                                                                        SECOND DIVISION
                                                                        November 17, 2009




No. 1-07-0586


THE PEOPLE OF THE STATE OF ILLINOIS                         )   Appeal from the
                                                            )   Circuit Court of
                     Plaintiff-Appellee,                    )   Cook County
                                                            )
v.                                                          )
                                                            )
JOHN LAVELLE,                                               )   Honorable
                                                            )   Marcus R. Salone,
                     Defendant-Appellant.                   )   Judge Presiding.




       JUSTICE KARNEZIS delivered the opinion of the court:

       Following a jury trial, defendant John Lavelle was convicted of felony murder

(720 ILCS 5/9-1(a)(3) (West 2002)) and was sentenced to 60 years’ imprisonment.

Defendant was also found to have personally discharged a firearm during the

commission of the offense that proximately caused the victim’s death and was

sentenced to an additional 40 years’ imprisonment (730 ILCS 5/5-8-1 (a)(1)(d)(iii) (West

2004)). On appeal, defendant argues: (1) he was denied a fair trial when the State

elicited evidence of the victim’s family and personal traits designed to arouse the

emotions of the jury; (2) counsel was ineffective for failing to request a jury instruction

on self-defense; (3) the State failed to prove that defendant personally discharged a
1-07-0586


firearm that proximately caused the victim’s death during the commission of first degree

murder; and (4) his 60-year sentence for felony murder is excessive. For the following

reasons, we affirm the judgment of the trial court, but modify defendant’s sentence.

                                      BACKGROUND

       On May 3, 2002, defendant and codefendants Alexander Valencia, Carlos

Santos and Estaban Perkins1 went to the home of James Smith armed with handguns.

James Smith’s son Jeffrey suffered gunshot wounds as a result of a shootout that

occurred. Two days later Jeffrey died from those gunshot wounds. Defendant and his

codefendants were subsequently charged in a 39-count indictment. The State chose to

proceed to trial on three counts of felony murder predicated on attempted aggravated

kidnapping, attempted residential burglary and attempted aggravated unlawful restraint.

       Ortancia Smith testified that on May 3, 2002, at approximately 9:30 p.m., she

heard someone pounding on the living room window. She heard her brother Jeffrey

say, “James [sic] not here.” She heard more pounding on the window and went

upstairs to her bedroom to look out the window. She saw a Jeep Cherokee parked in

front of the house with its lights on. She met Jeffrey at the top of the stairs and saw him

go into a closet. She then followed Jeffrey downstairs and looked out the living room

window. She saw two men standing there holding guns. One of the men she

recognized as Carlos Santos, a man that had come to the house looking for her father.

She yelled at Jeffrey not to open the door. She did not see anything in Jeffrey’s hands.


       1
           Codefendants Valencia, Santos and Perkins are not parties to this appeal.

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Jeffrey opened the door.

      Ortancia heard gunshots and saw Jeffrey fall backwards. Jeffrey was bleeding

from the side of his neck. She put pressure on his wound and called an ambulance.

      Ortancia spoke to detectives twice about the incident. The second time, she told

detectives that Jeffrey had a gun. She also viewed a photo line-up at the police station

and positively identified Carlos Santos as one of the people she saw outside her home.

She also stated that in the week prior to the shooting she saw defendant at her house

at least twice looking for her father. Later, she identified Alex Valencia as a person who

had come to her home on previous occasions looking for her father.

      Tanya Jeffries testified that she and Jeffrey Smith had a son together and that

she was at Jeffrey’s house on May 3, 2002. At about 9:30 p.m. she heard a knock on

the living room window and looked out. She saw three or four men standing on the

porch. Tanya told Jeffrey what she saw and Jeffrey went upstairs.

      When Jeffrey came back downstairs Tanya asked the men, through the window,

what they wanted. They stated that they wanted to know if James was home. Tanya

told them that James wasn’t there. Tanya heard Ortancia tell Jeffrey that the men had

guns. Jeffrey told Tanya to call the police so Tanya called 911. She then heard

gunshots. When she walked to the door she saw Jeffrey lying on the ground bleeding.

