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Docket No. 91938-Agenda 7-March 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
SCOTT HOPKINS, Appellee.

Opinion filed June 6, 2002.

JUSTICE FITZGERALD delivered the opinion of the court:

The question before us in this case is whether defendant'sextended-term sentence, pursuant to section 5-8-2(a)(1) of theUnified Code of Corrections (730 ILCS 5/5-8-2(a)(1) (West1994)), complies with the rule announced in Apprendi v. NewJersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).We find that it does.

Defendant, Scott Hopkins, was convicted of first degreemurder (720 ILCS 5/9-1 (West 1994)), armed robbery (720 ILCS5/18-2(a) (West 1994)), aggravated battery (720 ILCS 5/12-4(West 1994)), and home invasion (720 ILCS 5/12-11 (West1994)). The circuit court of De Kalb County sentenced defendantto an extended term of 75 years' imprisonment on the first degreemurder conviction and a concurrent 20-year sentence on the armedrobbery and the home invasion convictions. The appellate courtaffirmed the convictions, vacated the 75-year sentence, andremanded the cause with directions. No. 2-99-0678 (unpublishedorder under Supreme Court Rule 23). The State filed a petition forleave to appeal, raising one issue, the propriety of the appellatecourt's reversal of defendant's extended-term sentence. 177 Ill. 2dR. 315(a). In responding to the petition for leave to appeal,defendant requested cross-relief on the question of whether theappellate court erred in affirming his conviction. 177 Ill. 2d R.315(a); 155 Ill. 2d R. 318(a). For the following reasons we affirmin part and reverse in part.

BACKGROUND

On July 29, 1995, police found the body of 70-year-oldBurdette Johnson. He had been hit over the head with a frying panand stabbed more than 15 times with a screwdriver to the chestand neck. He remained in a coma for nearly a month beforesuccumbing to his wounds.

Defendant was charged with first degree murder, aggravatedbattery, armed robbery, and home invasion. On September 20,1996, after a jury trial, he was found guilty on all counts. OnDecember 26, 1996, the trial court granted defendant's motion fora new trial based on the State's failure to disclose to defensecounsel that a witness, Mark Slater, had been promised that hewould not be prosecuted in exchange for his testimony.

Defendant's second trial began on February 1, 1999. At thesecond jury trial, Glen Butler testified that Johnson lived on thefirst floor of a two-unit home. Butler rented the second-floorapartment from Johnson. Mark Slater, his roommate, lived withhim in the upstairs apartment. Slater's friend, June Gibson, oftencame to the apartment and kept some of her belongings there. OnJuly 29, 1995, at approximately 7 p.m., Butler was with Johnsonin the downstairs apartment. Slater and defendant were in theupstairs apartment drinking beer. After telling Slater and defendantto keep the noise level down because they were disturbingJohnson, Butler left to go to work around 8:30 p.m.

While in the upstairs apartment, defendant asked Slater ifJohnson had any money. Defendant then told Slater that he wasgoing to get some money from Johnson's apartment. At that point,Slater testified, he left the apartment and went to visit somefriends, Tim and Mary Cunz. He remained at the Cunz's forapproximately 5 or 10 minutes before walking a few blocks toHallgren Park. While at the park, Slater saw Gibson drive by.After about 15 minutes he returned to his apartment.

The defendant returned to the apartment approximately 10minutes after Slater. He asked Slater if he wanted some beer.Defendant then went downstairs and returned with a six-pack ofbeer. After finishing the beer, defendant went downstairs to getsome cigarettes. When he returned the second time, Slater saw thathe was wearing a pair of white surgical gloves. He told Slater notto go downstairs because "it was not a pretty sight." Slater testifiedthat defendant told him that he stabbed Johnson in the shoulder,temple and the neck. Defendant had scratches both on his neck andhis shoulder.

Defendant and Slater left the apartment together and walkedto Hallgren Park. At the park, Slater saw defendant throw awashcloth with some stains on it into a garbage can. Slater thentold defendant that he was going to return to the house to check onJohnson. He found Johnson covered in blood and called 911.Slater waited at the scene until the ambulance and the policearrived. The police checked Slater for the presence of blood butfound none. Slater did not tell the police that defendant stabbedJohnson until he was transported to the police station for furtherquestioning.

