People v. Grafton
| Decision Date | 08 February 2017 |
| Docket Number | No. 1-14-2566,1-14-2566 |
| Citation | 2017 IL App (1st) 14 -2566-U |
| Parties | PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEFFREY GRAFTON, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
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, Illinois, Criminal Division.
The Honorable Mauricio Araujo, Judge Presiding.
Held: The trial court's admission into evidence of a "video of a video of a video" of the shooting, did not violate the best evidence rule, where the testimony of the police officer who obtained the video established the prior existence of the presently unavailable original video, the authenticity of the officer's substitute video and the detective's diligence in attempting to procure the original video. Further, the trial court did not abuse its discretion in permitting the victim to identify the defendant from that surveillance video. Pursuant to People v. Thompson, 2016 IL 118667, the victim had contact with the defendant that the trier of fact did not posses and therefore his opinion would have proved helpful to the trial judge. The trial court's admission of a police officer's out-of-court identification of the defendant as the shooter while improper hearsay constituted harmless error in the light of overwhelming evidence of the defendant's guilt. The State proved the defendant guilty beyond a reasonable doubt, where three eyewitnesses identified the defendant as the shooter, and their testimony was corroborated by the surveillance video. Pursuant to People v. McFadden, 2016 IL 117424, the defendant's armed habitual criminal conviction can stand even though it is premised on the defendant's prior AUUW conviction, which is void ab initio pursuant to People v. Aguilar, 2013 IL 112116. The trial court's use of the defendant's prior armed robbery conviction to prove both of the predicate felonies necessary to find the defendant guilty as an armed habitual criminal was not an improper double enhancement. In addition, the defendant's attempt murder and armed habitual criminal convictions were not based upon the same physical act so as to violate the one-act, one-crime rule. The defendant failed to establish that he was denied his constitutional right to effective representation of trial counsel, where he failed to establish prejudice pursuant to Strickland v. Washington, 466 U.S. 668. The trial court properly sentenced the defendant to consecutive sentences for his attempt murder and armed habitual criminal convictions with no double enhancements.
¶ 1 Following a bench trial in the circuit court of Cook county, the defendant, Jeffrey Grafton, was found guilty of attempt first degree murder, aggravated battery with a firearm, armed habitual criminal and aggravated unlawful use of a weapon (hereinafter AUUW). For purposes of sentencing, the aggravated battery conviction was merged with the attempt first degree murder conviction and the AUUW conviction was merged with the armed habitual criminal conviction. Accordingly, the defendant was sentenced to consecutive terms of 45 years' and 20 years' imprisonment. On appeal, the defendant argues that: (1) he was denied a fair trial by the court's improper admission of (a) hearsay testimony and (b) impermissible lay opinion; (2) the State's introduction of a "video of a video of a video" replete with police voice-overs, violated the best-evidence rule; (3) the State failed to prove him guilty beyond a reasonable doubt; (4) the State failed to prove the requisite two applicable predicate felonies for the armed habitual criminal conviction without double enhancement; (5) his conviction for armed habitual criminal is unconstitutional where the predicate conviction for AUUW violates the second amendment; (6) he was denied his constitutional right to effective assistance of counsel where counsel failed to challenge inadmissible impeachment testimony and inconsistent statements; (7) his convictions for attempt first degree murder and armed habitual criminal violated the one-act one-crime rule; and (8) the imposition of consecutive sentences is reversible error because the trial court used thesame factor of "severe bodily injury" to enhance the sentence twice, and because it believed that consecutive sentencing was mandatory. For the reasons that follow, we affirm.
¶ 3 The record before us reveals the following facts and procedural history. In October 2012, the defendant was charged in a 14-count indictment with numerous crimes arising from the September 17, 2012, shooting of the victim, Donald Rogers. The State proceeded with only four counts, namely: (1) attempt first degree murder, for having proximately discharged a firearm that caused great bodily harm (Count 4); (2) armed habitual criminal (Count 10); (3) aggravated battery with a firearm (Count 8); and (4) AUUW (Count 14).
