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People v. Fender
State: Illinois
Court: 5th District Appellate
Docket No: 5-00-0227 Rel
Case Date: 09/27/2001
                        NOTICE
Decision filed 09/27/01.  The text of
this decision may be changed or
corrected prior to the filing of a
Petition for Rehearing or the
disposition of the same

NO. 5-00-0227

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

     Plaintiff-Appellee,

v.

JUSTIN FENDER,

     Defendant-Appellant.

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Appeal from the
Circuit Court of
Clay County.

No. 99-CF-12

Honorable
Patrick L. Duke,
Judge, presiding.



JUSTICE HOPKINS delivered the opinion of the court:

Justin Fender (defendant) appeals from his conviction of the offense of armedrobbery (720 ILCS 5/18-2 (West 1998)). On November 5, 1999, defendant was sentencedto 16 years' imprisonment. As a part of the sentencing, the trial court found that the victimof the armed robbery had suffered great bodily harm, and as a result, the court ordereddefendant to serve 85% of his 16-year prison sentence, pursuant to section 3-6-3(a)(2)(iii)of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(iii) (West 1998)). On appeal,defendant argues (1) that he was denied a fair trial because the trial court improperlyadmitted details about defendant's attempted solicitation to kill a crucial State witness and(2) that the statutory provision under which defendant is required to serve 85% of his termof imprisonment is unconstitutional under the United States Supreme Court decision inApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Weaffirm.

I. FACTS

The evidence presented at defendant's jury trial was as follows. During the eveningof March 1, 1999, Elizabeth Pearce was the only employee working at Zink's conveniencestore in Louisville, Illinois. A customer, Sherry Garner, testified that as she was coming outof Zink's to leave at about 9:15 that evening, she noticed a person of slender build walkingsouth toward Zink's parking lot. Garner testified that she remembered the person becausehe seemed odd to her. According to Garner, the person she saw was dressed in dark clothingwith a hooded shirt pulled over his head. Garner testified that when the person becameaware that she was looking at him, he stepped out of sight behind a vehicle. Garner was notasked to identify defendant at the trial.

The clerk, Elizabeth Pearce, testified that the store's closing time was 10 p.m. About9:45 p.m. on March 1, 1999, as she was standing at the cash register, a man came in andpointed a gun at her. Pearce described the gun as a revolver. The person holding the gunwas shorter than she and was dressed in black, wearing a black, hooded sweatshirt with thehood pulled over his head. He was wearing dark sunglasses and a bandana over his mouth.Pearce testified that the only parts of the robber's face that she could see were his temples,but from that she knew he was a white person. Pearce testified that as the robber pointed thegun at her, he said, "Open the f****** drawer or I'll blow your f****** head off." Pearcetestified that when the robber spoke, she knew that the robber was a man.

Pearce testified that before she had time to open the cash register drawer, the robbersaid, "Get me a bag, get me a bag." She testified that as she turned away to retrieve the bagfor him, the robber said: "No, no, no. Open the drawer. Open the drawer first." Pearcetestified that she then turned back to the cash register and opened the drawer, andimmediately after the drawer was opened, the robber took out the money tray and begangrabbing the money. Pearce testified that she turned away to get a bank bag for the robber,unzipped the bag, and asked the robber if he wanted her to help him. Pearce testified thatthe robber yelled: "No, no. Get on the floor. Get on the floor."

Pearce testified that she complied with the robber's order by bending down to lie onthe floor, and as she did, the robber hit her on the head with the butt of his gun. When thegun hit her, it cut her head open. Immediately after being hit, Pearce put her hand to herhead, and as she did, the robber hit her again, breaking one finger and cutting another. Pearce testified that after being hit the second time, all she could do was lay on the floor. The robber left within a few seconds.

Bridgett Lane testified that defendant was her boyfriend, beginning about February1999. Lane testified that on March 1, 1999, defendant was living at the Motel 45 inLouisville, Illinois. Lane and her 16-month-old daughter were with defendant in his motelroom at about 4:30 p.m. that day. Lane testified that she and defendant watched televisionand played with the baby but that defendant was also pacing the floors "a little bit." Lanetestified that after a while, defendant said that he was going to rob Zink's, but Lane did notbelieve him.