      Tanya testified that subsequent to the shooting she identified a photo of Carlos

Santos. Tanya also testified that she did not see Jeffrey with a gun.

      The parties stipulated that, if called to testify, Deputy Cook County Medical


                                            3
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Examiner Dr. Kendall Crowns would testify that the cause of Jeffrey Smith’s death was

a gunshot wound to the chest and the manner of death was homicide. There was no

evidence of close range firing.

       Sergeant Anthony Wojcik of the Chicago police department was present at the

scene of the crime. Sergeant Wojcik was notified that Jeffrey Smith was taken to the

hospital and was in critical condition.

       Sergeant Wojcik spoke with James Smith at Area 5 headquarters. After

speaking with James Smith, Sergeant Wojcik began a search for Carlos Santos and

Alexander Valencia. Sergeant Wojcik also spoke with Ortancia and Tanya separately.

Both women identified Carlos Santos from a photo array. The next day, Sergeant

Wojcik learned that Jeffrey died from his wounds.

       Carlos Santos was arrested on May 14, 2002. Alexander Valencia was arrested

on May 15, 2002. Following these arrests, Sergeant Wojcik went in search of “Big

John,” a Cook County correctional officer who worked security at J&J Sound Shop on

the south side.

       On May 16, 2002, Sergeant Wojcik and other detectives planned a “sting”

operation where an undercover officer would meet with defendant and bring him $8,000

in marked currency in two separate bags as payment for his involvement in the shooting

that led to Jeffrey’s death. Sergeant Wojcik and the other detectives planned to video

tape and audio record this meeting.

       At 8 p.m. on May 16, 2002, Investigator Hernandez, acting undercover, met with


                                           4
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defendant at a Burger King restaurant. Defendant approached Investigator

Hernandez’s table and the two men spoke. Defendant was arrested outside the

Burger King and detectives recovered two loaded handguns, each with three

magazines. Defendant was wearing a bulletproof vest and had his Cook County

Sheriff’s identification and badge. Defendant also had two separate bags, with $4,000

in each, containing the marked money.     At the police station, defendant signed a

consent to search his home.

      Officers subsequently searched defendant’s home. A Glock 21 weapon was

found in a dresser in the master bedroom, along with three magazines and live rounds.

The weapon had been dismantled and the barrel of the gun was not found in the

dresser.

      Defendant executed a handwritten statement in the presence of Assistant State’s

Attorney Arunas Buntinas, which was admitted into evidence and published to the jury.

In the statement he acknowledged that he waived his Miranda rights. Defendant stated

that he was a deputy sheriff correctional officer assigned to 26th and California. He

also worked part-time as a security guard at J&J Electronics on south State Street. He

had known Alex Valencia for about a year.

      On May 3, 2002, Valencia spoke with defendant at J& Electronics and told him

that he needed help collecting money from a person. Defendant told Valencia to meet

him at another J&J Electronics store at 8p.m. and that he would bring Esteban Perkins,

another Cook County correctional officer. Valencia told defendant that he would pay


                                            5
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defendant and Perkins $5,000 each.

       Defendant went to the other J& Electronics located at 63rd and Spaulding in

Chicago, and met Valencia and Santos. They planned to go to James Smith’s home to

collect the money. If Smith did not come to the door with the money, they planned to

go inside the house and get the money and make sure that the man did not have a gun.

If Smith did not have the money, they would take him from the house.

       Defendant, Santos and Perkins walked onto the porch of James’s house and

Santos knocked on the window. A voice from inside asked what they wanted and

Santos asked for James Smith. Jeffrey then answered the door holding a big gun in his

hand. Perkins turned and ran, while defendant and Santos backed down the stairs.

       Jeffrey then began shooting. Defendant and Santos ran and took cover behind

some parked cars. Defendant fired one shot at Jeffrey. They all fled the scene. They

went to a Chinese restaurant and defendant and Perkins were paid $1,000 for their

participation.

