Appeal from the Circuit Court of Cook County. Honorable Michael P. Toomin, Judge Presiding.
The opinion of the court was delivered by: Justice Burke
Following a bench trial, defendant Allen Bloomingburg was found guilty of first degree murder, and sentenced to 60 years' imprisonment. On appeal, defendant contends that his trial counsel was ineffective because he conceded defendant's guilt and pursued an unavailable theory of self-defense, thus leaving the trial court with no alternative but to find him guilty of first degree murder. Defendant also contends that the mandatory "15/20/25 to life" sentencing scheme added to the sentencing statute (730 ILCS 5/5-8-1(a)(1)(d) (West 2000)) by Public Act 91-404 (eff. January 1, 2000), based on the use of a firearm during the course of an offense (hereinafter referred to as the firearm enhancement provision), violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) and constitutes double enhancement of the offense of first degree murder and his sentence. Defendant further contends the mittimus must be corrected to reflect the correct amount of pretrial credit defendant was owed. For the reasons set forth below, we affirm, and order correction of the mittimus.
Defendant was indicted on six counts of first degree murder for shooting and killing Levell Applewhite on August 29, 2000, at 3:30 a.m. At the time of the shooting, defendant was 19 years old and was a member of the Traveling Vice Lords street gang. Defendant was arrested for the shooting, at his home, without a warrant on September 2.
Prior to trial, defendant's attorney filed a motion to dismiss the indictment on the basis of double enhancement with respect to the firearm enhancement provision. *fn1 Counsel also filed a motion to suppress defendant's confession on the basis that it was induced and coerced. Similarly, counsel filed a motion to quash arrest and suppress evidence on the basis that defendant's arrest violated the fourth amendment in that no arrest or search warrant had been issued. A hearing was held on the latter two motions on July 13, 2001. The trial court denied defendant's motion to quash arrest and suppress evidence, concluding that the police had probable cause to arrest defendant. The court then heard argument on defendant's motion to suppress his confession on the ground of involuntariness. Defense counsel argued that the police intimidated defendant until he confessed and, therefore, his confession was a product of coercion. The trial court dismissed this motion, stating that the allegations were insufficient to rise to the level of any constitutional violation.
Thereafter, defendant filed his answer to pretrial discovery, denying all of the allegations against him. Defendant stated that he would assert self-defense and the defense of others as a defense to the charges. On November 26, defendant waived a jury trial and his bench trial began the next day.
Defendant's counsel began his opening argument as follows:
"Your Honor, on August 29th in the early morning hours of the year two thousand, Mr. Bloomingburg did see Levell Applewhite known as Bishop out on the street and at that time he did go get the gang's gun, and he did go down, and he did shoot Mr. Bishop in the head.
It was not as a result of gang rivalries, drugs, or anything else. What it was is that Mr. Bloomingburg had heard from various individuals, his sister and a Lawanda Pettis, that Bishop bragged about shooting his brother, Willie, and he also made statements that he's going to kill Allen."
Counsel then stated that a few days prior to the shooting, defendant was walking on the street when a car owned or driven by Applewhite drove by defendant, at which time a shot was fired from the car at him. According to counsel, this incident, coupled with Applewhite's previous threats against defendant, made defendant shoot Applewhite. Counsel then stated:
"*** It is a case where he is justified. He may be guilty of shooting him--or that's a poor phrase. He may have shot him, but he is not guilty of first degree murder."
John Blakey, a former assistant State's Attorney, testified first on behalf of the State. On September 2, 2000, Blakey took statements from several eyewitnesses to the shooting and then spoke with defendant. At approximately 12:15 a.m. on September 3, Blakey had a conversation with defendant, during which defendant implicated himself and explained how he crept up and shot Applewhite. Following this conversation, Blakey asked if defendant would like to memorialize it, to which defendant responded in the affirmative. After hearing the alternatives for doing so, defendant chose to have his statement videotaped, which was done at approximately 3 a.m.
Defendant's videotaped statement was then played for the court. In this statement, defendant admitted that he had been a member of the Traveling Vice Lords since 1996 and that the gang sold drugs to make money. Defendant himself had sold drugs for the gang. Defendant further stated that the gang protects its territory with a gun and that members would shoot at someone who did not belong in the territory. Defendant then stated that Applewhite was not a Traveling Vice Lords gang member and was not allowed to sell drugs in the territory. According to defendant, Applewhite had been told this and he was also told he could not hang out in the Traveling Vice Lords' territory even if he was not selling drugs. Defendant then stated that, in the past, Applewhite had shot defendant's brother, Willie, and had shot at, or been involved with, shooting at defendant. Defendant further stated that there was a dispute with Applewhite over selling drugs in the Traveling Vice Lords' territory and the only way to resolve the dispute was to shoot him.
