People v. Foster
State: Illinois
Court: 1st District Appellate
Docket No: 1-96-2054
Case Date: 06/19/1998
SIXTH DIVISION
June 19, 1998
No. 1-96-2054
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 94-CR-19526
)
BERNARD FOSTER, ) The Honorable
) John Brady
Defendant-Appellant. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Defendant Bernard Foster challenges his conviction for first
degree murder, arguing that (1) he was denied his right to a speedy
trial; (2) the trial court erred in admitting evidence of other
crimes; (3) he was denied effective assistance of counsel; (4) the
prosecutor improperly argued gang affiliation; (5) the jury was
improperly instructed; (6) cumulative errors deprived him of a fair
trial; and (7) the sentence imposed was excessive.
For the reasons that follow, we affirm.
On July 8, 1994, Mark Peters went to an apartment building
that he owned with his mother on South Calumet to secure it for the
evening. Later that evening, Officer Robert Bell responded to a
call at the building and found Peters lying in a pool of blood with
several gunshot wounds. Bell found bullets and spent shell
casings. A 13 1/2-inch steel knife was found near Peters' body.
An ambulance was called, but Peters died as a result of the gunshot
wounds. Bell described the area, stating that the buildings
usually housed gang members, gang activity, prostitution and drug
activity.
Detective James Jones also went to the building on July 8,
1994. He spoke to several individuals, and after those
conversations the officers were looking for a male named Lazarus,
also known as "Zeke Cool," and another male with the nickname
"Yogi." On July 12, 1994, Lazarus Smith's sister was arrested.
She told police Lazarus' full name and address. Lazarus was
arrested and charged with the murder of Mark Peters. Police
continued to look for defendant, who goes by the name "Yogi."
On July 20, 1994, Detective Paul Mack arrested defendant while
responding to a call for an in-progress aggravated battery.
Detective George Holmes spoke with defendant. Defendant gave an
oral statement, admitting he was present at the building on the day
Peters was killed, but stating that he ran from the building when
he heard gunshots and did not know who did the shooting. Holmes
contacted Assistant State's Attorney Laura Forrester.
Holmes and Forrester spoke with defendant and he gave the same
statement he had already provided. Forrester then confronted
defendant with contradictory evidence. Forrester stated that
"[defendant] paused, he looked down and he started to cry. *** He
then said I didn't mean to shoot him, I'm sorry." He said, "he
wanted to tell the whole truth at that time."
Defendant gave an oral statement which was reduced to writing
and signed. Forrester read the statement into the record. It
states in relevant part:
"Bernard states that on July 8, 1994, at
around 10:30 PM, he went to 4208 South
Calumet, to by [sic] some marijuana. Bernard
states he was on the porch with Anthony McKee
also known as Pooh, Jomo Burks and Lazarus
Smith also known as Zeke.
Bernard states that a man came out on the
porch and asked them to leave. Bernard states
he has now come to know the man's name to be
Mark Peters. Bernard states that he, Pooh,
Jomo and Zeke are all members of the Gangster
Disciple street gang. Bernard, Jomo, Zeke and
Pooh went into the hallway and were talking
with Mr. Peters about Zeke's beeper. While
everyone was in the hallway, there was a
struggle with Mr. Peters. Bernard had a gun
that Zeke had given him that night. Zeke
showed Bernard how to take the safety off the
gun and Bernard placed the gun in his
waistband.
Mr. Peters had lifted his shirt to show
the beeper he had was not Zeke's. After Mr.
Peters struggled in the hallway with Jomo,
Zeke, Pooh and Bernard, Mr. Peters ran towards
the basement. Bernard tried to get out of the
hallway and tried to open the door. ***
Mr. Peters returned to the hallway
carrying something that Bernard could not see.
Bernard heard somebody yell something. Mr.
Peters was on the stairs and Bernard held out
the gun. Bernard shot at Mr. Peters, then Mr.
Peters turned away from Bernard. Bernard
states he kept firing at Mr. Peters and hit
him in the back.
Bernard states he saw Mr. Peters lying on
the stairs face down. Bernard states he fired
the gun until it started clicking.
Zeke, Pooh and Jomo were all in the
hallway at this time. Everyone ran out of the
building."
