Opinion
No. 1-15-3150
11-17-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID JOHNSON, 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. 13 CR 18560 Honorable Carol M. Howard, Judge, presiding. JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
¶ 1 Held: Defendant was proven guilty beyond a reasonable doubt of aggravated discharge of a firearm where the evidence sufficiently established that he fired gunshots at another person without violating the corpus delicti rule; nine-year sentence is not excessive; fines and fees order modified. ¶ 2 Following a jury trial, defendant David Johnson was convicted of being an armed habitual criminal and aggravated discharge of a firearm. The trial court sentenced defendant to concurrent terms of nine years' imprisonment. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm because the only evidence that he shot at rival gang members came from his own inculpatory statement, in violation of the corpus delicti rule. Defendant also contends that his nine-year sentence is excessive because the trial court did not give adequate consideration to his potential for rehabilitation as shown by his mitigating evidence. Finally, defendant asserts, and the State agrees, that one of his fines must be vacated, and that he is entitled to monetary credit against two other fines. We modify defendant's fines and fees order, and affirm his convictions and sentences in all other respects. ¶ 3 Defendant was tried on charges of being an armed habitual criminal, aggravated discharge of a firearm, and two counts of aggravated assault of a peace officer. At trial, Chicago police officer Sergio Vences testified that about 2 a.m. on September 7, 2013, he and his partner, Officer Mike Paxson, were patrolling a two-block by two-block area plagued with gangs and violence. The area covered from 63rd to 65th Streets, and from Calumet to Vernon Avenues. They were parked in an alley behind a building on the southeast corner of 63rd Street and Dr. Martin Luther King, Jr. Drive. On the northeast corner of the intersection there was a restaurant inside a vacant lot. There were "a couple of vacant lots" in that area. Vences exited the vehicle to stretch his legs while Paxson sat in the driver's seat filling out paperwork. ¶ 4 While looking north, Vences observed defendant walking eastbound on the sidewalk on the north side of 63rd Street. Vences was 60 to 65 yards south of defendant. Defendant produced a handgun, held the gun with both hands, and fired four to six gunshots directly east. Vences did not see any other people in the area, and did not see at whom defendant was shooting. Vences yelled "police. Drop the weapon." Defendant turned towards Vences and pointed his gun at the officer. Vences drew his weapon and fired about four shots at defendant. Defendant turned and ran westbound on 63rd Street, and Vences followed in pursuit. As Vences ran through a vacant lot, defendant turned around and pointed his gun at Vences a second time. Vences fired several shots at defendant. The chase then continued. ¶ 5 As defendant approached a bus stop on 63rd Street, he turned around and pointed his gun at Vences a third time. Vences again fired several shots at defendant. Defendant continued running westbound on 63rd Street, turned north onto King Drive, and ran to a building at 6246 South King Drive. As defendant opened the door to that building, he again turned and pointed his gun at Vences. Vences fired one shot at defendant, and defendant ran inside the building. ¶ 6 Paxson radioed for assistance, and the two officers entered the building. Vences observed a trail of blood in the hallway that led upstairs. The officers followed the trail up to the second floor. Assisting officers arrived, and a sergeant directed Vences and Paxon to exit the building and wait outside while other officers searched for defendant. Shortly thereafter, police escorted defendant out of the building and to an ambulance. Vences identified defendant at the scene as the man he saw firing a gun. ¶ 7 Vences' weapon was a Glock handgun model 17, serial number NDX720. Before the incident with defendant, Vences' gun was loaded with 18 rounds. Following the incident, four bullets remained. Vences gave his firearm to an evidence technician for testing and analysis. ¶ 8 Officer Paxson testified substantially the same as Vences, adding that the alley ran parallel with 63rd Street. While Paxson did paperwork, Vences walked eastbound in the alley towards a vacant lot. Paxson heard five to six gunshots. He looked out the back window and saw Vences standing at the vacant lot, looking north across the lot towards 63rd Street. Vences yelled "police" and fired his weapon. Paxson exited the vehicle and ran towards Vences. When Paxson reached the vacant lot he observed defendant on the sidewalk on 63rd Street. He