People v. Tyler

2021 IL App (5th) 180476-U

• Court: Appellate Court of Illinois
• Decided: August 23, 2021
• Docket: 5-18-0476
• Status: Unpublished

Opinion

2021 IL App (5th) 180476-U NOTICE NOTICE Decision filed 08/23/21. The This order was filed under text of this decision may be NO. 5-18-0476 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jackson County. ) v. ) No. 16-CF-117 ) TRAVIS TYLER, ) Honorable ) Ralph R. Bloodworth III, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Cates and Wharton concurred in the judgment.

ORDER

¶1 Held: The defendant’s conviction for first degree murder based on felony murder is affirmed where the predicate felonies were not inherent in the murder and were committed with an independent felonious purpose, his counsel was not ineffective for failing to call certain witnesses as a matter of trial strategy, his counsel was not ineffective for failing to offer a jury instruction on the defense of others or on justified use of force, his constitutional rights were not violated when his counsel was denied the opportunity to cross-examine the State’s witness about the witness’s expectation of leniency concerning a pending criminal case, the trial court did not abuse its discretion in admitting pictures posted on the defendant’s Snapchat story as they were relevant, and the court did not abuse its discretion in refusing to allow his counsel to ask certain questions about transferred intent to the potential jury members during voir dire. The defendant’s 60-year sentence is also affirmed where he was sentenced to a mandatory sentencing enhancement and where the court properly considered the factors in aggravation and mitigation.

¶2 During the March 2018 jury trial, the defendant, Travis Tyler, was convicted of two

counts of first degree murder based on felony murder (counts I and II) (720 ILCS 5/9-1(a)(3)

1 (West 2016)), one count of aggravated battery with a firearm (count III) (id. § 12-3.05(e)(1)),

and two counts of aggravated discharge of a firearm (counts IV and V) (id. § 24-1.2(a)(1)).

Thereafter, the trial court sentenced him to a total of 85 years’ imprisonment, ordering

consecutive sentences on counts I, III, IV, and V. In July 2018, the defendant filed a motion to

vacate the lesser-included convictions for aggravated battery with a firearm and aggravated

discharge of a firearm and to reconsider his sentence because those offenses were the predicate

felonies underlying the felony murder charge. In September 2018, after the State conceded that

the convictions on the predicate felonies should be vacated, the trial court vacated the

defendant’s convictions for aggravated battery with a firearm and aggravated discharge of a

firearm. This left the defendant with a 60-year sentence, which included a 35-year sentence for

first degree murder and a 25-year mandatory sentencing enhancement for the use of a firearm.

¶3 On appeal, the defendant argues: (1) his conviction must be reversed because the

predicate felonies were inherent in the murder and were not committed with an independent

felonious purpose, (2) he received ineffective assistance of trial counsel where his counsel failed

to call certain witnesses who would have corroborated his claim of self-defense and failed to

offer a jury instruction on the defense of others or on justified use of force, (3) his constitutional

rights were violated where his counsel was denied the opportunity to cross-examine the State’s

witness about the witness’s expectation of leniency concerning a pending criminal case, (4) the

admission of certain evidence was irrelevant and overly prejudicial, (5) the trial court erred in

refusing to allow his counsel to ask certain questions about transferred intent to the potential jury

members during voir dire, and (6) his 60-year sentence was excessive. For the following

reasons, we affirm.

2 ¶4 I. BACKGROUND

¶5 On March 26, 2016, the defendant, who was a student at Southeast Missouri State

University (SEMO), traveled with his cousin, Anthony Griffin, and his cousin’s friend, Calvin

White, from Cape Girardeau, Missouri, to Carbondale, Illinois. They planned to attend a

“probate party” for the Phi Beta Sigma fraternity at Hangar 9 (a nightclub in Carbondale). At

around 2 a.m., they left the club and went to an after party at a house located at 402 West

Walnut, which was known as the “Sigma House.” While there, a physical fight broke out inside

the living room, and gunshots were fired inside the overcrowded house. Thereafter, there were

gunshots fired outside the house, which left Nehemiah Greenlee injured and Timothy Beaty, a

neighbor, deceased (Beaty was inside his apartment at the time). The defendant and his

codefendant, John Ingram,1 were subsequently arrested for the shootings.

¶6 On June 17, 2016, the defendant and Ingram were charged by indictment with: (1) one

count of first degree murder based on felony murder in that while attempting to commit or

committing aggravated battery with a firearm, they shot at Greenlee but caused Beaty’s death;

(2) one count of first degree murder based on felony murder in that while attempting to commit

or committing aggravated discharge of a firearm, they discharged a firearm at or into a building

that they knew or reasonably should have known was occupied, which caused Beaty’s death;

(3) one count of aggravated battery with a firearm in that they knowingly and without legal

justification caused injury to Greenlee by discharging a firearm; (4) one count of aggravated

discharge of a firearm in that they knowingly discharged a firearm at or into a building at a time

when they knew or reasonably should have known that it was occupied; and (5) one count of

aggravated discharge of a firearm for knowingly discharging a firearm in Greenlee’s direction.

1 Ingram is not a party to this appeal. 3 ¶7 In March 2018, the trial court held a seven-day jury trial. 2 At trial, Jarin Dunnigan, a

police officer for the Carbondale Police Department, testified that he was dispatched to the

Sigma house after multiple reports of shots fired. Upon arriving, he entered the residence and

saw Greenlee lying on the floor with a gunshot wound in his right front abdomen. Greenlee was

able to describe the shooter as a light complexion black male wearing a brown scarf and a hat.

¶8 Illinois State Police (ISP) trooper Blake Harsy, who was previously a police officer with

the Carbondale Police Department, testified that he was also dispatched to the Sigma house.

While in the house, he observed a chrome handgun magazine that was loaded on the floor near a

brick fireplace and a live .40-caliber cartridge on the fireplace ledge.

¶9 Lee Stewart, a Carbondale Police Department patrol detective, testified that he was

dispatched to the Sigma house for the shooting. At that time, he was a crime scene technician.

When he arrived, he observed “utter chaos”; he noted that people were running in every

direction, were screaming, and several people were piling out of the Sigma house. As he

approached the house, he observed people fighting up the street toward the 300 block of West

Walnut. He reported the fight over the radio and proceeded to the Sigma house because officers

were inside attempting life-sustaining measures on an individual who had been shot, and the

residence needed to be secured. He entered the front door and observed an individual with a

gunshot wound lying on the floor. He estimated between 50 to 100 people still inside; it was a

large amount of people packed into a fairly small house. He helped the other officers move

people out of the house, and it took several minutes before the house was secured. After the

house was secure, he went to other locations in the area to search for evidence and to preserve

the crime scene. In his search, he found eight spent .40-caliber Smith & Wesson R-P shell

2 At some point, the defendant’s case was severed from Ingram’s. 4 casings, seven 9-millimeter Corbon Ruger shell casings, and one live .40-caliber shell casing on

the road at the intersection of West Walnut Street and South Beveridge.

¶ 10 After discovering the shell casings, Stewart expanded the search area and started

searching the yards between 402 and 334 West Walnut, where he found a black and silver Smith

& Wesson .40-caliber magazine loaded with 14 rounds. A spent .40-caliber Winchester shell

casing was found in front of 322 West Walnut (east of the Sigma house, on the north side of the

road), which was different from the ones previously found. He acknowledged that before the

officers were able to secure the area, people were running and driving through there, and

consequently, some of the shell casings could have been kicked, walked on, or driven over.

¶ 11 Brody Jeters, a patrol officer with the Carbondale Police Department, testified that when

he arrived at the Sigma house, he noticed multiple people, both civilians and officers, running

toward the 300 block of that street. He followed the officers as they were chasing someone, and

he wanted to assist them. He eventually ended up at the parking lot of a funeral home and a

Presbyterian Church at around the 300 block of West Walnut. He noticed that there were 10

people standing next to a red Dodge Avenger and a silver Dodge Avenger (registered to William

Donegan), both with Missouri plates. The officers obtained permission to search the vehicles

and discovered a Smith & Wesson silver over black .40-caliber firearm with no magazine in the

silver Avenger.

¶ 12 Jeffrey Withrow, an officer with the Carbondale Police Department, testified that he

assisted the other officers with canvassing the area to locate any witnesses or evidence. As he

approached 334 West Walnut, he noticed a bullet strike on the south side of an apartment. He

attempted to make contact with the residents by knocking on the door. He did not receive a

response, so he looked through the window at the top of the door and noticed a man lying on the

5 floor on the other side. He knocked again to see if the man would respond to the noise, but the

man did not, so he opened the unlocked door and entered the residence. Withrow noticed that

the man was pale, his eyes and mouth were both open, and he did not appear to be breathing.

Withrow checked for a pulse and realized that the man was already deceased. The man was

identified as Beaty.

¶ 13 Seth Moorman, another officer with the Carbondale Police Department, testified that he

initially went to the First Presbyterian Church, which was approximately one block away from

the Sigma house. He parked in the parking lot and approached the area on foot. While walking,

he observed people running in all directions. As he got closer, there were people pointing further

to the west and saying, “It happened over there. It happened over there.” They were pointing

toward the Sigma house. He approached the house and was instructed by Withrow to remain in

the front yard to monitor the crowd of people still in the area. While there, he observed a group

of people fighting to the east in the 300 block of West Walnut. As he ran to that location, he

noticed individuals running toward the parking lot where he had parked and heard multiple

people saying, “That’s the shooter. That’s the shooter.” Those people were all pointing to a

black male, who was identified as Donegan.

