People v. Cunningham

625 N.E.2d 413, 253 Ill. App. 3d 642, 192 Ill. Dec. 453, 1993 Ill. App. LEXIS 1826
CourtAppellate Court of Illinois
DecidedDecember 9, 1993
DocketNo. 3—92—0262
StatusPublished
Cited by2 cases

This text of 625 N.E.2d 413 (People v. Cunningham) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cunningham, 625 N.E.2d 413, 253 Ill. App. 3d 642, 192 Ill. Dec. 453, 1993 Ill. App. LEXIS 1826 (Ill. Ct. App. 1993).

Opinion

JUSTICE SLATER

delivered the opinion of the court:

The defendant, Cornell Cunningham, was convicted of attempted first degree murder and aggravated battery with a firearm and was sentenced to concurrent extended terms of 40 years’ imprisonment. On appeal, defendant contends that: (1) the jury was improperly instructed; (2) defendant’s trial counsel was ineffective; (3) defendant was improperly convicted of two crimes based on a single act; and (4) defendant was improperly sentenced to an extended term. We affirm in part and vacate in part.

Tim Milavec testified that on October 19, 1991, he went to the defendant’s home to see defendant’s brother, Albert. The defendant asked Milavec to take him to the home of Albert’s girlfriend, Julie Rideout, and Milavec agreed. Milavec denied having a sawed-off shotgun in his car. During the trip, the defendant stated, “[I]f they don’t disrespect me, I am not going to disrespect them.” Milavec knew that the defendant was a gang member. After defendant entered a house, Milavec heard some arguing and then two shots. Defendant came out of the house carrying a shotgun and walked across the street to talk to someone. A man came walking down the street and the defendant said something to him. The defendant fired the shotgun twice and Milavec saw the man lying on the ground. The defendant then got in Milavec’s car and told Milavec that “the guy was going to shoot [me].” Milavec drove the defendant home.

Faye Rideout testified that she lived in the downstairs apartment at 126 Iowa Avenue in Joliet. On October 19, 1991, around 12 or 12:30 p.m., the defendant came to Rideout’s residence looking for his brother, Albert. The defendant appeared to be intoxicated. The defendant talked to Albert in Erica Rideout’s bedroom. When the defendant came out of the bedroom he was holding a sawed-off pump shotgun. Faye Rideout asked the defendant why he had come in her residence with a gun and was “disrespecting [her] house.” The defendant stated that the gun was “on safety” and he dropped the gun on a mattress. The defendant then picked the shotgun up, said, “If you want disrespect, I will give you disrespect,” and shot twice into the walls. The defendant left the Rideout residence, and Faye Rideout later heard two shots outside. Faye went outside and saw the victim, William Foster, lying on the ground.

Lisa Sherdon and Bill Dixon testified that they lived in the apartment above Faye Rideout. Dixon heard two shots from the downstairs apartment and called the police. Sherdon went downstairs and stood on the porch. Dixon and Sherdon saw the defendant walking across the street, and they saw a man, later identified as William Foster, walking down the sidewalk toward the defendant. Dixon and Sherdon heard the defendant say “GDK” and then shoot at Foster. Dixon heard Foster say, “I ain’t nobody. I ain’t nobody.” Sherdon heard Foster say, “I am not nothing. I am not nothing.” Foster started to move away from the defendant, and the defendant shot at him again. Foster fell to the ground, and the defendant ran to the car and it drove away. Dixon grabbed a towel from his kitchen and placed it on Foster’s face. Sherdon also went to try to help Foster. He was shot in the face, with extensive damage to his eyes, and was bleeding. Neither Dixon nor Sherdon saw William Foster with any weapon or make any aggressive moves towards the defendant.

Joliet city police officer Thomas Todd testified that on October 21, 1991, he questioned the defendant about the shooting. The defendant told Todd that on the morning of the shooting he had consumed approximately three-fourths of a pint of rum. The defendant was at his mother’s residence when Tim Milavec came over and asked about the defendant’s brother, Albert. The defendant agreed to go with Milavec to 126 Iowa Street.

Inside Milavec’s car the defendant noticed a sawed-off shotgun. The defendant took the shotgun with him into Julie Rideout’s residence. The defendant told Todd that he was a gang member, and he knew that he was going into rival gang territory, so he felt he needed a weapon for his protection. At the residence, the defendant asked Albert to come outside and speak with Milavec. According to Todd, defendant stated that Faye Rideout told the defendant that she was going to call her brother, who was a member of a rival gang, and tell him that the defendant was at her house with a shotgun. The defendant became angry at this statement and he fired a shot into the west wall of the apartment. Defendant pumped another round into the shotgun and fired into the south wall, and then left the apartment.

Todd further testified that the defendant told him that as he was approaching Milavec’s car, he saw Foster walking westbound on Second Avenue. Foster appeared to have a shirt wrapped around his left hand and the defendant believed that Faye Rideout had contacted her brother and that her brother may have sent this individual to the area. Defendant told Todd that he thought Foster might have a weapon underneath the shirt. The defendant ran across the street, yelled “GDK,” and fired at Foster. The defendant stated that he chambered another shell and fired the shotgun a second time, striking Foster in the face and causing him to fall to the ground. According to Todd, the defendant told him that after the first shot, Foster threw up his arms to cover his head and face and began moving backwards. After the shooting, the defendant went to Chicago, where he remained until he was arrested.

Joliet city police officer Robert Kerwin testified as an expert witness on street gangs. According to Kerwin, the tattoos on defendant’s arms were associated with two particular gangs. The term “GDK” is a gang slogan which is sometimes shouted prior to the shooting of a rival gang member.

William Foster testified that on October 19, 1991, he worked as a bus driver for the Pace Motor Hotel. Foster was dressed in black dress slacks, a white shirt, a black tie, a black cardigan sweater, and a red jacket. Foster went to work with a bag of microwave popcorn and a deck of cards in a paper bag. Later, Foster drove to the east side of Joliet to have his car worked on. Foster learned that it would take approximately an hour and a half to have his car fixed, so he decided to wait at his sister’s house, which was located a few blocks away.

Foster walked down Second Avenue and crossed a bridge. He saw a person, later identified as the defendant, talking to another man. The defendant turned and walked towards Foster and then fired a sawed-off shotgun at him. Foster began to move away from the defendant, who continued to walk towards him. Foster heard the defendant pump another shell into the chamber. Foster was carrying his brown lunch bag in his right hand, and the defendant twice asked him, “What are you going in that bag for?” Each time Foster replied, “I am not.” The defendant held the shotgun up and yelled “GD.” Foster put his hands up to try to shield his face and the defendant fired the shotgun. Foster was struck in the face and fell to the ground.

Foster testified that he now has an artificial right eye. His left eye was also badly injured and he has blurry vision. The last thing he saw was the shotgun pointed at him. Foster denied being a member of a gang. Foster believed the defendant was trying to kill him.

The defendant testified that the evening of October 18 and early morning of October 19 he had been drinking.

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Cite This Page — Counsel Stack

Bluebook (online)
625 N.E.2d 413, 253 Ill. App. 3d 642, 192 Ill. Dec. 453, 1993 Ill. App. LEXIS 1826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cunningham-illappct-1993.