Appeal from Circuit Court of Sangamon County No. 94CF597 Honorable Thomas R. Appleton, judge Presiding.
The opinion of the court was delivered by: Justice Cook
Following a jury trial, defendant was convicted of first degree murder (felony murder), armed robbery, and unlawful use of a weapon. 720 ILCS 5/9-1(a)(3), 18-2(a), 24-1(a)(4) (West 1994). Defendant was sentenced to concurrent terms of 20 years' and 15 years' imprisonment on the murder and armed robbery convictions, respectively, and a consecutive sentence of 2 years' imprisonment on the unlawful use of a weapon conviction. On appeal defendant argues (1) the trial court abused its discretion in quashing subpoenas issued to the attorneys for the State and two of his codefendants, and (2) he was denied effective assistance of counsel on the unlawful use of a weapon charge.
Defendant's conviction was a result of events that occurred on October 23, 1994. On that evening, Jason Smith, along with two masked men, Shain Ford and Terrence Woods, entered the residence of Michael Talley in Springfield. The three intruders, who were armed with handguns, demanded money and drugs. One of the masked men, Woods, shot and killed one of Talley's guests. After the shooting, Talley gave a box containing money and drugs to Smith, who then gave the box to one of the masked men, and the three fled the house.
Smith spoke with police the following day, October 24, and identified Shain Ford and Terrence Woods as suspects in the shooting incident. Smith also indicated that defendant had given him a ride from Springfield to Decatur following the shooting. On October 25, 1994, Ford told police that defendant had information regarding the incident.
During an interview with the police on November 1, 1994, defendant gave a statement and confirmed that on the evening of October 23, 1994, he drove Smith to Decatur. On the way to Decatur, Smith told defendant that Woods had shot someone. On January 5, 1995, the police followed defendant while he was driving his car to his mother's residence. After defendant reached his mother's residence, emerged from his car, and spoke with police, he agreed to go with them to the station to talk about additional information police had received from Smith and Ford regarding the October 23 incident. As defendant and police were getting ready to leave the premises, defendant approached his car. When Detective Young asked defendant if any weapons were located inside his car, he responded that a .380 gun was in the glove box and its clip was on the driver's visor. The police took possession of the handgun, which was not loaded, and the clip, which contained seven rounds. Defendant and police proceeded to the police station as planned, where defendant gave another statement.
At the station defendant gave a statement describing to police the events that transpired on October 23. Defendant drove Smith, Ford, and Woods to Talley's residence on that evening in order to obtain marijuana. Defendant dropped the three men off at Talley's residence and agreed to pick them up on a street near the house. Ten to fifteen minutes later, defendant heard a shot, saw the three men running toward the car, and saw Ford carrying a metal box. Inside the car, Smith indicated Woods had shot someone. Defendant drove the men to his house, where they split up the marijuana and money contained in the metal box. After defendant gave that statement, Officer Young contacted Assistant State's Attorney (ASA) Walker about finding the gun in defendant's car. Defendant was subsequently arrested and charged with unlawful use of a weapon as a result of the police finding the .380 gun in defendant's car. But, at that time, he was not charged with anything relating to the events on October 23, 1994. During a January 6, 1995, interview, defendant acknowledged he knew about the plan to rob Talley prior to driving the three men to the house. Defendant was charged by information on January 12, 1995, with first degree murder, armed robbery, and unlawful use of a weapon.
Both Smith and Ford testified against defendant at defendant's trial and against Woods at his trial. While testifying at defendant's trial, both Ford and Smith incriminated themselves in the October 23 shooting incident. After he testified at Woods' trial and before he testified at defendant's trial, Smith sent a letter on November 28, 1995, to ASA Walker requesting leniency in his sentencing. At defendant's trial Smith testified that his trial had been continued on numerous occasions and eventually was to take place after the completion of defendant's trial. However, Smith denied the State had offered him a deal in exchange for his testimony against defendant. Smith testified that he had not made a deal with the State regarding the sentence he would receive in his case, but that one reason he testified against defendant was because he had an expectation he would get some type of deal.