¶ 14 Jesse Ital, an officer with the Carbondale Police Department, testified that on March 30,

he went to St. Francis Xavier Church and the administrative office to search for evidence. He

was instructed to search the area for ballistic or ammunition evidence based on information that

was obtained from a witness. The church was within the 400 block of West Walnut. He

observed a discoloration in the grout between two of the bricks on the outside of the

administrative building approximately five feet up, and he believed it to be a bullet strike. He

also found a fired shell casing on the sidewalk in front of the administrative building,

6 approximately eight feet back from the wall. He noted that there was no way to tell where the

bullet came from but acknowledged that it could have come from 334 or 402 West Walnut.

¶ 15 James Minckler, an ISP crime scene investigator, testified that he processed the crime

scene at 334 West Walnut. He observed the body identified as Beaty lying on the floor inside

the apartment. Beaty had a gunshot wound at his rib cage on the right side; there was no exit

wound. He began searching the apartment for the origin of the bullet and discovered a hole in

the corner of the wall in the main room, which appeared to be coming from the outside. He also

observed a corresponding hole in the exterior of the siding on the south wall of the apartment.

Using a trajectory rod with an attached laser, he determined that the bullet originated from across

the street to the area of South Beveridge Street, which was just south of West Walnut.

¶ 16 Megan Robinson testified that she attended the party at the Sigma house with her friends,

Desiree White and Dominique White. At the time, she was a Carbondale resident. When she

arrived, she observed that the house was crowded. She was in the kitchen when she heard

gunshots inside the house, but she did not see anyone shooting. After hearing the gunshots, she

ran out of the house through the back kitchen door. She noted that it was chaos and other people

were running out of the house and pushing into each other. She ran to a grassy area to the left of

the house. Beaty, who had come outside to see what was going on, pulled her and Desiree onto

the porch of his apartment next door. Then, there was a second series of gunshots, and Beaty

pulled them inside the apartment. She did not see the person shooting, and she did not know

how many shots were fired. After the shots had stopped, they realized that Dominique was no

longer with them. They also noticed that Beaty was lying on the floor in the fetal position. He

appeared to be asleep, not harmed in any way, and there was no blood around him. She tried to

7 talk to him, but he did not respond; he was not making any sound. She eventually called 9-1-1

because he remained unresponsive.

¶ 17 Dominique White testified that she was moving from the Sigma house kitchen to the

main room when she heard approximately four to six gunshots from inside the front of the house.

At that point, she attempted to run toward the back exit to get away from the shooter, but

everyone was pushing toward that same exit, and she started getting pushed toward the front of

the house. She and her friend got stuck in the corner of the kitchen for about five minutes. Once

the house cleared, she attempted to get her friend, who was pretty shaken up, to leave through the

front door with her, but people started coming back inside the house from the backyard. At that

point, she and her friend got up and went with the crowd through the front door. They had only

been outside for a few seconds when they heard more gunshots; she heard approximately four or

five gunshots that time. She instinctively looked in the direction of the shooting and saw

someone shooting, but she did not see a face or any details. She did see that the shooter was

wearing black clothing, and someone had their hands up in a shooting motion across the street

from the Sigma house. She then ran toward the back of the Sigma house.

¶ 18 Desiree White testified that she was only at the Sigma house for approximately 30

minutes before she was pushed back outside through the back door. She explained that it looked

like there was a fight in the living room that was spilling over into the kitchen, and there was a

wave of people pushing each other trying to get out of the living room. Once outside, she heard

people screaming and a gunshot from inside the house. She was on Beaty’s porch when she

heard more gunshots and observed people still running out of the Sigma house. She heard at

least 20 more gunshots, Beaty pushed her and Robinson into his apartment, and they all stayed

on the ground. After the gunshots were over, she noticed that Beaty was not responding with

8 words; he was just moaning. However, she did not see any injuries on him. She ultimately left

the house after Robinson called 9-1-1. She did not see who fired the shots or where they were

coming from, but she could hear that they were near.

¶ 19 Joshua Bell, who was a student at Southern Illinois University-Carbondale (SIU) in

March 2016, testified that he attended a fraternity event on campus. After the event, at around

10 or 10:30 p.m., he went to Hangar 9 with his friends, including Greenlee. He was there until

approximately 1:45 a.m., and then he went to the Sigma house for the after party. There were

over 100 people at the party, including Greenlee, Anthony Jones, and several people that he

recognized from Hangar 9. He was in the living room when an altercation broke out; he could

not hear what was being said, but the people involved were having words with each other. He

could not see what was happening because it was dark in there, and there were several people

between him and the altercation. The people involved were at Hangar 9; he also knew them

from seeing them around. He recognized the individual wearing a red jumpsuit as Wale (the

man was later identified as Daniel Holmes). He observed Wale fire two gunshots at the floor

inside the house.

¶ 20 After the gunshots, everyone in the house was trying to exit, and Bell ran out the back

door. While outside, he was running toward the front of the house when he heard more shooting

coming from across the street. He saw two individuals shooting and identified one of them as

the defendant; he noted that the defendant was wearing a scarf, a hat, and light blue pants. The

defendant was shooting toward the Sigma house from across the street; he shot approximately

five times. Bell could not see the other shooter, but he could tell where the shooting was coming

from. The shooting then stopped, and he observed that Greenlee had been shot and was lying on

the ground. Bell then saw a man wearing a Cardinals jersey run into the street toward the church

9 (north on West Walnut). Bell knew the man was with the shooters, so he chased after the man.

Bell caught up with the man and began to beat him up. Bell explained that his adrenaline was

high, he had just seen his friend on the ground after being shot, and he did not know if his friend

was dying. He did not see Greenlee with a gun that night. Later that morning, Bell went to the

police station and made a written statement. He acknowledged that he did not identify Wale as

the person shooting the gun inside the house in his statement but explained that he did not know

Wale at the time; he did not learn of Wale’s nickname until after the shooting.

¶ 21 Jones testified that he was working security at Hangar 9 when he observed a couple of

individuals in St. Louis attire getting into a verbal altercation with a man that went to SIU; he

knew the person from SIU as Dre. He did not know what they were fighting about, but he went

to separate them. There were approximately six people involved. The altercation broke up when

he separated them and that was the end of it. He left there around 2 a.m. and went to the Sigma

house for the after party. Greenlee, Dre, and Bell were all there. He entered the house through

the back entrance and went into the living room with Dre. As soon as Dre walked into the living

room, the atmosphere changed. An individual wearing a St. Louis Blues shirt that was involved

in the Hangar 9 altercation came up and punched Dre; he was with approximately five people.

Jones then saw Wale with a gun shooting at the floor. He also saw another individual known as

Trigger shooting at the ground; Trigger was wearing all black. Everyone then scattered and

started running out of the house. Wale and Trigger both ran out the front door, and the man

wearing the Blues shirt ran out of the house too.

¶ 22 As the house started to empty out, Jones shut the front door, so the remaining would exit

through the back door. At this point, the living room was empty, but the kitchen was still full of

people. Jones was standing by the front door with Greenlee when two individuals approached

10 Jones and Greenlee and told them to open the door. One was wearing a Cardinals hoodie, and

the other, who Jones identified as the defendant, was wearing a scarf, a black hat, and a white,

long sleeve shirt. He told them to go through the back door but eventually opened the front door

for them. The man in the Cardinals hoodie turned around and ran out of the back door, but the

defendant exited out the front door. While exiting, the defendant pushed into Jones’s left

shoulder. Although Jones shrugged it off, Greenlee confronted the defendant, told him that there

was no need for pushing, and then pushed him. The defendant and Greenlee then got into a

verbal argument on the porch and were saying that they were going to fight. Jones got between

them, and the defendant pulled toward his waist and displayed the handle of a gun. The

defendant said that he was going to kill Jones and Greenlee, and Jones told him to put the gun

down and fight. In the scuffle, Jones and Greenlee ended up in the yard between the Sigma

house and the neighboring house. The defendant ran away down South Beveridge.

¶ 23 About five seconds later, the defendant came back with another individual, and Jones

heard shots. The defendant was in the street when this occurred. At first, the shots were fired

toward the street but then Jones noticed that the subsequent shots were angled toward him and

Greenlee and some of them were in the air. The shots were coming from the defendant’s gun.

The individual with the defendant was also shooting; he did not get a good look at the person

because he was solely focused on the defendant. He froze for about five seconds and then felt

Greenlee push him. He turned around and saw Greenlee lying on the ground. Greenlee then got

up and went back inside the Sigma house. The defendant and his friend ran off. He believed

that there was a total of 13 or 14 shots from both individuals. Jones went inside the Sigma house

and found Greenlee lying on the floor bleeding near his stomach. There were two women with

Greenlee; one was putting pressure on the wound and the other was calling 9-1-1.

11 ¶ 24 Jones then started hyperventilating, so he went back outside. At that point, he saw the

individual wearing a red Cardinals shirt running from behind the house and across the street. He

knew this person was part of the group that was shooting, so he and Bell started chasing the

individual toward the church on South Beveridge. They eventually caught up with him, and

there was a physical altercation between the man and Bell. The fight lasted approximately 10

seconds, at which point the individual got up and started running again in the same direction.

Jones identified the defendant as one of the shooters from video surveillance footage at Hangar

9.

¶ 25 Jones testified that Greenlee did not have a gun that night and did not shoot at anyone.

He acknowledged that in his March 27 statement, he wrote that during the party, he had to kick

out a group of people who were fighting inside the house, and they went around the side of the

house and started shooting. Then, they reentered through the back. However, he denied writing

that the individuals started shooting at the side of the residence and instead claimed that he had

to kick them out, people then started running out of the house, and he heard gunshots. This

occurred after the gunshots fired inside the house, and the defendant was still inside at this time.

He acknowledged that the defendant’s threat to kill them was not included in his police

statement. He did not remember saying that the person shooting outside was standing in the

church parking lot.