¶ 5 Prior to trial, the State filed a motion in limine pursuant to People v. Montgomery, 47 Ill. 2d 510 (1971), seeking permission to introduce three of the defendant's prior convictions for purposes of impeachment if the defendant chose to testify at trial. According to that motion, the State sought to introduce the following prior convictions: (1) a February 7, 2008, conviction for AUUW in which the defendant was sentenced to 42 months' imprisonment (case No. 07 CR 20784); (2) a November 5, 1999, armed robbery conviction for which the defendant was sentenced to 10 years' imprisonment, and from which he was discharged from mandatory supervised release on July 15, 2006 (case No. 98 CR 11866); and (3) two February 26, 1999, convictions for terrorism and possession of a controlled substance with intent to deliver in which the defendant was sentenced to 10 years' imprisonment on each count to be served consecutively to each other (case No. CR 130586), but concurrently, to the armed robbery sentence (case No. 98 CR 11866).
¶ 6 At the hearing on the State's motion, the trial court inquired if defense counsel had anyobjections. Defense counsel stated that he did not, so long as the three prior convictions comported with the 10-year limitation set forth in Montgomery, 47 Ill. 2d 510. The State then described the convictions it sought to introduce to the court in the following manner: (1) a ten-year sentence in 1999 for armed robbery; (2) two consecutive ten-year sentences (for a total of 20 years) in Iowa for terrorism and possession with intent to deliver a controlled substance, which were served concurrently with the 10 year Illinois armed robbery sentence; and (3) a 42-month sentence on February 7, 2008, for AUUW. The State argued that because the defendant had been "discharged from mandatory supervised release or parole in 2006" for his Illinois armed robbery sentence, which he was serving concurrently with the Iowa 20-year sentence, all three convictions (armed robbery, terrorism and possession of a controlled substance with intent to deliver) fell within the 10 year limit required under Montgomery. With respect to the prior AUUW conviction, the State argued that because the defendant had been "released from - sentenced on February 7th of 2008" the AUUW conviction also fell within the ten-year Montgomery rule.
¶ 7 Without objection from defense counsel, the trial court granted the State's motion in limine, permitting the State to use all three prior convictions for purposes of impeachment should the defendant choose to testify at trial.
¶ 9 On December 12, 2013, the parties proceeded with a bench trial at which the following evidence was adduced. The victim, Donald Rogers (hereinafter the victim), first testified that on September 17, 2012, at about 10 p.m., he went to the tire shop at 4339 West Madison Street to fix a flat tire on his wife's car. The victim testified that the car was a gold 2005 Chevy Impala. The victim knew Billy Davis (hereinafter Davis), who worked at the tire shop. When the victimarrived at the tire shop he parked the car in the back alley and went to get Davis. Although Davis usually repairs cars in the alley, this time he instructed the victim to move his car to the front of the shop. The victim obliged and parked the car, facing east, on Madison Street, right in front of the shop. Davis then began working on the front right tire, while the victim stood next to him on the sidewalk. At trial, the victim identified photographs of the car parked in front of the shop.
¶ 10 The victim next testified that while he was standing next to Davis he observed two individuals, whom he had never seen before, approaching them. One was a man on foot, and the other an individual who rode up on a bicycle. The victim made an in-court identification of the defendant as the pedestrian. According to the victim, the defendant walked up to the tire shop door and stood there with his right hand in his pocket. The individual on the bicycle approached the pedestrian and the two had a brief conversation.
¶ 11 After Davis had finished changing the tire, he proceeded to the tire shop, and the victim followed him across the sidewalk toward the shop. As the victim was about to walk by the defendant, the defendant pulled a black gun out of his right pocket, said "F**k this," aimed it at the victim's head and shot at him. The victim stated that he ducked and started running into the middle of the street, which was filled with traffic, but that the defendant chased after him. The victim felt shots penetrating his back and shoulder, and after that, the defendant striking him with the gun on the back of the head.
¶ 12 The victim saw a Chicago police car traveling eastbound on Madison Street, heard the defendant drop the gun and watched...
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