According to Lane, defendant took a shower and put on a pair of black pants. Lanetestified that defendant cleaned his gun, loaded it with bullets, and put on a black, hoodedsweatshirt and a pair of black tennis shoes. Lane testified that she had never seen the tennisshoes before, and defendant held them up to her and said that he was going to wear them sothat he could throw them away in case it was muddy so that the police would not be able totrace the footprints back to him. Lane testified that after defendant got dressed, he placeda bandana over his head, placed another bandana over his nose and mouth, and put onsunglasses. Defendant also put two pairs of white hospital gloves on his hands. Lanetestified that at about 9:45 p.m., defendant put the gun, which she described as a blackhandgun with a brown handle, into the pocket on the front of the sweatshirt and left themotel. Lane testified that defendant came back to the motel room after about five minutes,saying that there were too many people at Zink's to "do it." During her testimony, Laneidentified the shoes that defendant wore that night and the gun that he carried.

After coming back to the motel, defendant left again after a few minutes. Lanetestified that defendant was still wearing the same outfit. After defendant left the secondtime, Lane continued to watch television and tried to get her daughter to sleep. She testifiedthat defendant returned the second time after about 10 to 15 minutes. Lane testified thatwhen he came back, "[He was] out of breath and just real nervous and everything[,] and hejust[-]he threw the money on the floor." Lane testified that the money was in a brown bankbag and that defendant estimated that he got about $500 in the robbery. According to Lane,defendant took off the bandanas, the sunglasses, and the sweatshirt, put those items into abag, walked out the door, and threw the bag into the motel dumpster. Lane testified thatdefendant also took off the tennis shoes and put on a pair of boots and a black T-shirt. Lanetestified that when defendant came back into the motel room, he picked up the tennis shoesand told her that they had to get out of there. Lane, her baby, and defendant got into the carwith the tennis shoes and the money bag and left the motel.

Lane testified that as they were driving away from the motel, there was a car behindthem that defendant thought was a police car. According to Lane, the car turned around andfollowed them, and as the car followed them, defendant pitched the tennis shoes out thewindow and over the top of the car onto Lane's side of the road. Eventually, the police carstopped following them, and they went to defendant's parents' home. While there, defendantwent inside, but Lane stayed in the car. Defendant returned to the car after about 15minutes. Lane testified that she and defendant left and went to the Casey's gas station inLouisville and put gas into the car.

Lane testified that they left Casey's and went back to the motel, but when they gotthere, defendant drove past when he saw police cars at the motel. According to Lane, aboutfive minutes later, they again drove to the motel, and the police were still there. Lanetestified that defendant said that the police knew it was him but that there was nothing hecould do about it then. Lane testified that defendant pulled into the parking lot of the motel,got out, and talked to one of the police officers who was in front of defendant's room. Lane testified that she eventually told the law enforcement officials what she knewabout the robbery but that she waited for nearly two weeks before coming forward. Laneexplained that she did not come forward earlier because she and her husband, J.R. Dalton,were trying to work things out and because defendant told her that if she and defendant everbroke up, defendant would kill her because she knew about the robbery. Lane testified thatdefendant made these threats to her both before and after the robbery. Lane testified that thefirst time he threatened only her, but after the robbery, he threatened both her and herdaughter. Lane testified that she eventually told what she knew despite defendant's threatsbecause "what he done to that girl wasn't right."

On cross-examination, Lane continued to assert that defendant threatened to kill bothher and her baby, despite defense counsel's repeated questions about Lane's relationship withher husband, why she did not tell about the robbery earlier, why Lane did not leave the motelwhen defendant left to commit the robbery, and why Lane did not leave the car whendefendant went inside his parents' house.