¶ 26 Greenlee testified that he went to Hangar 9 with his friends, including Bell. He noted that

there was almost a brawl inside the bar, but it was broken up before it could turn physical. The

defendant and his friends were involved in the altercation with a man named Mario; the

defendant’s friends were wearing St. Louis sports attire. Greenlee did not know what the

argument was about, but he noted that it was escalating when Jones broke it up. After that,

12 everything returned to normal. He left there about one hour later and went to the Sigma house;

he arrived there between 1 and 2 a.m. At some point, the atmosphere in the house changed, and

a fight broke out in the living room. He noted that the individuals involved in the Hangar 9

altercation were the same people fighting in the house. He saw Wale pull out a gun, and he tried

to stop Wale from shooting it. However, the defendant’s friends ran up to Wale, and Wale shot

the gun twice into the floor. Then, everyone started running toward the exits of the house, and

Wale ran out the front door.

¶ 27 After the shooting inside, Greenlee and Jones went to the front door and locked it because

they did not want anyone coming back in through that door. The defendant and his friend

approached, so Jones opened the door to let them out. However, the friend ran out of the living

room toward the back door. The defendant exited through the front door, and as he was exiting,

he shoved Jones. Greenlee reacted and told the defendant that he did not have to shove. They

then got into a verbal argument, and the defendant acted like he was pulling out a gun. Greenlee

did not see a gun, so Greenlee thought that the defendant was just acting like he had one. The

altercation moved to the front porch, and they all ended up in the front yard. The defendant

eventually ran off across the street onto Beveridge Street, and Greenlee and Jones decided to

leave.

¶ 28 Greenlee saw the defendant run approximately 15 to 20 feet to either a black or red

Charger and open the vehicle’s trunk. He then saw people running down Beveridge Street, and

he heard gunshots; the defendant was shooting in his direction. As soon as he saw the defendant

shooting, he pushed Jones to the ground. He saw the defendant shoot approximately four shots

at him, and one of the shots hit him in his stomach on his side. He believed that the defendant

was aiming at him because the defendant was looking at him while shooting. There was another

13 shooter with the defendant. Greenlee did not see that shooter’s face, but the man was wearing

dark clothing and was shooting into the air. He was never able to identify the second shooter.

Greenlee acknowledged that the defendant was standing on West Walnut and not in the church

parking lot. After getting shot, Greenlee ran toward the house, fell on the porch, and crawled

into the living room. He did not have a gun on him that night, and he did not shoot a gun at

anyone. He acknowledged that when the investigating officer asked him to identify the shooter

from a series of photographs, he stated, “maybe, it’s number four,” which was the defendant. He

acknowledged that his identification was not as precise as his testimony, but he was in the

hospital at the time that he was questioned, and he had no doubt that the defendant was the

person who shot him.

¶ 29 Thomas Gamboe, an ISP forensic scientist, testified that the projectile recovered from

Beaty was a .40-caliber bullet fired from the same gun that fired the two other bullets found

around 334 West Walnut. Eric Corey, an ISP forensic scientist, testified that a partial DNA

profile was obtained from the magazine discovered on the grass between the Sigma house and

334 West Walnut, but it did not match the DNA profiles of the defendant, Dwayne Dunn, or

Ingram. However, he could not say that any of those individuals did not touch the magazine as

some people do not leave DNA when they touch an item.

¶ 30 James Jacobi, a forensic pathologist, testified that he performed Beaty’s autopsy and

noted a gunshot entrance wound in the right side of Beaty’s chest. He recovered the projectile

from Beaty’s left upper chest; he noted that the bullet struck the lower part of his right chest and

traveled across his body, right to left and sightly upward. The bullet struck his liver, heart, and

left lung before it came to rest in the soft tissues of his left upper chest. Jacobi noted that there

14 would be very little external bleeding from this type of wound. He opined that the cause of death

was due to a gunshot wound striking three organs and resulting in an extensive loss of blood.

¶ 31 Anthony Williams, a sergeant with the Carbondale Police Department, testified that he

interviewed Dunn. During the interview, Dunn voluntarily gave Williams access to his cell

phone; Williams believed Dunn’s phone might contain clues as to who was responsible for the

shooting. While looking at Williams’s Snapchat, he saw a video compilation of photographs of

the defendant. Williams used his own cell phone to record the Snapchat video. The video was

played for the jury. One of the frames showed the defendant with the caption, “I’m fucked,” and

another depicted the defendant showing his left hand which appeared swollen. The video ended

with a series of captions that said, “what comes around goes around”; “Carbondale won’t be

seeing wink”; “last night was hectic”; “free my guys, tho”; and “when it comes around, it is only

going to be you.” Williams also had Dunn send messages to his associates who were from

SEMO and were at the party that night. The defendant responded to Dunn’s message indicating

that he was going to get high for Dunn. Williams acknowledged that Dunn initially lied to him

and lied to other officers before giving Williams access to the phone.

¶ 32 Williams also interviewed Greenlee after Greenlee was released from the hospital.

During that interview, Greenlee identified Holmes as the person who fired the gun inside the

house. Greenlee also identified the defendant as the person who shot him from the Hangar 9

video surveillance; the defendant was wearing a camouflage hat with a blue scarf over his head

and a white shirt. Williams did not believe that he asked Greenlee about the bullet strike on the

administrative building of the church; Greenlee never told him that there was gunfire going that

direction. He acknowledged that he never confronted any of the witnesses about that bullet

strike and whether there was gunfire going in that direction, although he did ask them about all

15 of the shooting they observed that night. However, he explained that the fact that there was a

bullet strike on the administrative building did not necessarily conflict with the information that

he obtained from Greenlee, Jones, and Bell. He explained that he was not surprised that none of

them saw the bullet strike the church since there was a lot going on that night.

¶ 33 Brandon Weisenberger, a detective with the Carbondale Police Department, testified that

he searched the defendant’s dormitory room at SEMO pursuant to a search warrant. During the

search, the investigators found a camouflage hat with the words “True Religion” on the front, a

dark colored scarf with a Ralph Lauren logo, a white shirt, and acid wash jeans; all items of

clothing that the defendant was wearing on the night of the shooting. Weisenberger also

discovered that the defendant had purchased a Glock 23, .40-caliber semi-automatic pistol on

February 12, 2016. There were no known documented transfers of the pistol. He acknowledged

that neither Bell, Jones, nor Greenlee told him that gunfire was going south, and he did not

believe that anyone from his office talked with them about the evidence obtained from the

administrative building. He also acknowledged that the bullet from the administrative building

was the first evidence collected that showed the gunfire going south. He explained that the

evidence indicated that there was a spray of gunfire going in multiple directions. None of the

witnesses indicated that Greenlee had a firearm that night or even fired a gun that night.

¶ 34 Ellen Chapman, an analysist for the ISP Forensic Science Center, testified that she tested

the clothing taken from the defendant’s dormitory room for gunshot residue to see if the items

were in contact or in the environment of a discharged firearm. The samples taken from the scarf

and the white shirt tested positive for gunshot residue.

¶ 35 Ingram testified that he made an agreement with the State to testify in this case in

exchange for immunity; he was initially charged with murder but ultimately pled guilty to

16 aggravated discharge of a firearm and was sentenced to nine years’ imprisonment. At the time of

the shooting, he was a student at SEMO and went to Carbondale for the fraternity party. He

drove his vehicle to Carbondale, and his Rogue 9-millimeter firearm was in the trunk. At some

point, he left the Sigma house to retrieve his gun because some friends were borrowing his car.

He then reentered the house with his gun in a holster on his hip. He was in the living room when

he saw “Will” punch a man in the face and drag him to the floor. The other people with “Will,”

including the defendant, started kicking the man. Ingram then heard shots fired inside the house,

and he ran into a bedroom. When things were clear, he exited the house through the open front

door and ran across the street. While exiting, he noticed four men standing in front of the door,

one of which had a revolver.

¶ 36 As Ingram was crossing the street, he heard one or two gunshots coming from “ahead of

him” in the middle of the street; he explained that he was heading south, but he kept turning back

around to see what was happening behind him. The shots were being fired in the direction of the

Sigma house. He crossed the street, turned back around toward the Sigma house (to the north),

and fired his gun, as he felt there was a threat behind him. He did not see anyone pointing a gun

at him, and he did not remember whether anyone fired in his direction (south). He initially

started shooting in the direction of the people near the house, but then started shooting into the

air because of the gun’s recoil. The other person was also still shooting at this time; that person

was on his side, approximately two to three feet away. He then turned around and started

running toward a friend’s vehicle. As he turned around, he saw the defendant running down the

street away from the house; he noticed the defendant also had a gun. He did not remember

telling his friends that he acted in self-defense or that “they” shot first.

17 ¶ 37 Angela Horn, an ISP forensic scientist, testified that the projectile found near the

administrative building was a .38-caliber bullet, but she did not know whether it was fired from a

9-millimeter or a .38-caliber revolver. Christopher Robinson, a private forensic consultant,

testified that he examined the bullet discovered near the church and that it was a .38-caliber

Remington bullet consistent with being fired from one of three different types of revolvers:

Smith & Wesson, Ruger and Taurus .38-Special, and .357-Magnum. He denied that the bullet

was fired from a 9-millimeter.

¶ 38 The defendant acknowledged that he posted a photograph on Snapchat of his wrist,

explaining that it was injured when someone stepped on it at the Sigma house party. He also

acknowledged that he posted “what goes around comes around” and “when it comes around, it is

only going to be you,” explaining that they were lyrics to a song that he was listening to at the

time. He posted that Carbondale “won’t be seeing wink” because that night was horrible as he

almost lost his life. He posted “man, shit was hectic last night” because the night was chaos. He

explained that he was dealing with emotions from the night before and was posting his emotional

thoughts.

