Appeal from the Circuit Court of Cook County. Honorable Colleen McSweeney-Moore, Judge Presiding.
The opinion of the court was delivered by: Justice Quinn
Defendant Anthony Powell and three co-defendants were charged with six counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)), in connection with the shooting death of Mitchell Dotson, a rival gang member. At trial, defendant testified he shot the victim in self-defense. The jury, rejecting defendant's self-defense claim, convicted him of first degree murder committed while personally discharging a firearm. The circuit court sentenced defendant to consecutive terms of 30 years for first degree murder and 20 years for personally discharging a firearm during the commission of the murder pursuant to Illinois' "15/20/25-to-life" mandatory sentencing enhancement provision (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2000)). On appeal, defendant argues (1) the 20-year sentence enhancement violates both the proportionality and due process clauses of the Illinois Constitution and (2) his trial counsel was ineffective for failing to request that the circuit court inquire about potential gang bias amongst the venire members. For the following reasons, we affirm defendant's conviction and sentence.
At trial, James Taylor testified that, at approximately 11 p.m. on July 12, 2000, he was standing on the corner of Lockwood and North Avenues in Chicago with Phillip Bell, a man named "Mane," and the victim. He saw defendant standing with several people by a car that was parked on the other side of the street. Taylor testified that as defendant and the victim walked across the street towards one another, the victim asked defendant, "[W]hat's up?" Defendant answered, "This is what up," pulled a gun from his waistband, and shot the victim. Taylor testified that he did not see the victim with a gun or reach for his waist as he and defendant met in the middle of the street.
Samantha Miller testified that, at approximately 10 p.m. on July 12, 2000, she and her four-year-old son were at the apartment of Tierra Minor, located near the corner of North and Lockwood Avenues. After leaving the apartment, she saw a group of men, including defendant, standing around the car of her boyfriend, Terrell Pearson. Miller denied telling the police that she saw a gun under defendant's shirt or that she saw defendant walk across the street towards another group of men, pull a "big gun" from his waistband, and shoot the victim. She testified that she never saw the victim reach for his waist or into his pockets before being shot. She further testified that she heard gunshots that night, but she did not remember where the shots came from. When she heard the shots, she grabbed her son and ran into a friend's house to call a cab. She then went to Ieshia Richardson's home.
In January 2001, Miller spoke with Assistant State's Attorney Joe Cataldo (ASA Cataldo) and gave a signed statement. She testified that she signed the statement only because she was scared and did not want "them to take [her] son away from [her]." In her statement, Miller told ASA Cataldo that both defendant and Pearson were in the same gang; she could tell that defendant had a gun under his shirt; defendant walked toward the group of men across the street with his hand under his shirt and asked, "What do you want?"; the victim walked toward defendant while the other three men backed away; defendant pulled a "big gun" out from under his shirt, pointed it at the victim, and shot him; she saw no one other than defendant with a gun; and she never saw the victim reach for his waist or into his pockets before he was shot. She testified, however, that she made up everything in her statement and that she had not really seen anything that night.
ASA Cataldo testified that on January 29, 2001, he went to Area Five police headquarters and took a statement from Ms. Miller concerning what she had seen on the night of the shooting. In her statement, Miller told ASA Cataldo that she saw defendant walk up to the victim, pull a "big gun" from his waistband, and shoot the victim in the chest. She stated that she did not see anyone other than defendant with a gun, the victim did not reach for his waistband or pockets before being shot, and the victim "was just standing there doing nothing when [defendant] shot him."
Aishe Minor testified that, on July 12, 2000, she was baby-sitting Ms. Miller's son with her sister, Tierra Minor, at her sister's apartment. At approximately 10 p.m., Ms. Miller and Mr. Pearson arrived to pick up her son. After they picked up her son and left the apartment, Pearson came back upstairs and said he needed to make a phone call. About 15 to 20 minutes after making that phone call, someone rang the doorbell and Miller and Pearson left. Minor testified that she too left and, when she went outside, she saw a group of men, including defendant, standing on one side of the street and another group of men standing on the other side. After seeing defendant standing by Pearson's car, she started walking back to her apartment. She then heard someone say something to defendant, which was followed by gunshots. When she heard the gunshots, she ran into the apartment.
