Appeal from the Circuit Court of Cook County. No. 95 CR 33433 Honorable Frank Zelezinski, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Following a third jury trial, *fn1 defendant Wardell McClain was convicted of first degree murder and was sentenced to an extended term of 80 years' imprisonment. On appeal, defendant argues that (1) the trial court abused its discretion in denying his request for a continuance to bring in a witness, (2) the trial court improperly retroactively employed the recently amended version of section 5-8-2(a) of the Unified Code of Corrections (730 ILCS 5/5-8-2(a) (West 2000)) *fn2 (Code of Corrections) to sentence him to an extended term, and (3) section 111-3(c-5) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c-5) (West 2000)) (Criminal Procedure Code) violates article I, section 7, of the Illinois Constitution (Ill. Const. 1970, art. I, §7) because it allows the State to add elements of an offense by only giving written notification to the defendant. For the reasons that follow, we affirm.
The evidence at trial established that at approximately 12:40 a.m. on October 18, 1995, Lieutenant Haynie of the Ford Heights police department stopped a car that was going the wrong way on East 16th Street and arrested the driver, Cecil McCool, on an outstanding warrant. Lieutenant Haynie then determined that the car was registered to the passenger, Richard Will, and that Will did not have a valid driver's license. Accordingly, he told Will that the car would have to be towed because Will was unable to drive it without a license. Lieutenant Haynie also told Will that he would have to find a way home and directed him to a public phone located approximately 1 1/2 blocks away. While Lieutenant Haynie waited for the tow truck, he saw Will walking in the direction of where the telephone was located.
After Lieutenant Haynie returned to the police station, he received a call regarding a man being beaten and burned at 16th Street and Berkeley Avenue. Upon arriving at the scene, Lieutenant Haynie saw a man lying in the street who had been beaten and whose head and groin were on fire. Lieutenant Haynie recognized the man as Will. As Officer Haynie called for an ambulance, he retrieved a charcoal lighter fluid bottle from approximately one foot away from Will and put it in the trunk of his car. More than 50 people were gathered in the vicinity of where the incident occurred; however, when questioned, no one was cooperative.
Lieutenant Haynie testified that as soon as the ambulance arrived, the paramedics immediately applied a water solution to the victim because his groin was still on fire. After paramedics loaded Will into the ambulance, Lieutenant Haynie escorted it to the Ford Heights city limits and then returned to the scene. After performing a brief search, he recovered some underwear and a gym shoe that were by a Dumpster.
By October 19, 1995, the victim was deceased. The investigation proceeded, and later that day, co-defendant Michael Armstrong was present at the Ford Heights police station for questioning. After conversing with Armstrong, Lieutenant Haynie, accompanied by Officer Hunter, went to the defendant's home and found that he was not present. At approximately 8:15 p.m., Lieutenant Haynie and Officer Hunter returned to the defendant's home and the defendant's father, Samuel McClain (Mr. McClain), answered the door. Officer Haynie explained to Mr. McClain that they needed to talk to the defendant about an incident in which a white man was burned at 16th Street and Berkeley Avenue. Mr. McClain invited the officers inside and called the defendant into the room. At that time, the defendant was 17 years old. According to Lieutenant Haynie, defendant agreed to accompany the officers to the police station to answer questions, and Mr. McClain agreed that he could go.
At about 8:45 p.m., the police advised the defendant of his Miranda rights in a booking room at the police station, and defendant agreed to talk with the police. Initially, the defendant stated that he "didn't know anything about a white guy being beaten and burned at 16th and Berkeley." Lieutenant Haynie then left the room to speak with Armstrong for a few minutes, and then returned to the room to speak to the defendant. Defendant then admitted to Lieutenant Haynie that he was present when the victim was beaten and burned and that he had taken part in the beating. Lieutenant Haynie then contacted Assistant State's Attorney Frank Cece (ASA Cece), who was on duty that evening as a felony review assistant.
ASA Cece testified about the circumstances surrounding the defendant's statement. ASA Cece arrived at the Ford Heights police station at approximately 1:30 a.m. on October 20, 1995, and immediately went with Lieutenant Haynie to speak to the defendant. After ASA Cece had advised the defendant of his Miranda rights, defendant again admitted his involvement in the incident. ASA Cece then explained the options of memorializing the defendant's statement, and the defendant chose to make a handwritten statement, but to have ASA Cece write it. ASA Cece identified two Polaroid photographs of the defendant signing the statement.
