Find Legal Information

JUSTICE GORDON delivered the opinion of the court:

Defendant Willie Sample appeals from his convictions for four counts of first degreemurder (720 ILCS 5/9-1(a)(1) and (3) (West 1996)), one count of armed robbery (720 ILCS 5/18-2 (West 1996)), and one count of home invasion (720 ILCS 5/12-11 (West 1996)). Defendantreceived sentences of thirty-five years for first degree murder and six years each for armedrobbery and home invasion, all to be served consecutively.

In this appeal, defendant argues that his convictions must be reversed because he wasdenied his sixth amendment right to confront and cross-examine witnesses when the Stateelicited hearsay evidence from police officers that non-testifying co-defendants implicated him inthe crimes. Defendant also argues that the circuit court improperly imposed consecutivesentences because defendant did not inflict bodily injury during the commission of the homeinvasion or armed robbery as required under 730 ILCS 5-8-4(a). Defendant further contends thatthe consecutive sentences for the home invasion and armed robbery must be vacated becausethey are lesser-included offenses of felony murder. Finally, defendant challenges the consecutivesentences as unconstitutional under the United States Supreme Court's ruling in Apprendi v. NewJersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). Defendant claims, and the State concedes, that heis entitled to 999 days credit for time served rather than the 899 days stated in the mittimus. Forthe reasons stated below, we affirm defendant's convictions and consecutive sentences andamend the mittimus to reflect 999 days served.

BACKGROUND

Willie Sample was convicted by a jury of four counts of first degree murder (includingintentional murder and felony-murder), one count of home invasion, and one count of armedrobbery. The charges grew out of the robbery and murder of Jeremy Price in his home onSeptember 22, 1996. The verdict returned on the murder count was a general verdict. The judgeimposed a 35 year sentence based on the intentional murder count and six years each on thehome invasion and armed robbery counts. Defendant's sentences are to run consecutively.

At defendant's trial, Darnell Lewis testified for the State that on September 22, he was inhis family's apartment with his step-uncle Jeremy Price. At about 9:45 p.m., Lewis was in hisbedroom when he heard Price calling out his name. When Lewis came to his bedroom door heobserved Price attempting to push closed the front door of the apartment in an effort to keepsomeone out. Lewis testified that the front door was about six or seven feet from his bedroomdoor. A man in a ski mask eventually pushed his way in through the front door and Lewiswitnessed his uncle and the man struggling. Shortly thereafter, the men stopped struggling andLewis saw that the ski mask had come off his uncle's assailant. Lewis recognized the assailant asa neighborhood resident, Antoine Ashford. According to Lewis, another man then entered theapartment and pulled a gun on his uncle. Lewis testified that this second man looked at Lewis ashe entered the apartment.

At about this moment, Ashford pulled a gun on Lewis, who remained in the doorway ofhis bedroom. As the second assailant was approaching Lewis's uncle, Ashford looked away fromLewis briefly. As he did, Lewis ran back into his bedroom, shut the door, and ran out of theapartment through a window. While Lewis was fleeing, he heard a single gunshot. Lewis askeda neighbor to call the police and an ambulance but did not speak to the police about the incidentuntil 2 days later. Lewis went directly to the hospital where his uncle was taken and found outthat his uncle had died. Lewis explained that he had hesitated to speak to the police because ofan outstanding warrant.

Investigating detective Ray Kaminski testified that on the day of the shooting, afterspeaking to members of Lewis's family, he was looking for two men: "Tim" and "Tony." Thetwo were later identified as Timothy Wash and Antoine Ashford. Lewis and Kaminski bothtestified that on September 24, 1996, Lewis himself spoke with the police. Detective Kaminskitestified that Lewis did not give him the name or nickname of the second man to enter theapartment and gave him only a general description. On September 25, Lewis identified TimothyWash as another area resident whom Lewis had heard was in the lobby of the apartment buildingduring the shooting. At this time, Lewis also identified Antoine Ashford in a police line-up.

On September 24, Detective Kaminski questioned Timothy Wash. In opening statement,the prosecutor told the jury that after questioning Wash, the police were looking for defendantunder the alias "Little Rib." The prosecutor went on to say that after interviewing both co-defendants, police were again looking for defendant. During direct examination, the Statereturned to this point and elicited from Detective Kaminski that after questioning Wash, hecontinued his search for Ashford and began searching for a man known as "Little Rib." Kaminski brought Ashford in for questioning later that day and re-interviewed Wash. On furtherdirect examination, the State elicited that at this point Kaminski discovered that "Little Rib" wasthe nickname of defendant Willie Sample. The State went on to elicit similar testimony fromanother officer assigned to the investigation, Charles Daly. Daly reiterated that after speaking tothe co-defendants, he and Kaminski were looking for defendant. A full discussion of thecontents of the prosecutor's opening statement and the detectives' direct examinations follows inthe analysis section of this opinion.