saw the muzzle flash of a gunshot coming from him. Paxson did not see anyone else on the street, and did not see at whom defendant fired the gunshot. Paxson drew his weapon, yelled "police," and followed Vences as he ran through the lot towards defendant. ¶ 9 Similar to Vences, Paxson testified that defendant pointed his weapon at the officers four separate times during their pursuit, and that Vences fired multiple gunshots at defendant. As defendant approached a bus stop, he pointed his weapon at Paxson. Paxson heard a gunshot and fired one shot at defendant, shattering the bus stop. Paxson identified videos taken by a CTA surveillance camera that recorded some of the pursuit. Paxson also testified the same as Vences regarding their entry into the building, following the trail of blood to the second floor, and exiting when assistance arrived. He also identified defendant at the scene. Paxson gave his weapon, a Glock 17, serial number NDX718, to an evidence technician. ¶ 10 Chicago police officer Christopher Davis followed the trail of blood to an apartment on the fourth floor. He found defendant in a back room lying on the floor with blood covering his pants legs. Defendant was arrested and transported to the hospital. ¶ 11 Chicago police officer Madi Medina looked out an open window in that apartment and observed a firearm lying on the ground directly below the window. The firearm was recovered by evidence technician William Jackson. ¶ 12 The State presented a stipulation that Jackson would testify that a Hi-Point Model C 9-millimeter semiautomatic pistol was recovered from the courtyard of the apartment building. In addition, numerous 9-millimeter fired cartridge casings were recovered in various locations at the crime scene. Seven casings were recovered from the sidewalk at 410 East 63rd Street and one fired bullet fragment was recovered from the street. Another fired bullet fragment was recovered from the sidewalk on Vernon Avenue. Four casings were recovered from the alley, two casings were recovered from the vacant lot, two casings were recovered from 413 East 63rd Street, and five casings were recovered from the sidewalk and street at 409 East 63rd Street. ¶ 13 Firearms examiner Jennifer Hanna found that 13 of the fired cartridge casings were fired from Vences' firearm. One fired casing was from Paxson's firearm. The seven fired cartridge casings recovered from the sidewalk at 410 East 63rd Street and the one fired bullet jacket recovered from Vernon Avenue were fired by the gun recovered from the courtyard. ¶ 14 Forensic scientist Scott Rochowicz testified that although defendant's hands tested negative for gunshot residue, it did not mean that he did not fire a firearm because residue is easily removed. It is possible that the blood on defendant's hands removed any residue. ¶ 15 After being advised of his Miranda rights, defendant gave a statement to Detective Andrew Burns and assistant State's Attorney Rivera. Defendant stated that he was a member of the Black Disciples street gang. On the night of the shooting, he went to the J&B Submarine restaurant where some Gangster Disciples tried to "jump" him. Defendant left, retrieved a gun, and returned to 63rd Street and King Drive. He walked eastbound and saw some Gangster Disciples in a vacant lot near 63rd Street and Vernon Avenue. Burns acknowledged that Vernon Avenue is east of King Drive. Defendant stated that he pulled the gun from his pocket, pointed it at the Gangster Disciples and began shooting. He then heard someone yell "[p]olice." He turned around and saw a police officer running towards him. With his gun in his hand, defendant turned and ran westbound towards 63rd Street and King Drive. As he ran, the officers fired shots at him. Defendant denied pointing his gun at the officers. Burns then terminated the interview because defendant's leg began bleeding and he had to return to the hospital for treatment. Defendant had sustained gunshots to each leg. ¶ 16 The State presented a stipulation that defendant had two prior qualifying convictions for the charge of being an armed habitual criminal. ¶ 17 The jury found defendant guilty of being an armed habitual criminal, aggravated discharge of a firearm, and two counts of aggravated assault of Officers Vences and Paxson. ¶ 18 At sentencing, in aggravation, the State pointed out that defendant had a prior conviction for unlawful use of a weapon by a felon for which he was sentenced to three years' imprisonment, and a Class 1 aggravated robbery for which he served six years' imprisonment. The State argued that defendant should be sentenced to a significant prison term based on his criminal background and the fact that he continues to commit crimes with firearms. It further argued that the officers were doing their job trying to stop defendant, and he refused