PEOPLE v. KOGER (1997)

The defendant, Fred Koger, Grant Smith and Nicholas Tang, who was known to defendant as Melik, committed an armed robbery of two men.   Melik killed the victims while defendant stood nearby with a shotgun.   Defendant was subsequently arrested and charged with six counts of first degree murder and one count of armed robbery.   A jury convicted defendant of the armed robbery and first degree murder of both victims, and he was sentenced to natural life in prison for the murders.   He appeals the murder convictions and sentence.   We affirm.

FACTS

On November 7, 1995, defendant, Smith and Melik met at Mario Gray's house.   Melik said that he knew two men who he believed had marijuana and suggested that they rob these men at gunpoint.   A man named Jamier Allen testified that during this conversation he heard Melik say he was going to kill the victims.   Allen stated that defendant and Smith agreed no one would be killed, and the three men decided to commit the crime.   Melik left the house to set up a meeting with the victims in an alley near Gray's house at approximately 2:30 p.m.   on the pretext of making a drug deal.

The three men were armed when they arrived in the alley;  defendant was carrying a shotgun.   Melik told the passenger, Stevenson Earl, to get out of the car and turn over his valuables.   He then had Earl lie on the ground at the rear of the car.   At gunpoint, defendant ordered the driver, Arthur Loud, Jr., to lie on the ground by Earl. Smith put his gun on the passenger seat and searched the car while the other two men guarded the victims.

Melik silently stood behind Earl and shot him in the head, execution-style, from a distance of 6 to 18 inches.   He killed Loud in the same manner.   The three defendants then ran down the alley, appeared to exchange something, and continued to run.   Eventually, they met back at Gray's house.   Defendant asked Melik why he had killed the two men;  Melik answered that he had “something personal for them.”

Two days later, when the police arrested defendant they found a watch belonging to one of the victims.   Defendant was questioned for several hours at the police station and gave a written confession.   He was subsequently charged with six counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)) and one count of armed robbery (720 ILCS 5/18-2 (West 1994)).

Defendant sought to quash the arrest and suppress his confession, but the trial court denied both motions.   Defendant also filed a motion in limine to bar the introduction of his prior conviction for aggravated discharge of a firearm.   The trial court denied the motion in a written order, finding that the conviction's probative value outweighed the prejudice to defendant.

After the close of the State's case, defendant moved for a directed verdict, which the trial court denied.   Defendant unsuccessfully renewed this motion after the close of all of the evidence.   A jury convicted defendant of the armed robbery and first degree murder of both victims.   The trial court sentenced defendant to natural life in prison for the murders, and defendant filed a timely notice of appeal.   Because the trial court had not sentenced defendant for the armed robbery conviction, a second sentencing hearing was later held.   Defendant was sentenced to 30 years for the armed robbery, and he filed a second notice of appeal.   This court consolidated the two appeals.

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I.

A.

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Defendant first argues that the trial court should have granted his motion for a directed verdict on the first degree murder charges.   He contends that he was not accountable for Melik's intentional acts because the armed robbery had been completed by the time the killings occurred.   See In re D.C., 259 Ill.App.3d 637, 643, 197 Ill.Dec. 661, 665, 631 N.E.2d 883, 887 (1994).   We Disagree.

In reviewing a motion for a directed verdict, we must consider whether all the evidence, when viewed in the light most favorable to the Stae, fails to prove the defendant's guilt beyond a reasonable doubt.  People v. Turner, 127 Ill.App.3d 784, 790, 82 Ill.Dec. 834, 837, 469 N.E.2d 368, 371 (1984).

