People v. Biggs

SIXTH DIVISION
January 23, 1998





No. 1-96-2043

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 94 CR 21171
)
JOHN BIGGS, ) Honorable
) Daniel Locallo,
Defendant-Appellant. ) Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:
Following a jury trial, defendant John Biggs was convicted
of first degree murder for the fatal shooting of Terry Chambers
and attempted first degree murder for the nonfatal shooting of
Anthony Baggett. The trial court sentenced defendant to 40 years
on the first degree murder conviction and 20 years on the
attempted first degree murder conviction, to be served
consecutively. We affirm.
On appeal, defendant raises three issues: (1) whether the
trial court abused its discretion in denying defendant's motion
for a mistrial based on the testimony of a police detective
referring to defendant's record with the police department; (2)
whether the imposition of consecutive sentences was proper; and
(3) whether defendant is entitled to credit for time served
against each of his consecutive sentences.
Terry Chambers and Anthony Baggett were shot at about 1 or 2
a.m. on July 16, 1994. At trial, Baggett, the surviving victim
who suffered a gunshot wound to the chest, recounted the shooting
incident. In the early morning hours on July 16, 1994, Terry
Chambers and Baggett were walking to Baggett's house after
purchasing beer at a store when they were approached by two men.
Baggett recognized one of the two men as defendant because
Baggett had seen defendant around the neighborhood about twice a
week for a period of two to three months, previously noticed
defendant driving a small white car with a city sticker, and knew
him to use the nickname "Pooh Bear."
When the two men encountered Chambers and Baggett, defendant
pulled a gun from his waist and started shooting, hitting Baggett
in the right side of his chest. Defendant and Baggett stood
about four or five feet apart at this time. Chambers began
running north and the two men, both of whom had guns, followed
Chambers while shooting at him. Baggett went in another
direction, toward his house. Baggett testified that when he
arrived home, his mother and girlfriend took him to the hospital
where he received medical attention and talked to the police.
At the hospital, Baggett told the police that he knew
defendant by the nickname "Pooh Bear" and identified the area
where defendant hung around. Three days after Baggett returned
home from the hospital (July 19), he told the police about the
kind of car that defendant drove.
Subsequently, Baggett identified defendant on two occasions:
from a photo array on July 20, 1994, and at a lineup on July 27,
1994. Baggett testified that he was positive that defendant was
the person who shot him.
Baggett testified that prior to the shooting incident, he
and his girlfriend (Kimberly Harris) started drinking beer about
8 or 9 p.m. and he drank three to four 12-ounce beers. Baggett
also smoked one cigarette of crack cocaine about the same time (8
or 9 p.m.). By the time of the shooting (1 or 2 a.m.), Baggett
felt no effect of the cocaine and beer, and his ability to
observe and recall was not affected.
During his trial testimony, Baggett testified that he was
currently on home monitoring, a form of parole. Baggett had
previously been incarcerated for the offense of possession of
controlled substance with intent to deliver and another
possession of controlled substance charge.
Kimberly Harris, the girlfriend of Baggett, testified that
on the evening before the shootings, she was at Baggett's house
with Baggett, Baggett's mother, Baggett's sister, and Chambers.
After Baggett and Chambers went to the store to get beer, Harris
heard gunshots and then Baggett ran into the house, hollering
that he had been shot. Harris, with Baggett's mother and
brother, took Baggett to the hospital. Harris did not see
anyone, including Baggett, drink liquor during the day or evening
of July 15. Harris did not see Baggett use any drugs during that
time.
Johnnie Bonner testified that at about 2 a.m. on July 16,
1994, he was sitting on the porch with Chambers, who was a good
friend. After Chambers left, Bonner heard gunshots in the
distance. Bonner saw a person running but could not identify
him. Bonner found Chambers lying face down in the doorway of a
church, and he remained when police officers and an ambulance
came to the scene.
Bonner testified that he was currently incarcerated on the
charge of delivery of a controlled substance and had prior
convictions for unlawful use of a weapon by a felon, armed
violence, and theft.
Calvin Terry testified that shortly after 2 a.m. on July 16,
1994, he was driving by the church front, noticed the police,
stopped and talked to the police. Terry provided Chambers' name
and address to the police.
Terry testified that he was currently in prison for a
conviction of unlawful use of a weapon by a felon. Terry had
prior convictions for unlawful use of a weapon by a felon,
possession of controlled substance with intent to deliver,
delivery of a controlled substance, and robbery.
Police officer Ricky Galbeth testified that he and his
partner were on patrol at about 2 a.m. on July 16, 1994, when
they responded to a radio call of a man shot and found Chambers
lying in the entrance way of a church. Chambers was not able to
speak and had blood on the front of his shirt. Galbeth called
for an ambulance and learned that another victim (Baggett) had
been shot and taken to the hospital. Galbeth went to the
hospital but could not interview Baggett because he was being
treated. Later, paramedics, detectives and crime scene
investigators arrived at the scene.
