Opinion
No. 1-07-2657
April 8, 2010.
Appeal from the Circuit Court of Cook County, No. 03 CR 4317, Luciano Panici, Judge, presiding.
Following a jury trial, defendant Frank Williams was convicted of first degree murder and attempted armed robbery and was sentenced to concurrent terms of 60 years and 10 years in prison, respectively. On appeal, defendant challenges several evidentiary rulings of the trial court and also contends that his conviction should be reversed because the trial court failed to conduct a complete voir dire in violation of Illinois Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). Defendant further asserts, and the State agrees, that his conviction and sentence for attempted armed robbery should be vacated because it was the predicate felony for defendant's murder conviction on a felony murder theory. For the reasons stated herein, we affirm defendant's first degree murder conviction and sentence but vacate the attempted armed robbery conviction and sentence.
BACKGROUND
This appeal is from defendant's second trial for the January 27, 2003, murder of James Porter. Porter was shot in the head at close range at about 9:30 p.m. while sitting in his vehicle in a parking lot in Richton Park. The State's first attempt to prosecute defendant ended in a mistrial after the jury sent several questions to the trial judge and then indicated that it was deadlocked.
Defendant was charged with committing the murder together with Timothy Harris. Harris agreed to testify for the State in exchange for a 20-year sentence for attempted armed robbery. The evidence presented at the two trials was substantially similar; the following testimony was presented at the first trial.
Harris testified that he and defendant sold drugs for Marvin McFerrin and agreed to perform a robbery to pay off a drug debt owed to McFerrin. Defendant, Harris and McFerrin discussed a plan and chose an intended victim whom they knew sold marijuana and carried large amounts of cash. Defendant and Harris went to the intended victim's residence but abandoned that plan when the person refused to open the door.
Defendant and Harris then noticed Porter drive by. Harris told defendant that Porter sold drugs, and he and defendant targeted Porter as their robbery victim. A few days earlier, Harris, Terrence Brown and Delano Bowes, who is McFerrin's stepson, were in a car that was attacked by a group of people. Porter was present during that incident but did not participate. Harris admitted disliking Porter but denied that he wanted Porter to be killed.
Defendant and Harris followed Porter's car and parked six or seven spaces away from where Porter had parked. Defendant got out of the vehicle, ran toward Porter's car and returned. According to Harris, defendant said he shot Porter because Porter had been "reaching."
Defendant made an inculpatory statement, which was videotaped and which the State presented to the jury. In the statement, defendant said that on the night of the shooting, he wore a green coat and Harris wore black clothing. Defendant admitted pointing a gun at Porter and asking for money and valuables but said the gun fired accidentally as Porter attempted to drive away. After the shooting, he and Harris went to McFerrin's house and McFerrin told him to go to Chicago. A few hours later, McFerrin located defendant and told him Bowes and Harris had been arrested for the shooting and that defendant should tell police that Harris shot the victim and that Bowes was not involved.
The defense argued that the State failed to present any physical evidence connecting defendant to the crime. Defense counsel asserted that Harris fit the description of the gunman provided by defense witness Dirk Habecker and that Harris had a motive to shoot Porter in retaliation for the incident a few days before the shooting.
Habecker testified for the defense that when the shooting occurred, he was walking to his car in the parking lot and saw a person speaking to a man sitting in a car. Habecker said the person outside the car fired a gun and ran away. Habecker described the gunman as being about 6 feet tall, heavyset and wearing dark pants and a dark jacket. Habecker called police and spoke to an officer about 30 minutes after the shooting. Habecker was not shown a lineup or photo array by police and never identified anyone, including defendant, as the gunman.
Defendant testified that he sold drugs for McFerrin and incurred a debt for drugs he sold as well as those he personally consumed. Defendant said he confessed to the crime after speaking with McFerrin and did not know Porter had died; he thought he was confessing only to firing the weapon. In contrast to his videotaped statement, however, defendant testified that after the failed robbery attempt, he left Harris and did not participate in Porter's shooting. Defendant stated that he was 6 feet tall and that he weighed 135 or 140 pounds in 2003.
