People v. Perry
Annotate this Case
SIXTH DIVISION
September 30, 1997
No. 1-96-0037
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
SIDNEY PERRY, ) Honorable
) Themis N. Karnezis,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
A jury found defendant Sidney Perry guilty of first degree
murder for the shooting death of William Yousef, of armed robbery
of William Yousef, and of armed robbery of Hani Hamad. The trial
court imposed a sentence of natural life in prison without parole
for the murder. Defendant now appeals his convictions and
sentence.
On appeal, defendant raises five issues: (1) whether the
trial court committed reversible error by refusing to instruct
the jury on second degree murder; (2) whether he is entitled to a
new trial based on the trial court's answer to a jury question
and his trial counsel's failure to object to the trial court's
response to the jury; (3) whether his convictions must be
reversed because he used psychotropic medication during his
trial; (4) whether the sentence of natural life in prison is
void; and (5) whether the sentence constituted an abuse of the
trial court's discretion. In addition, the State asserts that
this court should remand this case for sentencing on the two
counts of armed robbery.
For the reasons that follow, we affirm defendant's
convictions and sentence. We also remand the cause to the trial
court for sentencing on the two counts of armed robbery of which
defendant was convicted but for which no sentence was imposed.
On September 12, 1994, William Yousef (William) and his
cousin Hani Hamad (Hamad) were robbed while working in a closed
food store at Central and Lake Streets. During the robbery,
William suffered a gunshot wound to the abdomen and subsequently
died from the gunshot wound on September 22, 1994. Both
defendant and Moses Cathey were charged for the crimes.
Defendant and Cathey were tried simultaneously but before
separate juries.
In short, the State's position at trial, supported by the
testimony of victim Hamad, was that two men (defendant and
Cathey) entered the store, each man had a gun, they wanted money,
and defendant shot William. On the other hand, defendant
testified that he entered the store alone and unarmed, that
William pulled a gun, they scuffled over the gun, and William
shot himself.
At trial, the State presented, in its case in chief, the
testimony of Hamad (a robbery victim), Ken Witkowski (a police
officer), Thomas Reynolds (a forensic investigator), Cynthia
Porterfield (a medical examiner), and Robert Smith (a firearms
expert). In rebuttal, the State presented the testimony of Nayim
Yousef (the owner of the store and William's uncle) and recalled
Witkowski for further testimony.
Hamad testified that Nayim Yousef, William's uncle, bought a
grocery store at Lake and Central. The store had been closed for
business. On September 11, 1994, a Sunday, Hamad, William and
Nayim were working in the store to prepare for the store's
opening. Defendant entered and asked if any work was available.
After working about two hours, defendant asked Hamad for $40.
Hamad referred defendant to the owner, Nayim, who gave $20 to
defendant. All four men (Hamad, William, Nayim, and defendant)
then left the store for the day.
The next day, September 12, 1994, Hamad, William and Nayim
returned to work in the store. Defendant came to the store again
asking for work but was told that no help was needed. After
defendant and Nayim left the store, Hamad and William continued
the work in the store.
Hamad testified that defendant returned to the store with a
"partner." While the second man stood by William about 15 feet
away, defendant stood in front of Hamad and said "give me all the
money you have." Hamad replied that he did not have any money.
Defendant then pulled a black gun, said "No more money, m--------
---?" and fired one shot. The shot went behind Hamad and into
the glass. Hamad turned to see his cousin William and observed
the second man put a small silver gun in William's face. Hamad
told defendant: "Hold on, man. My money in my pocket. Take
anything you want. We have cigarettes. Take anything you want,
just don't shoot."
Hamad testified that defendant then told him to remove his
pants. As Hamad complied, his wallet fell to the floor.
Defendant took Hamad's wallet, which contained about $100, and
told Hamad to "take the floor." As Hamad got on his knees with
the palms of his hands on his thighs, defendant said "give me the
watch" and Hamad complied. Hamad saw William assume the same
position after being told to do so by the second man, who was
standing in front of William. William had also removed his pants
and the second man took William's wallet.
Hamad next heard a second gunshot but does not know who
fired the second shot. When the second shot was fired, Hamad was
completely on the floor and he could not see William from that
position. After the second shot, Hamad heard shelves fall and
somebody run away.
As Hamad tried to stand up, defendant fired more shots and
Hamad returned to the floor. At the time of the third shot, both
men were standing in the doorway and the shot hit a pop bottle.
The two men left the store. After the third shot, Hamad saw
William on the floor in a prone position. Hamad then went to the
front of the store and closed and locked the security gate.
Hamad returned to William, who was on the floor. William
said that "they shot me." Hamad saw a little blood on William's
stomach.
Hamad was unable to call the police since no phone had been
installed in the new business. Hamad told a lady in front of the
store to call the police and she did. The police arrived, cut
the gate, and entered the store. William was taken to the
hospital by ambulance.
Hamad told the police what had happened and then accompanied
the police to the hospital to see William, who was unconscious.
Later the same day, Hamad went to the police station and
identified defendant in a lineup. Hamad noticed that, at the
police station, defendant's hair had changed because he had cut
off his ponytail, which fact Hamad told the police.
The next day, Hamad returned to the police station and
identified a black gun as one that looked like the same gun
defendant had used during the store robbery.
Hamad denied that William and defendant argued or engaged in
a fight. Hamad also denied that William pulled a gun, that
William and defendant struggled over the gun, and that the gun
fired as the two of them were struggling over it. Hamad did not
see William face down with his chest on the ground.
Hamad denied telling the police detective that the robbers
told him and William to lie face down. Hamad testified that he
took two positions during the robbery. The first time, he was on
his knees and the second time, he was on his hands and knees with
his head down. Hamad told the police officers immediately after
the robbery that the robbers told him "to go down."
Nayim Yousef testified that, in September 1994, he purchased
a small grocery store near Lake and Central Streets. On
September 11, 1994, Yousef, Hamad and William worked in the
store to prepare it to open for business. On September 11,
Yousef hired defendant to do some work. Defendant worked for two
hours and Yousef paid defendant $20. On September 12, 1994,
defendant returned to the store and asked for work. Yousef
informed defendant that he did not need him that day because the
store was almost ready. Defendant then left the store and Yousef
left the store about 15 minutes later. When Yousef left, the
front door was unlocked and Yousef had the keys. When Yousef
left, both Hamad and William were wearing pants. Yousef never
talked to the police and never was contacted by the State's
Attorney about the subject matter of his trial testimony.
Police officer Kenneth Witkowski testified that on September
12, 1994, at 2:15 p.m., he responded alone to a radio message of
a man shot in a store. When he arrived at the store, Witkowski
found Hamad locked behind some burglar bars screaming for help.
Witkowski forced his way in under the burglar bars, observed
William lying on the floor, appearing to be unconscious, radioed
for help, made sure an ambulance was on the way, and called for a
fire truck to break the burglar bars. Witkowski testified in
rebuttal that he found William lying on the floor and wearing
only a sleeveless t-shirt and a pair of white briefs. In his
police report, Witkowski did not mention that William was not
wearing any pants.
Witkowski noticed that some of the store merchandise was
damaged and soda was all over the floor. Witkowski observed that
Hamad was visibly shaken, agitated and demanding help for
William. When Witkowski first arrived on the crime scene, he did
not ask Hamad if there was a struggle when the men came into the
store. Witkowski drove Hamad to the hospital. At the hospital,
Witkowski tried to gather information about the incident, learned
that William was in critical condition, and met with Detective
Anthony Bongiorno.
Witkowski returned to the store to canvass the area. After
some investigation, Witkowski and Bongiorno obtained the name of
a possible offender. While Bongiorno was on the phone and
Witkowski was inside a shoe shine parlor, defendant entered the
store and identified himself by name and as "the guy you are
looking for." Witkowski testified that he (Witkowski) was "kind
of in shock" and defendant put his hands behind his back.