Our careful review of the record shows that there was sufficient evidence to support the conclusion that the robbery was ongoing when the victims were killed.   In defendant's confession, he indicated that Grant was still searching the car when Melik shot the victims.   Defendant also stated that “Grant jumped out [sic] the car when [Melik shot the men] and walked to the back of the car.”   The jury was free to accept defendant's version of the robbery (see Elliott v. Koch, 200 Ill.App.3d 1, 12, 146 Ill.Dec. 530, 539, 558 N.E.2d 493, 502 (1990)).   If the incident occurred as defendant stated, he was liable for Melik's intentional homicides because the underlying crime had not been completed when the killings took place.   See In re D.C., 259 Ill.App.3d at 643, 197 Ill.Dec. at 665, 631 N.E.2d at 887.

B.

Defendant also contends that he is not guilty of felony murder because the deaths were not foreseeable.   See People v. Lowery, 281 Ill.App.3d 706, 710, 217 Ill.Dec. 165, 168, 666 N.E.2d 834, 837 (1996), appeal granted, 168 Ill.2d 612, 219 Ill.Dec. 572, 671 N.E.2d 739 (1996).

Under the proximate cause test of felony murder, a defendant is guilty of murder if: (1) he participated in the underlying forcible felony and (2) it was reasonably foreseeable that an innocent person wouldbe killed during the commission of the felony.  Lowery, 281 Ill.App.3d at 710, 217 Ill.Dec. at 168, 666 N.E.2d at 837.   A defendant is responsible for the foreseeable consequences of his unlawful acts; he need not anticipate the precise sequence of events that caused the victim's death.  People v. Hickman, 59 Ill.2d 89, 94, 319 N.E.2d 511, 513 (1974).

Here, there is no dispute regarding defendant's participation in the crime.   The question then becomes whether the victims' deaths were reasonably foreseeable.   The evidence shows that the three men were planning to commit the armed robbery under the pretext of buying drugs from the victims.   Even after Melik stated that he was going to kill the victims, defendant agreed to commit the armed robbery with him.   During the robbery, all three men were armed, and defendant personally held a shotgun on the victims.   When all of the evidence is viewed in the light most favorable to the State, it is reasonably foreseeable that a death would occur under these circumstances.

II.

Defendant makes two arguments concerning the jury instructions given in this case.   First, he contends that the jury instructions incorrectly stated the burden of proof for the murder charges, but this argument is waived on appeal because he failed to offer alternative instructions at trial.   Aguinaga v. City of Chicago, 243 Ill.App.3d 552, 183 Ill.Dec. 648, 666, 611 N.E.2d 1296, 1314 (1993).

Second, defendant argues that the jury instructions misstated the law on accountability and only confused the jury.   He focuses on the inclusion of accountability language in the felony murder instructions.

We must view the instructions as a whole and determine whether they fairly and fully apprised the jury of the law. See Koch, 200 Ill.App.3d at 22, 146 Ill.Dec. at 545, 558 N.E.2d at 508. We will not reverse based on the jury instructions unless they were an abuse of the trial court's discretion. See People v. Wilson, 257 Ill.App.3d 670, 697-98, 195 Ill.Dec. 8, 28-29, 628 N.E.2d 472, 492-93 (1993).

Defendant argues that the issues instruction in this case should not have connected the felony murder charge to the State's accountability theory.   However, he admits that this instruction conformed to instruction 7.02A of the Illinois Criminal Pattern Jury Instructions.   See Illinois Pattern Jury Instructions, Criminal, No. 7.02A (3rd ed. 1992).   Pattern jury instructions should be given unless they fail to accurately state the law of the case.   Swartz v. Sears, Roebuck and Co., 264 Ill.App.3d 254, 266, 201 Ill.Dec. 210, 218, 636 N.E.2d 642, 650 (1993).

Here, we have already determined that the jury was entitled to find defendant guilty by accountability of both intentional murder and felony murder.   Thus, the references to accountability in the jury instructions were warranted in this case.

In Wilson, 257 Ill.App.3d at 697-98, 195 Ill.Dec. at 28-29, 628 N.E.2d at 492-93, the court found that an accountability instruction similar to the one given here was not an abuse of the trial court's discretion.   After examining the jury instructions in their entirety, we believe that they adequately informed the jury of the elements of accountability as they applied to the charges against defendant.   The instructions given were well within the trial court's discretion.