On September 26, defendant was located and brought to the station for questioning. While defendant was at the station, Darnell Lewis identified him out of a line-up as the man whohad pointed a gun at Lewis's uncle. Defendant also gave oral statements to both DetectiveKaminski and to an assistant State's Attorney. Each testified that defendant told them that he andAshford had planned to rob Price and that Wash was to stand as lookout. When they arrived atPrice's apartment, Ashford pretended to be interested in buying marijuana from Price and at somepoint during the transaction pushed his way into the apartment. Defendant asserted that he thenentered the apartment, gun in hand, and went to take the drugs on the couch. Price grabbeddefendant's arm and the gun went off, hitting Price in the abdomen. Defendant and Ashford tookthe drugs and left the apartment. During opening statement, the prosecutor characterized thisinterview with defendant as one in which the police, having already spoken with his co-defendants, were giving defendant a chance to tell "his side of the story."

The State's forensic pathologist testified that Price died from a single gunshot wound tothe abdomen and that there was no evidence of close-range firing. The jury convicted defendantof first degree murder, home invasion, and armed robbery. This appeal followed.

ANALYSIS

Defendant argues that comments made by the State during opening statement, andtestimony the State elicited from Kaminski and Daly, improperly revealed that co-defendantsWash and Ashford had implicated defendant in their statements. Defendant asserts that theseincidents reflected a continuous and highly prejudicial attempt by the State to put inherentlyunreliable and damaging hearsay evidence before the jury in violation of defendant's sixthamendment right to a fair trial and right to confront witnesses.

In response to defendant's argument, the State first asserts that defense counsel's failure toobject either during opening statement or during the testimony of the two police detectivesconstitutes waiver. Generally, to preserve errors for appeal, they must be objected to during trialand specified in a post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124(1988). This waiver rule, however, endures two limitations. First, the rule limits only theparties, not the courts, and a reviewing court may ignore the waiver rule in order to achieve a justresult. People v. Lopez, 152 Ill. App. 3d 667, 676, 504 N.E.2d 862 (1987). Second, the plainerror doctrine provides that errors involving alleged violations of constitutional rights may bereviewed when the error affects defendant's "substantial rights." 134 Ill.2d R. 615(a). Becausewe have discretion to review waived claims, and because defendant's assertions touch questionsinvolving substantial rights, we will proceed to the merits.

Defendant alleges that the State's opening statement and testimony by investigatingofficers violated his Sixth Amendment rights as outlined in Bruton v. United States, 391 U.S.123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, petitioner and a co-defendant were triedjointly for armed robbery. The co-defendant did not take the stand. The Supreme Court foundthat the admission of testimony by a postal inspector that the co-defendant had confessed andimplicated the petitioner violated the petitioner's right to confront and cross-examine witnessesagainst him. Bruton, 391 U.S. at 137, 88 S.Ct. at 1628. The Court stated that the incriminationsof a co-defendant are not only "devastating to the defendant but their credibility is inevitablysuspect * * * [and] [t]he unreliability of such evidence is intolerably compounded when thealleged accomplice, as here, does not testify and cannot be tested by cross-examination." Bruton,391 U.S. at 136, 88 S.Ct. at 1628. The Court found that the instruction to the jury to disregardthe confession in determining the petitioner's guilt was simply impossible for a reasonable jurorto follow. Bruton, 391 U.S. at 127, 88 S.Ct. at 1623. Thus the Bruton Court teased out theconstitutional implications of the hearsay rule in situations where the out-of-court statementincludes the inculpatory claim of a co-defendant.

Illinois courts responded to Bruton by finding that testimony by witnesses recounting theinculpatory substance of conversations with non-testifying persons (often, but not always, co-defendants) could be reversible error. People v. Gacho, 122 Ill.2d 221, 522 N.E.2d 1146 (1988);People v. Reeves, 271 Ill. App. 3d 213, 648 N.E.2d 278 (1995); People v. Williams, 159 Ill. App.3d 612, 513 N.E.2d 415 (1987). Our supreme court held that when the substance of theconversation with the declarant goes to the essence of the dispute at trial "it would inevitably goto prove the matter asserted" were a witness permitted to recount it. People v. Jones, 153 Ill.2d155, 160, 606 N.E.2d 1145, 1147.

An exception to this doctrine developed, however, for police officers testifying to theprocedures undertaken during their investigations. As one court recognized:

"In criminal cases, an arresting or investigating officer should not be put in thefalse position of seeming just to have happened upon the scene; he should beallowed some explanation of his presence and conduct." People v. Cameron 189Ill. App. 3d 998, 1004, 546 N.E.2d 259 (1989) (quoting McCormick, Evidence