People v. Hall

                                             FIRST DIVISION
                                             August 4, 1997


No. 1-95-0304

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

     v.

RICKEY HALL,

          Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County



Honorable
Richard E. Neville,
Judge Presiding.

     JUSTICE O'BRIEN delivered the opinion of the court:
     Following a bench trial, defendant, Rickey Hall, was found
guilty of second-degree murder and aggravated battery while using
a deadly weapon.  The court sentenced defendant to concurrent terms
of 15 years' imprisonment for second-degree murder and 5 years'
imprisonment for aggravated battery.  Defendant appeals,
contending:  (1) the trial court erred by convicting him of a crime
not charged in the indictment; (2) he was not proved guilty beyond
a reasonable doubt; (3) the trial court erred by admitting hearsay
evidence; and (4) his 15-year sentence was excessive.  We affirm.
     At trial, Eugene Chaney testified that the deceased was his
eight-year-old son, Lazaric Eggleston, whom he last saw alive about
8 p.m. on October 1, 1993.  The parties stipulated that Doctor
Lifschultz would testify he performed an autopsy on Lazaric
Eggleston on October 2, 1993, and found that Lazaric died as a
result of a gunshot wound to the chest.
     Erma Shields testified that on the evening of October 1, 1993,
Kenny Eggleston (hereinafter Eggleston) drove her, Leslie Dean, and
Lazaric Eggleston to Joey's Food and Liquor.   After Eggleston
parked the car in the parking lot, defendant approached the
driver's side window and told Eggleston that he had made his
(defendant's) daughter bump her head.  Eggleston exited the car and
apologized to defendant.  Defendant stated two more times that
Eggleston had made his daughter bump her head, and then defendant
reached in his pants and pulled out a gun.  
     Shields testified that after defendant pulled out the gun,
"the driver's side window shattered" and she was sprayed with
glass.  Shields jumped out of the car and saw defendant walking
toward the rear of the car.  Thinking that Eggleston had been shot,
Shields ran to the driver's side to look for Eggleston on the
ground.  Eggleston was not there, and Shields then ran back to the
passenger side and told Lazaric to get out of the car.  When
Lazaric failed to respond, she picked him up and noticed blood on
his back.  As she exited the car with Lazaric, a police officer
took him out of her arms.  
     Shields testified that on November 4, an officer showed her
some color photographs from which she identified defendant.  Later
that evening, Shields viewed a line-up from which she selected
defendant.  On cross-examination, Shields testified she first
viewed a photo array of black and white photos, but she was unable
to identify defendant therein because the photographs were too
dark.  On redirect examination, Shields testified she could not
identify defendant from the black and white photographs because of
their poor quality, but she reiterated that she had no trouble
identifying defendant from the color photographs or in the line-up.
     Leslie Dean's testimony was substantially similar to that of
Shields regarding how defendant approached Kenny Eggleston's car in
the parking lot of the liquor store.  Dean testified that after
defendant told Eggleston he had made defendant's daughter bump her
head, "the glass shattered" and then she got out of the car and
ran.  Dean later returned to the scene and saw Lazaric face-down on
the ground.  Dean subsequently identified defendant on November 4,
1993, from some color photographs and in a line-up.  On cross-
examination, Dean testified that police officers never asked her to
look at black and white photographs.  On redirect examination, Dean
testified she viewed some photographs other than the color
photographs, but she was unable to recognize anyone in those
photographs because they were not "clear."
     Kenny Eggleston testified consistently with Shields and Dean
about how he drove to the liquor store and was approached by
defendant, who stated that Eggleston had made defendant's daughter
bump her head.  Eggleston further testified that after he exited
the car, defendant hit him on the right side of the face with a gun
and the gun went off.  Eggleston ran away, but later returned to
the scene and saw many police there.  
     Eggleston testified that on November 4, 1993, he identified
defendant from some color photographs and in a line-up.  On cross-
examination, Eggleston testified he had never been asked to