Holmes also testified as to what defendant stated during the
confession. His testimony was similar to the statement read by
Forrester. However, he also stated that defendant said "he had
taken the weapon from Zeke because there was other people in the
area that were not Gangster Disciples." He also stated that when
Peters came out, he asked if any of them lived there and told them
they had to leave. Defendant, Pooh, Zeke and Jomo then went into
the hallway. Zeke started talking to Peters about his beeper.
Peters lifted his shirt "as if to show Zeke that he didn't have his
beeper." Jomo started punching Peters and Pooh and Zeke joined in.
Holmes also stated that when discussing the shooting, defendant
said that he "continued to fire that gun until it started clicking,
till it ran out of bullets."
Defendant was charged with the murder of Mark Peters. The
matter was continued several times. On February 5, 1996, the State
moved to extend the time beyond the term for a speedy trial and
defendant objected. The court granted a 30-day continuance.
A jury trial began on March 5, 1996. Defense counsel moved in
limine to prohibit any reference to gangs. The court denied the
motion, but stated it would consider any objection at trial. In
addition to the testimony already mentioned, several other
witnesses testified at trial.
Dr. Barry Lifschultz, the doctor who performed the autopsy on
Mark Peters, testified that he found five gunshot wounds and one
small abrasion on the back left shoulder of Peters' body. He did
not know the order in which the wounds were inflicted, but he
stated that the injury to the leg would be consistent with Peters
facing the shooter or attempting to turn from the shooter, the
three injuries to the back would be consistent with Peters having
his back to the shooter at the time he received the injuries, and
the injury to the buttocks would be consistent with Peters having
his back to the shooter, falling backwards toward the shooter, and
being shot as he was falling to the ground.
Gregory Toler, a friend of defendant, testified that he was in
the area of the apartment on the day of the shooting. He drove
there with Lazarus Smith. After he visited an individual in the
building, he was outside sitting in the car when he heard some
gunshots and saw Lazarus, Pooh, and Jomo running. Although he did
not say at trial that he saw defendant, the State pointed out that
he had told officers that he also saw Yogi run from the building.
Toler also stated that he, defendant, and the others were members
of the Gangster Disciples.
Defendant did not testify at trial. The jury found him guilty
of first degree murder. Defendant filed a posttrial motion, which
was denied. The trial court imposed an extended-term sentence of
95 years' imprisonment.
On appeal, defendant first argues that his right to a speedy
trial was violated because the trial court improperly granted the
State an extension to the 120-day statutory term for a speedy
trial. The Speedy Trial Act requires that every person in custody
"shall be tried *** within 120 days from the date he was taken into
custody unless delay is occasioned by the defendant." 725 ILCS
5/103--5(a) (West 1994). The trial court may grant an extension to
that term if it "determines that the State has exercised without
success due diligence to obtain evidence material to the case and
that there are reasonable grounds to believe that such evidence may
be obtained at a later day." 725 ILCS 5/103--5(c) (West 1994). If
a defendant is not tried in accordance with these subsections he
must be discharged from custody. 725 ILCS 5/103--5(d) (West 1994).
The State contends defendant has waived review of this issue
because he failed to file a motion for discharge prior to trial
(see People v. Howard, 130 Ill. App. 3d 967, 972-73 (1985)("The
right to discharge under the speedy-trial act is waived unless a
motion is made prior to conviction") and because he failed to file
a written posttrial motion on this issue (see People v. Dunskus,
282 Ill. App. 3d 912, 917 (1996) (failure to raise speedy trial
issue in motion for new trial constituted waiver). Because
defendant did not file a motion for discharge prior to trial and
did not raise this issue in his posttrial motion, the issue is
waived.
Defendant contends that if the matter is waived, then he was
denied effective assistance of counsel. A two-pronged test governs
ineffective assistance of counsel claims: (1) counsel's
performance must fall well below an objective standard of
reasonableness, and (2) there must be a reasonable probability
that, but for counsel's errors, the result of the proceeding would
have been different. People v. Walker, 255 Ill. App. 3d 10, 14-15
(1993), citing People v. Albanese, 104 Ill. 2d 504, 525-27 (1984).
