The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Stanley Sacks, Judge Presiding.
Robert Foster was charged with first degree murder, three counts of attempted first degree murder and three counts of aggravated discharge of a firearm. Co-defendants Donald Toney and Frederick Luckett were also charged with these crimes but are not involved in this appeal. Separate juries resolved the charges against Luckett and Toney.
The jury found Foster guilty of second degree murder of Phillip Matthews and guilty of two counts of attempted first degree murder and two counts of aggravated discharge of a firearm of Bobby Roberson and Antoine Harris. The jury found Foster not guilty of felony murder and not guilty of attempted first degree murder and aggravated discharge of a firearm of Terrance Harris. The trial court originally sentenced Foster in total to an 18-year sentence with concurrent terms of 18, 17, 17, 10 and 10 years in prison, respectively, for the convictions of second degree murder, two counts of attempted murder and two counts of aggravated discharge of a firearm. After Foster filed his notice of appeal, the State filed a motion to reconsider Foster's sentence; the court granted the State's motion to reconsider and resentenced Foster to a 35-year sentence in total with an 18-year term for second degree murder, to run consecutively to concurrent terms of 17, 17, 10 and 10 years, respectively, for the attempted first degree murder and aggravated discharge of a firearm convictions.
Foster on appeal contends (1) the trial court should have suppressed his statements and identification based on a warrantless arrest made without probable cause; (2) the State's closing arguments denied him a fair trial; and (3) the trial court erred by resentencing him. For the reasons that follow, we affirm the trial court's ruling on the motion to suppress, and we affirm Foster's convictions.
In the context of the resentencing issue, we address what impact the State's motion to reconsider sentence has on jurisdiction after defendant has filed a notice of appeal. Whether upon motion by the State to reconsider sentence a trial court may reinstate its jurisdiction in order to resentence defendant after a notice of appeal has been filed by the defendant is an issue of first impression. For the reasons that follow, we find the order reconsidering defendant's sentence and resentencing defendant to consecutive sentences was entered by the trial court without jurisdiction and is vacated, while defendant's original sentence was valid and is reinstated.
At approximately 7 p.m. on the evening of October 10, 1995, 9 or 10 members of the Four Corner Hustlers street gang, including Antoine Harris and his brother Terrance Harris, observed a car drive east of Halsted on 123rd Street. Antoine recognized the driver of the car as Toney. Toney and his passengers, Foster and Luckett, were members of the Gangster Disciples street gang. A confrontation occurred during which at some point threats were yelled, Antoine threw a bottle at Toney's vehicle and shots were fired. Foster and Luckett were armed with a 9 millimeter handgun and a rifle. They shot at various individuals. Phillip Matthews died from gunshot wounds. Bobby Roberson, Antoine and Terrance were not injured. Antoine knew co-defendant Toney and gave Chicago police officers information that led them to 123rd and Carpenter, where Toney lived and where the officers eventually discovered Toney's vehicle, which matched the description of the vehicle involved in the shooting. A neighbor then told the officers that the vehicle belonged to the boys from 12320 South Carpenter.
As Officer Kane approached 12320 South Carpenter, he saw an individual who matched the description of one of the offenders and arrested him. This individual was later identified as Luckett. Luckett and Toney were half-brothers. Officer Kane told Luckett's mother that he noticed two individuals run into the house at 12320 South Carpenter. She went into the house and returned first with Foster, and then with Toney, and both were arrested. Police officers accompanied by Luckett later recovered the two guns used by Foster and Luckett during the confrontation. A forensic expert who examined 15 fired cartridge casings concluded the casings recovered from the scene were consistent with the two recovered weapons; however, three fired bullets, including one .38-caliber bullet from the body of Phillip Matthews, could not have been fired from the two recovered weapons.
Antoine identified Foster and his co-defendants in a lineup. Foster, to the police, first denied knowing about the shooting, but after being confronted with the recovered weapons, admitted his involvement. At trial, Foster denied any plan to kill rival gang members and maintained he fired his weapon in self-defense. He testified that he, Luckett, and Toney were shot at as they drove through Four Corner Hustler territory, and he exited the vehicle and returned the fire. He further testified that he and Luckett were chased and shot at, and that because he feared for his life, he continued to fire back. On cross-examination, he stated he told the police that he was fired at but he did not tell this to the assistant State's Attorney or include it in his written statement.
A. Probable Cause to Arrest
Defendant Foster contends that his statements and identification should have been suppressed as the fruit of an illegal arrest and that the State's closing argument denied him a fair trial. Defendant is not challenging the findings of fact made by the trial court, and, therefore, whether probable cause exists is a legal question subject to de novo review. Ornelas v. United States, 517 U.S. 690, 698-99, 134 L. Ed. 2d 911, 920-21, 116 S. Ct. 1657, 1662-63 (1996).
An arrest without a warrant must be supported by probable cause. U.S. Const., amend. IV; People v. Robinson, 167 Ill. 2d. 397, 405 (1995). "Probable cause to arrest exists where the totality of the circumstances known to police officers at the time of arrest are sufficient to warrant a reasonably prudent person to believe that the suspect has committed a crime." People v. Dizon, 297 Ill. App. 3d 880, 885 (1998). Under the probable cause standard, "'[e]vidence that will sustain a conviction is not required, but more than mere suspicion is necessary. [citation]'" People v. Kidd, 175 Ill. 2d 1, 22 (1996), quoting In re D.G., 144 Ill. 2d 404, 412-13 (1991).
Foster claims there was no probable cause to arrest him and that he was arrested simply because his height and weight were similar to the description of one of the suspects and because he was in the company of Toney, one of the offenders for whom probable cause existed. It is true that a person's mere proximity to others suspected of criminal activity does not, without more, give rise to probable cause to arrest. People v. Drake, 288 Ill. App. 3d 963 (1997). Moreover, a person's similarity to a general description of an offender does not by itself provide probable cause to arrest; however, it may provide support for probable cause when combined with other relevant facts and circumstances known to the arresting officer. People v. Lippert, 89 Ill. 2d. 171, 180-81 (1982). Though the court noted that Foster was arrested in the company of Toney and agreed that the description which Foster matched was a general description, the court took note of a number of other facts supporting probable cause to arrest.
A witness to the shooting who knew Toney gave police a description of the automobile involved, as well as a general description of Foster and Luckett and a more detailed description of Toney. Further, the witness told the police where the car might be found, and a car matching its description and registered to Toney was indeed found at that location. Police officers then noticed the vehicle was warm to the touch, indicating it had been recently driven. A neighbor near where the car was found told police that persons who owned the car could be found a few doors down. Three males were involved in the shooting. All three male suspects were together at the time of the arrest, which occurred within approximately one hour of the shooting. They matched the descriptions given to police. Consistent with the information provided to the police by the ...