Appeal from the Circuit Court of Cook County. No. 93 CR 15879, Honorable Thomas V. Gainer, Judge Presiding.
Justices Harris and Connors concurred in the judgment and opinion.
QUINN, PRESIDING JUSTICE
¶ 1 In 1995, defendant David Harris was found guilty of first degree murder and attempted armed robbery. He was sentenced to death for the murder conviction, and his conviction and sentence were affirmed on direct appeal. People v. Harris, 182 Ill.2d 114 (1998).
¶ 2 Thereafter, defendant sought relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The circuit court summarily dismissed his petitions; however, the supreme court reversed in part and remanded the cause for an evidentiary hearing on the issue of trial counsel's alleged failure to investigate and present evidence in mitigation at the capital sentencing hearing. People v. Harris, 206 Ill.2d 293 (2002). On January 10, 2003, however, before a hearing was held, the then-Governor commuted defendant's death sentence to a term of natural life imprisonment without the possibility of parole. The circuit court then, on motion of the State, dismissed defendant's postconviction petitions on the grounds that the Governor's act of commutation rendered moot defendant's claim of ineffective assistance of counsel. This court similarly dismissed defendant's appeal, citing People v. Watson, 347 Ill.App.3d 181 (2004), and the numerous other cases which had found that any and all sentencing issues raised by a commuted defendant are rendered moot by the Governor's act of commutation. People v. Harris, 357 Ill.App.3d 330, 332-34 (2005).
¶ 3 Defendant next initiated federal habeas corpus proceedings, and on June 5, 2008, the United States District Court for the Northern District of Illinois granted defendant an evidentiary hearing on his claim that trial counsel was ineffective for failing to investigate and present mitigating evidence at his capital sentencing hearing. United States ex rel. Harris v. McCann, 558 F.Supp.2d 826 (N.D. Ill. 2008). On August 8, 2008, the district court entered a conditional writ of habeas corpus, ordering that defendant be given a new sentencing hearing.
¶ 4 Following a new sentencing hearing, defendant was sentenced to consecutive terms of 90 years' imprisonment for first degree murder and 15 years' imprisonment for attempted armed robbery. He now appeals, contending: (1) that the trial court erred in excluding discovery and evidence indicating that he was factually innocent of the charges against him; (2) that the trial court erred in imposing consecutive sentences where no bodily injury occurred during the commission of the triggering offense; (3) that his 90-year sentence for first degree murder is excessive in light of certain mitigating factors; and (4) that the trial court sentenced him to an extended term in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). For the following reasons, we affirm.
¶ 5 I. BACKGROUND
¶ 6 A. Evidence at Trial
¶ 7 The record shows, in relevant part, that on the evening of June 7, 1993, defendant and several companions were riding in a car driven by Howard McClinton and discussing a movie about carjacking, called "Menace II Society, " when McClinton pulled into a parking lot near 79th and Calumet Streets to speak with some girls. It turned out that the girls did not want to speak with him; however, McClinton identified a potential carjacking victim, Clifford Chase, who was leaving the Chatham Food Center at the time. As Chase was entering his car, McClinton pulled up near him and handed a gun to another passenger, Antoine Moore, telling him to "Jack him." Moore then went and tapped on the window of Chase's car, but Chase did not open the door and started the ignition instead. At that point, Moore told Chase to get out of the car and tapped on his window with the gun, but Chase tried to back up. Moore then said, "Bust him, " and defendant jumped out of the car and shot Chase twice. As the group fled, they laughed about the shooting. Clifford Chase ultimately died as a result of a gunshot wound to the head.
¶ 8 B. The Capital Sentencing Hearing
¶ 9 After the jury found defendant guilty of first degree murder and attempted armed robbery, a capital sentencing hearing was held before the trial court. At that hearing, the State introduced a certified birth certificate of defendant showing that he was over 18 years old at the time of the offense and the signed jury verdict forms for intentional and knowing murder and attempted armed robbery. Defendant stipulated to his eligibility for the death penalty, and the court also found that he was eligible for a sentence of death.
¶ 10 In aggravation, the State initially introduced victim impact statements from Clifford Chase's widow, Bernice, and his two daughters Nona Ocloo and Olivia Chase. It then called multiple witnesses who testified about defendant's past criminal activity, which included two incidents apiece of armed carjacking and drug possession. The State entered into evidence a certified statement of conviction showing that on June 24, 1992, defendant pleaded guilty in one of the drug possession cases and received 13 months' probation. The State further presented testimony concerning multiple rules violations by defendant during his incarceration. These incidents ranged from essentially innocuous violations, like moving back and forth between different cells and interfering with the count, to very serious violations, such as possessing homemade knives in his cell and, in one instance, participating in "jumping" another inmate.
¶ 11 The State lastly called Assistant State's Attorney (ASA) Peggy Chiampas, who interviewed defendant and was present for the court reported statement he gave on June 15, 1993. She testified that defendant never expressed remorse for shooting Clifford Chase and that his demeanor when admitting to the shooting was "[c]ool, calm and collected." She also read into the record a portion of defendant's court-reported statement in which defendant stated that he had been a member of the Gangster Disciples for about five years and held the rank of assistant regent. Defendant stated that his duty was to make sure laws and policies were not broken and to impose discipline in the event that they were, and he described the range of discipline as follows:
"At the least I would do is a verbal warning and at the most I would do is to violate or beat them up." Defendant stated that he carried a ".38" that he obtained from a dope fiend for $50, that the gun was loaded with five bullets when he bought it, and that he fired it twice to test it.
¶ 12 In mitigation, the defense did not present any witnesses, but the parties stipulated that a police report prepared in connection with the armed carjacking of Edwina Harrison, one of the carjackings mentioned in aggravation, described the gunman as 28 years old and 5 feet 6 inches tall. At the time of that carjacking, defendant was 18 years old and about 6 feet 1 inch tall. Counsel also submitted 17 letters written by defendant's friends and family in which the authors reflected on defendant's positive qualities and expressed disbelief that he could have committed murder. In ...