The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County
Honorable Stuart E. Palmer, Judge Presiding.
After a bench trial, defendant Percy Jones was convicted of two counts of aggravated battery with a firearm under the theory of accountability for the actions of co-defendant William Ephraim. For these two convictions, the trial court sentenced defendant to two consecutive terms of 11 years' imprisonment.
On appeal, defendant challenges his convictions on the grounds (1) that his trial counsel was ineffective by eliciting, during the cross-examination of Detective John Halloran, the hearsay statement of Ephraim and by failing to object to the introduction of the portions of defendant's custodial statement that included certain statements of Ephraim; and (2) that the State failed to prove defendant's guilt under the accountability theory. We affirm defendant's convictions.
In addition, defendant contests his sentence on the grounds that (1) credit for time served during his pretrial custody should be applied to each of his consecutive sentences; and (2) the truth-in-sentencing provision enacted in Public Act 89-404 (Pub. Act 89-404, eff. August 20, 1995) is unconstitutional because it violates the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8). Regarding sentencing credit, the Illinois Supreme Court recently decided that credit for time served will not apply to each individual consecutive sentence but, rather, will be applied only once. People v. LaTona, Nos. 84102, 84125, 84221 (consolidated), slip op. at 13 (November 19, 1998). Regarding the constitutional issue, we agree with the appellate decisions holding Public Act 89-404 unconstitutional. Accordingly, we affirm the sentence imposed upon defendant and modify the sentence to correspond with the law in effect prior to enactment of the law held unconstitutional.
On April 10, 1996, gunshots struck and injured two children, five-year-old Andrew White and two-year-old Tierra Moren. There is no dispute that the gunshots were not fired by defendant and his convictions are based on the accountability theory for the actions of Ephraim.
At trial, defendant's five-page handwritten statement was published in its entirety during the testimony of Assistant State's Attorney Daniel Weiss, who interviewed defendant and prepared the statement. Weiss testified that the statement contains everything that defendant told him regarding the shooting.
In his statement, defendant declared that he has been a gang member of the Motown Blackstones since 1989. The territorial boundaries for his gang range from 55th Street to 51st Street and from Marshfield to Union. On April 10, 1996, about 5 p.m., defendant was "hanging out" with several other gang members, including Ephraim, in the vicinity of 53rd and Laughlin, which is within his gang's territory. Defendant heard one of the gang members yell "on that car," which means "on that security," indicating that a rival gang or someone could be there to harm them. Defendant's statement explains that, "if you are a [B]lackstone and hear security yell that, then you do what you can do to protect your territory as a Blackstone." After hearing the words "on that car," defendant went to his own car, retrieved a handgun under the car seat, stood in the middle of the street at the corner of the 5300 block of Laughlin, sighted a gray car going northbound on Laughlin, and fired one shot at the gray car.
Defendant further stated that Ephraim, a fellow gang member, was also present "when security yelled on that car." Ephraim "jumped into his [Ephraim's] car and drove after the gray car." Ephraim, who drives a white car with a license-applied-for sticker, caught up to the gray car on the block between 52nd and 51st Streets. While both cars were traveling northbound at that location and Ephraim's car was behind the gray car, defendant heard shots. When he heard the gunshots, defendant was standing on the corner of 53rd.
After the gunshots, the gray car turned left on 51st Street and Ephraim turned into an alley before 51st Street. Ephraim returned to 53rd and Laughlin, exited his car and left. Defendant saw an ambulance coming, went down the 5100 block of Laughlin, and learned that two children had been shot at 5125 Laughlin.
Five to six hours later, defendant saw Ephraim in the area again. Defendant's statement then expressly provides as follows: "Percy Jones states that at that time, Big Man [Ephraim] stated that he wanted to find his gun. Percy Jones states that Big Man left for a few days and when he saw him again, he talked with him. Percy Jones states that Big Man stated to him that he didn't mean to shoot no kids."
Halimah Muhammad testified that on April 10, 1996, about 4:45 p.m., she was on her front porch at 5125 South Laflin with several other family members. Muhammad heard gunshots and grabbed the children to go into the house. Once inside the house, Muhammad observed that her five-year-old son Andrew had blood on his back from a gunshot wound and the two-year-old daughter (Tierra) of her niece (Asiah Vance) had blood on her abdomen from a gunshot wound. Muhammad ran to a neighbor's house to contact the police and an ambulance, which subsequently transported the children to the hospital.
Asiah Vance, the niece of Muhammad and the mother of two-year-old Tierra Moren, corroborated Muhammad's testimony. Vance added that she first heard gunshots coming from 52nd and Laflin, and about four or five minutes later heard about 10 gunshots, sounding closer. Vance knew defendant from the neighborhood and did not see him when she heard the 10 shots.
Jason Miller testified that, shortly before the shootings, he was sitting on Muhammad's front porch at 5125 South Laflin while visiting his girlfriend Nicole, who is a teenaged daughter of Muhammad, and her family. Miller crossed the street to his house and, while standing outside, he saw two cars coming down the street. Miller saw the gray car followed closely by the white ...