to comply and pointed his gun at the officers several times. ¶ 19 Defense counsel noted that defendant would be required to serve 85% of his sentence and requested a minimum term. Counsel argued that defendant came from a large, caring family, some of whom were present in court. Counsel further argued that defendant had been making good use of his time in custody. He was in a GED program for eight months, but could not finish because he was transferred to a different housing unit. Although he had an eighth grade education, defendant had been trying his best to earn his high school equivalency diploma. ¶ 20 Defendant also attended church and Bible study while in custody. He earned three certificates for Bible correspondence courses, and received letters from the Life in Christ Correspondence School showing that he had been applying himself and trying to better himself. Counsel noted that defendant was shot twice during the incident and was recovering from those wounds. He also noted that defendant's daughter turned four years old on the day of sentencing, and that defendant was anxious to be part of her life and childhood. Defendant wrote a letter which counsel presented to the court. The court stated that it had read the letter. ¶ 21 In allocution, defendant noted that the officers testified that he had been shooting, and he asked where the victim was. He stated that the police had no victim who claimed that defendant had fired the gun, nor any gunpowder residue or DNA. Defendant asserted that he would never jeopardize his life or put himself in such a predicament. He had been to prison twice before. He wanted to be there for his daughter and his six-month old niece. Defendant stated that he was trying to live his life the right way, and wanted to return to school and get a job to support his family. ¶ 22 The trial court stated that it considered the factors in aggravation and mitigation. It found that the facts of the case and the fact that defendant did not stop when ordered to do so by police were aggravating. In mitigation, the court viewed family photographs and found that defendant had a good relationship with his family and daughter. The court found that the letter and three certificates from the correspondence school showed that he had made efforts to turn his life around while in custody. The court noted that in addition to the Bible study courses, defendant had studied for his GED until the jail moved him to a different division through no fault of his own. The court expressly stated that it found all of those factors mitigating. It then sentenced defendant to concurrent terms of nine years' imprisonment. The court merged the two counts of aggravated assault into the aggravated discharge of a firearm conviction. It also assessed defendant $389 in court costs and fees. ¶ 23 On appeal, defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm because the only evidence that he fired gunshots at rival gang members came from his own statement, in violation of the corpus delicti rule. Defendant points out that Officers Vences and Paxson testified that they did not see anyone else on the street besides defendant and did not see at whom he was shooting. He argues that the State therefore failed to establish the element that he discharged a firearm "in the direction of another person." ¶ 24 The State responds that the evidence was sufficient to prove that defendant fired a weapon in the direction of another person. The State argues that its evidence corroborated much of the information in defendant's statement and that it was not required to corroborate every element. The State asserts that the evidence corresponded with defendant's confession, thereby satisfying the corpus delicti rule and proving that defendant committed the offense. ¶ 25 Initially, defendant claims that the standard of review for this issue is de novo because he is not challenging the credibility of the witnesses and argues only that the uncontested facts are not sufficient to prove an element of the offense. See People v. Smith, 191 Ill. 2d 408, 411 (2000) (where the facts are undisputed, defendant's guilt is a question of law that is reviewed de novo). However, here, defendant has not presented a question of law. Instead, he is challenging the evidence presented at trial and raises a factual dispute as to whether or not the State presented sufficient evidence to corroborate his statement that he did, in fact, shoot at another person. Therefore, de novo review is not proper. People v. Salinas, 347 Ill. App. 3d 867, 879-80 (2004). ¶ 26 When defendant claims that the evidence is insufficient to sustain his conviction, this court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). This standard applies whether the evidence is direct or circumstantial, and does not allow this court to substitute its judgment for that of the fact finder on issues involving witness credibility and the weight of the evidence. