People v. Lake
| Decision Date | 16 June 1998 |
| Docket Number | No. 1-96-3749,1-96-3749 |
| Citation | 697 N.E.2d 1147,298 Ill.App.3d 50 |
| Parties | , 232 Ill.Dec. 217 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lemont LAKE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Linda Woloshin, Clare Wesolik Connolly, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.
MODIFIED UPON DENIAL OF REHEARING
Defendant Lemont Lake and codefendants Jermail Lake, Allen Duncan and Tineshea Lake were charged by indictment with two counts of first degree murder in the shooting death of Alvin Gilmore. After a jury trial, Lemont was found guilty and sentenced to 45 years' imprisonment.
On appeal Lemont contends that: (1) he was denied effective assistance of counsel because his attorney failed to submit an instruction defining the term "recklessness" along with the instructions for involuntary manslaughter to the jury and submitted the incorrect version of Illinois Pattern Jury Instructions, Criminal 2d No. 26.01Q (2d ed. Supp.1989); (2) reversible error occurred because the trial court failed to excuse a prospective juror who had a pending lawsuit and (3) the trial court abused its discretion in sentencing him to 45 years' imprisonment for first degree murder because the court considered in aggravation the fact that death occurred, which is inherent in the offense.
Events that began with a street encounter between two women and a slap ended on December 26, 1992, with a hail of bullets being fired at and into a building with the resultant death of Alvin Gilmore, who suffered a gunshot wound to the head.
On December 26, 1992, Lashundia Davis, while on her way to a store by her home, ran into Tineshea Lake, who was with two other women, Rashawn Jackson and Kimberly Manning. Tineshea had previously dated Lashundia's boyfriend, Orlando Potts. Rashawn approached Lashundia, said something to her and slapped her across the face. At this point, Tineshea said "let's get her." Lashundia then ran home and spoke to her sister and brother, who then accompanied her to Tineshea's home. At Tineshea's house, Lashundia offered to fight Tineshea but Tineshea refused and Lashundia went home. On her way home, Lashundia ran into her mother and her boyfriend, Orlando Potts. After they conversed, Orlando Potts went to Tineshea's house and broke windows in her house.
Ben Harden testified for the State pursuant to a plea agreement in which first degree murder charges against him were dropped and he received a sentence of 12 years' imprisonment for aggravated discharge of a firearm. According to Harden's testimony, he was in a car with Lemont Lake when Lemont stopped to make a phone call in response to a page he received on his pager. Harden testified that defendant appeared to be angry when he got back in the car and told Harden that "[t]hey was bogus." Defendant then drove to Allen Duncan's apartment on 55th and Union Streets. Once inside, defendant told Allen to "give me that," at which point Allen retrieved a black, 9 millimeter gun along with a loaded clip and handed it to defendant. Defendant put the loaded clip into the gun.
Defendant, Ben Harden and Allen Duncan left Allen's apartment where, soon thereafter, they saw Jermail Lake and Shon Scott. Defendant told Jermail and Shon, "They was bogus for doing that." Defendant, Allen Duncan and Ben Harden then drove to the Lake house at 39th and Prairie, where they met Jermail Lake and Shon Scott, who had driven separately. Rashawn Jackson was sweeping up the glass from the window that Orlando Potts had broken. Harden further testified that Tineshea told defendant that Orlando had broken the windows because she had called him "out [sic ] his name." Harden also testified that Tineshea told the group, which consisted of himself, defendant, Jermail Lake, Shon Scott, and Allen Duncan, that they should go to Orlando's house and "kick his ass," but that they should be careful because someone would be there. Defendant then pulled out the 9 millimeter gun and said, "don't worry about it."
Defendant, Jermail Lake, Ben Harden, Shon Scott and Allen Duncan left the apartment and walked northbound on Prairie to Lashundia's house. Lashundia lived at 3932 S. Prairie, which is a low-rise housing unit. When they reached a tree about 30 feet away from Orlando's apartment, defendant told the group to stop, pulled the gun out of his jacket and aimed it toward the apartment. As defendant fired the gun he said, "watch me light this place up." He fired 16 shots at the apartment. On cross-examination, Harden testified that he could see people in Orlando's apartment before defendant began shooting.
