The opinion of the court was delivered by: Justice Quinn
Appeal from the Circuit Court of Cook County Honorable Edward Fiala, Judge Presiding.
Defendant, David Sergeant, was charged by indictment with multiple counts of murder, home invasion and armed robbery. Following a jury trial, where defendant and Dedric Hentz (co-defendant) were simultaneously tried by separate juries, defendant was found guilty of murder, home invasion and armed robbery. Defendant was sentenced to a term of 60 years' imprisonment for murder, 30 years for home invasion to run concurrently and 30 years for armed robbery to run consecutively. Defendant now timely appeals.
On appeal, defendant argues that; (1) the trial court admitted inadmissible hearsay; (2) he was denied effective assistance of counsel; and (3) his sentence for armed robbery should be modified to run concurrently because the armed robbery did not result in severe bodily injury, or, alternatively, because it violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
For the following reasons, we affirm defendant's conviction and affirm his sentence for first degree murder, modify his sentence for armed robbery to run concurrently, and remand to the trial court to enter a consecutive sentence on the home invasion conviction.
At the defendant's trial, Assistant State's Attorney Mike Rogers testified that in October of 1995, he became involved in the investigation of the homicide of Scott Tisdale. Rogers stated that upon belief that defendant was involved in this case, he went to the Indiana Department of Corrections' Regional Diagnostic Center in Plainfield, Indiana, on October 30, 1996, to interview the defendant. Rogers testified that he apprized defendant of his Miranda rights. Rogers testified that defendant agreed to talk to him and he wrote out defendant's statement. The statement included the following information:
Defendant explained that one of his co-defendants introduced him to Loracio Jennings. Defendant stated that Jennings was the head of a home invasion crew that he intended to join. Defendant was informed that everything that he and the crew took out of a "lick" or "job" was to be brought to Jennings. Defendant stated that on October 6, 1995 the crew met at Jennings apartment and planned two "licks" for that evening. The first "lick" was supposed to be at 73rd and South Shore Drive, the second was planned for 93rd and Jeffrey. Defendant stated that he was told that at the second "lick" he or another man would knock on the door and pretend they were buying dope, and then just go in with a Tech 9 weapon, while two of the co-defendants would tie the people up. Defendant stated that after arriving at the first "lick", the crew was unable to get into the apartment and it was called off. The crew then went to 93rd and Jeffrey. When defendant and the two men went to the door, the victim opened the door and defendant backed him into the house with a Tech 9. The victim was told to get down on the ground and Joiner tied him up. At this point defendant stated that an old man came up the stairs and Joiner tied him up as well. Defendant stated that he guarded the two men while the others searched the house. Defendant stated that Hentz then took the Tech 9 while defendant went to search the house. During his search defendant found a loaded pump shotgun under a bed. Defendant stated that he ran downstairs and out to the back yard yelling "I found a gun, I found a gun". At this point defendant said he saw the victim and Hentz "tussling" over the Tech 9 so he hit the victim with the butt part of the shotgun. Defendant said as they struggled for the weapons, Hentz grabbed the shotgun and he grabbed the Tech 9. Defendant stated that Hentz then poked the victim with the shotgun and the gun went off twice. The victim grabbed his side. Defendant stated that he and Hentz ran to the car and proceeded back to Jennings apartment. Defendant got 10-15 bags of crack for the job.
Rogers further testified that the defendant reviewed the statement, made corrections, initialed these corrections and signed the statement. At the end of the statement defendant acknowledged that initially he had said he didn't know anything about "jobs" and "licks," but he figured that Jennings was going to "hang him out" and he did not want to "go down" alone.
Lori Bethany testified that during October 1995 she was the girlfriend of Michael Perkins. She stated that on October 6, 1995, she and Perkins went to Loracio Jennings' apartment at around 6 p.m. Bethany testified that the defendant, co-defendant Dedric Hentz, Michael Joiner, Loracio Jennings and Jerry were all present at the apartment that night. Bethany testified that Perkins instructed her to go into the kitchen with Jerry while Perkins, defendant, Hentz, Joiner and Jennings all went into Jennings' bedroom, where they remained for 15 minutes.
Bethany testified that when they left the apartment, she, Perkins and Jennings got into a Blazer while defendant, Hentz and Joiner got into a white Buick. The cars drove to around 77th or 78th and South Shore Drive. She was instructed to wait in the car while the men all got out of the cars and went into the building. After 10 minutes, the men got back into the cars and proceeded to 93rd and Jeffrey. Bethany testified during direct and cross-examination that she never inquired as to where they were going or why. When they arrived, the Buick pulled up next to the Blazer and Jennings handed money to someone in that car. Bethany stated that the three men in the Buick exited the car and went toward 9320 S. Jeffrey. She did not actually see the men enter the house because the Blazer she was in went around the block. Bethany testified that the Blazer parked one block away, where they could see the white Buick. Shortly after, Bethany heard two gunshots coming from the area of 93rd and Jeffrey. Bethany saw defendant, Hentz, and Joiner come running from an alley to the Buick. At that point the Blazer she was riding in began to drive away. Both cars returned to Jennings' apartment.
At Jennings' apartment, Bethany was again instructed to go into the kitchen while defendant, Jennings, Perkins, Joiner and Hentz went into the bedroom and shut the door. After the men exited the bedroom, approximately 10 minutes later, they began to smoke cocaine. When Bethany inquired as to where the drugs had come from, Hentz replied "from the move." Defendant was not present for this statement. Bethany testified that she understood this to mean "the move that just transpired." Bethany stated that she and Perkins then left Jennings' apartment and stayed at a motel for the evening. On direct examination Bethany testified that after having a conversation with Perkins at the motel she believed a robbery had occurred at 9320 S. Jeffrey.