Defendant testified that he previously acted at McFerrin's direction so McFerrin would forgive a drug debt. Defendant stated that in 2001, about two years before the instant offense, McFerrin paid him to take responsibility for owning a gun that belonged to McFerrin so McFerrin could avoid a weapons charge, for which defendant served jail time.
Terrence Brown testified for the defense that he did not know defendant but was friendly with Harris and Bowes. Brown corroborated Harris's testimony about the prior incident and further stated that the day before the shooting, Harris showed him a gun, called him a "punk bitch" and told him that if Brown did not "take care of the business at Lioncrest," he (Harris) would. Porter lived in an area of Richton Park called Lioncrest. The trial court ruled that Brown's testimony was admissible only to impeach Harris's denial that he threatened Brown.
After the jury failed to return a verdict in the first trial, defendant's second trial took place in June 2007. Defense counsel again presented the theory that after Harris devised the robbery plan to obtain money to pay McFerrin, Harris shot Porter in retaliation for the earlier dispute.
ANALYSIS I. Compliance with Supreme Court Rule 431(b)
We first consider defendant's argument that his conviction must be reversed and this case remanded for a new trial because the trial court failed to fully comply with Rule 431(b). When defendant's second trial occurred in June 2007, the current version of Rule 431(b) was in effect, which states:
"The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry shall be made into the defendant's failure to testify when the defendant objects.
The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section." Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
Rule 431(b) codifies the Illinois Supreme Court's holding in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984), that four inquiries must be made of potential jurors in a criminal case that "`go[] to the heart of a particular bias or prejudice which would deprive [a] defendant of his right to a fair and impartial jury.'" Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064, quoting People v. Zehr, 110 Ill. App. 3d 458, 461, 442 N.E.2d 581, 584 (1982).
Before 2007, the rule began with the phrase "[i]f requested by the defendant." 177 Ill. 2d R. 431(b). While under the earlier version the Zehr admonitions only were posed to the venire if a defendant requested them, the 2007 rule requires the trial court to issue the admonitions and inquiries sua sponte. According to the committee comments to the 2007 rule:
"The new language is intended to ensure compliance with [ Zehr]. It seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror's willingness to follow the law." 177 Ill. 2d R. 431(b), Committee Comments, at lxxix.
During jury selection in defendant's second trial, the trial court informed the venire of the four Zehr principles. However, when the court questioned each panel of potential jurors about their understanding and acceptance of those ideals, the court omitted one principle by not asking the prospective jurors if they understood and accepted that a defendant is not required to offer any evidence on his or her own behalf.
The State asserts that the court's initial announcement of the four Zehr principles adequately informed the venire. The State argues that when the court asked potential jurors if they understood and accepted the defendant's right to testify, that admonition essentially accomplished the same purpose of asking if they understood that the defendant was not required to offer any evidence. This court has rejected the argument that substantial compliance with Rule 431(b) is sufficient and has consistently found that incomplete Zehr admonitions constitute error, though disagreement has arisen as to the effect of such error. See, e.g., People v. Magallanes, No. 1-07-2826 (December 23, 2009); People v. Arredondo, 394 Ill. App. 3d 944, 916 N.E.2d 1263 (2009); People v. Wilmington, 394 Ill. App. 3d 567, 915 N.E.2d 882 (2009); People v. Anderson, No. 1-07-1768 (March 29, 2010). Therefore, error occurred in this case when the trial court did not ask the venire members if they understood and accepted that defendant was not required to offer evidence.
The State relied on People v. Anderson, 389 Ill. App. 3d 1, 904 N.E.2d 1113 (1st Dist. 2009) in arguing that the trial court substantially complied with the rule, which was vacated by the Illinois Supreme Court ( People v. Anderson, 233 Ill. 2d 565, 914 N.E.2d 487 (2009)). Another division of the First District issued an opinion on March 29, 2010, reversing and remanding for a new trial because the trial court failed to comply with Rule 431(b).
The State next contends that any error was harmless given the evidence presented against defendant. However, issues raised on appeal are preserved for review by objecting during trial and filing a written posttrial motion raising the alleged error ( People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988)), and when a defendant does not object at trial to a subsequently claimed error, a plain error analysis is appropriate. See People v. Herron, 215 Ill. 2d 167, 181-82, 830 N.E.2d 467, 476 (2005) (plain error applies when defendant fails to object, while harmless error applies when a timely objection is made).
