                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Teague, 2013 IL App (1st) 110349




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    BENNIE TEAGUE, Defendant-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1-11-0349


Filed                      February 15, 2013


Held                       The appellate court affirmed defendant’s convictions for the murder of
(Note: This syllabus       his former employer and the attempted murder of three officers who
constitutes no part of     pursued him after his employer was shot and upheld his sentences
the opinion of the court   totaling 135 years, notwithstanding defendant’s contentions that the State
but has been prepared      failed to prove he intended to kill the officers and that the punishment
by the Reporter of         was excessive, since the jury was entitled to reject the argument that
Decisions for the          defendant’s failure to hit any of the officers or their car with his assault
convenience of the         rifle was evidence of a lack of intent.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-9479; the
Review                     Hon. William G. Lacy, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and La Roi Williams, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Michelle Katz, and Janet C. Mahoney, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE GORDON delivered the judgment of the court, with opinion.
                            Presiding Justice Lampkin and Justice Hall concurred in the judgment
                            and opinion.



                                              OPINION

¶1           Defendant Bennie Teague was convicted of the first-degree murder of his former
        employer, Marcus Hendricks, and of attempted first-degree murder of three police officers,
        which occurred while defendant was trying to evade capture for the murder of Hendricks
        earlier that same day. The jury also determined that defendant had personally discharged the
        firearm that caused Hendricks’ death. After hearing factors in aggravation and mitigation,
        the trial court sentenced defendant to 85 years for the first-degree murder of Hendricks,
        which included a 25-year enhancement for personally discharging the firearm that caused
        Hendricks’ death. The trial court also sentenced defendant to 50 years for each conviction
        for attempted murder to run concurrently with each other but consecutively to the 85-year
        sentence for murder. As a result, defendant was sentenced to serve a total of 135 years in the
        Illinois Department of Corrections (IDOC).
¶2           On this direct appeal, defendant raises two claims: (1) that the State failed to prove
        beyond a reasonable doubt that he intended to kill the police officers; and (2) that the trial
        court abused its discretion by sentencing defendant to a total of 135 years.
¶3           On appeal, defendant does not claim that there was insufficient evidence to support his
        conviction for the murder of Hendricks. He makes a claim of insufficient evidence only with
        respect to his convictions for the attempted murders of the three police officers. In addition,
        he does not claim that the State failed to prove that he took a substantial step toward
        committing the attempted murders; he claims only that the State failed to prove that he had
        the intent to kill.
¶4           With respect to the attempted murders, defendant admits in his brief to this court that he
        shot an AK-47 semiautomatic assault rifle 5 times from a distance of 40 feet away “in the
        officers’ presence in an effort to keep them at bay while he attempted to escape” capture for
        the murder of Hendricks. However, defendant claims that the State’s evidence was
        insufficient to prove that he intended to kill the officers, since there was no evidence that his
        shots actually hit either the officers or their vehicle.

                                                  -2-
¶5        For the reasons discussed below, we affirm his conviction and sentence.

