The opinion of the court was delivered by: Justice Burke delivered the opinion of the court.
(NUNC PRO TUNC AS OF SEPTEMBER 23, 1998)
Appeal from the Circuit Court of Cook County.
Honorable Daniel Locallo, Judge Presiding.
Following a jury trial, defendant Terrance Willis was convicted and sentenced to 40 years' imprisonment for the attempted first degree murder of Demetrious McTizic, 10 years' imprisonment for the attempted first degree murder of Tyrone Rush, the sentences to run consecutively, and 30 years' imprisonment for armed violence, the sentence to run concurrently with defendant's 40-year sentence. *fn1 Defendant appeals his convictions and sentences, contending that: the trial court erred in allowing the jury to hear McTizic's and his doctor's testimony at the Cook County Hospital, the prejudicial effect of which deprived defendant of a fair trial; defendant was not proven guilty beyond a reasonable doubt of the attempted murder and aggravated battery with a firearm of McTizic and Rush, and armed violence against McTizic; and the trial court abused its discretion in sentencing defendant to consecutive sentences and an extended sentence. For the reasons set forth below, we affirm.
On July 27, 1994, defendant was arrested after a gang-related shooting incident, and subsequently indicted. On December 11, 1995, defendant filed a motion in limine requesting that the trial court deny a motion by the State to allow McTizic and his physician's testimony to be taken at the Cook County Hospital trauma ward. Defendant argued that he would be prejudiced by the taking of this testimony in the hospital because: McTizic's injuries would be "unduly highlighted without adding anything of probative value"; the jury would concentrate on McTizic's injuries more than on whether defendant was guilty or not guilty; "[b]y taking the extraordinary measure of transporting the jury to the hospital," the members of the jury would be given the impression that the injuries of the witness are more important than the testimony they will hear in court"; the jury would be exposed to other patients whose "many and varied traumatic injuries *** could horrify or disgust members of the jury"; hospital nurses and doctors might "convey personal opinions to the jury and subvert the objective decision making process"; the trial court would not be able to control "the unknown and unpredictable circumstances that could prejudice the defendant"; and the jury would be given the impression that McTizic's condition was due only to the initial injury and not to the "many intervening circumstances that caused injury" to him. Defendant also argued that McTizic's testimony was not crucial to the State's case because McTizic never made an identification of defendant; taking McTizic's physician's testimony in the hospital would prejudice defendant; and defendant would further be prejudiced because the jury would see defendant in the custody of the sheriff. Defendant contended that there were alternative methods of taking McTizic's testimony, "such as videotape testimony, deposition testimony, or stipulated testimony," which defendant offered to do. The trial court denied defendant's motion.
At trial, Rush testified that he became a member of the Gangster Disciples street gang when he was 16 years old, remained a member for about five years and was no longer a member by the summer of 1994. McTizic and Deandre Bishop were Rush's friends, and McTizic and Deandre were brothers. On the evening of July 27, 1994, while it was still light out, Rush and Deandre drove in Rush's car to 7751 South Phillips in Chicago to pick up McTizic where McTizic lived with his girl friend. Rush had never been in the area before. When they arrived, Rush waited in the car, which was double-parked with the windows rolled up and the motor running, while Deandre went inside to get McTizic.
Rush further stated that after Deandre went inside, two men approached Rush's car from each side. The man standing on the driver's side of the car, who had his hands under his sweat shirt, was defendant. Rush had known defendant for a period of about three or four years before this incident because defendant's father had lived in the same neighborhood as Rush when Rush was about 13 years old, but Rush had not seen defendant since Rush joined the Gangster Disciples. Rush "raised the window down" on the car's passenger side, and the man asked Rush, "Is you a psyche," meaning are you "Folks" or Gangster Disciples, and Rush told the man, "I ain't nothing." The man then told Rush to "pull over," and Rush said, "I will pull over to show you that I ain't nothing." The man near Rush's passenger window also told defendant, "Don't shoot him yet." Rush then pulled the car over near the corner of Phillips Street.
Theafter, Rush saw Deandre and McTizic in his side mirror coming out of the apartment building, and when 7 to 10 boys came "from everywhere" and jumped on Deandre, Deandre fell and then ran, and then jumped on the trunk of Rush's car. McTizic was "a couple seconds behind" Deandre. Between 7 and 10 people started hitting McTizic on the head "with bottles and stuff." Rush then saw defendant shoot at his car, the window shattered and he ducked; Rush then grabbed the steering wheel and the left side of his face and thought he was shot; Rush turned the corner on 78th and Phillips, at which time Deandre jumped on the back of the car; and Rush drove slowly so that McTizic could catch up, but McTizic only made it to the door handle of the car and fell in the street on the side of Rush's car by the back wheel.