Witkowski handcuffed defendant and read defendant the Miranda
rights. The two police officers then transported defendant to
the police station. At a lineup, Hamad identified defendant.
After a phone call to Detective Bongiorno, the two police
officers returned to the area of the store (333 North Central).
A young black male teenager approached the car and threw a bag in
Witkowski's lap. The bag contained a .380 Lorson semi-automatic
pistol. Upon returning to the police station, Witkowski showed
the gun to Hamad and Hamad said that it looked like the gun
defendant had used. Witkowski did not take the gun to be dusted
for prints.
Thomas Reynolds, a forensics investigator with the Chicago
police department, testified that he and his partner went to the
crime scene on September 12, 1994. Reynolds located three
discharged cartridge cases, one fired bullet, and one copper
jacket from a bullet. A copper jacket is a part of a fired
bullet. One discharged cartridge case was found on the floor
near the coolers, and William had been found lying in front of
the cooler. A second discharged cartridge case was located on
the floor near some shelving on the floor. A third discharged
cartridge case was on the floor in front of one of the coolers.
The fired bullet was located inside a case of soda pop. The
copper jacket was recovered near the bullet hole in a display
area between the window and the outer wall. The three discharged
cartridges came from a .380-caliber bullet.
At the scene, Detective Bongiorno did not request that
Reynolds perform a gunshot residue test on William or Hamad or
defendant. Reynolds dusted for fingerprints at the front door
and at the cooler. Detective Bongiorno never assigned Reynolds
to go to the hospital to view or recover William's clothing, and
Reynolds never tested William's clothing for gunshot residue.
The items recovered by Reynolds were inventoried and taken to the
Chicago crime lab for analysis.
Police officer Robert Smith, a firearms expert, was not able
to form an opinion as to whether the cartridge casings of fired
bullets had been fired from only the recovered gun, but they
could have been. The bullet recovered from the inside of a soft
drink case in the store was fired from the submitted gun to the
exclusion of all others. Smith testified that the bullet
recovered from William's body by the medical examiner had been
fired from the recovered weapon (the black gun).
Assistant Medical Examiner Cynthia Porterfield performed the
autopsy on William on September 23, 1994 (the day after he died),
testified that he died from a gunshot wound to the abdomen, and
opined that the manner of death was a homicide. Porterfield
testified that William was 21 years old, measured 5 feet 9 nine
inches tall, and weighed about 260 pounds. William sustained a
single gunshot wound to his left abdomen. The bullet travelled
from front to back, from left to right, and in a downward
direction. Porterfield retrieved a medium-caliber fully copper-
jacketed bullet from the muscles of the right back.
The only other injury Porterfield found on William's body
was a small abrasion, similar to a scratch, on his left thigh.
William's body was unclothed when Porterfield received him and
she never examined William's clothing. If the shooting victim
was positioned on his hands and knees and the shooter was
standing, the gun would have had to have been below the victim's
body because the bullet went from front to back. William's wound
could not have been sustained if he were lying on his stomach or
face.
Defendant testified that he worked about seven hours in
Nayim Yousef's store on September 10, 1994 (a Saturday), and
about eight hours at the store on September 11, 1994 (a Sunday).
Defendant testified that he was not paid on either day.
On September 12, 1994, defendant returned to the store to
seek payment for his work. Hamad and William were at the store.
Defendant asked William for the money. William refused, saying
that defendant had broken a shelf and the money he earned would
have to pay for the shelf. Defendant claimed that the shelf
broke when he and Hamad slipped their hold of the shelf and it
shattered. When shown a photograph of the crime scene, defendant
testified that the broken shelf in the picture was not the shelf
that he had broken.
Defendant and William began a verbal argument over the
money, and William uttered a racial slur. William then swung at
defendant and defendant swung at William, but neither man made
contact. The verbal argument and missed punches lasted about
three minutes. After the missed punches were thrown, William
reached behind his back and pulled out a gun. Defendant
identified the recovered gun as the gun belonging to William.
Defendant testified that he grabbed William and the two men
were struggling while William held the gun. The struggle over
the gun lasted about 10 or 15 seconds. The gun discharged about
three times while defendant and William were struggling for the
gun. Defendant initially testified that he did not know where
the first shot went but later stated that the first shot went
toward the ceiling. Defendant thought that William was struck by
the second or third shot. The gun was in William's hand when
William was shot. Defendant got hold of the gun after the third
shot was fired.
Defendant told Hamad to get away from the door and testified
he ran away with the gun because he was afraid of going to jail.
After leaving the store, defendant threw the gun in a trash can
and ran to his apartment. From the incident in the store,
defendant had a little blood on his shirt, so he threw away the
shirt. Later, defendant attempted to locate the police and he
surrendered in the shoe shine parlor.
Defendant testified that he went to the store alone without
a gun and did not get money while he was there. Defendant denied
that he fired a shot at Hamad and denied that William and Hamad
removed their pants. Defendant testified that he never had a
ponytail.
Defendant testified that he initially lied to the police and
said he knew nothing about the shooting of William because he was
afraid he would go to jail. Defendant said he was now telling
the truth because he does not feel responsible for the shooting.
Defendant testified that "I didn't pull the trigger. He
[William] pulled the trigger, I didn't." Defendant also
testified: "I didn't shoot him. He shot himself. *** We were
struggling over the gun." The State asked: "Well. [D]id the gun
go off accidentally or did William Yousef pull the trigger?"
Defendant replied: "Accidentally?" Defendant also testified that
it was a "mistake" to say that William pulled the trigger.
Defendant called Detective Anthony Bongiorno as a witness.
Bongiorno testified that, during his interview with Hamad at the
crime scene, Hamad told him that only one man fired shots.
Bongiorno thought that the sequence of events was that one
offender hit one of the victims with the gun, the gun went off,
the victims were made to lie on the floor, and then additional
shots were fired. Bongiorno thought that Hamad had told him that
the victims were made to lie on the floor before any shots were
fired. Bongiorno does not recall Hamad telling him that Hamad
stood up and a third shot was fired at him. Bongiorno does not
recall asking an evidence technician to run a gunshot residue
test on William, Hamad, or defendant, nor does he recall asking
that a latent fingerprint test be run on the gun in this case.
The parties stipulated that defendant had five prior felony
convictions (August 7, 1984; June 21, 1985; August 7, 1987;
October 17, 1987; and July 13, 1990).
During the instructions conference, defense counsel
requested jury instructions on both second degree murder and
involuntary manslaughter. The trial court allowed the
instruction on involuntary manslaughter but refused the
instruction on second degree murder.
During the jury deliberations, the jury sent a note asking
in relevant part whether it was "legally possible for the jury to
return a verdict of guilty of armed robbery and guilty of
involuntary manslaughter." After consulting with both the State
and defense counsel, and with their approval, the trial court
responded in a written note stating "[p]lease read the
instructions & continue to deliberate."
After further deliberation, the jury found defendant guilty
of first degree murder for the death of William. The jury also
found defendant guilty of two counts of armed robbery, i.e., for
William and Hamad.
After the jury verdict was rendered, a fitness hearing was
held and it became known that defendant was receiving
psychotropic medication. Defendant was found fit for the
sentencing hearing. The trial court imposed a sentence of
natural life imprisonment.
Defendant first asserts that his testimony regarding his
struggle with William established mutual combat sufficient to
warrant the giving of a jury instruction on second degree murder
based on provocation. We disagree.
Second degree murder occurs when a person commits first
degree murder and a mitigating factor is present. 720 ILCS 5/9-2
(West 1994); People v. Porter, 168 Ill. 2d 201, 213 (1995).
