People v. Mimes

• Decision Date: 20 June 2014
• Docket Number: No. 1–08–2747.,1–08–2747.
• Citation: 13 N.E.3d 222
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Martell MIMES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

13 N.E.3d 222

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Martell MIMES, Defendant–Appellant.

No. 1–08–2747.

Appellate Court of Illinois, First District, Sixth Division.

June 20, 2014.

Michael J. Pelletier, Alan D. Goldberg, Aliza R. Kaliski, and Todd T. McHenry, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, Robin Murphy, and Michelle Katz, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice LAMPKIN

delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Martell Mimes was convicted of attempted first degree murder, aggravated battery with a firearm, and two counts of aggravated unlawful use of a weapon (AUUW). He was sentenced to concurrent terms of 45 years in prison for attempted murder, 10 years for aggravated battery with a firearm, and 3 years for AUUW.

¶ 2 On appeal, he contends: (1) the trial judge improperly assumed the role of prosecutor; (2) the trial court improperly increased defendant's sentence for attempted murder where the State did not charge the sentence enhancing facts in the indictment; (3) defendant's sentence for attempted murder was excessive; (4) his convictions for aggravated battery with a firearm and two counts of AUUW violated the one-act, one-crime rule; (5) his convictions under the AUUW statute should be vacated because the criminalization of carrying a firearm on one's person in public violates the constitutional guarantees of the right to bear arms; and (6) the trial court erroneously imposed various fines, fees and costs against him. After this court filed its opinion in this case (People v. Mimes , 2011 IL App (1st) 082747, 352 Ill.Dec. 119, 953 N.E.2d 55

), the Illinois Supreme Court issued a supervisory order instructing us to vacate our judgment and reconsider our prior decision in light of People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. People v. Mimes , 378 Ill.Dec. 742, 4 N.E.3d 1114 (2014) (supervisory order).

¶ 3 For the reasons that follow, we hold that (1) the trial judge did not improperly assume the role of prosecutor by considering other-crimes evidence against defendant for the limited purpose of identification; (2) defendant received sufficient notice prior to trial of alleged facts that increased the penalty range of his attempted murder conviction where he was not prejudiced in the preparation of his defense; (3) the trial court's 45–year sentence for attempted first degree murder was not an abuse of discretion; (4) defendant's convictions for attempted first degree murder and one count of AUUW did not violate the one-act, one-crime rule, but this rule was violated by his convictions for aggravated battery with a firearm and a second count of AUUW; (5) defendant's conviction for carrying an uncased, loaded and accessible firearm on a public city street is reversed because the relevant provisions of Illinois's AUUW statute violated the constitutional protection of the right to bear arms; and (6) the trial court properly assessed defendant with the $50 court system fee, but the other challenged fees or fines are vacated or offset by his time spent in custody.

¶ 4 I. BACKGROUND

¶ 5 Defendant was arrested and charged with the November 8, 2005 attempted first degree murder and aggravated battery with a firearm of the 17–year–old victim, Lenard Richardson. Defendant was also charged with eight counts of AUUW based on allegations that he was carrying an uncased, loaded and accessible firearm in public and did not have a firearm owner's identification (FOID) card, was under 21 years of age, and was involved in street gang activity.

¶ 6 At the bench trial in August 2008, the testimony of Richardson and his older brother, Leonard Cole, established that Richardson was selling heroin in a Chicago public housing building on the evening in question when he was robbed by defendant and three other offenders. Defendant brandished a silver pistol, took Richardson's bundle of narcotics and about $200, and hit Richardson in his jaw with the pistol. Richardson then telephoned Cole, who drove to the scene with another friend. When Cole arrived at the scene, he told Richardson to wait in the car and he (Cole) would “handle it.” Cole and his friend walked across the street to a second public housing building and spoke with Lavane Tanksley. After a minute, Richardson lost sight of Cole, got out of the car, and went inside the second building.