¶ 39 The defendant testified that he traveled to Carbondale with Griffin and Calvin to attend a

fraternity party; Griffin drove his red Charger. They were drinking in the dorms before leaving.

They initially went to Hangar 9, and there were at least 15 other SEMO students there. While

there, an altercation broke out in the front by the stage; he recognized one of the individuals

involved in the altercation as Donegan, another SEMO student. He did not recognize anyone

else involved. He decided to intervene because although it was just a verbal altercation, it looked

like it was escalating into a physical fight. He got in between the individuals and told them that

they were there to have fun, not fight. Both individuals listened to him, and the fight broke up.

18 ¶ 40 After leaving there, they went to the Sigma house after party and parked on South

Beveridge. There were less than 15 people inside the front room when they arrived, but the

house quickly became crowded. He did not consume any alcohol while there. He noticed

Ingram enter the house, then leave, and did not see Ingram again until later that night. A fight

broke out in the living room, and both Dunn and Donegan were involved. He did not travel to

Carbondale with them and did not go to the after party with them. He did not recognize the other

group that was involved in the fight. The fight was escalating, and the crowd of people started

pushing and falling over each other; he noted that it was chaos. He tripped over the fireplace that

he was standing by, fell on the ground, and his wrist got stepped on. He then heard two or three

gunshots fired inside the house, but he did not see who fired the gun. He crawled into a nearby

bedroom for safety.

¶ 41 About 30 seconds later, after the living room emptied out, the defendant decided to exit

the house through the front door. The door was open at the time. As he neared the door, two

individuals approached him and told him that he could not exit through that door. At the time, he

did not know who they were; he later learned they were Greenlee and Jones. He responded,

“move the fuck out of my way” and “I have got to get the hell up out of this house.” At that

point, he still feared for his safety. Greenlee and Jones were standing in the doorway, but he saw

an opening, and he squeezed through. As he was doing this, his left shoulder bumped into Jones.

Greenlee then pushed him from behind, and he stumbled down the porch into the grass.

Greenlee, who was still on the porch, then said, “you ain’t got to push him like that,” and raised

his shirt up. When Greenlee raised his shirt up, the defendant saw a revolver in his waistband.

¶ 42 The defendant then began backing up toward West Walnut with his hands raised, and

when he made it to South Beveridge, Greenlee pulled out his gun and said, “Talk that shit now.

19 Talk that shit now.” Greenlee then shot two times in his direction, and the defendant felt the

bullets go by his face. At that time, Greenlee was standing in the grass in front of Beaty’s

residence. The defendant had his own firearm in a holster on his hip, so he grabbed it and shot

back. He shot until his magazine was empty and then he ran to the vehicle. He explained that he

was in fear for his life at that time; he believed that Greenlee was going to kill him. He also

heard someone shooting a firearm far behind him on South Beveridge. He denied telling

Greenlee and Jones that he would kill them, and he denied going to the Charger to retrieve his

firearm.

¶ 43 While running toward his vehicle, the defendant also saw Ingram running toward

Ingram’s own vehicle. The defendant reached the vehicle and told Griffin and Calvin to get

inside because they had to leave. They headed back to SEMO but stopped at White Castle

before going back to campus. The next day, he went to a friend’s house, and they were smoking

marijuana.

¶ 44 On cross-examination, the defendant testified that although he was going to Carbondale

to have fun and not fight, he took his gun with him because he did not want any trouble. His gun

was fully loaded. He acknowledged that as they were leaving the area, two police cars passed

by, but he did not stop to talk to them because he wanted to get to safety. He did not call 9-1-1

to report that he had been shot at or go to the local police station; he explained that he was still

not safe because he was in an unfamiliar town. However, he did not report the shooting to the

Cape Girardeau Police Department either.

¶ 45 The defendant then rested his case, and the State had no rebuttal. After hearing closing

arguments from counsel, the jury found the defendant guilty of two counts of first degree

murder, one count of aggravated battery with a firearm, and two counts of aggravated discharge

20 of a firearm. The jury also found that the defendant, during the commission of the first degree

murder, personally discharged a firearm that caused great bodily harm to another.

¶ 46 On April 26, 2018, the defendant filed a motion for judgment on acquittal or, in the

alternative, a new trial, in which he contended, inter alia, that the trial court erred in not allowing

him to question the potential juror members during voir dire about whether they could be fair

and impartial where self-defense was raised; the court erred in denying his motion in limine with

regard to the photograph captioned “Gang,” the photograph of him purportedly chugging vodka,

and his message that he was getting high; the court erred in granting the State’s oral motion

in limine, which precluded defense counsel from questioning Bell about his expectation of

leniency in his pending criminal case in exchange for his favorable testimony in this case; and he

could not be convicted of felony murder based on the underlying felonies of aggravated

discharge of a firearm and aggravated battery with a firearm because those felonies were inherent

in the murder.

¶ 47 Thereafter, new counsel was appointed for the defendant, and on June 18, 2018, the

defendant filed a supplement to his motion, which provided additional support for the previously

made arguments. He also argued that his counsel was ineffective for not objecting to the felony

murder charges based on the predicate offenses being inherent in the murder, for not requesting

jury instructions on second degree murder and/or involuntary manslaughter, for not requesting a

jury instruction on the defense of others, and for failing to call multiple witnesses that would

have corroborated his defense.

¶ 48 On June 27, 2018, the trial court heard arguments on the defendant’s posttrial motions

and then commenced with the sentencing hearing. As to the posttrial motions, the defendant’s

21 posttrial counsel presented testimony from two witnesses, 3 arguing that trial counsel was

ineffective for failing to call them at trial as they would have corroborated the defendant’s use of

force defense. Griffin testified that he was with the defendant at the Sigma house party. When

he heard the gunshots inside the house, he ran out the front door to his vehicle. He waited for the

defendant there and observed two men, one standing on the right side of the house, and the other

standing on the front lawn, shooting guns toward Walnut Street in the direction of the church

parking lot. He heard approximately 4 to 10 gunshots. He observed bullets ricocheting, and he

was scared for his life. He spoke to the defendant’s counsel one time about what he observed

approximately one to two months after the incident, but he was not called as a witness to testify

at the trial. He did not recall talking to law enforcement about the incident.

¶ 49 Lena McMiller testified that she was standing in the church parking lot directly across the

street from the Sigma house with her friends when she heard two or three gunshots inside the

house. She then observed several people running out of the house and heard gunshots outside.

As she was running to her vehicle, a bullet flew past her and hit the church. She then changed

directions and continued running to her vehicle. She believed that several gunshots were being

fired in her direction; she heard approximately 10 to 15 gunshots. She did not see anyone

holding a gun that night. She talked to the defendant’s counsel approximately one month after

the incident and then right before the trial and told him exactly what she testified to. The court

then heard counsels’ arguments and subsequently denied the defendant’s posttrial motions,

finding that the defendant’s ineffective assistance of counsel claims involved matters of trial

strategy.

3 The defendant’s posttrial counsel intended to present testimony from three witnesses, but only two of them showed up at the hearing. 22 ¶ 50 The trial court then proceeded to the sentencing hearing, during which it indicated that it

had received and reviewed the presentence investigative report (PSI), two victim impact

statements, and four letters submitted on the defendant’s behalf. The State presented testimony

from Kittie McMillan, Beaty’s mother, who read her victim impact statement. She then testified

that Beaty’s death had impacted her entire family and that Beaty had a son, who would grow up

without a father. Don Beaty, Beaty’s father, testified that Beaty’s untimely death was an ever-

present emotional burden that impacted him physically and financially. He was self-employed

and had lost income because he was unable to function to his full potential due to emotional

stress and lack of sleep. He noted that his grandson lost a loving father who was involved in his

life. Jennifer Kiper, Beaty’s sister, testified that Beaty was a good father and her sons’ favorite

uncle. Jessica Beaty, Beaty’s wife, testified that she was married to Beaty for 5 years, but they

had been together for a total of 12. Beaty was the best father to their son, who was autistic; she

stated that Beaty read to him every night, picked him up from school every day, took him to the

park, and played superheroes with him. Since Beaty was killed, their son had become obsessed

with death and talked about it constantly. Because he was autistic, he could not engage in typical

counseling, but he had a therapist who was trying to work through it with him.

¶ 51 In aggravation, the State contended that it was important to deter others from committing

the same crime as this was another example of gun violence in the community. The State noted

that the purpose of felony murder was to deter individuals from committing a forcible felony by

holding them responsible for any resulting murders. The State also noted that the defendant

discharged his weapon multiple times directly in the middle of Route 13, which was the main

thoroughfare through Carbondale and near St. Francis Xavier Church, on Easter Sunday. The

State argued that it was the defendant’s actions that killed Beaty, who was an innocent victim

23 trying to keep others safe. The State acknowledged that according to the PSI, the defendant was

not a bad kid, he was going to college, and, although he was raised without a father, he had the

support of his mother, who raised him and his siblings by herself. However, the State argued

that the evidence showed that the defendant bragged about doing drugs after the shooting, about

getting into a fight, and about what he had done in Carbondale that night.

¶ 52 Although the defendant claimed his acts were justified, and the statements offered on his

behalf characterized his actions as a mistake, the State disagreed and argued that they were

conscious actions. In support, the State noted that the defendant traveled from Missouri to

Illinois with his loaded gun, took that loaded gun to a party, and then decided to stop on

Beveridge Street and repeatedly shoot at Greenlee. Thus, the State recommended a sentence of

45 years’ imprisonment for the first degree murder conviction. The State noted that since the

jury found it applicable, the court must sentence the defendant to an enhancement of 25 years to

natural life and recommended 30 years for the enhancement. The State also recommended that

the defendant be sentenced to 20 years’ imprisonment for the aggravated battery with a firearm

conviction and 5 years each for the aggravated discharge of a firearm convictions. The State

noted that the sentences must be consecutive to each other.

