People v. Gill

• Decision Date: 10 May 1988
• Docket Number: No. 86-1144,86-1144
• Citation: 523 N.E.2d 1239,169 Ill.App.3d 1049
• Parties: , 120 Ill.Dec. 328 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John GILL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1239

523 N.E.2d 1239

169 Ill.App.3d 1049, 120 Ill.Dec. 328

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John GILL, Defendant-Appellant.

No. 86-1144.

Appellate Court of Illinois,

First District, Second Division.

May 10, 1988.

Paul P. Biebel, Jr., Public Defender of Cook County (Janet R. Stewart and James N. Perlman, Asst. Public Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. (Kenneth T. McCurry, Asst. State's Atty., and Sara Dillery Hynes, Sp. Asst. State's Atty., of counsel), for plaintiff-appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

A jury convicted defendant of armed robbery and attempted murder. (Ill.Rev.Stat.1985, ch. 38, pars. 8-4, 9-1, 18-2(a).) On appeal, we are asked to determine whether: the State proved him guilty beyond a reasonable doubt; a bullet found in his possession was improperly admitted into evidence; he was denied effective assistance of counsel; his sentence to life imprisonment was imposed pursuant to an unconstitutional statute; and his previous felony convictions were proved beyond a reasonable doubt.

At 10 p.m. on March 6, 1985, defendant approached the front counter of a fast food restaurant at Madison and Pulaski in Chicago and asked the cashier, Alice Campbell, for two pieces of chicken. As she reached for the cash he placed on the counter, defendant put his hand over it and told her to transfer money from the cash registers into a paper bag and not to alert the manager. He opened his black leather jacket to reveal a gun.

The restaurant manager, Greg Davis, saw Campbell emptying the registers and asked what she was doing, to which defendant replied, "I am sticking up the place." Defendant grabbed the bag of money from Campbell's hand and ran out of the restaurant, pursued by Davis.

Davis testified he chased defendant south on Pulaski until defendant stopped, turned and shot at him. As defendant proceeded west on Monroe, Davis flagged down a passing patrol car, and joined Officer Joseph Lombardi in the car. Lombardi and Davis drove a few blocks to Wilcox, where Davis saw defendant walking down the street and identified him for Lombardi.

Lombardi left his vehicle and exchanged fire with defendant. Defendant then ran into a gangway on the south side of Wilcox, followed by Lombardi; defendant and Lombardi again shot at each other in the gangway. At an alley between Wilcox and Adams, Lombardi stopped to reload his weapon and reported defendant's flight on his radio.

In response to a radio call, Officer Michael Mullen and his two partners drove their squad car into an alley between Adams and Jackson. Defendant "dashed" in front of the squad car and was attempting to shake off a black vinyl or "leather-like" jacket as he ran. All three officers left the car and gave chase, following defendant into the backyard of a building on Jackson. There, two of the officers shot at defendant as he turned on them in a crouched position. Defendant leaped a chain link fence surrounding the yard, proceeded south to Jackson, ran across the thoroughfare and into a gangway at 4037 W. Jackson. When Mullen entered the gangway, he found defendant pounding on its sealed, back door; defendant then lay face down on the ground. In an immediate search of the chase route, officers recovered a black leather jacket containing $80 in cash, but no gun. In defendant's pants' pocket, Mullen discovered a live, .357 caliber bullet and $56.

Defendant was arrested and charged with attempted murder, armed violence and armed robbery. Ill.Rev.Stat.1985, ch. 38, pars. 8-4, 9-1, 18-2(a), 33A-2.

At trial, the State presented the testimony of Campbell, Davis, a forensic chemist and officers involved in the incident. Defendant did not testify.

The jury returned a guilty verdict as first noted. Following a hearing determining his status as a habitual offender under the Habitual Criminal Act (Ill.Rev.Stat.1985, ch. 38, par. 33B-1, et seq.), defendant was sentenced to life imprisonment. He appeals.

I.

Defendant initially contends the State adduced insufficient evidence that he was armed during the events in question and therefore failed to prove him guilty of armed robbery and attempted murder beyond a reasonable doubt.

In particular, defendant observes that an armed robbery conviction requires a showing that defendant committed robbery while armed or carrying a dangerous weapon (Ill.Rev.Stat.1985, ch. 38, par. 18-2(a)) and that the indictment charged him with attempted murder in that he "attempted to kill [Davis and Lombardi] by shooting at [them] with a gun." Whether there was sufficient evidence to prove these charges was for the jury and its verdict will not be reversed unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to defendant's guilt remains. People v. Yates (1983), 98 Ill.2d 502, 518-19, 75 Ill.Dec. 188, 456 N.E.2d 1369, cert. denied (1984), 466 U.S. 981, 104 S.Ct. 2364, 80 L.Ed.2d 836; People v. Helton (1987), 153 Ill.App.3d 726, 734, 106 Ill.Dec. 600, 506 N.E.2d 307; People v. Calhoun (1987), 152 Ill.App.3d 206, 209, 105 Ill.Dec. 397, 504 N.E.2d 266.