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009). Under this standard, all reasonable inferences from the evidence must be allowed in favor of the State. People v. Lloyd, 2013 IL 113510, ¶ 42. ¶ 27 As the trier of fact, the jury is responsible for determining the credibility of the witnesses, weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences there from. Jackson, 232 Ill. 2d at 281. In weighing the evidence, the jury is not required to disregard the inferences that naturally flow from that evidence, nor must it search for any possible explanation consistent with innocence and raise it to the level of reasonable doubt. Id. We will not reverse a criminal conviction based upon insufficient evidence unless the evidence is so improbable or unsatisfactory that there is reasonable doubt as to defendant's guilt. People v. Givens, 237 Ill. 2d 311, 334 (2010). ¶ 28 To prove defendant guilty of aggravated discharge of a firearm as charged in this case, the State was required to show that he knowingly discharged a firearm in the direction of another person. 720 ILCS 5/24-1.2(a)(2) (West 2012). Here, defendant is only challenging the evidence that he discharged the firearm "in the direction of another person." ¶ 29 The corpus delicti is the fact that a crime occurred. People v. Lara, 2012 IL 112370, ¶ 17. It is well established that proof of the corpus delicti cannot rest solely on a defendant's extrajudicial admission, confession, or other statement. Id. Although a defendant's confession may be integral to proving the corpus delicti, the State must also present corroborating evidence independent of the defendant's own statement. Id. Where a defendant's confession is not corroborated by other evidence, a conviction based exclusively on that confession cannot be sustained. People v. Willingham, 89 Ill. 2d 352, 358-59 (1982). ¶ 30 Pursuant to the corpus delecti rule, "the independent evidence need only tend to show" the crime occurred. (Emphasis in original.) Lara, 2012 IL 112370, ¶ 18. Our supreme court explained that the independent evidence:
"need not be so strong that it alone proves the commission of the charged offense beyond a reasonable doubt. If the corroborating evidence is sufficient, it may be considered, together with the defendant's confession, to determine if the State had sufficiently established the corpus delicti to support a conviction." (Emphasis added.) Id.¶ 31 The Lara court thoroughly analyzed the precedents establishing the corpus delicti rule and held:
"the corpus delicti rule requires only that the corroborating evidence correspond with the circumstances recited in the confession and tend to connect the defendant with the crime. The independent evidence need not precisely align with the details of the confession on
each element of the charged offense, or indeed to any particular element of the charged offense." Id. at ¶ 51.¶ 32 Here, the record shows that the State presented sufficient corroborating evidence independent of defendant's statement to prove that he committed the offense of aggravated discharge of a firearm. Officer Vences testified that he observed defendant walking eastbound on the sidewalk on the north side of 63rd Street. Defendant then produced a handgun, held the gun with both hands, and fired four to six gunshots directly east. Paxson testified that he heard five or six gunshots, ran to the location where Vences was standing, and observed defendant fire another gunshot. The ballistics evidence established that seven fired cartridge casings recovered from the sidewalk where defendant was standing and one fired bullet jacket recovered from Vernon Avenue were fired by the gun recovered from the courtyard of the apartment building where defendant was arrested. This evidence sufficiently corroborated defendant's statement that he walked eastbound on 63rd Street, saw some Gangster Disciples in a vacant lot near 63rd Street and Vernon Avenue, pulled a gun from his pocket, pointed it at the Gangster Disciples, and began shooting. ¶ 33 The record thereby establishes that defendant was not convicted of the offense of aggravated discharge of a firearm based on his statement alone. The jury could consider defendant's statement together with the independent evidence to conclude that the elements of the offense had been satisfied. Defendant's statement that he fired gunshots at rival gang members was sufficient evidence to satisfy the element that he discharged a firearm "in the direction of another person." Because the State had sufficiently corroborated the other information in defendant's statement, it was not required to produce additional independent evidence to corroborate that particular element. Accordingly, the record