People v. Smith

• Decision Date: 07 June 1991
• Docket Number: Nos. 2-89-0697,s. 2-89-0697
• Citation: 214 Ill.App.3d 327,158 Ill.Dec. 671,574 N.E.2d 784
• Parties: , 158 Ill.Dec. 671 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryan SMITH, Defendant-Appellant. & 2-89-0698.
• Court: United States Appellate Court of Illinois

Page 784

574 N.E.2d 784

214 Ill.App.3d 327, 158 Ill.Dec. 671

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryan SMITH, Defendant-Appellant.

Nos. 2-89-0697 & 2-89-0698.

Appellate Court of Illinois,

Second District.

June 7, 1991.

G. Joseph Weller, Deputy Defender, Robert C. Cooper, Office of the State Appellate Defender, Daniel D. Yuhas, District Appellate Defender, Springfield, for Bryan Smith.

Michael J. Waller, Lake County State's Atty., William L. Browers, Deputy Director, Robert J. Biderman, Rebecca L. White, Staff Atty., State's Attys. Appellate Prosecutor, for people.

Justice UNVERZAGT delivered the opinion of the court:

In this consolidated case, the defendant, Bryan Smith, appeals from 60- and 20-year sentences of imprisonment imposed on him after his plea of guilty to the offenses of felony murder and armed robbery. The court denied his motions for reconsideration of the sentences. Defendant appeals, contending his 60-year sentence for felony murder must be reduced because (a) the trial court failed to give appropriate weight to mitigating factors and his rehabilitative potential and (b) because it is unduly disparate from the sentence of his codefendant, Paul Eshom. He further contends a new sentencing hearing should be held because the murder and armed robbery sentences were improperly based on aggravating factors already inherent in the charged offenses.

The record shows the defendant and his codefendants, John Waldron and Paul Eshom, robbed a Speedway gas station and convenience mart on Milwaukee Avenue in an unincorporated area near Wheeling shortly after 6 a.m. on September 6, 1988. During the course of the robbery, Waldron shot and killed Thomas Goings, a store employee. Less than 24 hours later, Waldron and the defendant committed an armed robbery at a local bar and were apprehended shortly thereafter. Eshom was not involved in the bar robbery, and he turned himself in to the police for his part in the Speedway felony murder offense.

The defendant first met codefendant John Waldron at a bar in the Wheeling area about 8 to 10 days before the instant offenses. Waldron asked the defendant to act as his bodyguard while he made his rounds selling drugs. For his role as Waldron's bodyguard, the defendant was to receive $50 a day and free drinks and cocaine from Waldron. The defendant and Waldron spent their 8 to 10 days together drinking at various bars and either snorting or shooting up cocaine. The defendant stated he did not see Waldron sleep during that time, and reported that he himself only had about four hours' sleep on one occasion before the instant felony murder offense and about two hours' sleep after that.

During the evening of September 5 and the early morning hours of September 6, the defendant and Waldron were at the apartment shared by Dawn Milne and Paul Eshom. Eshom had known Waldron for about one year and had met the defendant once previously. Shortly before 6 a.m., Waldron awakened Eshom and asked him to give him and the defendant a ride to rob a gas station. Eshom agreed, and Dawn Milne gave Waldron and the defendant a hooded sweat shirt and a jacket. Eshom supplied Waldron with two loaded guns, a .22 caliber revolver and a .44 magnum revolver. Waldron gave the .22 caliber revolver to the defendant. Using his van, Eshom drove Waldron and the defendant to a Speedway gas station which, Waldron said, "look[ed] fine." Eshom gave the defendant a military camouflage-style hat, and the defendant and Waldron entered the gas station. Eshom remained in the van. Waldron and the defendant soon came running out of the station and the group drove away. Eshom heard Waldron say in the van that he shot the man in the station because the man hesitated. According to Michael Kremer, a witness at Waldron's trial, Waldron said that he shot the man because the man looked at him like he was a "scumbag."

The record reveals further that when Waldron and the defendant entered the gas station, the manager, Tom Hixon, and employee Thomas Goings were present. Another employee, Steve Fuessle, was back in the kitchen area of the station in the freezer. The three security video cameras were operating at the time the two men entered the station. The two men walked up to the area of the register where Thomas Goings was, and the man in the hooded sweat shirt (Waldron) lifted up a cocked .44 revolver, pointed it at Goings and told him that he wanted all the money. The store manager then saw Goings say something but could not make out what it was. Waldron then fired a shot at Goings at close range, and Goings fell back against the rear counter. Waldron motioned to Hixon with the gun and told him he wanted all the money. Hixon gave Waldron money from both registers, and Waldron and the defendant left.