       Defendant used his Glock, a semiautomatic weapon that fires .45-caliber bullets,

to fire at Jeffrey. Several days after the shooting, he took the barrel out of the gun and

ground it down with an electric grinding wheel until the barrel disintegrated.

       Kurt Murray, a forensic scientist with the Illinois State Police, and also an expert

in the field of firearm and tool mark examination, testified that he examined a fired .45-

caliber bullet recovered from the medical examiner’s office and determined that it was

fired from either a Glock Model 21 or a Glock Model 30, both semiautomatic pistols.


                                             6
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Murray received seven discharged casings in total: six .10-millimeter caliber casings

and one .45-caliber casing. Murray found that the .10-millimeter casings were fired

from a different gun than the .45-caliber casing. Therefore, he concluded that there

were at least two different firearms used.

       Murray received the Glock 21 recovered from defendant’s home and as well as

some unfired .45-caliber cartridges. Some of the unfired cartridges were the same

brand as the .45-caliber cartridges found at the scene. The Glock 21 was in pieces and

was missing its barrel. In order to test the gun, he obtained a compatible barrel from

the Rockford Illinois State Police forensic laboratory. After conducting firing tests with

the replacement barrel, Murray testified that the .45-caliber cartridge case recovered

from the scene was fired from the reconstructed Glock 21. However, he would not

state with certainty whether the .45-caliber bullet recovered from the medical

examiner’s office had been fired from the Glock 21 due to the fact that the Glock 21

was missing its barrel.

       Defendant’s testimony was generally consistent with his statement. Defendant

testified that Valencia asked him to act as security for $5,000. Defendant claimed that

he was told that the collection of money had nothing to do with guns or drugs.

Defendant stated that he was dressed in jeans with a zipper front sweatshirt, which

covered his vest. Neither his vest, weapon nor badge was visible. Defendant also

testified that when he and the other men approached the Smith house and were told

that James was not home, he and Perkins started to turn away from the house.


                                             7
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Defendant further testified that when Jeffrey answered the door with the gun, he feared

for his life so he put his hands in the air and told Jeffrey that they were leaving and not

to do anything stupid. After defendant and Santos ran away, they heard Jeffrey shoot

the gun. He continued to run and hid behind a car. He thought if he fired a round at

Jeffrey, Jeffrey would go back into the house and they could get away. Both he and

Santos fired a shot at Jeffrey. They fled and later Valencia, Perkins and defendant

were dropped off at a laundromat where they were met by some individuals who gave

defendant and Perkins $1,000 apiece.

       Defendant also testified that on May 16, 2002, he went to a Burger King

restaurant to meet a man whom he thought was Valencia’s uncle. He went there to

collect the remainder of the money promised to him and Perkins for acting as “security.”

Defendant told the undercover officer that no one was supposed to get hurt and that he

did not want to have anything to do with picking up drugs. When he left Burger King, he

was arrested.

       While being transported, defendant asked for a lawyer. Sergeant Wojcik told

him it was not necessary. Sergeant Wojcik told defendant that he had nothing to worry

about, that the detectives were really after Santos and Valencia. After being placed in

an interview room, defendant again asked for a lawyer. Sergeant Wojcik told him that

there was nothing they could do for defendant if he got a lawyer involved. After making

several phone calls, defendant agreed to help the police. Defendant learned from

Sergeant Wojcik that Santos and Valencia had planned on breaking into Smith’s house,


                                             8
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restraining him and possibly kidnapping him. Defendant testified that he was unaware

of the plan and at no time did anyone try to break into Smith’s home. Defendant also

testified that he was unaware that the purpose of the visit was to collect a drug debt.

       The State called Sergeant Wojcik in rebuttal. Sergeant Wojcik testified that

defendant never asked for an attorney during transport or at the station. Sergeant

Wojcik further testified that he did not make a deal with defendant in return for his

cooperation and never informed defendant about the facts of the case or what Santos

or Valencia had told him. Defendant told Sergeant Wojcik that this was all about

collecting a drug debt.