shows that the evidence was sufficient for the jury to find defendant guilty beyond a reasonable doubt of aggravated discharge of a firearm, and that the corpus delicti rule was not violated. ¶ 34 Defendant next contends that his nine-year sentence is excessive because the trial court failed to give adequate consideration to his potential for rehabilitation as shown by his mitigating evidence. Defendant points out that he participated in both educational and spiritual pursuits while in custody awaiting trial, attending GED and Bible study classes. He asserts that he has strong ties to his large, close-knit family. He notes that no one was injured during the incident in this case except for him. He also argues that he was only 23 years old at the time of the incident, and that his youth alone is strong evidence of his potential for rehabilitation. ¶ 35 The State responds that defendant's sentence is not excessive where the trial court gave proper consideration to the factors in aggravation and mitigation, and imposed a sentence within the statutory range. The State argues that defendant committed serious offenses in this case, firing a weapon on a public street and pointing a gun at two police officers, and that the court did not have to give greater weight to his rehabilitative potential than the seriousness of the offenses. The State points out that the trial court should have also sentenced defendant on each aggravated assault conviction rather than merging them into the aggravated discharge of a firearm offense because they are not lesser-included offenses of the firearm offense. ¶ 36 Being an armed habitual criminal is a Class X felony with a statutory sentencing range of 6 to 30 years' imprisonment. 720 ILCS 5/24-1.7(b) (West 2012); 730 ILCS 5/5-4.5-25(a) (West 2012). As charged in this case, aggravated discharge of a firearm in the direction of another person is a Class 1 felony with a sentencing range of 4 to 15 years' imprisonment. 720 ILCS 5/24-1.2(b) (West 2012); 730 ILCS 5/5-4.5-30(a) (West 2012). ¶ 37 The trial court has broad discretion in imposing an appropriate sentence, and where, as here, that sentence falls within the statutory range, it will not be disturbed on review absent an abuse of discretion. People v. Jones, 168 Ill. 2d 367, 373-74 (1995). An abuse of discretion exists where a sentence is at great variance with the spirit and purpose of the law, or is manifestly disproportionate to the nature of the offense. People v. Alexander, 239 Ill. 2d 205, 212 (2010). ¶ 38 The Illinois Constitution mandates that criminal penalties be determined according to the seriousness of the offense, and with the objective of restoring the offender to useful citizenship. Ill. Const.1970, art. I, § 11; People v. Ligon, 2016 IL 118023, ¶ 10. In light of these objectives, "[t]he trial court is charged with fashioning a sentence based upon the particular circumstances of the individual case, including the nature of the offense and the character of the defendant." People v. Fern, 189 Ill. 2d 48, 55 (1999). The court's sentencing decision is entitled to great deference because, having observed the defendant and the proceedings, it had the opportunity to weigh defendant's demeanor, credibility, general moral character, mentality, habits, social environment and age. Alexander, 239 Ill. 2d at 213. "The sentencing judge is to consider 'all matters reflecting upon the defendant's personality, propensities, purposes, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding.' " Fern, 189 Ill. 2d at 55, quoting People v Barrow, 133 Ill. 2d 226, 281 (1989). ¶ 39 The trial court need not give defendant's potential for rehabilitation greater weight than the seriousness of the offense. People v. Anderson, 325 Ill. App. 3d 624, 637 (2001). Moreover, when the court determines that a severe sentence is warranted, defendant's age has little import. People v. Rivera, 212 Ill. App. 3d 519, 526 (1991). ¶ 40 Here, we find no abuse of discretion by the trial court in sentencing defendant to concurrent terms of nine years' imprisonment, which fall within the statutory ranges. The record shows that in imposing the sentences, the trial court found that the facts of this case and the fact that defendant did not stop when ordered to do so by police were aggravating. ¶ 41 The record further shows, however, that contrary to defendant's claim, the trial court gave thorough consideration to all of his mitigating evidence. The court viewed defendant's family photographs and found that he had a good relationship with his family and daughter. The court expressly found that the letter and three certificates from the religious correspondence school showed that defendant had made efforts to turn his life around while in custody. The court specifically noted that in addition to the Bible study courses, defendant