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FIFTH DIVISION
March 29, 2002

Following a jury trial, defendant Michael Collier was convicted of firstdegree murder and attempted first degree murder. He was sentenced to consecutiveprison terms of 40 and 15 years, respectively. On appeal, defendant contendsthat the trial court erred in denying his motion to reopen his case after he hadrested so that he could testify. He also contends that his consecutive prisonterms are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466,147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons set forth below, weaffirm defendant's convictions and sentence.

BACKGROUND

Vontain Mercier testified that about 4 p.m. on September 3, 1997, he was withCornelius Washington at Fernwood Park, which is located near 104th and Wallacein Chicago, waiting to play basketball when they heard gunshots and began torun. Immediately prior to hearing the gunshots, Vontain saw defendant, whom hedid not know at the time, sitting on a bench drinking a beer. Vontain alsostated that he noticed a blue van with gray trim in the park's parking lot.After hearing the shots, Vontain saw a second man run to the blue van.

After leaving the park, Vontain and Washington eventually went to Vontain'shouse, located at 10141 South Wallace. While standing in front of the house withhis brother, Dionte Mercier, Dion Wadley and Washington, Vontain saw defendantdriving the blue van he had seen earlier at Fernwood Park. Defendant gave a"tough look" in the direction of the four on the street, pulled overand got out of the van. Defendant screamed something, which Vontain made out as"What's up?" and approached. When about 25 feet from them, defendantfired in the direction of Vontain and the others. Vontain stated that he heardabout 15 shots fired. Washington, who was shot in the chest, died as a result ofhis wounds. Dionte was struck in the leg.

Later that night, Vontain was taken by police to 100th and Aberdeen, where heidentified a van as the one defendant was driving prior to the shootings. About11 p.m. the same night, Vontain identified defendant in a police lineup. In thesame lineup, Vontain also identified John Clark as someone he had seen earlierthat day at Fernwood Park. In open court, Vontain identified defendant as theperson who shot Washington.

Dionte testified that, at the relevant time, he was standing on the curb withVontain, Washington and Wadley talking when he saw defendant, whom he had neverpreviously seen, approach driving a blue van traveling around 10 miles an hour.When the van stopped, defendant exited the driver's side, which was the side ofthe van closest to Dionte, and loudly asked, "What's up with that shit atthe park?" Dionte stated that there was a passenger in the van who nevergot out of the vehicle. Defendant, from about 30 feet away, then raised hisright arm and fired six or seven shots in rapid succession at the four men onthe street. In response, they fled the scene. While running, Dionte fell andrealized that he had been shot in the right leg. After making it back to thehouse, Dionte heard a second round of about 12 shots fired, followed by thevoice of Sammie Lee Skyles, his neighbor, yelling "Get the licenseplate."

Dionte was taken to Roseland Hospital by ambulance where his leg wound wastreated. Later that evening, after being released from the hospital, Dionteviewed a police lineup. Both in open court and at the lineup, Dionte identifieddefendant as the driver of the van. In the same lineup, he identified Clark asdefendant's passenger in the van. Although he did not know Clark's name at thetime of the lineup, he recognized him as someone with whom he had previouslyplayed basketball.

Travis Morgan, who had a case involving an alleged assault pending at thetime of defendant's trial, stated that on the date in question, he lived acrossthe street from the Merciers. About 6 p.m. that evening, he was in front of hishouse while Dionte, Vontain and two others were standing near the Mercier home.At that time, Morgan saw a van driving down the street toward his home. A man,whom Morgan identified in open court as defendant, got out of the van and beganshooting at the four men standing in front of the Mercier home until he appearedto be out of bullets. Defendant then got into the van and coasted to a nearbycorner. Once there, defendant got out of the van, appeared to reload the gun andbegan shooting at Morgan's neighbors, who had attempted to get the van's licenseplate number. Later that evening, Morgan identified defendant in a police lineupas the person who had exited the van and fired the shots.