The second degree murder statute recognizes two mitigating
factors: (1) "a sudden and intense passion resulting from serious
provocation"; and (2) an unreasonable belief in self-defense.
720 ILCS 5/9-2(a)(1),(a)(2) (West 1994). In the present case,
defendant asserts the serious provocation category, not self-
defense.
Serious provocation is defined as "conduct sufficient to
excite an intense passion in a reasonable person." 720 ILCS 5/9-
2(a)(2)(b) (West 1994). The law recognizes that mutual quarrel
or combat can be the kind of provocation to reduce first degree
murder to second degree murder. People v. Garcia, 165 Ill. 2d 409, 429 (1995).
Mutual combat is defined as "a fight or struggle which both
parties enter willingly or where two persons, upon a sudden
quarrel and in hot blood, mutually fight upon equal terms and
where death results from the combat." People v. Austin, 133 Ill. 2d 118, 125 (1989).
Mutual combat, however, does not constitute a fight where
one of the parties acts in self-defense. People v. Delgado, 282
Ill. App. 3d 851, 858 (1996), citing People v. Lewis, 229 Ill.
App. 3d 874 (1992). "'Struggling with an attacker in an effort
to ward off or defend one's self against an assault is not
sufficient to warrant a provocation instruction.'" Delgado, 282
Ill. App. 3d at 858, quoting Lewis, 229 Ill. App. 3d at 881.
Where a defendant finds himself the unwilling participant in a
fight and acts only to defend himself from an attack, he is not
entitled to a provocation instruction based on mutual combat.
Delgado, 282 Ill. App. 3d at 859.
Moreover, one who instigates combat cannot rely on the
victim's response as evidence of mutual combat to mitigate the
killing of that victim from first degree to second degree murder.
Austin, 133 Ill. 2d at 126; People v. Flores, 282 Ill. App. 3d
861, 867-68 (1996) (no abuse of discretion in refusing to give
the defendant's provocation instruction based on mutual combat);
People v. Perry, 226 Ill. App. 3d 326, 343 (1992) (no evidence of
serious provocation to warrant the lesser crime of manslaughter,
now codified as second degree murder).
In Perry, the court concluded that there was no evidence of
serious provocation where the defendant contended that his
uncontroverted testimony established that the victim pushed him,
swore at him and pulled a knife on him. The State, on the other
hand, presented witnesses who testified that the defendant always
carried a knife and the defendant robbed the victim. Perry, 226
Ill. App. 3d at 343. The State, therefore, argued that the
defendant approached the victim to rob him and the fight that
ensued was proven to be the result of the victim defending
himself. Perry, 226 Ill. App. 3d at 342.
Whether to give a specific jury instruction is within the
discretion of the trial court. Garcia, 165 Ill. 2d at 432. In
the present case, the defendant's testimony, at best, reveals
that he was an unwilling participant in the struggle with William
and acted only in self-defense. Self-defense, however, does not
entitle defendant to a provocation instruction based on mutual
combat. In addition, the State presented evidence to show that
defendant entered the store to commit armed robbery. In such a
case, defendant instigated the combat and cannot rely on his
alleged struggle with William to mitigate the offense of first
degree murder. We find that the trial court did not abuse its
discretion in denying defendant's tendered jury instruction on
second degree murder based on provocation.
Second, defendant asserts that the trial court committed
reversible error in its response to a question posed by the jury.
In the alternative, defendant submits that he was denied
effective assistance of counsel because his trial counsel agreed
to the court's response to the jury's question.
It is well established that both a contemporaneous objection
at trial and the subsequent inclusion of the challenged issue in
a posttrial motion are required to preserve an issue on appeal.
People v. Young, 128 Ill. 2d 1, 38-39 (1989); People v. Enoch,
122 Ill. 2d 176, 190 (1988). Defendant acknowledges that this
issue was not properly preserved because his trial counsel agreed
to the court's response to the jury's question and this issue was
not included in his posttrial motion. Accordingly, we find that
this issue is waived and is not preserved for appeal.
Plain error may be invoked where the evidence was closely
balanced or the error was of such magnitude that the accused was
denied a fair trial. People v. Redd, 173 Ill. 2d 1, 27 (1996).
Neither circumstance is present in the instant case to warrant
the application of the plain error doctrine.
We recognize that, under a similar fact pattern, a question
posed by the jury and a similar response by the trial court
resulted in the reversal of the defendant's conviction in People
v. Childs, 159 Ill. 2d 217 (1994). In Childs, however, the trial
court's response to the jury's question derived from an ex parte
communication between the judge, the prosecutor and the jury. In
addition, the defense counsel in Childs objected to the trial
court's response after hearing of it. Moreover, the trial court
made no attempt to clarify the question posed by the jury even
though it did not fully understand the question. The supreme
court concluded that, under the facts of Childs, the State
"failed to sustain its burden of proving that the trial court's
improper ex parte communication to the jury was harmless beyond a
reasonable doubt." Childs, 159 Ill. 2d at 235.
Unlike Childs, however, no ex parte communication occurred
in the instant case. Furthermore, there is no indication that
the trial court or counsel were confused by the jury's question
or needed any clarification of it. More importantly, defense
counsel was consulted by the trial court and agreed to the
response given by it to the jury. The law affords all counsel
the right to determine his or her own trial strategy. Defense
counsel may have believed that any confusion by the jury as
expressed in its note would benefit defendant. While we agree
with the general rule as restated in Childs, that the trial court
has a duty to provide instruction to the jury under certain
circumstances (Childs, 159 Ill. 2d at 229), we also must point
out that the defense counsel in Childs, unlike defense counsel in
the instant case, had no opportunity to agree or disagree with
the trial court's response to the jury's question because defense
counsel only learned of the matter after the deed had been done.
In the instant case, defense counsel, indeed, had input and a
choice on the response given by the trial court. To deny defense
counsel the right to make such strategy decisions would deprive
defendant of meaningful representation.
Third, defendant asserts that his conviction should be
reversed because he was on psychotropic medication during his
trial and was not afforded a fitness hearing at that time. In
the alternative, defendant maintains that he is entitled to a
retrospective hearing.
The psychotropic medication statute has undergone several
versions. Effective December 28, 1979, through December 12,
1995, section 104-21(a) of the Code of Criminal Procedure of 1963
provided:
"A defendant who is receiving psychotropic drugs
or other medications under medical direction is
entitled to a hearing on the issue of his fitness while
under medication." 725 ILCS 5/104-21(a) (West 1994).
By amendment in 1995 under Public Act 89-428, section 104-
21(a) provided:
"A defendant who is receiving psychotropic drugs
under medical direction is entitled to a hearing on the
issue of his or her fitness while under medication;
however, no hearing is required unless the court finds
there is a bona fide doubt of the defendant's fitness."
725 ILCS 5/104-21(a) (West Supp. 1997).
Pub. Act 89-428, eff. December 13, 1995.
Public Act 89-428, however, which effected the 1995 amendment,
was declared unconstitutional as violative of the single-subject
requirement of the Illinois Constitution in Johnson v. Edgar, 176 Ill. 2d 499 (1997).
By amendment in 1996, section 104-21(a) currently provides:
"A defendant who is receiving psychotropic drugs
shall not be presumed to be unfit to stand trial solely
by virtue of the receipt of those drugs or
medications." 725 ILCS 5/104-21(a) (West 1996).
Pub. Act 89-689, eff. December 31, 1996.
Defendant's jury trial was held on September 5, 6, and 7,
1995. Defendant's sentencing hearing was held on November 6,
1995. Accordingly, the initial version of the statute was in
effect at the time of defendant's trial and sentencing.
The State, however, maintains that the 1996 amended version
of this statute should apply because this appeal was pending
after the statute was amended. The State maintains that the 1996
amendment is procedural in nature and thus applies both to cases
subsequently filed and retrospectively to cases pending on the
effective date.