Steve Fuessle said that when he heard a bang and muffled shouting sounds, he came out of the back area and saw two men holding guns on the station manager. Testimony conflicted as to whether the defendant had his gun out at that time or not. Station manager Hixon testified the defendant did not have his gun out until he saw Fuessle and, at that time, the defendant pointed his gun at Fuessle and told him to get down on the floor, which Fuessle did.

Eshom drove Waldron and the defendant back to his and Dawn Milne's apartment, where he divided the money into three piles. The defendant went to the bathroom, where he splashed some water on his face because he was "sweating, scared." The defendant received one of the piles of money.

Waldron wanted to have Dawn Milne buy food and make breakfast, but the defendant wanted all of them to leave to go to a friend's house in Rolling Meadows to have some cocaine and relax. They did that, and Paul and Dawn left from there about 45 minutes later. Waldron continued to use cocaine; the defendant went to sleep for several hours.

At about 5 or 6 p.m., the defendant and Waldron sought out a friend of the defendant's, Art Holtin, in order to secure some .44 caliber bullets. According to the defendant, Waldron wanted the chamber filled with live bullets in case the police caught up with them. They went to Holtin's house and got both .44 and .22 caliber bullets.

Several other stops later, the defendant and Waldron left the trailer of a friend of Waldron's and went to a bar called J.J. Twigs in Lake Zurich, which Waldron said he wanted to rob. According to witnesses at Waldron's death penalty hearing, the defendant entered the bar first at about 1 a.m. He asked for cigarettes and change and then "checked the place out." Waldron then entered, and he and the defendant exited the bar. About five minutes later, a bar employee, Robert Haupt, exited. He saw the two men against the wall, and Waldron pointed a gun at him, saying he wanted to see some identification. Waldron was pretending to be a drug enforcement agent. Waldron then told Haupt to get up against the wall. Waldron thumbed through Haupt's wallet, took $75 then threw it into the parking lot. Waldron then searched Haupt as a bar patron, Jessie Mayfield, and the bartender, James Arden, came out. After taking their wallets also, Waldron pointed his gun at the ground. It went off and flew out of his hand. The gun landed on the ground, and the defendant said, "If anyone would like to go for it, feel free." The defendant also had a gun.

Waldron then pretended to find drugs on Jessie Mayfield and proceeded to beat and kick him. According to bartender Arden, both men struck Mayfield with their feet and guns and then the defendant said that it was "enough." According to Haupt, the defendant intervened when Waldron began beating Mayfield and said: "Don't do anything to him, he's only a kid." Waldron then stopped beating Mayfield and began arguing with the defendant. Acting on an anonymous tip, the police were waiting at the trailer court when Waldron and the defendant returned from J.J. Twigs and arrested them.

The defendant's sentencing hearing was held June 30, 1989. The judge announced he had in his possession defendant's presentence investigation report, including a previous Cook County juvenile court social investigation of the defendant. He also had a three-page report from the Lighthouse Counseling Associates and a 21-page report from David Randall, a sentencing consultant. The judge took judicial notice of the trial and sentencing proceedings against John Waldron insofar as they were relevant to the defendant. The judge noted that there were some factors in the testimony at Waldron's trial which he would consider to be mitigating factors in sentencing the defendant, namely, that at least one witness said that the defendant did not have his gun out at the Speedway station until Steve Fuessle came out from the back room, and that the defendant appeared nervous throughout the robbery. The judge also stated he would consider as a mitigating circumstance that during the J.J. Twigs' robbery, the defendant got between Waldron and Jessie Mayfield and "seemed to be of an intent and mind to avoid people getting killed."

The presentence investigation report revealed that the defendant was 20 years old at the time of the offenses. He had juvenile adjudications for theft, attempted armed robbery and trespass, and adult convictions for battery, resisting a peace officer, aggravated battery, criminal damage to property, and criminal trespass to land.

The defendant's father drank heavily and severely physically abused the defendant from early on in the defendant's childhood. Defendant's father's recent stroke at age 43 caused his father to give up drinking and smoking and, allegedly, marijuana. The defendant's maternal uncles were reported to be heavy drinkers and his maternal grandfather is a recovering alcoholic. The defendant's great-grandmother reportedly was an alcoholic prior to her death by suicide.

After a particularly harsh beating by his father, the defendant was placed in a temporary foster home...