The plain error doctrine does not require the consideration of all forfeited errors but instead allows errors not previously challenged to be considered on appeal if either: (1) the evidence is closely balanced and the jury's guilty verdict may have resulted from the error; or (2) the error was so fundamental and of such magnitude that the defendant was denied a fair trial and the error must be remedied to preserve the integrity of the judicial process. People v. Hudson, 228 Ill. 2d 181, 191, 886 N.E.2d 964, 970 (2008); Herron, 215 Ill. 2d at 177, 830 N.E.2d at 474. The Fourth District of this court recently adopted a bright-line rule that the failure to comply with amended Rule 431(b) denies a defendant a substantial right and thus a fair trial. People v. Yusuf, No. 4-08-0034, slip op. at 13 (February 4, 2010). We decline to adopt such a rule. Although we agree that there are scenarios in which either prong of the plain error analysis may be satisfied, we believe this court must still consider each prong and affirm if neither prong is satisfied under the facts of an individual case.
We now consider whether the first prong has been satisfied. Here, the jury failed to reach a verdict in defendant's first trial. This appeal is taken from defendant's second trial, at which the State presented essentially the same testimony that was offered at the first proceeding. No physical evidence connected defendant to the shooting. Although defendant made an inculpatory statement regarding the crime, the defense asserted the confession was in response to McFerrin's threats. While we do not hold that review under the first prong of plain error is warranted in all cases in which a jury has been deadlocked and a second trial has followed (see, e.g., People v. Doyle, 328 Ill. App. 3d 1, 765 N.E.2d 85 (2002)), the evidence here is closely balanced so we will consider whether the first prong is satisfied despite defendant's forfeiture of the issue.
Under the first prong, we must consider whether the outcome of defendant's second trial may have been affected by the trial court's failure to ask potential jurors if they accepted and understood that the defense was not required to present any evidence. In a plain error analysis, a defendant bears the burden of persuasion as to whether the error was prejudicial to his case; if that burden is not met, the defendant's conviction will stand. Herron, 215 Ill. 2d at 182, 830 N.E.2d at 476. The defendant must establish that the error alone could have led to his conviction. Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479.
Defendant has not met this burden. He argues that the missing admonition affected the jury's verdict because the jury "would likely look more favorably on [the defense's] calling of witnesses if they knew Williams was under no duty to produce evidence." We disagree. Even if this were true, which we do not think it is, merely looking more favorably on the calling of witnesses does not translate into voting to acquit the defendant. The jury considered what the witnesses had to say, not merely whether or not any witnesses were called. We cannot conclude that the court's error in the Zehr admonition alone could have caused the jury to convict defendant.
We must now consider whether the second prong under the plain error analysis has been satisfied. In People v. Wilmington, 394 Ill. App. 3d 567, 915 N.E.2d 882 (2009), although the first prong did not apply because the evidence was not closely balanced, this court held that the second prong was satisfied where the trial court neglected to ask the venire about one of the four principles. In Wilmington, the omitted admonition involved the defendant's right not to testify, and the defendant in that case did not testify. We concluded in Wilmington that given those facts, the incomplete admonition regarding the defendant's right not to testify was so serious as to deny the defendant a fair trial under the second prong of plain error. Wilmington, 394 Ill. App. 3d at 575, 915 N.E.2d at 888.
The facts in Wilmington are distinguishable from the instant case. Here, the trial court failed to ask the prospective jurors if they understood and accepted that a defendant is not required to offer any evidence on his or her own behalf. However, defendant called witnesses and testified at trial; thus, defendant did offer evidence on his own behalf. This is analogous to a situation in which a trial court does not inform a defendant of his right to a jury trial but he has a jury trial and is convicted. If a defendant actually has a jury trial, he cannot then appeal an unfavorable verdict on the grounds that the trial court did not inform him that he had a right to a jury trial. Here, because defendant did testify at trial and offered evidence on his own behalf, the failure of the trial court to ask jurors whether they understood or accepted the principle that he was not required to offer evidence did not deprive defendant of a fair trial. While we said in Wilmington "that during voir dire, all four admonitions must be given and an opportunity to disagree with each of the four principles must be afforded the venire" ( Wilmington, 394 Ill. App. 3d at 576, 915 N.E.2d at 889), under the distinctive facts in this case, the failure of the trial court to do so did not deprive defendant of a fundamental right and this error did not affect the integrity of the judicial process.
