Appeal from Circuit Court of McLean County No. 98CF802 Honorable Donald D. Bernadi, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In April 1999, a jury found defendant, Maurice G. Lyons, guilty of vehicular invasion (720 ILCS 5/12-11.1 (West 1996)), aggravated battery (720 ILCS 5/12-4(b)(8) (West Supp. 1997)), intimidation (720 ILCS 5/12-6(a)(1) (West 1996)), and unlawful restraint (720 ILCS 5/10-3 (West 1996)). In June 1999, the trial court sentenced him to 10 years in prison on the vehicular invasion conviction, 10 years in prison on the aggravated battery conviction, and 10 years in prison on the intimidation conviction, with all sentences to run concurrently. (The court did not enter judgment on the unlawful restraint conviction because it was based upon the same physical act as the vehicular invasion conviction.)
Defendant appeals, arguing that the trial court erred by (1) denying him the right to present evidence purportedly showing that the victim had previously been involved in drug buys, (2) using the "mere-fact" impeachment method, and (3) imposing the recoupment order without first conducting a hearing to determine defendant's ability to pay. We affirm defendant's convictions and sentence and vacate the recoupment order and remand with directions.
The evidence at defendant's trial showed the following. Melissa McMullen testified that at around 2:30 in the morning on August 9, 1998, she left work in Bloomington, Illinois, and drove to a nearby Jewel-Osco store. She parked in the fire lane near the store's entrance and went inside. As she left the store and walked toward her car, McMullen heard someone walking beside her. When she opened her driver's side car door, a man she had never seen before (later identified as defendant) approached her and pushed her inside. As defendant held McMullen down inside the car, he threatened to kill her if she did not shut up. He then repeatedly asked for her car keys. With her one free hand, McMullen flashed the headlights and honked the horn in an effort to attract the attention of a taxi driver in the parking lot. Defendant tried to stop her from signaling for help and again threatened to hurt or kill her.
Defendant then began demanding McMullen's purse and attempted to pull it from her neck. When she told him that she had no money, defendant told her that he just wanted a ride. McMullen eventually handed the car keys to defendant, who then realized that he could not drive her car because it had a manual transmission. He forced McMullen into the driver's seat and he moved into the passenger's seat. Defendant told McMullen to drive out of the parking lot. She drove toward the taxi cab but did not try to talk with the driver because defendant told her he would kill her if she did. After she pulled out of the parking lot onto the street, she saw a police car coming toward them. McMullen swerved across traffic lanes, stopped in front of the police car, and ran to the officer.
Fred Martin, a Bloomington police officer, testified that on the morning of the incident, he was responding to a possible domestic battery in the Jewel-Osco parking lot when he saw a car cross the median and stop near his patrol car. The driver of the car (McMullen) jumped out and yelled, "Oh, my God, I'm so glad you came by. This guy pushed me in my car and made me drive away." She then ran toward the patrol car and jumped in. Martin stated that McMullen was scared, cowering, and speaking quickly. Martin noticed that she had abrasions and scratches on her neck, shoulder, and arm. Based upon her reaction and statements, Martin believed that she did not know defendant. After talking further with McMullen, Martin approached defendant and asked him if he knew McMullen's name. Defendant told Martin that her name was Amy, but he was unable to provide her last name.
Brian Brown, a Bloomington police officer, testified that after he arrived on the scene, he questioned defendant about the incident. Defendant told Brown that he and McMullen were boyfriend and girlfriend and they had gotten into an argument at the Jewel-Osco. Defendant denied hitting McMullen. Brown asked defendant what McMullen's name was. After staring at Brown for about a minute, defendant told Brown that her name was Ann. As Brown transported defendant in the patrol car, defendant complained that McMullen was his girlfriend and she was simply mad at him. Brown responded that if she was indeed defendant's girlfriend, he should know her name. After they arrived at the county jail, defendant told Brown that McMullen's first name was really Amber. Brown told him that he was wrong again.
Michael Lusher, a taxi driver, testified that as he sat in his taxi in the Jewel-Osco parking lot on the morning in question, he saw a man (later identified as defendant) holding a car door open, pushing and hitting a woman into the car, which was parked in the fire lane. Each time the woman attempted to get out of the car, defendant shoved her back down and "hit her a couple of more times." Lusher also heard a car horn honking and the woman yelling for help.
Defendant testified that he first met McMullen in January 1998 at his uncle's house. On that occasion, defendant sold McMullen half a gram of cocaine. Thereafter, McMullen called defendant on several occasions to arrange cocaine purchases. According to defendant, they would meet in various parking lots to complete the transactions.
On August 8, 1998, McMullen telephoned defendant and asked if he had any cocaine to sell her. Defendant told her that he did not have any, but he would call her if he got some. Around 2:30 the next morning, defendant phoned McMullen and told her to meet him at the Jewel-Osco store in 15 minutes if she wanted to buy some cocaine. Defendant then rode to the Jewel-Osco with his uncle. After waiting for about 10 minutes, defendant went inside the store to phone a taxi cab. He came back outside and sat in the car with his uncle for another 15 minutes before going inside the store to again phone the taxi company. As defendant left the Jewel-Osco, he saw McMullen drive up. She started to get out of her car, and defendant told her to get back in. He then got in the passenger's seat. McMullen told him that she only wanted to purchase a half gram of cocaine, but defendant had the cocaine cut into larger portions. He told her he would sell her a larger portion at a reduced rate of $150. She then went into the store for about a minute. During that time, defendant moved into the driver's seat. When McMullen came back out, she got in the passenger's seat. He gave her the cocaine, and she gave him $85. Defendant demanded the rest of the money, and she said she would pay him the next day. He returned the $85 and a struggle ensued over the cocaine. According to defendant, he was trying to grab her hand when the taxi driver came into the parking lot. McMullen was yelling, and defendant was cursing at her. Defendant blew the car horn to alert the taxi driver that it was defendant who wanted the cab.
Defendant told McMullen that he thought the taxi driver had called police, and they decided to tell the police that they were boyfriend and girlfriend and were just having an argument. As part of the story, defendant would call McMullen Ashley and she would call him Dee. McMullen got in the driver's seat, and they drove away from the Jewel-Osco. After she swerved and stopped in front of the patrol car, defendant told the officers their agreed-upon story.
During his direct testimony, defendant also testified that he had been convicted of two felony offenses in 1989 as well as two felony offenses in 1993.
A Jewel-Osco employee testified that on the morning in question, defendant twice came into the ...