Appeal from Circuit Court of Champaign County No. 97CF1718 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
A jury convicted defendant, Derrick S. White, of two counts of attempt (first degree murder of a peace officer) (720 ILCS 5/8-4(a), 9-1(a), 9-1(b)(1) (West 1996)), and one count each of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a) (West 1996)), armed violence (720 ILCS 5/33A-2 (West 1996)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1996)). Defendant raises nine arguments on appeal: (1) the State failed to prove his prior felony beyond a reasonable doubt; (2) the State failed to prove the charges of attempt (first degree murder of a peace officer) and aggravated discharge of a firearm beyond a reasonable doubt; (3) the trial court denied defendant his sixth amendment (U.S. Const., amend. VI) right to a defense; (4) the trial court abused its discretion by refusing to give defendant's tendered pattern jury instruction No. 3.11 (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (3d ed. 1992)) (hereinafter IPI Criminal 3d No. 3.11); (5) the 100-year sentence for attempt (first degree murder of a peace officer) and the 45-year sentence for aggravated discharge of a firearm must be reduced to the statutory limits existing prior to the enactment of Public Act 88-680 (Pub. Act 88-680, art. 35, §35-5, eff. January 1, 1995 (1994 Ill. Laws 2750, 2782-83)), because Public Act 88-680 violates the single subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)); (6) defendant's conviction for unlawful possession of a weapon by a felon must be vacated because it arose from the same physical act as the armed violence conviction; (7) the aggregate length of defendant's consecutive sentences exceeds the limit provided in section 5-8-4(c)(2) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-8-4(c)(2) (West 1996)); (8) the trial court imposed excessive sentences; and (9) the trial court should have declared a mistrial or, at least, held an evidentiary hearing because of possible juror misconduct. We affirm in part, vacate in part, and remand for a new sentencing hearing.
During the evening hours of December 2, 1997, Lieutenant Kris Bolt patrolled the area near Motel 6 in Urbana, Illinois, in a marked squad car. Bolt worked for the Champaign County sheriff's department. Bolt drove twice through the Motel 6 parking lot because it was known for drug activity. Each time, Bolt observed defendant and a young child standing outside an open window by room 127 on the ground floor. On the second occasion, Bolt stopped his car and told defendant that he and the child "might as well go in." Bolt then watched as a female handed him a key through an open window of room 127 and defendant walked to the door.
Bolt drove to the registration desk and obtained defendant's registration card, which listed the name "Derick White" and a driver's license number. Bolt ran the information through his mobile data terminal and learned that there was an outstanding warrant for defendant's arrest in Cook County.
Bolt confirmed the validity of the warrant near midnight. Thereafter, Bolt, Deputy Alan Jones, and Lieutenant Steven Malloch went to room 127 at Motel 6. Jones and Malloch also worked for the Champaign County sheriff's department. A female in the room advised them that defendant might be at the house of Priscilla Nash-Peete in Champaign and that he was driving Nash-Peete's green van. Because defendant was possibly in Champaign, the officers contacted Sergeant Scott Swan at the Champaign police department to confer on how they would apprehend defendant.
Officer Thomas Walker, from the Champaign police department, was dispatched to survey Nash-Peete's house and Jones was stationed nearby. Walker parked his unmarked car about one-half block north of Nash-Peete's house and walked up to the house. Jones parked his marked sheriff's car at the south edge of a nearby Howard Johnson's. Bolt, Swan, Malloch, and Lieutenant John Murphy also took positions up in a nearby House of Fabrics parking lot. Murphy was an officer with the Champaign police department. Malloch and Murphy waited in a parked, unmarked, Chevy Caprice. Swan and Bolt also waited in another parked, unmarked Chevy Caprice.
As the officers waited, Murphy, who was familiar with Nash-Peete's van, saw the van pass. Murphy and Malloch began to pursue the van. Swan followed behind in his car with Bolt. As they pursued defendant, the officers passed Jones, who pulled his car between Murphy's and Swan's. Defendant significantly increased his speed until he "whipped" into Nash-Peete's driveway and came to an abrupt stop. Defendant ran away from the van, leaving the motor running and the driver's door open.