¶6                                        BACKGROUND
¶7         At trial, the State’s evidence established that defendant, who had worked for Marcus
       Hendricks, entered Hendricks’ plumbing business at 714 West 115th Street in Chicago on
       April 18, 2008, at 6:30 p.m. and shot Hendricks. When defendant entered Hendricks’
       business, he was wearing a cloth around his head that masked the lower part of his face and
       was carrying a rifle. After the shooting, Hendricks was found sitting in a chair with his feet
       propped up on a desk and he later died from a gunshot wound to his abdomen. No evidence
       was offered concerning a motive for the Hendricks murder.
¶8         After the murder, defendant walked to 113th Street, entered a teal-colored vehicle, and
       drove north on Emerald Avenue and then east onto 112th Street. Officers John McDermott,
       Edward Kos and Dean Korbas, who were nearby in plain clothes in an unmarked vehicle,
       received a radio dispatch and headed to the area. As the officers were driving south on
       Emerald Avenue, a vehicle passed them heading north, driven by the man whom they
       identified in court as defendant. After defendant passed the officers, he drove away at a high
       rate of speed and the officers made a U-turn to follow him and activated their emergency
       lights and siren. After a pursuit that lasted a number of blocks, defendant’s vehicle stopped
       at 111th Street and Lowe Avenue, and defendant exited his vehicle carrying an assault rifle.
       The police officers immediately stopped their vehicle as well.
¶9         The attempted murder charges were based on events that occurred after defendant
       stopped and exited his vehicle, and the officers stopped their vehicle. Since defendant
       exercised his right not to testify at trial, the evidence of his intent during these events was
       based primarily on a description of his actions as provided by the testimony of the three
       officers. We provide the officers’ testimony in detail as follows.
¶ 10       Officer John McDermott testified that, after defendant exited his vehicle, he immediately
       turned around and faced the officers, from approximately 40 feet away. McDermott observed
       defendant raise his rifle to his shoulder and observed a ball of fire and heard a loud crack.
       Defendant began walking forward in “an arc” toward the left side of the officer’s vehicle.
       McDermott was sitting in the driver’s seat, Korbas was sitting in the front passenger seat, and
       Kos was sitting in the backseat. McDermott and Korbas returned fire through the front
       windshield of their vehicle. After firing six shots, McDermott had used up all of his
       ammunition and began to reload, while Korbas continued to fire. McDermott could still
       observe balls of fire emanating from defendant’s rifle.
¶ 11       McDermott testified that, while shooting, defendant began “trotting” backward. Korbas
       and Kos both exited their vehicle, while McDermott was still in the process of reloading.
       Defendant ran approximately two house lengths and then turned around, shouldered his rifle
       and fired again. McDermott, who was still in the vehicle, “believed” that defendant
       “directed” the rifle toward the other officers at that point in time. Although McDermott
       admitted that he was not looking at his partners, he testified that defendant’s shot was aimed
       “more toward” his partners. Defendant then disappeared between two houses, and
       McDermott drove around the block, while Kos and Korbas pursued defendant on foot.

                                                -3-
       Korbas and additional officers who arrived at the scene found defendant in a gangway
       between two houses and were placing him under arrest when McDermott arrived.
¶ 12        Officer Kos testified that, after defendant exited his vehicle, he turned around and
       shouldered a rifle with the muzzle pointing at the officers’ vehicle. Kos then observed a “big
       fire ball” coming toward the officers. Since Kos was sitting in the backseat, he drew his
       weapon but did not return fire because he was afraid of hitting McDermott, who was sitting
       in front of him. McDermott and Korbas, who were sitting in the front, returned fire through
       the windshield. Kos observed defendant moving closer to the police vehicle and then
       observed another fire ball emerge from defendant’s rifle in their direction. Kos then exited
       the vehicle, radioed for help and chased defendant on foot. Defendant turned around and
       “pointed the rifle towards” Kos but then he “moved a little to the left and discharged it
       again.” Kos explained that defendant “pointed the rifle in my direction first, *** but then he
       like made a 25 degree [move] to the left, and that’s when he discharged the rifle.” When Kos
       looked in the direction where the fire ball was traveling, he observed “Korbas duck down.”
       Kos lost sight of defendant when defendant ran between two houses, and Kos ran down an
       alley in an attempt to pursue him. As Kos was looking for defendant, he heard Korbas yelling
       to defendant to lay on the ground.
¶ 13        Officer Korbas testified that, after defendant stopped his vehicle by “slamm[ing] on the
       brake, [he] had his door open, and came out and raised an AK 47 at us.” Korbas estimated
       that their police vehicle was only 40 feet behind defendant’s vehicle. As Korbas “was going
       down for cover,” he observed a flame emerge from the muzzle of defendant’s rifle and heard
       a loud blast. Korbas and McDermott returned fire through the front windshield of their
       vehicle. Defendant approached the police vehicle toward the driver’s side. While McDermott
       was in the process of reloading, Korbas continued to return fire. Defendant started running
       down Lowe Avenue, and Korbas exited the police vehicle and pursued him on foot.
       Defendant turned and Korbas observed another flash from defendant’s rifle, before defendant
       ran between two houses. Korbas pursued defendant, and he later observed other officers
       arrest and handcuff defendant.
¶ 14        John Miller, a crime scene investigator with the Chicago police department, testified that
       there was no damage to the police vehicle except to the windshield and that there were bullet
       strikes on the pavement in front of the vehicle. Miller also testified that he recovered five
       7.62-by-39 caliber fired cartridge cases in the area and that they were consistent with the
       military assault rifle that he recovered from under the deck of a house near where defendant
       was arrested. Fred Tomasek, an expert in the area of firearms identification with the Illinois
       State Police, testified that the rifle was an AK-47 semiautomatic rifle and that the five fired
       cartridge cases had been fired from the rifle.
¶ 15        Based on this forensic testimony and the testimony of the three officers, defense counsel
       argued during closing statements that the State failed to prove that defendant had an intent
       to kill the officers. Defendant disputes only the inferences that can be drawn from his acts
       with respect to his intent. Although the defense made other arguments during its closing
       statements, we discuss this argument in detail since it is the issue on appeal.
¶ 16        Specifically, defense counsel argued that the officers’ vehicle suffered no damage except