On June 20, 1996, the supreme court filed two opinions that
are difficult to reconcile: People v. Birdsall, 172 Ill. 2d 464
(1996), and People v. Nitz, 173 Ill. 2d 151 (1996).
In Birdsall, the retrospective application of the 1995
amendment to section 104-21 was found not to apply to a case that
was pending in the supreme court. Birdsall, 172 Ill. 2d at 475
n.1 (1996). The crime in Birdsall occurred in 1993 and the
supreme court issued its opinion in June 1996. The defendant's
pending appeal before the supreme court in Birdsall did not
warrant retrospective application of the 1995 amended version of
section 104-21.
However, in Nitz, the supreme court noted "the rule that
amendatory acts which are procedural in nature have retrospective
operation for matters which are pending on the effective date of
the amendment or are subsequently filed. [Citations.] As this
is a collateral matter [postconviction proceeding], the
amendment, though procedural in nature, does not apply." Nitz,
173 Ill. 2d at 162-63. Accordingly, the supreme court
characterized section 104-21 as "procedural in nature" and, thus,
amendments to the statute are subject to retrospective operation
for pending matters.
In a 1997 supreme court opinion dealing with the
psychotropic drug statute, the supreme court expressly declined
to consider the State's argument that the amended version of the
statue controlled the appeal. People v. Burgess, 176 Ill. 2d 289, 305-06 (1997) (filed April 24, 1997). In Burgess, the
supreme court only cited the Birdsall footnote that summarily
stated that the amended statute was not applicable in that case
and did not refer to the Nitz discussion of the procedural nature
of the statute. Burgess, 176 Ill. 2d at 306.
In its most recent decision, the supreme court again found
that it need not decide the question of whether the amended or
the prior version of section 104-21(a) applied to the appeal.
People v. Kidd, No. 78445, slip op. at 4 (September 18, 1997)
(defendant failed to establish entitlement to a fitness hearing).
A recent appellate decision used the version of section 104-
21 version in existence at the time of trial or sentencing.
People v. Miller, No. 1--95--3007 (August 7, 1997). The Miller
decision, however, does not indicate that the issue of the
application of the amendment was raised.
While we recognize that the supreme court has not decided
this issue, we find the discussion in Nitz instructive and
persuasive in its characterization of section 104-21 as
procedural in nature. Nitz, 173 Ill. 2d at 162. Since
procedural amendments are subject to retrospective application
for pending matters, we will apply the amended version of section
104-21 to the present appeal.
Defendant's three-day trial was held on September 5, 6 and
7, 1995. The next day (September 8, 1995), defendant authorized
the release of information from the Illinois State Psychiatric
Institute for the purpose of his presentence investigation
report. On October 19, 1995, the presentence report was filed
and a behavioral clinical examination was ordered. Dr. Dawna
Gutzman examined defendant on the same day (October 19) and
stated in her report that "defendant demonstrated an
understanding of the nature and purpose of the proceedings
against him, and was knowledgeable regarding the roles of various
courtroom personnel. Furthermore, he demonstrated a capacity to
assist counsel with regard to aggravating and mitigating
factors." The report further indicated that defendant had a
prescription for 300 milligrams of lithium carbonate to be taken
three times a day as a mood stabilizer. On November 2, 1995, a
fitness hearing was held and the sole witness was Dr. Gutzman.
The trial court found defendant fit for sentencing. The record
does not indicate that the type or dosage of the medication
prescribed for defendant at the time Dr. Gutzman examined was any
different at the time of trial.
Under the facts of this case, we find that defendant failed
to overcome the presumption that he was fit to stand trial solely
by virtue of the receipt of medication.
Next, defendant challenges his sentence on three grounds:
(1) the natural life sentence should be vacated because the jury
returned a general verdict convicting defendant of first degree
murder without determining whether defendant was guilty as the
actual shooter or under the principles of accountability; (2) the
sentence is excessive; and (3) the trial court considered
improper factors.
Defendant has waived review of any sentencing issue by his
failure to file a written motion to challenge the sentence as
required by statute. 730 ILCS 5/5-8-1(c) (West 1994) (Pub. Act
88-311, sec. 15, eff. August 11, 1993). In the present case,
defendant was sentenced on November 2, 1995, i.e., after the
effective date of the amendment. Defendant did not file a
postsentencing motion. Under the amendment, failure to file a
written postsentencing motion challenging the correctness of a
sentence waives review of the sentence for purposes of appeal.
E.g., People v. Reed, 282 Ill. App. 3d 278, 281 (1996), appeal
allowed 168 Ill. 2d 616 (1996); People v. McCleary, 278 Ill. App.
3d 498 (1996); People v. Moncrief, 276 Ill. App. 3d 533 (1995).
Finally, the State contends that this court should remand
the case for sentencing on the two armed robbery convictions. We
agree.
The sentencing order imposed a term of natural life without
parole for murder but did not enter sentences for the two armed
robbery counts. The cause, therefore, must be remanded for the
imposition of sentences on those convictions. People v. Dixon,
91 Ill. 2d 346, 353-54 (1982); People v. Frantz, 150 Ill. App. 3d
296, 300 (1986); see also People v. Daniel, 238 Ill. App. 3d 19,
35-36 (1992) (murder and armed robbery can be separate offenses
for which separate sentences can be imposed).
For the foregoing reasons, we affirm defendant's convictions
and remand the cause to the trial court for sentencing on the two
armed robbery counts.
Affirmed and remanded.
THEIS, J., concurs.
JUSTICE ZWICK, dissenting:
I dissent and would order a new trial based upon the trial
court's refusal to answer the question posed by the jury during
deliberations.
The Illinois Supreme Court has spoken recently and
decisively on this issue and held that jury deliberations are
governed by "several fundamental principles," chief among them
being the precept that "a jury is entitled to have its explicit
legal questions answered." See Childs, 159 Ill. 2d at 233.
In Childs, the jury posed a question during deliberations
which was virtually identical to that posed in the instant case.
The trial court refused to answer the question, instructing the
jury to continue deliberating. In reversing the defendant's
conviction, the supreme court reiterated the general rule that
the trial court has a duty to provide guidance where the jury has
posed an explicit question or requested clarification on a point
of law arising from facts about which there is doubt or
confusion, even where the jury was properly instructed
originally. Childs, 159 Ill. 2d at 228-29. The court further
held that when a jury makes explicit its difficulties, the court
should resolve them with specificity and accuracy, and the
failure to answer or the giving of a response which provides no
answer to the particular question of law posed has been held to
be prejudicial error. Childs, 159 Ill. 2d at 229 (and cases
cited therein).
The supreme court recognized that a trial court may exercise
its discretion and properly decline to answer a jury's inquiries
where the original instructions were readily understandable and
where further instructions would serve no useful purpose or would
potentially mislead the jury, when the jury's inquiry involved a
question of fact, or if the giving of an answer would cause the
court to express an opinion which would likely direct a verdict
one way or another. See Childs, 159 Ill. 2d at 228. However,
none of these circumstances were presented in the case at bar.
Here, as in Childs, the jury posed an explicit question
which manifested juror confusion on an "intricate" and
"difficult" point of law, which other cases have suggested is not
an uncommon source of juror confusion. Childs, 159 Ill. 2d at
234. The trial court had the obligation to dispel the jury's
confusion with a clear and specific answer. See Childs, 159 Ill. 2d at 232. Just as the trial court did in Childs, the trial
judge here simply ordered the jury to continue deliberating. It
was the responsibility and obligation of the court to answer
these types of questions, and the trial court erred by inaction.
The trial court's refusal to answer the question violated the
supreme court's clear and unequivocal mandate that jurors must
have this type of inquiry answered. Childs, 159 Ill. 2d at 228.
Therefore, I would reverse the defendant's conviction and
order a new trial.
