Appeal from Circuit Court of Macon County. No. 93CF366. Honorable John K. Greanias, Judge Presiding.
As Corrected July 18, 1995.
Honorable Frederick S. Green, J., Honorable Carl A. Lund, J., Honorable John T. McCULLOUGH, J., Concurring
The opinion of the court was delivered by: Green
JUSTICE GREEN delivered the opinion of the court:
On May 18, 1993, an information was filed in the circuit court of Macon County charging defendant Charles E. Gardner with several offenses alleged to have occurred on May 17, 1993. On May 19, 1993, additional charges were filed in that case naming James Folks (James) as an additional defendant and setting forth other offenses alleged to have been committed by one or both of those defendants on May 17, 1993. Further informations were later filed against both defendants.
After a joint bench trial, the court entered judgments on October 19, 1993, finding Gardner guilty of three counts of attempt (first degree murder) (720 ILCS 5/8-4(a), (c)(1) (West 1992)) and one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2 (a)(4) (West)) and finding James guilty of two counts of attempt (first degree murder) and two counts of aggravated discharge of a firearm. Subsequently, the court sentenced Gardner to three concurrent 30-year terms of imprisonment for attempt and a concurrent 15-year term of imprisonment for the aggravated unlawful discharge offense. All terms were ordered to be consecutive to a 15-year term of imprisonment Gardner was then serving. The court sentenced James to two concurrent 30-year terms of imprisonment for attempt and two concurrent 15-year terms of imprisonment for the aggravated unlawful discharge offenses.
Each defendant appealed separately -- James in case No. 4-93-1045, and Gardner in case No. 4-93-1046 -- and we have consolidated those appeals. The State's proof of the offenses of which James was convicted was based on a theory that he was accountable for offenses committed by Gardner. James asserts the proof that he committed attempt (first degree murder) was insufficient because the State failed to prove beyond a reasonable doubt that he shared an intent with Gardner that he intended victims of Gardner die. Both defendants contend they were denied effective assistance of counsel and that the statutory provisions creating the offense of aggravated unlawful discharge of a firearm are unconstitutional. Gardner also contends that the circuit court erred in receiving evidence that his nickname was "Al Capone." We affirm.
The evidence was undisputed that on the evening of May 17, 1993, Gardner, James, James' brother Paul Folks (Paul), and Howard Bailey were in a burgundy-colored Celebrity automobile which was driven by James and which went by the home of Kenny and Thomas Beasley on North Edwards Street in Decatur several times. During that time, Gardner fired several shots with a pistol.
Sheila Marie Dailey testified for the State explaining that (1) she lived in the house with the Beasleys; (2) on May 17, 1993, at about 6:30 p.m., she had driven a car into the driveway at that house and the Beasleys were working in the garage; (3) at that time, Thomas Beasley approached her car when a car came up Edwards Street at a high rate of speed and screeched its brakes; (4) the car was very similar to one owned by James' sister; (5) she ducked down and heard sounds like fireworks coming from the car that had screeched its brakes; (6) she next heard a door slam and the foregoing car drive away; (7) she then went inside and called the police whereupon she heard shots from the rear of the house; (8) she then heard more shots from in front of the house; and (9) the police then came by and she did not see anything more of significance.
Santia Jelks testified that (1) at about 6:30 p.m. on May 17, 1993, she was driving in the 1100 block of North Edwards Street; (2) she saw a car heading south at that time which fit the description of the car James was driving; (3) she saw a man hanging out of the passenger window of that car shooting three or four shots at men on a car in the driveway of a house fitting the description of the Beasley house; (4) the gun was pointed at the men on the car; (5) the men on the car ran to the back of the house; (6) after the shots, the car from which they came drove off to the south; and (7) the man firing the shots was the same person as defendant Gardner to whom she pointed.
Jelks further explained that (1) after the car with Gardner in it left, she went to a nearby corner and called 911 telling what she had seen; (2) when she went back onto Edwards Street, she saw the same car come back in a northerly direction; (3) when it got by the Beasley house, Gardner got out and started chasing two boys at whom he was also shooting; (4) Gardner then got back in the car and it drove off toward Leafland Street; and (5) when that car reached Leafland Street, it turned west and she heard further shooting at that time.
Mike Wetzel testified that (1) he lived in the 1200 block of North Edwards Street, which was just north of its intersection with Leafland Street; (2) in the evening of May 17, 1993, he heard gunfire to the south and ran to the corner of Leafland and Edwards; (3) he saw a man crossing the street running east in the 1100 block of Edwards into the area between houses; (4) he saw a "maroon" car there; (5) he lost sight of that car but it returned coming west on Leafland and then going south on Edwards; (6) when the vehicle got to the middle of the block, shots were fired from the passenger side of the vehicle into a house; (7) the maroon vehicle left and returned again with a person getting out and doing some shooting and getting back in again; and (8) the car left but returned again and shots were fired from the car.
According to Wetzel (1) the car later came back, and by the middle of the 1100 block four or five more shots were fired at the house; (2) the car continued north to Leafland, where it turned east; (3) he was then inside the yard of a corner house; (4) three or four more shots were fired then and the gun was pointed directly at him; and (5) a gunshot had apparently broken the window of his house.
Howard Bailey testified for the State that (1) on May 17, 1993, he was at Paul's house when James appeared; (2) James' face was scarred and James had indicated this had resulted from a former fight with the Beasley brothers; (3) he, James, and Paul went for a ride in a burgundy-colored Celebrity automobile; (4) at some point James left the vehicle and he and Paul met Gardner; (5) later James returned to the car and began driving; (6) at no time did anyone say they were going to the Beasleys to get even ...