At the police station, Detective Gary Spangler examinedSlater's clothes and body for the presence of blood. DetectiveSpangler found no blood on Slater. Based on Slater's interview,police officer's located a rag, a piece of cloth, and a screwdriverin a trash can in Hallgren Park.

June Gibson, a recovering crack cocaine addict, testified thatduring the mid-afternoon of July 29, 1995, she saw Slater anddefendant drinking beer in the backyard of Johnson's house. Laterthat evening, she and a friend, Jenny, drove by Hallgren Park andsaw Slater alone. As she drove past him, Slater waved. About 30to 40 minutes later, Gibson and Jenny stopped at the park and gaveSlater some cigarettes. They then stopped at the Cunz's residenceso that Gibson could drop off a dress before going to the De KalbMotel.

At the motel, Gibson waited until a girlfriend, Brenda Parkins,arrived. Gibson and Parkins left the motel to buy some beer andcigarettes and drove past Johnson's house. After noticing that thelights were off, Gibson decided to check on Johnson. Gibsontestified that she entered the house through Butler's apartment.When she entered, there were still no lights on in Johnson'sapartment. However, when she looked downstairs two minuteslater, all of the lights and the television were on.

As she descended the stairs, she called for Johnson and hearda noise that sounded like someone falling. When she reachedJohnson's apartment, she saw Johnson, lying on the living roomfloor, reaching for his cane. She also saw defendant, who was notwearing a shirt, and was gripping the handle of a screwdriver.When defendant turned toward her, Gibson ran to the apartmentupstairs and then down the back stairs to the car.

Gibson did not tell Parkins what she had seen. Instead, theydrove around for a while before returning to Johnson's house. Bythat time, the police had arrived and taped off the area around thehouse. Gibson did not talk to any of the police officers at thescene. Instead, she testified, she returned home and called 911.She asked the 911 operator why the area was roped off. When theoperator told her that she could not provide Gibson with anyinformation, Gibson responded, "I just want to know ifsomebody's dead."

In response to the 911 call, Officer Johathan Castilow went tothe De Kalb Motel to see June Gibson. He testified that she toldhim that "Scott" had hurt Johnson. Gibson refused to go to thepolice station with Officer Castilow. Instead, Gibson prepared astatement for the police two weeks following the incident. Shestated in the statement that she opened the door to Johnson'sapartment, looked in and saw defendant standing in the hallwayleading to Johnson's kitchen or bathroom and that she sawJohnson sitting in a chair. She further stated that defendant waswearing shorts and a tank top. In the statement she did not statethat she saw defendant holding a screwdriver in his hand. Gibsonlater testified at trial that she did not remember preparing thestatement and that she lied about Johnson's location because shedid not want to cooperate with the police.

Bonnie Fleicher, defendant's mother, testified that on August1, 1995, she found defendant lying on the porch of her home. Hetold her that he had been sleeping under a bridge. She informedhim that the police were looking for him. Defendant then took ashower and went to his sister's house in St. Charles. Fleicher didnot see any stains on defendant's shirt, other than sweat stainsunder the armpits.

Detective Spangler obtained a warrant to search Fleischer'shome for the clothes worn by defendant on the night of themurder. He found the clothes in a laundry basket. The shorts hada pattern of stains that appeared to be blood similar to the patternof stains found on a pillow case collected from Johnson'sapartment.

Detective Moor interviewed Eric Wilson regardingdefendant's whereabouts on the night of the murder. Wilson helda party at his house that night. Defendant came to the party with abottle of Kesslers whiskey, cigarettes and some rubber gloves.Wilson saw defendant try on the gloves. He did not, however,notice any blood on defendant. Darlene McCulloch also sawdefendant at the party. He was holding a bottle of Kessler'swhiskey, as well as Marlboro and Winston cigarettes. He was notwearing a shirt and she saw that he had some scratches on his am.Defendant stayed at Wilson's house through the night.

Several stains collected from the shirt and shorts thatdefendant was wearing on the night of the murder tested positivefor the presence of blood. James Bald, a forensic scientist, foundsix areas on the shorts contained human blood. Two out of nineareas on defendant's shirt tested positive for the presence ofhuman blood. Bald also conducted a preliminary test on the stainlocated on defendant's shoe and determined that it tested positivefor the presence of blood. He also found human blood on thefrying pan and the screwdriver.