Defendant admits in his brief to this court that several witnesses testified that onMarch 1, 1999, between 9:15 and 9:45 p.m., they observed a man walking in the vicinity ofZink's convenience store and they described him as between five feet five inches tall andfive feet nine inches tall, wearing a dark, hooded sweatshirt, black pants, and sunglasses.

Kelly Greenman testified that during the evening hours on March 1, 1999, she wasworking at Casey's gas station. When she heard about the robbery at Zink's, which is locatedabout three blocks from Casey's, she locked the doors to the station. About 20 or 30 minutesafter hearing about the Zink's robbery, defendant came to the station to purchase gas. Greenman unlocked the door to the station when defendant arrived because she knew him. Greenman testified that defendant was wearing jeans and a tank top when she saw him. Greenman testified that she told defendant about the robbery at Zink's and that defendantappeared normal, not excited. Greenman testified that defendant said he was going outpartying.

Clay County Sheriff Lee Ryker testified that Lane talked to him on March 13, 1999,and told him that she and defendant were driving down Vandalia Road in Louisville,Illinois, after the Zink's robbery and that defendant threw the shoes he wore during therobbery out of the window. Based upon Lane's statements, Sheriff Ryker drove to the areaand found the shoes. Sheriff Ryker identified the black tennis shoes he found on the sideof Vandalia Road.

Clay County Deputy Sheriff Guy Durre testified that on March 14, 1999, hequestioned defendant about the robbery. Durre showed defendant the black shoes recoveredfrom the side of Vandalia Road, but defendant told Durre that the shoes did not belong tohim. Defendant tried on the shoes and complained that they were too tight. Durre alsoshowed defendant a gun recovered from Scott Jones, a friend of defendant's. Jones testifiedthat shortly after the Zink's robbery defendant traded him the gun in exchange for a buckknife that belonged to Jones. According to Durre, defendant admitted that the gun had beenhis before he traded it to Jones. Both defendant and Jones testified that they commonlytraded items such as guns and knives.

James Michael Welty testified that he shared a cell with defendant shortly afterdefendant's arrest. Welty admitted that he had several prior convictions, the most recent in1998 for felony theft. Welty testified that while he and defendant shared the cell, defendant"kind of made an offer" that he would pay someone to "take care of Bridgett and herdaughter." Welty testified that he interpreted defendant's remark as meaning defendantwanted someone to kill Lane and her daughter. Welty initially testified that defendant neverused the term "kill." Welty later testified that defendant said that if defendant had thechance, even 10 years later, defendant was going to see to it that he got Lane and herdaughter killed. Welty also testified that defendant told him that he threw the black tennisshoes that he wore during the robbery out of the car window. Welty admitted that defendantnever told him he committed the robbery and that defendant merely expressed concern aboutthe fact that the Clay County sheriff's department had his tennis shoes in their possession.

Defendant testified about his employment in the months leading up to March 1, 1999. He testified that in the week before March 1, 1999, he picked up two paychecks worth atotal of almost $400 and that he received another paycheck worth $50 to $60 shortly afterthat. Defendant testified that sometime in February 1999, he sold a car for $300, and hissister gave him $200 from her income tax refund. Defendant identified the black tennisshoes that Sheriff Ryker recovered from the side of Vandalia Road, and he admitted that heused to own a pair similar to them. Defendant testified that he did not know if those shoesbelonged to him, but he was curious, if they were his, how the sheriff got his tennis shoes. Defendant identified the gun recovered from Scott Jones as having belonged to him beforehe traded it to Jones. Defendant admitted that he had that gun and some ammunition in hispossession at his room at Motel 45 on March 1, 1999. Defendant testified that he had thegun with him as protection from J.R. Dalton, Lane's husband.

Defendant testified that he did not commit the Zink's robbery. Defendant testifiedthat he and Lane and Lane's daughter were at the motel room from about 5 p.m. on March1, 1999, until about 9:30 p.m., when they left to go to defendant's parents' home. Defendanttestified that he went to his parents' home to get a video game to play. Defendant testifiedthat after leaving his parents' house, he stopped at Casey's gas station. Defendant testifiedhe left Casey's and went back to his parents' home to warn them about the Zink's robbery,that the robber had a gun, and that the robber was "still out there." Defendant testified thatafter they left his parents' home the second time, they drove around for a while trying to getthe baby to sleep. Defendant testified that when they arrived back at the motel, police carswere parked close to his room. Defendant testified that he parked next to one police car andspoke to the officer briefly.

