People v. Willis
Case Date: 10/28/1998
Court: 1st District Appellate
Docket No: 1-96-0697
THIRD DIVISION October 28, 1998 (NUNC PRO TUNC AS OF SEPTEMBER 23, 1998) No. 1--96--0697 Plaintiff-Appellee, v. TERRANCE WILLIS, Defendant-Appellant. Circuit Court of Cook County. Honorable Daniel Locallo, Judge Presiding. JUSTICE BURKE delivered the opinion of the court: Following a jury trial, defendant Terrance Willis was convictedand sentenced to 40 years' imprisonment for the attempted firstdegree murder of Demetrious McTizic, 10 years' imprisonment forthe attempted first degree murder of Tyrone Rush, the sentencesto run consecutively, and 30 years' imprisonment for armedviolence, the sentence to run concurrently with defendant's40-year sentence.(1) Defendant appeals his convictions andsentences, contending that: the trial court erred in allowing thejury to hear McTizic's and his doctor's testimony at the CookCounty Hospital, the prejudicial effect of which depriveddefendant of a fair trial; defendant was not proven guilty beyonda reasonable doubt of the attempted murder and aggravated batterywith a firearm of McTizic and Rush, and armed violence againstMcTizic; and the trial court abused its discretion in sentencingdefendant to consecutive sentences and an extended sentence. Forthe reasons set forth below, we affirm. On July 27, 1994, defendant was arrested after a gang-related shooting incident,and subsequently indicted. On December 11, 1995, defendant filed a motion in liminerequesting that the trial court deny a motion by the State to allow McTizic and hisphysician's testimony to be taken at the Cook County Hospital trauma ward.Defendant argued that he would be prejudiced by the taking of this testimony in thehospital because: McTizic's injuries would be "unduly highlighted without addinganything of probative value"; the jury would concentrate on McTizic's injuries morethan on whether defendant was guilty or not guilty; "[b]y taking the extraordinarymeasure of transporting the jury to the hospital," the members of the jury would begiven the impression that the injuries of the witness are more important than thetestimony they will hear in court"; the jury would be exposed to other patientswhose "many and varied traumatic injuries *** could horrify or disgust members ofthe jury"; hospital nurses and doctors might "convey personal opinions to the juryand subvert the objective decision making process"; the trial court would not beable to control "the unknown and unpredictable circumstances that could prejudicethe defendant"; and the jury would be given the impression that McTizic's conditionwas due only to the initial injury and not to the "many intervening circumstancesthat caused injury" to him. Defendant also argued that McTizic's testimony was notcrucial to the State's case because McTizic never made an identification ofdefendant; taking McTizic's physician's testimony in the hospital would prejudicedefendant; and defendant would further be prejudiced because the jury would seedefendant in the custody of the sheriff. Defendant contended that there werealternative methods of taking McTizic's testimony, "such as videotape testimony,deposition testimony, or stipulated testimony," which defendant offered to do. Thetrial court denied defendant's motion. At trial, Rush testified that he became a member of the Gangster Disciples streetgang when he was 16 years old, remained a member for about five years and was nolonger a member by the summer of 1994. McTizic and Deandre Bishop were Rush'sfriends, and McTizic and Deandre were brothers. On the evening of July 27, 1994,while it was still light out, Rush and Deandre drove in Rush's car to 7751 SouthPhillips in Chicago to pick up McTizic where McTizic lived with his girl friend.Rush had never been in the area before. When they arrived, Rush waited in the car,which was double-parked with the windows rolled up and the motor running, whileDeandre went inside to get McTizic. Rush further stated that after Deandre went inside, two men approached Rush's carfrom each side. The man standing on the driver's side of the car, who had his handsunder his sweat shirt, was defendant. Rush had known defendant for a period ofabout three or four years before this incident because defendant's father had livedin the same neighborhood as Rush when Rush was about 13 years old, but Rush had notseen defendant since Rush joined the Gangster Disciples. Rush "raised the windowdown" on the car's passenger side, and the man asked Rush, "Is