III.

Defendant next argues that the trial court erred by denying his motion in limine seeking to bar the introduction of his prior conviction for aggravated discharge of a firearm.   He claims that this ruling was improper because the prior conviction was not a crime of dishonesty and had little probative value on his testimonial credibility.   See People v. Williams (Williams I), 161 Ill.2d 1, 204 Ill.Dec. 72, 641 N.E.2d 296 (1994).

Even if this issue had not been waived on appeal, defendant's argument fails.   Some appellate courts have analyzed Williams I to mean that only prior felonies involving dishonesty can be used for impeachment.   See, for example, People v. McKay, 279 Ill.App.3d 195, 215 Ill.Dec. 825, 664 N.E.2d 222 (1996).   However, in People v. Williams (Williams II), 173 Ill.2d 48, 218 Ill.Dec. 916, 670 N.E.2d 638 (1996), the supreme court rejected this interpretation.   The court affirmed its adherence to the three-part test established in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1972).   This test requires the trial court to consider whether the prior conviction: (1) is for a felony or other appropriate crime, (2) occurred within ten years of the witness' testimony, and (3) has probative value that outweighs its prejudicial effect on the jury.   See Housh v. Bowers, 271 Ill.App.3d 1004, 1006, 208 Ill.Dec. 449, 450, 649 N.E.2d 505, 506 (1995).   The court strongly emphasized the importance of the balancing prong of this test.

Here, it is undisputed that defendant's prior conviction satisfies the first two prongs of this test.   The trial court applied the balancing prong of the test and explicitly found that the probative value of the prior conviction outweighed its prejudicial effect.   In addition, the court minimized the risk of unfair prejudice by refusing to allow any references to the nature of defendant's prior conviction.   The trial court also agreed to give a limiting instruction which would have allowed the use of the prior conviction for purposes of impeachment only.   Because the trial court did not improperly “disregard[ ] the familiar, well-established Montgomery standard in determining that the impeachment was proper”, we affirm its denial of defendant's motion in limine.  Williams II, 173 Ill.2d at 83, 218 Ill.Dec. at 933, 670 N.E.2d at 655.

IV.

Defendant argues that the trial court erroneously admitted one of the victim's blood-spattered eyeglasses and photographs taken at the crime scene because they were not relevant to any material issue.   See People v. Brown, 172 Ill.2d 1, 41, 216 Ill.Dec. 733, 751, 665 N.E.2d 1290, 1308 (1996).   He also contends that the photographs deprived him of a fair trial because they were inflammatory and designed to provoke the jury by showing close-ups of large amounts of blood.   See Brown, 172 Ill.2d at 41, 216 Ill.Dec. at 751, 665 N.E.2d at 1308.

The applicable standard of review on appeal is whether the trial court abused its discretion in admitting the evidence.  Brown, 172 Ill.2d at 40-41, 216 Ill.Dec. at 751, 665 N.E.2d at 1308.

Here, the mother of victim Arthur Loud, Jr., identified the pair of eyeglasses as the ones he wore on the day he was killed.   The eyeglasses also corroborated defendant's statement that the driver of the parked car had worn glasses.   The trial court found that defendant was not prejudiced by the admission of the glasses; we must defer to the trial court's judgment in this instance because the record does not include either photographs of the glasses or the glasses themselves.   See Brown, 172 Ill.2d at 41, 216 Ill.Dec. at 751, 665 N.E.2d at 1308.

As for the three photographs of the crime scene, the trial court stated that they were “innocuous.”   After examining the pictures, we do not believe that they are particularly inflammatory or unfairly prejudicial.   In addition, they serve the valid purpose of establishing the position of the victims in relation to the car and the manner in which the victims were killed.   See Brown, 172 Ill.2d at 41, 216 Ill.Dec. at 751, 665 N.E.2d at 1308.   Thus, the trial court did not abuse its discretion by admitting the eyeglasses and photographs.

