Rehearing denied: January 13, 2013
On appeal from defendant’s convictions for attempted first degree murder and aggravated battery, the erroneous admission of the opinion of a lay witness that defendant lied during a police interview was not shown to require reversal under either the first or second prong of the plain error test, defense counsel’s failure to object to the lay witness’s opinion testimony was a matter of trial strategy, defendant’s sentence was not excessive, and, inter alia, any fees and fines imposed by the circuit clerk were vacated and the cause was remanded to the trial court with instructions to order the appropriate fines and fees with application of the $5-per-day credit.
Appeal from the Circuit Court of Peoria County, No. 11-CF-380; the Review Hon. Timothy M. Lucas, Judge, presiding.
Michael J. Pelletier and Kathleen A. Hill, both of State Appellate Defender’s Office, of Chicago, for appellant.
Jerry Brady, State’s Attorney, of Peoria (Mark A. Austill, of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Justices Carter and O'Brien concurred in the judgment and opinion.
¶ 1 After a jury trial, the defendant, Mark A. Jackson, was found guilty of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) and aggravated battery (720 ILCS 5/12-4(a) (West 2010)). The trial court sentenced the defendant to 60 years' imprisonment. On appeal, the defendant argues: (1) he was denied a fair trial when the State elicited opinion testimony from a lay witness; (2) he received ineffective assistance of counsel because his trial attorney did not object to the opinion testimony; (3) his sentence was excessive; and (4) the trial court miscalculated certain fines and fees and did not apply his $5-per-day credit to his fines. We affirm in part, vacate in part, and remand with instruction.
¶ 2 FACTS
¶ 3 The defendant was charged by indictment with attempted first degree murder and aggravated battery. The case proceeded to a jury trial.
¶ 4 At trial, the victim, Eddie Singer, testified that on the morning of April 22, 2011, he arrived at Neal Auto Parts (Neal), his place of employment, around 6 a.m. Shortly after his arrival, the defendant appeared. The defendant told the victim that he no longer worked at Neal and he was retrieving some tools. The victim followed the defendant to the back of the store and took pictures of the items the defendant loaded into his truck. The victim followed the defendant to the locker area where the defendant retrieved some towels and returned to his truck. The defendant shook the victim's hand and asked "What's the matter, Ed?" The victim said he had a sore throat, and the defendant responded "[o]h, fuck you" and stabbed the victim in the chest.
¶ 5 The victim ran outside of the building, and the defendant followed. The defendant pushed the victim to the ground and repeatedly stabbed the victim in the stomach. The victim pushed the defendant off him and ran toward the front of the property to get help. The defendant caught the victim, knocked him down, and stabbed him again. In the resulting struggle, the victim suffered defensive wounds to his face and left arm. The victim eventually broke free of the defendant and moved onto his knees. However, the defendant returned and stabbed the victim a few more times. The defendant said "[d]on't fight it, Ed, just let it happen, don't fight it, just let it happen." The victim collapsed to the ground, and the defendant shoved him out of the way and fled the property.
¶ 6 After the defendant left, the victim made his way into the building and called 911. While on the phone, the victim collapsed onto the floor. Shortly thereafter, Miles Thum and a sheriff's deputy came into the building and found the victim lying on the floor. The victim told Thum that the defendant had stabbed him.
¶ 7 On cross-examination, the victim said that he followed the defendant around the building because he was afraid that the defendant would take the other employees' tools. The victim said that he was not angry with the defendant and denied carrying a knife or attacking the defendant.
¶ 8 Thum testified that he was employed at Neal on April 22, 2011. On that date, Thum arrived to work early and noticed the defendant's vehicle exit the back of the property at a high rate of speed. As Thum approached the door, he was met by a sheriff's deputy. Thum and the deputy proceeded inside the building and found the victim, covered in blood, slumped behind the counter, with a telephone dangling over his shoulder. The deputy directed Thum to find some gauze to place over the victim's wounds until the paramedics arrived.
¶ 9 Peoria County sheriff's deputy Aaron Witt responded to the victim's 911 call around 6:30 a.m. At the scene, Witt saw Thum get out of his vehicle and walk toward the entrance of the building. Witt approached Thum, asked him a few questions, and followed a blood trail into the building. Inside the building, Witt found the victim slumped over behind a counter. Thum retrieved some gauze that Witt applied to the victim's injury.
¶ 10 Crime scene technician Matthew Maher testified that he documented the scene. Based on the condition of the scene, Maher believed that a struggle had taken ...