truth of the matter asserted is hearsay (Ill. R. Evid. 801(c) (eff. Jan. 1, 2011)) and may not be admitted into evidence unless it falls within an exception to the hearsay rule (Ill. R. Evid. 802 (eff. Jan. 1, 2011)). Although Bridges could testify as to his own observations that he had been shot in the arm and that the bullet had not been removed, his testimony disclosing the doctor's stated reason for not removing the bullet was hearsay because it consisted of an out-of-court statement by the doctor that was offered to prove the truth of the matter asserted therein to establish that Bridges suffered great bodily harm. To the extent the State maintains that Bridges' testimony was not offered to prove the truth of the doctor's statement, but rather to explain why Bridges did not receive surgery as part of his medical treatment, the State does not explain how evidence of the extent of Bridges' medical treatment is relevant as to any issue in the case except for the seriousness of Bridges' injury. ¶ 15 Regardless, the admission of Bridges' testimony does not constitute plain error because the evidence showing that Bridges suffered great bodily harm was not so closely balanced that the admission of the testimony threatened to tip the scales of justice against defendant. At trial, the evidence established that defendant shot Bridges in the arm and that Bridges was then taken to a hospital, where he received medical treatment. The evidence also established that the bullet was not removed from Bridges' arm and that, at the time of trial, he had a slightly raised bruise mark on his upper right bicep where he sustained the gunshot wound. At the sentencing hearing, the court found that the evidence showed that Bridges had suffered great bodily harm, noting that a victim generally suffers great bodily harm anytime a bullet enters the victim's body. Thus, the court's statements during the sentencing hearing reveal that the evidence showing that the bullet entered and remained in Bridges' body was sufficient to convince the court that Bridges suffered great bodily harm. As such, the evidence showing that Bridges suffered great bodily harm was not so closely balanced that the admission of Bridges' testimony regarding the reason given by the doctor for deciding not to remove the bullet from Bridges' arm would constitute plain error. ¶ 16 To the extent defendant maintains that not all gunshot wounds constitute great bodily harm and cites to various cases in support of that proposition, we point out that defendant has not challenged the sufficiency of the evidence to establish that Bridges suffered great bodily harm and that the trial court did not state that it believed that all gunshot wounds resulted in great bodily harm to the victim, but only that those gunshot wounds which enter the body generally cause great bodily harm. Regardless, the cases cited by defendant are distinguishable because the cases either relate to a court's finding of "severe bodily injury" to justify the imposition of consecutive sentences, rather than a finding of "great bodily harm" to justify diminished sentencing credit (People v. Jones, 323 Ill. App. 3d 451, 461 (2001); People v. Rice, 321 Ill. App. 3d 475, 486 (2001); People v. Murray, 312 Ill. App. 3d 685, 694 (2000); People v. Ruiz, 312 Ill. App. 3d 49, 63 (2000); People v. Durham, 303 Ill. App. 3d 763, 770 (1999), vacated on other grounds, 186 Ill. 2d 575 (1999)), and/or involve minor scrapes, nicks, or cuts which did not require prompt medical attention (Jones, 323 Ill. App. 3d at 461; Ruiz, 312 Ill. App. 3d at 63; Durham, 303 Ill. App. 3d at 770; In re T.G., 285 Ill. App. 3d 838, 846 (1996)). ¶ 17 In this case, the evidence presented at trial showed that the bullet fired by defendant entered Bridges' arm, the wound required medical treatment, and the bullet remained in Bridges' arm at the time of trial and bore a physical mark. Thus, the cases cited by defendant do not alter our determination that, in light of the trial court's statements during the sentencing hearing, the evidence of great bodily harm was not so closely balanced that Bridges' hearsay testimony had any effect on defendant's sentence. As such, we conclude that defendant's procedural forfeiture of this claim is not excused by the plain-error doctrine. ¶ 18 Defendant also contends that defense counsel was constitutionally ineffective for failing to object to Bridges' testimony regarding the doctor's stated reason for deciding not to remove the bullet from his arm. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A defendant's failure to make the requisite showing of either deficient performance or sufficient prejudice defeats a claim of ineffective assistance. People v. Palmer, 162 Ill. 2d 465, 475 (1994). To establish prejudice, the defendant must prove there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. People v. Simms, 192 Ill. 2d 349, 362 (2000). ¶ 19 As we have already concluded that the evidence of great bodily harm to Bridges was not so closely balanced that the admission of the challenged testimony had any effect on the court's determination of the amount of sentencing credit to which defendant was entitled, we necessarily also conclude that there is no reasonable probability that the outcome of the sentencing hearing would have been different had defense counsel objected to the challenged testimony. As such, defendant cannot establish that he was deprived of the effective assistance of counsel.
¶ 20 CONCLUSION
¶ 21 Accordingly, we affirm the judgment of the circuit court of Cook County. ¶ 22 Affirmed.