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V.

A.

Defendant next contends that the mandatory life imprisonment provision in section 5/5-8-1 of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(a)(1)(c)(ii) (West 1994)) violates article I, section 11 of the Illinois constitution because it does not consider the defendant's rehabilitative potential.

 Defendant was sentenced to natural life under section 5-8-1 because he was convicted of a double homicide.  Article I, section 11 requires that criminal penalties be determined in accordance with the seriousness of the crime, keeping in mind the objective of returning the defendant to a useful place in society.   Ill. Const.1970, art.   I, § 11.   However, a defendant's rehabilitation potential need not be given more weight than the severity of the offense.  People v. Taylor, 102 Ill.2d 201, 206, 209, 80 Ill.Dec. 76, 79, 81, 464 N.E.2d 1059, 1062, 1064 (1984).   The legislature is assumed to have considered the relevant factors in establishing sentences, and the resultant scheme is presumptively proper.  Taylor, 102 Ill.2d at 206, 80 Ill.Dec. at 79 , 464 N.E.2d at 1062.

 Illinois courts have upheld section 5-8-1 against similar constitutional challenges where the defendant was either the actual killer (Taylor, 102 Ill.2d at 206, 209, 80 Ill.Dec. at 79, 81, 464 N.E.2d at 1062, 1064) or an accomplice to the killer (People v. Driskel, 224 Ill.App.3d 304, 317, 166 Ill.Dec. 622, 630, 586 N.E.2d 580, 588 (1991)).   In addition, two courts have found that section 5-8-1 is constitutional when applied to defendants who have been found guilty by accountability.

In People v. Foster, 198 Ill.App.3d 986, 998-99, 145 Ill.Dec. 312, 320-21, 556 N.E.2d 1214, 1222-23 (1990), the defendant asserted that the trial judge's discretion was unduly limited because the statute did not allow him to consider the difference between a perpetrator and a defendant guilty by accountability.   The court rejected the defendant's contention, reasoning that the focus of section 5-8-1(a)(1)(c) was the nature of the homicides, not the defendant's role in them.   This reasoning was followed in People v. Perry, 230 Ill.App.3d 720, 722, 172 Ill.Dec. 375, 377, 595 N.E.2d 736, 738 (1992).

In this case, defendant was found guilty of two execution-style murders.   We agree with the reasoning of the courts in Perry and Foster and find that section 5-8-1 is not unconstitutional under article I, section 11 as applied to those found guilty by accountability.

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B.

Defendant also asserts that section 5-8-1 violated article II, section 1 of the Illinois constitution, which provides for the separation of powers between branches of government.   See Ill. Const. 1970, art II, §1.   He contends that this section improperly eliminates the trial court's discretion in sentencing.

This issue has already been resolved in Taylor.   In that case, the court reasoned that the legislature has the power to define crimes and establish punishments.   This power necessarily restricts trial courts' discretion in sentencing.   However, unless this power unduly infringes on the court's authority, the legislature's enactments will be upheld.  Taylor, 102 Ill.2d at 208, 80 Ill.Dec. at 80, 464 N.E.2d at 1063.   The court found that the imposition of a mandatory life sentence is not beyond the scope of the legislature's power, and we concur in its reasoning.  Taylor, 102 Ill.2d at 209, 80 Ill.Dec. at 81, 464 N.E.2d at 1064.   Section 5-8-1 does not unconstitutionally restrict the trial court's sentencing authority.

Because we affirm defendant's murder convictions, we need not address the remaining issue raised on appeal regarding defendant's armed robbery sentence.

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CONCLUSION

The judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

McCUSKEY and SLATER, JJ., concur.

Justice LYTTON delivered the opinion of the court: