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05/28/97 PEOPLE STATE ILLINOIS v. NATHANIEL PARKER

May 28, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NATHANIEL PARKER, JR., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County. No. 94CF282. Honorable Dennis K. Cashman, Judge Presiding.

Honorable James A. Knecht, J., Honorable John T. McCullough, J. - Concur, Honorable Frederick S. Green, J. - Concur. Justice Knecht delivered the opinion of the court. McCULLOUGH and Green, JJ., concur.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

After a jury trial in Adams County circuit court, defendant, Nathaniel Parker, Jr., was convicted of aggravated battery with a firearm in violation of section 12-4.2 of the Criminal Code of 1961 (720 ILCS 5/12-4.2 (West 1994)). He was sentenced to a term of 25 years' imprisonment in the Illinois Department of Corrections (DOC). Following denial of his motion for reduction of sentence, defendant has appealed (1) alleging ineffective assistance of counsel for failure to tender a jury instruction for included offenses and (2) contending the length of his sentence was excessive. We affirm.

Monique Clay and Sharnell Shaw testified at defendant's trial. The two stood talking near a car parked in front of a friend's home on Ninth Street in Quincy at approximately 2:30 a.m. on July 31, 1994. Monique stated she noticed five or six males, including defendant, Michael Milsap, and Carl Steele, approaching her location on Ninth Street from the alley intersecting Ninth Street nearby. About that same time both Monique and Sharnell saw a disturbance about two blocks down Ninth Street and started to run to see what was going on there. Monique was behind Sharnell while they were running. When they had run about one block, Monique turned around and saw defendant holding a long-barrelled gun, and when he fired, he was pointing it at Sharnell. The streetlights were bright, and she had no trouble seeing defendant and his actions.

Both Monique and Sharnell heard someone yell, "There he is. You're busted." Then they both heard a gunshot. Sharnell felt a burning sensation in his back and saw he was bleeding. He did not realize he was shot, however, until he arrived at his aunt's house, a short distance from the shooting. She told him he was shot and took him to the emergency room where pellets were removed from his back, head, hand, arm, and buttocks.

The State also called Michael Milsap as a witness. Milsap testified he had known defendant for a long time. During the evening of July 30, 1994, into the early morning hours of July 31, Milsap had been at a party at a social center in the neighborhood near the location of the shooting. There was a large group of friends there, including Carl Steele and defendant. During the course of the party, the group drank a keg of beer. Milsap then denied seeing the shooting but admitted he gave a taped statement to the police the day after the shooting. The tape was then played for the jury.

In the taped statement Milsap stated he left the party with defendant and some other men and started walking down an alley as a group. Defendant picked up a shotgun from behind some bushes because another group from Joliet were trying "to roll up on" Milsap, defendant and the others in their group. While they were walking, they noticed someone running "away" from their group. This made them suspicious, and defendant fired the shotgun at the running figure. No one else in the group had a firearm. The person defendant shot kept running. Milsap, defendant and other members of the group split up and ran away.

The State next called Carl Steele. Steele also had known defendant for a long time and was a good friend of his. Steele admitted he heard gunshots but denied seeing anything. He also admitted to giving a taped statement to the police on the day of the shooting. The tape was played to the jury. In that statement Steele stated defendant had been at his house earlier on the evening of the shooting and Steele saw him at the party at the social center with some friends, including Milsap. When the group of friends left, Steele caught up with them. He saw defendant run ahead and pick up a shotgun from some bushes or tall grass. He stated defendant had hidden the shotgun before because he was concerned about men named Ramone, Titus, and Henry. While the group was walking down an alley, Steele noticed defendant standing by a tree. A little boy ran away and defendant shot him because he thought he looked like his adversary, Henry. Steele stated that, after defendant shot the person, he stated, "I think I got him. I think I got him." The group then ran away. Steele stated the boy who was shot did not do anything of a threatening nature toward defendant or the group.

Both Milsap and Steele were called as witnesses for the defense and stated their taped statements were the result of coercion by the police. Milsap first told the police he did not know who shot the gun. He then admitted telling the police defendant picked up the shotgun out of the bushes but did so only because the police "was going to bring me up on charges." Steele stated he was taken to the police station around 6 a.m. on the date of the incident and handcuffed to a wall. He was not released from the handcuffs until about noon when the police interviewed him. He stated he made a statement, was accused of lying, and then changed his statement to the taped version.

A police detective was called by the State in rebuttal and testified Steele's handcuffs were removed around 8 a.m. Further, on the tapes of the statements, both Milsap and Steele were asked if they had been allowed to use the rest room and get soft drinks and both said they had. Each was also asked if any threats or promises had been made to him in exchange for his statements and each denied any coercion on the tape.

On this evidence, the jury returned a guilty verdict, and defendant was later sentenced to 25 years' imprisonment. Defendant contends he received ineffective assistance of counsel because trial counsel failed to tender instructions for included offenses, which he suggests are reckless conduct, aggravated discharge of a firearm or reckless discharge of a firearm. He further contends he should receive a new trial because the trial court failed to sua sponte instruct on those offenses.

The State contends any error regarding the issue of failure to instruct on included offenses has been waived. To preserve an issue for appeal, the issue is required to be raised both by an objection during trial and in a post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, 119 Ill. Dec. 265 (1988). In this case, the issue was not raised either at trial or in defendant's post-trial motion. The State asserts the issue does not amount to plain error, which allows an issue to be considered despite being otherwise waived.

We find that portion of the issue relating to the failure of the trial court on its own to instruct on included offenses has been waived. However, that portion of the issue relating to ineffective assistance of trial counsel for failure to tender any instructions on included offenses has not been waived. We agree with the reasoning in People v. Keener, 275 Ill. App. 3d 1, 5, 655 N.E.2d 294, 297, 211 Ill. Dec. 391 (1995), in which the second district held there was a per se conflict of interest in requiring trial counsel filing a ...


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