¶ 7 Richardson went upstairs, looked out a window and saw Cole talking to Tanksley. Richardson then went downstairs to the lobby. As he was by the door and about to exit the building, he saw defendant, who was outside and about three feet away. Defendant walked toward Richardson and was carrying a silver pistol. Defendant started shooting as he walked up the steps to enter the building, and continued shooting as he walked into the lobby, passed Richardson and ran up a staircase. When Richardson heard the initial gunshots, he dropped to the ground and heard more gunshots fired. Only Richardson and defendant were in the lobby. Richardson did not have a gun. Richardson sustained two gunshot wounds

fired into his back. Cole also heard the gunshots, dropped to the ground and then saw that someone was lying inside the lobby with his feet sticking out the door. Cole went into the lobby and saw that the victim was Richardson. No one else was in the lobby. Cole remained with Richardson until the police arrived.

¶ 8 Richardson was taken to the hospital and briefly interviewed by the police. Although Richardson initially denied selling drugs at the scene, he subsequently told the police about the events leading up to the shooting, gave a description of the shooter, and said he thought the shooter used a gun that belonged to Tanksley. The police spoke with Tanksley and obtained defendant's name. One day after the shooting, Richardson identified defendant as the shooter from a photo array. As a result of the shooting, Richardson suffered a spinal cord injury

and was paralyzed from the waist down. Thereafter, he was confined to a wheelchair and had to wear a colostomy bag and diaper. Furthermore both his legs were subsequently amputated.

¶ 9 The State's evidence established that police recovered at the scene three shell casings and a full cartridge outside the building on the steps leading up to the lobby door. Inside the lobby, the police recovered five more shell casings and several pieces of metal from expended bullets. All eight shell casings were fired from the same gun.

¶ 10 Later, defendant was arrested and advised of his Miranda rights. According to the testimony of Chicago police detective Chris Matias, defendant initially told the police that he was inside his sister's apartment the entire day when the offense occurred. Later, however, defendant told the police that he used Tanksley's gun to shoot Richardson because he thought Richardson was reaching for a handgun. After the shooting, defendant ran upstairs to his sister's apartment. Furthermore, defendant told the police that he never saw a gun in Richardson's hands. Defendant did not testify at the bench trial.

¶ 11 After closing arguments, the trial judge stated that he considered the other-crimes evidence, i.e., the testimony that defendant robbed Richardson at gunpoint and struck him with the gun, only for the purpose of identification. The trial court concluded that any prejudicial effect was outweighed by the probative value of that evidence, which was relevant to show Richardson's prior opportunity to observe defendant and then identify him later as the shooter. The trial court stated that Richardson was a credible witness and the physical evidence corroborated his version of the events. The trial court also stated that Detective Matias's testimony concerning defendant's inculpatory admissions to the shooting was credible.

¶ 12 The trial court found defendant guilty of attempted first degree murder, aggravated battery with a firearm, and two counts of AUUW. Specifically, defendant's AUUW convictions were based on findings that he (1) knowingly carried on his person an uncased, loaded and accessible firearm while not on his own land or in his own abode or fixed place of business (720 ILCS 5/24–1.6(a)(1)

, (a)(3)(A) (West 2004)), and (2) possessed an uncased, loaded and accessible firearm upon public land (720 ILCS 5/24–1.6(a)(2), (a)(3)(A) (West 2004)). The trial court found defendant not guilty on six other counts of AUUW because the State failed to prove he was involved in gang-related activity, did not have a FOID card or was under 21 years of age.

¶ 13 At the sentencing hearing, the parties stipulated that two Chicago police officers would testify that they arrested defendant in September 2005 in the hallway of a building where he did not live for being in possession of 23 small clear plastic bags containing crack cocaine. Moreover, the State presented Richardson's victim impact statement and informed the court that defendant was out on bond for the 2005 possession of a controlled substance case when he shot and severely injured Richardson. Furthermore, defendant had a prior juvenile adjudication of guilt for burglary but no prior adult convictions.

¶ 14 For the offense of attempted first degree murder, the trial court imposed a 20–year sentence plus the minimum mandatory addition of 25 years for a cumulative 45–year sentence based on the finding that defendant was the shooter in the case and caused great bodily harm to the victim. Defendant also received concurrent sentences of 10 years for aggravated battery with a firearm, and three years each for two counts of AUUW. The trial court also assessed $840 for various costs, fees and fines. Defendant timely appealed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant contends: (1) the trial court improperly assumed the role of prosecutor when it sua sponte considered...