identify defendant from any individual black and white photographs. 
On redirect examination, Eggleston testified that officers showed
him some black and white photographs prior to the color
photographs, but he could not identify defendant from the black and
white photographs because they were blurry.
     Detective Victor Gutierrez testified that on November 3, 1993,
he received a phone call from an anonymous person who stated she
had on television seen a police sketch of the person wanted for the
Lazaric Eggleston murder.  The caller told Gutierrez that defendant
was the person in the sketch.  
     Gutierrez testified he recovered a photograph of defendant and
placed it in a photo spread along with photographs of five other
persons.  Gutierrez showed the photo spread to Shields, Eggleston,
and Dean, but they could not identify defendant because the
photographs were of bad quality.   On November 4, 1993, Gutierrez
separately showed Shields, Eggleston, and Dean a photo array
containing a color photograph of defendant, and they all identified
defendant.  Shields, Eggleston, and Dean later identified defendant
in a line-up.
     The trial court found defendant committed first-degree murder
(720 ILCS 5/9-1(a)(3) (West 1994)) (felony murder), but also found
sufficient mitigating evidence to reduce defendant's conviction to
second-degree murder.  The court further convicted defendant of
aggravated battery while using a deadly weapon and sentenced him to
15 years' imprisonment for second-degree murder and a concurrent 5-
year term for aggravated battery.  Defendant filed this timely
appeal.   
     Before addressing the merits of defendant's appeal, we first
address an argument raised by the State.  The State contends the
trial court erred by reducing defendant's first-degree murder
conviction to second-degree murder.  The State points to section 
9-2 of the Criminal Code of 1961, which states a "person commits
the offense of second degree murder when he commits the offense of
first degree murder as defined in paragraphs (1) or (2) of
subsection (a) of Section 9-1 of this Code" and either of two
mitigating factors is present.  (Emphasis added.)  720 ILCS 5/9-2
(West 1994).  The trial court here found defendant committed first-
degree murder under paragraph (a)(3) of section 9-1 (felony
murder).  Thus, the State contends section 9-2 was not applicable,
and the trial court erred in reducing defendant's offense to
second-degree murder.   Accordingly, the State asks that we remand
the cause for the trial court to enter judgment on its finding of
guilt for first-degree murder.
     We need not address the merits of this argument, because the
State is precluded from appealing the trial court's order reducing
defendant's conviction to second-degree murder.  See 145 Ill. 2d R.
604(a)(1)("In criminal cases the State may appeal only from an
order or judgment the substantive effect of which results in
dismissing a charge for any of the grounds enumerated in section
114-1 of the Code of Criminal Procedure of 1963; arresting judgment
because of a defective indictment, information or complaint;
quashing an arrest or search warrant; or suppressing evidence").
     The State tries to circumvent Rule 604 by arguing that the
trial court's order reducing defendant's conviction to second-
degree murder was void and, thus, reviewable by this court.  See
People v. Magnus, 262 Ill. App. 3d 362, 365 (1994) ("A void
judgment, order or decree of a court will be reversed on appeal
whenever brought before the court by any means possible in the
particular case"). 
     The trial court's order reducing defendant's conviction was
voidable, not void, and therefore it cannot be challenged here by
the State.  In support, we cite People v. Davis, 156 Ill. 2d 149
(1993).  In Davis, defendant was convicted of unlawful possession
of cannabis and unlawful possession with intent to deliver
cannabis.  Davis, 156 Ill. 2d  at 151-52.  The appellate court held
that Davis' conviction for unlawful possession of cannabis was void
because it was a lesser included offense of unlawful possession of
cannabis with intent to deliver.   Davis, 156 Ill. 2d  at 152-153.
     Our supreme court held that defendant's conviction was
voidable, as opposed to void:
     "Jurisdiction is a fundamental prerequisite to a valid
     prosecution and conviction.  Where jurisdiction is
     lacking, any resulting judgment rendered is void ***.
     [Citation.] By contrast, a voidable judgment is one
     entered erroneously by a court having jurisdiction ***. 
     [Citation.]