you a psyche,"meaning are you "Folks" or Gangster Disciples, and Rush told the man, "I ain'tnothing." The man then told Rush to "pull over," and Rush said, "I will pull overto show you that I ain't nothing." The man near Rush's passenger window also tolddefendant, "Don't shoot him yet." Rush then pulled the car over near the corner ofPhillips Street. Theafter, Rush saw Deandre and McTizic in his side mirror coming out of theapartment building, and when 7 to 10 boys came "from everywhere" and jumped onDeandre, Deandre fell and then ran, and then jumped on the trunk of Rush's car.McTizic was "a couple seconds behind" Deandre. Between 7 and 10 people startedhitting McTizic on the head "with bottles and stuff." Rush then saw defendant shootat his car, the window shattered and he ducked; Rush then grabbed the steeringwheel and the left side of his face and thought he was shot; Rush turned the corneron 78th and Phillips, at which time Deandre jumped on the back of the car; and Rushdrove slowly so that McTizic could catch up, but McTizic only made it to the doorhandle of the car and fell in the street on the side of Rush's car by the backwheel. Rush further testified that he had seen defendant stand over McTizic and shootdownward at him; McTizic was lying on the ground "balled up"; and Rush did not seeanyone else on the scene with a gun, except defendant. At that time, Rush "justtook off" and drove west on 78th Street to the corner of the next block, where hiscar hit a van. Deandre then "flew off of the car and went into the tree." BothRush's car and the van were "totaled." Rush had "messed up" his legs, but climbedout of the car, started running down Yates, ran as far as he could, and then felldown and played dead. Rush also stated that he spoke to some police officers on the scene, but did notgive a description of defendant or defendant's name. An ambulance took Rush to CookCounty Hospital; Rush's jaw was cut open and he had glass in his face. Rush spoketo Officers Boylan and McDermott in the emergency room, but did not tell themdefendant's name. Rush was released from the hospital the next day, the police cameto his home and asked him if he could identify defendant, he subsequently told thepolice that defendant had been wearing green pants and a "red little stripe on theshirt," and he viewed a lineup at police headquarters and identified defendant.Rush further testified that he had to wear a patch on his face for a month afterthe shooting incident and, at the time of trial, he still had glass in his leftcheek. The trial court subsequently transported the jury and defendant to a conferenceroom at Cook County Hospital to hear McTizic's testimony. McTizic testified that onJuly 27, 1994, he was living at 7751 South Phillips with his girl friend, AllenaTaylor, and her mother. At about 8 p.m., Deandre and Rush came to pick him up. WhenMcTizic and Deandre left McTizic's apartment building, there were about 15 peoplearound Rush's car, McTizic and Deandre "rushed to the car" and, when McTizic got tothe car, someone yelled, "Capri killer." As McTizic tried to open the door of thecar, Rush pulled away and McTizic was dragged about three feet by the car and thenfell. Deandre was able to jump on top of the car as Rush pulled away. McTizic gotup, tried to run and heard gunshots going off. He covered his head and the lastgunshot hit him in the ear and he fell. While he was lying on the ground, peoplebegan gathering around him. An ambulance arrived and took him to Cook CountyHospital, where it was determined that he had been shot two times in the abdomen,once in the left shoulder, once in his left ear and once in his right elbow.McTizic further stated that he had been under continuous medical care since thatday, he could walk but not like he used to, and he could no longer eat normally.McTizic also stated that he was not in a gang on the day of the shooting incident,but had been in the Gangster Disciples before. Dr. John Barrett, a trauma surgeon and the director of the trauma center at CookCounty Hospital, testified that he was McTizic's physician and that McTizic wasbrought to the hospital on July 27, 1994, with multiple gunshot wounds to his head,his right shoulder and his abdominal cavity. The bullet wounds to McTizic'sabdominal cavity were life threatening injuries because they perforated McTizic'sintestines and he would have died if an operation had not been performed on him.Dr. Barrett further stated that McTizic's gall bladder was removed and his smallintestine