       After hearing all of the evidence, the jury found defendant guilty of felony murder

and also found that the defendant personally discharged a firearm during the course of

the first degree murder that proximately caused the death of Jeffrey Smith. Defendant

was sentenced to 60 years’ imprisonment for murder with a 40-year sentence

enhancement for a total of 100 years’ imprisonment. It is from this judgment that

defendant now appeals.

                                        ANALYSIS

                                   Improper Evidence

       Defendant first argues that he was denied a fair trial when the State elicited

evidence of the decedent’s family and his personal traits, which was wholly designed to

arouse the emotions of the jury and resulted in prejudice to defendant.

       Defendant first contends it was error when Sandra Smith, Jeffrey Smith’s


                                             9
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mother, testified that she had eight children ranging from 32 years old to 10 years old.

On the day that Jeffrey was shot, five of the children were living with her, including

Jeffrey, Jeffrey’s girlfriend Tanya and their children. Sandra Smith also testified that

when she last saw Jeffrey, he was in the living room watching TV with Tanya and his

children. Jeffrey walked Sandra to her car when she was leaving and she left him

laughing and talking with the neighbors.

       Defendant also objects to Ortencia’s testimony regarding who was living in the

house on the day of the shooting. Ortencia testified that five of her siblings, in addition

to Jeffrey’s girlfriend Tonya, and their children were living in the house on the day of the

shooting. Ortencia also testified that on the day of the shooting she came home from

work and went upstairs to change her clothes and talked to Jeffrey for about 20

minutes. Jeffrey hugged her and told her that he loved her. She also testified that on

the evening of his death, Jeffrey was laughing and playing with his children.

       The State argues, and we agree, that defendant has forfeited review of this issue

by failing to object at trial and failing to include this issue in his posttrial motion. People

v. Enoch, 122 Ill. 2d 176, 186 (1988). However, defendant urges us to consider this

issue for plain error.

       The plain error doctrine is best outlined in People v. Herron, 215 Ill. 2d 167, 186-

87 (2005).

              "[w]e reiterate: the plain-error doctrine bypasses normal forfeiture

       principles and allows a reviewing court to consider unpreserved error when either


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       (1) the evidence is close, regardless of the seriousness of the error, or (2) the

       error is serious, regardless of the closeness of the evidence. In the first instance,

       the defendant must prove 'prejudicial error.' That is, the defendant must show

       both that there was plain error and that the evidence was so closely balanced

       that the error alone severely threatened to tip the scales of justice against him.

       The State, of course, can respond by arguing that the evidence was not closely

       balanced, but rather strongly weighted against the defendant. In the second

       instance, the defendant must prove there was plain error and that the error was

       so serious that it affected the fairness of the defendant's trial and challenged the

       integrity of the judicial process.” Herron, 215 Ill. 2d at 186-87.

However, before considering plain error, we must first consider whether error

occurred at all. People v. Harris, 225 Ill. 2d 1, 31 (2007).

       In Harris, our supreme court considered whether error occurs when life and

death witnesses testify as to the deceased’s family.

              “ ‘ “[W]here testimony in a murder case respecting the fact the deceased

       has left a spouse and family is not elicited incidentally, but is presented in such a

       manner as to cause the jury to believe it is material, its admission is highly

       prejudicial and constitutes reversible error unless an objection thereto is

       sustained and the jury instructed to disregard such evidence. In like manner, we

       have held that jury argument by the prosecution which dwells upon the

       decedent's family or seeks to relate a defendant's punishment to the existence of


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       family is inflammatory and improper. [Citations.]” ’ “ Harris, 225 Ill. 2d at 32,

       quoting People v. Hope, 116 Ill. 2d 265, 275 (1986), quoting People v. Bernette,

       30 Ill. 2d 359, 371 (1964).

However, the Harris court noted that murder victims do not live in a vacuum. Harris,

225 Ill. 2d at 32, citing People v. Free, 94 Ill. 2d 378, 415 (1983). Therefore, every

mention of a deceased’s family does not automatically entitle the defendant to a new

trial. Harris, 225 Ill. 2d at 30-31, citing Hope, 116 Ill. 2d at 276.