Officer Joseph Moran, a forensic investigator, conducted the
crime scene investigations, including photographing and
collecting the physical evidence at the location where Chambers
was found (3507 West Chicago Avenue) and where the shooting began
(747 North Trumbull). The locations are less than two blocks
apart. Moran testified that Chambers was pronounced dead at the
scene and that he found a cartridge case from a 9 millimeter
semiautomatic weapon at 747 North Trumball. Moran also recovered
a metal fragment that had been removed from Baggett at the
hospital.
Detective Thomas McGreal was assigned to investigate the
shootings. At the crime scene, Johnnie Bonner and Calvin Terry
told McGreal that the murder victim was Chambers. After talking
to Baggett and Harris at the hospital, McGreal began looking for
a man with the nickname "Pooh Bear" who was reported to live near
Trumbull and Chicago Avenues. When McGreal's shift ended the
morning of July 16, the investigation was turned over to other
detectives.
On July 19, Detective Ralph Vucko was assigned to do a
follow-up investigation of the murder and shooting. After
talking to Baggett, Vucko looked for defendant, who used the
nickname "Pooh Bear," and a vehicle described as a small, two-
door white car with a police tow sticker on it that was parked on
Trumball. Vucko located the vehicle, picked up Baggett, and
drove him past the vehicle. Baggett identified the vehicle, and
Vucko proceeded to check the registration for it.
The next day, July 20, Baggett identified defendant from a
photo array conducted by Vucko. In his attempt to locate
defendant, Vucko went to two different addresses and spoke with
two women who identified themselves as defendant's mother and
aunt. Neither woman knew where defendant was. Vucko left his
business card with them and told them to have defendant contact
him if they should see him. Defendant did not contact Vucko. To
attempt to locate defendant, Vucko issued a "stop order." When
asked what kind of information is contained in a stop order,
Vucko replied: "An individual's name, last known address, a
birthday, his record number with the police department, and a
brief summary of why we would like to talk to him."
Based on Vucko's testimony about the stop order, defense
counsel immediately asked for a sidebar and moved for a mistrial.
After the trial court denied his motion for a mistrial, defense
counsel moved to strike and tell the jury to disregard a portion
of Vucko's testimony. The trial court instructed the jury to
strike the testimony "regarding a number with the police
department."
Officer James Henk testified that he and his partner located
defendant at his house (3422 West Chicago Avenue) on July 27,
1994. Defendant told Henk that his nickname was "Pooh Bear," and
Henk noticed several tattoos on defendant's left arm, including
the name "Pooh Bear." Detective George Tracy testified that on
July 27, he conducted a lineup where Baggett "immediately
identified the defendant as the person that [sic] shot him and
Mr. Chambers."
The parties stipulated that Doctor Choi, a medical examiner,
would testify that Chambers died of multiple gunshot wounds to
his chest and left leg.
The jury found defendant guilty of the first degree murder
of Chambers, the attempted first degree murder of Baggett, and of
the aggravated battery with a firearm of Baggett. Following the
denial of defendant's motion for a new trial, the trial court
sentenced defendant to 45 years in prison for the first degree
murder conviction and 30 years for the attempted murder
conviction, to be served concurrently. The trial court vacated
the aggravated battery conviction because it merged with the
greater offense of attempted murder.
Based on the State's motion to reconsider the sentence, the
trial court found that consecutive sentences were required. The
trial court then sentenced defendant to 40 years in prison on the
first degree murder conviction and 20 years on the attempted
murder conviction, to be served consecutively. The trial court
also awarded defendant 651 days of credit for time served.
On appeal, defendant first asserts that the trial court
committed reversible error by denying defendant's motion for a
mistrial based on the testimony of a police officer (Vucko) that
a stop order includes the individual's "record number with the
police department." Defendant argues that this remark was
willfully adduced by the prosecution, denied him a fair trial,
was overwhelmingly prejudicial to him, and was not adequately
cured by the trial court's instructions to the jury.
The State contends that the trial court's action in
sustaining defendant's objection to the testimony and instructing
the jury to disregard the comment cured any error that may have
resulted. The State also argues that the contested comment was
not intentionally solicited by the State but rather arose
inadvertently.
A mistrial generally should be granted "where there has been
an error of such gravity that it has infected the fundamental
fairness of the trial, such that continuation of the proceeding
would defeat the ends of justice." People v. Sims, 167 Ill. 2d 483, 505 (1995). On appeal, we will not disturb the trial
court's denial of a defendant's motion for a mistrial unless it
was a clear abuse of discretion. Sims, 167 Ill. 2d at 505.