Officer Lynn Lopit of the Chicago police department testified that she andher partner arrived at the crime scene about 7 p.m. where they recovered one.45-caliber cartridge casing at 10137 South Wallace and three .38-calibercartridge casings near 102nd and Wallace. After inventorying the casings, theyproceeded to 100th and Aberdeen, where they had been told that a van used duringthe shooting was located. There, they found the blue van from which theyrecovered a bloody shirt and two .38-caliber cartridge casings. No weapons werefound in the van. Testing performed by a forensic scientist specializing infirearms identification revealed that all five .38-caliber casings recovered theday of the shootings were fired from the same weapon.

Sammie Lee Skyles testified that on September 3, 1997, she lived with herfamily at 10151 South Wallace. About 6 p.m. that day she heard gunshots and wentto her front door, where she saw people running down the street. Near the cornerof 101st and Wallace, Skyles saw her son and daughter. After Skyles shouted toher children to get the license plate number to the van, the person driving itgot out and asked, "[Y]ou want the license plate number, humm?" Hethen stated, "[H]ere it is," and began shooting. Skyles was unable tosee the face of the shooter.

Officer Michael Sweeney testified that he arrived at the crime scene shortlyafter 6 p.m. and conducted interviews with witnesses. With the information hehad gathered, Sweeney began looking for an older model, gray Chevroletconversion van with blue trim and a Minnesota license plate. After receiving aradio message, Sweeney went to 10023 South Aberdeen where, about 6:45 p.m., hesaw a van fitting the description he had been given. Inside the van were twoblack males. As Sweeney and his partner approached, the person in the passengerseat fled. Defendant, who was sitting in the driver's seat, then got out of thevan. Sweeney saw a spent shell casing on the stepboard of the van, arresteddefendant and advised him of his rights.

Initially, defendant denied being at the park and stated that he was notinvolved in the shootings. But, when questioned about the bloody shirt in thevan, defendant, who did not appear to have been shot, stated that he had been atFernwood Park. He further stated that in exchange for $4, he had given a friend,who had been shot at the park, a ride to a hospital. When questioned about thevan, defendant stated that he owned it and that he was the only person who hadaccess to it.

After the State rested, the parties stipulated that if called to testify,Detectives Fassl and Almazan would state they spoke with Dionte at Area 2 policeheadquarters about 10:55 p.m. the night of September 3, 1997, and that heidentified Clark as being with defendant at the time of the shooting. It wasfurther stipulated that the detectives would testify that they spoke withVontain at Area 2 the same night and were told by him that both the driver andpassenger had gotten out of the van before the shooting. It was also stipulatedthat Vontain identified Clark as being with defendant when defendant did theshooting.

Following these stipulations, the defense rested. After dismissing the juryfor lunch, the following exchange occurred:

"THE COURT: Mr. Collier, I want to address you for a moment hereregarding the case. Your attorney just rested the case, and I want to advise youthat you have a right to testify in this case if you want to. You also have aright not to testify. That has to be your decision.

Do you understand what I am saying?

DEFENDANT COLLIER: Yes.

THE COURT: Is it your decision that you don't want to testify in this case?

DEFENDANT COLLIER: Yes."

After the lunch break the instructions conference was held. Soon after itbegan, the following was stated:

"[DEFENSE COUNSEL]: Judge, my client claims he's changed his mind. Iknow we rested. He may choose to testify. It may be too late.

THE COURT: Find out right now."

Defense counsel then told the court, "He is not going to testify."The record does not reflect whether counsel spoke to defendant prior toinforming the court that defendant would not testify.

At the conclusion of the instructions conference, this colloquy occurred:

"[DEFENSE COUNSEL]: Another matter that I bring to the Court's attentionis, my client has indicated that he has had a change of heart. I would ask if wecan re-open our case for the Defendant to testify.

THE COURT: Based upon my earlier talk with the Defendant, that request isdenied at this time."

Final arguments were heard, and after being instructed, the jury founddefendant guilty of the first degree murder of Washington and the attemptedfirst degree murder of Dionte. He was sentenced to a 40-year prison term for thefirst degree murder conviction and a consecutive 15-year term for the attemptedfirst degree murder conviction. Defendant now appeals.

