Appeal from Circuit Court of Jersey County No. 97CF147 Honorable Ronald F. Robinson, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
A jury convicted defendant, Ricky Callahan, of first degree murder and four counts of armed violence. The trial court sentenced him to a term of natural life imprisonment for the murder conviction and 30 years for each conviction for armed violence, to be served consecutively to each other and to the sentence of natural life. Defendant appeals, raising the following contentions: (1) the trial court erred in allowing the State to file additional charges on the eve of trial and defense counsel was ineffective in failing to object to the filing of the armed violence charges on speedy-trial grounds; (2) defense counsel was ineffective for failing to tender a jury instruction defining "recklessness" after tendering a jury instruction for involuntary manslaughter; (3) the record shows no valid waiver of defendant's Miranda rights (see Miranda v. Arizona, 384 U.S.436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)); (4) imposition of a natural life sentence under section 5-8-1(a)(1)(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-1(a)(1)(b) (West 1996)) violated defendant's right to due process under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)); (5) the mandatory consecutive sentencing provisions under section 5-8-4(a) of the Unified Code (730 ILCS 5/5-8-4(a) (West 1996)) are unconstitutional under Apprendi; (6) the discretionary consecutive sentencing provisions under section 5-8-4(b) of the Unified Code (730 ILCS 5/5-8-4(b) (West 1996)) are unconstitutional under Apprendi; (7) the truth-in-sentencing provision contained in section 3-6-3(a) of the Unified Code (730 ILCS 5/3-6-3(a)(iii) (West 1996) (requiring trial court to find conduct resulted in great bodily harm to a victim)) is unconstitutional under Apprendi; (8) imposing consecutive sentences on a natural life sentence was improper as a matter of law; and (9) a sentence of natural life was excessive and inappropriate as a matter of law. We affirm defendant's conviction for first degree murder but modify his sentence; we reverse his convictions for armed violence; and we remand with directions.
In January 1998, the State charged defendant by indictment with first degree murder (720 ILCS 5/9-1(a)(2) (West 1996)) for the December 27, 1997, stabbing death of Ronald Haenitsch, the attempt (first degree murder) of Steven Garrett, David Almasey, Jennifer Williams, and Michael Talley (720 ILCS 5/8-4(a), 9-1(a)(2) (West 1996)), and criminal damage to state-supported property (720 ILCS 5/21-4(A) (West 1996)). In May 1999, the State also charged him with eight counts of armed violence (720 ILCS 5/33A-2 (West 1996)) for stabbing injuries that same day to Steven Garrett, David Almasey, Jennifer Williams, and Michael Talley; eight counts of aggravated battery (720 ILCS 5/12-4(a), (b)(8) (West 1996)); and two counts of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 1996)) based on the same series of events. A jury trial was held in July 1999 on the murder charge and the four counts of armed violence.
Shortly after 12 a.m. on December 27, 1997, Jerseyville police responded to a call concerning an altercation at Lorton's Hotel Restaurant and Bar in Jerseyville. Officers arrived to find a scuffle outside the bar involving defendant and several other men and placed defendant in custody in a squad car. Inside the bar, they found a large crowd of people, several of whom were injured. Haenitsch, the murder victim, lay on the floor of the bar. A knife was found on the ground outside near the entrance to the bar.
Defendant, a patron of the bar, was rebuffed by a woman with whom he wished to dance. The woman's brother intervened and told defendant, "Hey, man she said no." Defendant withdrew to his table but then approached the brother and scratched him twice on the neck with the tip of a knife. In response to the bartender's request, two patrons then escorted defendant to the exit door of the bar. Defendant appeared willing to leave but then turned back into the crowd and, in a punching motion, stabbed four other patrons. One died and the other three were injured.
Defendant then left the bar, ran across the street, and returned still carrying a bloody knife in his hand, with the blade sticking between his fingers and the palm of his hand. Several patrons struggled with defendant, took him to the pavement, and disarmed him. The police then arrived.
Twelve witnesses testified in varying detail to these events. None of the witnesses knew defendant prior to December 27, 1997, and none testified to anyone provoking defendant.
The parties stipulated deoxyribonucleic acid (DNA) testing revealed blood on the knife was Talley's and blood on defendant's jeans was Jennifer Williams'. A fingerprint on the knife was Zachariah Czaia's. The parties also stipulated medical evidence indicated wounds found on Almasey, Williams, Talley, and Garrett were consistent with stab wounds inflicted by a knife. An autopsy on Haenitsch indicated the cause of death to be a single stab wound to the chest, which perforated his heart.
Several witnesses testified for defendant about the amount of alcohol he consumed on December 26 and his actions that afternoon and evening. Defendant asserted a defense of voluntary intoxication and presented an expert psychologist, Dr. Richard Wetzel, who testified that, on the night in question, defendant did not have the ability to form the intent to kill or seriously harm someone. The State called a psychiatrist, Dr. Kevin Miller, in rebuttal. Dr. Miller testified he did not believe defendant to have been legally intoxicated on the night in question, and he opined that defendant's actions were intentional and purposeful.