Defendant testified that he and Lane remained together most of the time for the nextcouple of days but that he broke up with her around March 3, 1999, because he wanted toget back together with his former girlfriend. Lane testified that she broke off therelationship with defendant because she wanted to work things out with her husband. Defendant testified that he let Lane stay in his room the night they broke up and that he tookher to her grandfather's house the next day, came back, and retrieved his belongings. Defendant testified that he did not owe any money for rent when he moved out. The motelmanager testified that defendant owed 16 days of rent, $166, when he left and that he tolddefendant that he needed the money the weekend before the robbery.

II. ANALYSIS

A. Admission of Details About Other Crimes

Defendant contends that the trial court's improper admission of testimony about hisalleged attempted solicitation of the murder of Lane, a key prosecution witness, and herdaughter was highly prejudicial and destroyed his right to a fair trial. Defendant argues thatLane was the most critical witness for the State and that without her testimony identifyingdefendant as the robber, the State's case was almost entirely circumstantial. Defendant doesnot argue that Lane's testimony about defendant's threats was improper. Defendant admitsthat Welty's testimony-that defendant asked him to "take care of" Lane and herdaughter-was admissible to establish consciousness of guilt, but defendant claims that thetrial court allowed in too much detail to serve this limited purpose, the extra details servingmerely to inflame the jury unfairly against defendant. Evidence that a defendant committeda crime other than the one for which he is charged is inadmissible for the purpose ofshowing the defendant's propensity to commit crimes in general; however, it may beadmitted if relevant for any other purpose. People v. Robinson, 167 Ill. 2d 53, 62 (1995). The principal requirement is that the evidence be relevant and not unduly prejudicial. People v. Cloutier, 156 Ill. 2d 483, 505 (1993).

The State counters that defendant has waived this issue due to his failure to object toit at the trial and his failure to raise the issue in a posttrial motion. The State is correct thatdefendant has waived this issue. Without a contemporaneous objection to evidence as it isbeing admitted and without a posttrial motion raising the issue in the trial court, a defendanthas no basis for a review of that issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186(1988). This rule is of particular importance in a case such as this where defendant admitsthat at least a portion of the evidence was properly admitted. Without an objection at thetrial to the improper portion of the evidence, it is virtually impossible to decide at theappellate-review stage which details unfairly prejudiced defendant.

Defendant suggests in his brief that the details about the solicitation to murder Lanemight have been proper, but not those about Lane's daughter. Defendant also suggests thatwe should avoid employing the waiver rule by finding that the admission of the other-crimesevidence amounts to plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). However, the plain error rule is to be applied only if the evidence is closely balanced or ifthe error is of such magnitude that there is a substantial risk that defendant was denied a fairtrial. People v. Nielson, 187 Ill. 2d 271, 297 (1999). We do not find the plain error doctrineapplicable to the facts of this case.

The evidence in this case was not closely balanced, even if the evidence of whichdefendant complains is not weighed in that balance. The jury was presented with ampleevidence that defendant robbed Zink's convenience store on March 1, 1999. Lane testifiedthat defendant was the robber. The clerk and several other witnesses corroborated Lane'stestimony with descriptions of the robber that fit defendant's height and build. Defendantadmitted that on March 1, 1999, he kept a gun with ammunition at the motel where he wasstaying, which is located within easy walking distance from Zink's. Several witnessesidentified the gun used in the robbery, and defendant acknowledged at the trial that the gunadmitted into evidence had been his before he traded it to Jones.

