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SIXTH DIVISION
October 29, 2004

A jury found defendant, Vernon Tolbert, guilty of firstdegree murder committed by personally discharging a firearm. Thetrial court sentenced defendant to a term of 40 years for themurder, with 25 years added pursuant to subsection 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections (subsection(d)(iii)) (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000)), for atotal sentence of 65 years in prison. We find the eyewitnesstestimony sufficient to support the conviction, and defensecounsel provided effective assistance. The trial court correctlyapplied subsection (d)(iii) here. We also reject defendant'schallenges to the constitutionality of subsection (d)(iii). Thesubsection did not doubly enhance defendant's punishment, itbears a rational relationship to the evils the legislature soughtto remedy, and it imposes a penalty proportional to the penaltiesimposed for similar offenses. Therefore, we affirm theconviction and sentence the trial court imposed.

On August 27, 2000, around 1 a.m., Jesse Montgomery went toBrother's Palace, a club, with his family and some friends.Defendant went to his sister's birthday party at the same club. Close to 3 a.m. a man spoke to Jesse briefly while he stood nearthe dance floor. The man then shot Jesse dead. Defendant andmany others ran from the club after the shot.

Police spoke with the persons who remained at the scene,mostly Jesse's family and friends. Later that day police showedan array of photographs to several of those persons. Twopositively identified defendant's picture as a photograph of theman who shot Jesse, and another made a tentative identificationfrom the photograph. Police obtained a warrant for defendant'sarrest.

On June 23, 2001, defendant walked into a police station andtold the officer he heard a warrant had issued for his arrest. The officer arrested him. Several eyewitnesses identifieddefendant in a lineup as the man who shot Jesse. A grand juryindicted defendant on a charge of first degree murder committedby personally discharging a firearm.

At trial the bouncer testified that he frisked all the menwho entered the club on the night of the murder. He sawdefendant enter the club three different times that night, andthe third time he arrived he had changed clothes. According tothe bouncer, defendant wore bulky jogging outfits each time, butof different colors. The bouncer, who weighed 235 pounds,described defendant as having a build similar to his own. Afterhe heard the gunshot, the bouncer saw defendant run out of theclub carrying a gun.

Kimberly Montgomery, Jesse's niece, testified that she wentto the club with Jesse on August 27, 2000. After 2:30 a.m., whenJesse was talking with his friend Tracey Foreman, Kimberly sawdefendant go over and talk to Jesse. Kimberly testified thatdefendant wore black pants and a black sweater vest with a whitedesign over a white shirt, and a baseball cap. She guessed thatdefendant was 6 feet 2 inches tall and he weighed 150 pounds. She thought that she had seen him once or twice before in theneighborhood.

Kimberly testified that LaDonna Lumpkin, the mother ofJesse's children, went up to talk to Jesse, and she had wordswith Foreman. Kimberly took Foreman away from Lumpkin, Jesse anddefendant briefly, but Foreman went right back to Jesse and putherself directly between defendant and Jesse. Kimberly followedForeman. Kimberly was standing right behind defendant when hepulled out a gun and shot Jesse. Later that day she positivelyidentified defendant in a photo lineup police showed her. Shepositively identified him as the shooter again in the lineupconducted at the police station in June 2001.

On cross-examination defense counsel prepared the groundworkfor impeaching Kimberly with statements she made to police:

"[Y]ou told the detectives that the guy you sawwho shot your uncle you only knew him by the name ofOtis. Isn't that what you told them?

A. No.

Q. Well, you did tell them that he hangs atHarding and Chicago Avenue, right?

A. No.

Q. Well, did you say that you had seen *** theguy that shot your uncle in the street area of Chicagoand Central Park?

A. I seen him walking between -- I said betweenCentral Park through Hardy 'cause those the only storesI go to. I have seen his face before, but I never knewhim.

Q. Now, you also told Detective Wolverton, didn'tyou, that after the shooting you believed that the manwho shot your uncle had dropped the gun?