ANALYSIS

Defendant first contends that the trial court erred in refusing to allow himto testify at his trial.

The State asserts this claim of error is waived on appeal based upondefendant's failure to object to the trial court's denial of his request toreopen his case and for his failure to raise the issue in a posttrial motion.See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Despite his failure toproperly preserve the issue for review, defendant argues that we should considerthe alleged error on appeal under the plain error doctrine because considerationof the issue is necessary in order to preserve the integrity of the judicialprocess.

Plain error is a limited and narrow exception to the general waiver rule, tobe used only where the evidence is closely balanced or the alleged error is sosubstantial that it deprived the defendant of a fair trial. People v. Kuntu,196 Ill. 2d 105, 128 (2001). "This second prong of the plain errorexception is to be invoked only where the possible error is so serious that itsconsideration is 'necessary to preserve the integrity and reputation of thejudicial process.' " People v. Hampton, 149 Ill. 2d 71, 102 (1992),quoting People v. Herrett, 137 Ill. 2d 195, 214 (1990). "The rightof a criminal defendant to testify in his own behalf at his trial is afundamental constitutional right." People v. Piper, 272 Ill. App. 3d843, 846 (1995). Thus, we agree with defendant that review of this issue isnecessary so as to ensure the integrity of the judicial process.

Only under the most extreme circumstances should the trial court excludedefense testimony. People v. Johnson, 151 Ill. App. 3d 1049, 1053 (1987),citing People v. Franceschini, 20 Ill. 2d 126 (1960). When decidingwhether to allow a defendant to reopen his case so that he can testify in hisown behalf, it is proper for the trial court to consider various factors,including: (1) the timeliness of the motion to reopen; (2) the character andimportance of the testimony to be presented; (3) the effect of granting themotion, in particular, whether the State is prejudiced; and (4) thereasonableness of the explanation for the defendant's failure to present theevidence in his case in chief. People v. Watkins, 238 Ill. App. 3d 253,258 (1992). It is within the trial court's sound discretion as to whether a casemay be reopened for further evidence, and unless that discretion is clearlyabused, reversal will not result. People v. Figueroa, 308 Ill. App. 3d93, 101-02 (1999).

In the instant case, as defendant did not testify before resting his case, itmay be surmised that defendant did not wish to testify in his own behalf at thattime. See People v. Enis, 194 Ill. 2d 361, 399 (2000). A brief timelater, although not required to do so, the trial court admonished defendant asto his right to testify. See People v. Smith, 176 Ill. 2d 217, 235 (1997)("the trial court is not required to advise a defendant of his right totestify, to inquire whether he knowingly and intelligently waived that right, orto set of record defendant's decision on this matter"). After defendantindicated that he understood the admonishments, the trial court asked defendantif it was his desire to not testify at trial, to which defendant responded,"Yes." Following a recess for lunch and the start of the instructionsconference, defense counsel informed the trial court that defendant had"changed his mind" with respect to his decision not to testify. Basedupon our review of the record, the trial court's instructing defense counsel to"[f]ind out right now" was a third opportunity defendant was given totestify. In response, defense counsel informed the trial court that defendantdid not wish to testify. Only after yet another "change of heart" didthe trial court deny defendant's request to testify. In short, defendant turneddown three opportunities to testify before the trial court denied his request toreopen his case.

In People v. Frieberg, 305 Ill. App. 3d 840, 851 (1999), the defendantargued that the trial court erred in denying his postconviction petition becausehe received ineffective assistance of trial counsel when that counsel allegedlyusurped the defendant's constitutional right to choose whether to testify in hisown behalf at trial. This court held that the trial court did not err in denyingthe postconviction petition and provided guidance to the trial courts by statingas follows:

"In so holding, we note that because the decision whether to testify attrial lies ultimately with a defendant, issues involving how that decision wasmade lurk - - like an unexploded bomb - - in every case resulting in aconviction. As the supreme court noted in People v. Brown, 54 Ill. 2d 21,24, 294 N.E.2d 285, 287 (1973), 'in every case in which the issue is raised, thelawyer's advice will in retrospect appear to the defendant to have been badadvice.' Thus, convicted defendants who testified on their own behalf at trialoften will later claim that doing so was not their personal choice and theirtrial counsel forced them to testify. On the other hand, defendants who did nottestify at trial often will later claim that they really wanted to testify buttheir trial counsel prevented them from doing so.