Second, the error about which defendant complains is not so substantial that it mighthave deprived defendant of a fair trial. The State called a total of 31 witnesses, and Welty'stestimony was the last during the State's case in chief. Welty's entire testimony was brief,including his testimony recalling defendant's attempt to solicit murder. The only details thatdefendant challenges as inadmissible are Welty's statements that defendant wanted "to takecare of" not only Lane but also her daughter. The trial court would have been well withinits discretion to deny such a defense motion or objection on the basis that Welty's testimonywas relevant to show defendant's consciousness of guilt. See People v. Millighan, 265 Ill.App. 3d 967, 972-73 (1994). The trial court could also have found that the State should beallowed the opportunity to corroborate Lane's statements about defendant's threats,particularly since defendant's attorney questioned Lane extensively during cross-examinationabout these threats. "Illinois courts have long held that an accused cannot complain of theadmission of testimony that was invited by the defendant's own tactics at trial." People v.Topps, 293 Ill. App. 3d 39, 48 (1997).

Defendant makes one final attempt to salvage this issue by claiming ineffectiveassistance of counsel based upon his attorney's failure to preserve this issue for appeal. Ourreview of the record reveals that defense counsel did not fail to object but, rather, chose atrial strategy of using defendant's alleged threats against Lane to call Lane's credibility intoquestion. Defendant's attorney began her cross-examination of Lane by asking why Lanedid not leave defendant at several different opportunities and why she did not go to thepolice with her information for almost two weeks after the crime if she was so afraid ofdefendant for making these threats against her and her daughter. After Lane's testimonyabout defendant's threats, Welty's testimony was largely cumulative. Again, defense counseldid not fail to object to this testimony but used it as a part of her trial strategy thatconcentrated on the incredibility and untrustworthiness of both Lane and Welty. Thedecision whether to object to testimony is generally a matter of trial strategy that is entitledto great deference and does not amount to ineffective assistance. People v. Troutt, 172 Ill.App. 3d 668, 672 (1988). Here, the conduct about which defendant complains is a matterof trial strategy, and defendant has shown no prejudice as a result of his attorney'srepresentation. Therefore, defendant's ineffective-assistance-of-counsel argument fails.

Thus, we find that the doctrine of plain error does not apply to defendant's assertionof error in the admission of other-crimes evidence, that defendant was not deprived of theeffective assistance of counsel, and that defendant has waived our review of this issue.

B. Application of Apprendi

Defendant was convicted of armed robbery, a conviction that requires the sentencingjudge to "make a finding as to whether the conduct leading to conviction for the offenseresulted in great bodily harm to a victim[] and *** enter that finding and the basis for thatfinding in the record." 730 ILCS 5/5-4-1(c-1) (West 1998). Under a separate section of theUnified Code of Corrections (the Unified Code), the Department of Corrections is requiredto "prescribe rules and regulations for the early release on account of good conduct" of thoseincarcerated. 730 ILCS 5/3-6-3(a)(1) (West 1998). When a defendant is convicted of armedrobbery and the trial court makes the finding that the conduct leading to that convictionresulted in great bodily harm to a victim, then the Department of Corrections is allowed togive that prisoner "no more than 4.5 days of good[-]conduct credit for each month of his orher sentence of imprisonment." 730 ILCS 5/3-6-3(a)(2)(iii) (West 1998). In this case, thetrial court made the finding that the victim of defendant's armed robbery suffered greatbodily harm, the result of which is that the Department of Corrections may not givedefendant more than 4.5 days of good-conduct credit per month. In other words, defendantis required to serve 85% of his 16-year sentence.

