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01/14/94 PEOPLE STATE ILLINOIS v. DAVID MORLEY

January 14, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID MORLEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 91-CF-1001. Honorable John R. Goshgarian, Judge, Presiding.

Petition for Leave to Appeal Denied April 6, 1994.

Quetsch, Woodward, Geiger

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, David Morley, was found guilty of two counts of attempted first degree murder, two counts of aggravated discharge of a firearm, and a single count each of armed violence and aggravated battery with a firearm. The charges against defendant arose from his involvement in a shoot-out on May 7, 1991, with two Round Lake Beach police officers, one of whom, Detective David Ostertag, was struck by a bullet and seriously wounded. Defendant was sentenced to an extended term of 50 years' imprisonment for the attempted murder of Detective Ostertag to run consecutively to a sentence of 30 years' imprisonment for the attempted murder of the other officer, Detective Gary Bitler. On appeal defendant raises the following issues: (1) whether the trial court improperly admonished a defense witness, denying defendant the right to due process; (2) whether defendant was denied equal protection of the law by the prosecution's use of a peremptory challenge against the only black prospective juror; (3) whether the phrase "exceptionally brutal or heinous behavior indicative of wanton cruelty" as used in the extended-term sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)(2) (now codified, as amended, at 730 ILCS 5/5-5-3.2(b)(2) (West 1992))) is unconstitutionally vague in violation of the eighth amendment; (4) whether the trial court erred in finding the attempted murder of Detective Ostertag to have been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; and (5) whether the convictions of offenses other than attempted first degree murder must be vacated.

On the evening of May 1, 1991, two Round Lake Beach police officers observed suspicious activity at a self-storage facility. Upon investigation, they discovered defendant and James Files, a codefendant who was tried separately, inside a storage unit standing next to a vehicle that was later found to have been stolen. Files fled on foot, and defendant was taken into custody and charged with possession of a stolen motor vehicle. Defendant was released on bond with a scheduled court appearance on the morning of May 7, 1991. At one point while in custody defendant encountered Detective Ostertag while Detective Ostertag was conducting a prisoner check. They discussed defendant's bond hearing.

Defendant failed to appear in court on the morning of May 7. That afternoon, Detectives Ostertag and Bitler were driving north on Rand Road in an unmarked car. Both detectives were in plain clothes, and Detective Ostertag was driving the vehicle. As they approached the intersection of Rand Road and Plum Grove Road, Detective Bitler observed Files filling his car, a grey Pontiac, at a gas station located at the northeast corner of the intersection. Detective Bitler had been shown a photograph of Files and recognized him by his long grey hair. Detectives Bitler and Ostertag drove into the gas station, by which time Files was paying for the gasoline. Defendant was in the driver's seat of the Pontiac.

According to Detective Ostertag, as Files was returning from the cashier's booth he looked in the direction of the unmarked police car and ran to the Pontiac and jumped in, and the Pontiac sped away. The detectives pursued the Pontiac travelling north on Rand Road. During the pursuit, the detectives activated their vehicle's siren and "wig-wag" lights, which are white flashing lights mounted near the vehicle's head lamps. The detectives also placed an oscillating red lamp on the vehicle's dashboard and transmitted a report of the incident by radio. According to Detective Ostertag, during the pursuit, the police vehicle reached speeds of up to 85 miles per hour.

Kildeer Police Chief Jay Mills was driving in a marked squad car when he came upon the two vehicles travelling at a high rate of speed through the intersection of Rand Road and Long Grove Road. Chief Mills heard the police vehicle's siren and saw its headlights and the red light on the dashboard. Chief Mills had previously heard a radio report of the pursuit, and he followed behind the unmarked police vehicle, activating the flashing light and siren on his vehicle. Chief Mills was approximately 200 feet behind the Detective Ostertag and Detective Bitler's vehicle.

Shortly after passing through the intersection of Rand Road and Long Grove Road, the Pontiac made an abrupt right turn into a driveway and struck a tree. During the pursuit, Detective Ostertag had observed Files reaching into the backseat and retrieving an object. After the Pontiac had come to rest, Detective Ostertag saw Files holding a chrome semiautomatic pistol and attempting to exit the vehicle on the passenger side. Detective Ostertag drove the police vehicle into the passenger door of the Pontiac to block Files' exit. Detective Ostertag then shut the siren off. Files was sliding across the passenger seat of the Pontiac toward the open driver's side door. Detective Ostertag exited the police vehicle in a crouching position and moved toward the rear. At that point Detective Ostertag looked up and saw Defendant pointing a blue steel semiautomatic handgun at him over the roof of the Pontiac. Defendant fired one shot from a distance of about eight feet, striking Detective Ostertag in the chest.

Detective Ostertag began backing up when he heard five or six shots emanating from where defendant and Files were located. Detective Ostertag heard the bullets passing him on both sides as he was backing out. Now at the back of the police vehicle, Detective Ostertag heard Detective Bitler fire a shot and heard one or two more shots from Defendant and File's direction. Detective Bitler fired several shots in rapid succession. Detective Ostertag then removed his pistol and fired two shots at defendant and one shot at Files. At that point defendant and Files fled on foot. According to Detective Ostertag, the amount of time from the first gunshot to the last was about 25 seconds. Chief Mills was approaching the scene as the shots were being fired, and numerous law enforcement officers arrived shortly thereafter. Detective Ostertag testified that he wore his badge attached to his belt at the time of the shooting. Detective Bitler provided a similar account of the incident.

After a search of the area, defendant was located hiding in a section of pipe in the vicinity of the shoot-out. He was holding a handgun, but surrendered without incident when a police officer approached him with his gun drawn. Several clips of ammunition and a box of ammunition were recovered from defendant in addition to his weapon. James Files was discovered submerged in a swamp with only his head and hands above water. Later, a valise of some sort containing an AK 7.62 semiautomatic rifle was recovered from the swamp near where Files had been discovered. A search of the vehicle driven by defendant and Files produced a canister containing 520 rounds of ammunition for a weapon of that type.

All of the weapons involved in the shoot-out were semiautomatic handguns, which expel a spent shell casing after each shot is fired. A total of 14 shell casings were recovered from the scene. Five casings came from defendant's weapon; seven casings came from Detective Bitler's weapon; and two casings came from Detective Ostertag's weapon.

Defendant testified that for several months prior to May 1991 he had been assisting James Files in the operation of a "chop shop" which involves dismantling stolen automobiles in order to sell the parts. They would strip the cars in rented storage space and dispose of what remained in rural areas. Based on conversations with Files, defendant was aware that Files had been involved in such operations in the 1970's. From these conversations, defendant was aware that organized crime figures required chop-shop operators to pay a so-called "street tax" consisting of a large percentage of the proceeds of the operation. Files personally knew people who had been killed for refusing to pay the street tax.

According to defendant, shortly prior to May 7, Files had been summoned for a meeting with members of "the syndicate" at noon in the lobby of the Melrose Park Inn. Defendant accompanied Files to the meeting to serve as Files' "backup" in case of problems. Defendant was armed and he waited about 20 to 30 feet away as Files met with two individuals in the lobby. Defendant heard portions of the conversation, and after the meeting, Files told defendant that he had offered the individuals a few ...


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