Officer James Rhoades collected fingernail scrapings fromJohnson. He testified that the scrapings did not match defendant'sDNA.⁽¹⁾ He further testified that Johnson's DNA, was found on asmall stain located on a turquoise shirt that defendant was wearingon the night of the incident.⁽²⁾

Tim Cunz, and his daughters Misty and Savanna, testified thatthey lived two blocks from Johnson's house. They testified that onthe night of the murder, Slater stopped by the house looking for aperson named Leon Richardson. Misty had never known Slater tocome to the house and thought his visit unusual. Savanna statedthat June Gibson stopped by the house to drop off a dress a coupleof hours after Slater left.

While incarcerated at the De Kalb County jail, defendant toldEric Frias that he "stabbed the elder man in the head, neck andchest area again and again," and that the man fell to the floor.Frias, who pleaded guilty to four felonies for robbery and theft,stated that he was not offered any deals or agreements in exchangefor his testimony at defendant's trial.

Dr. Larry Blum testified that he performed the autopsy onJohnson. Johnson suffered from 10 stab wounds to the left upperregion of the chest and an additional five stab wounds to the head.Dr. Blum also noted defensive wounds on Johnson's arms as wellas a laceration to Johnson's left eye. This laceration was consistentwith blunt trauma, such as being hit with a frying pan. Dr. Blumdid not conduct a test of Johnson's fingernail scrapings and wasunable to testify whether Johnson caused the scratches found ondefendant.

Defendant testified that a month and a half before the murder,Slater and Gibson moved into the apartment above Johnson'sapartment. He briefly met Johnson when he helped Slater move inbut otherwise had no contact with Johnson.

Defendant further testified that at the time of the incident, hewas living in an apartment with his girlfriend and her two smallchildren. Shortly after noon on July 29, 1997, he left the apartmentafter having an argument with his girlfriend. He went to a barwhere he had a few beers. Slater came to the bar and the two ofthem stayed there for a couple of more hours before returning toSlater's apartment. He and Slater then went to visit Tim Gord, afriend of Slater. They remained there approximately 45 minutesbefore returning to Slater's apartment.

He stated that, at the apartment, Slater went downstairs to talkto Butler. When he came back, he had a brown paper bag fromwhich he removed a bottle of whiskey. Slater left again for 20 to30 minutes. When he returned, defendant testified, he picked updefendant's shirt, which was draped over a chair, and told him thatthey had to leave the apartment because Johnson was going to callthe police and accuse them of trespassing. Slater put the whiskeybottle back in the bag and handed it to defendant. He then tolddefendant that he would wait for the police to arrive in order to gethis belongings out of the apartment. At this point, defendant puton his shirt and walked to Wilson's house. When he arrived atWilson's house, he looked inside the bag and saw the whiskey, apackage of Winston cigarettes, and rubber gloves.

Defendant left Wilson's house around 1:30 p.m. on July 30,1995, and decided to walk to his girlfriend's workplace. Hestopped under a bridge located nearby to wait for her and fellasleep. He did not awaken until early the next morning, at whichpoint he walked to his mother's house and found out that he waswanted by the police.

The jury convicted defendant of first degree murder, armedrobbery, aggravated battery, and home invasion. The aggravatedbattery charge merged with the first degree murder charge. Thetrial court sentenced defendant to a term of 75 years'imprisonment for first degree murder and a concurrent 20-yearterm for the armed robbery and home invasion convictions.

The appellate court affirmed defendant's convictions for firstdegree murder, armed robbery, and home invasion, vacated thesentence of 75 years' imprisonment for first degree murder, andremanded the cause to the trial court. No. 2-99-0678 (unpublishedorder under Supreme Court Rule 23). The State appealed.

ANALYSIS

Initially, we examine whether the appellate court erred infinding that defendant's extended-term sentence violated the ruleset forth in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000). Because this appeal presents aquestion of law, we review this issue de novo. People v. Fisher,184 Ill. 2d 441, 448 (1998).

The trial court sentenced defendant to a 75-year extended-term sentence for first degree murder, finding that the victim wasover the age of 60, the crime was exceptionally brutal and heinous,and the victim was physically handicapped. The appellate courtfound that although the victim's age was proven beyond areasonable doubt, the victim's disability and the exceptionallybrutal and heinous nature of the crime was not. According to theappellate court, the sentence violated Apprendi.