Rush further testified that he had seen defendant stand over McTizic and shoot downward at him; McTizic was lying on the ground "balled up"; and Rush did not see anyone else on the scene with a gun, except defendant. At that time, Rush "just took off" and drove west on 78th Street to the corner of the next block, where his car hit a van. Deandre then "flew off of the car and went into the tree." Both Rush's car and the van were "totaled." Rush had "messed up" his legs, but climbed out of the car, started running down Yates, ran as far as he could, and then fell down and played dead.
Rush also stated that he spoke to some police officers on the scene, but did not give a description of defendant or defendant's name. An ambulance took Rush to Cook County Hospital; Rush's jaw was cut open and he had glass in his face. Rush spoke to Officers Boylan and McDermott in the emergency room, but did not tell them defendant's name. Rush was released from the hospital the next day, the police came to his home and asked him if he could identify defendant, he subsequently told the police that defendant had been wearing green pants and a "red little stripe on the shirt," and he viewed a lineup at police headquarters and identified defendant. Rush further testified that he had to wear a patch on his face for a month after the shooting incident and, at the time of trial, he still had glass in his left cheek.
The trial court subsequently transported the jury and defendant to a conference room at Cook County Hospital to hear McTizic's testimony. McTizic testified that on July 27, 1994, he was living at 7751 South Phillips with his girl friend, Allena Taylor, and her mother. At about 8 p.m., Deandre and Rush came to pick him up. When McTizic and Deandre left McTizic's apartment building, there were about 15 people around Rush's car, McTizic and Deandre "rushed to the car" and, when McTizic got to the car, someone yelled, "Capri killer." As McTizic tried to open the door of the car, Rush pulled away and McTizic was dragged about three feet by the car and then fell. Deandre was able to jump on top of the car as Rush pulled away. McTizic got up, tried to run and heard gunshots going off. He covered his head and the last gunshot hit him in the ear and he fell. While he was lying on the ground, people began gathering around him. An ambulance arrived and took him to Cook County Hospital, where it was determined that he had been shot two times in the abdomen, once in the left shoulder, once in his left ear and once in his right elbow. McTizic further stated that he had been under continuous medical care since that day, he could walk but not like he used to, and he could no longer eat normally. McTizic also stated that he was not in a gang on the day of the shooting incident, but had been in the Gangster Disciples before.
Dr. John Barrett, a trauma surgeon and the director of the trauma center at Cook County Hospital, testified that he was McTizic's physician and that McTizic was brought to the hospital on July 27, 1994, with multiple gunshot wounds to his head, his right shoulder and his abdominal cavity. The bullet wounds to McTizic's abdominal cavity were life threatening injuries because they perforated McTizic's intestines and he would have died if an operation had not been performed on him. Dr. Barrett further stated that McTizic's gall bladder was removed and his small intestine had to be shortened from 25 feet to 3 feet; the surgeons attempted to repair McTizic's duodendum, but failed; McTizic had 8 to 10 operations and had been under continuous medical care; McTizic was still in the intensive care unit because of his need for constant intensive care; and the complications experienced by McTizic were directly related to his gunshot wounds.
Thereafter, the jury returned to the courtroom. Allena Taylor then testified that after McTizic and Deandre left her apartment on the day of the shooting, she heard gunshots, and went outside and saw McTizic lying on the ground "balled up."
John Stella, a forensic investigator for the Chicago Police Department's Crime Lab, testified that he collected three cartridge cases from the crime scene. No fingerprints were lifted from the cartridge cases because the intense heat from firing would have dissipated the fingerprints, if any.
Officer Robert Furlong testified that he investigated the accident between Rush's car and the van. The van was "smashed up" and the car had "extensive damage." Furlong found Rush and Deandre lying on the grass alongside the car. Rush's face was bleeding and was "faint." Rush told Furlong that the shooter was wearing a green shirt with a red orange emblem on it and green pants.