       Neither Sandra’s nor Ortencia’s testimony was error. Both testified as to who

was present in the home and to the events of the evening prior to the shooting. This

testimony came in response to procedural background questions, which had no

bearing on defendant’s guilt or innocence. Their testimony was properly admitted as life

and death testimony. Harris, 225 Ill. 2d at 32.

       Next, defendant claims that the comments made by the State in closing

argument regarding Jeffrey’s character and the fact that he was at home with his family

when defendant and others arrived was error. During closing argument, the prosecutor

may properly comment on the evidence presented or reasonable inferences drawn from

that evidence, respond to comments made by defense counsel which clearly invite

response, and comment on the credibility of witnesses. People v. Rader, 178 Ill. App.

3d 453, 466 (1988). In reviewing whether comments made during closing argument are

proper, the closing argument must be viewed in its entirety and remarks must be

viewed in context. People v. Kitchen, 159 Ill. 2d 1, 38 (1994).         In this case it cannot be


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said that the State’s comments were outside the bounds afforded to prosecutors in

making closing arguments.

                                Ineffective Assistance

       Defendant next argues that trial counsel was ineffective for failing to request

Illinois Pattern Jury Instructions, Criminal (4th ed. 2000), No. 24-25.09 (hereinafter IPI

Criminal 4th). IPI 4th Criminal No. 24-25.09 states:

              “24-25.09 Initial Aggressor’s Use of Force

              A person who initially provokes the use of force against himself is

       justified in the use of force only if

              [1] the force used against him is so great that he reasonably believes

       he is in imminent danger of death or great bodily harm, and he has exhausted

       every reasonable means to escape the danger other than the use of force

       which is likely to cause death or great bodily harm to the other person.

                                                    [or]

              [2] in good faith, he withdraws from physical contact with the other person

       and indicates clearly to the other person that he desires to withdraw and

       terminate the use of force, but the other person continues or resumes the

       use of force.”

       To prevail on a claim of ineffective assistance of counsel, a defendant must

satisfy the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 80

L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064(1984). A defendant must show that (1) trial


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counsel's representation fell below an objective standard of reasonableness, and (2) he

was prejudiced by the deficient performance. Strickland, 466 U.S. at 687, 80 L. Ed. 2d

at 693, 104 S. Ct. at 2064; People v. Albanese, 104 Ill. 2d 504, 525 (1984). Where the

defendant fails to prove prejudice, the reviewing court need not determine whether

counsel's performance constituted less than reasonable assistance. Strickland, 466

U.S. at 697, 80 L. Ed.2d at 699, 104 S. Ct. at 2069; People v. Flores, 153 Ill. 2d 264,

284 (1992). The defendant bears the burden of overcoming a strong presumption in

favor of finding that counsel’s advocacy was effective. Albanese, 104 Ill. 2d at 525.

       Under normal circumstances, self-defense cannot be asserted as a defense to

felony murder. People v. Moore, 95 Ill. 2d 404, 411 (1983). The rationale for

prohibiting a defendant from asserting self-defense to a felony-murder charge is that

“an individual cannot claim that he was provoked by a person against whom he has

already committed or attempted to commit a forcible felony. “ People v. Williams, 164

Ill. App. 3d 99, 109 (1987). Therefore, “a defendant cannot raise a justification defense

if he or she sets into motion a course of felonious conduct.” People v. Luckett, 339 Ill.

App. 3d 93, 100 (2003), citing People v. Mills, 252 Ill. App. 3d 792, 799 (1993); See

also 720 ILCS 5/9 (a)(3), 7-4(a) (West 2002).

       At the instructions conference, defense counsel requested that the jury be

instructed using IPI Criminal 4th No. 24-25.06, which reads:

              “A person is justified in the use of force when and to the extent that he


       reasonably believes that such conduct is necessary to defend [(himself)

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      (another) ] against the imminent use of unlawful force.

               [However, a person 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 [ (imminent death or great bodily harm to

      [(himself) (another) ] ) (the commission of ____) ].]” IPI Criminal 4th No. 24-

      25.06.

The trial court denied defense counsel’s request for IPI Criminal 4th No. 24-25.06.

