Appeal from the Circuit Court of Cook County 08 CR 14331 Honorable Joseph M. Claps, Judge Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice Howse concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Vernon Lauderdale was found guilty of attempted first degree murder. At sentencing, the trial court imposed a term of 31 years' imprisonment, which included an additional term of 25 years for personally discharging a firearm that proximately caused great bodily harm to another person. Defendant appeals, arguing that he received ineffective assistance of trial counsel because his attorney failed to request the trial court to sentence defendant under section 8-4(c)(1)(E) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/8-4(c)(1)(E) (West 2010)). Section 8-4(c)(1)(E) allows the trial court to sentence a defendant for a Class 1 felony, as opposed to a Class X felony, if at sentencing, the defendant proves by a preponderance of the evidence that at the time of attempted murder, the defendant was acting under a sudden and intense passion resulting from serious provocation. Defendant also contends that the firearm enhancement provision of the attempted murder statute violates the proportionate penalties clause of the Illinois Constitution.
¶ 2 Defendant was charged by indictment with two counts of attempted first degree murder, one count of aggravated battery with a firearm, and two counts of unlawful use of a weapon. Prior to trial, the State elected to nol-pros the two counts of unlawful use of a weapon.
¶ 3 Defendant's bench trial began in July 2009, and the following evidence was adduced.
¶ 4 Prentis Smith testified that he was a former member of the Mickey Cobra street gang. He joined in 1978 when he was eight years old and left the gang in 1996. While in the gang, he achieved the rank of a "prince." He identified defendant in court as someone he had known for 20 years. Smith was best friends with defendant's brother. Smith admitted that he was convicted of home invasion in 1998.
¶ 5 On the afternoon of July 20, 2008, Smith testified that he was "on Sedgwick in the Cabrini area." He was in a parking lot with his 16-year-old cousin Deondre Daley and Ryan Myles. Daley is also defendant's nephew. During the afternoon, at around 2 or 3 p.m., Smith "had words" with a man called "Shooter." Smith tried to punch Shooter, but missed and Shooter ran. Smith stated that the dispute was over selling drugs in the parking lot. As Shooter left the parking lot, Smith observed Shooter make a phone call, but did not know whom Shooter called.
¶ 6 Later, at approximately 10 p.m. that night, Smith testified that he was in the parking lot with Daley and Myles. Smith and Daley had remained in the parking lot continuously, but Myles had left and returned. He stated that there were "quite a few people in the parking lot." Smith said it was dark outside, but there were lights on two buildings around the parking lot. Smith observed a confrontation between defendant and Daley. Defendant said that it was his parking lot. Smith asked if they moved to Dominick's, was that defendant's too, and defendant responded that it was. Smith stated that defendant pushed Daley to the ground. Smith then punched defendant in the jaw. Smith denied having any weapons on him.
¶ 7 After Smith punched him, defendant reached to his left side and pulled out a dark-colored .32-caliber revolver. Smith testified that he was standing approximately two feet from defendant, that they were "close enough to touch." Smith stated that defendant aimed the gun at Smith's chest and pulled the trigger two times, but the gun did not fire. Smith testified that he said to defendant, "somebody [gave] you a gun with no bullets." Defendant then stepped back and aimed for Smith's left leg and shot him in the left leg. Defendant then shot Smith in the right leg. Defendant aimed the gun at Smith's chest and Smith turned to the side as defendant shot Smith in the shoulder. Smith stated that he "turned to the side to avoid getting shot in [his] heart." Smith estimated that defendant was three feet away from him when the shooting occurred. Smith stated that all three shots were fired in less than five seconds. Smith testified that he stood there in shock. He said defendant "took off running" and "was hollering, 'Cobra crazy.' "
¶ 8 Smith testified that he started to run toward Evergreen, but he blacked out and fell to the ground. He stated that Daley, Myles and Shawn Childs put him in the backseat of Smith's car and took him to the Lincoln Park Hospital. He was later transferred to Illinois Masonic Hospital and treated for three gunshot wounds. He stated that he still has two bullets lodged in his body.
¶ 9 The next day, July 21, 2008, Smith spoke with the police at the hospital and he told them that defendant shot him. Smith was later shown a photo array and he identified defendant in the array. Later, in April 2009, Smith testified that he visited defendant in the Cook County jail with defendant's mother and cousin. Smith stated that defendant apologized and said he did not mean to shoot Smith in the chest and was not trying to kill Smith. According to Smith, defendant said defendant would "take care of me [Smith] if I drop [sic] the charges." Smith interpreted this to mean money. Smith had no further contact with defendant.
¶ 10 Detective Marc Leavitt testified that on July 20, 2008, he was assigned to investigate a shooting. He met with Smith at the hospital and Smith told him that defendant was the person who shot him. On July 21, 2008, the detective met with defendant in custody. He advised defendant of his Miranda rights and defendant agreed to speak with him and his partner. Detective Leavitt asked defendant if he belonged to a gang and defendant responded that he used to be a Mickey Cobra.
¶ 11 Chandra Bell testified that on July 20, 2008, at around 9 p.m., she was in the area of 1300 North Sedgwick in Chicago. She was in the area to visit her mother and to look for her two sons. She found her sons in the parking lot on Sedgwick. After she spoke with her sons, Bell talked to Smith for about five minutes. Bell stated that she had known Smith all of her life and had known defendant for 15 years. Bell observed defendant walk up to Smith, but she was unable to hear what they were saying and was not paying attention to them. Bell was walking toward her mother's house when she heard shots fired. She said she ran and saw defendant running 25 to 30 feet away from her with something in his hand, but she was unable to see what it was. Bell also saw Smith being put into a car.
¶ 12 Following Bell's testimony, the State rested. Ryan Myles testified for the defense. Myles admitted that at the time of his testimony, he was in custody for "a drug charge" serving a sentence of four years in the Illinois Department of Corrections. Myles stated that he had known Smith for about two years and Smith is his godmother's cousin. He said he knew defendant the same way. Myles has known Daley his whole life.
¶ 13 On July 20, 2008, Myles testified that he was at 1365 North Hudson, which he estimated is about a block and a half from the 1310 North Sedgwick. Myles denied being in the parking lot with Smith that afternoon. He denied seeing an altercation between defendant and Smith. While at the Hudson address, Myles heard gunshots at around 10 p.m. Myles then began running in the direction of the shots. He stated that he went toward the gun shots because he wanted to check on Daley. Myles ran toward Evergreen and Sedgwick. He then saw Smith on the ground. He did not ...