A. No, I did not."

Counsel began to perfect the impeachment on cross-examination of Sergeant Donald Wolverton:

"Q. Now, when you interviewed Kimberly Montgomery,Miss Montgomery told you that she saw the shooting; isthat correct?

A. Yes, sir.

Q. She told you, as well, that after the shootingthat she thought that the gun that the shooter usedfell to the floor; isn't that correct?

A. No, sir, that's not."

Counsel showed Wolverton the police report of interviewswith witnesses. He admitted that he signed the report, but hesaid his partner prepared it. The report said Kimberly saw theshooter drop the gun, but Wolverton said that his partner erred. Wolverton interviewed Kimberly, and she said she saw Jesse fallto the floor. She did not say the gun fell to the floor. Defense counsel did not ask Wolverton about further statements inthe police reports that Kimberly said she knew the shooter onlyas "OTIS," and he "Hangs at Harding & Chgo."

Foreman described the same confrontations Kimberlydescribed. She corroborated Kimberly's description of the manwho shot Jesse and the clothes he wore, except Foreman did notremember a baseball cap and she guessed that he weighed 170pounds. When Foreman came between defendant and Jesse, shegrabbed Jesse's arm to take him where she could talk to him.Defendant's hand hit Foreman as he shot Jesse. She ran out ofthe club to a nearby police car. She did not positively identifyany picture in the photo lineup as the picture of the shooter,but she explained at trial that she told the officers that thepicture of defendant looked like the shooter, but the person inthe photograph looked younger than the shooter. She readilypicked defendant as the shooter from the lineup held at thepolice station in June 2001.

Lumpkin further corroborated Kimberly's testimony. Lumpkin,who had never seen the shooter before that night, remembered thathe wore black pants and a black-and-white sweater vest, and hestood about 6 feet 3 inches tall, weighing perhaps 175 pounds. She added:

"[A]ccording to the lighting he was kind of shaded out,like dark. The lighting wasn't that good in there, soI couldn't tell the complexion."

Lumpkin saw defendant carry the gun out of the club. She did notidentify defendant from the photo lineup, but she identified himin the lineup at the police station in June 2001.

Marvin Johnson testified that he knew defendant fromgambling in the neighborhood. Johnson also went to Brother'sPalace on August 27, 2000, and he saw defendant talk to Jesse. Afew minutes later, Johnson saw defendant knock Foreman down as heshot Jesse. Johnson identified defendant from the photo lineupon August 27 and again in the police station lineup in June 2001. Johnson did not remember what defendant wore at the time of theshooting.

Four defense witnesses testified that they sat withdefendant in the club on the night of the shooting. They sworethat defendant wore a very distinctive burgundy suit. He did notshoot Jesse. According to defense witnesses, more than 100people packed the club at the time of the shooting. Prosecutionwitnesses estimated a crowd of 25 to 35 persons at that time.

The jury found defendant guilty of murdering Jesse bypersonally discharging a firearm. The presentence investigationreport described defendant as 6 feet 3 inches tall and 135pounds. The report listed four prior convictions for armedrobbery, all from 1994, when defendant was 19 years old. Thetrial court imposed a sentence of 65 years in prison, consistingof 40 years for the murder, plus 25 years added pursuant tosubsection d(iii) because the jury found that defendantpersonally fired a gun to kill Jesse.

The material in this section is nonpublishable under SupremeCourt Rule 23 (166 Ill. 2d R.23).

[Nonpublishable material under Supreme Court Rule 23 removedhere.]
 

The material in this section is nonpublishable under SupremeCourt Rule 23 (166 Ill. 2d R. 23).

[Nonpublishable material under Supreme Court Rule 23 removedhere.]

The trial court extended defendant's sentence from 40 yearsin prison to 65 years in prison based on subsection (d)(iii). 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000). Defendant argues thatthe court misconstrued the subsection. We review de novo thequestion of statutory construction. In re Application for TaxDeed, 285 Ill. App. 3d 930, 932 (1997).