                                                -4-
       what the officers themselves had caused and that none of the officers had been injured.
       Relying primarily on the officers’ testimony, defense counsel argued that their description
       of events actually proved defendant’s lack of intent. First, defense counsel argued that
       Officer Kos had testified that defendant had veered his rifle to the side at one time rather than
       take aim directly at Officer Kos:
           “[T]he officer *** said at one point while he’s running out of his car *** [defendant] had
           the gun pointed in that direction, moved about 25 degrees and then shot. Clearly there
           was no intention to shoot and kill police officers. Officer Kos said that. He was right at
           me and then he moved 25 degrees and shot.”
       Next, defense counsel observed that, although Officer McDermott testified that defendant
       moved closer to the police vehicle, there was still no damage to the police vehicle from
       defendant’s rifle:
           “Now, there was what the police officers testified to and whatever happened out there
           was an extremely horrifying scene. Because the officers were so convinced that they were
           going to be killed they fired their weapon right through the windshield of the car that they
           were in. Clearly, they believed that they were going to be shot. You know, the example
           that [the prosecutor] gave a little while ago about playing and about you point at
           somebody and you say bang, bang, you’re dead and that person is supposed to fall down,
           well, the car, the police officers’ car doesn’t have one mark on it from an AK47 bullet.
           As a matter of fact, there’s no damage to the police car at all except for what the police
           did themselves. I understand why they–one would understand why they did it, but
           there–if [defendant] were out there and was shooting at this police car and he shot five
           times and they kept saying he took aim and just fired, it doesn’t come close to the police
           car.
                Clearly, if it were [defendant] out there firing he was not intending to kill the police
           officers. I believe Officer McDermott and one of the other officers said that [defendant]
           *** made some kind of an arc or something. They’re suggesting he was coming closer.
           *** Even when closer there is no damage to the vehicle. Maybe the person wanted to get
           away with that AL47[,] there’s no damage to that squad [car] whatsoever. There is
           clearly no evidence that the person shooting was attempting to kill any of the police
           officers.”
       Toward the end of his closing, defense counsel reiterated that Officer Kos had testified that
       defendant had pointed his rifle at Kos and then moved it away:
                “There were a couple things that I wanted to address, things that the State said and,
           again, although [the prosecutor] says that my client is aiming at the police you’ve got
           Officer Kos *** saying he appeared to be pointing his weapon at cops 25 degrees and
           then fired his gun. Nothing is ever hit. *** There’s nothing to indicate that there was any
           kind of intent to kill.”
¶ 17       After hearing the evidence and argument, the jury found defendant guilty of three counts
       of attempted first-degree murder of a peace officer, namely, Officers McDermott, Kos and
       Korbas. The jury also found defendant guilty of the first-degree murder of Hendricks and
       determined that defendant had personally discharged the firearm that proximately caused

                                                 -5-
       Hendricks’ death.
¶ 18       After denying defendant’s posttrial motion for a new trial, the trial court sentenced
       defendant to 85 years for the first-degree murder of Hendricks, which included a mandatory
       25-year enhancement for discharging a firearm that proximately caused Hendricks’ death.
       The trial court also sentenced defendant for 50 years for each conviction for attempted first-
       degree murder. The trial court ordered that the sentences for attempted murder were to be
       served concurrently to each other but consecutively to the murder sentence, resulting in a
       total of 135 years. The trial court then denied defendant’s motion to reconsider his sentence,
       and this appeal followed.