      We cannot say that defendant suffered any prejudice as a result of defense

counsel’s failure to request IPI Criminal 4th No. 24-25.09. First, there is no evidence

that had defense counsel requested IPI Criminal 4th No. 24-25.09 that the trial court

would have allowed it given that the court denied defendant’s request for IPI Criminal

4th No. 24-25.06. In addition, IPI Criminal 4th No. 24-25.09 cannot be given without IPI

Criminal 4th No. 24-25.06.

      In People v. Chatman, 381 Ill. App. 3d 890 (2008), the court found error where

IPI Criminal 4th No. 24-25.09 was submitted to the jury without IPI Criminal 4th 24-

25.06. The court reasoned:

      “The jury was given an impossible truncated understanding of self-defense in

      that IPI Criminal 4th No. 24-25.09 was not accompanied by IPI Criminal No.

      24.25.06. IPI Criminal 4th No. 24-25.09 is subject to a predicate fact, that

      defendant was the initial aggressor. IPI Criminal 4th No. 24-25.09 includes


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       no alternative standard of self-defense to be applied if the predicate is absent;

       rather, the predicate is stated as a given. Where IPI Criminal 4th No. 24-25.09

       is submitted without IPI Criminal 4th No. 24-25.06 (the default or basic standard

       of self-defense), the jury is compelled to assume that the defendant was the

       initial aggressor and therefore had a diminished right of self-defense.”

       Chatman, 381 Ill. App. 3d at 901.

       According to Chatman, even if defense counsel had requested IPI Criminal 4th

No. 24-25.09, it would have been error to give IPI Criminal 4th No. 24-25.09 without IPI

Criminal 4thNo. 24-25.06. Therefore, defendant suffered no prejudice as a result of

defense counsel’s failure to request IPI Criminal 4th No. 24-25.09.

                                     Proximate Cause

       Defendant next claims that the State failed to prove that he fired the shots that

killed Jeffrey Smith. Defendant does not challenge the sufficiency of the evidence

supporting his murder conviction, but rather argues that the State failed to prove

beyond a reasonable doubt that he personally discharged a firearm that proximately

caused Jeffrey’s death. Defendant claims that the 40-year sentence enhancement

must be vacated.

       When a defendant is challenging the sufficiency of the evidence, the relevant

inquiry is whether, after viewing all of the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541 (1999). The
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trier of fact is in the best position to determine the credibility of the witnesses, to resolve

any inconsistencies or conflicts in their testimony, to assess the proper weight to be

given to their testimony and to draw reasonable inferences from all of the evidence.

People v. Cochran, 323 Ill. App. 3d 669, 679 (2001).

       The penalty for first degree murder is not less than 20 years’ imprisonment

and not more than 60 years’ imprisonment. 730 ILCS 5/5-8-1(a)(1)(a) (West 2004).

However, subsection (iii) of section 5-8-1 of the Unified Code of Corrections (the Code),

also known as the firearm enhancement provision, provides:

              "(a) Except as otherwise provided in the statute defining the offense, a

       sentence of imprisonment for a felony shall be a determinate sentence

       set by the court under this Section, according to the following limitations:

                      (1) for first degree murder,

                                             ***

                             (d) ***

                             ***

                             (iii) if, during the commission of the offense, the person

                      personally discharged a firearm that proximately caused great

                      bodily harm, permanent disability, permanent disfigurement, or

                      death to another person, 25 years or up to a term of natural life

                      shall be added to the term of imprisonment imposed by the court.”

                      730 ILCS 5/5-8-1 (a)(1)(d)(iii) (West 2004).

       A sentence enhancement may be added to the sentence for first degree murder

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provided that it is pled and proved beyond a reasonable doubt. Apprendi v. New

Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000).

In this case the jury was instructed that the State must prove that during the

commission of the murder defendant personally discharged a firearm that proximately

caused Jeffrey’s death. The jury found that during the commission of the offense of

first degree murder, defendant personally discharged the firearm and defendant

personally discharged the firearm that proximately caused Jeffrey’s death.