Where the trial court admonishes the jury to disregard certain
testimony, any possible prejudicial effect to the defendant by
the improper testimony can be sufficiently cured. People v.
Wiley, 165 Ill. 2d 259, 291-94 (1995); People v. Speight, 153 Ill. 2d 365, 373 (1992); People v. Keen, 206 Ill. App. 3d 940,
954-55 (1990). In particular, the error of admitting evidence of
other crimes for which defendant is not on trial can be cured
when the improper testimony is promptly stricken and the trial
court instructs the jury to disregard it. Speight, 153 Ill. 2d
at 372; People v. Robinson, 254 Ill. App. 3d 906, 913 (1993);
People v. Rice, 234 Ill. App. 3d 12, 18-19 (1992). Jurors are
presumed to follow the trial court's instructions. People v.
Taylor, 166 Ill. 2d 414, 438 (1995).
In the present case, the record reveals that the contested
remark came after the prosecutor questioned Detective Vucko about
his two unsuccessful attempts to locate defendant and his
subsequent issuance of a stop order as a police procedure to find
people who are being sought:
"Q. Detective, you were saying you utilized a police
procedure called a stop order?
A. Yes.
Q. What kind of information is contained in a stop
order?
A. An individual's name, last known address, birthday,
his record number with the police department, and a
brief summary of why we would like to talk to him."
Defense counsel immediately asked for a sidebar and moved
for a mistrial. The trial court denied defendant's motion and
added, apparently to the prosecutor, "[w]hen I tell you to do a
leading question, you do a leading question, and that's it." The
trial court was referring to its prior direction to the
prosecutor to elicit the information as to the stop order through
leading questions.
The record continues as follows:
"MR. COHN [Defense attorney]: Move to strike.
THE COURT: What?
MR. COHN: The information.
THE COURT: Do you want me to highlight it or not?
MR. COHN: I move to strike, yes, and tell the jury
they should disregard.
[The sidebar ended.] ***
THE COURT: Ladies and gentlemen, there was a statement
regarding a number with the police department.
You will strike that from your minds and strike it from
the testimony. Do not even consider that."
Given the trial court's immediate and strong admonishment to
the jury to "strike" and "not even consider" the comment, we
cannot say that the contested phrase constituted such a grave
error that it infected the fundamental fairness of the trial. We
believe that the prompt and strong admonition by the trial court
sufficiently cured any improper inference that the jury may have
momentarily drawn. Accordingly, we find that the trial court did
not abuse its discretion in denying defendant's motion for a
mistrial.
Second, defendant asserts that the imposition of consecutive
sentences under the mandatory consecutive sentencing provision
was improper. Defendant also argues that the consecutive
sentences in this case constituted impermissible double
enhancement.
Section 5-8-4(a) of the Unified Code of Corrections mandates
consecutive sentences in certain circumstances:
"The court shall not impose consecutive sentences for
offenses which 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 for which defendant was convicted was a Class X or
Class 1 felony and the defendant inflicted severe bodily
injury *** in which event the court shall enter sentences to
run consecutively." 730 ILCS 5/5-8-4(a) (West 1994).
This statutory scheme dictates that consecutive sentences be
imposed where (1) one of the offenses was a Class X or Class 1
felony, and (2) the defendant inflicted severe bodily injury.
People v. Arna, 168 Ill. 2d 107, 112 (1995).
In the present case, there is no disagreement that since the
element of severe bodily injury is inherent in the offense of
first degree murder, the conviction that triggered the imposition
of consecutive sentences was defendant's conviction of attempted
murder. Attempted murder is subject to a Class X sentence and,
therefore, satisfies the first triggering element of the
consecutive sentencing statute. People v. Johnson, 149 Ill. 2d 118, 159 (1992). A gunshot wound can satisfy the second
triggering element, which requires severe bodily injury.
Johnson, 149 Ill. 2d at 159 (the victim of attempted murder
suffered a gunshot wound to the shoulder).
The record reveals that the trial court initially sentenced
defendant to two concurrent terms in prison, i.e., 45 years for
murder and 30 years for attempted murder. In its initial
sentence, the trial court addressed several factors in
aggravation regarding the attempted murder and found that
defendant "didn't cause serious harm to Anthony Baggett." The
trial court expressly found that consecutive sentences were not
required because attempted murder is not a Class X felony. Upon
the State's motion to reconsider the sentence, the trial court
acknowledged that it had "erred in *** finding that attempt
murder [was] not a Class X felony." In light of this error and
upon further review of the applicable statute and case law, the
trial court found that the shooting of Baggett in the chest
"certainly was severe bodily injury" and that the sentences "are
mandated to be consecutive." The trial court then reduced the
number of years in prison for each offense. The trial court
imposed consecutive sentences, reducing the murder sentence from
45 to 40 years and the attempted murder sentence from 30 years to
20 years.
