Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 08 CR 9367. Honorable Evelyn B. Clay, Judge Presiding.
Based on the one-act, one-crime doctrine, the appellate court vacated the defendant's convictions for crimes other than the attempted first degree murder of the two people who were fired at during an incident in which defendant was involved with others in beating the first victim and then firing at an off-duty police officer who came upon the scene and attempted to restore order, and the convictions for attempted first degree murder were allowed to stand; furthermore, the mittimus erroneously listing the conviction imposed by the trial judge for firing at the police officer as a conviction for aggravated discharge of a firearm in the direction of a peace officer was corrected to reflect a conviction for attempted first degree murder.
For Plaintiffs-Appellee: Mary P. Needham, Brooke N. Shupe, Cook County State's Attorney, Chicago, IL.
For Defendant-Appellant: Autumn Renee Fincher, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] After a bench trial, the trial court convicted defendant Travell Johnson of
two counts of attempted first degree murder, one count of aggravated discharge of a firearm, and one count of aggravated battery with a firearm, and sentenced him to concurrent, respective terms of 21, 21, 4, and 6 years' imprisonment. On appeal, Johnson challenges the sufficiency of the evidence to hold him accountable for the attempted first degree murder of Gary Riley and for aggravated discharge of a firearm. He further contends that his mittimus should be corrected to accurately reflect the offenses of which he was convicted and that all but his two convictions for attempted first degree murder must be vacated under the one-act, one-crime doctrine.
[¶2] We affirm Johnson's convictions--the State proved his guilt beyond a reasonable doubt on the basis of accountability under the common design rule. But, we vacate under the one-act, one-crime doctrine his convictions for aggravated discharge of a firearm and aggravated battery with a firearm and correct the mittimus to reflect two convictions for attempted first degree murder.
[¶4] Johnson and codefendant Timothy Petermon, who is not a party to this appeal, were charged in relation to a shooting in an alley on the south side of Chicago that occurred on March 29, 2008. During this incident, off-duty police officer Gary Riley saw Johnson, Petermon and another man beating Kelvin Jemison. After Officer Riley saw Petermon shoot Jemison, he attempted to stop the attack, but Petermon began to shoot at the officer, who then returned fire. Following an investigation, Johnson and Petermon were identified as the perpetrators and arrested. Johnson was charged with attempted first degree murder of a peace officer, attempted first degree murder of Jemison, aggravated discharge of a firearm, and aggravated battery with a firearm. (Johnson and Petermon were tried jointly. Petermon filed a separate appeal, and, on September 10, 2014, this court affirmed Petermon's convictions and corrected his mittimus to reflect the vacation of his convictions for aggravated discharge of a firearm and aggravated battery. People v. Petermon, 2014 IL App. (1st) 113536, 385 Ill.Dec. 557, 19 N.E.3d 115.)
[¶5] At trial, Officer Riley testified that at about 2 p.m. on March 29, 2008, while on his way to work, he stopped to pick up his dry cleaning at a store on 47th Street near Michigan Avenue. He was wearing plain clothes and driving a black truck. As he got out of his truck, he saw three men in a nearby alley fighting with a man, Kelvin Jemison, who was on the ground. One of the three men was " overlooking," while the other two were " swinging on" Jemison. Officer Riley then saw one of those two men pistol-whip Jemison and then shoot him, after which Officer Riley announced his office, shouted " stop," and drew his service weapon. The man holding the gun then turned and began shooting in Officer Riley's direction. Officer Riley took cover behind his truck, and returned fire two or three times. The three men got in a car and drove away. Officer Riley called 911, and spoke with responding officers on the scene.
[¶6] Officer Riley further testified that on April 10, 2008, he viewed a lineup at the police station and identified Johnson as one of the men he saw beating Jemison. The next day, he viewed another lineup and identified Petermon as the man who shot Jemison and fired in his direction. Officer Riley also made in-court identifications of Johnson and Petermon as the perpetrators. On cross-examination, Riley said that when he ...