Jerseyville police officer Frank Scoggins testified he interviewed defendant at the police station after his arrest. Defendant told him he was in the front bar area and rest room of Lorton's but never in the nightclub area where the crimes occurred and he had no problem with anyone there. Defendant told Scoggins he drank four to five Crown and Coke beverages that evening. He twice inquired whether Scoggins had "pulled a knife off of him" when he was arrested.
The jury deliberated on the foregoing evidence and returned verdicts of guilty on one count of first degree murder and four counts of armed violence.
The trial court held a sentencing hearing on September 2, 1999. The court found no factors in mitigation. In aggravation, the court noted defendant's conduct caused serious harm; he had a history of criminal activity; he inflicted severe bodily injury; he attacked five people in the span of only a few seconds, causing death to one and great bodily harm to the other four; the attacks occurred in a public place against unsuspecting individuals minding their own business; the attacks were random and without reason; defendant was not subject to rehabilitation; defendant did not exhibit any remorse; defendant offered no help to his victims but fled the scene; and the randomness of the murder was indicative of brutal and heinous behavior indicating wanton cruelty. It then sentenced defendant to natural life for the murder conviction and consecutive 30-year prison terms on each of the four armed violence offenses, to be served consecutively to the term of natural life.
Defendant filed a motion to reduce sentence on September 21, 1999, which the trial court denied on December 21, 1999. This appeal followed.
A. Ineffectiveness of Counsel in Failing To Move To Dismiss Late Filed Additional Charges on Speedy-Trial Grounds
Defendant remained in custody from his arrest on December 27, 1997, until his trial. A speedy-trial demand pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 1996)) was filed by defense counsel on January 6, 1998, requiring defendant be brought to trial within 120 days of the date he was taken into custody. Numerous continuances occurred, and trial was finally set for May 25, 1999. At a pretrial hearing on May 13, 1999, the State indicated it would be filing additional charges later that date. The 20 new charges were brought to the attention of the trial court at the next pretrial hearing on May 20, 1999. The trial court noted these charges could have been filed over a year before as they were based on the same actions as the original charges of first degree murder and attempt (first degree murder) which were filed in early 1998. Both the State and defense counsel agreed with the court. The State also agreed with the trial court's assessment the charges were not included offenses and defendant would be entitled to a preliminary hearing.
Defense counsel made no objection to the filing of the charges despite being filed on the eve of trial. The trial court allowed them to be filed. After they were filed, defense counsel made no motion to dismiss the new charges on speedy-trial grounds. The trial was continued until July 19, 1999.
On appeal, defendant argues defense counsel was ineffective for failing to move to dismiss the newly filed charges on speedy-trial grounds. The standard of review for assessing ineffective assistance of counsel is the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), as adopted by People v. Albanese, 104 Ill. 2d 504, 526-27, 473 N.E.2d 1246, 1255-56 (1984), in which a defendant must show counsel's performance was objectively deficient and defendant was prejudiced by such deficiency. He must show counsel made errors so serious he was not functioning as the "counsel" guaranteed under the sixth amendment. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To establish prejudice, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The rule regarding speedy-trial considerations on later-filed charges was set forth in People v. Williams, 94 Ill. App. 3d 241, 248-49, 418 N.E.2d 840, 846 (1981):
"Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges. Continuances obtained in connection with the trial of the original charges cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained."
Counsel's failure to move for a speedy-trial discharge of the new and additional charges under these circumstances may constitute ineffective assistance of counsel. People v. Stanley, 266 Ill. App. 3d 307, 310, 641 N.E.2d 1224, 1226 (1994).
Where charges are required to be brought in a single prosecution under the compulsory-joinder provisions of section 3-3(b) of the Criminal Code of 1961 (720 ILCS 5/3-3(b) (West 1996)), the speedy-trial period begins to run when the speedy- trial demand is filed even if the State brings some charges at a later date. People v. Quigley, 183 Ill. 2d 1, 13, 697 N.E.2d 735, 741 (1998). The later filing date for some charges cannot be used to "restart" the speedy-trial period, and any delay occasioned by the late filing is not attributable to the defendant. The State is required to bring a defendant to trial on all charges within the original speedy-trial term. The new charges "relate back" to the date the original charges were filed. People v. Gooden, 189 Ill. 2d 209, 222, 725 N.E.2d 1248, 1255 (2000).
Included offenses that are charged later are not subject to the Williams rule. An indictment for a particular offense serves as an indictment for all included offenses, and the later-filed included offenses are not "new and additional" charges. They are deemed to have been before the court when earlier continuances were granted. People v. Dressler, 317 Ill. App. 3d 379, 387, 739 N.E.2d 630, 637 (2000) (Third District).
The State elected to go to trial on just four of the later-filed charges, armed violence, and the original first degree murder charge. The armed violence counts arose from the same acts as the original charges and the facts were long known by the State. The armed violence counts were filed after the 120 days of the speedy-trial term had expired. None of the continuances granted prior to filing of the armed violence charges would then be attributable to defendant under the Williams rule, ...