¶ 53 In mitigation, the defendant’s counsel contended that the defendant was a young man

with no criminal history, took honor classes in high school, graduated in the top 30% of his class,

and played college football at Lane University before transferring to SEMO. He was studying

business management in college because he aspired to own his own business, and he hoped to

play college football again. He had four siblings, who he deeply cared for, and he was their

father figure because their father was not in their lives. Defense counsel argued that the

defendant did not wake up that morning with the plan to commit murder, and although the jury

24 rejected it, there was evidence that he acted in self-defense. Counsel also argued that there was

evidence of provocation in that Greenlee flashed his firearm at him, pushed him from behind,

and fired the first shot at him. Counsel argued that the defendant deserved leniency because he

did not intend to kill anyone until he was shot at, and he simply intended to defend himself.

¶ 54 Defense counsel further contended that the lesser included offenses merged into the

felony murder, and those convictions must be vacated. Counsel argued that imposing a 25-year

sentence enhancement would constitute cruel and unusual punishment and would be

disproportionate to the underlying offense of an unintentional killing. Counsel argued that the

defendant would not be given an opportunity to rehabilitate himself if given an effective life

sentence, and that there was hope for rehabilitation in that he had never been involved in

anything like this before and was a “good seed” prior to this incident. Therefore, counsel

recommended a sentence of 20 years’ imprisonment based on the lack of aggravating factors and

the existence of the following mitigating factors: the defendant acted under a strong provocation,

there were substantial grounds tending to excuse or justify his criminal conduct, he had no

history of prior delinquency or criminal activity, he led a law-abiding life for a substantial period

of time before committing the present crime, his criminal conduct was the result of

circumstances unlikely to recur, and his character and attitude indicated that he was unlikely to

commit another crime.

¶ 55 The defendant then gave his statement in allocution expressing his regret for his actions,

asking for forgiveness, and pleading for a second chance. He indicated that he would use his

second chance to help others going down the wrong path.

¶ 56 Thereafter, the trial court announced its sentencing decision. In making its decision, the

court noted that it considered the PSI; the written victim impact statements; the victim impact

25 testimony from Beaty’s family; the four letters that were submitted on the defendant’s behalf; the

trial testimony and exhibits; the way that the defendant conducted himself in court in that he

always acted with respect; the information regarding his past, including his background and

accomplishments in life in that he was a leader in school, made good grades, played sports,

obtained a college scholarship to play football, was attending college at the time of the incident,

and was attempting to better himself; his statement in allocution where he apologized for his

actions; and counsels’ arguments in aggravation and mitigation. The court also indicated that it

considered the relevant factors in aggravation, specifically the need to deter others. As for

factors in mitigation, the court noted that it considered whether the defendant contemplated that

his criminal conduct would cause or threaten serious physical harm to another, whether he acted

under strong provocation in this particular situation, whether there were substantial grounds

tending to excuse or justify his criminal conduct, the fact that he had no criminal history, whether

the criminal conduct was the result of circumstances unlikely to reoccur, his character and

attitude that indicated that he was unlikely to commit another crime, and whether imprisonment

would entail excessive hardship to his family since he helped care for his younger siblings.

¶ 57 Noting that there were multiple gunshots fired, the trial court found that the convictions

were separate offenses, they were not lesser included offenses, and the defendant must serve

mandatory consecutive sentences. With regard to the first degree murder conviction, the court

sentenced him to 35 years’ imprisonment plus a mandatory sentence enhancement of 25 years to

be followed by a 3-year period of mandatory supervised release (MSR). For the aggravated

battery with a firearm, a Class X felony, the court sentenced him to 15 years’ imprisonment to be

followed by 3 years of MSR. For the first conviction of aggravated discharge of a firearm, a

Class 1 felony, the court sentenced him to five years’ imprisonment to be followed by two years

26 of MSR. For the second aggravated discharge of a firearm conviction, the court sentenced him

to another five years’ imprisonment to be followed by two years of MSR.

¶ 58 On July 25, 2018, the defendant filed a motion to vacate his convictions and to reconsider

his sentences, arguing, inter alia, that his convictions for aggravated discharge of a firearm and

aggravated battery with a firearm should be vacated as lesser included offenses of felony murder.

He argued that the 25-year sentencing enhancement was an impermissible double enhancement

as it was based on the fact that he used a firearm, which was already used to enhance his crime to

felony murder. He also argued that his sentence was excessive.

¶ 59 At the September 4, 2018, hearing on the defendant’s postsentencing motion, the State

conceded that the predicate felonies for felony murder were considered lesser included offenses

that should be vacated. Thus, the remaining sentence was the 35-year sentence for first degree

murder with the 25-year sentence enhancement to be served consecutively. After hearing

counsels’ arguments on the remaining allegations, the trial court denied his motion regarding

those claims. The defendant appeals his conviction and sentence.

¶ 60 II. ANALYSIS

¶ 61 A. Felony Murder Conviction

¶ 62 The defendant first contends his first degree murder conviction based on felony murder

must be vacated because the predicate felonies of aggravated battery with a firearm and

aggravated discharge of a firearm were inherent in the murder and were not committed with an

independent felonious purpose.

¶ 63 An individual commits felony murder if, while attempting or committing a forcible

felony other than second degree murder, a death occurs. 720 ILCS 5/9-1(a)(3) (West 2016). The

purpose of the felony-murder statute is to deter individuals from committing forcible felonies by

27 subjecting an offender to a first degree murder charge if another person is killed during that

felony. People v. Pugh, 261 Ill. App. 3d 75, 77 (1994). In proving a defendant guilty of felony

murder, the State does not have to prove the intent to kill, which distinguishes it from other

forms of first degree murder where the State must prove either an intentional killing or a

knowing killing. People v. Davison, 236 Ill. 2d 232, 239 (2010).

¶ 64 Because of the nature of felony murder, our supreme court has expressed its concern that

a felony murder charge may improperly allow the State to effectively eliminate the offense of

second degree murder while avoiding the burden of proving an intentional or knowing first

degree murder because certain predicate felonies tend to accompany all murders. People v.

Davis, 213 Ill. 2d 459, 471 (2004). Thus, to address this concern, our supreme court has

concluded that where the acts constituting forcible felonies arise from and are inherent in the act

of the murder itself, those acts cannot serve as predicate felonies for a felony murder charge.

Davison, 236 Ill. 2d at 240. “In other words, the predicate offense for felony murder must have

an independent felonious purpose and not be merely incidental to the murder itself.” People v.

Ruiz, 342 Ill. App. 3d 750, 755 (2003). Therefore, the question is whether the forcible felony

resulted in and caused the death, or whether it was the murder that gave rise to the forcible

felony. Id. Where the murder gives rise to the forcible felony, the forcible felony cannot serve

as a predicate felony for felony murder. Id. To answer this question, the court must review the

factual context of the murder. Id.

¶ 65 The defendant cites People v. Morgan, 197 Ill. 2d 404 (2001); People v. O’Neal, 2016 IL

App (1st) 132284; and People v. Space, 2018 IL App (1st) 150922, in support of his position that

the aggravated battery with a firearm and the aggravated discharge of a firearm did not have a

felonious purpose independent of the killing. In Morgan, defendant admitted that because he

28 feared for his life, he shot his grandfather, and then his grandmother as she attempted to flee.

Morgan, 197 Ill. 2d at 412. On appeal to our supreme court, defendant argued that his felony

murder conviction should be overturned because the predicate felonies, aggravated discharge of

a firearm and aggravated battery, were not independent of the killings. Id. Our supreme court

agreed, finding that aggravated battery and aggravated discharge of a firearm could not support a

conviction for felony murder because, given the facts of the case, those offenses were inherent in

the murders of defendant’s grandparents. Id. at 447. In making this decision, the court noted

that every shooting necessarily encompassed conduct constituting aggravated battery, i.e., great

bodily harm, as well as conduct constituting aggravated discharge of a firearm, i.e., discharging a

firearm in the direction of another. Id. Thus, potentially all fatal shootings could be charged as

felony murder based upon aggravated battery and/or aggravated discharge of a firearm. Id.

Therefore, the trial court erred in instructing the jury on felony murder. Id.

¶ 66 In O’Neal, defendant, who was a gang member, shot at a van that he thought was

occupied by rival gang members. O’Neal, 2016 IL App (1st) 132284, ¶¶ 6-8. However, instead

of hitting his intended target inside the van, defendant inadvertently shot and killed his friend

who was sitting in a parked car on the opposite side of the street. Id. ¶¶ 6, 8. The State charged

defendant with felony murder based on aggravated discharge of a firearm, intentional murder,

and strong probability murder. Id. ¶ 2. The jury found defendant guilty of felony murder but

reduced the intentional and strong probability murder counts to second degree murder based on

the mitigating factor of unreasonable self-defense. Id. ¶ 3. The appellate court reversed the

felony murder conviction and remanded for resentencing on the second degree murder

conviction. Id. ¶ 4. In doing so, the court found that defendant’s act of discharging a firearm in

the direction of the van, the predicate felony charged in the felony-murder count, was inherent in

29 the murder itself. Id. ¶ 42. The court noted that this act was the only act committed by

defendant—or anyone else—in that case. Id. The court noted that the State had conceded that

every single shot defendant fired was aimed at, and intended for, the occupants of the van. Id.

