Appeal from the Circuit Court of Cook County. No. 97-CR-29458 Honorable Colleen McSweeney-Moore, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Defendant Barnett Carney was convicted of first degree murder and armed robbery after a jury trial. The State charged defendant with three counts of first degree murder for the killing of the decedent, Richard Frazier. The three counts were for violation of section 9-1(a)(1) of the Illinois Criminal Code for intentional murder, section 9-1(a)(2) knowing murder, and section 9-1(a)(3) felony murder. 720 ILCS 5/9-1(a)(1), (a)(2) (West 1998). The predicate felony for the felony murder count was armed robbery (720 ILCS 5/18-2 (West 1998)), a crime with which defendant was charged in a fourth count. The trial court sentenced defendant to consecutive terms of 29 years for first degree murder and 10 years for armed robbery.
Defendant appeals, arguing: (1) that he was denied his right to effective assistance of counsel because his attorney failed to request a separate jury verdict form for the offense of felony murder; (2) that the trial court erred when it imposed consecutive sentences for first degree murder and armed robbery under sections 5-8-4(a) and (b) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a), (b) (West 1998)); and (3) that the trial court abused its discretion in imposing its sentences without properly considering all mitigating circumstances. Defendant filed a supplemental brief arguing that the Illinois consecutive sentencing scheme is unconstitutional because it violates the defendant's due process and trial by jury rights. For the reasons that follow, we affirm in part and reverse in part.
On September 26, 1997, the decedent, Frazier, was shooting dice with Charles Epps in front of the residence of 6401 South Maryland. Tamika Johnson, Epps' girl friend, stood nearby watching for the police. After approximately 10 minutes, the game was interrupted by three people. Johnson testified that one of the individuals was wearing a Halloween mask and that the others wore hooded sweat shirts pulled tightly around their faces. She also testified that one of the hooded men and the masked man stopped where Frazier and Epps were shooting dice, and that the third man walked to the corner some 20 feet away. She stated that after seeing this, she ran toward the porch of the residence at 6401 South Maryland and got down on the ground. She was about 15 feet away from Frazier, Epps, and the two individuals.
Johnson testified that she heard the unknown men tell Frazier and Epps to get on the ground and to surrender their money. She stated that, after both men got to their knees, the man with the mask held a gun close to Frazier and took money from his pocket. After he retrieved the money, she saw Frazier try to fight with his assailant. Johnson then heard a loud shot, and Frazier fell to the ground. Paramedics arrived shortly thereafter and administered first aid to Frazier. Frazier died 15 days later in the hospital as a result of complications arising from the gunshot wound.
Officer Milton Owens, who was assigned to investigate the incident, interviewed Johnson and Epps. After the interview, he began looking for three men: defendant, Sean Tucker, and Kendall Morgan. A search of defendant's home uncovered a Halloween mask in his bedroom. Police discovered a black handgun during a search of Tucker's house. A later analysis of the weapon and a shell casing found at the scene revealed that the casing had been fired from that weapon.
Defendant later spoke to Assistant State's Attorney Muldoon, who reported defendant's account of what occurred on September 26, 1997, at trial. According to Muldoon, defendant stated that he and Sean Tucker were driving in defendant's car and that Tucker had the mask and the gun. When they arrived at 64th and Maryland, they saw a dice game in progress. Defendant indicated that Epps walked over to their vehicle and told them that Frazier was "sweet," meaning that he was an easy target for a robbery. At this point, they made a plan to rob the dice game. Defendant stated that Tucker wore the mask and had the gun, and that defendant had a skull cap pulled over his head. Defendant and Tucker decided to pretend to rob Epps and then take Frazier's money. Defendant stated that, while he pretended to pat down Epps, Tucker forced Frazier to the ground and took his money. Defendant then observed a struggle between the two, and Tucker shot Frazier. They took $4 from Frazier, Tucker ran home with the gun and mask, and defendant went to run and hide. Defendant went to Tucker's house the next day to retrieve the mask.
In closing argument, the State argued that it did not have to prove that defendant had any intent to kill the deceased and that, in order to find him guilty, the jury only needed to find that a murder had occurred during the course of a felony. The trial court then instructed the jury as to the charge of first degree murder:
"To sustain the charge of first degree murder, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed the acts which caused the death of Richarde Frazier; and
Second: That when the defendant, or one for whose conduct he is legally responsible, did so, he intended to kill or do great bodily harm to Richarde Frazier;
or he knew that his acts would cause death to Richarde Frazier;
or he knew that his acts created a strong probability of death or great bodily ...