To defuse this explosive situation, we urge trial courts in every criminalcase to take the few seconds needed, after the State has rested its case inchief and before the presentation of the defense case, to admonish the defendantpersonally that he alone possesses the right to choose whether to testify on hisown behalf, and that he should make that decision after consulting withcounsel." (Emphasis in original.) Frieberg, 305 Ill. App. 3d at 852.

This court said that by admonishing defendants in this manner, it would makeit "virtually impossible" for a defendant to argue that his right totestify was usurped. Frieberg, 305 Ill. App. 3d at 852. In the presentcase, the trial court complied with the suggested admonitions in Frieberg.

In People v. Phillips, 186 Ill. App. 3d 668 (1989), the trial courthad advised the jurors that they would hear evidence until 5 p.m. each day oftrial. The State rested its case at 3 p.m. The trial court then advised defensecounsel to call any defense witnesses. Defense counsel informed the court thatthe witnesses would not be available until the next day. The trial court theninformed the defendant and his counsel that if the defendant wished to testify,he would have to do so that day and, if the defendant decided to not testify,the defendant would not be permitted to change his mind and testify the nextday. The defendant told the court that he did not wish to testify. After hisconviction, the defendant raised on appeal the court's order that the defendantwould have to testify before his defense witnesses testified. This order wascontrary to Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed. 2d 358, 92 S.Ct. 1891 (1972), which held that a defendant cannot be required to make thechoice whether to testify at his trial until after all of the defense evidencehas been presented.

This court found that the trial court's actions amounted to harmless errorbecause the defendant's decision not to testify was not made as a result of thecourt's direction, but was made independently before the defense was to beginthe presentation of its case. In the instant case, the trial court inquired ofdefendant's intention to testify after the defense rested and again during thejury instruction conference. There is no indication in the record before us thatdefendant's decision to not testify was anything other than a voluntary andinformed decision on the part of defendant.

We also find guidance in several other cases. In People v. Watkins,238 Ill. App. 3d 253 (1992), the trial court denied the defendant's request toreopen proofs where he sought to introduce police testimony to perfect theimpeachment of a State witness. The defendant argued on appeal that this waserror. In affirming the trial court's ruling, this court stated that defensecounsel had failed to present an excuse as to his failure to recall the officerand further stated that the testimony the defendant wanted to impeach was"not of the utmost importance" to the defendant's case. Watkins,238 Ill. App. 3d at 258.

Defendant relies heavily upon two cases for support of his argument. In Peoplev. Johnson, 151 Ill. App. 3d 1049, 1053 (1987), the defendant, who had nottestified at trial, rested her case because she "was incapable oftestifying in her defense." The remainder of the day was spent on theinstructions conference. The following morning, defense counsel sought to reopenthe case so that the defendant, who was "more composed and therefore wasmore willing to testify," could present evidence. Johnson, 151 Ill.App. 3d at 1053. The trial court denied the defendant's motion to reopen. Thiscourt reversed on appeal, finding that it was plausible that the defendant'sdecision whether to testify resulted from her emotional state, "as opposedto an intentional manipulation of the trial process." Johnson, 151Ill. App. 3d at 1054.

In People v. Figueroa, 308 Ill. App. 3d 93 (1999), the trial courtstruck the defendant's testimony in its entirety due to his refusal to answercertain questions on cross-examination. After both the State and defense hadrested, but prior to the instructions conference, defense counsel requested toreopen the case so that the defendant, who was then willing to answer theState's questions, could testify. The trial court denied the motion. On appeal,this court found this denial to be reversible error because the State would nothave been prejudiced by the timing of the defendant's testimony and that thetestimony was "of the utmost importance" to his claim of self-defense.Figueroa, 308 Ill. App. 3d at 104.