  * * *
                                    
          Generally, once a court has acquired jurisdiction, no 
     subsequent error or irregularity will oust the
     jurisdiction thus acquired.  Accordingly, a court may not
     lose jurisdiction because it makes a mistake in
     determining either the facts, the law or both.  ***

* * *    

                                            *** [J]urisdiction over the defendant, as well as  
     over the subject matter, was proper.  The court had
     authority to enter conviction and sentence on either of
     the charged offenses [citations], and judgment on both
     was, merely, error.  Nevertheless, the court's erroneous
     judgment was insufficient to effect divestiture of the
     court's jurisdiction.  The judgment was, therefore,
     voidable ***."  Davis, 156 Ill. 2d  at 155-58.

     Similarly, in the present case, the trial court had
jurisdiction over defendant as well as the subject matter.  The
court had authority to enter conviction and sentence, and the
court's order reducing defendant's conviction to second-degree
murder was error.  However, the court's erroneous judgment did not
divest it of jurisdiction, and therefore the judgment was voidable,
not void.  
     The State contends People v. Wade, 116 Ill. 2d 1 (1987),
compels a different result.  In Wade, our supreme court held that
where the trial court gave defendant a lesser sentence than
mandated by statute, that sentence was void.  Wade is factually
inapposite to the present case, which deals with the allegedly
improper reduction of first-degree murder to second-degree murder,
not the imposition of a lesser sentence than mandated by statute. 
Further, Wade did not draw a distinction between a voidable offense
and a void offense.  Davis, written after Wade, does draw such a
distinction and, in our view, is the better reasoned case.  In
accordance with Davis, we find the trial court's judgment reducing
defendant's conviction to second-degree murder was voidable. 
Accordingly, since the order reducing defendant's conviction was
not void and did not fall under Rule 604(a)(1), the order cannot be
challenged here by the State.  Therefore, we decline the State's
request to remand this cause for the trial court to enter judgment
on its finding of guilt for first-degree murder.  
     We proceed to address defendant's arguments on appeal.  First,
defendant argues the trial court erred by convicting him of a crime
not charged in the indictment.  Specifically, the trial court
convicted defendant of felony murder, with aggravated battery while
using a deadly weapon upon Kenneth Eggleston as the underlying
felony.  The court then found sufficient mitigating factors to
reduce defendant's conviction to second-degree murder.  However,
the indictment never charged defendant with felony murder
predicated upon the underlying felony of aggravated battery while
using a deadly weapon upon Kenneth Eggleston.  Instead, the
indictment only charged defendant with felony murder predicated
upon the underlying felony of (a) aggravated battery causing
permanent disfigurement to Kenneth Eggleston, (b) aggravated
battery with a firearm upon Kenneth Eggleston, and (c) aggravated
battery upon a public way upon Kenneth Eggleston.   
     We find no reversible error.  The appropriate standard of
review is whether the indictment apprised defendant of the precise
offense charged with sufficient specificity to prepare his defense
and protect him from double jeopardy.  People v. Allen, 56 Ill. 2d 536, 542-43 (1974).  The indictment sufficiently apprised defendant
that he was charged with killing Lazaric Eggleston when he
(defendant) hit Kenneth Eggleston with a gun, and the gun fired,
striking Lazaric.  Accordingly, we fail to see how the indictment
misled defendant in preparing his defense.  Further, since the
indictment charged defendant with the first-degree murder of
Lazaric Eggleston, if the trial court had acquitted defendant he
could not have been charged and tried again for the murder of the
same individual.  People v. Allen, 56 Ill. 2d  at 543.  Therefore,
the language of the indictment was sufficient to protect defendant
from double jeopardy.    
     Next, defendant argues his aggravated battery of Kenneth
Eggleston was not a forcible felony and therefore it could not
serve as the predicate offense for felony murder.  The felony
murder statute provides:
               "A person who kills an individual without
          lawful justification commits first degree murder
          if, in performing the acts which cause the death: 
* * *
      