Defendant ran through an open area between Nash-Peete's garage and house. By this time, Swan had pulled behind Murphy's car and Jones had cut through the yard in his marked car. Malloch, Bolt, and Jones exited their respective cars and pursued defendant. Swan and Murphy pursued defendant in their cars. Walker was standing by the north side of Nash-Peete's garage when defendant pulled into the driveway. Walker peeked around the corner of the garage and saw defendant run toward him while holding a gun in his right hand. Defendant ran past Walker, and Walker pursued him on foot. Walker turned on his police radio and yelled, "Police, stop!" two or three times and "get down" several times.
Swan saw Walker pursuing defendant. Defendant ran directly in front of Swan's marked squad car as he tried to get away. Walker pursued defendant into the backyard of another house. Defendant jumped the fence and it collapsed. Walker jumped the fence and continued to pursue defendant. Walker saw Officer Brian Hockings pull up in a Champaign police department squad car. Hockings had a canine with him, which Walker told Hockings to release. Walker ran by Hockings but paused briefly because he believed the dog was going to chase him instead of defendant. Walker then heard about 10 gunshots but did not see who fired them. When Walker heard the shots, he moved back along Nash-Peete's garage toward a chain-link fence.
Defendant ran at full speed and ended up running directly in Bolt's direction. Bolt testified that defendant was dressed like the man he had seen outside room 127 at the Motel 6. Bolt yelled "Police, get down!" when defendant was about 30 feet away, but defendant continued to run. Bolt then observed a red laser beam emanating from defendant's waist area, from defendant's gun. Defendant aimed the laser beam directly at Bolt. Bolt ran for cover by pushing into a stretch of tall brush and then turned to face defendant as he continued to move backward through the brush. Defendant fired two gunshots at Bolt from approximately 10 feet away. Bolt returned fire until he expended the rounds in his gun, then turned and pushed his way through the brush. Defendant fired two additional gunshots at Bolt as his back was turned.
Defendant took cover near a row of bushes. Bolt saw defendant attempt to work the slide on his gun and saw the laser beam sweeping the area. Bolt reloaded and fired more gunshots at defendant from about 20 to 25 feet away.
Walker had by this time taken cover behind a utility pole. Murphy had taken cover behind a tree. The other officers had also taken cover behind various objects. Murphy shined his flashlight in defendant's area. The laser beam began to move toward Murphy's tree. Murphy fired three shots toward defendant's area.
Malloch saw defendant sweep the laser beam in the area and then rest it for "a split second" on the pole behind which Walker had taken cover. Walker saw the laser beam pass across his chest. Walker shined his flashlight in the area where he saw defendant sitting and yelled to the officers, "he is in the bushes." Immediately thereafter, the laser beam came back toward Walker and was "pretty steady." Swan saw the laser beam coming back toward Walker and yelled at him to get down. Before the laser beam reached him, Walker was able to fire several shots at defendant. Malloch also fired two shots at defendant.
Bolt or Murphy, or both, then yelled "cease fire," at which point all gunshots ceased. All of the officers testified that they saw a red laser beam light and muzzle flashes emanating at various times from defendant's direction during this melee. Several of the officers also testified that defendant had specifically aimed his laser beam at Bolt, Walker, Jones, and Murphy at various times during the pursuit.
When the gunfire ceased, Jones crawled to the bushes and saw defendant lying with a 9-millimeter semiautomatic gun clutched in his left hand. Jones pried the gun from defendant's hand, ejected the magazine, and removed a second magazine from defendant's coat pocket. Defendant was taken to a hospital, where several bags of cocaine were found in his left sock.
Based upon the foregoing evidence, a jury convicted defendant. On June 2, 1998, the trial court sentenced defendant to 100 years for the attempted first degree murder of Bolt, 60 years for the attempted first degree murder of Walker, 90 years for aggravated discharge of a firearm, 60 years for armed violence, and 10 years for unlawful possession of a weapon by a felon. The court ordered the 100-year sentence for the attempted first degree murder of Bolt to be served consecutively to the 60-year sentence for armed violence with all other sentences to be served concurrently.
Defendant thereafter filed a timely motion to reduce sentence. On September 1, 1998, following a hearing on defendant's motion, the court reduced the sentence for aggravated discharge of a firearm to 45 years and for unlawful ...