People v. Lake modified August 18

August 18, 1998
2nd Division

No. 1-96-3749

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM
) THE CIRCUIT COURT
Plaintiff-Appellee, ) COOK COUNTY.
)
v. ) No. 93 CR 1352
)
LEMONT LAKE, ) THE HONORABLE
) JAMES D. EGAN,
Defendant-Appellant. ) JUDGE PRESIDING.


MODIFIED UPON DENIAL OF REHEARING

JUSTICE COUSINS delivered the opinion of the court:
Defendant Lemont Lake and codefendants Jermail Lake, Allen
Duncan and Tineshea Lake were charged by indictment with two
counts of first degree murder in the shooting death of Alvin
Gilmore. After a jury trial, Lemont was found guilty and
sentenced to 45 years' imprisonment.
On appeal Lemont contends that: (1) he was denied effective
assistance of counsel because his attorney failed to submit an
instruction defining the term "recklessness" along with the
instructions for involuntary manslaughter to the jury and
submitted the incorrect version of Illinois Pattern Jury
Instructions, Criminal 2d No. 26.01Q (2d ed. Supp. 1989); (2)
reversible error occurred because the trial court failed to
excuse a prospective juror who had a pending lawsuit; and (3) the
trial court abused its discretion in sentencing him to 45 years'
imprisonment for first degree murder because the court considered
in aggravation the fact that death occurred, which is inherent in
the offense.
BACKGROUND
Events that began with a street encounter between two women
and a slap ended on December 26, 1992, with a hail of bullets
being fired at and into a building with the resultant death of
Alvin Gilmore, who suffered a gunshot wound to the head.
On December 26, 1992, Lashundia Davis, while on her way to a
store by her home, ran into Tineshea Lake, who was with two other
women, Rashawn Jackson and Kimberly Manning. Tineshea had
previously dated Lashundia's boyfriend, Orlando Potts. Rashawn
approached Lashundia, said something to her and slapped her
across the face. At this point, Tineshea said "let's get her."
Lashundia then ran home and spoke to her sister and brother, who
then accompanied her to Tineshea's home. At Tineshea's house,
Lashundia offered to fight Tineshea but Tineshea refused and
Lashundia went home. On her way home, Lashundia ran into her
mother and her boyfriend, Orlando Potts. After they conversed,
Orlando Potts went to Tineshea's house and broke windows in her
house.
Ben Harden testified for the State pursuant to a plea
agreement in which first degree murder charges against him were
dropped and he received a sentence of 12 years' imprisonment for
aggravated discharge of a firearm. According to Harden's
testimony, he was in a car with Lemont Lake when Lemont stopped
to make a phone call in response to a page he received on his
pager. Harden testified that defendant appeared to be angry when
he got back in the car and told Harden that "[t]hey was bogus."
Defendant then drove to Allen Duncan's apartment on 55th and
Union Streets. Once inside, defendant told Allen to "give me
that," at which point Allen retrieved a black, 9 millimeter gun
along with a loaded clip and handed it to defendant. Defendant
put the loaded clip into the gun.
Defendant, Ben Harden and Allen Duncan left Allen's
apartment where, soon thereafter, they saw Jermail Lake and Shon
Scott. Defendant told Jermail and Shon, "They was bogus for
doing that." Defendant, Allen Duncan and Ben Harden then drove
to the Lake house at 39th and Prairie, where they met Jermail
Lake and Shon Scott, who had driven separately. Rashawn Jackson
was sweeping up the glass from the window that Orlando Potts had
broken. Harden further testified that Tineshea told defendant
that Orlando had broken the windows because she had called him
"out [sic] his name." Harden also testified that Tineshea told
the group, which consisted of himself, defendant, Jermail Lake,
Shon Scott, and Allen Duncan, that they should go to Orlando's
house and "kick his ass," but that they should be careful because
someone would be there. Defendant then pulled out the 9
millimeter gun and said, "don't worry about it."