Failure of counsel to seek discharge of a client on speedy trial
grounds generally will be deemed ineffective assistance of counsel
if there is a reasonable probability that the defendant would have
been discharged had a timely motion been made. People v. Staten,
159 Ill. 2d 419, 431 (1994).
The decision of whether to grant an extension of the 120-day
period rests within the discretion of the trial court, and its
determination will not be disturbed absent an abuse of that
discretion. People v. Hughes, 274 Ill. App. 3d 107, 111 (1995).
When an extension is challenged, a reviewing court should examine
the entire record as it existed at the time of the motion. Hughes,
274 Ill. App. 3d at 111.
The State's written motion for an extension stated that it had
"exercised due diligence to obtain evidence material to the case"
and that "there are reasonable grounds to believe that said
evidence may be obtained at a later date." At the hearing, the
prosecutor stated that the State had "used due diligence in
obtaining evidence material to the case." She further stated "we
allege we have been trying to find eye witnesses on this case.
Also pursuant to the statutory requirement, we believe in good
faith, we'll be able to find these witnesses." Defense counsel did
not assert that the prosecution failed to establish due diligence,
nor did he challenge the State's assertions. He merely stated:
"For the record, Judge. Mr. Bernard Foster stands ready, answering
ready, demands trial, Judge. Would object to People's motion for
continuance."
In Hughes, 274 Ill. App. 3d at 111, the prosecutor asked for
an extension, stating that two material witnesses did not come to
court, it had asked for rulings to show cause, and bench warrants
had been issued for the witnesses. While the defendant objected
and challenged the State's diligence, he did not dispute the truth
of the State's assertions. There was nothing to indicate that the
State was "careless, indifferent, or mendacious in its attempts to
gain additional time." Hughes, 274 Ill. App. 3d at 112. This
court stated, "[t]he trial court had enough information to make an
informed judgment. We will not second-guess that judgment."
Hughes, 274 Ill. App. 3d at 112; see also People v. Folenga, 83
Ill. App. 3d 210, 214 (1980) (statute does not require affidavit or
evidence in support of State's motion for extension to speedy trial
period; allegations of fact in support of such motion will prima
facie satisfy State's burden in absence of denial by defendant).
Upon review of the record, we do not find an abuse of
discretion by the trial court. Defendant has not pointed to
anything that would indicate indifference or carelessness by the
State in its actions and we will not "second-guess" the lower
court's judgment here. Because defendant has not shown that he
would have been entitled to discharge had his counsel so moved, he
has failed to demonstrate ineffective assistance of counsel on this
issue.
Defendant next argues that he was unduly prejudiced by the
introduction of evidence regarding his arrest. Over objection,
Detective Mack testified that he arrested defendant in response to
a call for an aggravated battery. The State concedes it was
improper to admit this evidence. See People v. Lewis, 165 Ill. 2d
305, 346 (1995)("evidence of other crimes is not admissible merely
to show how the investigation unfolded unless such evidence is also
relevant to specifically connect the defendant with the crimes for
which he is being tried") (emphasis in original).
The State argues, however, that the admission of this evidence
was harmless. In Lewis, 165 Ill. 2d at 345-46, the State presented
evidence that the defendant was in custody in California and
provided details of the extradition procedure to show how its
investigation led to the defendant. The court stated that even
though the evidence was incidental and nonspecific in nature, the
jury could have inferred that the defendant had been engaged in
prior criminal activity. The court concluded, however, that the
evidence as presented had no tendency to "overpersuade the jury" on
the issue of defendant's guilt and therefore it ruled that
defendant was not unduly prejudiced. Lewis, 165 Ill. 2d at 347.
In the instant case, defendant was not unduly prejudiced by
the introduction of this evidence. It was of a very limited
nature, the jury was not provided with any facts or additional
information about the situation, and the trial court instructed
that it was not to be considered for the truth of the matter
asserted. The evidence of guilt was very strong in this case.
Defendant confessed to the shooting and the facts indicated that he
shot the victim repeatedly in the back. Defendant is not entitled
to a new trial on this issue.
Defendant asserts he was denied his right to effective
assistance of counsel when his counsel promised, but failed to
produce, a weapons expert. As discussed, defendant must show that
counsel's performance fell well below an objective standard of
reasonableness and there is a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been
different. Walker, 255 Ill. App. 3d at 14-15.
