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People v. Plummer

OPINION FILED DECEMBER 23, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

TYRONE PLUMMER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant appeals his convictions of three counts of murder and one count of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), 9-1(a)(3), 18-2(a).) He was sentenced to a term of imprisonment of 32 years solely on the felony murder conviction (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(3)), not on the other three convictions (only one death resulted from his actions). His probation on a previous drug conviction was revoked, and he was resentenced to concurrently serve seven years on that conviction.

His appeal raises as issues whether: (1) there was error in his conviction on three counts of murder and one count of armed robbery; (2) he was proved guilty of murder and armed robbery beyond a reasonable doubt; (3) the prosecutor's closing argument was improper; (4) the simultaneous bench trials of defendant and a co-defendant were error; (5) he was denied effective assistance of counsel; (6) the cumulative effect of errors asserted denied him a fair trial; (7) sentencing defendant on his felony murder conviction was error; and (8) sentencing defendant on his probation violation was error.

The facts reveal that defendant was a pimp. His prostitute, Patricia Gray, solicited the victim, Fred Williams, around midnight on February 22, 1984, and went with him to the Esquire Hotel. The victim was very drunk and argued with Gray about the length of time she was to stay with him. The victim eventually agreed to one hour for $20, but had only a $50 bill and an additional $8. Gray had no change. The victim went to get change. While he was gone, Gray went through the pockets of his jacket removing a long, folding knife. The victim returned and told Gray that he would have to leave the hotel to get change. Apparently, as a showing of good faith, he gave Gray the $8. Gray left the room saying that she had to use the bathroom and left the hotel to meet defendant.

Defendant was at that time in a parked car in front of the hotel with another pimp, Mack Davis, and his prostitute, Lisa Avant. Defendant left the parked car and questioned Gray, who had been in the hotel for nearly an hour. She gave him the victim's knife, but not the $8. Avant, who was still in the car, heard defendant ask if $8 was all Gray had and then sent her back into the hotel to get some more.

Gray returned to the hotel room. The victim had his jacket on and told her that he was going out to get change. She went with him. On their way out, Gray saw defendant in the hotel lobby talking with the desk clerk. He followed them out of the hotel to the sidewalk where defendant demanded the $50 from the victim. The victim refused and defendant hit him in the face with his fist. Defendant and the victim walked a short way together. Davis then got out of his car and struck the victim on the head with a 2- or 3-foot rubber hose. The victim then gave Gray the $50 bill. Davis took a wallet from the victim, who was still standing, and gave it to Gray, who threw it down and ran across the street.

Avant saw defendant hit the victim again and then stab him in the chest. The car in which Avant was seated was parked about 25 feet from defendant, Davis, and the victim. Defendant, testifying on his own behalf, stated that if he stabbed the victim, and he did not realize it as he did it, the stabbing probably happened when the victim fell against him after being struck from behind by Davis. The victim died from a stab wound to the heart which had passed through the cartilage of the sternum.

Defendant, Davis, and Gray then got into the car with Avant, who stated that defendant gave her a wallet and the knife, which was bloody. She gave defendant the money from the victim. She saw the victim slide down from the fence that he was propped up against and asked what happened. According to Gray, defendant then stated either "I stabbed him. * * * It went in too easy," or "I think I stabbed the man." According to defendant, he said: "Man, I just have stabbed him. It went in awfully easy."

Davis then drove the car to the lakeshore where defendant told Gray to throw away the wallet and the knife. Another wallet, identified as the victim's, was thrown down near his body; Gray, Avant, and defendant each testified that a wallet taken from the victim was in the car after the killing.

Defendant and Davis were arrested on February 24, 1984, and indicted on three counts of murder, one count of armed robbery, and one count of armed violence each.

Prior to trial, defendant went through four changes of attorney. On October 31, 1984, William O'Neal, private counsel, was retained and the public defender's office moved to withdraw. The court denied the motion, and both O'Neal and the public defender represented defendant at trial and in the post-trial proceedings. O'Neal stated that he could be ready for trial by December 3, 1984, but when that date arrived, moved for a continuance. The continuance was denied and proceedings commenced on December 4, 1984. Defendant had moved to sever his trial from that of Davis, which was granted, but the trials proceeded simultaneously by bench trial before one judge.

The armed-violence count was subsequently dismissed during trial, and defendant was found guilty on all three counts of murder and the armed-robbery count. Davis was found not guilty on all counts. Defendant was then sentenced to a term of 32 years for felony murder and a concurrent 7-year term for violation of probation.

I

• 1 Defendant initially contends that the circuit court erred in convicting him of three counts of murder and one count of armed robbery. The circuit court found defendant guilty under the three different statutory theories of murder and convicted him of each (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), 9-1(a)(2), 9-1(a)(3)), finding that defendant's acts satisfied each of these definitions and accordingly convicted him of all three. He was sentenced only on the felony murder conviction, however. Since there was only one victim and only one murder, three murder convictions were improper. (See People v. Szabo (1983), 94 Ill.2d 327, 350, 447 N.E.2d 193.) Defendant's further contention that this court must determine which of the murder theories is the most serious, retain that most serious conviction, and then remand for resentencing is correct. In People v. Mack (1984), 105 Ill.2d 103, 137, 473 N.E.2d 880, defendant also was convicted of three counts of murder. The supreme court considered the intentional and knowing killing crime to be most serious because it involves a more culpable mental state than the crimes of shooting with knowledge of a strong probability of death or ...


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