People v. Smith

• Decision Date: 19 April 2007
• Docket Number: No. 1-04-1946.,1-04-1946.
• Citation: 866 N.E.2d 1192
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leratio SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

866 N.E.2d 1192

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

No. 1-04-1946.

Appellate Court of Illinois, First District, Fourth Division.

April 19, 2007.

Michael J. Pelletier, Deputy Defender, Paul Rathburn, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, Cook County, James E. Fitzgerald, Michelle Katz, Whitney Bond, Assistant State's Attorneys, Chicago, for Appellee.

Justice MURPHYdelivered the opinion of the court:

On October 23, 2003, after a jury trial, defendant, Leratio Smith, was found guilty of first-degree murder, armed robbery, and attempted armed robbery.He was sentenced to 60 years' imprisonment for murder, a concurrent term of 20 years for armed robbery, and a consecutive term of 8 years for attempted armed robbery.On appeal, defendant argues that the convictions must be reversed because the trial court abused its discretion when it denied his request for a separate jury verdict form for felony murder.For the reasons that follow, we modify defendant's attempted armed robbery sentence to run concurrently with his other sentences.

I.BACKGROUND

An indictment charged defendant with four counts of first-degree murder of Tony Colon(intentional murder, knowing murder, and two counts of felony murder predicated on armed robbery and attempted armed robbery), armed robbery of Chris Callas, and attempted armed robbery of Tony Colon.

The State presented evidence at trial showing that on December 4, 1998, at 11:45 p.m., Tony Colon was standing outside Pete's Sidelines Bar talking on his cellular phone when defendant grabbed Colon around the neck, pointed his gun at him, and brought him into the bar.Defendant told everyone to get on the floor and told the bartender, Chris Callas, to open the register.Defendant struggled with Colon and attempted to grab his cellular phone, and the phone fell to the floor.Colon said that defendant was holding a BB gun, not a real gun.Defendant said that he would show him it was a real gun and shot Colon in the chest.Defendant proceeded to take the money off the bar and left.

An off-duty police officer was crossing the street toward Pete's Sidelines when he heard a loud pop.He saw defendant walk quickly out of the bar while placing a dark object in his waistband and get into the driver's side of a dark, older-model Buick.He followed defendant and noted the car's make, model, and license plate number.He also saw that there was someone sitting in the front passenger side of the car.However, he soon lost sight of the car.

Michelle Boyd, who was defendant's girlfriend, testified that defendant and Charles Taylor left Boyd's sister's apartment at 9 p.m. on December 4, 1998, and returned after midnight.When they returned, Boyd asked defendant where he had been, and he replied that he did not mean to shoot that man.Defendant told her he went to a club armed with a gun and pushed a man talking on a cellular phone into the lounge.He told everyone to get on the floor and to put their money on the counter.She testified that defendant further told her that a man grabbed him from behind, so defendant hit him over the head with a gun.Defendant said that the man thought it was a BB gun.Defendant shot the man, then he ran out of the bar.Defendant handed Boyd $700 which he said he had gotten from the bar, and then took the money back.Boyd testified that when she and defendant returned to their own apartment, defendant hid the money and gun.In the morning, defendant's brother told him that his license plates were on television.Defendant told Boyd he was sorry and asked her to go to his mother's house with him.There, he called the police and reported his license plates stolen.

The police arrested defendant when they responded to his report of stolen license plates.A police detective testified that defendant, after learning that he was positively identified in a lineup, confessed to the robbery and shooting.Defendant also gave an inculpatory court-reported statement to an assistant State's Attorney.In this statement, he admitted that he intended to rob someone with a gun to make money to buy Christmas presents.He further stated that Colon charged defendant during the robbery and that he shot Colon when he started to charge at him again.