September 30, 1997
No. 1-96-0037
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
SIDNEY PERRY, ) Honorable
) Themis N. Karnezis,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE GREIMAN delivered the opinion of the
court:
A jury found defendant Sidney Perry guilty of first degree
murder for the shooting death of William Yousef, of armed robbery
of William Yousef, and of armed robbery of Hani Hamad. The trial
court imposed a sentence of natural life in prison without parole
for the murder. Defendant now appeals his convictions and
sentence.
On appeal, defendant raises five issues: (1) whether the
trial court committed reversible error by refusing to instruct
the jury on second degree murder; (2) whether he is entitled to a
new trial based on the trial court's answer to a jury question
and his trial counsel's failure to object to the trial court's
response to the jury; (3) whether his convictions must be
reversed because he used psychotropic medication during his
trial; (4) whether the sentence of natural life in prison is
void; and (5) whether the sentence constituted an abuse of the
trial court's discretion. In addition, the State asserts that
this court should remand this case for sentencing on the two
counts of armed robbery.
For the reasons that follow, we affirm defendant's
convictions and sentence. We also remand the cause to the trial
court for sentencing on the two counts of armed robbery of which
defendant was convicted but for which no sentence was imposed.
On September 12, 1994, William Yousef (William) and his
cousin Hani Hamad (Hamad) were robbed while working in a closed
food store at Central and Lake Streets. During the robbery,
William suffered a gunshot wound to the abdomen and subsequently
died from the gunshot wound on September 22, 1994. Both
defendant and Moses Cathey were charged for the crimes.
Defendant and Cathey were tried simultaneously but before
separate juries.
In short, the State's position at trial, supported by the
testimony of victim Hamad, was that two men (defendant and
Cathey) entered the store, each man had a gun, they wanted money,
and defendant shot William. On the other hand, defendant
testified that he entered the store alone and unarmed, that
William pulled a gun, they scuffled over the gun, and William
shot himself.
At trial, the State presented, in its case in chief, the
testimony of Hamad (a robbery victim), Ken Witkowski (a police
officer), Thomas Reynolds (a forensic investigator), Cynthia
Porterfield (a medical examiner), and Robert Smith (a firearms
expert). In rebuttal, the State presented the testimony of Nayim
Yousef (the owner of the store and William's uncle) and recalled
Witkowski for further testimony.
Hamad testified that Nayim Yousef, William's uncle, bought a
grocery store at Lake and Central. The store had been closed for
business. On September 11, 1994, a Sunday, Hamad, William and
Nayim were working in the store to prepare for the store's
opening. Defendant entered and asked if any work was available.
After working about two hours, defendant asked Hamad for $40.
Hamad referred defendant to the owner, Nayim, who gave $20 to
defendant. All four men (Hamad, William, Nayim, and defendant)
then left the store for the day.
The next day, September 12, 1994, Hamad, William and Nayim
returned to work in the store. Defendant came to the store again
asking for work but was told that no help was needed. After
defendant and Nayim left the store, Hamad and William continued
the work in the store.
Hamad testified that defendant returned to the store with a
"partner." While the second man stood by William about 15 feet
away, defendant stood in front of Hamad and said "give me all the
money you have." Hamad replied that he did not have any money.
Defendant then pulled a black gun, said "No more money, m--------
---?" and fired one shot. The shot went behind Hamad and into
the glass. Hamad turned to see his cousin William and observed
the second man put a small silver gun in William's face. Hamad
told defendant: "Hold on, man. My money in my pocket. Take
anything you want. We have cigarettes. Take anything you want,
just don't shoot."
Hamad testified that defendant then told him to remove his
pants. As Hamad complied, his wallet fell to the floor.
Defendant took Hamad's wallet, which contained about $100, and
told Hamad to "take the floor." As Hamad got on his knees with
the palms of his hands on his thighs, defendant said "give me the
watch" and Hamad complied. Hamad saw William assume the same
position after being told to do so by the second man, who was
standing in front of William. William had also removed his pants
and the second man took William's wallet.
Hamad next heard a second gunshot but does not know who
fired the second shot. When the second shot was fired, Hamad was
completely on the floor and he could not see William from that
position. After the second shot, Hamad heard shelves fall and
somebody run away.
As Hamad tried to stand up, defendant fired more shots and
Hamad returned to the floor. At the time of the third shot, both
men were standing in the doorway and the shot hit a pop bottle.
The two men left the store. After the third shot, Hamad saw
William on the floor in a prone position. Hamad then went to the
front of the store and closed and locked the security gate.
Hamad returned to William, who was on the floor. William
said that "they shot me." Hamad saw a little blood on William's
stomach.
Hamad was unable to call the police since no phone had been
installed in the new business. Hamad told a lady in front of the
store to call the police and she did. The police arrived, cut
the gate, and entered the store. William was taken to the
hospital by ambulance.
Hamad told the police what had happened and then accompanied
the police to the hospital to see William, who was unconscious.
Later the same day, Hamad went to the police station and
identified defendant in a lineup. Hamad noticed that, at the
police station, defendant's hair had changed because he had cut
off his ponytail, which fact Hamad told the police.
The next day, Hamad returned to the police station and
identified a black gun as one that looked like the same gun
defendant had used during the store robbery.
Hamad denied that William and defendant argued or engaged in
a fight. Hamad also denied that William pulled a gun, that
William and defendant struggled over the gun, and that the gun
fired as the two of them were struggling over it. Hamad did not
see William face down with his chest on the ground.
Hamad denied telling the police detective that the robbers
told him and William to lie face down. Hamad testified that he
took two positions during the robbery. The first time, he was on
his knees and the second time, he was on his hands and knees with
his head down. Hamad told the police officers immediately after
the robbery that the robbers told him "to go down."
Nayim Yousef testified that, in September 1994, he purchased
a small grocery store near Lake and Central Streets. On
September 11, 1994, Yousef, Hamad and William worked in the
store to prepare it to open for business. On September 11,
Yousef hired defendant to do some work. Defendant worked for two
hours and Yousef paid defendant $20. On September 12, 1994,
defendant returned to the store and asked for work. Yousef
informed defendant that he did not need him that day because the
store was almost ready. Defendant then left the store and Yousef
left the store about 15 minutes later. When Yousef left, the
front door was unlocked and Yousef had the keys. When Yousef
left, both Hamad and William were wearing pants. Yousef never
talked to the police and never was contacted by the State's
Attorney about the subject matter of his trial testimony.
Police officer Kenneth Witkowski testified that on September
12, 1994, at 2:15 p.m., he responded alone to a radio message of
a man shot in a store. When he arrived at the store, Witkowski
found Hamad locked behind some burglar bars screaming for help.
Witkowski forced his way in under the burglar bars, observed
William lying on the floor, appearing to be unconscious, radioed
for help, made sure an ambulance was on the way, and called for a
fire truck to break the burglar bars. Witkowski testified in
rebuttal that he found William lying on the floor and wearing
only a sleeveless t-shirt and a pair of white briefs. In his
police report, Witkowski did not mention that William was not
wearing any pants.
Witkowski noticed that some of the store merchandise was
damaged and soda was all over the floor. Witkowski observed that
Hamad was visibly shaken, agitated and demanding help for
William. When Witkowski first arrived on the crime scene, he did
not ask Hamad if there was a struggle when the men came into the
store. Witkowski drove Hamad to the hospital. At the hospital,
Witkowski tried to gather information about the incident, learned
that William was in critical condition, and met with Detective
Anthony Bongiorno.
Witkowski returned to the store to canvass the area. After
some investigation, Witkowski and Bongiorno obtained the name of
a possible offender. While Bongiorno was on the phone and
Witkowski was inside a shoe shine parlor, defendant entered the
store and identified himself by name and as "the guy you are
looking for." Witkowski testified that he (Witkowski) was "kind
of in shock" and defendant put his hands behind his back.
