People v. Conley

• Decision Date: 07 June 1999
• Docket Number: No. 1-97-2740.,1-97-2740.
• Citation: 306 Ill. App.3d 1,713 N.E.2d 131,238 Ill.Dec. 885
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony CONLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

713 N.E.2d 131

306 Ill. App.3d 1

238 Ill.Dec. 885

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony CONLEY, Defendant-Appellant.

No. 1-97-2740.

Appellate Court of Illinois, First District, First Division.

June 7, 1999.

Winston & Strawn, Chicago (Calvin P. Sawyler, Edward G. Zaknoen, of counsel), for Appellant.

Cook County State's Attorney, Chicago (Renee Goldfarb, James E. Fitzgerald and William L. Toffenetti, of counsel), for Appellee.

Presiding Justice SHEILA M. O'BRIEN delivered the opinion of the court:

A jury found defendant, Anthony Conley, guilty of four counts of attempted murder, three counts of aggravated battery with a firearm, and one count of aggravated discharge of a firearm in connection with the shooting of Michael Floyd, Tridell Riley, James Jenkins and Derrick Johnson. The trial court sentenced defendant to a total of 60 years in prison. Defendant appeals, contending the trial court erred by (1) giving an improper issues instruction; (2) refusing to instruct the jury on the doctrine of transferred intent; (3) improperly limiting cross-examination of Derrick Johnson; (4) making an improper comment about defendant's claim of self-defense; (5) preventing defendant from testifying that Floyd had previously fired shots at defendant's mother's house; (6) preventing defendant from testifying that Floyd was a member of a gang; (7) failing to appoint a psychological expert to evaluate defendant's mental state; and (8) sentencing him to 60 years in prison. Defendant also claims that his trial counsel provided ineffective assistance and that the mandatory consecutive sentencing statute (730 ILCS 5/5-8-4(a) (West 1992)) under which the trial court sentenced him is unconstitutional. We affirm.

Testimony at trial established that, in November 1995, stereo equipment was stolen from Floyd's car. Floyd believed that defendant was responsible for the theft. On February 5, 1996, Floyd was at a stoplight when he saw defendant's car pass by. Floyd pulled in front of defendant's car, and the two got out to talk about the stereo equipment. Floyd became angry, picked up a crowbar, and smashed defendant's car windows. Floyd also hit defendant twice with the crowbar.

On April 3, 1996, Floyd picked up Riley, Jenkins and Johnson and then drove to defendant's mother's house. Defendant and his wife, who were in the house, saw Floyd get out and smash the windows of defendant's car, which was parked in front of the house. Defendant's wife ran out of the house and asked Floyd why he was breaking the car's windows. Floyd told her he would pay for the windows if defendant replaced his stereo. Floyd then drove to the McDonald's on 62nd and Western.

Meanwhile, defendant walked outside to look at his car. A man named Tom came over to him and said that he had seen what had happened. Defendant told Tom he was going to look for Floyd. Tom told defendant he should arm himself because one of Floyd's companions, Johnson, had a gun. Tom then gave defendant a black .38-caliber revolver. Defendant put the revolver in the front of his pants and asked a friend for a ride. As they were riding south on Western Avenue, defendant saw Floyd's car parked at the McDonald's.

Defendant entered the restaurant and saw Floyd and his three companions eating at a counter. Defendant walked over to Floyd and asked him to pay for the damage to his car. Defendant testified he heard Floyd say "pop that [expletive]"; Floyd testified that neither he nor any of the other three said those words. Defendant further testified that he saw Riley "flinch" toward his waist and that he saw Floyd drop his right hand down under the counter; Floyd testified none of them was carrying a gun at the McDonald's, nor did any of them reach toward their waists. Defendant testified he was fearful that Riley and Floyd were going to shoot him, so he pulled out the revolver Tom had given him and started shooting. Two shots hit Floyd in the chest and arm, two shots hit Jenkins in the back, and one shot hit Riley in the neck. Johnson was not hit. Defendant left the restaurant, returned the gun to Tom, shaved his head, and went home.

Harry Hill, an off-duty Chicago police officer, pulled into the McDonald's as defendant was coming out. Hill became suspicious because he saw defendant "fidgeting [and] putting something in his waist area." Hill entered the McDonald's and saw Floyd, Riley, and Jenkins lying wounded on the floor. Hill called for an ambulance and spoke with Johnson, who said he was going to contact the victims' relatives about the shooting. Hill testified that he did not see Johnson or any of the other three victims in possession of a gun.