In opening argument, defense counsel stated that defendant
used a semi-automatic pistol and that the jury would hear evidence
from experts in weapons as to how such weapons operate. During
trial, counsel asked an evidence technician offered by the State as
to how an automatic weapon operated. The witness was unable to
answer. During closing argument, counsel attempted to argue that
when defendant shot the gun, "the trigger kept going. By the
nature of the instrument." The prosecutor objected and the court
stated "[t]here is no evidence that the trigger was -- the bullets
would continue to go as the trigger was pulled, no evidence at all
of anything along that."
The promise to produce significant exonerating evidence and
the failure to fulfill such promise can be highly prejudicial.
People v. Lewis, 240 Ill. App. 3d 463, 466 (1992). In this case,
however, we do not believe that but for these comments by defense
counsel the outcome of the case would have differed. While
counsel's performance may have fallen below the objective standard,
there is not a reasonable probability that the actions influenced
the jury's verdict in light of the entire record.
Defendant also argues that the trial court improperly admitted
evidence as to his gang affiliation. The court denied defendant's
motion in limine, but stated that defendant could raise any
objection at trial. Defendant did not object to specific instances
during the trial. However, he did complain of the State's argument
regarding the gang association when he moved for a new trial and in
his posttrial motion.
A defendant may not claim error from the admission of certain
evidence unless he objects to its admission both before the trial
court and in a written posttrial motion. People v. Mason, 274 Ill.
App. 3d 715, 721 (1995), citing People v. Enoch, 122 Ill. 2d 176,
186 (1988). However, an objection to certain testimony in an in
limine motion filed prior to trial and in a written posttrial
motion has been held to be sufficient to preserve an issue for
appeal. See Mason, 274 Ill. App. 3d at 721. In any event, we do
not find this issue a basis for reversal.
The record indicates that the following evidence was
introduced relating to gangs: defendant told Holmes that he and
his friends were members of the Gangster Disciples street gang; he
stated that he took the gun Zeke offered him because there were
other people in the area that were not Gangster Disciples; Gregory
Toler testified that he, defendant and the others involved were
Gangster Disciples; and Bell stated that several buildings in the
area were partially occupied and usually housed gang members, gang
activity, prostitution and drug activity.
Evidence that defendant was a member of a gang or participated
in gang-related activity may be admissible at trial, despite its
prejudicial effect, to establish a common purpose or design or to
provide a motive for an otherwise inexplicable act. People v.
Garrett, 276 Ill. App. 3d 702, 710 (1995), citing People v.
Patterson, 154 Ill. 2d 414 (1992). A trial court's decision to
admit gang evidence will not be overturned unless a clear abuse of
discretion is shown. People v. Colon, 162 Ill. 2d 23, 30 (1994).
We cannot say the trial court abused its discretion in
admitting the gang-related evidence in this case. The evidence
mentioned above was relevant. It explains defendant's relationship
and loyalty to the other men, and it suggests why Peters may have
wanted them to leave the property and why the men may have resented
Peters' attempts.
Defendant also argues that the trial court erred in allowing
prejudicial argument as to the gang evidence. The State contends
he has waived this issue because defendant did not object during
argument. The law provides that prosecutors are given wide
latitude in argument. They may argue facts and legitimate
inferences drawn from the evidence. People v. Smith, 141 Ill. 2d
40, 60 (1990). Because the evidence was properly admitted, the
State was justified in making proper comment on it.
Even if any of the statements about which defendant complains
were improper, this issue alone could not be said to have changed
the outcome of the case in light of the strong evidence of guilt.
See People v. Byron, 164 Ill. 2d 279, 295 (1995)(prosecutor's
remarks may sometimes exceed bounds of proper comment, but verdict
must not be disturbed unless it can be said that remarks resulted
in substantial prejudice to accused, such that absent those remarks
verdict would have been different).
Defendant next contends the jury was improperly instructed as
to Peters' ability to defend his property. Defendant failed to
object to this instruction, but argues that Supreme Court Rule
451(c) (Official Reports Advance Sheet No. 13 (June 18, 1997) R.
451(c), eff. July 1, 1997) provides that substantial defects in
jury instructions are not waived by the "failure to make timely
objections thereto if the interests of justice require." Even if
we review the issue, defendant has failed to demonstrate that he is
entitled to reversal.