II. Evidentiary Rulings A. Testimony Involving McFerrin's Statements
Defendant next contends that the trial judge should have permitted the defense to introduce out-of-court statements by McFerrin. The record establishes that McFerrin located defendant shortly after the shooting and said that Bowes was in trouble and defendant's drug debts would be forgiven if defendant got Bowes (McFerrin's relative) out of trouble. The court granted the State's motion in limine to bar the defense from introducing McFerrin's statements as substantive evidence of defendant's state of mind.
Statements made outside of court that are offered for their truth are hearsay and generally are inadmissible because their credibility is based on a declarant who is not present in court and cannot be cross-examined. People v. Dunmore, 389 Ill. App. 3d 1095, 1106, 906 N.E.2d 1233, 1244 (2009). Although defendant suggests that this issue can be reviewed de novo, with no deference to the trial court's ruling, we apply an abuse of discretion standard. See People v. Caffey, 205 Ill. 2d 52, 89-90, 792 N.E.2d 1163, 1188-89 (2001) (abuse of discretion standard applicable when trial court ruled in consideration of circumstances of particular case, including issues of reliability and prejudice). A trial court's ruling will be reversed under this standard if it is arbitrary, fanciful or unreasonable, meaning that no reasonable person would take the court's view. Caffey, 205 Ill. 2d at 89, 792 N.E.2d at 1188.
Defendant argues that McFerrin's statements were not offered for their truth but were relevant to his own state of mind and should have been admitted to explain why he confessed to the crime. Statements are not hearsay if they are offered for purposes other than for their truth; for example, a statement can be admissible to prove its effect on the listener's state of mind or to show why the listener acted as he or she did. See Dunmore, 389 Ill. App. 3d at 1106, 906 N.E.2d at 1244. The State responds that defendant sought to introduce the statements to prove Bowes shot the victim and that he confessed to the crime in response to McFerrin's threats and to erase his drug debt. We agree with the State that defense counsel sought to introduce McFerrin's statements for their truth, i.e., to show that McFerrin made promises to defendant if defendant agreed to confess to the crime to exculpate Bowes. The trial court correctly excluded McFerrin's statements as hearsay.
Although defendant argues that the jury should have been allowed to hear McFerrin's statements to better comprehend the circumstances of defendant's confession, the jury did hear, in defendant's inculpatory statement, that McFerrin told defendant to implicate Harris to remove suspicion from Bowes and defendant confessed to the crime because he was intimidated into doing so. Therefore, even without the introduction of McFerrin's hearsay statements, the jury heard the essential facts that defendant argues should have been presented, specifically that defendant confessed in response to a threat from McFerrin.
Defendant argues, however, that hearing his version of events was inferior to the introduction of McFerrin's actual statements. He relies on People v. Britz, 112 Ill. 2d 314, 493 N.E.2d 575 (1986), which we find distinguishable. Britz involved tape-recorded conversations between the 19-year-old defendant, who was convicted of murder, and a female youth services counselor to whom he confessed. Britz, 112 Ill. 2d at 316-17, 493 N.E.2d at 576. The appellate court held that the recordings of those conversations should be introduced to allow the jury to hear the counselor's provocative comments to the defendant because of the comments' relevance to the truth or falsity of the defendant's confession, even though the jury heard testimony of the counselor's attempt to influence the defendant. Britz, 112 Ill. 2d at 320, 493 N.E.2d at 577. The court concluded that the recordings were not hearsay because they were relevant for their effect on the defendant and not for the truth of the counselor's language. Britz, 112 Ill. 2d at 320, 493 N.E.2d at 576.
Here, McFerrin's statements lacked the same relevance to the truth of the defendant's confession that was found in Britz. Although defendant argues that McFerrin's statements were essential to his defense, the jury heard in his inculpatory statement that McFerrin pressured him to confess to the shooting. The trial court did not abuse its discretion in ruling that McFerrin's statements were hearsay and thus inadmissible.