The statute provides:

"[A] sentence of imprisonment for a felony shallbe a determinate sentence set by the court under thisSection, according to the following limitations:

(1) for first degree murder,

(a) a term shall be not less than 20years and not more than 60 years, or

(d) (i) if the person committed theoffense while armed with a firearm, 15 yearsshall be added to the term of imprisonmentimposed by the court;

(ii) if, during the commission of theoffense, the person personally discharged afirearm, 20 years shall be added to the termof imprisonment imposed by the court;

(iii) if, during the commission of theoffense, the person personally discharged afirearm that proximately caused great bodilyharm, permanent disability, permanentdisfigurement, or death to another person, 25years or up to a term of natural life shallbe added to the term of imprisonment imposedby the court." 730 ILCS 5/5-8-1(a)(1) (West2000).

Defendant contends that "another person" in subsection(d)(iii) is ambiguous in that the court could read it to requireinjury to a person other than the murder victim. If the statuteis ambiguous, we must interpret it restrictively, in favor ofdefendant. People v. Whitney, 188 Ill. 2d 91, 98 (1999).

We find no ambiguity. The subsection makes no priorreference to the murder victim. "[A]nother person" contrastswith its last and only antecedent, "the person [who] personallydischarged a firearm." 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West2000); see People v. Davis, 199 Ill. 2d 130, 138 (2002).

Moreover, when the General Assembly added subsection(d)(iii) to section 5-8-1, it also added very similar language toseveral sections of the Criminal Code of 1961 (720 ILCS 5/1-1 etseq. (West 2000)). The legislature added 20 years to sentencesfor aggravated kidnaping (720 ILCS 5/10-2(a)(7), (b) (West2000)), armed robbery (720 ILCS 5/18-2(a)(3), (b) (West 2000)),and vehicular hijacking (720 ILCS 5/18-4(a)(5), (b) (West 2000)),if the defendant personally discharged a firearm during thecommission of those offenses, and it added 25 years to thesentences for those offenses if the defendant "personallydischarge[d] a firearm that proximately cause[d] great bodilyharm, permanent disability, permanent disfigurement, or death toanother person" 720 ILCS 5/18-2(a)(4), (b) (West 2000); see also720 ILCS 5/10-2(a)(8), (b) (West 2000); 720 ILCS 5/18-4(a)(6),(b) (West 2000)). Because the legislature used very similarlanguage for those provisions in the same enactment, we presumethat the legislature intended the provisions to have the samemeanings. People ex rel. Scott v. Schwulst Building Center,Inc., 89 Ill. 2d 365, 372 (1982). Our supreme court applied thesection permitting a 25-year addition to the sentence for armedrobbery to a case involving an armed robbery of the person shot. People v. Moss, 206 Ill. 2d 503, 509, 532 (2003). That is, thevictim of a robbery or kidnaping may qualify as "another person"for purposes of the 25 year extension of the sentence if thedefendant personally discharged a firearm in the course of therobbery or kidnaping, and the bullet discharged caused greatbodily harm. Similarly, the victim of a murder qualifies as"another person" for purposes of subsection (d)(iii) if thedefendant personally discharged a firearm in the course of themurder and the bullet discharged caused great bodily harm. Wefind that the trial court construed the statute correctly, andcorrectly applied it to defendant.

Defendant challenges the constitutionality of subsection(d)(iii) on three bases. He claims it violates the prohibitionagainst double enhancement, it bears no reasonable relationshipto the interests the legislature sought to protect, and itimposes a disproportionate penalty. We address the arguments inturn, applying de novo review. See People v. Malchow, 193 Ill.2d 413, 418 (2000).

In several prior cases this court has rejected argumentsthat subsection (d)(iii) doubly enhances sentences. E.g., Peoplev. Moore, 343 Ill. App. 3d 331, 347-48 (2003). Defendant raises anew argument, comparing the sentence imposed under subsection(d)(iii) with the sentence under subsection (d)(ii). Undersubsection (d)(ii) the court must add 20 years to the sentence ofa defendant found guilty of murder if the defendant personallydischarged a firearm during commission of the offense, while thecourt must add 25 years under subsection (d)(iii) if thedefendant personally discharged a firearm, and that dischargeproximately caused great bodily harm or death. Because theprosecution must prove that defendant caused the death to obtaina murder conviction, defendant contends that causing the deathcannot provide grounds for extending his sentence beyond thatpermitted by subsection (d)(ii). See Moss, 206 Ill. 2d at 533.

