Appeal from Circuit Court of Cook County No. 98 CR 31306 Honorable Edward M. Fiala, Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Garcia
On May 24, 2000, following a jury trial, the defendant, Israel Ruiz, was convicted of first-degree murder (720 ILCS 5/9-1(a)(2) (West 1998)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1998)). The defendant was sentenced to concurrent terms of 40 and 15 years in prison respectively. Pursuant to section 3-6-3(a)(2)(i) of the Unified Code of Corrections (Truth in Sentencing Act (730 ILCS 5/ 3-6-3(a)(2)(i) (West 1998)), the defendant is required to serve 100% of the first-degree murder sentence.
On appeal, the defendant raises four issues: (1) whether the trial court erred in instructing the jury on felony murder (720 ILCS 5/ 9-1(a)(3) (West 1998)) with aggravated discharge of a firearm (720 ILCS 5/24-1.2 (West 1998)) as the predicate felony; (2) whether the trial court erred in entering a separate judgment and sentence for aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1998)); (3) whether the trial court erred in not compelling the presence of a defense witness; and (4) whether the reenacted Truth in Sentencing Act (730 ILCS 5/3-6-3(a)(2)(i) (West 1998)) is unconstitutional. For the following reasons, we affirm the judgment of the trial court.
Co-defendants Israel Ruiz, Michael Mejia, and Rafael Carrasco were indicted and jointly tried for the first-degree murder of Nathaniel Walls and the aggravated discharge of a firearm at Malik Walls. The defendant and Mejia were tried before separate juries; Carrasco chose a bench trial. Mejia and Carrasco are not parties to this appeal. Ruiz's jury found him guilty of first-degree murder (720 ILCS 5/9-1(a)(2) (West 1998)) and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1998)). As to each charge, the jury returned a general verdict of guilty.
The State prosecuted the first-degree murder charge under three theories: (1) knowing or intentional murder in violation of section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 1998)); (2) murder by creating a strong probability of death or great bodily harm in violation of section 9-1(a)(2) (720 ILCS 5/9-1(a)(2) (West 1998)); and (3) felony murder in violation of section 9-1(a)(3) (720 ILCS 5/9-1(a)(3) (West 1998)).
The evidence presented at trial established that in the evening hours of Saturday, November 7, 1998, Nathaniel Walls was shot in the head while holding his three-year-old son, Malik. Walls fell face down on top of Malik, injuring him. Several hours later, Walls died as a result of the gunshot wound to his head.
The shooting took place near the corner of 90th Street and Brandon Avenue in Chicago, the dividing line between two rival street gangs, the Latin Counts and the Gangster Disciples. Minutes after the shooting, three Chicago police officers stopped a Ford Expedition with its headlights off cruising slowly down an alley less than a block from the shooting. A young woman leaned out of the vehicle and shouted, "them black GD's over there were just shooting at us." The vehicle then went around the police car and sped away. The police pursued and ultimately stopped the vehicle. The six occupants, three Hispanic males and three Hispanic females, were removed and searched.
While in pursuit of the vehicle, the police officers saw the vehicle stop in the middle of an alley less than two blocks from the shooting and saw a handgun thrown from the vehicle's window. The weapon was recovered and later confirmed to be the same gun used to kill the victim.
At the scene of the shooting, eyewitnesses Douglas Garth and Jose Ortiz gave responding police officers descriptions of two persons involved in the shooting that matched two of the male passengers of the vehicle. Shortly thereafter, at a show-up conducted where the vehicle with the six Hispanic occupants was stopped, Garth identified the defendant's clothing as matching the clothing of one of the individuals present at the time of the shooting. At a lineup conducted later that night, eyewitnesses Ortiz, Roy Billups, and Tim Andrews identified the defendant as the shooter.
Felony Murder Jury Instruction
The defendant first argues the trial court erred in instructing the jury on felony murder with aggravated discharge of a firearm as the predicate felony because there was no independent felonious intent as to the aggravated discharge of a firearm offense. A trial court's decision regarding jury instructions is reviewed under an abuse of discretion standard. People v. Toney, 337 Ill. App. 3d 122, 128, 785 N.E.2d 138 (2003), citing People v. Kidd, 295 Ill. App. 3d 160, 167, 692 N.E.2d 455 (1998).
Preliminarily, we note that the defendant did not properly preserve the jury instruction issue for review because he neither objected to the felony murder instruction at trial, nor raised the issue in his posttrial motion. The State contends this issue is therefore forfeited *fn1 . See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). However, the defendant argues this issue is reviewable under the plain error doctrine.
Generally speaking, the plain error doctrine allows a reviewing court to address plain errors affecting substantial rights, even if those errors were not brought to the attention of the trial court. 134 Ill. 2d R. 615(a); People v. Armstrong, 183 Ill. 2d 130, 151, 700 N.E.2d 960 (1998). Regarding jury instructions in particular, this limited exception to the forfeiture rule can be invoked to correct grave instructional errors or where fundamental fairness mandates that the jury be properly instructed in a factually close case. People v. Solis, 216 Ill. App. ...