People v. Wilson

• Decision Date: 03 March 1999
• Docket Number: No. 1-96-3655,1-96-3655
• Citation: 237 Ill.Dec. 778,303 Ill.App.3d 1035,710 N.E.2d 408
• Parties: , 237 Ill.Dec. 778 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leroy WILSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 408

710 N.E.2d 408

303 Ill.App.3d 1035, 237 Ill.Dec. 778

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leroy WILSON, Defendant-Appellant.

No. 1-96-3655.

Appellate Court of Illinois First District, Third Division.

March 3, 1999.

Rehearing Denied April 12, 1999.

As Modified on Denial of Rehearing

April 14, 1999.

Office of the State Appellate Defender, Chicago (Ann C. McCallister, of counsel), for Appellant.

Richard A. Devine, State's Attorney, Chicago (Renee Goldfarb: James Beligratis; Bronwyn P. Sears, of counsel), for Appellee.

MODIFIED ON DENIAL OF REHEARING

Justice CERDA delivered the opinion of the court:

Following a jury trial in September 1996, defendant, Leroy Wilson, was convicted of first degree murder (720 ILCS 5/9-1 (West 1994)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(3) (West 1994)), and received an extended-term of 80 years' imprisonment and a concurrent term of 30 years' imprisonment, respectively. Defendant appeals, arguing (1) he was deprived of the right to a trial by an impartial jury; (2) he was denied the right to effective assistance of trial counsel; (3) his extended-term sentence for murder was an abuse of discretion; and (4) the legislation enacting the truth-in-sentencing law is unconstitutional. For the following reasons, we affirm defendant's convictions, but reduce and modify his sentence for murder.

I. BACKGROUND

During voir dire, the trial court initially addressed the prospective jurors as a group, which included Daniel Walter. The court asked the venire, inter alia, whether they would be unable or unwilling to follow the law as they were instructed. No veniremember responded affirmatively. The court then explained that defendant was presumed innocent and that the State had the burden of proving his guilt for the charged offenses beyond a reasonable doubt. The court additionally explained defendant was not required to prove "anything" in his own behalf.

During individual examination, the court noted Walter previously served as a juror in an unrelated civil trial. The court asked Walter if he could set aside any information he learned in that case, and Walter stated he could. Walter further assured the court he would decide defendant's case based upon the evidence and law presented.

When asked by the court if any member of his family or a friend was either a law enforcement official, a lawyer, or a judge, Walter indicated he had three friends who serve as police officers. Walter acknowledged he occasionally discussed with the officers the cases in which they were involved. The court asked Walter if "there [was] anything about [those relationships] that would affect [his] ability to be fair and impartial in [defendant's] case." Walter stated "yes." Walter did not explain his response, and the court did not ask additional questions.

Walter also indicated his brother-in-law is an attorney for the Fraternal Order of Police. The court asked Walter if "there [was] anything about [that relationship] that would affect [his] ability to give both sides a fair trial in [defendant's] case," and Walter responded "yes." Walter did not explain his answer, and the court did not inquire further.

Walter lastly noted he was acquainted with a circuit court judge. When questioned about this relationship, Walter assured the court it would not affect his impartiality. The court concluded by asking Walter if "there [was] anything that [it had] not touched upon that would affect [his] ability to give both sides a fair trial." Walter answered "no".

The record shows defense counsel neither questioned Walter himself nor asked the trial court to conduct further voir dire. Without objection, Walter was sworn as a juror, and ultimately served as jury foreperson at defendant's trial.

At trial, the State's evidence established that on February 7, 1996, at about 2:40 a.m., Michael Edwards and Christopher Hill were walking north on the 5600 block of South King Drive in Chicago to a gas station located at 55th Street and King Drive. As Edwards and Hill approached an apartment building at 5636 South King Drive, they saw Steven Freeman, along with an unidentified woman, in front of the building. Hill stopped Freeman and they engaged in conversation, while the woman entered the building. Edwards continued walking north on King Drive.

Edwards testified that when he was about 25 or 30 feet beyond the apartment building, he heard a door open. About three or four seconds later, he heard gunshots. Edwards immediately ran towards the gas station, and, as he ran, felt a bullet graze his back. Edwards continued running and never saw the individual who fired the gun at him.