               (3) he is attempting or committing a forcible
          felony other than second degree murder."  720 ILCS
          5/9-1(a)(3) (West 1994).
Forcible felony is defined in relevant part as "aggravated battery
resulting in great bodily harm or permanent disability or
disfigurement and any other felony which involves the use or threat
of physical force or violence against any individual."  720 ILCS
5/2-8 (West 1994).
     Defendant contends his aggravated battery was not a forcible
felony because it did not result in great bodily harm or permanent
disability or disfigurement to Kenneth Eggleston.  However,
defendant's aggravated battery of Eggleston certainly involved the
use or threat of physical force or violence against Eggleston. 
Accordingly, the aggravated battery was a forcible felony that
could properly serve as the predicate offense for a felony murder
conviction.
     Next, defendant argues he was not proved guilty beyond a
reasonable doubt of felony-murder and aggravated battery while
using a deadly weapon.  We note that defendant does not argue the
correctness of the trial court's decision to reduce his conviction
to second-degree murder.  Defendant's argument is that since the
State failed to prove him guilty of felony murder and aggravated
battery while using a deadly weapon, the trial court should have
acquitted him.  Accordingly, we address defendant's arguments
concerning whether the State proved him guilty of felony murder and
aggravated battery while using a deadly weapon; we do not discuss
the trial court's decision to reduce his conviction.
     When presented with a challenge to the sufficiency of the
evidence, the relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.  People v. Oaks, 169 Ill. 2d 409, 457-58 (1996).
     Defendant contends the State did not prove him guilty of
felony murder because there was no evidence he committed the
predicate felony of aggravated battery with a firearm.  Defendant
argues that aggravated battery with a firearm requires defendant to
knowingly or intentionally discharge a firearm, causing injury to
another person.  720 ILCS 5/12-4.2 (West 1994).  Here, though, the
trial court found defendant did not knowingly or intentionally
discharge the firearm that caused the death of Lazaric Eggleston.
     However, as discussed above, the record clearly indicates the
trial court found defendant committed felony murder with aggravated
battery with a deadly weapon as the underlying felony.  To commit
aggravated battery with a deadly weapon, defendant must commit a
battery while using "a deadly weapon other than by the discharge of
a firearm."  720 ILCS 5/12-4(b)(1) (West 1994).  At trial, Kenneth
Eggleston testified defendant intentionally hit him in the face
with his gun.  Such conduct satisfies the definition of aggravated
battery with a deadly weapon.  See People v. Deskin, 60 Ill. App.
3d 476, 481 (1978) (a gun used as a club is considered a deadly
weapon.)
     Defendant questions the identification of him by Eggleston,
Erma Shields and Leslie Dean.  The circumstances to be considered
in evaluating an identification include:  (1) the opportunity the
victim had to view defendant at the time of the crime; (2) the
witness' degree of attention; (3) the accuracy of the witness'
prior description of defendant; (4) the level of certainty
demonstrated by the victim at the identification confrontation; (5)
the length of time between the crime and the identification
confrontation.  People v. Slim, 127 Ill. 2d 302, 307-08 (1989).
     Here, the evidence indicates Eggleston, Shields, and Dean
viewed defendant under circumstances permitting a positive
identification of him.  Eggleston testified he was face to face
with defendant when defendant hit him in the right side of the face
with a gun and the gun went off.  Shields and Dean, who were
passengers in Eggleston's car at that time, testified they were
able to see defendant confront Eggleston.  Shields further
testified she saw defendant pull out a gun, after which the
driver's side window shattered.  Moreover, about one month later,
Eggleston, Shields, and Dean each individually identified defendant
from some color photographs and in a line-up.
     Defendant points out that Eggleston, Shields, and Dean
testified during redirect examination that they had been unable to
identify defendant from some earlier black and white photographs
shown to them.  However, Eggleston, Shields, and Dean testified
they had been unable to identify defendant from the black and white
photographs because those photographs were of poor quality.  The
trial court obviously accepted that explanation, finding "this
issue about the black and white photo or color photo is not an
issue for me that affects the strength of the identifications by
the three witnesses.  I find that the testimony here in court and
the identifications that were made by the witnesses *** are
sufficient to show me that [defendant] was the man who was in the
parking lot that night with them regarding the events that
transpired that ended up in the death of Lazaric Eggleston."
     Defendant further questions the credibility of Eggleston,
Shields, and Dean.  However, the trial court found the three
witnesses "to be credible," and we will not substitute our judgment
for the trier of fact's credibility determination.  People v.
Goosens, 262 Ill. App. 3d 722, 728 (1994).  After viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found defendant intentionally hit
Kenneth Eggleston in the face with a gun, which then fired, killing
Lazaric Eggleston.  Accordingly, the evidence was sufficient to
convict defendant of felony murder and aggravated battery while
using a deadly weapon.
     Defendant argues that the shooting was accidental or, at most,
reckless, and therefore involuntary manslaughter is the most
serious crime for which the trial court should have convicted him. 
We disagree.  Felony murder is premised on strict liability for one
who kills or is responsible for a killing during the commission of
a felony.  People v. McCarroll, 168 Ill. App. 3d 1020, 1023 (1988). 
Where, as here, death resulted from recklessness or even an
accident during the commission of the underlying felony,  defendant
is still guilty of felony murder.  McCarroll, 168 Ill. App. 3d at
1023.
     Next, defendant argues the trial court erred by admitting
Detective Gutierrez' testimony regarding the anonymous caller's
statement identifying defendant as the offender depicted in the
sketch shown on television.  Defendant contends such testimony was
inadmissible hearsay.  We disagree, as Gutierrez' testimony was
admitted only to show the investigative steps taken by him.  See
People v. Simms, 143 Ill. 2d 154, 174 (1991).
     Finally, defendant argues the trial court abused its
discretion by sentencing him to 15 years in prison for second-
degree murder.  We disagree.  The trial court read the presentence
report and heard evidence in mitigation that defendant supported
his mother and did not intend to take the life of Lazaric
Eggleston.  In aggravation, the State informed the trial court that
defendant had received six years' imprisonment for burglary in 1982
and that at the time of the Lazaric Eggleston murder, defendant was
on probation for the aggravated battery of defendant's brother-in-
law.  Defendant committed the aggravated battery against his
brother-in-law after the two men argued because defendant had hit
the brother-in-law's nine-year-old child.  Defendant stabbed the
brother-in-law in the stomach, causing him to spend 11 days in the
hospital.
     The court stated:
          "[T]here's no doubt looking at [defendant's]
          background, which is contained in the
          presentence investigation, that he has
          committed enough crimes for me to know that
          his idea about how society ought to be
          conducted is that he can do what he wants when
          he wants.
               And not only has he served six years
          previously in the penitentiary, but this
          incident regarding his brother-in-law means
          that he doesn't even care if it's family or
          strangers.  And that his use of both weapons
          and violence is sufficient for me to know that
          [defendant] is a danger to the community.  And
          as a result he deserves and I'm going to
          impose the maximum sentence on second degree
          murder, which is 15 years."
We find no abuse of discretion.
     For the foregoing reasons, we affirm the trial court.  As part
of our judgment, we assess defendant $150 as costs for this appeal.
     Affirmed.
     BUCKLEY, J., and GALLAGHER, J., concur.