had to be shortened from 25 feet to 3 feet; the surgeons attempted torepair McTizic's duodendum, but failed; McTizic had 8 to 10 operations and had beenunder continuous medical care; McTizic was still in the intensive care unit becauseof his need for constant intensive care; and the complications experienced byMcTizic were directly related to his gunshot wounds. Thereafter, the jury returned to the courtroom. Allena Taylor then testified thatafter McTizic and Deandre left her apartment on the day of the shooting, she heardgunshots, and went outside and saw McTizic lying on the ground "balled up." John Stella, a forensic investigator for the Chicago Police Department's Crime Lab,testified that he collected three cartridge cases from the crime scene. Nofingerprints were lifted from the cartridge cases because the intense heat fromfiring would have dissipated the fingerprints, if any. Officer Robert Furlong testified that he investigated the accident between Rush'scar and the van. The van was "smashed up" and the car had "extensive damage."Furlong found Rush and Deandre lying on the grass alongside the car. Rush's facewas bleeding and was "faint." Rush told Furlong that the shooter was wearing agreen shirt with a red orange emblem on it and green pants. Furlong further testified that he spoke to Deandre who "was very upset almost tothe point of going into shock" and was crying, trembling and shaking. At that time,Deandre told Furlong that his name was Emmett Carter. Officer Furlong and two otherpolice officers, Otten and Coleman, toured the area for five or six blocks around78th and Yates in an unmarked squad car with Deandre. On the corner of 78th andPhillips, there was a large group of 15 to 20 people, including 7 or 8 young blackmales. Deandre told them to stop and back up, and then identified defendant who wasstanding in the group. Defendant was on a "little bike" at the time. OfficerFurlong walked through the crowd, trying "to make it look like *** [he] wasn'tgoing for anybody in particular," and went up to defendant and identified himselfas a police officer. Furlong searched defendant and did not find anything on him.Furlong then handcuffed defendant and told him why he was being arrested. Furlongfurther stated that Deandre identified defendant as the shooter. Detective James Boylan testified that the Black Stones street gang frequented thearea of "73rd Street to 83rd Street, from Yates east to approximately Colfax." TheGangster Disciples frequented the area of "73rd Street to 83rd Street, from Colfaxeast to the lake." The area of 78th and Phillips was Black Stones territory. The"People" were gangs aligned with the Vice Lord street gang and the "Folks" weregangs aligned with the Gangster Disciples. The Black Stones were aligned with thePeople. During the summer of 1994, the Gangster Disciples were at war with theBlack Stones. Defendant had told Boylan that he was affiliated with the BlackStones on June 9, 1994. Boylan subsequently went to the hospital and interviewedAllena Taylor and Rush in the emergency room. Rush told Boylan that Deandre jumpedon the hood of the car and yelled for Rush to drive off. Rush also told Boylan thathe turned westbound on 78th Street, heard a volley of gunfire, saw several blackmen with guns in their hands, and one of the men with a gun who approached his car"was medium complected [sic] about 19 to 20 years old wearing a green fuzzy hatwith the brim turned up, red shirt and blue jeans." Boylan later interviewedDeandre. The next day, Boylan conducted a lineup, which included defendant. Rushviewed the lineup and identified defendant within seconds. Deandre testified that he was McTizic's brother and that Rush was his friend.Deandre physically indicated how he had looked behind him after jumping on Rush'scar and had seen defendant's face and saw defendant shoot McTizic five times whileMcTizic was "[b]alled on the floor covering his head." Deandre was a car lengthaway when he saw McTizic being shot. Deandre also testified that defendant was theonly person with a gun. After the police arrived, Deandre told the police what hadhappened and told them his name was Emmett Carter because he was too scared to givehis real name. The police placed Deandre in their car and handcuffed him for aboutfive minutes, then took the handcuffs off. Deandre rode with the police officers tothe corner of 78th and Phillips, Deandre then told the police to back up afterdriving past a group of people, and identified defendant in the group to