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People v. McCarty

April 26, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DESEAN MCCARTY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Reginald Baker, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn

UNPUBLISHED

Defendant, Desean McCarty, was charged by indictment with three counts of first-degree murder (for the murder of one individual), one count of aggravated possession of a stolen motor vehicle and one count of aggravated fleeing or attempting to elude a police officer. The State later added a fourth count of first-degree murder. Following a bench trial, defendant was found guilty of one count of felony murder and sentenced to 40 years' imprisonment. Defendant now timely appeals.

On appeal, defendant argues that his conviction must be reversed because; (1) aggravated possession of a stolen motor vehicle is not a forcible felony; (2) he is excluded from culpability under a plain reading of the felony murder statute; (3) the State failed to prove proximate cause; (4) the trial judge's failure to enter a finding of guilt on the aggravated possession of a stolen motor vehicle count constitutes an implied acquittal on the predicate felony and/or the State failed to prove an essential element of the aggravated possession of a stolen motor vehicle offense; and (5) his sentence was excessive.

For the following reasons, we affirm.

I. BACKGROUND

The pertinent facts of the case involve the events that occurred the evening of September 20, 1997. Renell Brown testified that on Thursday September 18, 1997, she allowed her boyfriend, Andre Griffin, to use her automobile. Brown testified that she gave Griffin the maroon Chevrolet Caprice to drive it to Harvey, Illinois, to be repaired. Brown stated that Griffin had permission to use the car "for a couple of hours."

Andre Griffin testified that on September 18, 1997, he drove Brown's car to Harvey and had some work done on it. Griffin testified that someone had attempted to steal the car on a previous occasion and therefore the steering column was peeled and the car could only be started with a screw driver. Griffin stated that after the repairs were finished, he drove the car to a housing project on 154th Street in Harvey. Griffin testified that he rented Brown's car out to defendant in exchange for drugs. Griffin stated that defendant had permission to use the car for only three hours; however, defendant never returned. Griffin testified that two days later, defendant returned to the housing projects in the Caprice. Griffin requested that defendant return the car. Griffin stated that defendant said he was going to park the car behind the building, but he "punched the accelerator and took off."

Larry Mason testified that on Saturday, September 20, 1997, defendant pulled up in the maroon Caprice and asked if anyone wanted to buy the car. Mason noticed the steering column was peeled, and someone in the group told him "that's a stolen car, man, get that off our block."

Tia Brewton testified that on September 20, 1997, she was at her home at 84 East 155th Street, Harvey, Illinois. Brewton testified that at around 7:30 p.m. that night she was sitting on her front porch and heard sirens. Brewton walked to the end of her sidewalk and looked down the street. Brewton saw two men running across the street. Brewton stated that the first man made it across the street but the second man was hit by a police car. Brewton testified that when she first saw the men running, she noticed the police car lights coming "awfully fast."

James Sanders testified that on September 20, 1997, he was working at the gas station at 159th and Wood. Sanders testified that he heard sirens and saw a red Chevy being chased by a Markham police car. Sanders heard the sirens and observed the emergency lights flashing on the police car. Sanders testified that it appeared that the cars were traveling faster than the speed limit. He characterized the incident as a "high speed chase."

Officer Brogdon testified that on the evening of September 20, 1997, he was on duty as a patrol officer for the Harvey police department. While monitoring his radio that evening, Brogdon heard a Markham police unit advise his department that he had a vehicle refusing to stop. Brogdon testified that the next call on the radio stated that the unit was getting into a "10-80," a high-speed chase. Brogdon testified that he was near the area so he proceeded to 159th and Ashland to give assistance to the Markham unit. While traveling down 154th Street, his car windows were down and he heard engines revving and tires squealing.

