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No. 1-99-2922

JUSTICE GALLAGHER delivered the opinion of the court:

Following a jury trial, defendant David Vida was convicted of first degree murder. Finding that defendant's actions were exceptionally brutal and heinous and indicative of wantoncruelty, the trial court sentenced him to 100 years in prison. On appeal, defendant contends thatthe police lacked probable cause to arrest him. Defendant also asserts that his trial counsel wasineffective because counsel advised him not to testify at trial and failed to present significantevidence to support his case. In addition, defendant contends that the court erred in allowing thejury to view statements by defendant's mother during its deliberations. Defendant also claimsthat his 100-year prison sentence was excessive, an abuse of the trial court's discretion, and inviolation of the United States Supreme Court's opinion in Apprendi v. New Jersey, 530 U.S. 466,490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), which held that any fact thatincreases the sentence for a crime beyond the prescribed statutory maximum for that offensemust be submitted to a jury and proved beyond a reasonable doubt. For the foregoing reasons,we affirm defendant's convictions and sentence.

At a hearing on defendant's motion to quash his arrest and suppress evidence, LarryLindenman of the Illinois State Police investigations unit was the sole witness. Lindenmantestified that on March 2, 1997, he investigated the discovery of a dismembered male body at acampsite in the Des Plaines conservation area in Will County. Clad in a bloodstained shirt andjeans, the body had been cut in half at the waist and placed in plastic garbage bags. The bodywas later identified as Scott Harast.

Several days before the body was discovered, Harast's parents reported him missing. Patricia Harast last saw her son alive on February 24 when he and defendant discussed workingtogether to rehab a house. Harast told Lindenman she was surprised at their plans becausedefendant and her son had a bad relationship.

At about 8 p.m. on February 24, a cashier at Leo's Liquors in Brookfield waited on Harastand defendant. Another cashier at that store told Lindenman that on February 20, she hearddefendant call Harast a "faggot" and say that he knew people who could kill him. RegardingHarast's disappearance, defendant said he and Harast had gone to a liquor store and he hadproceeded to the jobsite while Harast stopped at a local grocery store. However, the owner of thegrocery store told Lindenman that Harast did not enter the store that night. Defendant said heand Harast were to meet at the house but Harast never arrived.

Lindenman testified that on March 4, police obtained a search warrant for 3517 SouthPark Avenue in Brookfield. In the house, crime scene investigators discovered blood splattersand markings consistent with a body being chopped on the basement floor. The indentation of achop mark on the floor contained jean material, human tissue and blood. Tissue and blood werefound on a nail protruding from a hole in the first floor leading to the basement. Police recovereda bloody ax and tree saw that Lindenman testified were capable of dismembering a human body. A bloody sledge hammer and a broken chair also were found.

Defendant told Brookfield police that he and Harast were good friends and planned torehab the Park Avenue house. The house's owner told police that he had hired defendant toperform such work.

Lindenman testified that 3517 South Park Avenue was four or five blocks away fromdefendant's residence. On March 7, Lindenman and Steve Kline, an Illinois State Policedetective, went to defendant's home and told defendant they wanted to speak to him at statepolice headquarters in Lockport. Defendant agreed to cooperate, and Lindenman told defendantthat he could drive separately if he wished. Defendant said he would go with the officers becausehis driver's license was suspended. The officers did not handcuff defendant. On cross-examination, Lindenman testified that he did not tell defendant that he did not have to go withthem to police headquarters. The trial court denied defendant's motion to quash his arrest andsuppress evidence, finding that sufficient probable cause existed for defendant's arrest. Defendant also made a motion to suppress his statements to police, which the trial court alsodenied.

At trial, Patricia Harast testified that at the time of his death, her son rented a room at3424 Grand Boulevard in Brookfield from Julie Killian, who was defendant's sister, and Killian'shusband. She testified that her son was gay. On February 24, he told her he and defendant weregoing to a vacant house in Brookfield to do rehab work and that defendant was going to pay himto vacuum.⁽¹⁾ On cross-examination, she stated that her son was bisexual and that he and JulieKillian were friends and had planned a trip together. She said her son had a drinking problemand was unemployed and Killian was an alcoholic and a drug addict.