thepolice. The police then "grabbed" defendant and asked Deandre if he was certain ofhis identification and Deandre said he was sure that defendant was the one who shotMcTizic. The State rested, and defendant called Officer Marvin Otten as a witness. Ottentestified that he spoke to Deandre at 78th and Yates. Deandre gave a description ofthe shooter as a male black wearing green pants and a green shirt with orange orred writing. Otten also corroborated Furlong's testimony. Defendant then rested. The jury subsequently found defendant guilty of theattempted first degree murder of McTizic and Rush, aggravated battery with afirearm of McTizic and Rush, and armed violence against McTizic. At his sentencing hearing, defendant moved for a new trial, arguing, among otherissues not raised in this appeal, that he was prejudiced as a result of the jury'svisit to the hospital to hear McTizic's and Dr. Barrett's testimony. The trialcourt denied defendant's motion, stating, in pertinent part: The trial court then heard arguments in aggravation and mitigation. The State requested thatdefendant be sentenced to an extended term because of the extremely brutal nature of the crimes,and argued that no facts in mitigation existed while several factors in aggravation did. Defendantcalled witnesses in mitigation and his counsel argued that there were factors in mitigation,particularly hardship to defendant's family, his nonviolent nature as perceived by his family, andhis rehabilitative potential. Defendant made a statement that he "condone[d] the jury's feelings"regarding "the bodily harm done to the guy *** in the hospital," but that he did not commit thecrimes and he wished there was some way for him to prove to the court that he did not committhe crimes. Thereafter, the trial court, in sentencing defendant, stated: The trial court sentenced defendant to 40 years' imprisonment forthe attempted first degree murder of McTizic and 10 years for theattempted first degree murder of Rush, the sentences to runconsecutively. The trial court found that the aggravated batterywith a firearm counts merged into the attempted murder counts.The trial court also sentenced defendant to 30 years'imprisonment for armed violence, to run concurrently withdefendant's 40-year sentence for the attempted murder of McTizic.This appeal followed. Defendant first contends that the trial court erred in allowingthe testimony of McTizic to be taken at Cook County Hospital.Defendant argues that the jury's hearing of McTizic's testimonyat the hospital had very little probative value "but very highprejudicial value" and the jury was unduly influenced by thehospital setting, thereby depriving defendant of his right to atrial by an impartial jury. Defendant further contends that underRule 804 of the Federal Rules of Evidence, McTizic wasunavailable as a witness and the trial court abused itsdiscretion in allowing McTizic to testify. Defendant alsomaintains that because Supreme Court Rule 414 provides that thecourt may order a witness to submit to an evidence deposition ifit is possible that the witness would be unavailable for thetrial, the trial court erred in ordering the jury to travel tothe hospital to hear McTizic's testimony rather than using thealternative methods of taking McTizic's deposition or byaffidavit or allowing defendant to stipulate to McTizic'stestimony, which would have avoided "the undue prejudicial effectof the hospital visit." The State argues that the trial court acted within its discretionin allowing the jury to travel to the hospital to hear McTizic'stestimony because he was unable to leave the hospital. The Statemaintains that it was not required to accept defendant's offer ofa stipulation, it had the right to prove every element of itscase and McTizic provided testimony that defendant's actionscaused him great bodily harm and evidence regarding the eventssurrounding the crimes. The State further contends that the trialcourt "took strict measures to ensure that the jury was notexposed to" unnecessary factors while at the hospital and that"defendant was protected by the careful manner of theproceedings." It is well settled that "the prosecution is not disabled at trialfrom proving every element of the charged offense and everyrelevant fact, even though the defendant fails to contest anissue or is willing to stipulate to a fact." People v. Bounds,171 Ill. 2d 1, 46, 662 N.E.2d 1168 (1995). For example, in Peoplev. Speck, 41 Ill. 2d 177, 201, 242 N.E.2d 208 (1968), where thedefendant had