Hill testified that, as he talked to Freeman, he noticed defendant in the front foyer of the apartment building, opening a door for the woman who accompanied Freeman. He stated defendant had one hand on the door and one hand in his pants pocket. Hill described defendant's pocket as "bulging," but stated he did not see a gun. Upon noticing defendant, Hill turned away from the building and began following Edwards, who was about 10 or 15 feet ahead on King Drive. Hill indicated Freeman also turned from the building and followed a short distance behind him.

When Hill was about 40 feet from the apartment building, he heard a gun shot. Hill immediately turned around and saw defendant in front of the building with his arms fully extended firing a handgun at him, Edwards, and Freeman. As additional shots were fired, Hill heard Freeman and Edwards say they had been shot. Hill ran east and ultimately met up with Edwards on the corner of King Drive and 56th Street. After checking Edwards' wound, Hill saw Freeman jogging north on King Drive toward the gas station. Hill and Edwards went to the gas station, and saw Freeman lying on the ground in front of the cashier window. The police and an ambulance arrived a short time later. After briefly talking with the police, Hill and Edwards left the gas station to tell Freeman's wife about her husband's condition. Freeman was transported to Cook County Hospital, where he later died as a result of a gunshot wound to his lower back.

The defense rested without presenting evidence. Following deliberations, the jury found defendant guilty of first-degree murder and two counts of aggravated discharge of a firearm.

At sentencing, the State presented two witnesses in aggravation. Tyrone Harris, a member of the Gangster Disciple street gang, described an incident that occurred on January 19, 1996, at the 5636 South King Drive location in which he and a fellow gang member were shot by defendant as they were visiting a friend. ¹ In addition, Ronald Kimble, a Chicago police officer, stated he went to the 5636 South King Drive on February 18, 1996, and observed two men in front of the building. According to Kimble, the two men tossed a bag of narcotics to the ground when they saw him and ran into the building. Kimble followed the men to an apartment located on the third floor and, upon entry, saw defendant sitting on a bed. When he asked defendant to stand, Kimble recovered a .45 semiautomatic handgun from where defendant was sitting. Five or six more handguns, three boxes of ammunition of differing calibers, and a bullet proof vest were also recovered from the apartment. The presentence investigation report, which was also presented by the State in aggravation, detailed defendant's criminal history as an adult, including felony convictions for possession of a stolen vehicle, violation of a bail bond, and unlawful use of weapons by a felon, and revealed his lengthy involvement as a member of the Mickey Cobras street gang.

In imposing sentence, the trial court noted defendant's gang involvement and stated defendant seemed to "enjoy" his affiliation with the Mickey Cobras. The court further indicated defendant "committed one murder and shot two other people in the same location, has been convicted previously of gun violations and had another gun on a different occasion." After simply finding defendant "a very dangerous person," the court imposed an extended-term sentence of 80 years' imprisonment for the murder conviction, noting defendant's sentence was a "hundred percent sentence." The court also imposed a concurrent term of 30 years' imprisonment for the aggravated discharge of a firearm conviction.

II. ANALYSIS

A. Voir Dire

Defendant initially argues the trial court abused its discretion by conducting an insufficient voir dire examination of venireman Walter. Defendant specifically asserts error in the trial court's failure to question Walter further concerning the effect of his police-related associations on his ability to be fair and impartial. He claims the trial court's inadequate voir dire deprived him of his right to a trial by an impartial jury, and urges this court to reverse his convictions and remand for a new trial.

As the State correctly notes, defendant neither raised this point during jury selection nor in his post trial motion and, consequently, has waived this issue on appeal. People v. Enoch, 122 Ill.2d 176, 185-92, 119 Ill.Dec. 265, 522 N.E.2d 1124, 1129-30 (1988); People v. Martin, 271 Ill.App.3d 346, 354, 208 Ill.Dec. 70, 648 N.E.2d 992, 999 (1995). Nevertheless, because this issue affects the constitutional right to a fair trial, we will consider defendant's contention under the plain error exception to the waiver rule. See 134 Ill.2d R. 615(a); People v. Boston, 271 Ill.App.3d 358, 360, 208 Ill.Dec. 80, 648 N.E.2d 1002, 1004 (1995).

Both the federal (U.S. Const. Amends. VI, XIV) and state constitutions (Ill. Const. 1970, art. I, § 8) guarantee a criminal defendant the right to a trial by an impartial jury. Boston, 271 Ill.App.3d at 360, 208 Ill.Dec. 80, 648 N.E.2d at 1004. Voir dire serves the dual purpose of enabling the trial court to select jurors who are free from bias or prejudice and of ensuring that counsels have an informed and intelligent...