The opinion of the court was delivered by: Justice O'mara Frossard
Not Released For Publication
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
ERVEN WALLS, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Michael Toomin, Judge Presiding.
Defendant Erven Walls was convicted in a jury trial of armed robbery, armed violence, aggravated kidnaping, and aggravated battery. He was sentenced to 50 years' imprisonment. On appeal, defendant raises four issues. He contends that: (1) he was denied due process because the State failed to tender material prior to trial relating to the victim's immigration status and any pending investigations by Immigration and Naturalization Services; (2) defendant's trial counsel was ineffective for failing to uncover the victim's immigration file prior to trial; (3) the trial court erred in sentencing defendant to consecutive sentences because section 5-8-4(a) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1998)) is unconstitutional; and (4) he was improperly sentenced on the charge of armed violence. For the reasons that follow, we affirm defendant's conviction and remand for resentencing.
In May 1997 when Yinka Jinadu arrived at his estranged wife Delores' apartment he was hit over the head with a baseball bat, stripped of his clothing and tied up with an electrical cord. At trial, Jinadu testified that he came to the United States in 1994, worked for a car dealership and eventually started his own trucking company. He met and married Delores in 1995 and they separated in 1996. In April 1997, Delores began to work as Jinadu's secretary. On May 10, 1997, Delores did not arrive at work as scheduled and Jinadu paged her. After calling him, Delores explained that her car was broken and asked that Jinadu come to pick her up at her apartment. Jinadu drove to Delores' apartment and arrived at 10:15 a.m. Delores invited Jinadu up to the apartment to wait while she finished getting ready. As Jinadu walked through the threshold of the door he was hit on the head with a baseball bat and lost consciousness.
The evidence at trial showed that, when Jinadu awoke, he saw his wife and three or four other men in the room. A man stood nearby with a baseball bat in one hand, a gun in the other hand and a scarf covering the lower portion of his face. Jinadu also saw defendant, Erven Walls, with a gun in his hand. Jinadu had met defendant on two prior occasions and knew him to be his wife's boyfriend.
The man with the baseball bat walked over to Jinadu, told him to keep his eyes closed and hit him on the head again with an iron object. Defendant then walked over to Jinadu and hit him repeatedly on the head and around the eyes. Defendant and the man with the bat then pulled Jinadu into the bathroom, handcuffed him and placed him in the bathtub. Both men demanded to know where Jinadu kept his car and money. One of the men, co-defendant Tony Hillard, came to the bathroom with a pillow and a gun. He began to place the pillow on Jinadu's face but the man with the bat stopped Hillard and told him that they should wait. Five hours elapsed during which time Jinadu was threatened by the various offenders to tell the men where all his money was kept. Eventually, co-defendant Hillard placed a towel over Jinadu and turned on the faucet in the tub. The men then turned the light off and left.
Around 7 p.m. Jinadu extricated himself from the electrical tape binding his feet and climbed out of the tub. He was unable, however, to release the handcuffs binding his hands. He opened the bathroom door and saw that he was alone in the apartment. He walked out of the apartment and onto the street where he saw the man with the baseball bat and co-defendant Hillard standing across the street. Upon seeing him, both men fled down the street.
Prior to trial, defendant requested and the State provided him with information regarding Jinadu's background. The State indicated that Jinadu had no criminal history and that it was unaware of any pending investigations against him. Defendant filed a motion to suppress his statements which the court denied and the case proceeded to trial.
Officer Ramirez testified that he was on patrol on May 10, 1997, when he was stopped by a young boy who directed him to Jinadu. At the time Jinadu was on the street and had an open head wound, gray duct tape on his mouth and chin and his hands were bound in handcuffs. Jinadu showed Officer Ramirez Delores' apartment. As Officer Ramirez entered the apartment he saw hundreds of plastic bags, a scale, white powder, spoons and breathing masks. Officer Ramirez also saw that there was blood in the bathtub. From the apartment he recovered two loaded revolvers and documents of identification for defendant, Zachary T. Walls, Jerome Walls, Germaine Craine and Delores Jinadu.
Officer Schmidt testified that while Officer Ramirez was in the apartment, he waited with Jinadu outside of the apartment. He stated that Jinadu identified Delores by name but was unable to name any of the other offenders. Detective Bradley testified that he was assigned to follow up on the case. After talking to Jinadu, Detective Bradley had the names of Delores, defendant and Germaine Craine. Jinadu told the detective that the offenders wanted money and drugs. On September 17, 1997, Detective Bradley arrested defendant and Delores at 1121 South State Street. Walls was placed in a lineup and was identified by Jinadu as one of the offenders. Detective Bradley also learned that one of the recovered guns was registered to Laretha Hillard. After speaking to Laretha Hillard, Detective Bradely arrested co-defendant Tony Hillard, who was later placed in a lineup and identified by Jinadu as one of the offenders.
Assistant State's Attorney Michael O'Malley testified that he interviewed defendant at the police station. Defendant told him that his uncle planned to rob Jinadu and threatened defendant if he did not help. For his cooperation in the plan to rob Jinadu, defendant was rewarded with 10 grams of heroin. The plan consisted of having Delores call Jinadu to come over to her apartment at which time someone would hit him over the head. Defendant further stated that after Jinadu arrived at Delores' apartment, he and Delores left and she dropped him off at his sister's home.
Defendant presented stipulated testimony from Janet Lupa, a court reporter, who recorded Jinadu's statement before the grand jury. Jinadu's testimony at trial varied at times from the recording of his testimony before the grand jury. Jinadu stated that as he arrived at Delores' house, he saw three of the offenders in front of the building. Following deliberations, the jury found defendant not guilty of attempted murder and guilty of aggravated kidnaping, armed robbery, aggravated battery, and armed violence.
Following the trial defendant filed a motion for a new trial. Based on Jinadu's victim impact statement, defendant believed that an ongoing investigation was in effect with Immigration and Naturalization Services (INS) regarding Jinadu's involvement in the present case. Jinadu had stated in the victim impact statement that, "[b]ecause of this incident, I am not able to visit my family in Africa due to INS." Defense counsel further stated that he had filed a motion for discovery requesting any reports relating to any INS investigations regarding Jinadu's involvement in the present case but that the State had failed to tender any information in relation to any investigations that INS was conducting prior to trial. The State responded that it had conducted an exhaustive investigation and that it found no information involving any type of state, local or federal investigation regarding Jinadu. Defense counsel requested additional time to inquire with INS as to any investigations ...