During his testimony, Smith described in detail defendant's role in the robbery. According to Smith, he and defendant had discussed robbing Talley in the past, as well as on October 23. Defendant recommended to Smith that they get Woods to help them in the robbery. When Smith picked up defendant that evening, defendant gave Smith a loaded .380 chrome handgun. After defendant and Smith picked up the other two men, defendant drove the men to Talley's house, waited in the car during the robbery, and drove the men back to his house.
Ford also testified as to defendant's role in the robbery. Ford testified that in the car on the way to Talley's he saw defendant give Smith a gun. Ford also indicated that defendant drove the men to Talley's house, and on the way, all four discussed the robbery plan. Following the robbery, defendant drove the men back to his house, where they split the proceeds.
Like Smith, Ford testified that his trial was continued several times and he was awaiting trial at the time of defendant's trial. Ford also denied having a deal with the State and denied the State ever told him he would get a particular sentence for his testimony against defendant and Woods. Ford did testify that one reason he was testifying against defendant and Woods was his expectation that he would get a deal from the State, but that no one from the State's Attorney's office or the police had ever indicated that he was facing anything less than 20 to 60 years' imprisonment for first degree murder. The court instructed the jury that the testimony of coconspirators should be viewed with caution.
On December 18, 1995, defendant was found guilty of the three offenses charged: first degree murder, armed robbery, and unlawful use of a weapon. On March 20, 1996, both Smith and Ford entered negotiated guilty pleas to armed robbery and home invasion, while the first degree murder charges against both were dismissed.
After denying defendant's motion for a new trial, the court sentenced him. Defendant then filed motions to vacate Judgement and reduce sentence. In his motion to vacate judgment, defendant alleged that the chronology of events in his case indicated that Smith and Ford knew a deal with the State was in effect when they testified against defendant, but that they denied the existence of a deal during their testimony. Defendant argued that he was denied due process since the State, during his trial, did not correct Smith and Ford's testimony to reflect that the State in fact had a deal with Smith and Ford in exchange for their testimony against defendant. In support of that motion, defendant subpoenaed ASA Walker, Ford's attorney, and Smith's attorney. It was defendant's attorney's expectation that at the hearing on the motion to vacate judgment, the testimony of the subpoenaed attorneys would establish that a deal had been reached between the State and Smith and Ford before defendant went to trial.
ASA Walker and Ford's attorney moved to quash the subpoenas. While Smith's attorney did not appear, ASA Walker indicated Smith's attorney was joining in the motion to quash the subpoenas. The court did not require Walker to testify under oath and she was not questioned by defendant's attorney. ASA Walker noted that she was bound by her oath as an officer of the court and stated that Smith and Ford had not been told of a deal at the time they testified against defendant and "there was no firm deal or offer" given to Ford's attorney or to Smith's attorney until after the completion of defendant's trial. Walker also explained that there were no negotiations by any of the parties prior to Smith's and Ford's testimony at defendant's trial. Ford's attorney agreed with ASA Walker, as an officer of the court (not under oath other than that) as to the negotiations between the State and his client. The court denied defendant's motion to vacate and explained "you have the statements which I consider to be sworn by the two officers of this Court, one on either side of those negotiations, which said clearly that no deal was struck and beyond that I'm not going to permit you to go."
The court did grant defendant's motion to reduce sentence on the felony murder conviction from 30 years to 20 years' imprisonment. The court noted that Smith had entered a plea for 18 years' imprisonment and Ford had entered a plea capping his imprisonment at 20 years. The court explained further, "Mr. Smith and Mr. Ford, who also went into the house with loaded weapons, got eighteen and let's say twenty each, and Mr. Paris, who's the driver, wasn't even inside the house, sentenced to thirty years, and that sentence fails the test, my test of fairness based on proportionality."
On appeal, defendant argues the trial court abused its discretion by quashing the subpoenas issued to the ASA and Smith's and Ford's attorneys. Defendant asks that we remand the cause for a hearing on that issue and allow defense counsel to call the ASA and Smith's and Ford's attorneys and examine them under oath as to any deal between the State and Smith and Ford at the time they testified at defendant's trial. The State argues that defendant has waived this issue because he failed to raise it in his first posttrial motion. Failure to raise an issue in a posttrial motion results in a waiver of that issue on appeal. People v. Enoch, 122 Ill. ...