¶ 19                                        ANALYSIS
¶ 20       On this direct appeal, defendant raises two claims: (1) that the evidence at trial was
       insufficient to support his convictions for attempted murder because the State failed to prove
       beyond a reasonable doubt that he intended to kill the attempted-murder victims; and (2) that
       the trial court abused its discretion by sentencing defendant to a total of 135 years with
       IDOC. For the reasons discussed below, we affirm defendant’s conviction and sentence.

¶ 21                                  I. Sufficiency of the Evidence
¶ 22         First, defendant claims that the State failed to prove beyond a reasonable doubt that he
       intended to kill the three peace officers. To prove a defendant guilty of attempted murder,
       the State must prove: (1) that defendant performed an act that constituted a substantial step
       toward committing a murder; and (2) that he had the criminal intent to kill the victim. People
       v. Green, 339 Ill. App. 3d 443, 451 (2003). On this appeal, defendant contests only the
       second element, which is that he had no intent to kill the police officers.
¶ 23         When a defendant challenges the sufficiency of the evidence, our standard of review is
       whether, when viewing the evidence in the light most favorable to the State, any rational trier
       of fact could have found the essential elements of the crime beyond a reasonable doubt.
       People v. Davison, 233 Ill. 2d 30, 43 (2009) (citing Jackson v. Virginia, 443 U.S. 307, 319
       (1979)).
¶ 24         On appeal, defendant claims that no rational trier of fact could have found that he had an
       intent to kill the officers. This court has observed that, since intent to kill is a state of mind,
       it is “usually difficult to establish by direct evidence” and thus it is usually “inferred from the
       surrounding circumstances.” People v. Parker, 311 Ill. App. 3d 80, 89 (1999); People v.
       Jones, 55 Ill. App. 3d 446, 451 (1977). See also People v. Williams, 165 Ill. 2d 51, 64 (1995);
       In re Stern, 124 Ill. 2d 310, 315 (1988). These surrounding circumstances may include the
       character of the assault, the use of a deadly weapon, and the nature and extent of the victim’s
       injuries. Green, 339 Ill. App. 3d at 451; Parker, 311 Ill. App. 3d at 89. See also Williams,
       165 Ill. 2d at 64.
¶ 25         Defendant claims that no rational trier of fact could have found that he intended to kill
       the officers because, although he was firing an AK-47 semiautomatic assault rifle from a
       distance of only 40 feet away, there was no evidence that his shots hit either the officers or