It is well established that the trial court is the proper
forum to decide sentencing issues and its decision is entitled to
great deference. People v. Coleman, 166 Ill. 2d 247, 258 (1995).
Absent an abuse of discretion, a sentence within the statutory
limits will not be disturbed on appeal. Coleman, 166 Ill. 2d at
258. "When consecutive sentences are imposed pursuant to the law
and are supported by the record, they will not be reversed on
review." People v. Lopez, 228 Ill. App. 3d 1061, 1077 (1992).
In light of the mandatory consecutive sentencing provision
and its proper application to the present case, we will not
reverse the trial court's imposition of consecutive sentences.
Moreover, where consecutive sentences are mandated under section
5-8-4, a sentence that does not conform to its dictates is void.
Arna, 168 Ill. 2d at 113; People v. Moreland, 292 Ill. App. 3d
616 (1997).
In addition, we reject defendant's double enhancement
argument based on People v. Miller, 193 Ill. App. 3d 918 (1989).
The Miller court found that consecutive sentences could not be
imposed for two convictions for voluntary manslaughter (Class 1
felonies) because the offense of voluntary manslaughter requires
a death and, therefore, the element of severe bodily injury
(death) is inherent in the offense. Miller, 193 Ill. App. 3d at
930. Under this rationale, the Miller court found that the
element of severe bodily injury could not be used to further
enhance the penalty through the consecutive sentencing statute.
Miller, 193 Ill. App. 3d at 930. In the present case, however,
the triggering offense for purposes of the mandatory sentencing
provision is attempted murder, not first degree murder, and,
thus, there is no double enhancement issue regarding the first
degree murder conviction. See People v. Porter, 277 Ill. App. 3d
194, 198-99 (1995) (and cases cited therein, criticizing and
distinguishing Miller).
Third, defendant asserts that he is entitled to sentencing
credit against each of his consecutive sentences, i.e., the 40-
year sentence for murder and the 20-year sentence for attempted
murder. The trial court awarded defendant 651 days' credit for
time served during the course of his case. The revised mittimus
states "credit for time served of (651) days."
The districts that have considered this issue have come to
contrary conclusions. In People v. Johnson, 286 Ill. App. 3d
597, 601 (1997), the second district held that the defendant was
entitled to separate credit against each of his four consecutive
sentences based on the supreme court's decision in People v.
Robinson, 172 Ill. 2d 452 (1996).
Subsequently, the fourth and fifth districts expressly
declined to follow Johnson and its interpretation of Robinson.
People v. Plair, 292 Ill. App. 3d 396 (5th Dist. Oct. 9, 1997);
Feazell v. Washington, 291 Ill. App. 3d 766 (4th Dist. 1997). The
courts in Plair and Feazell held that a defendant is not entitled
to more than single credit for his time served against his
consecutive sentences. As discussed in Plair and Feazell, the
Robinson case did not involve or address either consecutive
sentences or the consecutive sentencing provision, i.e., section
5-8-4(e) of the Unified Code of Corrections (730 ILCS 5/5-8-4(e)
(West 1994)).
Section 5-8-4(e) governs the credit granted where
consecutive sentences are imposed:
"(e) In determining the manner in which consecutive
sentences of imprisonment *** will be served, the Department
of Corrections shall treat the offender as though he had
been committed for a single term with the following
incidents:
***
(4) the offender shall be awarded credit against the
aggregate maximum term and the aggregate minimum term of
imprisonment for all time served in an institution since the
commission of the offense or offenses and as a consequence
thereof ***." (Emphasis added.) 730 ILCS 5/5-8-4(e) (West
1994).
The plain language of this statute means that consecutive
sentences are to be treated as a single term and credit against
that single term can be applied only once to the whole. Feazell,
291 Ill. App. 3d at 768. To grant a defendant separate credit
against each of his consecutive sentences in effect would award
double credit. Plair, 292 Ill. App. 3d 396.
Significantly, the Robinson decision did not involve
consecutive sentences and neither Robinson nor Johnson even
mentioned section 5-8-4(e), the consecutive sentencing provision.
In contrast, the courts in both Feazell and Plair were faced with
consecutive sentences and discussed the relevant statutory
provision. We elect to follow the holding and reasoning in
Feazell and Plair and, therefore, find that the trial court
properly declined to award credit against each separate
consecutive sentence.
For all of the foregoing reasons, we affirm the defendant's
convictions and sentences.
Affirmed.
ZWICK and QUINN, JJ., concur.