agreed to stipulate to the identity of thedecedents involved and the cause of their deaths, the defendantmaintained that it was prejudicial error by the trial court toallow the admission of photographs of the bodies of the deceasedwomen because they lacked any probative value and were soshocking in nature that they would inflame the passions of thejurors, and to allow the testimony of a pathologist and thevictims' relatives. The Speck court, in rejecting the defendant'sargument as to the admission of the photographs and testimony ofthe pathologist, held that the State "had the right under thedefendant's plea of not guilty to prove every element of thecrime charged and was not obligated to rely on the defendant'sstipulation." Speck, 41 Ill. 2d at 201. The Speck court furtherstated: "A court, in its discretion, may permit a jury to view evidenceoutside of the courtroom." People v. Loggins, 257 Ill. App. 3d475, 481, 629 N.E.2d 137 (1993). In the present case, we find that the trial court did not abuseits discretion in allowing the jury to hear McTizic's testimonyat the hospital. While hearing McTizic' testimony in the hospitalsetting may have been upsetting to some jurors, the State had theright to present evidence of every element of the crimes chargedagainst defendant, which included McTizic's testimony regardingthe severity of his bodily injuries and his memory of theincident in which he was injured, notwithstanding thatalternative methods for obtaining McTizic's testimony, as arguedby defendant, existed. The State was entitled to prove thiselement and we believe that the probative value of this testimonyoutweighed any prejudicial effect. Moreover, we fail to see howviewing McTizic at the hospital would be any different thanviewing him in a courtroom in light of the fact that his medicalcondition would have required him to be accompanied by medicalpersonnel and machines in the courtroom, as he was at thehospital. We briefly note that the cases and evidentiary rules relied uponby defendant are completely inapplicable to the issue at bar.Defendant cites to Rule 804 of the Federal Rules of Evidence (28U.S.C.A. Rule 804) which contains a definition of whatconstitutes the unavailability of a witness. Defendant providesno authority supporting why federal rules of evidence areapplicable in a State criminal proceeding. Moreover, Rule 804does not limit a State trial court's discretion in allowing ajury to hear the testimony of a witness at a hospital and, infact, the clear purpose of Rule 804 is to establish whenstatements by an unavailable declarant are admissible as anexception to the hearsay rule. Similarly, nothing in SupremeCourt Rule 414 (134 Ill. 2d R. 414), which provides that a trialcourt may order an evidence deposition of an unavailable witness,specifies any prohibition of where a deposition may be taken, anddefendant fails to cite to any authority in support of hisargument otherwise. Defendant also relies on McDonald v. Pless, 238 U.S. 264, 59 L.Ed. 1300, 35 S. Ct. 783 (1915), People v. Preston, 76 Ill. 2d274, 391 N.E.2d 359 (1979), and People v. Nuccio, 54 Ill. 2d 39,294 N.E.2d 276 (1973), for the proposition that "when a jury isunduly influenced by events external to the jury membersthemselves, such as the hospital setting in this case," his "6thamendment right to trial by [an] impartial jury is compromised."However, these cases are distinguishable from the present case;none of them involved the propriety of transporting a jury to ahospital to hear the testimony of a crime victim. McDonald, 238U.S. at 269 (the Court held that the losing party in a casecannot use the testimony of jurors to impeach their verdict inorder to have a new trial); Preston, 76 Ill. 2d at 278 (the courtconsidered the propriety of a supplemental instruction given tothe jury, the "alleged failure of the trial court to explorefully a response made by a juror during the polling of the jury,"and the trial court's refusal to admit a post-trial deposition ofa juror); Nuccio, 54 Ill. 2d at 40-41 (the court considered thedefendant's claims that the trial court erred in allowing theprosecution 13 peremptory challenges and failed to questionjurors regarding an allegation of jury contamination, he wasdeprived of a fair trial by prejudicial comments made by theprosecutor in closing argument, the prosecution knowingly offeredfalse and prejudicial testimony, and the evidence wasinsufficient to prove him guilty of murder). Defendant alsocontends that the trial court erred in allowing