We find that the Watkins, Johnson and Figueroa casessupport the trial court's denial of defendant's motion to reopen. Unlike in Johnson,there is no indication as to the rationale behind defendant's vacillating withrespect to his decision whether to testify. The justification for defendant'srepeated "change of heart" appears to be a manipulation of the trialprocess, which supports the trial court's ruling. See Watkins, 238 Ill.App. 3d at 258. Also, the record reflects that, in his answer to discovery,defendant failed to disclose to the prosecution any defense that he wished toraise at trial, including alibi or self-defense, pursuant to Supreme Court Rule413(d) (134 Ill. 2d R. 413(d)). The Illinois Criminal Code of 1961 provides inrelevant part that, "A defense of justifiable use of force, or ofexoneration, based on the provisions of this Article is an affirmativedefense." 720 ILCS 5/7-14 (West 1998). It is well settled in Illinois thatwhere a defendant wishes to assert an affirmative defense, he must notify theState and the court of this fact. See, e.g., People v. Burns, 304Ill. App. 3d 1, 8-9 (1999).

We further note that defense counsel did not argue self-defense or alibi intheir opening or closing arguments and also did not request that the jury beinstructed on self-defense. As a consequence, there is absolutely no basis tobelieve that defendant was going to testify that he acted in self-defense or hadan alibi. These facts distinguish defendant's case from the defendant's case in Figueroa,where the barred testimony related to the important issue of self-defense. Evenaccepting defendant's argument that the prejudice to the State would not havebeen great had defendant been allowed to reopen his case, defendant was givennumerous opportunities to testify, but he chose not to.

Further, defendant failed to make the required offer of proof demonstratingthe nature and character of his testimony. See People v. Peeples, 155Ill. 2d 422, 457-58 (1993). "The two primary functions of an offer of proofare to disclose to the trial judge and opposing counsel the nature of theoffered evidence, enabling them to take appropriate action, and to provide thereviewing court with a record to determine whether exclusion of the evidence waserroneous and harmful." People v. Thompkins, 181 Ill. 2d 1, 10(1998).

The requirement of an offer of proof has been applied to a defendant'spotential trial testimony. In United States v. Taylor, 128 F.3d 1105 (7thCir. 1997), the defendants had been convicted of bank robbery, and on appealdefendant Robinson asserted that he was denied effective assistance of trialcounsel and was prevented from testifying in his own defense. In rejecting thedefendant's argument, the court of appeals found that the record indicated thatit was the defendant's choice to not testify. The court continued:

"On appeal, Robinson does not describe the testimony that he would havepresented had he taken the stand. This omission, coupled with the overwhelmingevidence of Robinson's guilt, establishes that any error causing him not totestify was harmless beyond a reasonable doubt. United States v. Zillges,978 F.2d 369, 372 (7th Cir. 1992); Ortega v. O'Leary, 843 F.2d 258, 262(7th Cir. 1988)." Taylor, 128 F.3d at 1109.

Similarly, the evidence against Collier was overwhelming. Further, in orderfor the trial court to have found that defendant's testimony was of suchimportance to warrant the reopening of his case, an offer of proof should havebeen presented before the court ruled on his request or immediately thereafter.Given the lack of insight as to the character of his testimony and reasons forfailing to present it during his case in chief, we cannot say that the trialcourt clearly abused its discretion when denying defendant's motion to reopenhis case.

Finally, based upon the Supreme Court's decision in Apprendi v. New Jersey,530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), defendant contends thatthe trial court erred in ordering that his sentences be served consecutively.

The Illinois Supreme Court in People v. Wagener, 196 Ill. 2d 269(2001), held that Apprendi does not apply to consecutive sentences. Thus,defendant's argument fails.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL, P.J., concurs.

REID, J., dissents.