Defendant claims that this statutory scheme is unconstitutional under the recentUnited States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000). In Apprendi, the Court invalidated a New Jersey statute thatpermitted a sentencing judge to enhance a defendant's sentence beyond the prescribedstatutory maximum if the judge found by a preponderance of the evidence that the crime wascommitted with a racially biased motive. The effect of the sentencing scheme at issue inApprendi was to elevate the defendant's sentence, which would have been between 5 and10 years' imprisonment without the judge's finding, to between 10 and 20 years'imprisonment with the finding. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d 435, 120 S.Ct. at 2351. The Court held, "Other than the fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribed statutory maximum must besubmitted to a jury[] and proved beyond a reasonable doubt." (Emphasis added.) Apprendi,530 U.S. at 490, 147 L. Ed. 2d 435, 120 S. Ct. at 2362-63. After discussing the historicalfoundation for the ruling, the Court acknowledged that it was not suggesting that it was"impermissible for judges to exercise discretion-taking into consideration various factorsrelating both to offense and offender-in imposing a judgment within the range prescribedby statute." (Emphasis in original.) Apprendi, 530 U.S. at 481, 147 L. Ed. 2d 435, 120 S.Ct. at 2358.

In the instant case, defendant argues that the statutory scheme under which he wassentenced is unconstitutional under the rules set forth in Apprendi because the length of timehe is to serve in prison was heightened by the judge's finding of great bodily harm. Thisargument must fail. Whether defendant serves all or part of the 16-year term ofimprisonment to which he was sentenced, that term will not be in excess of the prescribedmaximum penalty for armed robbery, a Class X felony (720 ILCS 5/18-2(b) (West 1998)). Nothing in Apprendi constrains the legislature's ability to define the manner in which asentence imposed within the statutory range must be served.

The rationale upon which the Apprendi decision is based negates defendant'sargument. The Court in Apprendi explained its decision in part based upon its prior decisionin McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). InMcMillan, the defendant challenged Pennsylvania's Mandatory Minimum Sentencing Actas violating his sixth amendment right to a jury trial. McMillan, 477 U.S. at 80, 91 L. Ed.2d at 73, 106 S. Ct. at 2413. That act requires sentencing judges to impose a minimumsentence of five years' imprisonment for certain enumerated felonies if the judge finds, bya preponderance of the evidence, that the defendant visibly possessed a firearm during thecommission of the offense. McMillan, 477 U.S. at 81-82, 91 L. Ed. 2d at 73, 106 S. Ct. at2413. The Court in McMillan noted, "The [Pennsylvania's Mandatory MinimumSentencing] Act operates to divest the judge of discretion to impose any sentence of lessthan five years for the underlying felony; it does not authorize a sentence in excess of thatotherwise allowed for that offense." McMillan, 477 U.S. at 81-82, 91 L. Ed. 2d at 73, 106S. Ct. at 2413-14.

The Court in Apprendi noted that the sentencing scheme reviewed in McMillanremained constitutional under its analysis in Apprendi. We find that the statutory schemeat issue in the case at bar is similar to the sentencing scheme found to be constitutional inMcMillan and again in Apprendi. In McMillan, the sentencing scheme provided for amandatory minimum sentence of five years. In the case at bar, the statutory scheme providesfor a mandatory minimum sentence of 85% of defendant's term of incarceration. Just as inMcMillan, the statutory scheme under which defendant is required to serve a minimumportion of his term of imprisonment " 'neither alters the maximum penalty for the crimecommitted nor creates a separate offense calling for a separate penalty; it operates solely tolimit the sentencing court's discretion in selecting a penalty within the range alreadyavailable to it without the special finding.' " Apprendi, 530 U.S. at 486, 147 L. Ed. 2d 435,120 S. Ct. at 2361 (quoting McMillan, 477 U.S. at 87-88, 91 L. Ed. 2d at 77, 106 S. Ct. at2417).

We follow the rulings of the United States Supreme Court in McMillan and Apprendiand hold that the statutory scheme under which defendant is eligible for no more than 4.5days of good-conduct credit per month is constitutional. We also follow the Fourth DistrictAppellate Court's decision in People v. Garry, 323 Ill. App. 3d 292, 752 N.E.2d 1244(2001), wherein the court held that Apprendi concerns are not implicated by section 3-6-3(a)(2)(iii) of the Unified Code. Garry, 323 Ill. App. 3d at 299, 752 N.E.2d at 1250.

III. CONCLUSION

For all of the reasons stated, we affirm defendant's conviction and sentence.


Affirmed.

GOLDENHERSH and RARICK, JJ., concur.

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