      The State argues that the evidence in this case was sufficient to establish that

defendant personally discharged a firearm that proximately caused Jeffrey’s death. In

support, the State cites People v. Kaszuba, 375 Ill. App. 3d 262 (2007). In Kaszuba,

the defendant argued that the 25-year sentence enhancement should be vacated

where the State failed to prove beyond a reasonable doubt that he personally

discharged a firearm that proximately caused the victim’s death. This court found that

sufficient evidence existed, through the testimony of several witnesses, to support the

finding that defendant personally discharged a firearm that proximately caused the

victim’s death. Specifically:

      “Kevin Jeffrey testified that he looked out his window and saw defendant

      standing above a body and shooting at the ground. Francisco Santiago saw

      defendant pull out a gun and shoot Cocchia twice, causing him to fall to the

      ground. Daniel Rodriguez testified that he saw the man in the white jacket shoot

      the man standing by the white SUV four times. Defendant fired two to four shots

      at Cocchia and struck him. Cocchia fell to the ground and later died from his

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      gunshot wounds.” Kaszuba, 375 Ill. App. 3d at 268.

      The State argues that similar to Kaszuba, there is evidence in this case that

defendant personally discharged a firearm that proximately caused Jeffrey’s death

beyond a reasonable doubt. Defendant admitted that he used his Glock handgun to

fire at Jeffrey. A discharged .45-caliber automatic cartridge case recovered from the

scene was determined to have been fired from defendant’s weapon. Defendant then

destroyed the barrel of that weapon so that his gun could not be linked to the shooting.

At oral argument, the State suggested that it was permissible to infer from this evidence

that the bullet fired from defendant’s gun was the proximate cause of Jeffrey’s death.

      We disagree. Unlike Kaszuba, the evidence in this case does not clearly

establish that defendant’s gunshot was the proximate cause of Jeffrey’s death. First,

defendant testified that both he and Santos fired shots at Jeffrey. Although there was

some evidence in Kaszuba that another person may have fired the gun at the victim in

an attempt to make sure the victim died, numerous witnesses testified that it was the

defendant who stood over the victim’s body and fired numerous shots. Although a .45

casing that was found at the scene was determined to have been fired from defendant’s

Glock, it could not be determined with certainty whether the bullet recovered from

Jeffrey’s body was fired from defendant’s Glock, due to the fact that the gun no longer

had a barrel. In Kaszuba, it was stipulated that the four bullets recovered from the

victim’s body were fired from the same gun. It was opined in this case that the bullet

recovered from Jeffrey’s body could have been fired from two types of weapons, one of

which was the Glock 21, the same kind recovered from defendant’s home. There was

                                           19
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no evidence offered by either party as to what kind of gun Santos discharged at the

scene. Given the facts of this case, without evidence as to what kind of gun Santos

discharged, it is impossible to determine whether defendant or Santos personally

discharged a firearm that proximately caused Jeffrey’s death. Viewing the evidence in

the light most favorable to the State, we find the 40-year sentence enhancement

inappropriate.

      Nevertheless, there is no doubt in this case that defendant personally discharged

a firearm during the commission of felony murder. Defendant admitted to firing his

weapon at Jeffrey in his written statement and testified as such in open court.

Subsection (ii) of section 5-8-1(a) of the Code allows for the imposition of a 20-year

sentence enhancement when the defendant personally discharges a firearm during the

commission of felony murder.

      "(a) Except as otherwise provided in the statute defining the offense, a sentence

      of imprisonment for a felony shall be a determinate sentence set by the court

      under this Section, according to the following limitations:

                    (1) for first degree murder,

                                           ***

                           (d) ***



                           (ii) if, during the commission of the offense, the person

                    personally discharged a firearm, 20 years shall be added to the

                    term of imprisonment imposed by the court. 730 ILCS 5/5-8-1

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                    (a)(1)(d)(ii) (West 2004).


