People v. Brown

• Decision Date: 12 March 1990
• Docket Number: No. 2-88-0563,2-88-0563
• Citation: 551 N.E.2d 1100,195 Ill.App.3d 78
• Court: United States Appellate Court of Illinois
• Parties: , 141 Ill.Dec. 757 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ezekiel BROWN, Defendant-Appellant.

Page 1100

551 N.E.2d 1100

195 Ill.App.3d 78, 141 Ill.Dec. 757

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ezekiel BROWN, Defendant-Appellant.

No. 2-88-0563.

Appellate Court of Illinois,

Second District.

March 12, 1990.

G. Joseph Weller, Deputy Defender, Daniel D. Yuhas, 4th Dist. Appellate Defender, Gloria A. Carroll (argued), Asst. Defender, Office of State Appellate Defender, Springfield, for Ezekiel Brown.

Fred L. Foreman, Lake County State's Atty., William L. Browers, Deputy Director, Robert J. Biderman, State's Attys. Appellate Prosecutors, 4th Dist., Rebecca White (argued), State's Attys. Appellate Service Com'n, Springfield, for People.

Presiding Justice UNVERZAGT delivered the opinion of the court:

The defendant, Ezekiel Brown, was tried in a bench trial in the circuit court of Lake County for the offenses of attempted first-degree murder, armed robbery, attempted armed robbery and seven counts of armed violence. (Ill.Rev.Stat.1987, ch. 38, pars. 8-4, 9-1(a)(1), 18-2(a), 33A-2.) The State agreed to dismiss three of the armed violence charges during trial, and the defendant was convicted of the remaining charges. The court later vacated three of the four armed-violence convictions and did not impose a sentence on the fourth armed-violence conviction. The defendant was sentenced to terms of imprisonment of 60 years for attempted first-degree murder, 30 years for armed robbery to be served consecutively to the attempted first-degree murder sentence, and 15 years for attempted armed robbery. All sentences were ordered "to run consecutive with sentence imposed in the State of Michigan."

The defendant raises these issues: (1) whether the court's sentencing order is improperly vague; (2) whether the 60-year extended-term sentence for attempted first-degree murder was an abuse of the court's sentencing discretion; (3) whether the "exceptionally brutal or heinous behavior indicative of wanton cruelty" aggravating factor in the extended-term sentencing statute is unconstitutionally vague under the eighth amendment; and (4) whether he is entitled to 192 days' credit for time spent in custody prior to sentencing.

At approximately 8:20 p.m. on November 30, 1987, the defendant and a female companion, Gloria Christian, were traveling through Highland Park, Illinois, en route to Wisconsin. While monitoring traffic, Highland Park police officer Bruce Montgomery observed the defendant's vehicle go through a red light. Montgomery activated his overhead lights, and, when the car pulled over, Montgomery observed two occupants. The driver, who was the defendant, made hand motions and appeared to bend down in his seat. As Montgomery began to get out of his vehicle, defendant pulled his car back onto the highway. Montgomery pursued the defendant's car, traveling between 80 and 90 miles per hour. When the defendant's car came to rest in the front yard of a residence, the defendant exited his car with a gun and turned toward Montgomery. Montgomery, about 25 feet away, saw the defendant "square off," pointing the gun directly at Montgomery. Montgomery slid down in his seat while maintaining sight of the defendant. Montgomery heard a shot, which struck his right front headlight. Two other shots followed, shattering the windshield and hitting the front of the car. Montgomery's car came to a stop about six inches from the defendant's car. Montgomery dove out his car door and fired three shots at the defendant. The defendant turned and ran toward the rear of the residence.

During the course of the gunfire, Montgomery felt something hit the right side of his face, causing him pain. Montgomery estimated the defendant fired five shots before fleeing to the rear of the residence. Montgomery ran past the defendant's car but did not see the passenger as he pursued the defendant. The occupants of the residence emerged, and Montgomery convinced them to go back inside. With only one bullet left, Montgomery ran back to his car for his shotgun. He also made some radio transmissions before continuing pursuit of the defendant. When Montgomery ran to the corner of the residence again, he saw the passenger, Gloria Christian, and he ordered her to the ground before taking her into custody. When Highland Park police sergeant Dahlberg arrived, he noticed blood on Montgomery's cheek, nose, and ears. Montgomery left the scene in an ambulance. Montgomery testified that he has a lead, tattoo-type of scar from a bullet fragment on his face.

