Appeal from the Circuit Court of Cook County. Honorable Daniel Darcy, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
The circuit court convicted defendant, Jerry Allen, of aggravated discharge of firearm and unlawful use of a weapon by a felon. He was sentenced to seven years in custody of the Illinois Department of Corrections. Defendant appeals, raising as issues whether (1) his conviction for aggravated discharge of a firearm was barred by double jeopardy where the court ambiguously found him not guilty, then clarified its ruling, finding him guilty of the offense; (2) he was proved guilty of aggravated discharge of a firearm as beyond a reasonable doubt; and (3) the court abused its discretion in sentencing him to seven years imprisonment.
On March 11, 2001, Gloria Rainge and Cortez Mukes drove to 73rd and Stewart streets looking for Rainge's girlfriend, Candace Lewis. Rainge testified for the prosecution that as she was parking her car, defendant drove right by them and she waved at him. Mukes believed defendant tried to hit him with his car. Rainge went into the apartment building where she formerly lived with Lewis to find her. She went to the apartment of Lewis' friend, who directed her to defendant's home. While Mukes waited outside, Rainge visited defendant, who she knew, and asked him whether he had seen Lewis, explaining that others told her Lewis might be there. Defendant denied knowing Lewis' whereabouts and called Rainge names. Rainge and Mukes got back in their car and drove about one-half block away when Mukes told Rainge to pull over so he could talk to some girls. As Mukes was speaking with the girls, defendant pulled up alongside in his car and summoned Mukes over to him. Mukes walked to defendant's car, exchanged words with him and punched him in the face. Mukes returned to Rainge's car and told her to drive away.
Defendant then moved his car so that both cars were facing each other, exited his car and walked to the front of Rainge's car. Rainge saw defendant had a gun aimed at her car. She and Mukes exited and ran behind the car. As defendant fired two shots at the car, Rainge asked him why. Defendant fired a third time. She and Mukes ran to safety. Police stopped defendant, allowing Rainge and Mukes to return to their car and drive away. Police later took Rainge and Mukes to police headquarters. Mukes testified for the State but did not remember the incidents from that day and denied being with Rainge.
Police Officer S. Morris testified for the State that as he was patrolling the area, he and his partner heard two or three gunshots about a block away, prompting them to drive in that direction. At 73rd street, Morris observed a car speeding in reverse, in the wrong direction down a one-way street until it backed up into an intersection, then drove forward onto a westbound street. Morris activated his emergency signals and pulled defendant over. The officers exited their vehicle with weapons drawn and commanded defendant to exit his car, which he did. Defendant said, "I shot at them and the gun is in the car." Morris arrested defendant and his partner recovered from defendant's car a blue steel revolver, containing three live rounds, two fired rounds and one struck, but non-fired round. Shortly afterward, other officers stopped Rainge and Mukes as they fled the scene. Police found a bullet hole in the lower front windshield of Rainge's car. The bullet was recovered from the dashboard and inventoried. At the police station defendant told Morris he bought the gun a couple months before for $30 from a drug addict. Morris did not remember whether defendant told him he fired at the car to "make some noise."
The State's final witness was Detective John Forester, who met with defendant at the police station the night after his arrest. Defendant told Forester that Mukes punched him in the face and he became upset, went home, retrieved his gun, put it in his waistband and drove around to look for Mukes. Defendant found Mukes with Rainge and discharged his gun at Rainge's car while the two fled through a vacant lot. Forester met with defendant a second time that evening and was told essentially the same story, except this time he said that he was shooting at Rainge and Mukes. Mukes told Forester that he first encountered defendant while crossing the street and defendant drove by him, almost hitting him. Mukes put his hand on defendant's car and the two had a verbal confrontation. Mukes saw defendant again when he and Rainge stopped to talk with the girls.
The State rested and defendant moved for a finding of not guilty. The court granted the motion on all counts except for count five, aggravated discharge of a firearm as to Rainge. The State's motion to reopen the proofs, offering into evidence a certified copy of defendant's prior murder conviction from October of 1974, was allowed over defense counsel's objection. All counts were then discharged, except counts five, 11 and 12, the latter involving unlawful use of a weapon by a felon. Defense counsel asked the court, "[s]o you're reversing yourself," to which the court replied, "[r]ight. Based on allowing the State to bring in a certified copy of conviction with regard to the felony conviction." The defense rested and the court heard closing arguments, in which the only issue argued was whether defendant fired in the direction of Rainge. The court stated its findings:
"Based on the evidence presented, again considering only the proper evidence presented, it's pretty clear to me that Miss Rainge was right in the area of the car when the car was struck with the bullet, just apparently a car length away when shots were fired. Now, with regard to the aggravated discharge of a firearm, finding of not guilty. According to the testimony given, I have no idea where Mr. Mukes was, again, that was a finding of not guilty."
The court also found defendant guilty of unlawful use of a weapon by a felon.
Before the post-trial hearing began, the court addressed the parties, stating:
"I just want the record to reflect that the defendant was found guilty of three counts. Finding guilty of aggravated discharge of a firearm was count five, and also a finding of guilty of unlawful use of a weapon by a felon as to [the] last two counts[,] which would be[,] I believe[,] counts eleven and twelve, although reviewing the transcript it doesn't really make [it] clear. But I just want the record to reflect that the defendant was found guilty of count five, aggravated discharge of a firearm in regards to Gloria Rainge. As to count six with regard to aggravated discharge of a firearm with regard to Mr. [Mukes,] he was found not guilty."
Defense counsel moved for a new trial, arguing that defendant had been acquitted previously for unlawful use of a weapon by a felon (counts 11 and 12) when the circuit court ruled on defendant's motion for a finding of not guilty. The court's subsequent finding of guilt, counsel stated, was improper based on double jeopardy. The court justified its decision to reopen the proofs, telling the parties that it was "a matter of seconds" after he directed the counts out when the State asked to introduce defendant's prior murder conviction due to an oversight. The court believed defendant was neither prejudiced nor surprised, since he was notified that the State would introduce the conviction, and it was within the sound discretion of the court whether or not to reopen the proofs.
During the sentencing hearing, defendant's brother, Thomas Allen, in mitigation stated that since defendant was released from prison, he has been taking care of his disabled son and working for his landlord, William Cheatem, as a property manager, janitor and repairman. The State argued in aggravation that defendant cut off the victims' means of escape; fired toward ...