The opinion of the court was delivered by: Justice Burke
(NUNC PRO TUNC AS OF JUNE 30, 1998)
Appeal from the Circuit Court of Cook County.
Honorable Joseph J. Urso, Judge Presiding.
Defendant Rhamal Powell was charged with two counts each of aggravated battery, aggravated battery with a firearm, armed violence and attempted first degree murder. After a bench trial, defendant was found guilty of wounding two persons, and sentenced to 16 years' imprisonment on each count of attempted first degree murder and armed violence, to be served concurrently. The remaining counts merged with the attempted first degree murder and armed violence convictions. On appeal, defendant contends that(Nonpublishable material under Supreme Court Rule 23 omitted.) his sentence for armed violence violated the proportionate penalties clause of the Illinois Constitution of 1970 because the penalty for armed violence was disproportionate to the penalty for the predicate offense of aggravated battery (Nonpublishable material under Supreme Court rule 23 omitted.) For the reasons set forth below, we affirm.
On August 25, 1995, at approximately 2:30 a.m., Patricia Baker (Baker) and Cherie Morris (Morris) were each shot when gunfire was exchanged in a gang related altercation which occurred in the vicinity of their Chicago Housing Authority (CHA) rowhouse located at 13141 South Langley. After Baker and Morris subsequently picked defendant out of a police lineup, defendant was indicted by a grand jury and charged with two counts each of attempted first degree murder, armed violence, aggravated battery with a firearm, and aggravated battery.
On August 12, 1996, the trial court simultaneously heard the separate bench trials of defendant and co-defendants, Kareem Muhammad and Martize Dellinger. Baker testified that she was sitting on the back porch of the CHA rowhouse with Morris and two other persons named "Jermaine and Joseph" when she saw defendant and co-defendants walk from around the corner approximately 10 to 12 feet from the porch, and pull out guns. Joseph then said, "Something don't look right; those Hooks goin' to pop." Everyone on the porch jumped up and started running as Baker heard one of the three men say, "Don't a motherfucker move." As Baker attempted to run inside the house, she heard "a lot" of shots. Baker was able to get into the house, fell and crawled into the living room. She realized she had been shot in the upper buttocks. Baker stayed on the floor for approximately five minutes when she heard Morris screaming at the front door for her children to let her inside. Baker saw that Morris had been shot in the foot. Subsequently, Baker and Morris were taken in an ambulance to the hospital where Baker was treated for her gunshot wound with a wet saline dressing and was released from the hospital approximately three hours later.
Morris testified that she was sitting on the back porch with Baker, Jermaine and Joseph White. As Morris was speaking to Joseph, Joseph said to her, "Don't look right," and "That's them Hooks. They fixin' to shoot." Morris looked behind her and saw defendant and co-defendants approximately eight or nine feet from the porch. Defendant and co-defendants all had guns in their hands at the time. Morris started running as defendant and co-defendants "proceeded to shoot" and "continued to shoot" a number of shots that were "too many to count." Because defendant and co-defendants were shooting in the direction of the back door to the rowhouse, Morris had to run in the opposite direction toward the corner. As Morris ran approximately three or four feet from the back door, she fell, not knowing that she was shot; a bullet had gone through her right foot. After "a second," she jumped up, started running, and fell again. After she fell the second time, she could not get back up, so she "just laid there." As Morris was lying on the ground, she saw defendant and co-defendants run through the parking lot and across the street. Morris got up and hopped around the corner and to her front door where her daughter let her in the house. Morris saw Baker, who had also been shot "up by her butt," lying on the floor. An ambulance subsequently took Morris and Baker to the hospital where they stayed until approximately 6 a.m. Morris had an x-ray taken of her foot which revealed no fractures or dislocations.
Various photographs were identified and introduced into evidence depicting the scene of the shooting. One photograph showed a bullet hole in the top half of the back door of the rowhouse around a person's waist level. Another photograph showed a gym shoe with a hole in it, which Baker identified as Morris' gym shoe.
Defendant's written statement, taken by the police after defendant had been arrested, was introduced into evidence by stipulation of the parties. The statement revealed that at the time of the shooting, defendant was 16 years old and a member of the Conservative Vice Lords street gang. At approximately 2:30 a.m. on March 25, 1998, defendant and co-defendants, also Vice Lords, were in the area of 133rd and Langley because they knew that rival members of the Black Disciples street gang would be there. Defendant stated that he and co-defendants were carrying loaded handguns and that they were "looking for" Black Disciples who had shot at defendant and other Vice Lords earlier that night.
Defendant's written statement further stated that when defendant approached 133rd and Langley, he saw two Black Disciples, whom defendant knew as "J.J." and "Woo Woo," sitting on a porch with two women whom defendant did not know. Defendant kept walking toward the porch with co-defendants, and when defendant was approximately 10 feet away, J.J. and the two women got up and started to run. At this point, defendant was "right behind" one of the women. Defendant pulled his gun in an attempt to shoot J.J., pointing the gun in the direction of J.J. and the women, and fired it three times. After defendant fired at J.J., Woo Woo shot back. Co-defendants then started shooting in the direction of J.J., Woo Woo and the women, and defendant ran to "Block 17." Defendant kept the gun overnight, and then gave it to someone named "Reno" the next day.
Defendant presented no evidence other than his written statement. The trial court subsequently found defendant guilty of both counts each of attempted first degree murder, aggravated battery with a firearm, armed violence and aggravated battery based on great bodily harm. Defendant was sentenced to 16 years' imprisonment on each count of attempted first degree murder and armed violence, to be served concurrently. The counts for aggravated battery with a firearm and aggravated battery merged into the attempted murder and armed violence counts for which sentence was imposed. This appeal followed.
(Nonpublishable material under Supreme Court rule 23 omitted.)
Defendant Contends that his sentence for armed violence was disproportionate to the penalties imposed for the predicate offense of aggravated battery and, therefore, the armed violence charge and his ultimate conviction for that offense violated the proportionate penalties clause of the Illinois Constitution. (Ill. Const. 1970, art. I). The State contends that defendant's conviction for armed violence predicated on aggravated battery causing great bodily harm was proper because the statutes defendant attempts to compare as having disproportionate penalties do not require proof of substantively identical elements, but rather, both armed violence and aggravated battery have different elements. The State argues that because each statute governing armed violence and aggravated battery requires an element not found in the other, they are merely different punishments for separate and distinct offenses based on the commission of the same acts, which do not offend the Illinois constitution.
The Constitution of Illinois provides that "[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws" (Ill. Const. 1970, art. I, §11), and that "[a]ll penalties shall be determined both according to the seriousness of the offense with the objective of restoring the citizen to useful citizenship" (Ill. Const. 1970, art. I, §2). While the legislature has the power to declare and define conduct constituting a crime, and to determine the nature and extent of punishment for a crime committed, the preceding constitutional provisions mandate penalties which are proportionate to the offenses and require the legislature, in defining crimes and their penalties, to consider the constitutional ...