Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
After a bench trial, the defendant Bernard Williams was convicted of first degree murder and three counts of aggravated battery with a firearm. The trial judge sentenced him to a total of 80 years in prison: 50 years for murder and three consecutive prison terms of 10 years for each count of aggravated battery with a firearm.
The issue before us is whether the trial court was correct when it concluded it had to sentence the defendant to three consecutive terms. The answer depends on what the legislature meant when it used the words "severe bodily injury."
We conclude one of the three victims clearly suffered severe bodily injury at the hands of the defendant, but that the record is insufficient for us to determine whether that was true of the other two. For that reason, we vacate two of the defendant's consecutive sentences and remand this cause to the trial court for a new sentencing hearing on those two counts.
The State's evidence showed that around 4:30 p.m. on August 23, 1996, two men fired gunshots into a group of people gathered near a bar on Chicago's west side. Gary Thomas died as a result of the shooting. Three other people, Lucinda Birmingham, Crystal Pope, and Charles Mitchell, were wounded but survived. Defendant and co-defendant DeAngelo Johnson were subsequently charged with the shootings.
At trial, Lucinda Birmingham testified that at the time of the shooting, she was on her way home from a liquor store. Birmingham said there were several people outside at that time. As Birmingham walked toward her house, she briefly stopped and talked to her friend Charles Mitchell. After parting, she heard "some noises." She was not sure what the noises were because she was "scratching off" a lottery ticket at the time and "wasn't really paying attention." After hearing the noises, Birmingham was about to run when she noticed that she had been shot in the leg. Birmingham fell over into a vacant lot, and then rolled over and crawled to the curb. According to Birmingham, the bullet struck her in her upper right thigh and came out through "the back part."
Birmingham further testified the paramedics eventually arrived to ascertain how many times she had been hit and whether the bullet had hit a blood vessel. According to Birmingham, the paramedics told her she would have to wait about 20 minutes for an ambulance because there were other people who were more seriously injured. Birmingham testified that when the paramedics asked how she was doing, she stated that she "was feeling okay." An ambulance eventually arrived, and Birmingham was taken to the hospital where she waited about 30 to 45 minutes before getting assistance. According to Birmingham, the delay was due to the hospital personnel determining "that [she] wasn't really injured like the other pedestrians on the street." Birmingham said her wound eventually was treated, and she was at the hospital for a total of five or six hours.
Crystal Pope testified she was walking to the bus stop with her cousin before the shooting took place. As Pope crossed the street, her cousin told her she had been shot and that her arm was bleeding. She "didn't feel anything" initially. Pope fell, and her cousin dragged her back to the sidewalk. Her left arm was "bleeding and scraped like," and she was experiencing pain in the upper torso by her armpit. Pope's cousin left to call for help while Pope remained "in and out" of consciousness. Pope eventually was taken to the hospital where she underwent emergency surgery. She was hospitalized for a total of 19 days. Pope testified the bullet that entered her left arm still was lodged in the lower part of her spine at the time of trial.
Charles Mitchell testified he was standing in a vacant lot when he heard gunshots being fired. He then looked down at his pant leg and saw it had a hole in it. Mitchell then noticed his left leg was bleeding. He realized he had been shot. Mitchell ran home and talked to his mother, who told him to return to the scene so that he could be taken to the hospital. With the assistance of a friend, Mitchell returned to the scene of the shooting and waited for an ambulance for approximately 30 minutes. At the hospital, an X-ray revealed that the bullet had gone through Mitchell's leg. The doctors cleaned the bullet wound and released Mitchell.
We begin with some observations.
First, because improper imposition of consecutive sentences may violate a defendant's fundamental rights, we do not accept the State's invitation to find the issue has been waived by failure to preserve it in the trial court. See People v. Durham, 312 Ill. App. 3d 413, 420, 727 N.E.2d 623 (2000); People v. Williams, 263 Ill. App. 3d 1098, 1108, 638 N.E.2d 207 (1994). We will, however, grant great deference to the trial court's sentencing decision, and we will not substitute our judgment for ...