Appeal from the Circuit Court of Madison County. No. 99-CF-2781. Honorable Ann Callis, Judge, presiding.
The opinion of the court was delivered by: Justice Chapman
In January 1996, Antonio Ray died after being struck by at least one vehicle on Highway 367 in St. Charles County, Missouri. His death was initially treated as a traffic fatality, possibly occurring as a result of intoxication. Late in 1999, police in Alton, Illinois, became aware that Ray's death may have been a homicide. In January 2000, the defendant, Eddie L. Alexander, was indicted on three counts of first-degree murder and one count of aggravated battery in the crime. The indictment charged that the defendant had beaten Ray and then left him on the Missouri highway to be struck by vehicles. A jury convicted the defendant in April 2001. The defendant appeals, arguing that (1) he was not subject to prosecution in Illinois for murder because the murder occurred in Missouri, (2) he received ineffective assistance of counsel, (3) the statute of limitations (720 ILCS 5/3-5(b) (West 2002)) barred his prosecution for aggravated battery, (4) his aggravated battery conviction must be vacated because it was a lesser-included offense of murder, and (5) his aggravated battery sentence exceeded the permissible sentencing range for that crime. We affirm the defendant's conviction for murder, but we vacate his conviction and sentence for aggravated battery.
On December 10, 1999, the State filed an information charging the defendant, Michael Tate, Brendon Wallace, and Ramando Alexander (who is the defendant's nephew) with one count each of murder (720 ILCS 5/ 9-1(a)(2) (West 1994)) in the January 1996 death of Antonio Ray. On January 13, 2000, a grand jury returned an indictment (which superceded the information) charging the defendant with three counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 1994)) and one count of aggravated battery (720 ILCS 5/12-4 (West 1994)). The indictment alleged that on or about January 19 or 20, 1996, the defendant committed the offense of first-degree murder in Madison County in that he beat Antonio Ray with the intent to do great bodily harm to him and then left Ray on a highway in St. Charles County, Missouri, where he would be struck by vehicles. Tate and Wallace each pled guilty to second-degree murder regarding Ray's death. Ramando Alexander pled guilty to unlawful restraint and was sentenced to 18 months in prison.
The defendant was tried before a jury in April 2001. The testimony adduced at the trial established that Antonio Ray had been severely beaten at the Alton, Illinois, home of the defendant and his former wife, Robin Alexander, on the evening of January 19, 1996. Several guests were present in the Alexanders' home that night, including Michael Tate, Brendon Wallace, Jeffrey Ewing, and Antonio Ray. The Alexanders and most of their guests were members of a gang called the Gangster Disciples. Ewing was the "governor" of the Gangster Disciples, and the defendant was the assistant governor. Ramando Alexander, who was a member of a different gang, was residing with the defendant and Robin Alexander at the time.
The violence began when Ray tried to steal money that Ewing was counting. There was some conflict in the testimony regarding exactly how many people participated in the beating, where in the house the beating occurred, and whether the participants in the beating were armed with baseball bats and pistols or used only their hands. One witness testified that the beating occurred in the dining room, while the others testified that it took place in the kitchen. All of the witnesses who saw the beating testified that the defendant, Wallace, Tate, and Ewing beat Ray. According to Robin Alexander and Brendon Wallace, the other men who were present in the house took part in the beating as well. According to Ramando Alexander, Sherri Goree (who was Ewing's girlfriend at the time) joined Wallace, Tate, Ewing, and the defendant in beating Ray. Most of the witnesses testified that Ewing hit Ray in the head with his pistol. Some of the witnesses testified that the others used guns or baseball bats to hit Ray, while other witnesses testified that they saw only Ewing use an object to hit Ray. Robin Alexander testified that she did not know if anyone used anything other than their fists and feet to hit Ray. Gregory Taylor, who is the defendant's cousin and not a Gangster Disciples member, also testified that he saw no weapons being used.
All of the witnesses testified that Ray was beaten severely in the Alexanders' kitchen. One witness, Shanieka Mitchell, testified that he was covered in blood and "looked like he was dead already"and that he was lying on the floor unable to fight back while they beat him. Ramando Alexander, Robin Alexander, and Gregory Taylor all testified that Ray was on the ground unable to defend himself during the beating. Sherri Goree testified that Ray was knocked to the floor, but she stated that he tried to fight back. Only Michael Tate claimed that Ray was not knocked to the floor during the beating, but even he admitted that Ray "kind of staggered" and was not able to defend himself because he was badly outnumbered.