In Apprendi, the United States Supreme Court held that"[o]ther than the fact of a prior conviction, any fact that increasesthe penalty for a crime beyond the prescribed statutory maximummust be submitted to a jury, and proved beyond a reasonabledoubt." Apprendi, 530 U.S. at 490, 147 L .Ed. 2d at 455, 120 S.Ct. at 2362-63. Apprendi, however, "does not proscribe all judicialfact finding at sentencing, even though it may result in an increasein a defendant's punishment ***." People v. Carney, 196 Ill. 2d518, 526 (2001). In fact, the Court in Apprendi explained that"nothing *** suggests that it is impermissible for judges toexercise discretion-taking into consideration various factorsrelating both to offense and offender-in imposing a judgmentwithin the range prescribed by statute." (Emphasis in original.)Apprendi, 530 U.S. at 481, 147 L. Ed. 2d at 449, 120 S. Ct. at2358.

In People v. Wagener, 196 Ill. 2d 269, 286-87 (2001), werecognized that although Apprendi contains "isolated statementswhich *** appear to support the conclusion that the jury must findbeyond a reasonable doubt each and every fact which might haveany real-world impact on the length of time the defendant mightspend in prison," these statements "cannot be taken out ofcontext." In fact, in People v. Ford, 198 Ill. 2d 68, 74 (2001), weclarified that "Apprendi does not require that every fact related tosentencing be proved beyond a reasonable doubt." (Emphasis inoriginal.)

In Ford, following a bench trial, the defendant was convictedof first degree murder. Ford, 198 Ill. 2d at 71. The trial courtfound the defendant eligible for the death penalty. It declined,however, to impose the death penalty and instead imposed anextended-term sentence of 100 years based upon its finding thatthe murder " 'was accompanied by exceptionally brutal or heinousbehavior indicative of wanton cruelty.' " Ford, 198 Ill. 2d at 71.The defendant argued that his 100-year extended-term sentencewas unconstitutional under Apprendi because the brutal andheinous nature of the crime was not proven beyond a reasonabledoubt.

In resolving this issue, we noted that after the trial courtfound, by proof beyond a reasonable doubt, that the defendant waseligible for the death penalty, death was the prescribed statutorymaximum sentence. Ford, 198 Ill. 2d at 73-74. Therefore, "basedexclusively on the facts that were proved beyond a reasonabledoubt" the 100-year extended-term sentence clearly complied withthe rule announced in Apprendi. Ford, 198 Ill. 2d at 74. In otherwords, because the maximum sentence was death and the sentenceactually imposed was 100 years, the extended-term sentenceclearly complied with the rule announced in Apprendi. Ford, 198Ill. 2d at 73.

We further determined that it was immaterial that theaggravating factor used to impose defendant's 100-year sentence,that the murder was accompanied by exceptionally brutal orheinous behavior, was not proved beyond a reasonable doubt.Ford, 198 Ill. 2d at 72. Specifically, we noted that "Apprendirequires that only those facts that increase the penalty for a crimebeyond the prescribed statutory maximum be proved beyond areasonable doubt." (Emphasis in original.) Ford, 198 Ill. 2d at 74. In the present case, defendant was sentenced under section5-8-2, which provides:

"(a) A judge shall not sentence an offender to a term ofimprisonment in excess of the maximum sentenceauthorized by Section 5-8-1 for the class of the mostserious offense of which the offender was convictedunless the factors in aggravation set forth in paragraph (b)of section 5-5-3.2 were found to be present. Where thejudge finds that such factors were present, he maysentence an offender to the following:

(1) for first degree murder, a term shall be not lessthan 60 years and not more than 100 years[.]"(Emphases added.) 730 ILCS 5/5-8-2(a)(1) (West1994).

Section 5-5-3.2(b) provides:

"(2) When a defendant is convicted of any felony andthe court finds that the offense was accompanied byexceptionally brutal or heinous behavior indicative ofwanton cruelty; or

***

(4) When a defendant is convicted of any felonycommitted against:

***

(ii) a person 60 years of age or older at the time of theoffense ***; or

(iii) a person physically handicapped at the time of theoffense ***[.]" 730 ILCS 5/5-5-3.2(b) (West 1994).

As a threshold matter, we note that a finding that defendantwas over 60 years of age, standing alone, would permit the trialcourt to sentence defendant to an extended-term sentence. A trialcourt need find only a single statutory factor in aggravation toimpose an extended sentence.

