Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 11 CR 5133 The Honorable Mary Margaret Brosnahan, Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Joseph Scott was found guilty of second degree murder of Justin Grover and sentenced to 18 years' incarceration. Scott contends that he was denied effective representation because: (i) defense counsel did not present Jermaine Cummings' robbery conviction as Lynch character evidence to support Scott's claim of self-defense (People v. Lynch, 104 Ill.2d 194 (1984)); (ii) defense counsel failed to object to the State's inaccurate statement during rebuttal argument that Scott waited three years to assert self-defense; and (iii) defense counsel failed to object to Scott's impeachment by Scott's prior aggravated unlawful use of a weapon (AUUW) conviction under a statute later ruled unconstitutional by the Illinois Supreme Court in People v. Aguilar, 2013 IL 112116.
¶ 2 We reject each of these contentions. First, Scott's arguments are forfeited; forfeiture aside, we determine that Scott was not prejudiced by counsel's inactions, and, therefore, his ineffective assistance of counsel argument fails the second prong of the Strickland test.
¶ 3 Scott also argues that in sentencing him to 18 years' imprisonment, the trial court failed to consider statutory mitigating factors and improperly relied on his AUUW conviction as an aggravating factor. We conclude that the trial court did not abuse its discretion in sentencing Scott. The record reflects that the trial court properly considered mitigation and entered a sentence less than the maximum allowed by statute. Furthermore, the trial court specifically stated it considered Scott's record after he was released from parole.
¶ 4 BACKGROUND
¶ 5 Scott was charged by indictment with 24 counts of first degree murder of Justin Grover (720 ILCS 5/9-1(a), (a)(2), (a)(3) (West 2008)); 3 counts of attempted first degree murder of Jermaine Cummings (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), and 1 count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2008)). Scott moved to admit evidence of various convictions and arrests of Grover and Cummings. Immediately before jury selection, the State nol-prossed 17 of 23 counts of first degree murder of Justin Grover and all charges related to Cummings. Defense counsel then stated: "We will not call that witness then, " apparently referring to the police witness regarding Cummings' prior convictions.
¶ 6 Over the defense's objection, the trial court granted the State's motion in limine to impeach Scott with his AUUW conviction on January 29, 2008, should he testify at trial.
¶ 7 On the afternoon of May 31, 2009, Scott, Justin Grover, Jermaine Cummings, and Scott's brother, James Scott, were selling marijuana out of a second-floor apartment in a building in Chicago's Englewood neighborhood. An argument among them escalated to a fistfight. Henry Scott, another brother who was watching the fight with other bystanders, pulled out a gun. The fight ended after Scott grabbed the gun from Henry and shot at Grover and Cummings, hitting Grover in the head and thigh. Cummings was not shot. Grover died at the scene.
¶ 8 Jermaine Cummings testified that, in May 2009, he made his living selling "nickel bags" of marijuana. On May 31, Cummings and Grover, along with Scott and James, were selling marijuana from the apartment when Grover and James began to argue about transactions. The argument quickly moved downstairs and outside in front of the building. Cummings followed them outside and tried to stop the argument. Scott then came downstairs and also tried to intervene. Grover began to argue with Scott. When Grover and Scott started to shove each other, Cummings and James attempted to break up the fight by standing between them. Cummings and James began fighting; Cummings pulled out a gun and swung it at James, then gave the gun to a bystander and began fist fighting with James. They stopped fighting after several minutes. Cummings grabbed Grover and pulled him toward the door of the building. Thereafter, Scott and James stood right in front of Cummings and Grover and continued arguing with them. Henry then "popped up, " pulled out a gun, and pointed it at Cummings. Cummings asked Henry if he was going to shoot the gun, and then Grover told him to shoot. Henry said nothing and did not shoot.
¶ 9 Scott "snatched" the gun from Henry and shot three times. Thinking Grover was next to him, Cummings ran away, but when he turned around he noticed Grover lying on the ground where they had been standing. Cummings returned to chase James, who had run. Cummings caught him and started fighting. The police arrived and took them both to the station.
¶ 10 Cummings denied making threats or threatening movements and testified that he did not see Grover make threats or threatening movements.
¶ 11 On cross-examination, Cummings stated he carried a gun for protection. Grover was "mad" and threatening James because he thought James had stolen some of his marijuana. Cummings did not remember telling two detectives on the day of the shooting that Grover "whooped [Scott's] ass."
¶ 12 Cummings also testified that he was sentenced to prison in 2011 for the unlawful use of a weapon by a felon and, at the time of trial, remained incarcerated; in 2007, he was sentenced to three years in prison for possession of a stolen motor vehicle; and in 2003, he was sentenced to probation for robbery but in 2004, after violating his probation, the court resentenced him to a prison term.
¶ 13 Simone Priest testified that in May 2009 she had been dating Grover for two or three years; they had a one-year-old daughter. On May 31, while walking to pick up the daughter, she and Amber McCorkle saw Grover and Cummings and spoke to them for a few minutes. Ten or fifteen minutes later, on their way back, the women heard arguing and saw Cummings, Grover, Scott, James, and Henry standing together. Henry faced Grover, Cummings was next to Grover, and James and Scott stood nearby. Priest said she was 10 to 12 feet away. Henry was pointing a gun at Grover. She heard Grover say "bust it" twice, but Henry did not shoot. Scott snatched the gun from Henry and started shooting at Grover. Priest heard four or five shots. She ran away, carrying her daughter in her arms, but then gave her daughter to someone standing nearby and ran back to Grover, who died shortly after.
¶ 14 Amber McCorkle was walking with Priest after picking up Priest's daughter when they heard male voices arguing. McCorkle saw Grover arguing with Henry and Scott. McCorkle heard gunshots but did not see the actual shooting. After the gunshots ...