Witkowski handcuffed defendant and read defendant the Miranda
rights. The two police officers then transported defendant to
the police station. At a lineup, Hamad identified defendant.
After a phone call to Detective Bongiorno, the two police
officers returned to the area of the store (333 North Central).
A young black male teenager approached the car and threw a bag in
Witkowski's lap. The bag contained a .380 Lorson semi-automatic
pistol. Upon returning to the police station, Witkowski showed
the gun to Hamad and Hamad said that it looked like the gun
defendant had used. Witkowski did not take the gun to be dusted
for prints.
Thomas Reynolds, a forensics investigator with the Chicago
police department, testified that he and his partner went to the
crime scene on September 12, 1994. Reynolds located three
discharged cartridge cases, one fired bullet, and one copper
jacket from a bullet. A copper jacket is a part of a fired
bullet. One discharged cartridge case was found on the floor
near the coolers, and William had been found lying in front of
the cooler. A second discharged cartridge case was located on
the floor near some shelving on the floor. A third discharged
cartridge case was on the floor in front of one of the coolers.
The fired bullet was located inside a case of soda pop. The
copper jacket was recovered near the bullet hole in a display
area between the window and the outer wall. The three discharged
cartridges came from a .380-caliber bullet.
At the scene, Detective Bongiorno did not request that
Reynolds perform a gunshot residue test on William or Hamad or
defendant. Reynolds dusted for fingerprints at the front door
and at the cooler. Detective Bongiorno never assigned Reynolds
to go to the hospital to view or recover William's clothing, and
Reynolds never tested William's clothing for gunshot residue.
The items recovered by Reynolds were inventoried and taken to the
Chicago crime lab for analysis.
Police officer Robert Smith, a firearms expert, was not able
to form an opinion as to whether the cartridge casings of fired
bullets had been fired from only the recovered gun, but they
could have been. The bullet recovered from the inside of a soft
drink case in the store was fired from the submitted gun to the
exclusion of all others. Smith testified that the bullet
recovered from William's body by the medical examiner had been
fired from the recovered weapon (the black gun).
Assistant Medical Examiner Cynthia Porterfield performed the
autopsy on William on September 23, 1994 (the day after he died),
testified that he died from a gunshot wound to the abdomen, and
opined that the manner of death was a homicide. Porterfield
testified that William was 21 years old, measured 5 feet 9 nine
inches tall, and weighed about 260 pounds. William sustained a
single gunshot wound to his left abdomen. The bullet travelled
from front to back, from left to right, and in a downward
direction. Porterfield retrieved a medium-caliber fully copper-
jacketed bullet from the muscles of the right back.
The only other injury Porterfield found on William's body
was a small abrasion, similar to a scratch, on his left thigh.
William's body was unclothed when Porterfield received him and
she never examined William's clothing. If the shooting victim
was positioned on his hands and knees and the shooter was
standing, the gun would have had to have been below the victim's
body because the bullet went from front to back. William's wound
could not have been sustained if he were lying on his stomach or
face.
Defendant testified that he worked about seven hours in
Nayim Yousef's store on September 10, 1994 (a Saturday), and
about eight hours at the store on September 11, 1994 (a Sunday).
Defendant testified that he was not paid on either day.
On September 12, 1994, defendant returned to the store to
seek payment for his work. Hamad and William were at the store.
Defendant asked William for the money. William refused, saying
that defendant had broken a shelf and the money he earned would
have to pay for the shelf. Defendant claimed that the shelf
broke when he and Hamad slipped their hold of the shelf and it
shattered. When shown a photograph of the crime scene, defendant
testified that the broken shelf in the picture was not the shelf
that he had broken.
Defendant and William began a verbal argument over the
money, and William uttered a racial slur. William then swung at
defendant and defendant swung at William, but neither man made
contact. The verbal argument and missed punches lasted about
three minutes. After the missed punches were thrown, William
reached behind his back and pulled out a gun. Defendant
identified the recovered gun as the gun belonging to William.
Defendant testified that he grabbed William and the two men
were struggling while William held the gun. The struggle over
the gun lasted about 10 or 15 seconds. The gun discharged about
three times while defendant and William were struggling for the
gun. Defendant initially testified that he did not know where
the first shot went but later stated that the first shot went
toward the ceiling. Defendant thought that William was struck by
the second or third shot. The gun was in William's hand when
William was shot. Defendant got hold of the gun after the third
shot was fired.
Defendant told Hamad to get away from the door and testified
he ran away with the gun because he was afraid of going to jail.
After leaving the store, defendant threw the gun in a trash can
and ran to his apartment. From the incident in the store,
defendant had a little blood on his shirt, so he threw away the
shirt. Later, defendant attempted to locate the police and he
surrendered in the shoe shine parlor.
Defendant testified that he went to the store alone without
a gun and did not get money while he was there. Defendant denied
that he fired a shot at Hamad and denied that William and Hamad
removed their pants. Defendant testified that he never had a
ponytail.
Defendant testified that he initially lied to the police and
said he knew nothing about the shooting of William because he was
afraid he would go to jail. Defendant said he was now telling
the truth because he does not feel responsible for the shooting.
Defendant testified that "I didn't pull the trigger. He
[William] pulled the trigger, I didn't." Defendant also
testified: "I didn't shoot him. He shot himself. *** We were
struggling over the gun." The State asked: "Well. [D]id the gun
go off accidentally or did William Yousef pull the trigger?"
Defendant replied: "Accidentally?" Defendant also testified that
it was a "mistake" to say that William pulled the trigger.
Defendant called Detective Anthony Bongiorno as a witness.
Bongiorno testified that, during his interview with Hamad at the
crime scene, Hamad told him that only one man fired shots.
Bongiorno thought that the sequence of events was that one
offender hit one of the victims with the gun, the gun went off,
the victims were made to lie on the floor, and then additional
shots were fired. Bongiorno thought that Hamad had told him that
the victims were made to lie on the floor before any shots were
fired. Bongiorno does not recall Hamad telling him that Hamad
stood up and a third shot was fired at him. Bongiorno does not
recall asking an evidence technician to run a gunshot residue
test on William, Hamad, or defendant, nor does he recall asking
that a latent fingerprint test be run on the gun in this case.
The parties stipulated that defendant had five prior felony
convictions (August 7, 1984; June 21, 1985; August 7, 1987;
October 17, 1987; and July 13, 1990).
During the instructions conference, defense counsel
requested jury instructions on both second degree murder and
involuntary manslaughter. The trial court allowed the
instruction on involuntary manslaughter but refused the
instruction on second degree murder.
During the jury deliberations, the jury sent a note asking
in relevant part whether it was "legally possible for the jury to
return a verdict of guilty of armed robbery and guilty of
involuntary manslaughter." After consulting with both the State
and defense counsel, and with their approval, the trial court
responded in a written note stating "[p]lease read the
instructions & continue to deliberate."
After further deliberation, the jury found defendant guilty
of first degree murder for the death of William. The jury also
found defendant guilty of two counts of armed robbery, i.e., for
William and Hamad.
After the jury verdict was rendered, a fitness hearing was
held and it became known that defendant was receiving
psychotropic medication. Defendant was found fit for the
sentencing hearing. The trial court imposed a sentence of
natural life imprisonment.
Defendant first asserts that his testimony regarding his
struggle with William established mutual combat sufficient to
warrant the giving of a jury instruction on second degree murder
based on provocation. We disagree.
Second degree murder occurs when a person commits first
degree murder and a mitigating factor is present. 720 ILCS 5/9-2
(West 1994); People v. Porter, 168 Ill. 2d 201, 213 (1995).
The second degree murder statute recognizes two mitigating
factors: (1) "a sudden and intense passion resulting from serious
provocation"; and (2) an unreasonable belief in self-defense.