Also, the court noted that there were no events set in motion by defendant’s shooting of the gun,

such as return gunfire. Id. ¶ 45. Thus, the court found that defendant’s discharge of a firearm in

the direction of the van’s occupants was an act inherent in the killing of his friend. Id. ¶ 54.

¶ 67 The O’Neal court also found that the State did not prove that defendant acted with a

felonious purpose independent of the murder itself. Id. ¶ 57. Although the court acknowledged

that this case was different from Morgan in that defendant missed his intended target and killed

an innocent bystander, the court stated that it did not see how the felonious purpose in shooting a

bullet could somehow change based on where that bullet happened to land, regardless of whether

it landed with the intended target or the unintended bystander. Id. ¶ 58. The court observed that

the law treated defendant’s intent—his felonious purpose—in shooting the unintended victim as

one and the same as his intent to kill the intended victim. Id. ¶ 59. If defendant intended to kill

an individual, he was deemed to have intended to kill the innocent bystander. Id. Thus, the court

held that defendant did not act with a felonious purpose that was independent of the act causing

his friend’s death. Id. ¶ 63.

¶ 68 In Space, defendant found his ex-girlfriend in the park with her new boyfriend,

approached the boyfriend, and shot him at point blank range. Space, 2018 IL App (1st) 150922,

¶¶ 13, 18. A friend of the boyfriend went to his aid, and defendant also shot the friend, but he

survived. Id. ¶ 22. The State charged defendant with felony murder based on aggravated battery

with a firearm, and the jury found him guilty. Id. ¶¶ 4, 34. On appeal, it was clarified that the

predicate felony was the aggravated battery of the friend that was the basis for felony murder.

30 Id. ¶ 42. The appellate court found that defendant did not have a distinct felonious purpose when

shooting the friend, other than his motive and purpose to accomplish the murder of the

boyfriend. Id. ¶ 48. The court noted that it was possible that defendant had fired the gun at the

friend to prevent him from saving the life of the boyfriend. Id. However, it also noted that it

was possible defendant intended to shoot the boyfriend again, but he instead hit the friend. Id.

Regardless of his intention, the court found that both of those reasonable possibilities tended to

show that defendant was acting with the same felonious purpose of accomplishing the murder of

one victim when he committed the aggravated battery of the other. Id.

¶ 69 The Space court also found that the State could not establish proximate cause for felony

murder where the boyfriend had been fatally wounded prior to his friend’s intervention. Id. ¶ 52.

Thus, because the aggravated battery with a firearm felony did not meet the causation

requirement of felony murder, the court found that the aggravated battery with a firearm was not

a valid predicate felony. Id.

¶ 70 Here, the State contends that this case is distinguishable from the cases cited by the

defendant as Beaty was not the target of the defendant’s bullets that night. Instead, the State

argues that the defendant intended to shoot Greenlee and, in his act of shooting the bullets, shot

Beaty, ultimately killing him. The State also noted that, unlike O’Neal, the jury did not convict

the defendant of second degree murder and felony murder concerning the same predicate felony.

Thus, the State contends that since the defendant ultimately killed Beaty as a result of his

felonious aggravated battery with a firearm and his aggravated discharge of a firearm directed

specifically at Greenlee, there existed an independent felonious purpose.

¶ 71 The State’s position is supported by People v. McGee, where defendant was shooting at a

member of a rival street gang when he missed and hit a baby in a stroller, killing the baby.

31 People v. McGee, 345 Ill. App. 3d 693, 695-96 (2003). The trial court found him guilty of

felony murder predicated on aggravated discharge of a firearm. Id. at 696. On appeal, defendant

argued that his aggravated discharge of a firearm was an act inherent in the murder of the baby

and, thus, could not serve as the predicate offense. Id. at 697. The appellate court disagreed,

finding that defendant shooting the rival gang member was conduct that formed the basis of the

aggravated discharge of a firearm conviction, and his shooting of the baby was the conduct that

formed the basis for the murder. Id. at 698. Thus, the court found that the predicate felony

involved conduct with a felonious purpose other than the conduct that killed the baby. Id. In

making this decision, the court noted that the facts were almost identical to the facts in People v.

Toney, 337 Ill. App. 3d 122 (2003).

¶ 72 In Toney, defendant drove two of his fellow gang members into a rival gang’s territory.

Id. at 129. After one of the rival gang members threw a bottle at defendant’s vehicle,

defendant’s friends got out of the car and opened fire. Id. at 127, 129. A gun battle between the

two gangs then ensued. Id. at 129. The exchange of gunfire eventually resulted in the victim’s

death several minutes later at a different location. Id. at 137. Defendant was convicted of felony

murder (among other offenses) on a theory of accountability because he had aided and abetted

the other gang members by being their driver and by driving them into the rival gang’s territory

with the plan of mounting an armed assault. Id. at 128-29. On appeal, defendant argued that the

aggravated discharge of a firearm could not serve as the predicate felony for felony murder.

Id. at 128. The appellate court disagreed, finding the acts constituting the predicate felony did not

arise from and were not inherent in the murder of the victim but, rather, involved conduct with

an independent felonious purpose other than the killing. Id. at 137. That conduct involved the

independent felonious purpose of discharging firearms at rival gang members, which triggered

32 an exchange of gunfire by the rival gangs eventually resulting in the victim’s death several

minutes later at a different location. Id.

¶ 73 According to the McGee court, the facts were similar to Toney in that defendant did not

intend to kill the baby any more than defendant and his associates intended to kill the victim in

Toney. McGee, 345 Ill. App. 3d at 698. Thus, the court reasoned that there was sufficient

evidence that the acts constituting the predicate felony did not arise from and were not inherent

in the murder of the baby but, rather, involved conduct with an independent felonious purpose

other than the killing. Id. at 699. That conduct involved the independent felonious purpose of

discharging a firearm at a rival gang member, which eventually resulted in the death of the baby.

Id.

¶ 74 Here, the facts are similar to McGee where the defendant intended to shoot Greenlee, and

in the act of shooting and injuring Greenlee, he shot Beaty, which ultimately resulted in Beaty’s

death. There was sufficient evidence that the acts constituting the predicate felonies here did not

arise from and were not inherent in Beaty’s murder but, rather, involved conduct with an

independent felonious purpose other than killing Beaty. The defendant’s shooting at Greenlee

was the conduct that formed the basis of the aggravated discharge of a firearm and aggravated

battery with a firearm, and his unintentional shooting of Beaty formed the basis for the murder.

In reaching this conclusion, we find that O’Neal is distinguishable in that the O’Neal jury not

only found defendant guilty of first degree murder based on felony murder, but also on the

intentional and strong-probability murder counts, which reduced the conviction to second degree

murder based on the mitigating factor of unreasonable self-defense. This case did not involve a

jury finding of a mitigated mental state or a verdict of second degree murder. Thus, we conclude

that, based on the particular facts of this case, the aggravated battery with a firearm conviction

33 and the aggravated discharge of a firearm conviction can serve as predicate felonies for felony

murder.

¶ 75 B. Ineffective Assistance of Counsel

¶ 76 In order to prevail on a claim of ineffective assistance of counsel, a defendant must

establish that (1) counsel’s performance fell below an objective standard of reasonableness and

(2) defendant was prejudiced by counsel’s substandard performance. People v. Moore, 279 Ill.

App. 3d 152, 157 (1996). A defendant must prove both counsel’s deficient performance and the

resulting prejudice or the claim fails. People v. Simms, 192 Ill. 2d 348, 362 (2000). Under the

deficiency prong, counsel is afforded wide latitude when making decisions concerning trial

strategy. People v. Reid, 179 Ill. 2d 297, 310 (1997). Strategic decisions, such as

which witnesses to call and what evidence to present on defendant’s behalf, are trial counsel’s to

make. Id. Those decisions are generally immune from ineffective assistance of counsel claims,

unless the chosen trial strategy is so unsound that counsel fails to conduct any meaningful

adversarial testing. Id. Counsel’s strategic decisions may be deemed ineffective when they

result in counsel’s failure to present exculpatory evidence of which he is aware, including the

failure to call witnesses whose testimony would support an otherwise uncorroborated defense.

People v. King, 316 Ill. App. 3d 901, 913 (2000).

¶ 77 1. Counsel’s Failure to Call Corroborating Witnesses

¶ 78 The defendant contends that he received ineffective assistance of trial counsel when his

counsel failed to call certain witnesses who would have corroborated his claim of self-defense.

Specifically, the defendant argues his trial counsel was ineffective for failing to call Griffin,

McMiller, and also “witnesses to whom *** Ingram made statements” that the other shooters

fired in his direction first. He contends that there was circumstantial evidence of a threat from

34 the north side of Walnut Street, but none of the testifying witnesses, other than himself, actually

testified about witnessing the shots fired at him.

¶ 79 At the hearing on the posttrial motion, the State provided the following reasons for why

not calling Griffin and McMiller at trial was a sound trial strategy. First, Griffin was a known

associate of the defendant, was with the defendant the entire night, and along with the defendant,

failed to call the police to report the shooting. Thus, the State contended that Griffin’s testimony

would be suspect because his bias was evident. Second, the State argued that McMiller was also

inherently biased as she was the defendant’s cousin, her statement indicated that the gunshots

toward the church were in response to gunfire already occurring outside of the Sigma house, the

evidence established that the defendant was the first to fire a weapon in Greenlee’s direction, and

she did not see any of the shooters. Thus, the State argued that her testimony would not have

corroborated the defendant’s self-defense claim. Third, the State contended that the SEMO

witnesses were notorious for intentionally avoiding service; several applications for service on

the out-of-state witnesses had been issued, but even though it was confirmed that many of those

witnesses lived on SEMO’s campus, the authorities could not serve them (this was especially

true for McMiller). After hearing the arguments, the trial court denied the defendant’s posttrial

motion.