Defendant, Jermail Lake, Ben Harden, Shon Scott and Allen
Duncan left the apartment and walked northbound on Prairie to
Lashundia's house. Lashundia lived at 3932 S. Prairie, which is
a low-rise housing unit. When they reached a tree about 30 feet
away from Orlando's apartment, defendant told the group to stop,
pulled the gun out of his jacket and aimed it toward the
apartment. As defendant fired the gun he said, "watch me light
this place up." He fired 16 shots at the apartment. On cross-
examination, Harden testified that he could see people in
Orlando's apartment before defendant began shooting.
Defendant, Ben Harden and Allen Duncan ran to defendant's
car and Allen drove them to defendant's house, where they drank
and watched videos. Jermail Lake and Shon Scott arrived 5 to 10
minutes later. Jermail then made a phone call in which Ben heard
him say, "Is everybody straight? Is she O.K.?" Approximately 15
minutes later, the police arrived and arrested everyone.
At trial, Lashundia Davis testified that, at about 6:30
p.m., shortly after Orlando had gone to Tineshea's home to break
her windows, she was at home with her mother, siblings, Eric
Watkins and her nieces and nephews, including Alvin Gilmore.
Eric Watkins looked out the window and said something that caused
Lashundia to look out the window. When Lashundia looked out the
window she saw defendant, Rashawn Jackson, Kimberly Manning,
Tineshea, Jermail Lake and Allen Duncan approaching her apartment
from the courtyard directly across from her apartment. Lashundia
claimed that the group was within 40 feet of her apartment at one
time prior to shooting. Prior to the shooting, 14 year-old Alvin
Gilmore was sitting at the kitchen table near a window.
Testimony established that he died from a gunshot wound to his
brain.
At the conclusion of simultaneous bench and jury trials, the
trial court found all of the defendants guilty of first degree
murder. Defendant was sentenced to 45 years' imprisonment. He
now appeals.
We affirm.
ANALYSIS
I
Defendant contends that he was denied effective assistance
of counsel because his trial counsel failed to tender a jury
instruction defining "recklessness" and because trial counsel
failed to tender the correct version of IPI Criminal 2d No.
26.01Q (Supp. 1989).
In order to prevail on a claim of ineffective assistance of
counsel, a defendant must establish that: (1) the defense
counsel's performance deviated from an objective standard of
reasonableness; and (2) the defendant was substantially
prejudiced by the alleged errors such that the verdict would be
different. People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246 (1984), adopting Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A court need not
determine the performance prong of this Strickland test before
analyzing whether defendant has suffered any prejudice. People
v. Gaines, 105 Ill. 2d 79, 92-93, 473 N.E.2d 868 (1984). In the
instant case, we do not believe defendant was prejudiced by his
counsel's errors.
Intentionally firing a weapon at an occupied building is an
act that has a natural tendency to cause death or great bodily
harm and is of such a character as to defeat any assertion of
recklessness. People v. Washington, 257 Ill. App. 3d 26, 35, 628 N.E.2d 351 (1993), citing People v. Cannon, 176 Ill. App. 3d 49,
530 N.E.2d 1035 (1988). Here, the jury did not and could not
have found defendant guilty of involuntary manslaughter because
the evidence indicated that he fired a barrage of bullets at
Lashundia's home, which was an occupied building. Defendant's
conduct had the natural tendency to cause death or great bodily
harm and was of such a character as to defeat any assertion of
recklessness, the key element of involuntary manslaughter.
People v. Washington, 257 Ill. App. 3d at 35.
At trial, defense counsel tendered Illinois Pattern Jury
Instructions, Criminal, No. 7.07 (2d ed. 1981)(hereinafter IPI
Criminal 2d), which is the definitional instruction on
involuntary manslaughter and provides as follows:
"A person commits the offense of involuntary
manslaughter when he intentionally causes the death of an
individual by acts which are performed recklessly and are
likely to cause death or great bodily harm to another."
The committee note following the instruction states that IPI
Criminal 2d No. 5.01, defining "recklessness," is to be given
with IPI Criminal 2d No. 7.07.