                                                  -6-
       their vehicle. Defendant claims that the only plausible explanation for his poor
       marksmanship is that he had no intent to hit the officers, and that he was only trying to keep
       them at bay while he attempted to escape.
¶ 26        When a defendant challenges the sufficiency of the evidence, it is not the function of the
       reviewing court to “retry” the defendant (People v. Wheeler, 226 Ill. 2d 92, 114 (2007)) or
       “to substitute its judgment for that of the fact finder” (People v. Jackson, 232 Ill. 2d 246,
       280-81 (2009)). It is the responsibility of the fact finder, not the reviewing court, to
       determine the credibility of witnesses, to resolve any conflicts in the evidence and to draw
       reasonable inferences from the evidence. Jackson, 232 Ill. 2d at 280-81. “ ‘The very fact of
       firing a gun at a person supports the conclusion that the person doing so acted with an intent
       to kill.’ ” People v. Ephraim, 323 Ill. App. 3d 1097, 1110 (2001) (quoting People v. Thorns,
       62 Ill. App. 3d 1028, 1031 (1978)). See also People v. Garcia, 407 Ill. App. 3d 195, 201-02
       (2011) (a fact finder could reasonably infer an intent to kill “from the act of firing two bullets
       in the direction of an occupied car and a crowded street”); Green, 339 Ill. App. 3d at 451-52
       (a jury could reasonably infer an intent to kill from evidence that defendant fired a pistol four
       to five times in the direction of officers seated in a vehicle, even though defendant missed
       them at close range); People v. Bailey, 265 Ill. App. 3d 262, 273 (1994) (defendant’s
       “conduct in shooting down a breezeway in which several people were running is sufficient
       evidence to prove a specific intent to kill”).
¶ 27        Poor marksmanship is not a defense to attempted murder, and it is a question of fact for
       the jury to determine whether defendant lacked the intent to kill or whether defendant was
       simply unskilled with his weapon and missed his targets. Green, 339 Ill. App. 3d at 451-52;
       People v. Johnson, 331 Ill. App. 3d 239, 251 (2002) (“While none of the shots fired by
       defendant actually struck [the victim], poor marksmanship is not a defense to attempted first
       degree murder.”).
¶ 28        In Green, defendant made virtually the same argument that defendant makes here.
       “Specifically, Green argue[d] that had he intended to hit the officers, he could not possibly
       have missed at close range *** and the fact that no officer was struck is therefore sufficient
       to raise a doubt as to his intent to kill when he fired the shots.” Green, 339 Ill. App. 3d at
       451. In rejecting Green’s argument, we explained that the defense “could reasonably argue
       that the fact that Green failed to strike the officers could support an inference that he lacked
       the intent to kill. However, that fact also supports the alternative inference that Green was
       simply unskilled and missed his targets. The decision as to which of competing inferences
       to draw from the evidence is the responsibility of the trier of fact.” Green, 339 Ill. App. 3d
       at 451-52.
¶ 29        Similarly, in the case at bar, defendant was free to argue to the jury that his failure to hit
       the officers supported an inference that he lacked the intent to kill them. However, as in
       Green, the jury in the case at bar was also free to reject that argument and to draw instead the
       competing inference that defendant was simply an unskilled shooter. The decision belonged
       to the jurors, and we will not substitute our judgment for theirs on appeal. Jackson, 232 Ill.
       2d at 280-81 (when a defendant challenges the sufficiency of the evidence on appeal, the
       reviewing court will not “substitute its judgment for that of the fact finder”). Thus, we affirm
       defendant’s convictions for attempted murder.