Ieshia Richardson testified that she received a phone call from Pearson between 10 p.m. and 11 p.m. on July 12, 2000. Pearson told her to find defendant and co-defendant Jeremy Jackson and have them come and pick him up at Minor's apartment because "he had his baby and some people were sitting on him." After she found defendant and Jackson near the corner of Potomac and Lavergne Avenues and told them what Pearson had told her, the men left.
After Detective Demosthenes Balodinas testified about his observations of the crime scene and the evidence he recovered during his investigation, the State recalled ASA Cataldo. ASA Cataldo testified that he spoke with defendant around 1:40 a.m. on January 30, 2001. After he spoke with defendant for about an hour, defendant chose to give a videotaped statement. In his statement, defendant explained that the victim's gang had been "giving [him] a problem selling drugs at Lavergne and Potomac" and that he was angry about this. He stated that the day before the shooting, he was told first by a member of the victim's gang, and then later by the victim himself, that he could not sell drugs on that corner. Angry at being kicked off the corner, defendant went home thinking he was "gonna hurt somebody."
Later, defendant went back to the corner of Lavergne and Potomac. The victim approached him again and told him to leave the area or he would hurt him. Defendant left and walked to Lavergne and Crystal. After telling a fellow gang member what the victim had told him, they went to the house of a man known as "Mae Mae" to discuss the situation. They decided there that they were going to shoot someone.
The next day, while defendant was selling drugs on the corner of Lavergne and Crystal, Ieshia Richardson approached him and said that Pearson was at her sister's apartment and that the victim and members of his gang were standing on the corner across the street. After going to Mae Mae's house to get some guns, defendant and Jackson went to North and Lockwood. As they walked, defendant checked to make sure that the gun was loaded and put it under his shirt. When he got to North and Lockwood, he saw the victim standing across the street with a few other men he recognized as members of the victim's gang. He did not see them holding any weapons. After the victim approached him and asked him "What you on?" defendant pulled out his gun and shot the victim in the chest. Defendant then stood over the victim and started pulling the trigger, but his gun jammed. Defendant stated that he was "pissed" his gun jammed because he wanted to "shoot [the victim] some more" and then "shoot the rest of them." Defendant then ran back to Mae Mae's house.
After the State rested, defendant testified on his own behalf. Defendant testified that he was a member of the Four Corner Hustlers. He stated that the victim was a "five star supreme leader" of the Mafia Insane Vice Lord Nation. He testified that he first saw the victim a couple of days before the shooting driving in a car with two other men. As defendant was standing on the corner of Potomac and Lavergne selling drugs, the victim drove up to him and said, "Shorty, get off this corner before I hurt you." Defendant testified that the victim had a "little shotgun" in his lap. Defendant then left the corner.
A few hours later, while defendant was standing on the corner of Kamerling and Potomac with a few of his friends, the victim drove by again, pointing at defendant and shaking his head.
On the evening of July 12, 2000, while defendant was again selling drugs on the corner of Potomac and Lavergne, Ieshia Richardson came up to him and told him that members of the Mafia Insane Vice Lords gang had surrounded Pearson in her sister's apartment on North and Lockwood. Hearing this, defendant and co-defendant Jackson obtained guns and went to escort Pearson safely from the apartment. When they arrived at the apartment, defendant saw a group of Mafia Insane Vice Lords standing across the street. The victim asked defendant, "What you on?" Pearson told the victim, "[D]on't ask Shorty what he's on." Defendant testified that the victim then started to walk towards defendant with his hand under his shirt. Defendant testified that it looked like the victim was reaching for a gun, but he admitted that he never actually saw a gun. Not wanting to wait and see, defendant shot the victim because he "was scared" and feared for his life. Defendant testified that he believed the victim was going to kill him based upon the victim's reputation for hurting people and the victim's earlier threats. After the victim fell, defendant kept pulling the trigger, but his gun jammed. Defendant then ran to Mae Mae's house.