Defendant, Ben Harden and Allen Duncan ran to defendant's car and Allen drove them to defendant's house, where they drank and watched videos. Jermail Lake and Shon Scott arrived 5 to 10 minutes later. Jermail then made a phone call in which Ben heard him say, Approximately 15 minutes later, the police arrived and arrested everyone.
At trial, Lashundia Davis testified that, at about 6:30 p.m., shortly after Orlando had gone to Tineshea's home to break her windows, she was at home with her mother, siblings, Eric Watkins and her nieces and nephews, including Alvin Gilmore. Eric Watkins looked out the window and said something that caused Lashundia to look out the window. When Lashundia looked out the window she saw defendant, Rashawn Jackson, Kimberly Manning, Tineshea, Jermail Lake and Allen Duncan approaching her apartment from the courtyard directly across from her apartment. Lashundia claimed that the group was within 40 feet of her apartment at one time prior to shooting. Prior to the shooting, 14 year-old Alvin Gilmore was sitting at the kitchen table near a window. Testimony established that he died from a gunshot wound to his brain.
At the conclusion of simultaneous bench and jury trials, the trial court found all of the defendants guilty of first degree murder. Defendant was sentenced to 45 years' imprisonment. He now appeals.
We affirm.
Defendant contends that he was denied effective assistance of counsel because his trial counsel failed to tender a jury instruction defining "recklessness" and because trial counsel failed to tender the correct version of IPI Criminal 2d No. 26.01Q (Supp.1989).
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that: (1) the defense counsel's performance deviated from an objective standard of reasonableness; and (2) the defendant was substantially prejudiced by the alleged errors such that the verdict would be different. People v. Albanese, 104 Ill.2d 504, 526-27, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984), adopting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A court need not determine the performance prong of this Strickland test before analyzing whether defendant has suffered any prejudice. People v. Gaines, 105 Ill.2d 79, 92-93, 85 Ill.Dec. 269, 473 N.E.2d 868 (1984). In the instant case, we do not believe defendant was prejudiced by his counsel's errors.
Intentionally firing a weapon at an occupied building is an act that has a natural tendency to cause death or great bodily harm and is of such a character as to defeat any assertion of recklessness. People v. Washington, 257 Ill.App.3d 26, 35, 194 Ill.Dec. 854, 628 N.E.2d 351 (1993), citing People v. Cannon, 176 Ill.App.3d 49, 125 Ill.Dec. 626, 530 N.E.2d 1035 (1988). Here, the jury did not and could not have found defendant guilty of involuntary manslaughter because the evidence indicated that he fired a barrage of bullets at Lashundia's home, which was an occupied building. Defendant's conduct had the natural tendency to cause death or great bodily harm and was of such a character as to defeat any assertion of recklessness, the key element of involuntary manslaughter. People v. Washington, 257 Ill.App.3d at 35, 194 Ill.Dec. 854, 628 N.E.2d 351.
At trial, defense counsel tendered Illinois Pattern Jury Instructions, Criminal, No. 7.07 (2d ed.1981)(hereinafter IPI Criminal 2d), which is the definitional instruction on involuntary manslaughter and provides as follows:
"A person commits the offense of involuntary manslaughter when he intentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another."
The committee note following the instruction states that IPI Criminal 2d No. 5.01, defining "recklessness," is to be given with IPI Criminal 2d No. 7.07.
Defendant cites People v. Howard, 232 Ill.App.3d 386, 173 Ill.Dec. 729, 597 N.E.2d 703 (1992) (Cerda, J., dissenting), to support his argument that failure to tender the definition of "recklessness" requires reversal. In Howard, the defendant's conviction for murder was reversed because the defendant's trial counsel failed to tender an instruction defining "recklessness," an element of involuntary manslaughter, and referred to involuntary manslaughter as a "cop-out" if the jury was to return such a verdict. Howard, 232 Ill.App.3d at 392-93, 173 Ill.Dec. 729, 597 N.E.2d 703. This court concluded that the evidence presented against the defendant was closely balanced as there was only one witness to the stabbing that occurred between the defendant and his best friend and the stabbing appeared to be accidental. Howard, 232 Ill.App.3d at 392, 173 Ill.Dec. 729, 597 N.E.2d 703.
Howard is distinguishable because the evidence in the instant case was not closely balanced, whereas, in ...
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