The opinion of the court was delivered by: Justice Gallagher
Appeal from the Circuit Court of Cook County
Honorable Colleen McSweeney-Moore, Judge Presiding.
Following a jury trial, defendant William Sutherland was convicted of two counts each of attempted first degree murder, aggravated battery with a firearm and home invasion. The trial court sentenced defendant to 30 years in prison for each attempted murder charge and 30 years in prison for home invasion. The court ordered that defendant's sentences be served consecutively for a total sentence of 90 years.
On appeal, defendant contends that: (1) the trial court abused its discretion in finding that a six-year-old child who was a victim of the crime was competent to testify; (2) the State failed to prove his guilt beyond a reasonable doubt because its case rested upon the child's eyewitness identification and inconsistent testimony; (3) the trial court erred in incarcerating defense counsel for contempt overnight during his trial; (4) the prosecution made improper statements in closing argument; (5) section 5-8-4(a) of the Unified Code of Corrections (the Code) (730 ILCS 5/5-8-4(a) (West 1996)) violates due process because it allows the trial court to impose consecutive sentences based upon the judge's findings of fact rather than a jury determination of proof of those facts beyond a reasonable doubt; and (6) in light of defendant's rehabilitative potential, the trial court abused its discretion in sentencing him to 90 years. For the reasons set forth below, we affirm defendant's convictions and sentence.
At trial, Elaine Sutherland (Sutherland) testified that in 1997, she lived at 6818 South Sangamon in Chicago with her mother, Doris Ellison, her six-year-old daughter, Erica Ellison, and her four-year-old son, William Sutherland, who was also defendant's son. On April 10, 1997, defendant arrived at her residence and demanded to be let in. Sutherland called police, who escorted defendant in the house to retrieve a television, a word processor and his wedding ring. The following afternoon, defendant called Sutherland and asked her to attend marital counseling. Sutherland told defendant that she wanted a divorce and testified that he replied with "a threatening okay." Sutherland and her daughter went to bed at about 10 p.m., and her mother left to work a night shift.
Sutherland testified that the next thing she remembered was waking up in the hospital with bullet wounds in her back and arm. Sutherland testified that she did not remember how her injuries occurred but that she signed an affidavit in September 1997 that accompanied a petition for an order of protection against defendant. The affidavit stated that defendant had shot Sutherland and her daughter a total of nine times while they slept. Sutherland stated that the affidavit was based upon Erica's explanation of what had happened. Sutherland testified that Erica knew that Eric Kendrick was her biological father, but that Erica called defendant "daddy" at times. She said Erica also called Kendrick "daddy."
Prior to Erica Ellison's testimony, defense counsel objected to her competency as a witness. Outside the presence of the jury, Erica testified that she was six years old and about to enter first grade. Erica recited the alphabet and said that she knew the difference between telling the truth and telling a lie because when a person tells the truth, "people get happy with you," and when someone lies, "people get mad that you hurt them" and "you will get put in a room and get a whopping." She said it was better to tell the truth and that she would do so in court "because I want everybody to know." She stated that she knew what it meant to promise to tell the truth. Erica stated that she knew that Sesame Street characters were "pretend" and not real, but that the Power Rangers got into "real fights." She stated that defendant was her stepfather and Kendrick was her father. The trial court found Erica competent to testify.
Erica then testified before the jury. She identified defendant in court, stating that he was her "stepdaddy." Regarding the night of the shooting, Erica testified that she and her mother went to bed while her grandmother was at work. After going to bed, she heard a noise and saw defendant turn on the light and shoot her mother. Erica stated that she knew it was defendant because she saw his face, and she again identified defendant in court. Erica stated that defendant shot her once on the left side of her face above her lip. Erica said the police showed her pictures of defendant and that she told the officers who defendant was and what he had done. Erica said she had another "daddy" besides defendant and named her "daddy" as Kendrick, but she said that Kendrick was not in the bedroom that night. On cross-examination, Erica stated that when she talked about defendant, she always referred to him as her "stepdaddy."
Matt Roberts testified that he was Doris Ellison's cousin and lived with his girlfriend in the apartment above Ellison's. After 11 p.m. on April 11, 1997, he heard a crashing noise coming from the front of the building. Four or five seconds later, Roberts heard several popping sounds. Roberts went downstairs and found the front door to Ellison's apartment open. Roberts entered and saw Erica, who was bleeding from the mouth and had a small hole near her chin. Roberts testified that when Erica saw him, she said, "Matt, Will done shot us." On cross-examination, Roberts stated that he used Erica's exact words.
Doris Ellison testified that on April 10, she called police at about 10:20 p.m. because defendant was beating on her door and refused to leave. The following day, defendant called her apartment constantly. Ellison spoke to defendant once and heard Elaine tell him that she wanted a divorce. On the night of the shooting, Ellison worked an 11 p.m. to 7:30 a.m. shift. When she left for work, Elaine and Erica were in the bedroom. Ellison stated that Erica had called defendant "dad" in the past. Ellison said that she was about 5 feet 3 inches tall and that Kendrick was slightly taller than she was, but that he was not 6 feet tall.
Tahlia Hardy testified that at about 10:30 p.m. on the night of the shooting, she and her husband went to her mother's residence at 6812 South Sangamon, which was near Doris Ellison's house. Hardy remained in their parked car while her husband went inside to pick up their children. Hardy testified that a gold car pulled up directly in front of Ellison's residence and in front of Hardy's car. A dark-skinned man who was 6 feet tall with a slight beard and glasses opened the trunk of the gold car. Hardy identified defendant in court as the man she saw that night. She testified that defendant reached into the trunk for about 10 seconds and walked up to Ellison's porch, looking back at Hardy as he stood on the porch. Hardy testified that defendant did not knock on the door or ring the doorbell and that he returned to his car. On April 12, Hardy identified defendant and his car from police photos. On cross-examination, Hardy stated that defendant was the only man in the photo array wearing glasses.
Dr. Leslie Schaffer testified that he treated Elaine Sutherland about four hours after the shooting. Elaine sustained gunshot wounds to her forearm, chin, jaw, shoulder, chest and left forearm, and bullet fragments remained in her left jaw.
Chicago police officer Maudessie Jointer testified that she and her partner were called to Ellison's residence at about 11:20 p.m. Erica was bleeding from a gunshot wound near her mouth. Jointer asked Erica who had hurt her, and she replied that her daddy shot them. Chicago police officer Patricia Kane asked Erica what her daddy's name was. Erica stated that her daddy Will shot them. Jointer testified that she also heard Erica say "William," "S" and "land."
Kane testified that Erica said that her daddy shot her and her mom and that her daddy's name was Will. When Kane asked for her daddy's last name, Kane was unsure what Erica said. Kane located an envelope bearing defendant's name and address and Erica said that was who she was trying to identify. Erica also identified defendant from a photograph in the residence.
Chicago police detective Kevin White testified that, at about 11:20 p.m., he, Kane, and another officer were directed to Ellison's apartment and then went to defendant's residence at 937 West 54th Place. A gold-colored car was parked near the building. Defendant was arrested shortly thereafter.
Chicago police detective Daniel McInerney testified that he saw Erica at the hospital at about 2 a.m., and Erica said that her daddy shot her and her mom and identified defendant as Will in two photographs. When asked ...