B. Testimony Involving Brown and Harris
Defendant next contends that the trial court erred in limiting his use of Brown's testimony that Harris called him a "punk bitch" and said that he would "take care of business" in the neighborhood where Porter lived if Brown did not. The court permitted the defense to use that testimony only to cross-examine Harris to challenge his denial that he made those statements.
Defendant asserts that Brown's statements were the best evidence that Harris was angry with Porter before the shooting and should have been admitted to show that Harris had a motive to shoot Porter. He acknowledges this issue only could be considered as plain error because he failed to raise it in his posttrial motion. We first consider whether error occurred. See People v. Bannister, 232 Ill. 2d 52, 65, 902 N.E.2d 571, 581 (2008); People v. Brant, 394 Ill. App. 3d 663, 677, 916 N.E.2d 144, 155-56 (2009) (without error, there can be no plain error).
The parties agree that threats made against a victim of a crime by a person other than the defendant are inadmissible hearsay. See People v. Gray, 215 Ill. App. 3d 1039, 1051, 576 N.E.2d 177, 185 (1991). Such statements can be admitted, however, to prove something other than the truth of the matter asserted, such as to establish the declarant's motive. People v. Moss, 205 Ill. 2d 139, 159-60, 792 N.E.2d 1217, 1229 (2001).
Defendant contends that Harris's statements to Brown were admissible to show that Harris was angry with Porter and had a motive to kill him. The State responds that the statements to Brown were "too vague to be considered" as being directed against Porter, and even if the remarks were threats against Porter, they do not fall within the motive exception. We conclude that the remarks could be construed as threats against Porter, but we further agree with the State that the comments do not meet the criteria for admission under the "state of mind" exception to hearsay because for such statements to be admissible, the declarant must be unavailable to testify. See Caffey, 205 Ill. 2d at 91, 792 N.E.2d at 1189. Harris testified at defendant's trial. Furthermore, as the State points out, the excluded statements were cumulative of defense arguments that Harris sought revenge against Porter and had an "axe to grind." No error occurred when the trial court held that Brown's testimony could be used only to impeach Harris and not as substantive evidence, and thus, no plain error resulted.
III. Voir Dire on Defendant's Criminal History
Defendant next argues that the trial court abused its discretion in ruling that his attorney could not ask prospective jurors their beliefs about defendants who had criminal records. Before trial, the court ruled that it would allow the State to introduce evidence of defendant's prior criminal conviction for unlawful use of a weapon by a felon for impeachment purposes. The State asserted that the conviction had occurred within the past 10 years and that its probative value outweighed its prejudicial effect.
During voir dire, defense counsel asked a potential juror if the criminal history of a defendant would affect her ability to be fair, to which the juror replied, "I would be fair, but I believe that it plays a huge role." Several more venire members, when asked the same question, responded that they would be biased against defendant if they heard of his criminal history. At the next sidebar discussion, the court stated that it would deny defense counsel's requests to excuse potential jurors for cause based on those claims of bias. The trial court further ruled that it would not allow defense counsel to continue that line of questioning, noting that the jury would receive a limiting instruction on the admissibility of evidence of defendant's criminal history.
On appeal, defendant asserts that the responses of the first several potential jurors demonstrated that the trial court should have allowed defense counsel to continue that line of inquiry, rather than order defense counsel to stop asking the question. While acknowledging that a defendant's past convictions can be admitted only to impeach a testifying defendant based on the probative value of the conviction, defendant contends that the trial court should have permitted the questioning because jurors often disregard or overlook limiting instructions and incorrectly consider evidence of a defendant's criminal history as substantive evidence of guilt in the case before them.
Pursuant to Illinois Supreme Court Rule 234, which governs voir dire examination of jurors, "[q]uestions shall not directly or indirectly concern matters of law or instructions." 177 Ill. 2d R. 234; see also 177 Ill. 2d R. 431 (making Rule 234 applicable to criminal cases). The trial court is given broad discretion in deciding what questions should be asked in voir dire, and a reviewing court will not find the trial court abused that discretion "where the procedure followed by the court created reasonable assurance that any prejudice or bias would be discovered." People v. Brandon, 157 Ill. App. 3d 835, 840-41, 510 N.E.2d 1005, 1008-09 (1987). The trial court must exercise its discretion in a manner consistent with the purpose of voir dire. People v. Strain, 194 Ill. 2d 467, 476, 742 N.E.2d 315, 320 (2000).