Furlong further testified that he spoke to Deandre who "was very upset almost to the point of going into shock" and was crying, trembling and shaking. At that time, Deandre told Furlong that his name was Emmett Carter. Officer Furlong and two other police officers, Otten and Coleman, toured the area for five or six blocks around 78th and Yates in an unmarked squad car with Deandre. On the corner of 78th and Phillips, there was a large group of 15 to 20 people, including 7 or 8 young black males. Deandre told them to stop and back up, and then identified defendant who was standing in the group. Defendant was on a "little bike" at the time. Officer Furlong walked through the crowd, trying "to make it look like *** [he] wasn't going for anybody in particular," and went up to defendant and identified himself as a police officer. Furlong searched defendant and did not find anything on him. Furlong then handcuffed defendant and told him why he was being arrested. Furlong further stated that Deandre identified defendant as the shooter.
Detective James Boylan testified that the Black Stones street gang frequented the area of "73rd Street to 83rd Street, from Yates east to approximately Colfax." The Gangster Disciples frequented the area of "73rd Street to 83rd Street, from Colfax east to the lake." The area of 78th and Phillips was Black Stones territory. The "People" were gangs aligned with the Vice Lord street gang and the "Folks" were gangs aligned with the Gangster Disciples. The Black Stones were aligned with the People. During the summer of 1994, the Gangster Disciples were at war with the Black Stones. Defendant had told Boylan that he was affiliated with the Black Stones on June 9, 1994. Boylan subsequently went to the hospital and interviewed Allena Taylor and Rush in the emergency room. Rush told Boylan that Deandre jumped on the hood of the car and yelled for Rush to drive off. Rush also told Boylan that he turned westbound on 78th Street, heard a volley of gunfire, saw several black men with guns in their hands, and one of the men with a gun who approached his car "was medium complected [sic] about 19 to 20 years old wearing a green fuzzy hat with the brim turned up, red shirt and blue jeans." Boylan later interviewed Deandre. The next day, Boylan conducted a lineup, which included defendant. Rush viewed the lineup and identified defendant within seconds.
Deandre testified that he was McTizic's brother and that Rush was his friend. Deandre physically indicated how he had looked behind him after jumping on Rush's car and had seen defendant's face and saw defendant shoot McTizic five times while McTizic was "[b]alled on the floor covering his head." Deandre was a car length away when he saw McTizic being shot. Deandre also testified that defendant was the only person with a gun. After the police arrived, Deandre told the police what had happened and told them his name was Emmett Carter because he was too scared to give his real name. The police placed Deandre in their car and handcuffed him for about five minutes, then took the handcuffs off. Deandre rode with the police officers to the corner of 78th and Phillips, Deandre then told the police to back up after driving past a group of people, and identified defendant in the group to the police. The police then "grabbed" defendant and asked Deandre if he was certain of his identification and Deandre said he was sure that defendant was the one who shot McTizic.
The State rested, and defendant called Officer Marvin Otten as a witness. Otten testified that he spoke to Deandre at 78th and Yates. Deandre gave a description of the shooter as a male black wearing green pants and a green shirt with orange or red writing. Otten also corroborated Furlong's testimony.
Defendant then rested. The jury subsequently found defendant guilty of the attempted first degree murder of McTizic and Rush, aggravated battery with a firearm of McTizic and Rush, and armed violence against McTizic.
At his sentencing hearing, defendant moved for a new trial, arguing, among other issues not raised in this appeal, that he was prejudiced as a result of the jury's visit to the hospital to hear McTizic's and Dr. Barrett's testimony. The trial court denied defendant's motion, stating, in pertinent part:
" *** [T]his Court recognizes that the Illinois Constitution and Illinois law allows that a person who is a victim of a crime I believe has a right to testify surrounding the circumstances of the events which caused the injury."
"*** I believe that under People versus Speck, the Prosecution does not have to accept an offer by the Defense to stipulate to certain testimony. The Prosecution had a right to proceed to trial in the manner in which they wish to put on their case."
"***In order for the Prosecution to prove their [sic] case beyond a reasonable doubt at least as to the armed violence, they had to show not only was the Defendant Mr. Willis armed with a dangerous weapon, that being a handgun, but that he also intentionally and knowingly without legal justification caused great bodily harm to Demetrios [sic] McTizic. There was information brought to the Court that Mr. McTizic could not be brought into this facility for purposes of testifying based upon his health. There was a request that the jury be brought to the hospital."
"This Court believes that Mr. McTizic had a right to testify, and that because of one of the issues was whether there was great bodily harm that the finder of fact, that being the jury, had a right to assess not only ...