JUSTICE REID, dissenting:

I dissent. A defendant's right to testify at trial is a fundamentalconstitutional right, as is his or her right to choose not to testify. Peoplev. Madej, 177 Ill. 2d 116, 145-46 (1997); See Rock v. Arkansas, 483U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987); Ill. Const. 1970, Art. I, Sec.8. It is now generally recognized that the decision whether to testifyultimately rests with the defendant. Madej, 177 Ill. 2d at 146. Though itis within the discretion of the trial court to determine the question of whetherto grant a defendant's motion to reopen the proofs, a trial court should notexclude defense testimony except in the most extreme circumstances. Peoplev. Johnson, 151 Ill. App. 3d 1049, 1053 (1987); citing People v.Franceschini, 20 Ill. 2d 126 (1960) (emphasis added). It is important todifferentiate between motions to reopen the proofs in general and those motionsto reopen the proofs so that the defendant might testify in his or her owndefense. There is a world of difference, in terms of the constitutional factorsinvolved, between these two types of situations. Society's interest in theefficient administration of justice has to be balanced with a defendant'sconstitutional right to a fair opportunity to defend. Johnson, 151 Ill.App. 3d at 1054.

"Of course, the right to present relevant testimony is not withoutlimitation. The right `may, in appropriate cases, bow to accommodate otherlegitimate interests in the criminal trial process.' [citation omitted] Butrestrictions of a defendant's right to testify may not be arbitrary ordisproportionate to the purposes they are designed to serve. In applying itsevidentiary rules a state must evaluate whether the interests served by a rulejustify the limitation imposed on the defendant's constitutional right totestify." Rock, 483 U.S. at 55-56, 97 L. Ed. 2d 37, 107 S. Ct. at2711; quoting Chambers v. Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d297, 93 S. Ct. 1038, 1046 (1973).

Where a case presents no extreme circumstances justifying the exclusion ofexculpatory testimony, a trial court risks abusing its discretion by denying amotion to reopen the proofs. People v. Figueroa, 308 Ill. App. 3d 93, 102(1999); citing People v. Goff, 299 Ill. App. 3d 944 (1998). The Goffcourt, in discussing motions to reopen the proofs in general, identified thefactors involved:

"'In considering a motion to reopen the proofs, a trial court shouldtake into account various factors, including the existence of an excuse for thefailure to introduce the evidence at trial, e.g., whether it wasinadvertence or calculated risk; whether the adverse party will be surprised orunfairly prejudiced by the new evidence; whether the evidence is of the utmostimportance to the movant's case; and whether there are the most cogent reasonsto deny the request.'" Figueroa, 308 Ill. App. 3d at 103; citing Peoplev. Watkins, 238 Ill. App. 3d 253, 258 (1992); quoting Hollembaek v.Dominick's Finer Foods, Inc., 137 Ill. App. 3d 773, 778 (1985).

While I sympathize that Collier must have caused the trial court tremendousconsternation by waffling between testifying and not testifying, his right totestify is of such a constitutional magnitude which must be considered ahead ofthe Watkins factors. Collier's constitutional rights must take precedenceover those general factors which a trial court would weigh in a case where adefendant wanted to reopen the proofs for the admission of general evidence ortestimony other than his own. The decision faced by the trial court was aserious one, especially considering the fact that Collier had twice beforeclearly indicated he would not testify. That being said, the question becomesone of weighing the impact of allowing the defendant to testify under theseparticular facts and circumstances. I understand that reopening the proofs wouldhave caused some increased work, some inconvenience and, doubtless, more than alittle aggravation. However, Collier's final request to testify came beforeclosing arguments were to be made before the jury. I presume the State'sAttorney was properly prepared at the on-set of trial for the possibility thatCollier would take the witness stand in his own constitutionally-protecteddefense. As such, claims by the State of potential prejudice and harm to theprosecution's case from having to delay closing arguments for the testimony andcross-examination of one more witness ring hollow. When weighed againstCollier's constitutional right to testify, notions of trial court orprosecutorial convenience simply must give way. Under a different set of facts,or were this a case with more obvious evidence of duplicity or gamesmanship atthe heart of a defendant's decision, I certainly recognize that a differentresult could be warranted. This is not such a case. I believe Collier shouldhave been allowed to testify because his constitutional rights outweighed thetrial court's other concerns.