Defendant essentially challenges the well-established rule in Illinois that prior convictions can be only used for impeachment. The central case on this issue is People v. Montgomery, 47 Ill. 2d 510, 514, 268 N.E.2d 695, 697 (1971), in which the Illinois Supreme Court determined that the admission of a robbery conviction that occurred 21 years before the instant crime was reversible error because the previous conviction did not relate to the defendant's present credibility. The supreme court indicated in Montgomery that in future cases, it would follow Federal Rule of Evidence 609 (Fed.R.Evid. 609), which permitted impeachment by prior convictions in certain circumstances. Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698.
Since then, Illinois courts consistently have applied the rule that emerged from Montgomery, which is that evidence of a witness's prior conviction is admissible to attack the credibility of that witness when: (1) the prior crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statements, regardless of punishment; (2) less than 10 years have elapsed since the date of conviction of the prior crime or release of the witness from confinement, whichever is later; and (3) the probative value of admitting the prior conviction outweighs the danger of unfair prejudice. See, e.g., People v. Patrick, 233 Ill. 2d 62, 68-69, 908 N.E.2d 1, 5 (2009); People v. Naylor, 229 Ill. 2d 584, 595-96, 893 N.E.2d 653, 661 (2008).
Although that holding has been superseded in part by a statute involving the admissibility of juvenile adjudications (see People v. McClendon, 146 Ill. App. 3d 1004, 497 N.E.2d 849 (1986)), the general test set out in Montgomery remains the rule in this state. See People v. Atkinson, 186 Ill. 2d 450, 458, 713 N.E.2d 532, 536 (1999) (noting consistent use of Montgomery analysis and rejecting a defendant's suggestion that "mere-fact" method of impeachment be adopted).
In Brandon, for instance, the trial court ruled that it would not ask the defense's tendered voir dire question of whether potential jurors would be prejudiced against the defendant because of his prior felony convictions, and this court concluded that such an inquiry "would have tended to unfairly tip the balance in favor of the defendant's case." Brandon, 157 Ill. App. 3d at 841, 510 N.E.2d at 1009. The court held that the trial court's limiting instruction informed the jury of the weight to be given evidence of a prior conviction. Brandon, 157 Ill. App. 3d at 842, 510 N.E.2d at 1009.
In the case at bar, defendant contends that his attorney should have been allowed to continue questioning potential jurors about how they would view his previous criminal conviction. While he admits that Illinois courts have not found voir dire questioning regarding a defendant's criminal history to be "an area of controversy," he nevertheless claims that the admission of prior convictions is comparable to evidence of gang affiliation or the use of an insanity defense, two topics on which specific voir dire inquiry has been allowed. We note, however, that previous attempts to extend the probative nature of questioning to more general categories have been unsuccessful. See People v. Kindelan, 150 Ill. App. 3d 818, 823, 502 N.E.2d 422, 425 (1986) (declining to extend People v. Stack, 112 Ill. 2d 301, 493 N.E.2d 339 (1986), in which questioning of venire members' opinions of insanity defense was allowed as probative of bias). Also, in Strain, which discussed the need for voir dire on gang-related biases, the supreme court noted that questioning during jury selection was necessary in part because the limiting instructions in that case did not address gang bias or prejudice. Strain, 194 Ill. 2d at 481, 742 N.E.2d at 323. Here, as previously discussed, the trial court noted the use of a limiting instruction on this evidence. In sum, the trial court did not abuse its discretion in ruling that defense counsel could not ask the views of potential jurors about defendant's criminal history.
IV. Sentence Enhancement
Defendant next contends that the trial court incorrectly applied to his murder sentence a 25-year enhancement for discharging a firearm that caused Porter's death. He asserts that because the State had withdrawn the counts related to defendant's use of a firearm using a nolle prosequi, the court lacked the authority to apply the sentencing enhancement.