Dr. Barrett totestify at the hospital, "thereby buttressing the victim'stestimony and increasing the prejudicial effect." Defendantargues that the trial court's wish to make testifying convenientand accommodating to Dr. Barrett "trampled on the constitutionalright of the [defendant] to a fair and impartial trial."Defendant asserts that convenience and accommodation are not"enveloped in the definition of availability" within "the FederalRules of Evidence, Supreme Court Rules or case law." Defendantargues that Dr. Barrett's testimony dealt exclusively withMcTizic's injuries and "had no probative effect as it related to"defendant. The State argues that the trial court properly acted within itsdiscretion, and that "it was natural and proper for the trialcourt to accommodate Dr. Barrett and allow him to testify" at thehospital. The State maintains that Dr. Barrett's testimony wasimportant to demonstrate the grave bodily harm experienced byMcTizic. The State also argues that because Dr. Barrett'stestimony would have been the same in the hospital or thecourtroom, defendant was not prejudiced by the jury hearing histestimony at the hospital. The trial court has the discretion to allow the jury to heartestimony outside of the courtroom. Loggins, 257 Ill. App. 3d at481. From the facts presented here, especially considering thefact that the jury was already in the hospital to hear McTizic'stestimony, we find that the trial court did not abuse itsdiscretion in allowing Dr. Barrett to testify in the conferenceroom at the hospital. Dr. Barrett's testimony supported anelement of proof of the State's case against defendant, i.e.,that McTizic suffered great bodily harm, and even thoughBarrett's testimony may have been "difficult" for the jury tohear becaue of the nature of McTizic's bodily injuries, "[a]party cannot have competent evidence excluded merely because itmight arouse feelings of horror and indignation in the jury."Speck, 41 Ill. 2d at 202, quoting Jenko, 410 Ill. 478. Moreover,we find no undue influence flowing from the taking of Dr.Barrett's testimony at the hospital because the jury had alreadyheard McTizic's testimony in the hospital surroundings and anyalleged undue influence would have been present as a result ofhearing McTizic's testimony there, as discussed above. We briefly note that defendant again relies on Rule 804 of theFederal Rules of Evidence and Supreme Court Rule 414 in arguingthat the convenience and accommodation of Dr. Barrett are not"enveloped in the definition of availability." Defendant'sargument is meritless because, not only in light of ourdiscussion above regarding the inapplicability of Rule 804, Dr.Barrett was not an "unavailable" witness, Rule 414 isinapplicable since Barrett was not an unavailable witness, andthe trial court's decision to accommodate Dr. Barrett was withinthe trial court's discretion. Defendant's reliance on McDonald,Preston and Nuccio is also misplaced for the same reasons statedabove regarding McTizic's testimony. Defendant next contends that the jury erred in finding him guiltybeyond a reasonable doubt of the crimes charged and that, absentthe prejudice imposed upon defendant by the trial court inallowing the jury to hear McTizic's and Dr. Barrett's testimonyat the hospital, the jury would not have found him guilty.Defendant argues that Rush was not a credible witness based onRush's "multiple convictions, pending cases, gang membership, andlittle if any opportunity to observe" the shooter. Defendant alsoasserts that Rush was not credible because, after being drivenaround by the police to look for the shooter immediately afterthe shooting, Rush failed to tell the police that he knewdefendant was the shooter.(2) Defendant further argues thatbecause McTizic did not identify defendant "as being the shooteror even being present as one of the 15 gang members who attackedhim," Rush's testimony identifying him was uncorroborated.Accordingly, defendant maintains that the testimony of McTizicand Rush was not enough to prove him guilty beyond a reasonabledoubt. Defendant does not make any argument regarding Deandre'stestimony. Defendant lastly argues that "[t]here was no testimonyoffered linking [him] to the injuries suffered by Mr. Rush and nobasis for an accountability or transferred intent theory as wellas no jury instructions in that regard." The State contends that the jury properly found defendant guiltybeyond a reasonable doubt, arguing that considering the evidencepresented in the light most favorable to the