For a conviction under subsection (d)(ii) in a case likethis one, the prosecution must prove that the defendant, or onefor whom the defendant was accountable, performed acts thatcaused the victim's death, without lawful justification, and heknew his acts created a strong possibility of death or greatbodily harm (720 ILCS 5/9-1(a)(2), 5-1 (West 2000)); and thatduring the commission of the offense, the defendant personallydischarged a firearm (730 ILCS 5/5-8-1(a)(1)(d)(ii) (West 2000)). If the defendant had an accomplice, the prosecution could haveproved all these propositions without proving that thedefendant's personal discharge of a firearm proximately causedthe death. For example, the defendant could have entered a cluband personally discharged a firearm at a light before hisaccomplice personally discharged a second firearm to kill thevictim. If the defendant's shot at the light did not hit anyperson, the court should sentence the defendant under subsection(d)(ii), while applying subsection (d)(iii) to the sentence ofthe accomplice who personally shot the murder victim. Thus,proof under subsection (d)(iii) includes an element not entailedby the proof of murder and the personal discharge of a firearm:it requires proof that the defendant's personal discharge of afirearm proximately caused great bodily harm or death. Becausethe proof required under subsection (d)(iii) includes an elementnot inherent in the proof that makes a defendant liable undersubsection (d)(ii), subsection (d)(iii) does not use any singleelement twice for determination of the sentence. Thus, thestatute does not involve an impermissible double enhancement. See People v. Sawczenko-Dub, 345 Ill. App. 3d 522, 538 (2003).

Defendant next argues that the legislature abused its policepower by enacting subsection (d)(iii). "[T]he standard of aproper exercise of the police power is whether the statute isreasonably designed to remedy the evils which the legislature hasdetermined to be a threat to the public health, safety andgeneral welfare." Heimgaertner v. Benjamin ElectricManufacturing Co., 6 Ill. 2d 152, 159 (1955).

The legislature enacted subsection (d)(iii) as part of apublic act designed to deter the use of firearms in thecommission of felonies. Sawczenko-Dub, 345 Ill. App. 3d at 531. The offender's possession and use of a firearm creates a "unique,pervasive and enhanced danger" (People v. Zapata, 347 Ill. App.3d 956, 971 (2004)), especially because of the quickness and easewith which one can acquire and use a firearm that "allows theperpetrator to effortlessly and instantaneously execute an intentto kill once it is formed; and allows an offender to harm agreater number of victims more rapidly than other weapons andinflict deadly wounds on a number of people within a wide areaand within a short amount of time." Zapata, 347 Ill. App. 3d at971; see also Sawczenko-Dub, 345 Ill. App. 3d at 531. Thelegislature enacted the subsection as part of its response to aperceived need to halt the increase in the commission of crimeswith handguns. Sawczenko-Dub, 345 Ill. App. 3d at 531. Thelegislature reasonably designed the legislation to address theparticular evil it sought to remedy. We find that thelegislature properly exercised its constitutional police powerswhen it enacted subsection (d)(iii).

Defendant argues that the penalty imposed under subsection(d)(iii) is unconstitutionally disproportionate when comparedwith the penalty imposed for murder, when compared with thepenalty imposed for more dangerous murders by arson andexplosives, and when compared with the penalty imposed forexceptionally brutal and heinous murders. This court addressedand rejected the comparison with exceptionally brutal and heinousmurders in Sawczenko-Dub, 345 Ill. App. 3d at 531-32. We see noneed to revisit that conclusion here. For the reasons given inSawczenko-Dub, we still find no unconstitutionaldisproportionality between the sentencing for exceptionallybrutal and heinous murders and murders committed by usingfirearms.