According to the statement, around midnight on October 18, 1995, the defendant and his friends were hanging out in the area of 16th Street and Berkeley Avenue, an area known to the locals as "Vietnam." The people with the defendant at that time were Michael Evans, Marvin Drumin, Lewis McDonald, Keith Clinton, and Michael Armstrong. Defendant told ASA Cece that Evans was talking about the Million Man March and how he would beat up any white guys who showed up in Ford Heights. At that time, defendant and Clinton were talking to some girls and Evans appeared and said that there was a white guy around the corner. Thereafter, Evans, McDonald, Drumin, and Armstrong went around the corner, and the defendant followed. When defendant walked over to where they were, he saw his other friends surrounding a "white dude" and asking him what he was doing there. After the man responded that he was "waiting on some lady," Evans, McDonald, Armstrong and Drumin jumped on him and began punching and kicking him in the head, face and body. Then, according to the defendant, Evans yelled "[b]itch, we are going to fuck you up. There is going to be a riot between us blacks and you whites."
After that, the victim began hollering for help and yelled, "not again, not again." Defendant told ASA Cece that it looked like somebody beat up the victim even before they had jumped him. The hitting and kicking continued until the "white dude" fell to the ground. The defendant saw Evans pull out a plastic bottle of lighter fluid from his jacket pocket and pour some of its contents on the victim's head and face. Evans then used a match and "lit the guy's head on fire" while Drumin and McDonald kept punching him and kicking him. As defendant related, "we just watched him burn until Armstrong put a shirt on the guy's head and put out the fire. I stomped the white dude a couple of times with my foot while he was laying in the street still hollering on carrying on."
The victim then got up and began stumbling towards a Dumpster, at which point Drumin kicked him "in the butt" and the victim hit the Dumpster head-first and yelled. After that, McDonald kicked the "white dude" in the stomach. Then, Evans poured even more lighter fluid on the "white dude's" neck and stomach. Defendant stated: "Then [Evans] threw another match in the white dude, and he went up in flames pretty good. The white dude stood there in the street all on fire with his hands up by his face. None of us helped him. We just watched him burn." Moreover, he stated that "he knew that when they lit the white dude up again that they were going to kill him."
Defendant's father, Samuel McClain, passed away between defendant's second and third trials. Accordingly, the testimony from Mr. McClain's testimony in the second trial was read to the present jury on the defendant's behalf. Mr. McClain had testified that he was at his home at 1436 Embassy in Ford Heights at 11:30 p.m. on October 17, 1995. He lived there with his wife, his grandson, his grandson's wife and the defendant. Mr. McClain stated that at 11:30 p.m., the defendant knocked on the door and Mr. McClain saw his grandson let him in. When the defendant came in the house, he walked past his father, went and spoke to his mother, and then went to the kitchen before going to his room. Mr. McClain asserted that although he had gone to sleep on the couch, he would have known if anyone left the house and he knew that the defendant did not leave the house again until 8 a.m. the next morning. Mr. McClain further testified that on October 20, 1995, he went to the police station and told Jack Davis, the Ford Heights chief of police, that defendant was home on the night of October 17. Mr. McClain also testified that the defendant was "real slow," that he only weighed one pound when he was born, and that he had been in special education classes since the first grade.
On April 4, 2001, all testimony concluded. The trial court adjourned the case early and continued it until the next day so that defense counsel could attempt to secure Randean Madden, an allegedly essential witness. The court stated: "Obviously if you find your witness overnight *** I will allow you to put that witness on. If you cannot find that witness, we will continue on toward ending the trial regardless tomorrow."
On April 5, 2001, Randean Madden did not appear to testify. Defense counsel informed the court that he had served a subpoena on Madden a week before trial began and that he had spoken with him on the afternoon of April 4 to make transportation arrangements for the following day. While en route to Madden's home on April 5, defense counsel tried to reach Madden by phone but a woman answered and never put Madden on the phone. When defense counsel arrived there, no one came to the door. Defense counsel called again and the same woman answered and explained that Madden was not there, that she did not know where he was, and that he had not come home the previous night.
Defense counsel explained that Madden's testimony was crucial to the case and made an oral motion for a 24-hour continuance so that authorities could search for Madden and bring him into court. Defense counsel then proceeded to make an offer of proof. According to that offer, Madden would say that on October 18, he was in a parking lot in the 1600 block of Berkeley Avenue when Richard Will was beaten and burned. At that time, Madden saw an unknown black male, Armstrong, and a man named Stacy Pickens, and heard Armstrong yell that someone was in the bushes. He then saw Armstrong ...