Kurt Vavra, manager of Leo's Liquors, testified that on February 20, defendant was in thestore and that he called Harast a "faggot" and said he wanted to kill him. Donna Taylor, a cashierat the store, testified that she heard defendant say that day that if Killian died, "they would findthat faggot dead somewhere."⁽²⁾

The house's owner testified that on February 22, he asked defendant to obtain a duplicatehouse key so defendant could enter the house during the week to work in his absence. OnFebruary 28, he found a note on the house's door from defendant apologizing for a broken chairand saying that he would explain later. Between February 28 and March 2, he entered the houseand found that electrical wiring had been pulled out and also noticed a strong odor of cleaningsolutions. Defendant later told the owner that he had accidentally pulled out the wire with hisfoot and had tripped over the chair and broken it.

Dr. Larry Blum testified that based on the results of an autopsy, Harast died of skull andbrain injuries due to multiple blunt force trauma. Harast's injuries included two facial fractures,bleeding inside the skull, lungs and trachea, multiple head and body lacerations and fracturedribs, with a total of 20 different injured areas. Blum testified that the condition of the bones nearthe dismembered area was consistent with being severed by a saw or a blunt object such as an ax. Julie Glasner, a state police forensic scientist, testified as an expert in DNA analysis and statedthat bloodstains on the broken chair and on a mop handle at the scene were consistent withdefendant's DNA.

Lindenman testified that after defendant was brought to police headquarters, defendantinitially denied killing Harast but later said that he and Harast had argued about Harast'srelationship with Killian. Defendant said Harast swung an ax at him, and defendant punchedHarast in the face, causing Harast to fall backward and through a hole in the floor. Afterdiscovering that Harast was not breathing, defendant left. Defendant denied dismemberingHarast's body and leaving it at the campsite. After offering several other versions of Harast'sdeath, defendant admitted dismembering and disposing of the body and cleaning the basement. Defendant said he put the body in a van and asked his mother to go with him to drop the body offbecause that would look less suspicious than if defendant were seen driving alone.

Cook County Assistant State's Attorney Colin Simpson testified that at about 1 a.m. onMarch 8, defendant gave a court-reported statement admitting that he killed Harast. Defendantsaid he told his mother about the killing and they disposed of the body three days later.

The defense presented one witness. Cheryl Vida, defendant's mother, testified thatbetween February 23 and February 27, she was at LaGrange Memorial Hospital recovering froma heart attack. Vida testified that she did not accompany defendant to dispose of a body. Shegave a statement to Brookfield police at about 5:30 a.m. on March 8; however, she was upsetbecause Killian, her daughter, had just died and did not know what the police said to her. Oncross-examination, Vida denied telling Lindenman that defendant told her that he killed Harastand denied going with defendant to dispose of Harast's body. However, she admitted signing astatement in Lindenman's presence on March 8.

In rebuttal, Lindenman testified that he took Vida's statement on March 8. Vida said thaton February 24, defendant told her that he killed Harast and on February 27, she accompanieddefendant to the campsite where they left Harast's body. Lindenman said Vida signed thestatement.

On appeal, defendant first contends that the trial court erred in denying his motion toquash his arrest and suppress evidence. He argues that Lindenman and Kline arrested himwithout probable cause when they arrived at his house on March 7 and transported him to statepolice headquarters. Defendant points out that Lindenman did not tell him that he did not have togo with them.

To have probable cause to justify a warrantless arrest, a police officer must be aware offacts and circumstances at the time of the arrest that are sufficient to allow a person of reasonablecaution to believe that an offense had been committed and that the person being arrestedcommitted the offense. People v. Sims, 192 Ill. 2d 592, 614-15, 736 N.E.2d 1048, 1060 (2000). The existence of probable cause is determined by the totality of the circumstances at the time ofthe arrest. Sims, 192 Ill. 2d at 615, 736 N.E.2d at 1060. When reviewing a trial court's ruling ona motion to quash an arrest and suppress evidence where no factual or credibility disputes exist,our standard of review is de novo. People v. Buss, 187 Ill. 2d 144, 204-05, 718 N.E.2d 1, 35(1999).

Among the factors relevant to establishing probable cause are the proximity of thedefendant's residence to the crime scene and whether the defendant was among the last to see thevictim alive. Buss, 187 Ill. 2d at 206, 718 N.E.2d at 36. Defendant likens the circumstancessurrounding his arrest to those in People v. McGhee, 154 Ill. App. 3d 232, 507 N.E.2d 33 (1987),which we find distinguishable from the case at bar. In McGhee, police took a juvenile suspectinto custody after learning that the suspect was in the company of the victim on the night beforethe victim was found dead. McGhee, 154 Ill. App. 3d at 234, 507 N.E.2d at 34. This court foundthat information insufficient to support the suspect's arrest. McGhee, 154 Ill. App. 3d at 237, 507N.E.2d at 36, quoting Wong Sun v. United States, 371 U.S. 471, 479, 9 L. Ed. 2d 441, 450, 83 S.Ct. 407, 413 (1963) ("'[i]t is basic that an arrest with or without a warrant must stand upon firmerground than mere suspicion [citation], though the arresting officer need not have in handevidence which would suffice to convict'").