State instruction 16 stated:
"A person is justified in the use of force
when and to the extent that he reasonably
believes that such conduct is necessary to
terminate another's trespass on real property
other than a dwelling lawfully in his
possession or in the possession of another
who is a member of his immediate family or in
the possession of a person whose property he
has a legal duty to protect."
This instruction was apparently based on Illinois Pattern Jury
Instructions, Criminal, No. 24-25.08 (3d ed. 1992), which also
included the following language:
"[However, he is justified in the use of
force which is intended or likely to cause
death or great bodily harm only if he
reasonably believes that such force is
necessary to prevent the commission of
_____.]"
By leaving out this last section, defendant contends the jury was
instructed that Peters was completely justified in using any
amount of force and consequently could not find defendant's
conduct justified.
The instruction in this case did not deprive defendant of
his claim of self-defense. The jury was clearly instructed as to
that defense. While the defense of property instruction may not
have fully explained Peters' rights, in the end, we do not
believe it influenced the outcome of the case. In light of the
context of this instruction within the entire case, we hold that
this was not a "substantial defect" that the interests of justice
require this court to reverse.
Defendant argues that the cumulative effect of the errors in
his trial deprived him of his right to a fair trial. None of the
errors alleged require reversal in this case. Even looking at
the matters cumulatively, the record indicates that defendant
received a fair trial and defendant's arguments do not warrant
remand. We note again that the evidence of guilt in this case
was overwhelming. Not only did the jury have a statement of the
accused admitting to the shooting, the evidence indicated that
defendant shot Peters repeatedly in the back.
Defendant contends that the 95-year sentence imposed was
excessive. He admits that he failed to file a postsentencing
motion challenging his sentence. Therefore any objection should
be considered waived. See People v. Reed, 177 Ill. 2d 389
(1997)(defendants who did not file postsentencing motions
challenging sentences waived review of the issue). Nevertheless,
he urges this court to review the sentence under plain error
analysis, arguing that the trial court failed to adequately
consider his rehabilitative potential and considered improper
victim impact statements. See People v. Hill, 294 Ill. App. 3d
962 (1998) (reviewing sentence under plain error analysis despite
waiver). Because the evidence is not closely balanced in this
case and because we do not find prejudicial error, plain error
review is not appropriate. See People v. Mullen, 141 Ill. 2d
394, 401-02 (1990)(plain error review invoked where evidence is
closely balanced or where error adversely affected defendant's
right to a fair trial).
We observe, however, that even if not waived defendant has
not presented a basis for altering his sentence. A trial court's
sentencing decision is entitled to great deference and weight.
People v. La Pointe, 88 Ill. 2d 482, 492-93 (1982). The trial
court is not required to detail for the record its entire process
for determining an appropriate penalty. La Pointe, 88 Ill. 2d at
493. Defendant argues that his age of 21 years at the time of
the offense and his criminal record of three prior convictions
for stolen motor vehicles should have mitigated his sentence.
The record, however, established a very serious crime in which
defendant shot Peters in the back and there were several facts
relating to his employment and educational history that suggested
that defendant had very little rehabilitative potential. The
trial court did not abuse its discretion.
Defendant argues that the court erred in admitting more than
one victim impact statement because the Rights of Crime Victims
and Witnesses Act (Act), which provides for victim impact
statements, defines "crime victim" as a "single representative."
725 ILCS 120/3(a)(3)(West 1994). Because defense counsel did not
object to these statements, any objection has been waived.
Moreover, case law supports the admission of more that one victim
impact statement. See People v. Gonzales, 285 Ill. App. 3d 102,
104 (1996)("overall statutory scheme" of Act allowed the court to
consider victim impact evidence from more than one source).
Furthermore, section 9 of the Act states "[n]othing in this Act
shall create a basis for vacating a conviction or a ground for
appellate relief in any criminal case." 725 ILCS 120/9 (West
1994). See People v. Benford, 295 Ill. App. 3d ___, 692 N.E.2d
1285 (1998).
For the aforementioned reasons, we affirm the conviction and
sentence.
Affirmed.
CAMPBELL, P.J., and QUINN, J., concur.
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