In his defense, defendant testified that on December 4, 1998, he and Taylor left in defendant's car to look for Taylor's girlfriend.Taylor stopped the car and walked across the street, where he approached a man standing outside.When Taylor put his hand on the man's neck, defendant assumed that the man was a friend of Taylor's.The two went inside a bar, and after a minute or two, defendant heard a gunshot.Taylor left the bar while placing a gun under his shirt and entered the car on the driver's side.Defendant asked Taylor what was going on, and he responded that he had a fight with someone in the bar and shot him.Defendant told Taylor to get out of his car and to get rid of the gun.Taylor pulled over and told him he would meet him later.Defendant proceeded to his girlfriend's sister's house, where Taylor later arrived.Taylor gave defendant money, which defendant gave to his girlfriend.

Defendant testified that after his arrest, the police hit him, put a gun to his head, and threatened to have his child taken away in order to coerce his confession.

At an informal instructions conference, defendant requested that the trial court give the jury a separate verdict form for felony murder.The trial court stated, "He is charged with first degree murder based upon armed robbery, first degree murder based upon attempted armed robbery, first degree murder based on knowing and intentional, so if you want different verdict forms, you will get all of them, unless the State is nolle-ing [sic] some of the charges.We are not going to separate out some of them and have * * * confusion for the jury.You can think about it."The court proceeded to say that the State should "have it prepared correctly, based on what the IPI says."The State responded that it might proceed on only felony murder.

At the formal instructions conference, defense counsel again asked that the murder verdicts be individualized so that the jury could make specific findings as to each one.He cited the importance of knowing what charge the jury finds defendant guilty of because of the different consequences flowing from different verdicts.The State responded that giving separate verdict forms would set a "bad precedent" because of the possibility of inconsistent verdicts.The trial court denied defendant's request.The jury was therefore given general verdict forms (one guilty and one not guilty) for first-degree murder, armed robbery, and attempted armed robbery.

The jury found defendant guilty of first-degree murder of Colon, armed robbery of Callas, and attempted armed robbery of Colon.The trial court denied defendant's motion for new trial, which included the argument that his request for a separate verdict form for felony murder was erroneously denied.

Defendant chose to be sentenced under the sentencing statute in effect when the crime was committed rather than under the version in place at the time of sentencing.In 1998, section 5-8-4(a) of the Unified Code of Corrections provided that when multiple sentences are imposed on a defendant at the same time, a court shall not impose consecutive sentences for offenses that were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless one of the offenses was a Class X or Class 1 felony and the defendant inflicted severe bodily injury during the commission of that felony.People v. Whitney,188 Ill.2d 91, 98-99, 241 Ill.Dec. 770, 720 N.E.2d 225(1999);730 ILCS 5/5-8-4(a)(West 1996).The trial court found that the offenses were committed as part of a single course of conduct.It also found that the attempted armed robbery charge was mandatorily consecutive because there was severe bodily injury to Colon, the victim in the attempted armed robbery case.Accordingly, the court sentenced defendant to 60 years' imprisonment for the murder, a concurrent term of 20 years for armed robbery, and a consecutive term of 8 years for attempted armed robbery.

The trial court denied defendant's motion to reconsider his sentence, and this appeal followed.

II.ANALYSIS

Defendant's sole contention on appeal is that the trial court abused its discretion when it denied his request for a separate jury verdict form for felony murder.Defendant argues that if the jury had returned a verdict of guilty for the count of felony murder based on the attempted armed robbery of Colon, he would not have received a consecutive eight-year sentence because the offense underlying the felony murder charge would not have supported a separate conviction and sentence under People v. Coady,156 Ill.2d 531, 537, 190 Ill.Dec. 768, 622 N.E.2d 798(1993).Neither party cites a case where a defendant sought a separate verdict form for felony murder but was denied such a request.Defendant analogizes these circumstances to the denial of an instruction for lesser-included offenses, while the State cites cases that are distinguishable.This is an issue of first impression.

A jury instruction is to "convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it."People v. Harris,225 Ill.2d 1, 43-44, 310 Ill.Dec. 351, 866 N.E.2d 162(2007).Further, Supreme Court Rule 451(a) provides that whenever the pattern jury instructions 4th contain an instruction applicable in a criminal case and the court determines that the jury should be instructed on the subject, the pattern instruction shall be used, unless the court determines that it does not accurately state the law.210 Ill.2d 451(a);...