Here, the circumstances that were known to police when they arrested defendant wentbeyond the fact that defendant was the last person seen with Harast before his death. Lindenmantestified that he had learned that Harast was last seen alive with defendant, that the two men hada bad relationship, and that defendant had threatened to kill Harast and used a derogatory term todescribe him. In addition, defendant lived four or five blocks away from the Park Avenue house,in which investigators found evidence consistent with Harast's injuries. Defendant also toldpolice he was working on rehabbing the house, which the owner confirmed. Based upon thetotality of the circumstances known to police, we find that sufficient probable cause existed toarrest defendant.

Defendant also contends that even if the police had probable cause to arrest him, thearrest was unlawful because it was made inside his house. Under Payton v. New York, 445 U.S.573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), entry without a valid warrant into a suspect'sresidence to effectuate an arrest violates the fourth amendment of the United States Constitution. U.S. Const., amend. IV; see also People v. Wimbley, 314 Ill. App. 3d 18, 731 N.E.2d 290 (2000). At the suppression hearing, Lindenman testified that he and Kline stood on an unenclosed porchat defendant's residence while they spoke to defendant. Defendant was told he could driveseparately if he wished. Lindenman testified that defendant agreed to go with the officers andwent inside the house to get a coat and to change shoes.

Based upon those facts, no violation of Payton occurred because the record does notindicate that defendant was arrested inside his residence. Although Lindenman testified that heor Kline entered the residence at some point, no evidence exists that defendant was placed underarrest inside the house or that the officer who entered the house was not invited inside bydefendant. Indeed, as the State points out, the trial judge stated in making his ruling that "Iimagine you could say [defendant] was under arrest from the point that he left his house ***." Even if we were to conclude that the officers placed defendant under arrest on the porch, such anarrest would not violate Payton. See, e.g., People v. Williams, 275 Ill. App. 3d 249, 254-55, 655N.E.2d 1071, 1076 (1995) (arrest valid on open porch where suspect "was not in an area wherehe had a reasonable expectation of privacy"); People v. Arias, 179 Ill. App. 3d 890, 895-96, 535N.E.2d 89, 92-93 (1989) (officers did not violate Payton in entering porch because porch wasdistinct from entry into suspect's home). Defendant's arguments regarding the lawfulness of hisarrest are rejected.

Defendant next contends his trial counsel was ineffective for presenting an inadequatedefense consisting only of the testimony of defendant's mother, who had admitted in a writtenstatement to police that she had helped her son dispose of Harast's body. Defendant also assertsthat his defense was hindered by the fact that trial counsel advised him not to testify and that inthe absence of his testimony or the presentation of an alibi or affirmative defense, the jury wasleft to consider only evidence implicating him in Harast's death.

To demonstrate ineffective assistance of counsel under Strickland v. Washington, 446U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant must show that counsel'sperformance was deficient and that the deficient performance prejudiced the defendant such thatthe result of the proceeding would have been different. Because a defendant must satisfy boththe deficiency and prejudice prongs of Strickland to state a valid claim of ineffective assistance,failure to establish either component will defeat his or her claim. People v. Richardson, 189 Ill.2d 401, 411, 727 N.E.2d 362, 369 (2000).

Defendant contends that, based upon the advice of counsel, he was "forced not to testifyin his own defense." However, the record contains the following exchange between the trialjudge and defendant immediately prior to the presentation of defendant's case:

"THE COURT: Mister Vida, as the [d]efendant in this case, youunderstand you have the right to testify, if you want to. Do you understand that?

DEFENDANT: Yes.

THE COURT: If you wish to testify, you can take the witness chair, underoath, like all other witnesses and give testimony. You can also not testify if youwant to. That is your right, not to testify.

DEFENDANT: Yes.

THE COURT: You are under no obligation to offer any testimony. Youshouldn't feel compelled to offer any testimony. You are presumed innocent. You may rely on your presumption of innocence. Do you understand that?

DEFENDANT: Yes.