Here, Campbell saw a gun handle protruding from an inside pocket of defendant's jacket in the restaurant. Davis swore defendant shot at him from a distance of five yards and that he saw the gun in defendant's hand as the shots were fired. Lombardi stated that he saw a gun in defendant's hand from ten feet away on Wilcox and fired at him twice and defendant shot two more times at him in a gangway from a distance of 20-25 feet. Mullen averred he found a bullet in defendant's pants pocket. The forensic chemist testified that defendant's right palm bore traces of gunshot residue. From the foregoing it is clear that the jury had more than substantial bases upon which to arrive at its guilty verdict beyond a reasonable doubt.

Defendant focuses, however, on inconsistencies in the evidence: Campbell admitted she saw only the handle of the gun, which she remembered as five inches long and "brown and beige" in color; Davis asserted the gun he saw in defendant's hand was silver; Lombardi described the barrel as "blue-steel." As to the number of shots exchanged with defendant, Lombardi admitted his firearms use report stated defendant fired at him three times in the gangway, although he asserted at trial that defendant fired there only twice. Davis stated he never saw the gun in the restaurant although Lombardi testified that Davis said he did. No gun was found in the search following defendant's arrest, although the black leather jacket was located.

Where evidence is conflicting, it is the prerogative of the jury to ascertain the truth; a reviewing court may not substitute a different conclusion on questions regarding the credibility of witnesses. ( People v. Yates, 98 Ill.2d at 524, 75 Ill.Dec. 188, 456 N.E.2d 1369; People v. Helton, 153 Ill.App.3d at 734, 106 Ill.Dec. 600, 506 N.E.2d 307.) The inconsistencies here are minor and render the evidence neither so improbable nor so unsatisfactory as to justify overturning that verdict.

II.

Defendant next insists the court erred in admitting the bullet retrieved from his pocket into evidence where the State failed to lay a proper foundation. Defendant notes that Mullen testified he found the bullet in a pocket of defendant's pants, but another detective stated that after defendant's arrest, other officers told him a bullet was found in a pocket of the black leather jacket.

The State responds that defendant waived this issue by failing to register timely objections to the evidence during and after trial. Defense counsel did move to exclude the bullet and objected to its admission into evidence; counsel's argument before the court, however, was limited to the prejudicial effect of introducing the bullet where the State failed to produce the weapon itself. Failure to object to a lack of foundation during trial and by post-trial motion waives the issue for consideration on appeal. People v. Lucas (1981), 88 Ill.2d 245, 250, 58 Ill.Dec. 840, 430 N.E.2d 1091; People v. Bollman (1987), 163 Ill.App.3d 621, 637, 114 Ill.Dec. 715, 516 N.E.2d 870.

Furthermore, if any error exists, it is harmless; the evidence of defendant's guilt is overwhelming, even without the incriminating inference raised by the presence of a bullet on defendant's person. People v. Johnson (1986), 148 Ill.App.3d 163, 170, 101 Ill.Dec. 492, 498 N.E.2d 816.

III.

Defendant also urges he was denied effective assistance of counsel when his attorney conceded, during closing argument, defendant's guilt of robbery.

An attorney provides ineffective assistance when: (1) counsel's representation falls below an objective standard of reasonableness; and (2) there is a reasonable probability that, absent the attorney's unprofessional errors, the results of the proceeding would be different. (Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674.) Underpinning this test is the fundamental concern of whether counsel's conduct so undermines the adversarial process that the trial cannot be relied upon as producing a just result. Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2063.

Defendant cites People v. Hattery (1985), 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513, cert. denied (1986), 478 U.S. 1013, 106 S.Ct. 3314, 92 L.Ed.2d 727, where defendant's attorney admitted, in opening and closing argument, defendant's guilt of the charge of murder, although defendant pleaded not guilty and maintained his innocence on the stand. The court reversed defendant's conviction for murder, finding that the prosecution's case eluded "meaningful adversarial testing" because the attorney's strategy prevented the question of defendant's guilt or innocence from being submitted to the trier of fact. Indicating that its holding was limited to the facts before it, the court ruled that an attorney may not concede...