Here, defendant concedes that the age of the victim was anelement which was proved beyond a reasonable doubt. The juryreturned a verdict of guilty on defendant's aggravated batterycharge. This charge included the victim's age as an element of theoffense. The trial court merged the aggravated battery charge withthe first degree murder charge. As such, it is undisputed that theage of the victim was an element that was proved beyond areasonable doubt. He asserts, however, that the trial court's findingof two additional aggravating factors-that the murder wasaccompanied by exceptionally brutal and heinous behavior andthat the victim was disabled-violated Apprendi.

As we stated in Ford, the fact that the brutal and heinousnature of defendant's crime and the victim's disability was notproved beyond a reasonable doubt is not material. See Ford, 198Ill. 2d at 72. We decline to depart from this precedent. Instead, welook to whether consideration of those additional elements wouldhave increased defendant's sentence beyond the prescribedstatutory maximum. We answer that question in the negative.

The maximum sentence in this case was 100 yearsimprisonment. Defendant was clearly sentenced within that range.The additional finding of brutal and heinous behavior and that thevictim was disabled did not increase defendant's sentence beyondthe prescribed statutory maximum. Instead, it aided the trial courtin creating an appropriate sentence based on the facts of the crime.

We observe that when any statutory enhancing aggravatingfactor is proved to exist beyond a reasonable doubt, such as theage of the victim in this case, the original sentencing rangeincreases according to the statutory scheme. See 730 ILCS5/5-5-3.2 (West 1994). Additional aggravating factors can beconsidered by the trial judge, including statutorily enhancedfactors not proved beyond a reasonable doubt, to fashion anappropriate sentence within the new sentencing range. We declineto eliminate a trial court's discretion in this area. As such, theprinciples discussed in Apprendi were not violated in this case.

We now turn to defendant's request for cross-relief.Defendant argues that the evidence presented at trial wasinsufficient to prove him guilty of murder. Specifically, he arguesthat the testimony of three of the State's witnesses-Mark Slater,June Gibson and Eric Frias-were inconsistent and not credible. Assuch, defendant maintains the appellate court erred in finding thatthe State presented sufficient evidence to find him guilty beyonda reasonable doubt. We disagree.

The relevant inquiry in reviewing the sufficiency of theevidence to sustain a verdict on appeal is whether any rational trierof fact could have found the essential elements of the crimebeyond a reasonable doubt, viewing the evidence in the light mostfavorable to the prosecution. People v. Cooper, 194 Ill. 2d 419,431 (2000).

In the present case, Mark Slater testified that he was withdefendant on the night of the murder. The police interviewedSlater at the scene of the crime and examined his clothing for thepresence of blood. They found none. Human blood, however, wasfound on defendant's clothes, socks, and shoes. A drop of thevictim's blood was found on the shirt that defendant had worn onthe day of the murder. Defendant's shorts also had a pattern ofblood splatters similar to the pattern of splatters found at the scene.

Slater testified that after defendant returned from the victim'sapartment, he had on surgical gloves and told Slater that hestabbed the victim in the shoulder, neck and temple. June Gibsontestified that she often cared for the elderly victim and that shekept surgical gloves in the victim's bathroom. She further testifiedthat she saw defendant in the victim's apartment on the night ofthe murder with a screwdriver in his hand. Finally, Frias testifiedthat while they were incarcerated together in the De Kalb Countyjail, defendant told him that he stabbed the victim several times inthe head, neck, and chest.

At trial, defendant explained the presence of the bloodstain onhis clothing. His explanation, however, could be rejected oraccepted by the jury. Although, as the appellate court noted, therewere "some problems of credibility and inconsistent statements,"the jury, nonetheless, found defendant guilty. It is for the factfinder to resolve conflicts or inconsistencies in the testimony ofwitnesses. People v. Bull, 185 Ill. 2d 179, 204-05 (1998). Areviewing court should not substitute its judgment for the trier offact. Cooper, 194 Ill. 2d at 431.

CONCLUSION

For the foregoing reasons, we conclude that because the ageof the victim was proven beyond a reasonable doubt, the trialjudge could consider the additional statutorily enhancedaggravating factors-the brutal and heinous nature of the crime andthe victim's disabilityContact Us | About Us | Terms | Privacy