THE COURT: If you decide, after discussing with [defense counsel]Mister Unger, whether or not you want to testify in this case -

DEFENDANT: What?

THE COURT: Do you wish to testify in your defense?

DEFENDANT: No.

THE COURT: Okay. Has anybody forced you or threatened you to makeyou give up your right to testify?

DEFENDANT: No.

THE COURT: Has anybody promised you anything to give up your rightto testify?

DEFENDANT: No.

THE COURT: You are doing this of your own free will?

DEFENDANT: Yes.

THE COURT: You understand, if you wanted to, you would be allow [sic]to testify?

DEFENDANT: Yes.

THE COURT: Okay.

MR. UNGER [to defendant]: You did talk, we did talk it over?

DEFENDANT: I talked to him.

THE COURT: You and Mister Unger discussed it. He explained to youall about your right to testify. It is your decision. And after talking to MisterUnger you don't want to testify?

DEFENDANT: Yes.

THE COURT: Okay. Let the record reflect the [d]efendant knowingly andvoluntarily waived his right to testify in his own defense. So we will allow MisterUnger to call whatever witnesses he would like to call."

The right of a criminal defendant to testify at trial is fundamental, and therefore, unlikethe presentation of other witnesses, the defendant's exercise of the right to testify is not a matterof strategy or a tactical decision left to trial counsel. People v. Steward, 295 Ill. App. 3d 735,743, 693 N.E.2d 436, 443 (1998). A defendant's decision to testify can only be made by thedefendant regardless of counsel's advice to the contrary. People v. Clemons, 277 Ill. App. 3d911, 922, 661 N.E.2d 476, 483 (1996). The above colloquy indicates that the trial court fullyadvised defendant of his right to testify and reiterated that the decision was defendant's choice tomake. Defendant acknowledged that he understood his right to testify but stated that he did notwish to do so.

In his brief to this court, defendant asserts that at proceedings on his posttrial motion, hiscounsel (who was not his attorney at trial) informed the court that although trial counsel hadadvised defendant not to testify, defendant had actually wanted to take the stand. However, thejudge at defendant's posttrial proceedings also presided over defendant's trial, and the judgerecalled his admonitions to defendant regarding his right to testify. In light of the record,defendant has not shown that he was prevented from testifying in his own defense.

Regarding defense counsel's decision to present only the testimony of defendant's mother,decisions about which witnesses to call and what evidence to present in a particular caseultimately rest with counsel and have long been viewed as matters of trial strategy for whichcounsel is generally immune from ineffective assistance claims. See Richardson, 189 Ill. 2d at414, 727 N.E.2d at 370; People v. York, 312 Ill. App. 3d 434, 437, 727 N.E.2d 674, 677 (2000). An exception to this rule exists when counsel's chosen trial strategy is so unsound that he or shefails to submit the prosecution's case to any meaningful adversarial testing. People v. Reid, 179Ill. 2d 297, 310, 688 N.E.2d 1156, 1162 (1997). Defendant asserts that his trial counsel wasinadequate for failing to present an "alibi defense or any other affirmative defenses." A lack ofinvestigation is to be judged against a standard of reasonableness given all of the circumstances,"'applying a heavy measure of deference to counsel's judgments.'" People v. Kokoraleis, 159 Ill.2d 325, 330, 637 N.E.2d 1015, 1018 (1994), quoting Strickland, 446 U.S. at 691, 80 L. Ed. 2d at695, 104 S. Ct. at 2066. Moreover, what investigation is deemed reasonable depends on theinformed strategic choices of, as well as the information supplied by, the defendant. Kokoraleis,159 Ill. 2d at 330, 637 N.E.2d at 1018. Here, defendant's brief is devoid of specific facts that hiscounsel overlooked or the names of particular witnesses that counsel failed to interview thatwould have lent support to such defense theories. Cf., e.g., People v. Coleman, 183 Ill. 2d 366,398, 701 N.E.2d 1063, 1079 (1998) (failure to interview witnesses may be indicative of deficientrepresentation when witnesses are known to trial counsel and their testimony may beexonerating). Absent such evidence to show that counsel's performance was deficient, we findno violation of Strickland. To the extent that defendant's assertion that "the jury was presentedwith evidence from the prosecution and nothing more" is an argument that counsel failed toengage in adversarial testing of the State's case, we also disagree. See People v. Shatner, 174 Ill.2d 133, 145-46, 673 N.E.2d 258, 263 (1996) (defense counsel was sufficiently adversarial whenhe engaged in opening and closing arguments, cross-examined the State's witnesses andpresented witnesses, including the defendant, on defendant's behalf, and voiced objectionsthroughout trial to adverse evidence).