Defendant was charged with committing first degree murder by killing Porter while attempting to commit armed robbery. The standard sentence for first degree murder is 20 to 60 years in prison. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004). Here, the court sentenced defendant to 60 years in prison for the murder conviction, noting that the minimum sentence was 45 years based on the jury's separate finding that defendant discharged a firearm causing death. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004) (20-year minimum sentence plus 25-year enhancement).
Defendant argues that the circuit court could not impose the 25-year enhancement after the State nolled the underlying counts alleging the discharge of a firearm and proceeded only on the felony murder count. At issue is whether the sentencing enhancement can be imposed in the absence of an additional count that alleges that a firearm was discharged.
The State responds that defendant failed to object to the application of the sentencing enhancement in the trial court and therefore has forfeited the ability to challenge it on appeal. Even had defendant properly preserved this issue, the nolled counts were not essential to the application of the firearm-related sentence enhancement. The language in the felony murder count alleged that defendant "shot and killed James Porter with a firearm." The jury found that during the commission of the offense, defendant personally discharged a firearm which proximately caused Porter's death. Therefore, the trial court correctly applied the enhanced sentencing range.
In defendant's reply brief, he focuses on a different statute that requires the State to charge any elements that increase the sentencing range. See 725 ILCS 5/111-3(c-5) (West 2002). Pursuant to Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)), points not argued in an initial brief are waived and cannot be raised in a reply brief for the first time. In any event, the record reveals that the jury made a separate finding of defendant's discharge of a firearm and signed a separate verdict form as to that finding. The jury's verdict therefore complied with that statute.
V. Attempted Armed Robbery Conviction
As to defendant's conviction for attempted armed robbery, the State concedes on appeal that the mittimus incorrectly reflected a conviction for first degree murder based upon knowing and intentional murder when defendant was charged under a felony murder theory. The State agrees that defendant's conviction for attempted armed robbery must be vacated because it represented the underlying felony, and thus a lesser included offense, in defendant's murder conviction on a felony murder theory. See People v. Smith, 183 Ill. 2d 425, 431-32, 701 N.E.2d 1097, 1100 (1998); People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977) (multiple convictions based on lesser included offenses are improper because defendant may not be convicted for more than one offense arising out of same physical act). Accordingly, defendant's attempted armed robbery conviction and its sentence are vacated.
CONCLUSION
In summary, although the incomplete admonitions to potential jurors constituted error, we conclude that the error alone could not have resulted in defendant's conviction, nor did it deny defendant a fair trial. As to the trial court's evidentiary rulings, the court did not abuse its discretion in barring McFerrin's statements and limiting the use of Brown's testimony about Harris's threats against the victim. Additionally, the court did not abuse its discretion in barring defense counsel's attempted voir dire questioning regarding defendant's criminal history. We further conclude that the 25-year sentencing enhancement for discharging a firearm can be imposed for defendant's felony murder conviction even in the absence of a separate count alleging that a weapon was discharged. Lastly, the defendant's conviction for attempted armed robbery and its 10-year sentence are vacated because that offense was the underlying felony to defendant's remaining conviction.
Affirmed in part and vacated in part.
O'MARA FROSSARD, P.J., concurs.
O'BRIEN, J., dissents.
I dissent from the learned majority's analysis and disposition.
In People v. Arredondo, 394 Ill. App. 3d 944 (2009), People v. Madrid, 395 Ill. App. 3d 38 (2009), People v. Graham, 393 Ill. App. 3d 268 (2009), and People v. Yusuf, No. 4-08-0034 (February 4, 2010), the appellate court held the trial court's failure to question the prospective jurors regarding their understanding and acceptance of all the Zehr principles, as required by the 2007 amended version of Rule 431(b), denied defendant a substantial right and obviated the need to inquire into the prejudice to defendant. Although there are appellate court opinions to the contrary (see People v. Magallanes, No. 1-07-2826, 921 N. E. 2d 388 (December 2009)), I believe Arredondo,Madrid, Graham and Yusuf are the better view considering the mandatory language of the rule.
I would reverse and remand for a new trial and, thus, respectfully dissent.