720 ILCS 5/9-2(a)(1),(a)(2) (West 1994). In the present case,
defendant asserts the serious provocation category, not self-
defense.
Serious provocation is defined as "conduct sufficient to
excite an intense passion in a reasonable person." 720 ILCS 5/9-
2(a)(2)(b) (West 1994). The law recognizes that mutual quarrel
or combat can be the kind of provocation to reduce first degree
murder to second degree murder. People v. Garcia, 165 Ill. 2d 409, 429 (1995).
Mutual combat is defined as "a fight or struggle which both
parties enter willingly or where two persons, upon a sudden
quarrel and in hot blood, mutually fight upon equal terms and
where death results from the combat." People v. Austin, 133 Ill. 2d 118, 125 (1989).
Mutual combat, however, does not constitute a fight where
one of the parties acts in self-defense. People v. Delgado, 282
Ill. App. 3d 851, 858 (1996), citing People v. Lewis, 229 Ill.
App. 3d 874 (1992). "'Struggling with an attacker in an effort
to ward off or defend one's self against an assault is not
sufficient to warrant a provocation instruction.'" Delgado, 282
Ill. App. 3d at 858, quoting Lewis, 229 Ill. App. 3d at 881.
Where a defendant finds himself the unwilling participant in a
fight and acts only to defend himself from an attack, he is not
entitled to a provocation instruction based on mutual combat.
Delgado, 282 Ill. App. 3d at 859.
Moreover, one who instigates combat cannot rely on the
victim's response as evidence of mutual combat to mitigate the
killing of that victim from first degree to second degree murder.
Austin, 133 Ill. 2d at 126; People v. Flores, 282 Ill. App. 3d
861, 867-68 (1996) (no abuse of discretion in refusing to give
the defendant's provocation instruction based on mutual combat);
People v. Perry, 226 Ill. App. 3d 326, 343 (1992) (no evidence of
serious provocation to warrant the lesser crime of manslaughter,
now codified as second degree murder).
In Perry, the court concluded that there was no evidence of
serious provocation where the defendant contended that his
uncontroverted testimony established that the victim pushed him,
swore at him and pulled a knife on him. The State, on the other
hand, presented witnesses who testified that the defendant always
carried a knife and the defendant robbed the victim. Perry, 226
Ill. App. 3d at 343. The State, therefore, argued that the
defendant approached the victim to rob him and the fight that
ensued was proven to be the result of the victim defending
himself. Perry, 226 Ill. App. 3d at 342.
Whether to give a specific jury instruction is within the
discretion of the trial court. Garcia, 165 Ill. 2d at 432. In
the present case, the defendant's testimony, at best, reveals
that he was an unwilling participant in the struggle with William
and acted only in self-defense. Self-defense, however, does not
entitle defendant to a provocation instruction based on mutual
combat. In addition, the State presented evidence to show that
defendant entered the store to commit armed robbery. In such a
case, defendant instigated the combat and cannot rely on his
alleged struggle with William to mitigate the offense of first
degree murder. We find that the trial court did not abuse its
discretion in denying defendant's tendered jury instruction on
second degree murder based on provocation.
Second, defendant asserts that the trial court committed
reversible error in its response to a question posed by the jury.
In the alternative, defendant submits that he was denied
effective assistance of counsel because his trial counsel agreed
to the court's response to the jury's question.
It is well established that both a contemporaneous objection
at trial and the subsequent inclusion of the challenged issue in
a posttrial motion are required to preserve an issue on appeal.
People v. Young, 128 Ill. 2d 1, 38-39 (1989); People v. Enoch,
122 Ill. 2d 176, 190 (1988). Defendant acknowledges that this
issue was not properly preserved because his trial counsel agreed
to the court's response to the jury's question and this issue was
not included in his posttrial motion. Accordingly, we find that
this issue is waived and is not preserved for appeal.
Plain error may be invoked where the evidence was closely
balanced or the error was of such magnitude that the accused was
denied a fair trial. People v. Redd, 173 Ill. 2d 1, 27 (1996).
Neither circumstance is present in the instant case to warrant
the application of the plain error doctrine.
We recognize that, under a similar fact pattern, a question
posed by the jury and a similar response by the trial court
resulted in the reversal of the defendant's conviction in People
v. Childs, 159 Ill. 2d 217 (1994). In Childs, however, the trial
court's response to the jury's question derived from an ex parte
communication between the judge, the prosecutor and the jury. In
addition, the defense counsel in Childs objected to the trial
court's response after hearing of it. Moreover, the trial court
made no attempt to clarify the question posed by the jury even
though it did not fully understand the question. The supreme
court concluded that, under the facts of Childs, the State
"failed to sustain its burden of proving that the trial court's
improper ex parte communication to the jury was harmless beyond a
reasonable doubt." Childs, 159 Ill. 2d at 235.
Unlike Childs, however, no ex parte communication occurred
in the instant case. Furthermore, there is no indication that
the trial court or counsel were confused by the jury's question
or needed any clarification of it. More importantly, defense
counsel was consulted by the trial court and agreed to the
response given by it to the jury. The law affords all counsel
the right to determine his or her own trial strategy. Defense
counsel may have believed that any confusion by the jury as
expressed in its note would benefit defendant. While we agree
with the general rule as restated in Childs, that the trial court
has a duty to provide instruction to the jury under certain
circumstances (Childs, 159 Ill. 2d at 229), we also must point
out that the defense counsel in Childs, unlike defense counsel in
the instant case, had no opportunity to agree or disagree with
the trial court's response to the jury's question because defense
counsel only learned of the matter after the deed had been done.
In the instant case, defense counsel, indeed, had input and a
choice on the response given by the trial court. To deny defense
counsel the right to make such strategy decisions would deprive
defendant of meaningful representation.
Third, defendant asserts that his conviction should be
reversed because he was on psychotropic medication during his
trial and was not afforded a fitness hearing at that time. In
the alternative, defendant maintains that he is entitled to a
retrospective hearing.
The psychotropic medication statute has undergone several
versions. Effective December 28, 1979, through December 12,
1995, section 104-21(a) of the Code of Criminal Procedure of 1963
provided:
"A defendant who is receiving psychotropic drugs
or other medications under medical direction is
entitled to a hearing on the issue of his fitness while
under medication." 725 ILCS 5/104-21(a) (West 1994).
By amendment in 1995 under Public Act 89-428, section 104-
21(a) provided:
"A defendant who is receiving psychotropic drugs
under medical direction is entitled to a hearing on the
issue of his or her fitness while under medication;
however, no hearing is required unless the court finds
there is a bona fide doubt of the defendant's fitness."
725 ILCS 5/104-21(a) (West Supp. 1997).
Pub. Act 89-428, eff. December 13, 1995.
Public Act 89-428, however, which effected the 1995 amendment,
was declared unconstitutional as violative of the single-subject
requirement of the Illinois Constitution in Johnson v. Edgar, 176 Ill. 2d 499 (1997).
By amendment in 1996, section 104-21(a) currently provides:
"A defendant who is receiving psychotropic drugs
shall not be presumed to be unfit to stand trial solely
by virtue of the receipt of those drugs or
medications." 725 ILCS 5/104-21(a) (West 1996).
Pub. Act 89-689, eff. December 31, 1996.
Defendant's jury trial was held on September 5, 6, and 7,
1995. Defendant's sentencing hearing was held on November 6,
1995. Accordingly, the initial version of the statute was in
effect at the time of defendant's trial and sentencing.
The State, however, maintains that the 1996 amended version
of this statute should apply because this appeal was pending
after the statute was amended. The State maintains that the 1996
amendment is procedural in nature and thus applies both to cases
subsequently filed and retrospectively to cases pending on the
effective date.
