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People v. Fender

September 27, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JUSTIN FENDER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Clay County. No. 99-CF-12 Honorable Patrick L. Duke, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

UNPUBLISHED

Justin Fender (defendant) appeals from his conviction of the offense of armed robbery (720 ILCS 5/18-2 (West 1998)). On November 5, 1999, defendant was sentenced to 16 years' imprisonment. As a part of the sentencing, the trial court found that the victim of the armed robbery had suffered great bodily harm, and as a result, the court ordered defendant to serve 85% of his 16-year prison sentence, pursuant to section 3-6-3(a)(2)(iii) of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(iii) (West 1998)). On appeal, defendant argues (1) that he was denied a fair trial because the trial court improperly admitted details about defendant's attempted solicitation to kill a crucial State witness and (2) that the statutory provision under which defendant is required to serve 85% of his term of imprisonment is unconstitutional under the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

I. FACTS

The evidence presented at defendant's jury trial was as follows. During the evening of March 1, 1999, Elizabeth Pearce was the only employee working at Zink's convenience store in Louisville, Illinois. A customer, Sherry Garner, testified that as she was coming out of Zink's to leave at about 9:15 that evening, she noticed a person of slender build walking south toward Zink's parking lot. Garner testified that she remembered the person because he seemed odd to her. According to Garner, the person she saw was dressed in dark clothing with a hooded shirt pulled over his head. Garner testified that when the person became aware that she was looking at him, he stepped out of sight behind a vehicle. Garner was not asked to identify defendant at the trial.

The clerk, Elizabeth Pearce, testified that the store's closing time was 10 p.m. About 9:45 p.m. on March 1, 1999, as she was standing at the cash register, a man came in and pointed a gun at her. Pearce described the gun as a revolver. The person holding the gun was shorter than she and was dressed in black, wearing a black, hooded sweatshirt with the hood pulled over his head. He was wearing dark sunglasses and a bandana over his mouth. Pearce testified that the only parts of the robber's face that she could see were his temples, but from that she knew he was a white person. Pearce testified that as the robber pointed the gun at her, he said, "Open the f****** drawer or I'll blow your f****** head off." Pearce testified that when the robber spoke, she knew that the robber was a man.

Pearce testified that before she had time to open the cash register drawer, the robber said, "Get me a bag, get me a bag." She testified that as she turned away to retrieve the bag for him, the robber said: "No, no, no. Open the drawer. Open the drawer first." Pearce testified that she then turned back to the cash register and opened the drawer, and immediately after the drawer was opened, the robber took out the money tray and began grabbing the money. Pearce testified that she turned away to get a bank bag for the robber, unzipped the bag, and asked the robber if he wanted her to help him. Pearce testified that the robber yelled: "No, no. Get on the floor. Get on the floor."

Pearce testified that she complied with the robber's order by bending down to lie on the floor, and as she did, the robber hit her on the head with the butt of his gun. When the gun hit her, it cut her head open. Immediately after being hit, Pearce put her hand to her head, and as she did, the robber hit her again, breaking one finger and cutting another. Pearce testified that after being hit the second time, all she could do was lay on the floor. The robber left within a few seconds.

Bridgett Lane testified that defendant was her boyfriend, beginning about February 1999. Lane testified that on March 1, 1999, defendant was living at the Motel 45 in Louisville, Illinois. Lane and her 16-month-old daughter were with defendant in his motel room at about 4:30 p.m. that day. Lane testified that she and defendant watched television and played with the baby but that defendant was also pacing the floors "a little bit." Lane testified that after a while, defendant said that he was going to rob Zink's, but Lane did not believe him.

According to Lane, defendant took a shower and put on a pair of black pants. Lane testified that defendant cleaned his gun, loaded it with bullets, and put on a black, hooded sweatshirt and a pair of black tennis shoes. Lane testified that she had never seen the tennis shoes before, and defendant held them up to her and said that he was going to wear them so that he could throw them away in case it was muddy so that the police would not be able to trace the footprints back to him. Lane testified that after defendant got dressed, he placed a bandana over his head, placed another bandana over his nose and mouth, and put on sunglasses. Defendant also put two pairs of white hospital gloves on his hands. Lane testified that at about 9:45 p.m., defendant put the gun, which she described as a black handgun with a brown handle, into the pocket on the front of the sweatshirt and left the motel. Lane testified that defendant came back to the motel room after about five minutes, saying that there were too many people at Zink's to "do it." During her testimony, Lane identified the shoes that defendant wore that night and the gun that he carried.

After coming back to the motel, defendant left again after a few minutes. Lane testified that defendant was still wearing the same outfit. After defendant left the second time, Lane continued to watch television and tried to get her daughter to sleep. She testified that defendant returned the second time after about 10 to 15 minutes. Lane testified that when he came back, "[He was] out of breath and just real nervous and everything[,] and he just[-]he threw the money on the floor." Lane testified that the money was in a brown bank bag and that defendant estimated that he got about $500 in the robbery. According to Lane, defendant took off the bandanas, the sunglasses, and the sweatshirt, put those items into a bag, walked out the door, and threw the bag into the motel dumpster. Lane testified that defendant also took off the tennis shoes and put on a pair of boots and a black T-shirt. Lane testified that when defendant came back into the motel room, he picked up the tennis shoes and told her that they had to get out of there. Lane, her baby, and defendant got into the car with the tennis shoes and the money bag and left the motel.

Lane testified that as they were driving away from the motel, there was a car behind them that defendant thought was a police car. According to Lane, the car turned around and followed them, and as the car followed them, defendant pitched the tennis shoes out the window and over the top of the car onto Lane's side of the road. Eventually, the police car stopped following them, and they went to defendant's parents' home. While there, defendant went inside, but Lane stayed in the car. Defendant returned to the car after about 15 minutes. Lane testified that she and defendant left and went to the Casey's gas station in Louisville and put gas into the car.

Lane testified that they left Casey's and went back to the motel, but when they got there, defendant drove past when he saw police cars at the motel. According to Lane, about five minutes later, they again drove to the motel, and the police were still there. Lane testified that defendant said that the police knew it was him but that there was nothing he could do about it then. Lane testified that defendant pulled into the parking lot of the motel, got out, and talked to one of the police officers who was in front of defendant's room. Lane testified that she eventually told the law enforcement officials what she knew about the robbery but that she waited for nearly two weeks before coming forward. Lane explained that she did not come forward earlier because she and her husband, J.R. Dalton, were trying to work things out and because defendant told her that if she and defendant ever broke up, defendant would kill her because she knew about the robbery. Lane testified that defendant made these threats to her both before and after the robbery. Lane testified that the first time he threatened only her, but after the robbery, he threatened both her and her daughter. Lane testified that she eventually told what she knew despite defendant's threats because "what he done to that girl wasn't right."

On cross-examination, Lane continued to assert that defendant threatened to kill both her and her baby, despite defense counsel's repeated questions about Lane's relationship with her husband, why she did not tell about the robbery earlier, why Lane did not leave the motel when defendant left to commit the robbery, ...


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