Defendant cites People v. Howard, 232 Ill. App. 3d 386, 597 N.E.2d 703 (1992) (Cerda, J., dissenting), to support his
argument that failure to tender the definition of "recklessness"
requires reversal. In Howard, the defendant's conviction for
murder was reversed because the defendant's trial counsel failed
to tender an instruction defining "recklessness," an element of
involuntary manslaughter, and referred to involuntary
manslaughter as a "cop-out" if the jury was to return such a
verdict. Howard, 232 Ill. App. 3d at 392-93. This court
concluded that the evidence presented against the defendant was
closely balanced as there was only one witness to the stabbing
that occurred between the defendant and his best friend and the
stabbing appeared to be accidental. Howard, 232 Ill. App. 3d at
392.
Howard is distinguishable because the evidence in the
instant case was not closely balanced, whereas, in Howard, the
evidence was closely balanced and did not overwhelmingly support
a verdict of murder (Howard, 232 Ill. App. 3d at 392). See
People v. Washington, 257 Ill. App. 3d at 35 ("Defendant's trial
testimony that he was aiming at the house when he fired the
shotgun and did not intend to kill anyone does not create a jury
question on the issue of recklessness. In fact, it negates it").
Moreover, the majority of Illinois courts have failed to
mandate reversal in this situation. See People v. Maldonado, 3
Ill. App. 3d 216, 278 N.E.2d 225 (1971) (failure of court to
define "reckless" was not prejudicial); People v. Brown, 9 Ill.
App. 3d 730, 293 N.E.2d 1 (1973) (no error was caused by failure
to instruct the jury on definition of "recklessness" because
defendant was not substantially prejudiced); People v. Hairston,
39 Ill. App. 3d 747, 250 N.E.2d 497 (1976) (omission of
definition of the term "recklessness" did not constitute
prejudicial error); People v. Carlson, 79 Ill. 2d 564, 404 N.E.2d 233 (1980) (failure to give jury an instruction defining
"recklessly" was not a substantial defect and the failure of the
defendant to tender the correct instruction waived his right to
complain on appeal). Accordingly, we conclude that counsel's
omission of the definition of "recklessness" did not constitute
reversible error.
We also believe that counsel's tender of the incorrect
version of IPI Criminal 2d No. 26.01Q (Supp. 1989) was harmless
error. Defendant complains specifically of the last paragraph of
this instruction, which informed the jury that, if it found that
the State had proven defendant guilty of both first degree murder
and involuntary manslaughter, it should sign only the verdict
form finding defendant guilty of first degree murder. This
instruction is incorrect because a jury cannot properly find the
offenses of murder and involuntary manslaughter to exist
simultaneously. People v. Basden, 264 Ill. App. 3d 530, 543-45,
636 N.E.2d 919 (1994); People v. Summers, 202 Ill. App. 3d 1, 559 N.E.2d 1133 (1990); People v. Rodriguez, 275 Ill. App. 3d 274,
287, 655 N.E.2d 1022 (1995). In the third edition for the
pattern criminal instructions, the Illinois Supreme Court
Committee on Pattern Jury Instructions attempted to remedy this
problem by noting that the last paragraph of the instruction
should not be given when the lesser offense has the less culpable
mental state of recklessness. Illinois Pattern Jury
Instructions, Criminal, No. 26.01Q, Committee Note, at 386-87 (3d
ed. 1992).
As we have discussed above, the evidence in this case proved
defendant guilty of first degree murder. Furthermore, we note,
as was noted in People v. Summers, 202 Ill. App. 3d at 16, there
is no indication that the jury ever found that the State had
proven defendant guilty of both first degree murder and
involuntary manslaughter. In fact, during deliberations, the
jury sent a note to the court requesting guidance on the elements
of first degree murder. The note provided:
"In the definition of First Degree Murder, is it necessary
that his intent to kill or do great bodily harm had to be
directed against Alvin specifically or just to anybody in
the house."
Thus, even though the submission of IPI Criminal 2d No. 26.01Q
(Supp. 1989) was error, this error did not prejudice defendant
and, therefore, does not requires reversal. See People v.
Towns, 157 Ill. 2d 90, 108-09, 623 N.E.2d 269 (1993); People v.
Tucker, 245 Ill. App. 3d 722, 614 N.E.2d 1265 (1993); People v.
Rodriguez, 275 Ill. App. 3d 274, 287-88, 655 N.E.2d 1022 (1995).
In view of our holding, we deem it unnecessary to address the
State's waiver argument on this issue.