¶ 80 We acknowledge that there was circumstantial evidence that there was shooting coming

from the north side of the street and corroborating evidence in the form of the defendant’s

testimony. However, in light of Griffin and McMiller’s relationship to the defendant, their

failure to report the shooting, and their reluctance to talk to the investigating officers following

the shooting, trial counsel’s decision to not call them as witnesses at trial was not unsound.

Griffin was with the defendant on the night of the shooting and when the defendant fled the area.

35 McMiller’s testimony indicated the shooting toward the church may have been in response to

gunfire already occurring, which was not favorable to the defendant’s self-defense claim. She

also did not see any of the shooters. The decision to call particular witnesses is a matter of trial

strategy, and defense counsel need not call a witness if he reasonably believes that, under the

circumstances, the individual’s testimony is unreliable or would likely have been harmful to the

defendant. People v. Flores, 128 Ill. 2d 66, 106 (1989). Accordingly, we cannot say that

counsel’s decisions were so unsound that counsel failed to conduct any meaningful adversarial

testing.

¶ 81 Moreover, with regard to the unnamed witnesses, we agree with the State that it is telling

that those witnesses remain unnamed and are not identified in the defendant’s appellate brief.

Further, the defendant’s trial counsel was able to cross-examine Ingram about the particular

statements that he allegedly made to others. Thus, we find that counsel’s

performance was not deficient as it fell within the range of trial strategy, which is generally

immune from claims of ineffective assistance of counsel.

¶ 82 2. Use of Force Instruction

¶ 83 The defendant next contends that his trial counsel was ineffective for failing to object to

the State’s proposed jury instruction on the use of force in defense of a person, which removed

language relating to the defense of others and justified use of force. The defendant argues that

there were several people inside the Sigma house when someone inside shot a gun, there was

circumstantial evidence that suggested that someone on the side of the street opposite the

defendant shot in the direction of a church parking lot where many people had fled to escape, and

at trial, the State argued that the defendant’s motivation was to protect his friends. Although the

jury found that the defendant did not have a reasonable belief in self-defense, the defendant

36 argues that they were denied the opportunity to determine whether another valid justification

existed when there was some evidence of other justifications presented at trial. We disagree.

¶ 84 At trial, the defendant only asserted that he was acting in self-defense; he never asserted

that he was acting to protect others as an affirmative defense. Because he was not asserting that

affirmative defense, leaving the language regarding other justifications in the instruction would

have only served to confuse the jurors. See People v. Anderson, 2012 IL App (1st) 103288, ¶ 40

(jury instructions are intended to convey the correct principles of law applicable to the evidence

submitted, and they should not be misleading or confusing). Thus, counsel’s performance in not

objecting to that language being removed from the proposed jury instruction was not deficient

where he was not asserting those affirmative defenses.

¶ 85 C. Limitations on Bell’s Cross-Examination

¶ 86 The defendant next argues that his constitutional rights were violated when his trial

counsel was denied an opportunity to cross-examine Bell, the State’s witness, about Bell’s

expectation of leniency concerning his pending criminal case. The defendant notes that at the

time Bell testified, he had an unrelated, pending misdemeanor charge and a pending petition to

revoke previously-ordered supervision. The defendant argues that his counsel should have been

allowed to inquire as to whether Bell’s pending court supervision violation might have

influenced his motive to testify favorably for the State.

¶ 87 A defendant has the constitutional right to confront the witnesses against him. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This right encompasses cross-examining

witnesses to reveal any bias, prejudice, or motivation to give false testimony. People v. Baptiste,

37 Ill. App. 3d 808, 811 (1976). However, the right to cross-examine is not absolute, as the trial

court has discretion to impose reasonable limits on cross-examination to limit possible

37 harassment, prejudice, jury confusion, witness safety concerns, or repetitive and irrelevant

questioning. People v. Tabb, 374 Ill. App. 3d 680, 689 (2007). The confrontation clause

guarantees an opportunity for effective cross-examination, not cross-examination that is effective

in whatever way and to whatever extent the defense desires. People v. Leak, 398 Ill. App. 3d

798, 823 (2010). The scope of cross-examination is a matter within the court’s discretion, and a

reviewing court will not reverse that decision unless there was a clear abuse of discretion.

People v. Mosley, 71 Ill. App. 3d 808, 811 (1979). An abuse of discretion occurs where the

court’s decision is arbitrary, fanciful, unreasonable, or where no reasonable person would take

the view adopted by the court. People v. Blom, 2019 IL App (5th) 180260, ¶ 35.

¶ 88 Here, at trial, the State orally made a motion in limine after learning that defense counsel

was going to introduce Bell’s prior conviction; Bell was initially charged with felony unlawful

delivery of cannabis, then a misdemeanor charge of unlawful delivery of cannabis, and he pled

guilty to the misdemeanor. Bell was on court supervision for the conviction, but there was a

pending petition to revoke his supervision. Defense counsel sought to introduce the conviction

to establish that Bell had a motive to lie in his testimony. The State contended that the

conviction should be excluded because the petition was still pending, and there had been no

promises of leniency made to Bell by the State in regard to that pending petition. The State

noted that this was pure speculation because it had not even spoken to Bell about the petition.

After hearing arguments, the trial court granted the motion in limine.

¶ 89 Where the State indicated that it had not spoken with Bell about his unrelated, pending

misdemeanor charge; Bell had already given statements to law enforcement regarding what he

witnessed that night before he was charged with the underlying cannabis offense; and the

underlying cannabis charge was completely removed from his involvement in this case, we

38 cannot say that the trial court abused its discretion in restricting Bell’s cross-examination.

Moreover, although Bell indicated that he spoke to the State about his testimony in this case, he

testified that the State never told him what to say. Accordingly, the court did not abuse its

discretion in refusing to allow defense counsel to cross-examine Bell about his unrelated,

pending charges.

¶ 90 D. Evidence Relating to the Defendant’s State of Mind

¶ 91 The defendant argues that the trial court abused its discretion in allowing the State to

introduce the following evidence: a photograph of him and two others taken around the time of

the incident that was captioned “Gang,” a Snapchat photograph of him purportedly chugging a

bottle of vodka before the incident, and a Snapchat message from him to Dunn after the incident

wherein he reported that he was getting high.

¶ 92 On March 19, 2018, the defendant filed a motion in limine, wherein he sought to exclude

this evidence because it was unduly prejudicial. Before commencement of the trial, the trial

court heard arguments on this motion. The State first noted that its intention was not to use the

photograph captioned “Gang” to show the defendant was in a gang. It instead wanted to use a

video that was disseminated through the defendant’s Snapchat story that included pictures and

videos, including the picture captioned “Gang,” because it primarily featured his thoughts that

night. The State argued that the Snapchat story, which was posted on the night in question,

highlighted the defendant’s night and was relevant to show his state of mind at that time. The

State contended that how the defendant started and ended that night was relevant to his claim of

justified use of force, and the Snapchat story allowed the jurors to see what he was thinking as

the night progressed. Regarding the photograph captioned “Gang,” the State argued that it was

relevant to show his strong loyalty to his SEMO acquaintances. The State argued that the

39 photograph of the defendant chugging a bottle of vodka showed that he had begun drinking

before traveling to Carbondale, which was relevant to show his state mind and whether he was

justified in using force. As for the Snapchat message, the State argued it was relevant to show

that he was not concerned about the fact that he had just shot someone.

¶ 93 In response, the defendant noted that the photograph captioned “Gang” was a photograph

of him and his two cousins, who were not involved in the incident. He argued that the caption

should at least be removed before showing the photograph to the jury because gangs were

irrelevant in the case, the use of the word “gang” was inflammatory, and it painted him in a bad

light. He argued that the photograph of him drinking had an extremely low probative value, and

it was prejudicial. Regarding the conversation with Dunn, the defendant indicated that Dunn had

informed him that Dunn was in police custody, and he responded that he was going to get high

for Dunn. He argued that the message was prejudicial because it showed that he was a pot

smoker, had nothing to do with the case, and did not go to his state of mind during the incident.

After hearing arguments, the trial court denied the defendant’s motion in limine.

¶ 94 Decisions concerning the admissibility of evidence are within the sound discretion of the

trial court, and the court’s decisions may not be reversed absent an abuse of discretion. People v.

Illgen, 145 Ill. 2d 353, 364 (1991). Irrelevant evidence is inadmissible. Ill. R. Evid. 402 (eff.

Jan. 1, 2011). Evidence is relevant if it has “any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence may be

excluded “if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.” Ill. R. Evid. 403 (eff. Jan. 1, 2011).

40 ¶ 95 Here, after carefully reviewing the record, we find that the trial court did not abuse its

discretion in allowing the State to present the photographs and the Snapchat message to show the

defendant’s state of mind before and after the shooting. The two pictures were not stand-alone

pictures but were instead part of a Snapchat story that was shown to the jury. As the defendant

was arguing that he acted in self-defense, his state of mind during that time was relevant,

especially when he testified that he was afraid for his life. Also, we note that the photograph

captioned “Gang” was not presented by the State to affiliate the defendant with any gang.

Instead, it was used to show his loyalty to the people who he was with that night. We note that,

during the trial, the State made no mention of gangs and did not try to suggest that the defendant

was involved in one. As for the defendant’s argument that this was improper propensity

evidence, we note that this evidence was not presented to show that because he drank vodka and

smoked marijuana, he had the propensity to engage in criminal wrongdoing. Accordingly, we

find that the court did not abuse its discretion in admitting this relevant evidence.