Defendant admitted to making the videotaped statement. He testified that he did not tell the police or ASA Cataldo that he shot the victim in self-defense because he was not asked. On cross-examination, defendant testified that he was angry at all the Mafia Insane Vice Lords gang members on that corner and that he wanted to shoot all of them.
After closing arguments, the jury rejected defendant's self-defense theory and found him guilty of first degree murder. The circuit court sentenced defendant to 30 years for first degree murder. The court added 20 years, to be served consecutively, because the jury found that defendant, in committing first degree murder, had personally discharged a firearm. This court granted defendant's motion to file a late notice of appeal.
I. CONSTITUTIONALITY OF ILLINOIS' "15/20/25-TO-LIFE" STATUTE
Defendant was charged, inter alia, with first degree murder during the commission of which he personally discharged a firearm. See 720 ILCS 5/9-1(a)(1) (West 2000). After the jury convicted defendant of first degree murder, the trial court sentenced him to 30 years' imprisonment for first degree murder. The circuit court then added 20 years to defendant's sentence pursuant to Illinois's "15/20/25-to-life" mandatory sentencing enhancement provision, which states, in pertinent part, "if, during the commission [of first degree murder], the person personally discharged a firearm, 20 years shall be added to the term of imprisonment imposed by the court." 730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2000).*fn1 Defendant argues that this 20-year enhancement violated both the proportionality and due process clauses of the Illinois Constitution.
A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. People v. Malchow, 193 Ill. 2d 413, 418, 793 N.E.2d 433 (2000). A court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be done. Malchow, 193 Ill. 2d at 418. The question of whether a statute is constitutional is subject to de novo review. People v. Carney, 196 Ill. 2d 518, 526, 752 N.E.2d 1137 (2001).
Defendant first argues that the addition of 20 years to his sentence under Illinois's "15/20/25-to-life" mandatory sentencing enhancement provision violated the proportionate penalties clause of the Illinois Constitution. Specifically, defendant contends that the provision punishes a less serious crime (first degree murder committed while personally discharging a firearm) more severely than similar offenses that constitute greater threats to the health and safety of the public (aggravated battery with a firearm and aggravated discharge of a firearm).
The State contends that it is inappropriate to conduct a proportionality analysis here because the legislative purposes behind the offenses of first degree murder while personally discharging a firearm, aggravated battery with a firearm, and aggravated discharge of a firearm differ. The State also argues that, even if the purposes behind these statutes are the same, the enhancement provision does not violate the proportionality clause because first degree murder while personally discharging a firearm is not just a more serious offense than either aggravated battery with a firearm or aggravated discharge of a firearm, it is "the most serious crime committed in society."
The proportionate penalties clause of the Illinois Constitution provides that "all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const. 1970, art. I, §11. Our supreme court has recognized three situations in which this clause is violated: (1) where the punishment for a particular offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community; (2) where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more harshly; and (3) where identical offenses are given different sentences. People v. Davis, 177 Ill. 2d 495, 503-04, 687 N.E.2d 24 (1997).
In this case, defendant challenges the enhancement provision under the second test only; a test commonly referred to as the " cross-comparison analysis." See People v. Arnold, 349 Ill. App. 3d 668, 675, 812 N.E.2d 696, 702 (2004). Under the cross-comparison analysis, the court must determine (1) whether the statutory purposes of the compared offenses are similar and (2) whether the offense with the harsher penalty is more serious than the offense with the less severe penalty. People v. Lombardi, 184 Ill. 2d 462, 475-76, 705 N.E.2d ...