Defendant next contends that the trial court erred in allowing the jury to view his mother'sstatement because the statement was only used to impeach her credibility and was not admittedas substantive evidence. To review Vida's testimony, she stated she did not accompanydefendant to dispose of a body and although she spoke to Brookfield police, she could not recalldetails of the conversation. Lindenman rebutted that testimony, stating that Vida signed astatement admitting that defendant told her he killed Harast and that she accompanied defendantto the campsite to leave the body there. During deliberations, the jury requested Vida'sstatement. The trial judge allowed the statement to be published to the jury, stating that doing sowould not prejudice defendant's case because Vida had identified the statement in court andacknowledged signing it and because its subject matter was described during testimony.

Defendant argues that Vida's statement was not made under oath and that she deniedknowledge of its contents. The State responds that Vida's statement was not admitted assubstantive evidence but was instead introduced to impeach Vida's credibility after she deniedthat she gave a statement to Lindenman. The State also points out that the jury was instructedthat a witness may be challenged by evidence of a prior inconsistent statement, which the juryshould consider only in determining the weight to be given the witness's testimony.

Generally, an error is waived where a defendant fails to voice a timely objection to thealleged error and fails to include the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176,187, 522 N.E.2d 1124, 1130 (1988). According to the record, the trial judge and counsel for bothsides conferred regarding the jury's requests to see Vida's statement. Although defendant'sposttrial motion included his claim of error regarding Vida's statement, the record indicates thatdefense counsel did not formally object to the publication of Vida's statement to the jury. Therefore, defendant has forfeited his right to argue on appeal that the trial court erred inallowing the jury to view the statement during its deliberations.

Pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), a reviewing court mayoverride considerations of waiver where plain errors or defects affecting substantial rights areinvolved. See also People v. Basler, 193 Ill. 2d 545, 549, 740 N.E.2d 1, 3 (2000). However, theplain error doctrine applies only when the evidence is closely balanced or if the alleged error wasof such a magnitude as to deny the defendant a fair trial. People v. Morgan, 142 Ill. 2d 410, 444-45, 568 N.E.2d 755, 766 (1991). We do not find the evidence in this case to have been closelybalanced. In addition, sufficient limits were placed on the use of Vida's statement by the jury viathe trial court's instruction. See People v. Herron, 218 Ill. App. 3d 561, 574-75, 578 N.E.2d1310, 1320 (1991) (trial court properly allowed jury to review prior inconsistent statement whenjury was instructed that statement was not to be considered as substantive evidence). Therefore,on this record, we do not find that plain error occurred.

Defendant's remaining contentions on appeal involve his 100-year prison sentence. Defendant was convicted of first degree murder, which carries a sentence of between 20 and 60years in prison pursuant to section 5-8-1(a)(1)(a) of the Unified Code of Corrections (the Code)(730 ILCS 5/5-8-1(a)(1)(a) (West 1998)). Under section 5-8-2(a) of the Code, which providesfor extended-term sentencing, the court was allowed to sentence defendant to between 60 and100 years in prison if the court found the existence of one or more factors in aggravation set forthin section 5-5-3.2(b). 730 ILCS 5/5-8-2(a)(1), 5-5-3.2(b) (West 1998). One such factor under 5-5-3.2(b) is when "a defendant is convicted of any felony and the court finds that the offense wasaccompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." 730ILCS 5/5-5-3.2(b)(2) (West 1998). Based upon its finding of that factor in this case, the courtsentenced defendant to 100 years in prison.

Defendant argues that Apprendi requires that the factual question of whether Harast'smurder was accompanied by exceptionally brutal or heinous behavior indicative of wantoncruelty be decided by a jury and proved beyond a reasonable doubt. He asks this court to find thestatutory sentencing scheme outlined above to be unconstitutional under Apprendi and to vacatehis sentence and remand this case to the trial court for resentencing.

In Apprendi, the Supreme Court addressed a New Jersey statute that classified possessionof a firearm for an unlawful purpose as a second degree offense punishable by 5 to 10 years inprison. Another statute, known as New Jersey's "hate crime" law, provided for imprisonment ofbetween 10 and 20 years if the trial judge determined by a preponderance of the evidence that thedefendant "'in committing the crime acted with a purpose to intimidate an individual or group ofindividuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.'" Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351, quoting N.J. Stat. Ann.