Appeal from the Circuit Court of Cook County. No. 94 CR 21171. Honorable Daniel Locallo, Judge Presiding.
The Honorable Justice Greiman delivered the opinion of the court. Zwick and Quinn, JJ., concur.
The opinion of the court was delivered by: Greiman
The Honorable Justice GREIMAN delivered the opinion of the court:
Following a jury trial, defendant John Biggs was convicted of first degree murder for the fatal shooting of Terry Chambers and attempted first degree murder for the nonfatal shooting of Anthony Baggett. The trial court sentenced defendant to 40 years on the first degree murder conviction and 20 years on the attempted first degree murder conviction, to be served consecutively. We affirm.
On appeal, defendant raises three issues: (1) whether the trial court abused its discretion in denying defendant's motion for a mistrial based on the testimony of a police detective referring to defendant's record with the police department; (2) whether the imposition of consecutive sentences was proper; and (3) whether defendant is entitled to credit for time served against each of his consecutive sentences.
Terry Chambers and Anthony Baggett were shot at about 1 or 2 a.m. on July 16, 1994. At trial, Baggett, the surviving victim who suffered a gunshot wound to the chest, recounted the shooting incident. In the early morning hours on July 16, 1994, Terry Chambers and Baggett were walking to Baggett's house after purchasing beer at a store when they were approached by two men. Baggett recognized one of the two men as defendant because Baggett had seen defendant around the neighborhood about twice a week for a period of two to three months, previously noticed defendant driving a small white car with a city sticker, and knew him to use the nickname "Pooh Bear."
When the two men encountered Chambers and Baggett, defendant pulled a gun from his waist and started shooting, hitting Baggett in the right side of his chest. Defendant and Baggett stood about four or five feet apart at this time. Chambers began running north and the two men, both of whom had guns, followed Chambers while shooting at him. Baggett went in another direction, toward his house. Baggett testified that when he arrived home, his mother and girlfriend took him to the hospital where he received medical attention and talked to the police.
At the hospital, Baggett told the police that he knew defendant by the nickname "Pooh Bear" and identified the area where defendant hung around. Three days after Baggett returned home from the hospital (July 19), he told the police about the kind of car that defendant drove.
Subsequently, Baggett identified defendant on two occasions: from a photo array on July 20, 1994, and at a lineup on July 27, 1994. Baggett testified that he was positive that defendant was the person who shot him.
Baggett testified that prior to the shooting incident, he and his girlfriend (Kimberly Harris) started drinking beer about 8 or 9 p.m. and he drank three to four 12-ounce beers. Baggett also smoked one cigarette of crack cocaine about the same time (8 or 9 p.m.). By the time of the shooting (1 or 2 a.m.), Baggett felt no effect of the cocaine and beer, and his ability to observe and recall was not affected.
During his trial testimony, Baggett testified that he was currently on home monitoring, a form of parole. Baggett had previously been incarcerated for the offense of possession of controlled substance with intent to deliver and another possession of controlled substance charge.
Kimberly Harris, the girlfriend of Baggett, testified that on the evening before the shootings, she was at Baggett's house with Baggett, Baggett's mother, Baggett's sister, and Chambers. After Baggett and Chambers went to the store to get beer, Harris heard gunshots and then Baggett ran into the house, hollering that he had been shot. Harris, with Baggett's mother and brother, took Baggett to the hospital. Harris did not see anyone, including Baggett, drink liquor during the day or evening of July 15. Harris did not see Baggett use any drugs during that time.
Johnnie Bonner testified that at about 2 a.m. on July 16, 1994, he was sitting on the porch with Chambers, who was a good friend. After Chambers left, Bonner heard gunshots in the distance. Bonner saw a person running but could not identify him. Bonner found Chambers lying face down in the doorway of a church, and he remained when police officers and an ambulance came to the scene.
Bonner testified that he was currently incarcerated on the charge of delivery of a controlled substance and had prior convictions for unlawful use of a weapon by a felon, armed violence, and theft.
Calvin Terry testified that shortly after 2 a.m. on July 16, 1994, he was driving by the church front, noticed the police, stopped and talked to the police. Terry provided Chambers' name and address to the police.
Terry testified that he was currently in prison for a conviction of unlawful use of a weapon by a felon. Terry had prior convictions for unlawful use of a weapon by a felon, possession of controlled substance with intent to deliver, delivery of a controlled substance, and robbery.
Police officer Ricky Galbeth testified that he and his partner were on patrol at about 2 a.m. on July 16, 1994, when they responded to a radio call of a man shot and found Chambers lying in the entrance way of a church. Chambers was not able to speak and had blood on the front of his shirt. Galbeth called for an ambulance and learned that another victim (Baggett) had been shot and taken to the hospital. Galbeth went to the hospital but could not interview Baggett because he was being treated. Later, paramedics, detectives and crime scene investigators arrived at the scene.
Officer Joseph Moran, a forensic investigator, conducted the crime scene investigations, including photographing and collecting the physical evidence at the location where Chambers was found (3507 West Chicago Avenue) and where the shooting began (747 North Trumbull). The locations are less than two blocks apart. Moran testified that Chambers was pronounced dead at the scene and that he found a cartridge case from a 9 millimeter semiautomatic weapon at 747 North Trumball. Moran also recovered a metal fragment that had been removed from Baggett at the hospital.
Detective Thomas McGreal was assigned to investigate the shootings. At the crime scene, Johnnie Bonner and Calvin Terry told McGreal that the murder victim was Chambers. After talking to Baggett and Harris at the hospital, McGreal began looking for a man with the nickname "Pooh Bear" who was reported to live near Trumbull and Chicago Avenues. When McGreal's shift ended the morning of July 16, the investigation was turned over to other detectives.
On July 19, Detective Ralph Vucko was assigned to do a follow-up investigation of the murder and shooting. After talking to Baggett, Vucko looked for defendant, who used the nickname "Pooh Bear," and a vehicle described as a small, two-door white car with a police tow sticker on it that was parked on Trumball. Vucko located the vehicle, picked up Baggett, and drove him past ...