APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 94 CR 5195. THE HONORABLE LORETTA C. DOUGLAS, JUDGE PRESIDING.
Released for Publication January 15, 1997.
The Honorable Justice Cousins delivered the opinion of the court: Mcnulty, P.j., and Hourihane, J., concur.
The opinion of the court was delivered by: Cousins
JUSTICE COUSINS delivered the opinion of the court:
Following a bench trial, defendant, Cornell Byrd, was convicted of two counts of intimidation for communicating threats to Chicago police sergeant David O'Callahan and Chicago police officer Martin Rios. The trial judge sentenced Byrd to an extended term of 10 years' imprisonment. On appeal, Byrd argues that: (1) the State failed to prove beyond a reasonable doubt that he had the specific intent to cause another to perform or omit the performance of any act; (2) evidence that he was reputed to be a high ranking member of the El-Rukn street gang, in which he disciplined fellow gang members and supervised a network of narcotics traffickers, was not relevant to any of the issues litigated at trial and was prejudicial; (3) he was denied his sixth amendment right to effective assistance of counsel because trial counsel failed to offer evidence that he did not belong to the El-Rukn street gang in January of 1994 (the month of his arrest on these charges), and because trial counsel failed to offer substantial evidence of witness O'Callahan's bias and hostility towards him; and (4) the trial court abused its sentencing discretion by imposing the maximum sentence, by making his sentence run consecutive to a federal sentence under which he was not serving time at the time of his sentencing hearing, and by refusing to give him credit for time served while in custody prior to trial.
At about 4 a.m. on January 17, 1994, Chicago police officers Jeffrey Johnson and Eileen Little parked their marked squad car near The Godfather Lounge on 87th and Harper in Chicago. While parked near the lounge, a person approached the car and told the officers that a person inside the lounge had a gun. A short time later, defendant exited the lounge with three other individuals and the person identified defendant as the person with the gun. Defendant and his companions entered a Jeep vehicle and began driving westbound on 87th. Another vehicle, a white Jeep, followed Byrd's vehicle.
The officers followed the defendant and curbed Byrd's vehicle at 87th and Dante. The white Jeep that had been following Byrd passed the officers and pulled over a quarter of a block ahead of the officers. Defendant exited the vehicle and Officer Johnson asked him for his driver's license. Defendant said, "What are you fucking with me?" Officer Johnson told defendant that he just wanted to see his license. Byrd gave the officer his license. Officer Johnson thought the license appeared to be fraudulent because the number and letter sequence in the driver's license number were in reverse order. The officer then asked Officer Little to run a name check on the license. After receiving information from the communications center, Officer Johnson told Byrd that he was under arrest for carrying a fraudulent driver's license. Sergeant O'Callahan overheard Officer Little's radio transmissions and proceeded to the scene.
The officers then instructed the other passengers to get out of the car so they could conduct a protective search. Assist cars and Sergeant O'Callahan then arrived on the scene. At this time, the white Jeep that had been following Byrd drove away. When Sergeant O'Callahan arrived, Byrd began to yell at the officers. He called the officers "a bunch of pussy motherfuckers," and claimed he was "tired of being fucked with." He told the officers that he knew Sergeant O'Callahan and that the sergeant used to be a commander but was demoted to the rank of sergeant because of him (Byrd) and the El-Rukns. Furthermore, Byrd told Sergeant O'Callahan that his men were willing to die for him and, if he gave the order, they would bust O'Callahan in the mouth and take the rap for it. He also told the sergeant, "Look, Johnny Fort and them were behind, you missed it all, we just dropped off a couple of kilos and if I wanted to I could have all of you all shot." Sergeant O'Callahan told Byrd that the officers did not need "all this showboating." Then the sergeant put Byrd in the back of a squad car.
Byrd was then transported to the fourth district police station and placed in an interview room with Charles Adams, one of the other passengers who had been arrested. One of Byrd's hands was handcuffed to a wall. Officer Little stayed in the interview room for some period of time to prepare the arrest report and other paperwork. Officer Johnson was in and out of the room periodically. Officer Johnson, Officer Little, and Sergeant O'Callahan all testified that Officer Rios was also present in the interview room as well. Sergeant O'Callahan entered the room to supervise the arrest procedures. At that time, Byrd said to Sergeant O'Callahan:
"Come a little closer. Why don't you step a little closer. I'll give you a real case, come a little closer so I can smack the shit out of you. I'm going to knock you on your ass and hit you in your head * * *"
Officer Johnson and Officer Little testified that they did not hear Byrd say to them or to Sergeant O'Callahan that he was going to hurt or kick someone if they did not let him go, but that Byrd did say to Sergeant O'Callahan, "I'll get you later on, don't worry about it." At this point, Officer Little left the interview room to write up the charges of intimidation. Byrd then said to Sergeant O'Callahan:
"Oh you're not going to be arresting me or anybody else. Look, you ain't going to be arresting nobody. We'll be dealing drugs anytime we want and I'll shoot you in the head * * * and I'll not put a cluster in your head."
Byrd then pointed at Officer Martin Rios and continued:
"You see that bulletproof vest? We teach our men to shoot above that bulletproof vest, and when we do it we don't put a cluster in your head, put one neat hole between your eyes so you guys will be eating worms in your ...