Court of Appeals of Illinois, First District, First Division
The 80-year sentence imposed on defendant for first-degree murder was upheld over his contention, inter alia, that the firearm enhancement applied to him was unconstitutionally vague, since the sentence was within the statutory range, the crime was heinous, the scope of the sentencing range under the enhancement is clear and definite, the standards for imposing the enhancement are not vague, and the argument that the enhancement statute permits “double enhancement” has been rejected by the Illinois Supreme Court.
Appeal from the Circuit Court of Cook County, No. 07-CR-12418; the Hon. Rosemary Grant Higgins, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Christopher Kopacz, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and Tasha-Marie Kelly, Assistant State’s Attorneys, of counsel), for the People
Justices Rochford and Delort concurred in the judgment and opinion.
¶ 1 This appeal arises from a March 14, 2012 order entered by the circuit court of Cook County which sentenced defendant-appellant Kendrick Butler (Butler) to 80 years' imprisonment for first-degree murder. On appeal, Butler argues that: (1) the trial court abused its discretion in imposing an 80-year sentence because it failed to properly consider significant mitigating factors; and (2) the firearm sentence enhancement statute that was applied to his sentence is unconstitutionally vague on its face and as applied to him. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND
¶ 3 On May 3, 2006, Gregory Dugar (Gregory) sustained a gunshot wound to the head and died as a result of his injury. On February 8, 2007, Butler was arrested in Cedar Rapids, Iowa, on a matter unrelated to this case. The Cedar Rapids police informed the Chicago police that Butler was in custody. On May 10, 2007, Chicago police detectives Sean Forde (Detective Forde) and Victor Kubica (Detective Kubica) traveled to Cedar Rapids, Iowa, to complete the extradition process. Butler was placed under arrest and transported back to Chicago. Butler was charged with six counts of first-degree murder and one count of aggravated discharge of a firearm. The State proceeded to trial on four counts of first-degree murder. Following a jury trial, Butler was found guilty of first-degree murder. The circuit court of Cook County sentenced Butler to 50 years' imprisonment on count I of the indictment pursuant to section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1) (West 2006)), which charged first-degree murder for intentionally or knowingly killing Gregory while armed with a firearm. The trial court also sentenced Butler to 30 years' imprisonment on count V of the indictment pursuant to section 9-1(a)(1) (720 ILCS 5/9-1(a)(1) (West 2006)), which charged first-degree murder for intentionally or knowingly killing Gregory with a firearm and personally discharging a firearm that proximately caused Gregory's death.
¶ 4 Subsequently, Butler filed a direct appeal arguing multiple claims of ineffective assistance of counsel, as well as a claim that the trial court improperly imposed sentences for two counts of first-degree murder when there was only one victim. People v. Butler, No. 1-09-0893 (2011) (unpublished order under Supreme Court Rule 23). This court affirmed Butler's conviction, but held that Butler's sentence was erroneous and found that the trial court may have intended the 30-year sentence to be a mandatory enhancement rather than a separate sentence. Thus, this court remanded the matter to the trial court for resentencing. On remand, the trial court resentenced Butler to 50 years' imprisonment on count V, and an additional 30 years' imprisonment as a mandatory sentence enhancement to be served consecutively for personally discharging a firearm that proximately caused Gregory's death pursuant to section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012)). This appeal followed.
¶ 5 The following facts were established by Butler's January 22, 2009 trial and his direct appeal. At 8 p.m. on May 3, 2006, Paul Allen (Allen) was driving his vehicle with Kyesha Kohnke (Kohnke) in the front seat, and Brian Smith (Smith) and Gregory in the backseat. Allen stopped at a stop sign at the intersection of Maypole and LaCrosse Avenues in Chicago. As Allen proceeded through the intersection, approximately five gunshots were fired at the back of his vehicle. Allen and Kohnke testified that they did not see who fired the shots. Gregory sustained a gunshot wound to the head and later died as a result of his injury.
¶ 6 Eric Robertson (Robertson) testified that on May 3, 2006, he was riding in Chanell Richmond's (Richmond) vehicle with Richmond and Tremaine Brown (Brown). Robertson stated that Brown's birthday was that day, and that the group was smoking marijuana. Robertson testified that at some point, the group drove to the intersection of Maypole and LaCrosse. When the group arrived at the intersection, Robertson got out of the vehicle and stood on the corner. Robertson testified that Derrick Young (Young) was standing on the corner with him. Robertson testified that he did not remember anything after talking with Young. Robertson stated that he did not remember talking with Chicago police, an assistant State's Attorney, or a grand jury about the shooting on May 3, 2006.
¶ 7 Detective Kubica testified that on May 7, 2006, he and Detective Forde interviewed Robertson. Detective Kubica testified that Robertson stated that he was scared and did not want to become a "snitch." Later during the interview, Robertson told Detective Kubica that he saw a "red box type vehicle" approach the intersection of Maypole and LaCrosse. Robertson stated that he saw Young sitting on a bicycle at the intersection. Detective Kubica testified that Robertson stated that as he approached Young, he heard a gunshot. Robertson told Detective Kubica that he turned and saw Butler standing behind the red vehicle. Detective Kubica testified that Robertson later identified Butler in a photo lineup, as the shooter.
¶ 8 Assistant State's Attorney Bonnie Greenstein (ASA Greenstein) testified that on June 6, 2007, she presented Robertson to the grand jury. Robertson's grand jury testimony was admitted into evidence at trial. In his grand jury testimony, Robertson stated that he initially told police that he was not near the intersection of Maypole and LaCrosse on May 3, 2006. However, he testified that he later told police that he was near the intersection on May 3, 2006, and that he saw Young at the intersection. Robertson stated that he heard a gunshot and then turned and saw Butler shooting at a red four-door vehicle. Robertson told ASA Greenstein that the police had treated him well and no one had made any threats or promises in return for his grand jury testimony.
¶ 9 Brown testified that at 8 p.m. on May 3, 2006, he was in a vehicle with Robertson and Richmond. Brown testified that he exited the vehicle at the intersection of Maypole and LaCrosse. Brown stated that Young and other individuals were standing on the corner. According to Brown, Butler arrived at the intersection shortly thereafter. Brown testified that he saw a maroon vehicle approach the intersection. Brown stated that he saw three males and one female inside the maroon vehicle. Brown testified that he did not remember what happened after the maroon vehicle reached the intersection. He stated that he did not remember hearing any gunshots being fired. ...