State, "there is noreasonable doubt of defendant's guilt" and that the jury was freeto accept the witnesses' testimony and that the jury believedthat Rush and Deandre properly identified defendant. "The standard to be applied in considering the sufficiency of theevidence is 'whether, after viewing the evidence in the lightmost favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond areasonable doubt.'" (Emphasis in original.) Bounds, 171 Ill. 2dat 46, quoting People v. Collins, 106 Ill. 2d 237, 261, 478N.E.2d 267 (1985). The credibility of witnesses is within thesole province of the trier of fact. People v. Steidl, 142 Ill. 2d204, 226, 568 N.E.2d 837 (1991). Here, the State's evidence against defendant was substantial.The State presented the identification testimony of Rush andDeandre regarding the shooting incident. Deandre testified thatdefendant was the only person he saw with a gun, Rush and Deandresaw defendant stand over McTizic and shoot him, both Rush andDeandre testified that defendant attempted to shoot Rush, andpolice officers witnessed Rush and Deandre's identification ofdefendant after the crimes. The State also presented unrefutedtestimony showing that defendant was a member of the Black Stonesgang and the gang was involved in a "war" with the GangsterDisciples at the time of the incident in question. After viewingthe evidence in the light most favorable to the prosecution, wefind that it is clear that a rational trier of fact could havefound the essential elements of the crimes with which defendantwas charged beyond a reasonable doubt. Briefly, we note that defendant's argument, that the jury'sverdict would have been different if the jury had not heardMcTizic's and Dr. Barrett's testimony at the hospital, isunconvincing. As discussed above, the trial court did not abuseits discretion in allowing the jury to hear testimony at thehospital and, moreover, even absent the testimony of McTizic andDr. Barrett, the State presented overwhelming evidence ofdefendant's guilt which a rational trier of fact could have foundthat defendant committed the crimes for which he was charged.Therefore, we conclude that the jury's verdict would not havebeen different. Defendant also contends that the trial court erred in sentencinghim to consecutive sentences. Defendant argues that the trialcourt, prior to sentencing him to consecutive sentences, wasrequired, but failed, to make specific findings of fact in therecord that "having regard to the nature and circumstances of theoffense and the history and character of the defendant, it is theopinion [of the court] that such a term is required to protectthe public from further criminal conduct by the defendant." The State contends that defendant waived this issue by failing tofile a written post-sentencing motion within 30 days of the trialcourt's sentence. Alternatively, the State maintains that thesentence imposed by the trial court was not an abuse ofdiscretion. The State argues that consecutive sentences areproper when a defendant has committed a Class X or Class 1 felonyand has caused great bodily injury and, here, defendant wasconvicted of two counts of attempted murder, a Class X felony,and defendant caused great bodily harm. The State further arguesthat there is nothing in the sentencing statute that requires thetrial court to recite specific language in imposing consecutivesentences. Failure to raise a sentencing issue at the time of sentencing orin a motion to reconsider constitutes waiver for purposes ofappeal. People v. McCleary, 278 Ill. App. 3d 498, 501, 663 N.E.2d22 (1996). We find that defendant has waived these issues byfailing to raise objections to his sentence at his sentencinghearing or in a post-sentencing motion to reduce sentence. Notwithstanding defendant's waiver, we also find his argumentswithout merit. It is well settled that "[t]he sentence imposed bya trial judge is entitled to great deference. *** Its ruling willnot be disturbed absent an abuse of discretion. *** A sentencingjudge is presumed to have considered all relevant factors absenta contrary showing in the record." People v. Back, 239 Ill. App.3d 44, 80, 605 N.E.2d 689 (1992). The Unified Code of Corrections states, in pertinent part: Attempted murder is a Class X felony for the purposes ofconsecutive sentencing. People v. Perkins, 274 Ill. App. 3d 834,836, 655 N.E.2d 325 (1995). "Under section 5-8-4(a) of theUnified Code of Corrections ***, a circuit court must imposeconsecutive sentences where multiple offenses are part