A defendant found guilty of first degree murder faces apenalty of at least 20 years in prison (730 ILCS 5/5-8-1(a)(1)(a)(West 2000)); one found guilty of a first degree murder committedby personally discharging a firearm faces a minimum of 45 years,25 years more than the minimum penalty for first degree murder. Thus, the minimum additional penalty for use of firearm exceedsthe minimum initial penalty for first degree murder. Defendantcontends that the statute unconstitutionally punishes theincreased risk from use of a firearm more harshly than itpunishes the realized harm of first degree murder.

Some murders may create no risk for any person other thanthe murder victim. When a murderer uses a firearm, thelegislature has found, the crime creates an increased risk forthe entire society. The additional offense of increasing therisk to society warrants the increased punishment of 25 years inprison. When a person commits murder by any means, thelegislature permits increased punishments for all of his othercrimes, as the court must consider his prior criminal record insentencing. 730 ILCS 5/5-5-3.2(a)(3) (West 2000). Inparticular, if a murderer commits a second murder, the minimumpenalty for the second murder is natural life in prison. 730ILCS 5/5-8-1(a)(1)(c)(i) (West 2000). This penalty is moresevere than the penalty imposed if one commits a murder and alsoexposes others to added risk by using a firearm. Thus,subsection (d)(iii) does not penalize the increased risk moreharshly than it penalizes the realized risk.

Finally, defendant asks us to compare the penalty formurders committed with firearms to the penalty for murderscommitted by arson or explosives. Arson and explosions creategreat risk for persons other than the immediate victims. Thestatute permits a minimum sentence of 20 years in prison formurder committed by arson or explosives, while requiring aminimum sentence of 45 years for the murderer who personallydischarges a firearm to kill the victim. "[A] penalty violatesthe proportionate penalties clause where similar offenses arecompared and conduct that creates a less serious threat to thepublic health and safety is punished more severely." Moss, 206Ill. 2d at 522.

We agree with defendant that an arson in which only oneperson dies, or an explosion that kills only one person, harmsothers by creating unrealized risks for others that are similarto the risk he created by killing one person with a gunshot. However, the legislature may consider factors other than thedegree of harm as a basis for the imposition of penalties. People v. Lee, 167 Ill. 2d 140, 146 (1995). The legislature maypunish more harshly the more frequent kind of crime, in responseto the need to halt an increase in the commission of that crime. Lee, 167 Ill. 2d at 146. By enacting subsection (d)(iii), thelegislature has treated murders committed with firearms as a morepervasive threat to the peace than murders committed by arson orexplosives. The relative frequency of the use of firearms infelonies, including murder, warrants the legislative judgmentthat the use of firearms presents a special hazard needinggreater deterrence in the form of increased sentences. Defendanthas not shown that subsection (d)(iii) disproportionately imposesa greater punishment on a crime that creates a lesser threat thananother comparable crime. We reject all of defendant's argumentsfor finding the statute unconstitutional.

The eyewitnesses to the shooting provided adequate supportfor the jury's verdict finding defendant guilty of murderingJesse by personally discharging a firearm. Defendant's attorneyapparently made a tactical choice to abandon impeachment of aprosecution witness after part of the attempt to impeach thatwitness led to bolstering the witness's testimony. Thus,defendant did not meet his burden of showing that his attorneyassisted him ineffectively.

We interpret subsection (d)(iii) to require an addition of25 years to the murder sentence of a defendant who personallydischarged a firearm, if the bullet he discharged caused greatbodily harm to anyone, including the murder victim. Thesubsection, so interpreted, does not doubly enhance thedefendant's sentence, because the defendant's personal dischargeof the fatal firearm is an additional element, not implicit inthe included offense of a murder in which the defendantpersonally discharged a firearm. Subsection (d)(iii) bears arational relationship to the perceived evil the legislaturesought to remedy. The subsection does not impose adisproportionate penalty when one compares that penalty with thepenalties imposed for first degree murder, for murder by arson orexplosion, and for brutal and heinous murder. We reject all ofdefendant's attacks on the constitutionality of the sentencingprovision. Therefore we affirm the judgment of the trial court.

Affirmed.

FITZGERALD SMITH, P.J. and TULLY, J., concur.