The testimony further showed that Ray was taken to the back yard of the Alexanders' home, where he was beaten again and shut in the trunk of Wallace's car. Again, there were conflicts in the testimony. Most of the witnesses testified that Tate and Wallace dragged Ray from the kitchen to the yard. Wallace testified that he carried Ray to the yard. Only Tate testified that Ray walked out the door. He stated that Ray recoiled from the group of men hitting him and that this "forced him out the back door." The testimony was uncontroverted that by the time the beating in the back yard was over, Ray was lying on the ground. Most of the witnesses stated that he was not moving, although Taylor testified that Ray was "squirming a little." Taylor and Ramando Alexander both testified that Tate and Wallace lifted Ray up and put him in the trunk of Wallace's car, although Ramando first testified that he could not remember whether it was Wallace or another man who helped Tate put Ray in the trunk. Wallace testified, "[Tate and I] just opened the trunk, and we-we helped him in."
After the beating, it was decided that Tate and Wallace were to take Ray to Missouri to kill him, although the testimony regarding exactly who said what is also in conflict. According to Wallace, Ewing ordered him and Tate to take Ray to Fourth Street and kill him there, but then the defendant told them to take him to Missouri instead. According to Tate, Ewing and the defendant told him and Wallace to take Ray to Fourth Street to kill him there, but they decided on their own to take him to Missouri instead because they were afraid they would be seen on Fourth Street. Taylor testified that he suggested taking Ray to the home of someone named Shalinda, who was Ray's girlfriend and Wallace's cousin, but that Wallace objected to that idea. Robin Alexander testified that the defendant told Wallace to "drop [Ray] off" across the bridge in Missouri. She later said that she heard the defendant say to "dump-and drop him off across." She further stated that the defendant referred to Ray as "the body." On cross-examination, she admitted that in her December 1999 statement to the police she stated that the defendant had told Wallace to put Ray in the car trunk and "take care of business across the river." On redirect, she clarified that he had said this in response to Tate asking if he could kill Ray. Although Ramando Alexander testified that the defendant did not order Wallace and Tate to kill Ray, he stated that the defendant ordered them to take "the body" out of his house.
Wallace and Tate both testified that they drove to Missouri with Ray in the trunk of Wallace's car. Both testified that they did not think that Ray's attempt to steal from Ewing warranted killing him and that they decided that they would disobey Ewing and the defendant's orders to kill him. They drove across the Clark Bridge and parked next to the side of Route 367. Wallace testified that he and Tate "let [Ray] out of the trunk" and then "just left him in the road" instead of killing him. He admitted, however, that Ray was not up and walking at that time and that when they left him in the road, they thought that he might be hit by a car. The prosecutor asked, "And that would solve the problem of you being ordered to kill him?" Wallace replied, "Yes."
Tate's account of what took place in Missouri was somewhat different from Wallace's account. According to Tate, he and Wallace "helped" Ray out of the trunk. Tate stated[:] "He was real woozy. He said a couple of words. He said, [']Mike, Brendon, please don't kill me.['] " Then, according to Tate, they let Ray go and he "walked a few steps" before falling down next to the shoulder of the road. Tate testified that the area was very dark and that Ray fell maybe five feet away from the highway "at the most." He further testified that he did not believe that Ray would be hit by a car but that when he returned to the defendant's home in Alton, he told the defendant and Ewing that he and Wallace had taken care of their "business."
On April 6, 2001, the jury returned verdicts of guilty of first-degree murder and aggravated battery. On October 30, 2001, the court sentenced the defendant to 40 years in prison on each charge, to be served concurrently. On November 28, 2001, the defendant filed a motion to reduce his sentence, arguing that his 40-year sentence would cause undue hardship to his family and was disproportionately harsh compared with the sentences received by co-defendants Wallace and Tate. The court denied the motion on December 18, 2001. The defendant filed his notice of appeal on January 3, 2002.
On October 23, 2003, the defendant filed a motion in this court to supplement the record on appeal, which we ordered taken with the case on November 13, 2003. We now grant the defendant's motion.
A. The Aggravated Battery ...