                                                  -7-
¶ 30                                         II. Sentencing
¶ 31       Defendant’s second claim is that the trial court abused its discretion when it sentenced
       defendant, who was 39 years old at the time of the offense, to a total of 135 years, where
       defendant was from a troubled home, where defendant did not have a criminal background
       with an extensive history of violence, and where defendant claimed to have rehabilitative
       potential as shown by his associate college degree and several certificates from educational
       institutions.
¶ 32       A reviewing court will disturb a trial court’s sentencing decision only if the trial court
       abused its discretion. People v. Alexander, 239 Ill. 2d 205, 212 (2010). “A sentence will be
       deemed an abuse of discretion where the sentence is ‘greatly at variance with the spirit and
       purpose of the law, or manifestly disproportionate to the nature of the offense.’ ” Alexander,
       239 Ill. 2d at 212 (quoting People v. Stacey, 193 Ill. 2d 203, 210 (2000)).
¶ 33       “ ‘A reviewing court gives great deference to the trial court’s judgment regarding
       sentencing because the trial judge, having observed the defendant and the proceedings, has
       a far better opportunity to consider these factors than the reviewing court, which must rely
       on the “cold” record.’ ” Alexander, 239 Ill. 2d at 212-13 (quoting People v. Fern, 189 Ill. 2d
       48, 53 (1999)). “ ‘The trial judge has the opportunity to weigh such factors as the defendant’s
       credibility, demeanor, general moral character, mentality, social environment, habits, and
       age. [Citations.] Consequently, the reviewing court must not substitute its judgment for that
       of the trial court merely because it would have weighed these factors differently.’ ”
       Alexander, 239 Ill. 2d at 213 (quoting Stacey, 193 Ill. 2d at 209).
¶ 34       In the case at bar, defendant does not claim that the trial court considered any improper
       factors at sentencing. In addition, defendant states in his brief to this court that his counsel
       fully informed the trial court at sentencing of all the mitigating information that he now
       brings to our attention on appeal. Defendant contests only the manner in which the trial court
       weighed this information.
¶ 35       In his brief to us, defendant argues that, since “the trial court effectively imposed a
       sentence of natural life in prison without parole,” it eliminated any possibility for
       rehabilitation and thus violated the Illinois Constitution’s requirement that a sentencing court
       must consider an offender’s rehabilitative potential.
¶ 36       What defendant overlooks is that our constitution also requires a sentencing court to
       consider the seriousness of the offense. Our constitution states that: “[a]ll penalties shall be
       determined both according to the seriousness of the offense and with the objective of
       restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Our supreme court
       has admonished its appellate courts that a defendant’s rehabilitative potential is not entitled
       to a greater weight than the seriousness of the offense. Alexander, 239 Ill. 2d at 214; People
       v. Coleman, 166 Ill. 2d 247, 261 (1995). At sentencing, the State presented the victim impact
       statement of Sharon Hendricks, the mother of the murder victim, who stated that her son had
       hired defendant through an ex-offender reentry program and that her son would defend
       defendant when others complained that he was weird, different and difficult to work with.
       The evidence at trial showed that defendant had shot Hendricks, his former employer, while
       Hendricks sat at his desk with his feet up. The trial court stated:


                                                 -8-
            “I have been involved in this criminal justice system for over 20 years now, 14 years of
            it as a judge. I consider this defendant and this particular murder, among the most cruel
            and heartless and calculated cold[-]blooded murders that I’ve ever encountered. Then
            after [defendant] commits this murder, he leads the Chicago Police Officers on a chase
            through the streets of our City and opens fire on three Chicago Police Officers in a
            residential neighborhood, and then continues to fire at them. In fact, he’s firing a shot as
            he was trying to make his final escape ***.”
       In addition, defendant’s criminal history report reveals several prior convictions for weapons
       offenses, including armed robbery and three convictions for unlawful use of a weapon.
¶ 37        Despite the seriousness of his present and past offenses, defendant asks this court to
       reduce his sentence. In Alexander, our supreme court reversed the appellate court when it
       reduced defendant’s 24-year sentence for aggravated discharge of a firearm. Alexander, 239
       Ill. 2d at 208, 215 (sentenced as a Class X offender). In Alexander, the State’s evidence at
       trial established that the 15-year-old defendant had fired five shots in a crowded school
       hallway. Alexander, 239 Ill. 2d at 208, 213-14. As in the case at bar, the defendant in
       Alexander argued that his sentence failed to consider his troubled background or his potential
       for rehabilitation. Alexander, 239 Ill. 2d at 214. Finding that his sentence was not
       disproportionate, our supreme court observed that the five shots were fired into a group of
       people “with total disregard for the potential harm to others.” Alexander, 239 Ill. 2d at 214.
¶ 38        Similarly, in the case at bar, the State’s evidence established that defendant fired multiple
       shots at a group of officers, on a residential street, with total disregard for the potential harm
       to others. However, in the case at bar, defendant was not a 15-year-old schoolboy as in
       Alexander but a 39-year-old man who had received prior opportunities for rehabilitation.
       During defendant’s trial, a bystander testified that, when the shooting started in the street, the
       bystander shoved to the ground three children who had been playing in front of his
       grandmother’s house and tried to shield them with his body by lying on top of them.
       Fortunately, no one was hit.
¶ 39        Having reviewed all the factors in mitigation and aggravation presented at sentencing,
       and having considered our constitution’s twin goals of retribution and rehabilitation, we
       cannot find that the trial court abused its discretion in sentencing defendant.

¶ 40                                    CONCLUSION
¶ 41       For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 42       Affirmed.




                                                  -9-