II
Lemont next contends that reversible error occurred where
the trial court failed to excuse a prospective juror who had a
pending lawsuit but served on the jury.
Under section 14 of the Jury Act, a prospective juror who is
a party to a suit pending for trial in that court is not
qualified to sit as a juror and must be removed for cause. 705
ILCS 305/14 (West 1992). The trial court does not have the
discretion to allow a prospective juror to sit when that juror is
subject to statutory disqualification. People v. Gonzalez, 238
Ill. App. 3d 303, 323, 606 N.E.2d 304 (1992). However, a
court's failure to remove a venireperson for cause is grounds for
reversal only if the defense exercised all of its peremptory
challenges and an objectionable juror was allowed to sit on the
jury. People v. Suter, 292 Ill. App. 3d 358, 370, 685 N.E.2d 1023 (1997); People v. Pendleton, 279 Ill. App. 3d 669, 675, 665 N.E.2d 350 (1996).
Lemont has waived review of this issue because he failed to
include this issue in his posttrial motion (see People v. Enoch,
122 Ill. 2d 176, 186-87, 522 N.E.2d 1124 (1988)). However, even
if this issue was not waived, we believe Lemont's argument is
meritless.
Defendant has set forth the pertinent testimony in his
brief. During voir dire, the following colloquy occurred with
juror Melodie Karnezis:
"Q. And you have been a party to a lawsuit?
A. Yes.
Q. Is that presently pending in the Circuit Court of
Cook County?
A. Well, there is a personal injury one that I wasn't
really thinking about when I checked that. Some lady
broadsided me recently. I guess you would call that . . .
Q. Are you a named party in that?
A. No, I don't think so. It's a personal injury case
that she smashed into my car. I suppose both our names are
on it.
Q. Are the insurance companies on it?
A. I do have a lawyer so I guess because both our names
are on it. I answered that question correctly."
In our view, the testimony that is quoted in the brief does
not clearly indicate that juror Karnezis was a party to a pending
suit at the time of the trial in the instant case. Therefore, we
cannot say that the trial court erred in refusing to remove her
for cause.
III
Lemont finally contends that the trial court abused its
discretion in sentencing him to 45 years' imprisonment for first
degree murder because the court considered in aggravation the
fact that death occurred, a factor that is inherent in the
offense of first degree murder. Lemont points to the court's
comments at the sentencing hearing that Lemont had directly
caused Alvin Gilmore's death and that what had occurred was a
"tragedy" and a "severe and violent crime." Lemont also notes
that the only other factor that the court noted in aggravation
was the fact that Lemont had purchased a weapon while the case
was pending against him. Lemont has waived this issue because he
failed to include it in his postsentencing motion. 730 ILCS 5/5-
8-1(c) (West Supp. 1995). Regardless, we believe that Lemont's
argument is unpersuasive.
Generally, it is improper to consider factors implicit in
the offense as aggravating factors. People v. Kargol, 219 Ill.
App. 3d 66, 73, 578 N.E.2d 1356 (1991). Thus, it is improper for
a court imposing a sentence to rely upon the end result of the
defendant's conduct, i.e., the death of the victim, if that
factor is implicit in the offense itself. See People v.
Saldivar, 113 Ill. 2d 256, 269, 497 N.E.2d 1138 (1986)(victim's
death could not be considered as aggravating factor in conviction
for voluntary manslaughter). It is not impermissible for the
sentencing court to consider the force employed and the physical
manner in which the victim's death was brought about. Saldivar,
113 Ill. 2d at 270.
In the instant case, there is no indication in the record
that the trial court improperly relied upon the victim's death as
an aggravating factor warranting an extended-term sentence.
Rather, the record suggests that the trial court's statements
were general passing comments on the defendant's actions and the
consequences of those actions. See People v. Beals, 162 Ill. 2d 497, 509, 643 N.E.2d 789 (1994). Accordingly, defendant's
conviction and sentence are affirmed.
For the reasons cited herein, the judgments of the circuit
court of Cook County are affirmed. As part of our judgment, we
grant the State's request and assess defendant $150 as costs for
this appeal.
Affirmed.
McNULTY, P.J, and TULLY, J., concur.