People v. Benford

Annotate this Case
FIRST DIVISION


March 23, 1998

No. 1-95-4312

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

WILLETTE BENFORD,

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

Honorable
John J. Moran,
Judge Presiding.


JUSTICE GALLAGHER delivered the opinion of the court:
A jury convicted defendant, Willette Benford, of first
degree murder for the death of Patricia Phillips. The trial
court sentenced defendant to 50 years in prison. Defendant next
brought this timely appeal, asserting that: (1) she was denied a
fair trial by the trial court's admission of an evidentiary
photograph of the decedent's nude body, where it depicted a
large, unexplained laceration on the decedent's body; (2) during
sentencing, the trial court improperly considered victim impact
statements in violation of the Rights of Crime Victims and
Witnesses Act (725 ILCS 120/1 et seq. (West 1994)), thus
entitling defendant to a new sentencing hearing; and (3) the
judgment order erroneously reflected concurrent sentences of 50
years' imprisonment on two counts of murder, where Patricia
Phillips was the only victim in this case. We affirm defendant's
conviction and sentence, and we modify the trial court's written
order of judgment to reflect defendant's conviction on a single
count of first degree murder.
The evidence at trial showed that, in the early morning
hours of January 31, 1995, defendant, while driving her mother's
car, struck and killed Patricia Phillips outside Jasmin's, a
Chicago nightclub located on Hubbard Street near Halsted.
Defendant and Ms. Phillips were romantically involved, and the
two had quarreled while dancing at the nightclub that morning.
Eyewitness testimony from club patrons and security
personnel revealed that, at approximately 2:50 a.m., defendant
hurriedly exited the premises. Defendant then got into a dark
Cadillac, borrowed from her mother. Ms. Phillips followed
defendant out, but defendant refused to let her into the
Cadillac. As defendant began to pull away, Ms. Phillips leaped
onto the hood of the vehicle, directly in front of the steering
wheel. Defendant pulled out of the parking space and caused Ms.
Phillips to fall off of the car and into the street. The
Cadillac, with defendant driving, sped westbound on Hubbard and
then made a U-turn. The car next proceeded eastbound on Hubbard
back toward the spot where Ms. Phillips lay. Before the
eyewitnesses could assist Ms. Phillips out of the street,
defendant struck the victim with her mother's Cadillac and
proceeded eastbound on Hubbard.
The eyewitness testimony diverged somewhat on the
description of this initial hit. A club patron testified that it
appeared as if all four wheels ran over the victim. However, a
club security guard stated that when the Cadillac struck the
victim, her body "flew" vertically and landed slightly north from
where she had originally lain in the street. Nevertheless, both
eyewitnesses testified that defendant stopped the car at the stop
sign located where Hubbard and Halsted Streets intersect, backed
up some 40 or 50 feet, and struck the victim a second time.
After the second hit, defendant again drove eastbound toward
Halsted Street and sped away. The victim, Patricia Phillips, was
taken by ambulance to Northwestern Memorial Hospital, where she
was ultimately pronounced dead. Rockford police arrested
defendant outside her mother's house later that day--but only
after the Cadillac's license plate had been traced to her
mother's Rockford address.
The defense offered two alternative theories at trial: (1)
defendant's conduct resulted from a serious provocation by the
victim and that this provocation sufficiently mitigated the
offense to second degree murder; and (2) defendant did not
intentionally run over the victim and thus was guilty only of
reckless homicide. Although the jury received instructions on
each of these defenses, it found defendant guilty of first degree
murder.
In her first argument on appeal, defendant complains that
she was denied her right to a fair trial when the trial court
allowed the jury to view an inflammatory, nude autopsy photograph
of the victim showing a large laceration near the victim's pubic
region. The trial court admitted four post mortem photographs of
the victim, including People's exhibit number 34 (hereinafter
exhibit No. 34). Defendant asserts that because the State failed
to introduce any evidence that a laceration depicted in exhibit
No. 34 was caused by the car's impact, the admission of that
photograph served only to inflame the passions of the jury and
unfairly prejudice defendant. In support of her argument,
defendant cites People v. Gonzalez, 265 Ill. App. 3d 315, 637 N.E.2d 1135 (1994), wherein it was held that a staged photograph
highlighting a gunshot wound to the victim's penis was more
inflammatory than probative of any fact at issue in the case.
Defendant concludes that she is entitled to a new trial.
The decision to permit the jury to view photographs of a
decedent rests within the sound discretion of the trial court.
Gonzalez, 265 Ill. App. 3d at 324-25, 637 N.E.2d at 1142, citing
People v. Henderson, 142 Ill. 2d 258, 568 N.E.2d 1234 (1990).
Such photographic evidence is admissible if relevant, so long as
it is not so inflammatory or prejudicial that it outweighs its
probative value. Gonzalez, 265 Ill. App. 3d at 325, 637 N.E.2d
at 1143. These types of photographs are relevant and therefore
admissible if they may aid the jury in understanding testimony,
despite the fact that the photographs may be cumulative of that
testimony. Gonzalez, 265 Ill. App. 3d at 325, 637 N.E.2d at
1143.
The State contends that defendant has waived appellate
review of her objection to the autopsy photograph. The State
points out that defendant stipulated to the testimony that
explained the victim's injuries in the various photographs. If
such testimony was somehow inadequate, the State reasons,
defendant should not have agreed to allow it to be admitted,
citing People v. Sclafani, 166 Ill. App. 3d 605, 610, 520 N.E.2d 409, 412 (1988)(holding that an accused may not complain of
evidence that he or she has stipulated into the record).