Brogdon stated that as he proceeded east down 155th he heard the Markham police officer state over the radio that he was "bailing out." Brogdon testified that this meant the officer must have exited the vehicle and the car chase had become a foot chase. As he continued east down 155th, Brogdon stated that he saw a male running northbound across 155th. Brogdon gave the suspect's physical description and direction of travel over the radio as the man was passing across the street. Brogdon began to slow his car down, in preparation to "bail out" of the car and proceed on a foot chase, when an impact happened. Brogdon stated that he thought he had run over a brick. When Brogdon exited the car, he noticed damage to the rear driver side quarter panel, and as he walked to the back of the car he saw some black trousers under his police car. He then called for assistance from an ambulance, a tow truck and his sergeant. Brogdon testified that he later learned that the person he hit was Officer Sean Laura from the Markham police department.

The parties stipulated that if Thamrong Chira, Cook County medical examiner, were called to testify he would express an opinion to a reasonable degree of scientific and medical certainty that Officer Sean Laura died of multiple injuries sustained as a pedestrian that was struck by an automobile.

Detective James Knapp testified that after receiving information regarding the accident, he began canvassing the area for defendant. Knapp stated that on September 21, 1997, defendant was arrested at approximately 7:30 p.m. After defendant was read his rights, defendant went with Knapp to show him the streets that he drove on in the pursuit from the previous day. Knapp testified that the defendant indicated that the patrol car was following him with its police lights activated. Knapp testified that the defendant showed him where the Caprice stopped and he got out of the car and began to run between the houses.

Assistant State's Attorney John Coyne testified that on September 22, 1997, at approximately 2:30 p.m., he spoke with defendant at the Harvey police station. After advising defendant of his Miranda rights, defendant provided Coyne with a statement. Coyne testified that he wrote out defendant's statement and reviewed the statement with the defendant. Defendant made corrections to the statement and initialed and signed every page. The pertinent portions of defendant's statement read as follows:

"On Saturday, September 20th, 1997, I got a Chevy Caprice from Lil Moe. The State's Attorney has shown me a picture of the car I got from Lil Moe, Exhibit One. Lil Moe's real name is Mohammad. I don't know his last name or where he lives. The car Lil Moe gave me was stolen. I knew it was stolen because the steering column was peeled. It means it was broken. I used a screwdriver to start the car. I was going to drive the car and then get rid of it.

Some time after seven p.m. I was parked on Marshfield just north of 165th Street. I was in the driver's seat. Lil Moe was in the passenger seat.

I look out the rear view mirror and saw a Markham Police car drive eastbound on 165th Street. A short time later I saw the Markham Police car drive westbound on 165th Street.

When I saw the Markham Police car I knew I had to get out of there. I did not want to get caught in a stolen car. Additionally, I had two ounces of marijuana on me.

I started to drive north on Marshfield to 163rd Street. I stopped at the stop sign at 163rd and Marshfield. At the stop sign I again saw the Markham Police car.

I turned right on 163rd and drove past the police car. As I was driving toward Wood Street I looked in the mirror and saw the police car make a U-turn. I turned right on Wood.

Before I got to 159th and Wood I saw the police car had its emergency lights on. I did not want to get caught so I turned onto 159th Street. I drove through the red light. While on 159th Street the speed of my car was about fifty miles per hour. I then turned left on Ashland. I was still traveling at about fifty miles per hour.

When I got to the alley on Ashland I could see the police car behind me. The car had its emergency lights on.

I turned right into the alley. I drove into the alley until I could ditch the car between a garage and a pole. I then got out of the car and ran on foot. I could hear the police officer chasing me. The officer was on foot.

I ran into the back yards. I ran across 155th Street and through the yards across 155th Street. Once I got into the alley behind 155th Street I threw my marijuana to the ground. I did not want to get caught with it.

I then hid under a porch of a house on 155th Street. I stayed there for about ten minutes. I knew the police officer was no longer chasing me at that time."

Finally, the State presented the testimony of three police officers to testify to two prior incidents where the defendant was involved in high-speed police chases. Chicago police officer Perkins testified that on August 26, 1997, he observed a red pickup truck run a red light at the intersection of Halsted and 95th Street. Perkins testified that he got behind the pickup and activated his car's emergency equipment. Perkins stated that the truck sped up proceeding south down Halsted. Perkins testified that the truck turned into a gas station parking lot, struck some cars in the lot, and then turned back onto Halsted. The car then pulled back into the parking lot and struck a pole. Perkins ...


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