¶ 96 E. Questioning of Potential Jurors at Voir Dire

¶ 97 The defendant next argues that the trial court erred in denying his counsel’s proposed

voir dire questions about the potential jurors’ beliefs on transferred intent. Before voir dire,

defense counsel requested that the trial court ask specific questions about whether the potential

jurors could be fair and impartial as it related to self-defense to explore bias against self-defense

and firearms. The State objected, arguing, inter alia, that it was an improper line of questioning

at voir dire as the jury instructions would instruct them on the law. The court agreed that the

questions at voir dire should not directly or indirectly concern matters of law or the jury

instructions. The court then asked defense counsel if he would be agreeable to a specific

question about whether the potential jurors could be fair and impartial if the issue of self-defense

41 was raised; the court indicated that was as far as it was comfortable going with that specific

question. Defense counsel had no objection but requested permission to ask questions about

self-defense when uninvolved third parties become the victims of the self-defense and delve into

whether the jurors could find a defendant not guilty under those circumstances. The court denied

that request, stating that it was getting too far into the law and the jury instructions. During

voir dire, the court asked the potential jurors if they could be fair and impartial in a case where

self-defense was raised.

¶ 98 The purpose of voir dire is to ensure the selection of an impartial panel of jurors who are

free from bias or prejudice. People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993). The primary

responsibility for conducting voir dire lies with the trial court, and the scope of the examination

rests within its discretion. People v. Terrell, 185 Ill. 2d 467, 484 (1998).

The trial court possesses great latitude in deciding what questions may be asked during voir dire.

Id. On review, an abuse of the court’s discretion will be found only when the record reveals that

the court’s conduct thwarted the selection of a fair and impartial jury. Id. The court has a right

to place reasonable limitations on voir dire. People v. Lanter, 230 Ill. App. 3d 72, 75 (1992). A

court properly refuses questions designed to educate the jurors on defendant’s theory of defense

and ensure the selected jurors are receptive to that defense. People v. Reeves, 385 Ill. App. 3d

716, 730 (2008). According to Illinois Supreme Court Rule 431(a) (eff. July 1, 2012), questions

asked during voir dire should not directly or indirectly concern matters of law or instructions.

Allowing defendant to question prospective jurors regarding any predisposition to a self-defense

claim goes to an ultimate question of fact and would serve no purpose other than to improperly

attempt to preeducate and indoctrinate the jurors as to defendant’s theory of the case. People v.

Karim, 367 Ill. App. 3d 67, 92-93 (2006).

42 ¶ 99 Here, the defendant argues that the entire case rested on the notion of transferred intent,

and he was severely prejudiced by not having the opportunity to explore the potential jurors’

thoughts on this pivotal issue. He argued that jury members could have rejected the notion that

he should be found not guilty for killing an innocent person when he acted in self-defense at the

time. In denying the request, the trial court stated that this line of questioning was getting too far

into the law and the jury instructions. We do not find that this was an abuse of discretion as Rule

431(a) makes clear that questions asked during voir dire should not directly or indirectly concern

matters of law or instructions.

¶ 100 F. Excessive Sentence

¶ 101 Lastly, the defendant argues that his sentence was excessive where the finding that he

discharged a firearm that caused great bodily harm enhanced his sentence more than once and

where the mitigating factors outweighed those in aggravation. A sentence will not be disturbed

on appeal absent an abuse of the sentencing court’s discretion. People v. Etherton, 2017 IL App

(5th) 140427, ¶ 15. Its sentencing decision is entitled to great deference because the court is

generally in a better position to determine the appropriate sentence, having the opportunity to

weigh such factors as defendant’s credibility, demeanor, general moral character, mentality,

social environment, habits, and age. Id. A reviewing court may not substitute its judgment for

that of the trial court merely because it would have weighed these factors differently. People v.

Stacey, 193 Ill. 2d 203, 209 (2000). A sentence within the statutory limits will not be considered

excessive unless it greatly varies with the spirit and purpose of the law or is manifestly

disproportionate to the nature of the offense. Id. at 210.

¶ 102 Where mitigating evidence was presented, it is presumed the trial court considered it,

absent some contrary indication other than the sentence imposed. Etherton, 2017 IL App (5th)

43 140427, ¶ 29. While the sentencing court may not ignore evidence in mitigation, it may

determine the weight to attribute to it. People v. Markiewicz, 246 Ill. App. 3d 31, 55 (1993).

The spirit and purpose of the law are promoted when the court’s sentence reflects both the

seriousness of the offense and gives sufficient consideration to defendant’s rehabilitative

potential. Etherton, 2017 IL App (5th) 140427, ¶ 28. The seriousness of the offense is one of

the most important factors for the court to consider. Id.

¶ 103 In sentencing, a double enhancement occurs when either (1) the same factor is used as an

element of an offense and as a basis for imposing a harsher sentence or (2) the same factor is

used twice to elevate the severity of the charged offense. People v. Guevara, 216 Ill. 2d 533,

545 (2005). The prohibition against double enhancement is a rule of statutory construction,

which is premised on the assumption that the legislature considered the factors inherent in the

offense in determining the appropriate range of penalties. Id. Where the legislature clearly

expresses its intention for there to be a double enhancement, there is no prohibition. Id. When

determining whether the legislature intended a double enhancement, we look to the statute itself

as the best indication of the legislature’s intent. People v. Phelps, 211 Ill. 2d 1, 15 (2004). The

best indication of legislative intent is the statutory language, given its plain and ordinary

meaning. Id. As the double enhancement rule involves statutory construction, our standard of

review is de novo. Id. at 12.

¶ 104 Here, the defendant contends that a Class 3 aggravated battery charge was enhanced to a

Class X aggravated battery with a firearm charge based on the finding that he discharged a

firearm that injured another person, and the State enhanced that to felony murder based on the

same finding. The defendant also contends that the trial court considered this finding as an

aggravating factor to add 15 years to the minimum sentence and to enhance his sentence to 25

44 years based on the firearm enhancement. He argues that a conviction for the discharge of a

firearm that causes an injury should never have resulted in a sentence outside of the 6- to 30-year

range for aggravated battery with a firearm. He further argues that the court improperly

considered, as an aggravating factor, the use of a firearm when it sentenced him, and the court

failed to give adequate consideration to the mitigating factors, such as his remorse, unlikelihood

of recidivism, the hardship on his family, and his lack of a criminal background.

¶ 105 The defendant was convicted of, and sentenced for, first degree murder. The sentencing

range for first degree murder is 20 to 60 years. 730 ILCS 5/5-4.5-20(a)(1) (West 2018). In

addition, a mandatory sentence enhancement of 25-years-to-natural-life imprisonment attaches to

the sentence if, during the commission of the murder, defendant personally discharges a firearm

that proximately causes great bodily harm or death to another person. Id. § 5-8-1(a)(1)(d)(iii).

The trial court sentenced the defendant to 60 years’ imprisonment (35 years for first degree

murder and 25 years for the mandatory firearm enhancement). Initially, we note that the

defendant was not charged with a Class 3 felony of aggravated battery; he was first charged with

a Class X felony of aggravated battery with a firearm and a Class 1 felony of aggravated

discharge of a firearm. Thereafter, he was charged by indictment with first degree murder based

on felony murder. The sentence enhancement for the first degree murder conviction was a

mandatory component of a defendant’s sentence because the jury found that the defendant

personally discharged a firearm that proximately caused great bodily harm to another person.

The legislature has made clear an intention to enhance the penalty for this crime based on the use

of a firearm, and this court will not overrule the legislature, even where it may constitute a

double enhancement. See People v. Sharpe, 216 Ill. 2d 481, 530 (2005).

45 ¶ 106 As for the defendant’s argument that his sentence was excessive, we note that it was

within the allowable statutory range for first degree murder. In fashioning this sentence, the trial

court noted that it considered the PSI; the written victim impact statements; the victim impact

testimony; the four letters that were submitted by the defendant, the trial testimony, and exhibits;

the fact that the defendant was always respectful in court; his background and accomplishments

in life, including the fact that he was a leader in school, made good grades, played sports,

obtained a college scholarship to play football, was attending college at the time of the incident,

and was attempting to better himself; his statement in allocution where he expressed his remorse;

and counsels’ arguments in aggravation and mitigation. In aggravation, the court considered the

need to deter others. In mitigation, the court considered whether the defendant contemplated that

his criminal conduct would cause or threaten serious physical harm to another, whether he acted

under strong provocation, whether there was substantial grounds tending to excuse or justify his

criminal conduct, the fact that he had no criminal history, whether the criminal conduct was the

result of circumstances unlikely to reoccur, his character and attitude indicating that he was

unlikely to commit another crime, and whether imprisonment would entail excessive hardship to

his family since he helped care for his younger siblings.

¶ 107 All of these possible mitigating factors were presented to the trial court at sentencing, in

the PSI report, and during defense counsel’s arguments at the sentencing hearing. The court

specifically mentioned the mitigating factors that were identified by the defendant in his

appellate brief and indicated that it had considered those factors in determining the defendant’s

sentence. In the face of this record, there is nothing indicating that the court did not consider

these mitigating factors or considered improper factors in aggravation. While the defendant

contends that his sentence does not reflect a proper weighing of the above referenced mitigating

46 factors, this argument essentially asks us to substitute our own judgment for that of the trial

court. However, as noted above, this would be an improper exercise of our powers as a

reviewing court. Moreover, although the court noted that multiple gunshots were fired, there

was no indication that it considered this as evidence in aggravation. Accordingly, we find that

the court did not abuse its discretion in sentencing the defendant to 60 years’ imprisonment.

¶ 108 III. CONCLUSION

¶ 109 For the foregoing reasons, we affirm the judgment of the circuit court of Jackson County.

¶ 110 Affirmed.