Moreover, defendant failed to object to the admission of exhibit
No. 34 either at trial or in her posttrial motion. To preserve
an issue for appellate review, a defendant must make a timely
objection at trial and file a written posttrial motion that
identifies the alleged error. People v. Enoch, 122 Ill. 2d 176,
186, 522 N.E.2d 1124, 1129-30 (1988). Because defendant failed
to properly preserve this issue for review, we deem her objection
to exhibit No. 34 waived.
Nevertheless, defendant asserts that we should consider the
issue of the photo pursuant to Supreme Court Rule 615(a) (134
Ill. 2d R. 615(a)), the plain error rule. The plain error rule
allows for appellate review in criminal cases even though a
defendant has not properly preserved an error for review, where
the evidence is closely balanced or where the error adversely
affected the defendant's right to a fair trial. People v.
Mullen, 141 Ill. 2d 394, 401-02, 566 N.E.2d 222, 226 (1990).
The evidence in this case was not closely balanced.
Defendant herself testified that the victim rolled off the hood
of the car as she pulled away, that she drove with her headlights
on, and that she thought she hit something after she turned
around. Two eyewitnesses testified that they saw defendant drive
the car into the victim--twice. One eyewitness also testified
that, after the initial impact, he was close enough to the car to
open its door and scream "you just hit her" at the driver. All
of this testimony overwhelmingly supported the State's theory
that defendant intentionally struck the victim. Moreover, even
assuming that the trial court erred in admitting the complained-
of photograph--and that such error adversely affected plaintiff's
right to a fair trial--we find that any such error fails to
warrant reversal in light of the overwhelming eyewitness
testimony. People v. Gonzalez, 265 Ill. App. 3d at 325, 637 N.E.2d at 1143 (admission of grisly photographs depicting wounds
to victim's genitals, though improper, did not constitute
reversible error); People v. Peterson, 171 Ill. App. 3d 730, 525 N.E.2d 946 (1988) (improper admission of inflammatory post mortem
photographs did not constitute reversible error).
Defendant alternatively asserts that she was denied the
effective assistance of counsel, where her trial counsel failed
to object to the admission of exhibit No. 34. For defendant to
prevail on a claim of ineffective assistance of counsel, she must
establish that the representation she received was objectively
unreasonable and that, absent counsel's unprofessional errors,
the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), rev'g 693 F.2d 1243 (5th Cir. 1982). Given our
determination that any error in the admission of exhibit No. 34
does not warrant reversal, we hold that defendant fails to
demonstrate that she was prejudiced by her counsel's omission;
thus, her ineffective assistance claim also fails.
Defendant next charges that the trial court erred during the
sentencing phase of the trial when it considered 12 victim impact
statements, in violation of the Rights of Crime Victims and
Witnesses Act. 725 ILCS 120/1 et seq. (West 1994). Defendant
claims that the trial court's violation of the precepts of this
act requires this court to grant her a new sentencing proceeding.
While the trial court may have erred in considering extra victim
impact evidence, we reject defendant's argument that she is
entitled to a new sentencing hearing.
Defendant correctly points out that the victim of a violent
crime enjoys the statutory right to present a victim impact
statement. 725 ILCS 120/6 (West 1994). The statutory definition
of a "crime victim" includes "a single representative who may be
the spouse, parent, child or sibling of a person killed as a
result of a violent crime perpetrated against the person killed."
725 ILCS 120/3(a)(3) (West 1994). Defendant contends that the
trial court erred because it did not consider the victim impact
statement of "a single representative" but, rather, it considered
victim impact statements from 12 people. Furthermore, the trial
court's conduct was particularly egregious, according to
defendant, insofar as 10 of the individuals submitting impact
statements did not even qualify as crime victims under section
3(a)(3). Indeed, the record suggests that, in accepting and
considering the impact statements offered by the prosecution, the
trial court did not comply with the provisions of the Act.
Yet even if this court were to find that the trial court
erred when it considered more than one victim impact statement,
such a finding would avail defendant nothing. The Rights of
Crime Victims and Witnesses Act specifically states: "Nothing in
this Act shall create a basis for vacating a conviction or a
ground for appellate relief in any criminal case." (Emphasis
added.) 725 ILCS 120/9 (West 1994). As the title of the Act
suggests, it was intended as a shield to protect the rights of
victims and witnesses forced, through no fault of their own, to
participate in the criminal justice system. The language quoted
above, delineating the scope of the Act, expressly reveals that
its provisions may not be used as a sword by criminal defendants
seeking appellate relief. Accordingly, we reject defendant's
second point of error.
Finally, although defendant was convicted of a single count
of first degree murder and sentenced to one 50-year term in the
Illinois Department of Corrections, the judgment order
incorrectly reflects that two concurrent sentences of 50 years
were imposed on two counts of first degree murder. Both sides
agree that where there is only one victim, judgment is properly
entered on only one murder conviction. People v. Williams, 215
Ill. App. 3d 800, 814-15, 576 N.E.2d 68, 77 (1991). Therefore,
we modify the trial court's written order of judgment to conform
to the trial court's oral pronouncement of one sentence of 50
years' imprisonment on a single count of first degree murder.
In light of the foregoing, we affirm the judgment of the
circuit court of Cook County as modified.
Affirmed as modified.
CAMPBELL, P.J., and O'BRIEN, J., concur.

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