Subsequent examination of Montgomery's squad car showed one bullet strike in the right side, one in the headlight area, one to the left of the center of the hood above the radiator grill, one above the grill on the lip of the hood, one in the center of the hood, one in the windshield, and another in the siren cone housing.

During the search which ensued for the defendant, it was learned that a female subject had been attacked in a subdivision located immediately south of the residence where the confrontation between the defendant and Montgomery had occurred. Later still, it was learned that a black male subject had been involved in an attempted armed robbery about one mile south of the subdivision where the woman had been attacked. The evidence showed the defendant was the perpetrator in both instances.

At about 10:15 p.m., the defendant was seen exiting a drainage ditch about 300 feet east of the area being searched. The defendant was shivering and his clothes tattered and ripped. He was transported by ambulance to Highland Park Hospital and was found to be suffering from hypothermia and a hand wound. His rights were read to him, and he acknowledged that he understood them. Defendant initially stated that he threw the weapon by a house but later stated that he threw it in the creek. He then made the statement that he did not care if he lived or died. Questioning was suspended until the defendant was taken to the police department.

At about 1 a.m., the defendant again was read his Miranda warnings, but he did not sign the waiver form due to the fact that his hand was bleeding. According to Sergeant Dahlberg's testimony, the defendant related that he had been coming from Grunding, Alabama, en route to Wisconsin in search of work since his Alabama parole officer was going to get a warrant for his arrest. Dahlberg related the defendant said he lost control of his car and came out shooting at the police officer, who was attempting to stop him. He stopped shooting because he had been shot in the hand. Dahlberg testified the defendant also related the circumstances of the subsequent incidents with the female in the subdivision and the attempted armed robbery.

The State and the defendant agreed to several stipulations. The first two were from doctors who, if called to testify, would state that Bruce Montgomery had been treated for a puncture wound in his right cheek. The third was a stipulation that, if called to testify, Gloria Christian would state, inter alia, that when she and the defendant saw a police car pull out after them on Route 41, the defendant said, "If we get pulled over, it's him or me." The defendant pulled a handgun from under his seat, tried to elude the officer, and crashed into a yard. The defendant jumped from the car and shot at the policeman first. After the defendant shot all his bullets, he ran away. Christian stated the defendant always kept a loaded gun under his seat. The defendant had told her that he would not be caught and that, "It'll be them or me." Finally, Christian stated the defendant would pull out his gun and rest it between his legs whenever he would pass a police car.

After the defendant's motions to suppress statements and to suppress identification were denied, the defendant testified. He stated he was driving on Route 41 on November 30, 1987, and that the snow was heavy. He ran a traffic light, and a policeman began to follow him with the lights on. Defendant stated he pulled over and waited but the officer never got out of his vehicle, so the defendant pulled out again. The defendant drove on, executing two right turns and pulling up into someone's yard. The defendant stated he then ran into some trees. The police officer, defendant said, shot at him as he began to run. The defendant stated he was on the run because his parole officer in Alabama had told him that he was going to lock him up for some traffic violations, and it would be best for him to leave the State. The defendant claimed that after the officer shot at him, he retaliated by shooting back. He began shooting and running until he ran out of bullets. The defendant said that he never intended to kill the policeman but was only shooting to hold him down in order to get away.

Following arguments, the trial court found that the defendant had been proved guilty of all the charges with the exception of the three armed violence charges which were dismissed by the State. The trial court later denied the defendant's motion for a new trial.

At sentencing, the State presented two witnesses in aggravation. The first witness, Officer Kenneth Laninger of the Michigan State Police, testified that the defendant was involved in an October 1980 incident similar to the instant offense. Laninger testified that after he had attempted to stop the defendant's car twice, and the defendant had stopped and fled both times, the defendant's car crashed into and became stuck in a pile of rubbish. The defendant jumped out and fired at Laninger and his partner, who returned the fire. The defendant's female passenger stated that defendant told her he would not be taken alive and would try to kill one officer. As a result of that incident, the defendant pleaded guilty to assault with intent to murder and was sentenced to 9 1/2 to 40 years' imprisonment.

The second witness in aggravation, Highland Park police officer George Highland, testified that he interviewed the defendant on December 12, 1987, at...