On June 20, 1996, the supreme court filed two opinions that
are difficult to reconcile: People v. Birdsall, 172 Ill. 2d 464
(1996), and People v. Nitz, 173 Ill. 2d 151 (1996).
In Birdsall, the retrospective application of the 1995
amendment to section 104-21 was found not to apply to a case that
was pending in the supreme court. Birdsall, 172 Ill. 2d at 475
n.1 (1996). The crime in Birdsall occurred in 1993 and the
supreme court issued its opinion in June 1996. The defendant's
pending appeal before the supreme court in Birdsall did not
warrant retrospective application of the 1995 amended version of
section 104-21.
However, in Nitz, the supreme court noted "the rule that
amendatory acts which are procedural in nature have retrospective
operation for matters which are pending on the effective date of
the amendment or are subsequently filed. [Citations.] As this
is a collateral matter [postconviction proceeding], the
amendment, though procedural in nature, does not apply." Nitz,
173 Ill. 2d at 162-63. Accordingly, the supreme court
characterized section 104-21 as "procedural in nature" and, thus,
amendments to the statute are subject to retrospective operation
for pending matters.
In a 1997 supreme court opinion dealing with the
psychotropic drug statute, the supreme court expressly declined
to consider the State's argument that the amended version of the
statue controlled the appeal. People v. Burgess, 176 Ill. 2d 289, 305-06 (1997) (filed April 24, 1997). In Burgess, the
supreme court only cited the Birdsall footnote that summarily
stated that the amended statute was not applicable in that case
and did not refer to the Nitz discussion of the procedural nature
of the statute. Burgess, 176 Ill. 2d at 306.
In its most recent decision, the supreme court again found
that it need not decide the question of whether the amended or
the prior version of section 104-21(a) applied to the appeal.
People v. Kidd, No. 78445, slip op. at 4 (September 18, 1997)
(defendant failed to establish entitlement to a fitness hearing).
A recent appellate decision used the version of section 104-
21 version in existence at the time of trial or sentencing.
People v. Miller, No. 1--95--3007 (August 7, 1997). The Miller
decision, however, does not indicate that the issue of the
application of the amendment was raised.
While we recognize that the supreme court has not decided
this issue, we find the discussion in Nitz instructive and
persuasive in its characterization of section 104-21 as
procedural in nature. Nitz, 173 Ill. 2d at 162. Since
procedural amendments are subject to retrospective application
for pending matters, we will apply the amended version of section
104-21 to the present appeal.
Defendant's three-day trial was held on September 5, 6 and
7, 1995. The next day (September 8, 1995), defendant authorized
the release of information from the Illinois State Psychiatric
Institute for the purpose of his presentence investigation
report. On October 19, 1995, the presentence report was filed
and a behavioral clinical examination was ordered. Dr. Dawna
Gutzman examined defendant on the same day (October 19) and
stated in her report that "defendant demonstrated an
understanding of the nature and purpose of the proceedings
against him, and was knowledgeable regarding the roles of various
courtroom personnel. Furthermore, he demonstrated a capacity to
assist counsel with regard to aggravating and mitigating
factors." The report further indicated that defendant had a
prescription for 300 milligrams of lithium carbonate to be taken
three times a day as a mood stabilizer. On November 2, 1995, a
fitness hearing was held and the sole witness was Dr. Gutzman.
The trial court found defendant fit for sentencing. The record
does not indicate that the type or dosage of the medication
prescribed for defendant at the time Dr. Gutzman examined was any
different at the time of trial.
Under the facts of this case, we find that defendant failed
to overcome the presumption that he was fit to stand trial solely
by virtue of the receipt of medication.
Next, defendant challenges his sentence on three grounds:
(1) the natural life sentence should be vacated because the jury
returned a general verdict convicting defendant of first degree
murder without determining whether defendant was guilty as the
actual shooter or under the principles of accountability; (2) the
sentence is excessive; and (3) the trial court considered
improper factors.
Defendant has waived review of any sentencing issue by his
failure to file a written motion to challenge the sentence as
required by statute. 730 ILCS 5/5-8-1(c) (West 1994) (Pub. Act
88-311, sec. 15, eff. August 11, 1993). In the present case,
defendant was sentenced on November 2, 1995, i.e., after the
effective date of the amendment. Defendant did not file a
postsentencing motion. Under the amendment, failure to file a
written postsentencing motion challenging the correctness of a
sentence waives review of the sentence for purposes of appeal.
E.g., People v. Reed, 282 Ill. App. 3d 278, 281 (1996), appeal
allowed 168 Ill. 2d 616 (1996); People v. McCleary, 278 Ill. App.
3d 498 (1996); People v. Moncrief, 276 Ill. App. 3d 533 (1995).
Finally, the State contends that this court should remand
the case for sentencing on the two armed robbery convictions. We
agree.
The sentencing order imposed a term of natural life without
parole for murder but did not enter sentences for the two armed
robbery counts. The cause, therefore, must be remanded for the
imposition of sentences on those convictions. People v. Dixon,
91 Ill. 2d 346, 353-54 (1982); People v. Frantz, 150 Ill. App. 3d
296, 300 (1986); see also People v. Daniel, 238 Ill. App. 3d 19,
35-36 (1992) (murder and armed robbery can be separate offenses
for which separate sentences can be imposed).
For the foregoing reasons, we affirm defendant's convictions
and remand the cause to the trial court for sentencing on the two
armed robbery counts.
Affirmed and remanded.
THEIS, J., concurs.
JUSTICE ZWICK, dissenting:
I dissent and would order a new trial based upon the trial
court's refusal to answer the question posed by the jury during
deliberations.
The Illinois Supreme Court has spoken recently and
decisively on this issue and held that jury deliberations are
governed by "several fundamental principles," chief among them
being the precept that "a jury is entitled to have its explicit
legal questions answered." See Childs, 159 Ill. 2d at 233.
In Childs, the jury posed a question during deliberations
which was virtually identical to that posed in the instant case.
The trial court refused to answer the question, instructing the
jury to continue deliberating. In reversing the defendant's
conviction, the supreme court reiterated the general rule that
the trial court has a duty to provide guidance where the jury has
posed an explicit question or requested clarification on a point
of law arising from facts about which there is doubt or
confusion, even where the jury was properly instructed
originally. Childs, 159 Ill. 2d at 228-29. The court further
held that when a jury makes explicit its difficulties, the court
should resolve them with specificity and accuracy, and the
failure to answer or the giving of a response which provides no
answer to the particular question of law posed has been held to
be prejudicial error. Childs, 159 Ill. 2d at 229 (and cases
cited therein).
The supreme court recognized that a trial court may exercise
its discretion and properly decline to answer a jury's inquiries
where the original instructions were readily understandable and
where further instructions would serve no useful purpose or would
potentially mislead the jury, when the jury's inquiry involved a
question of fact, or if the giving of an answer would cause the
court to express an opinion which would likely direct a verdict
one way or another. See Childs, 159 Ill. 2d at 228. However,
none of these circumstances were presented in the case at bar.
Here, as in Childs, the jury posed an explicit question
which manifested juror confusion on an "intricate" and
"difficult" point of law, which other cases have suggested is not
an uncommon source of juror confusion. Childs, 159 Ill. 2d at
234. The trial court had the obligation to dispel the jury's
confusion with a clear and specific answer. See Childs, 159 Ill. 2d at 232. Just as the trial court did in Childs, the trial
judge here simply ordered the jury to continue deliberating. It
was the responsibility and obligation of the court to answer
these types of questions, and the trial court erred by inaction.
The trial court's refusal to answer the question violated the
supreme court's clear and unequivocal mandate that jurors must
have this type of inquiry answered. Childs, 159 Ill. 2d at 228.
Therefore, I would reverse the defendant's conviction and
order a new trial.
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