As we have the authority to reduce a criminal sentence (People v. Jones, 168 Ill. 2d

367, 378 (1995)), we reduce defendant’s 40-year sentence enhancement imposed

pursuant to subsection (iii) of section 5-8-1(a) of the Code to a 20-year sentence

enhancement pursuant to subsection (ii) of section 5-8-1(a) of the Code.

                                       Sentencing

      Last, defendant argues that the court abused its discretion when it sentenced

him to 60 years’ imprisonment for felony murder. Specifically, defendant claims that the

court improperly relied on facts not in evidence when it stated that defendant was a cold

and calculated paid killer with no remorse who betrayed the public’s trust. Defendant

also claims that the court improperly considered that defendant upped the price after

Jeffrey was shot, a fact not in evidence, to impose a 100-year sentence.

      It has long been established that the trial court has broad discretionary powers in

choosing the appropriate sentence a defendant should receive. People v. Jones, 168 Ill.

2d 367, 373-74 (1995). A reasoned judgment as to the proper sentence to be imposed

must be based upon the particular circumstances of each individual case and depends

upon many factors, including the defendant's credibility, demeanor, general moral

character, mentality, social environment, habits and age. People v. Perruquet, 68 Ill. 2d

149, 154 (1977). The imposition of a sentence is a matter within the trial court's

discretion. See Jones, 168 Ill. 2d at 374. Where the sentence chosen by the trial court

is within the statutory range permissible for the criminal offense for which the defendant


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has been tried and convicted, a reviewing court has the power to disturb the sentence

only if the trial court abused its discretion in the sentence it imposed. Jones, 168 Ill. 2d

at 374.

       The defendant's history, character, and rehabilitative potential, the seriousness

of the offense, the need to protect society and the need for deterrence and punishment

are all factors to be considered in fashioning a sentence. People v. Jones, 295 Ill. App.

3d 444, 455, 692 N.E.2d 762, 770 (1998). There is a strong presumption that the trial

court based its sentencing determination on proper legal reasoning, and the court is

presumed to have considered any evidence in mitigation which is before it. People v.

Partin, 156 Ill. App. 3d 365, 373, 509 N.E.2d 662, 666-67 (1987).

       As previously stated, defendant was sentenced to a total of 100 years’

imprisonment; 60 years’ imprisonment as to the felony murder counts with an additional

40 years’ imprisonment as an extended term pursuant to subsection (a)(1)(d)(iii) of

section 5/5-8-1. 730 ILCS 5/5-8-1 (a)(1)(d)(iii) (West 2004). We have reduced the

sentence enhancement to 20 years for a total of 80 years’ imprisonment.

       The trial court did not abuse its discretion in imposing sentence for felony murder

in this case. While the court may have considered a fact not in evidence in imposing

sentence, the record reveals that the court reviewed the factors in aggravation and

mitigation, as well as considering the arguments of counsel and the defendant’s

statement of elocution. Taking all of that into consideration, the court found that 60

years’ imprisonment was the appropriate sentence for felony murder given that

defendant betrayed public trust by using his position in law enforcement and by

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destroying evidence. The trial court was well within its discretion when it imposed this

sentence. Any reliance on a fact not in evidence was harmless. We find no abuse of

discretion here.

      Based on the foregoing, the judgment of the trial court is affirmed and

defendant’s sentence is modified.

      Affirmed; sentence modified.

      HOFFMAN and THEIS, J.J., concur.




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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT



THE PEOPLE OF THE STATE OF ILLINOIS,

            Plaintiff-Appellee,

      v.


JOHN LAVELLE,

            Defendant-Appellant.


                                    No. 1-07-0586

                              Appellate Court of Illinois
                            First District, Second Division

                                  November 17, 2009


               JUSTICE KARNEZIS delivered the opinion of the court.

                         HOFFMAN and THEIS, J.J., concur.


                    Appeal from the Circuit Court of Cook County.

                  The Honorable Marcus Salone, Judge Presiding.


For APPELLANT, Donna Hickstein-Foley, Foley & Foley, of counsel.

For APPELLEE, Anita Alvarez, State's Attorney of Cook County (James E. Fitzgerald,
Mary P. Needham, and William C. Swallow, of counsel)




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