Defendant was arrested around 10:30 p.m. that evening and placed in a lineup. Johnson and Officer Hill separately identified defendant.

Defendant made a statement to Assistant State's Attorney Marcy Giannis in which he admitted to the shooting. Defendant stated his motive for the shooting was to "get them back the same way they have been doing me." Defendant also admitted that while he was in the McDonald's, he never saw any of the victims with a gun, nor did they fire a gun while he shot at them.

The jury convicted defendant of four counts of attempted murder, three counts of aggravated battery with a firearm, and one count of aggravated discharge of a firearm. The trial court merged the firearm convictions into the attempted murder convictions and sentenced defendant to three consecutive 20-year terms of imprisonment for the attempted murders of Floyd, Riley, and Jenkins. The court sentenced defendant to a concurrent 15-year term for the attempted murder of Johnson, the one victim who escaped injury. Defendant filed this timely appeal.

First, defendant argues the trial court erred by giving the jury a single issues instruction for the charge of attempted murder. The instruction stated:

"To sustain the charge of attempt first degree murder, the State must prove the following propositions:

First: That the defendant performed an act which constituted a substantial step toward the killing of Michael Floyd or [Tridell] Riley or Derrick Johnson or James Jenkins; and

Second: That the defendant did so with the intent to kill Michael Floyd or [Tridell] Riley, or Derrick Johnson, or James Jenkins; and

Third: That the defendant was not justified in using the force which he used."

Defendant argues that the instruction improperly directed the jury to convict him on all four counts of attempted murder even if it found he had attempted to murder only one of the victims. In other words, defendant argues that by lumping all the counts together in a single instruction, the trial court was in effect telling the jury that it need not make a separate determination of guilt with respect to each victim.

Defendant waived this argument by failing to object to the instruction at trial. People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Even if the issue had not been waived, we would find no reversible error because, in addition to the issue instruction, the court also provided separate verdict forms for each victim, thereby making it clear that the jury should find defendant guilty or not guilty as to each victim separately. For the same reason, we reject defendant's related claim that the trial court erred by giving a single issues instruction for the charge of aggravated battery with a firearm.

People v. Wilkerson, 87 Ill.2d 151, 57 Ill.Dec. 628, 429 N.E.2d 526 (1981), cited by defendant, does not compel a different result. In Wilkerson, the trial court failed to give separate issues instructions for multiple defendants who advanced different defenses. Wilkerson, 87 Ill.2d at 158, 57 Ill.Dec. 628, 429 N.E.2d 526. The supreme court held that the result was a set of jury instructions so confusing that the jury's verdict could not stand. Wilkerson, 87 Ill.2d at 159, 57 Ill.Dec. 628, 429 N.E.2d 526. Wilkerson is factually inapposite to the present case, which involves a single defendant who argued he acted in self-defense. Unlike Wilkerson, separate issues instructions were not needed to alleviate any jury confusion caused by multiple defendants advancing different defenses.

Defendant responds that jury confusion is evident from its decision to convict him of the attempted murder of Derrick Johnson, even though Johnson testified that, after he heard shots at the McDonald's and dropped to the ground, defendant never fired at him. Defendant argues that his conviction of the attempted murder of Johnson shows that the jury "was confused by the improper instructions and reasoned that as long as he was guilty of one count, he was guilty on all counts."

We disagree. The jury heard defendant's statement to Assistant State's Attorney Giannis, in which he admitted to entering the McDonald's and seeing Johnson and the other three victims eating at a counter. Defendant admitted taking out his pistol and shooting "at all of them." Defendant kept shooting until he had expended all the bullets in his gun. He admitted seeing "the fourth guy" (i.e., Johnson) run away unhurt, but did not go after him because he had run out of ammunition. The jury could infer from this evidence that defendant had the specific intent to kill Johnson and had taken a substantial step toward doing so. See People v. Oaks, 169 Ill.2d 409, 457-58, 215 Ill.Dec. 188, 662 N.E.2d 1328 (1996) (when presented with a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). Thus, the verdict of guilty on the count based on the attempted murder of Johnson is not indicative of a confused jury or that the instructions were misleading.

Defendant attempts to liken this case to People v. Scott, 243 Ill.App.3d 167, 183 Ill. Dec. 750, 612 N.E.2d 7 (1993). I...