of asingle course of conduct without a substantial change in thecriminal objective, when (1) one of the convictions is a Class Xor Class 1 felony and the defendant inflicted severe bodilyinjury, or (2) one of the convictions is for either aggravatedcriminal sexual assault or criminal sexual assault." (Emphasis inoriginal). People v. Arna, 263 Ill. App. 3d 578, 589, 635 N.E.2d815 (1994). We find that the trial court here did not err in imposingconsecutive sentences and, in fact, the trial court would haveerred if it had not imposed consecutive sentences. The evidenceclearly showed that defendant committed the attempted murder, aClass X felony, of both Rush and McTizic in a single course ofconduct without a substantial change in his criminal objectiveand caused severe bodily injury to McTizic. Accordingly, section5--8--4(a) of the Code required the trial court to imposeconsecutive sentences. We briefly address defendant's argument that section 5--8--4(b)required the trial court to make specific findings that theconsecutive terms were necessary to protect the public, and wefind it unpersuasive. The statute provides that "[t]he courtshall not impose a consecutive sentence except as provided for insubsection (a)." 730 ILCS 5/5--8--4(b). Therefore, section5--8--4(b), rather than imposing additional requirements on thetrial court imposing consecutive sentences under section5--8--4(a), merely requires the trial court to make thesefindings in the event it imposes a consecutive sentence absentthe conditions set out in section 5--8--4(a). Lastly, defendant contends that the trial court abused itsdiscretion in sentencing him to an extended term. Defendantargues that the trial court failed to take into accountmitigating evidence and that the trial court abused itsdiscretion in finding defendant's conduct to be exceptionallybrutal or heinous. Defendant asserts that the trial court'sdescription of defendant's conduct that he "stood over and fireddown at the victim" was not supported by the record. Defendantmaintains that even if the evidence is considered in the lightmost favorable to the State, the "shooter's" conduct was not"exceptionally brutal, heinous or wantonly cruel or evenout-of-the-ordinary." The State contends that an extended sentence was appropriatebecause defendant's conduct was exceptionally brutal or heinous.The State argues that the trial court expressed its intent toprotect the public from defendant at sentencing. The Statemaintains that the trial court properly sentenced defendant andexplained its reasoning while doing so. The State further arguesthat the mitigating factors presented by defendant "did not standmuch chance of tipping the balance greatly in his favor" incomparison with the brutal nature of his crimes. The State alsoargues that the trial court did take into account the mitigatingfactors in sentencing defendant. The State further argues thatthe record shows that the trial court's description ofdefendant's shooting of McTizic was correct. As this court stated in People v. Champs, 273 Ill. Ap. 3d 502,652 N.E.2d 1184 (1995): We find that the trial court did not abuse its discretion insentencing defendant to an extended term. The trial court madespecific findings that defendant's actions "were exceptionallybrutal and heinous and indicative of wanton cruelty." The factthat defendant has a different opinion of the severity of hisactions does not show that the trial court abused its discretion. We also reject defendant's argument that the trial court'scharacterization of the evidence of defendant's actions wasincorrect based on the court's statement that defendant "stoodover an unarmed, defenseless Demetrios [sic] McTizic and fireddown at him." Contrary to defendant's argument, there was ampleevidence in the record, based on Rush's and Deandre's testimony,that McTizic was lying on the pavement while defendant stood overhim and shot him several times. We therefore hold that the trialcourt did not abuse its discretion in sentencing defendant. For the reasons stated, we affirm the judgment of the circuitcourt. Affirmed. CAHILL, P.J., and LEAVITT, J., concur. Footnotes: 1. Defendant was also found guilty of two counts of aggravated battery with a firearm, whichmerged with his attempted murder convictions. 2. Defendant has confused Rush's and Deandre's testimony; Deandre, not Rush, accompanied thepolice and identified defendant in a group of people while touring through the neighborhood. |
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