had studied for his GED until the jail transferred him to a different division through no fault of his own. The court explicitly stated that it found all of these factors mitigating. ¶ 42 The record therefore shows that the trial court properly based defendant's sentence on its consideration of the seriousness of the offenses, the factors in aggravation and mitigation, which included his potential for rehabilitation, criminal history and age, and the evidence presented at the sentencing hearing. The court then determined that the nine-year sentence was appropriate. ¶ 43 This court will not reweigh the sentencing factors or substitute our judgment for that of the trial court. Alexander, 239 Ill. 2d at 213. Based on the record before us, we cannot say that the sentence imposed by the court is excessive, manifestly disproportionate to the nature of the offense, or that it departs significantly from the intent and purpose of the law. Fern, 189 Ill. 2d at 56. ¶ 44 Finally, defendant contends, and the State agrees, that his fines and fees order must be amended. The parties agree that one fee must be vacated. They further agree that defendant is entitled to have $65 in presentencing monetary credit applied against two fees that have been previously held to be fines. ¶ 45 Defendant acknowledges that he did not preserve this issue for appeal because he did not challenge the assessments in the trial court. It is well settled that a defendant forfeits a sentencing issue that he fails to raise in the trial court through both a contemporaneous objection and a written postsentencing motion. People v. Hillier, 237 Ill. 2d 539, 544 (2010). He argues, however, that he may request the per diem monetary credit at any time and that his right to the credit cannot be forfeited. See People v. Woodard, 175 Ill. 2d 435, 444-48 (1997). In addition, he urges this court to review his request to vacate the one fee under the second prong of the plain error doctrine. The State does not argue against the forfeiture, but instead, addresses the merits of the issue and asserts that this court may correct the fines and fees order pursuant to Illinois Supreme Court Rule 615(b)(1) (eff. Aug. 27, 1999). ¶ 46 Defendant's request for the per diem monetary credit is not merely requesting credit that is due against his fines, but rather, is raising a substantive issue regarding whether the assessments labeled as fees are fines, and therefore, is subject to forfeiture. See People v. Brown, 2017 IL App (1st) 150203, ¶¶ 40-41. Defendant's challenges are not reviewable under the plain error doctrine. People v. Griffin, 2017 IL App (1st) 143800, ¶ 9. Nor can we reach the merits of his claims under Rule 615(b). People v. Grigorov, 2017 IL App (1st) 143274, ¶¶ 13-14. However, the rules of forfeiture and waiver also apply to the State, and where the State fails to argue that defendant has forfeited the issue, it waives the forfeiture. People v. Bridgeforth, 2017 IL App (1st) 143637, ¶ 46. Here, the State has not argued that the issue is forfeited, and thus, we address the merits of defendant's claims. ¶ 47 First, the parties agree, and we concur, that the $5 Electronic Citation Fee assessed pursuant to section 27.3e of the Clerks of Courts Act (705 ILCS 105/27.3e (West 2012)) must be vacated as that fee only applies to traffic, misdemeanor, municipal ordinance and conservation violations, and does not apply to defendant's felony offenses. We vacate the $5 Electronic Citation Fee and direct the clerk of the circuit court to amend the fines, fees and costs order accordingly. ¶ 48 Next, the parties agree that defendant is due full credit for the $15 State Police Operations Fee (705 ILCS 105/27.3a(1.5) (West 2012)) and the $50 Court System Fee (55 ILCS 5/5-1101(c) (West 2012)). Both parties point out that, although these two charges are labeled fees, this court previously held that they are fines because they do not compensate the State for expenses incurred in the prosecution of defendant, and thus, they are subject to offset by the monetary sentencing credit. People v. Wynn, 2013 IL App (2d) 120575, ¶¶ 13, 17. We direct the clerk of the circuit court to amend the fines, fees and costs order to reflect a $15 credit for the State Police Operations Fee and a $50 credit for the Court System Fee. ¶ 49 For these reasons, we vacate the $5 Electronic Citation Fee from the Fines, Fees and Costs order. We direct the clerk of the circuit court to further amend that order to reflect a credit of $65 to offset the $15 State Police Operations Fee and the $50 Court System Fee. Defendant's amended total assessment should be $319. We affirm defendant's convictions and sentences in all other respects. ¶ 50 Affirmed as modified; fines and fees order corrected.
Defendant does not challenge his armed habitual criminal conviction. --------