Bethany testified that the first time she spoke with the police was on the evening of October 10, 1995, when Detectives William Foster and Ed O'Boyle arrived at her house. Bethany stated Perkins had just pulled up to her house when the detectives arrived. Bethany testified that she went to Area 2 with the officers to tell them what she knew. The detectives also took Perkins to Area 2. Bethany also stated that she accompanied the officers to point out the location of Jennings' apartment at 68th and Clyde. On the way back from the apartment, Bethany saw Hentz walking westbound on 67th Street and she pointed him out to the officers.
Bethany was taken back to Area 2, where she provided a written statement at approximately 5 p.m. on October 11, 1995. Bethany remained at Area 2 until the morning of October 12, 1995, when she testified before the grand jury. On cross-examination, Bethany admitted that during the month of October 1995 she was a frequent drug user and Perkins was her drug supplier.
Adrienne Segovia, a forensic pathologist, testified that on October 7, 1995, she performed an autopsy on Scott Tisdale. Segovia concluded after her examination that Tisdale died as a result of a close-range shotgun wound to the abdomen.
Detective William Foster testified that on October 6, 1995, at approximately 8 p.m., he received a call on his radio that a man was shot at 9320 South Jeffrey and proceeded to the scene. While canvassing the neighborhood, Foster received the names Loracio Polk and Perkins from Larry Williams. Foster later learned that the two men were Loracio Jennings and Michael Perkins. Foster testified that he was unable to locate these men on the night of the incident.
Foster testified that on October 9, 1995, he learned that Perkins had a girlfriend, Lori Bethany, who lived at 11717 Longwood Drive. Late the next evening, Foster located Perkins and Bethany at Bethany's residence and brought them both to Area 2. Later, Bethany accompanied Foster to point out Jennings' apartment. Foster testified that although they were unable to locate Jennings that night, Bethany pointed out Hentz on a sidewalk on 67th Street. At that point Hentz was taken into custody and Bethany was taken back to Area 2.
Finally, the State called James Tisdale. Tisdale testified that on October 6, 1995, he lived at his home at 9320 S. Jeffrey with his son, Scott Tisdale. Tisdale stated that on that evening at around 8 p.m. he was downstairs watching television in the lower "rec room" when he heard a commotion at the top of the stairs. He heard a voice say that it was the police and to come upstairs. When Tisdale was at the stairs, he saw an arm holding a machine pistol. He walked up the stairs and was tied up and forced to lie on the floor. Tisdale stated that he saw his son also lying on the floor. Tisdale admitted that it was dark and he could not see the face of the man with the machine pistol. Tisdale did state that he saw a man standing over his son holding a bat and wearing a long dark coat. Tisdale identified the defendant in court as the man with the bat.
Tisdale testified that after a few moments defendant went out of his sight, he heard people upstairs, then someone took his son out of the room. Tisdale stated that someone came up behind him and took his gold chain from around his neck. He then heard someone yelling that they found a shotgun. He then heard the back door, which leads out to the garage, open. A few minutes later Tisdale heard gun-shots coming from the direction of the garage. He also heard his son grunt. After hearing people run out of the house, Tisdale untied himself and ran out the back door where he saw his son lying face down on the sidewalk.
Tisdale testified that on October 25, 1996, he was shown a series of photographs and he recognized one of the photographs as being that of the man who stood over his son with the bat. Tisdale identified defendant in court as the man in the photograph. Tisdale testified that on April 23, 1997, he went to Area 2 and viewed a lineup where he recognized the man who stood over his son with the bat. Tisdale identified defendant in court as the man he picked out of the lineup.
Anthony Miles testified for the defense that he had known defendant for over 12 years. Miles stated that defendant would visit and often stay at his home for a few days at a time to assist him because he was disabled. Miles stated that on October 6, 1995, defendant came to stay with him at 66th and Ingleside. Miles stated that it was the middle of the night when defendant arrived but he did not know the exact time. Miles stated that defendant stayed a few days.
Defendant then took the stand. Defendant testified that on October 6, 1995, he went to Anthony Miles' house at around 6:30 p.m. and stayed there all weekend. Defendant admitted that he was convicted of felonies in 1992 and 1996. Defendant further testified that on October 30, 1996, he was incarcerated at the Regional Diagnostic Center and that Assistant State's Attorney Rogers and two detectives came to see him there. Defendant testified that the officers inquired about a shooting and he told them he did not know anything about it. He stated that while the officers continued to question him, Rogers was writing something. Defendant testified that he continued to tell the police that he didn't know anything. Defendant stated that Rogers told him that if he helped finger Jennings for conspiracy nothing would happen to him. On cross-examination defendant admitted to knowing Jennings, Hentz, Perkins and Joiner. Defendant denied ever hearing the term "lick" or "job." He admitted that he signed the statement but denied having read it.
After closing arguments, the jury found defendant guilty of the first degree murder of Scott Tisdale, home invasion with Scott Tisdale as the victim, home invasion with James Tisdale as the victim, and the armed robbery of James Tisdale. The court sentenced defendant to 60 years in prison for murder, 30 years for armed robbery to run consecutively and 30 years on the home invasion counts to run concurrently, which the court "merged."
Defendant first argues that he was denied a fair trial where the court improperly allowed the hearsay testimony of Bethany. Specifically, defendant points to the following exchanges:
"Q: Now after you saw those individuals smoke their packets, did you ask any of them any questions about where they got the narcotics?
A: I remember asking Dedric.
Q: And did Dedric provide a response?
A: He said they got it from a move.
Q: When he said move, what did you understand ...