Appeal from the Circuit Court of Kane County. No. 94--CF--2373 Honorable Philip L. DiMarzio, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Bowman
Defendant, Kenneth R. Smith, was charged by indictment with three counts of first-degree murder (720 ILCS 5/9--1(a)(1),(2),(3) (West 1994)) and one count each of armed violence (720 ILCS 5/33A--2 (West 1994)), unlawful possession of a weapon by a felon (720 ILCS 5/24-- 1.1(a) (West 1994)), and armed robbery (720 ILCS 5/18--2(a) (West 1994)). After a bench trial, defendant was convicted of three counts of first-degree murder and one count of armed robbery. The trial court denied defendant's motion for a new trial. The State sought the death penalty, and the trial court found defendant eligible for the death penalty. Following a capital sentencing hearing, the trial court sentenced defendant to natural life in prison without parole. After the trial court denied defendant's motion to reconsider his sentence, defendant filed a timely notice of appeal. On appeal, defendant argues that (1) the trial court erred in admitting certain statements pursuant to the coconspirator exception to the hearsay rule, (2) the State did not prove him guilty beyond a reasonable doubt, and (3) his sentence was excessive.
Before addressing the merits of defendant's appeal, we feel compelled to comment on the course of the proceedings related to defendant's motion to reconsider his sentence. Defendant was sentenced on September 13, 1996. On October 11, 1996, defendant's attorney (a public defender) filed a motion to reconsider the sentence. The motion to reconsider was not heard until almost three years later, on May 6, 1999. It appears from the record that the delay was due to the public defender's failure to notice the motion for hearing. On May 6, the public defender advised the court that the motion had been continued "several times over the years" and that during that time the public defender had been searching for the victim's real killer. The record, however, indicates that the motion to reconsider was noticed for hearing for the first time on March 12, 1999. The court continued the hearing on the motion twice and heard the motion on May 6, 1999.
The failure to notice for hearing defendant's motion to reconsider sentence until almost three years after it was filed is unacceptable. The public defender's purported search for exculpatory evidence, even if true, is no excuse. The Kane County public defender's office should make every effort to prevent such delays from occurring in the future.
We turn now to the relevant facts. The record reveals that the State filed a motion in limine to determine whether statements made by co-defendants would be admissible under the coconspirator exception to the hearsay rule. The trial court ruled that it would hear foundational evidence during the trial and then determine whether the State sufficiently established a conspiracy. At the close of the State's case, defendant moved to strike certain testimony regarding coconspirator statements on the ground that the State failed to prove a conspiracy. The trial court denied the motion to strike and ruled that the State met its burden of establishing a conspiracy.
The evidence at trial revealed that, on December 12, 1994, Chris Jackson was shot five times and killed in apartment 16 of the Fox View Apartments in Carpentersville. The shooting occurred at approximately 4 a.m. According to Jackson's girlfriend, Sabrina Peachey, Jackson was a drug dealer. Peachey lived at the Fox View Apartments. At about 1 a.m. on December 12, Jackson brought Peachey and her children from Chicago to her apartment.
Peachey testified that Jackson left her apartment about 15 minutes after they arrived there, and he returned about 15 minutes later. He and Peachey talked for a while. The last time Peachey saw Jackson that evening was about 3:30 or 3:45 a.m. Peachey testified that she heard Jackson's friend "Lo" knock on the door, but she did not see him because she was in the kitchen. Peachey testified that Jackson left the apartment with Lo. That evening Jackson was wearing two gold necklaces and five rings, two of which were diamond rings. Peachey also testified that she saw Jackson with "wads of money" in her apartment.
Cherrell Jackson (Cherrell), defendant's girlfriend, testified that, at approximately 9 p.m. on December 11, 1994, co-defendant Terry Madden came to see defendant at Jackson's home in Chicago. Madden and defendant talked behind closed doors for about 15 or 20 minutes. Cherrell testified that Madden was in a hurry and was nervous and agitated as he waited for defendant to get dressed. Cherrell asked defendant what was going on, but defendant said he did not want to talk about it because it was Madden's business. Madden told Cherrell that he had won $3,000 in the lottery and wanted defendant to go with him to pick up his money. Defendant, who was wearing a green army fatigue jacket, left with Madden and did not return to Cherrell's house that night.
Charmaine Logwood testified that, on December 12, 1994, she lived in apartment 16 at the Fox View Apartments. Logwood's boyfriend, Lorenzo Wright, also stayed there frequently. Late in the evening of December 11, Terry Madden and a man Logwood did not recognize came to her apartment to talk to Wright. The unknown man wore a green army fatigue coat and dark pants. He, Madden, and Wright went into Logwood's bedroom for 15 to 20 minutes.
After Madden and the unknown man came out of the bedroom, they left the apartment. Logwood and Wright discussed whether Wright would take Logwood's only apartment key with him. Wright left with the key. Before Logwood went to bed, she looked out of her window and saw Madden and the unknown man "walking the neighborhood."
While she was sleeping, Logwood heard a knock on her window. When she looked out of the window, she did not see anyone. Logwood went back to sleep and woke up later when she heard a key in the apartment door. Next, she heard scuffling noises coming from the front room followed by gunshots, more scuffling noises, and more gunshots. Logwood hid in her bedroom closet. While in the closet, she heard a voice say, "Get his rings." Logwood initially stated that she did not remember whose voice she heard, but then testified that she recalled giving a statement in which she said it was Madden's voice she heard. On cross-examination, Logwood said she was sure it was Madden's voice.
After the gunshots, Logwood stayed in her closet for 10 to 15 minutes. When she came out, Logwood looked in the living room and saw the victim, Jackson, on the floor. Then she and her daughter, who was sleeping in the other bedroom, climbed out of a back window and went to a neighbor's apartment.
Logwood testified that she was a drug addict. The last time she used drugs was on the night of the shooting. She testified that she used a little cocaine that night but it did not affect her ability to recall. Logwood received use immunity for cocaine that was found in her apartment on the night of the shooting. The State's Attorney and Carpentersville police assisted Logwood with some pending traffic charges. Also, the police helped her move to a new apartment after the shooting.
Lorenzo Wright testified that he had been charged with the murder and armed robbery of Jackson and that he was testifying against defendant pursuant to an agreement with the State. The agreement provided that the State would drop the murder charge and that Wright would receive a sentence of 12 years' imprisonment on the armed robbery charge and a concurrent sentence of 12 years for violating his probation for a conviction in Cook County of possession of cocaine with intent to deliver. Wright further testified that he was a heroin addict. He had used heroin during the ...