Defendant then stated that on August 28, he had been selling drugs for the gang and was in possession of the gang's gun. At approximately 3:30 a.m., defendant was in an apartment building, smoking marijuana and drinking with three other males and four females. According to defendant, he had been looking out a window, watching for Applewhite. Defendant saw Applewhite drive up in front of the building. Defendant retrieved the gang's gun, walked through the alley, stopped at the corner, and pulled out the gun and held it to his side. Defendant then ran up to Applewhite's car, pointed the gun at Applewhite's head, approximately one foot away, and shot him, "like pow." Defendant then returned to the apartment building and hid the gun. Defendant spoke with his brother Willie the next day, telling him that he had shot Applewhite. When Willie asked him why, defendant told Willie it was because Applewhite had shot Willie and because Applewhite was not supposed to be in the area.
On cross-examination, Blakey admitted that defendant had not stated he had gone looking for Applewhite, just that he was watching for him. In addition, defendant did not state that the gang had ordered him to shoot Applewhite. Blakey also admitted that he had not asked defendant, in the videotape, in exact words, why he had shot Applewhite, but that he had asked defendant the question during their oral conversation.
Nephtali Gonzalez next testified on behalf of the State. According to Gonzalez, at approximately 3:15 a.m. on August 29, he awoke and discovered that his fiancé, Dawn Bedell, was not home. Gonzalez decided to look for her and went outside their apartment to see if she was in the area. Gonzalez observed Bedell in a car with Applewhite and Carla Robinson. Thereafter, as Bedell was handing Gonzalez her school books so she could exit the car, Gonzalez heard a pop and saw a flash. Gonzalez looked up and saw defendant. Gonzalez then identified defendant in court. Gonzalez further testified that after Dawn got out of the car, he and she went to their apartment and called 911. Gonzalez spoke to the police when they arrived on the scene, telling them what had occurred. On September 2, Gonzalez viewed a lineup and identified defendant as the person who shot Applewhite. Defense counsel did not cross-examine Gonzalez.
Dawn Bedell then testified on behalf of the State. Her testimony mirrored Gonzalez's. Defense counsel did not cross-examine Bedell.
Detective Robert Jellen then testified on behalf of the State. Jellen stated that he was assigned to investigate Applewhite's murder. According to Jellen, when he spoke with defendant on September 2, defendant stated that the motive for shooting Applewhite was drugs, that Applewhite was not supposed to be in the area, and that Applewhite had shot his brother. Jellen denied that defendant ever stated he shot Applewhite because he was afraid of him or had been threatened by him.
On cross-examination, Jellen admitted that the first time he spoke with defendant, defendant denied shooting Applewhite. However, when defendant was advised that he had been identified, he then admitted his involvement. Defendant also told Jellen that his brother Willie had been shot because of a feud over drugs, he believed Applewhite was behind his brother's shooting and, approximately one week before he shot Applewhite, he was shot at and he believed Applewhite was involved. Jellen then admitted that there was nothing in his report indicating that defendant had stated he shot Applewhite because of a drug feud.
The State then rested. Thereafter, defendant's motion for a directed finding was denied.
Defendant then testified on his own behalf. Defendant stated that his brother had been shot sometime in 2000. A few days prior to Applewhite's shooting, defendant had been shot at and he believed Applewhite was involved. Defendant further testified that he spoke with his sister sometime prior to the shooting and she told him that Applewhite threatened to kill him when he saw him. According to defendant, when he was told this, he was afraid and in fear for his own life because Applewhite was known for shooting people. Defendant's sister also told him that Applewhite had shot Willie. Defendant then testified, consistent with his videotaped statement, as to the events that evening. Defendant admitted that Applewhite had not threatened him at the time and that he did not see Applewhite in possession of a weapon. Defendant stated, however, that he shot Applewhite "because he was going to kill me if I wouldn't have killed him."
On cross-examination, defendant admitted that he shot and killed Applewhite after he snuck up on him. Defendant denied shooting Applewhite because of drug feuds. The assistant State's Attorney then began reading portions of defendant's statement to the police and defense counsel objected, arguing that the words used were those of the assistant State's Attorney taking the statement, not defendant's. Defendant then testified that he did not remember answering in the statement that he had shot Applewhite because of a drug dispute. Defendant also again denied that he shot Applewhite because of drugs.
On redirect examination, defendant admitted that there was a dispute between him and the Traveling Vice Lords with Applewhite for shooting defendant's brother. Defendant further testified that during his videotaped statement, he was only allowed to answer the questions asked and was not allowed to volunteer or add any additional information.
Anita Bloomingburg, defendant's sister, then testified on defendant's behalf. She stated that she knew Applewhite and, sometime prior to August 29, she had spoken with Applewhite. At this time, Applewhite said he had shot Willie, who was not dead, but that Allen ...