2015 IL App (3d) 130780
Opinion filed October 7, 2015 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-13-0780 v. ) Circuit No. 13-CF-127 ) JERRELL W. WADE, ) ) Honorable Clark Erickson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-13-0781 v. ) Circuit No. 13-CF-128 ) JONATHAN D. WADE, ) ) Honorable Clark Erickson, Defendant-Appellant. ) Judges, Presiding. _____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and Holdridge concurred in the judgment and opinion.
OPINION
¶1 A Kankakee County jury found defendant, Jerrell W. Wade, guilty of attempted murder
and unlawful possession of a weapon by a felon. The same jury also found defendant, Jonathan D. Wade, guilty of attempted murder. The court sentenced Jerrell to 39 years’ imprisonment for
attempted murder and 5 years’ imprisonment for unlawful possession of a weapon by a felon, to
be served consecutively. The court sentenced Jonathan to 32 years’ imprisonment for attempted
murder. Defendants’ sentences for attempted murder included a mandatory 25-year sentencing
enhancement based on the jury’s finding that both defendants personally discharged a firearm
proximately causing great bodily harm, permanent disability, or permanent disfigurement to the
victim.
¶2 Defendants appeal, arguing that the court erred by instructing the jury as to whether
defendants personally discharged a gun proximately causing great bodily harm, where
defendants’ indictments did not include such allegations. We affirm.
¶3 BACKGROUND
¶4 The State issued identical indictments for each defendant for attempted murder and
aggravated battery with a firearm. In addition, the State charged Jerrell with unlawful possession
of a weapon by a felon. The indictments, in relevant part, state:
“That on the 8th day of March, 2013, in the County of
Kankakee and the State of Illinois, said [defendants] committed the
offense of ATTEMPT (FIRST DEGREE MURDER), in violation
of Chapter 720, Paragraph 5/8-4(a) of the Illinois Complied
Statutes, in that said [defendants], with the intent to commit the
offense of First Degree Murder, in violation of Chapter 720,
Paragraph 5/9-1(a)(1) of the Illinois Complied Statutes, performed
a substantial step toward the commission of that offense, in that
2 said [defendants] shot Greg Dismuke about the body with a
handgun.
That on the 8th of March, 2013, in the County of Kankakee and
the State of Illinois, said [defendants] committed the offense of
AGGRAVATED BATTERY WITH A FIREARM, in violation of
Chapter 720, Paragraph 5/12-3.05(e)(1) of the Illinois Complied
Statutes, in that said [defendants], in committing a battery, in
violation of the Illinois Complied Statutes, Chapter 720, Paragraph
5/12-3, knowingly and without legal justification, caused an injury
to Greg Dismuke by means of the discharging of a firearm, in that
said [defendants] shot Greg Dismuke about the body with a
handgun.”
¶5 Defendants agreed to be tried jointly by one jury. At trial, the State presented the
following evidence.
¶6 Dismuke went to Kut Above barbershop on Fifth Avenue in Kankakee at approximately
3:30 p.m. The barbershop was located at the end of a strip mall. Defendants shot at Dismuke in
the strip mall’s parking lot. Five eyewitnesses testified that both Jerrell and Jonathan shot at
Dismuke. Two eyewitnesses with partial views saw Jerrell shoot at the victim. One eyewitness
testified that only Jerrell shot Dismuke. Another witness with a partial view testified that
Jonathan shot at the victim. The police recovered 16 9-millimeter shell casings from the parking
lot. Analysis of the shell casings established that they were discharged from two different
guns—5 shells from one gun and 11 shells from a different gun.
3 ¶7 Dismuke testified that he was not carrying a firearm at the time of the incident. No
eyewitnesses saw Dismuke with a gun. Eyewitnesses testified that Dismuke moved quickly,
weaving in between cars in order to avoid the shooters. A surveillance video from across the
street corroborated this testimony.
¶8 Makeisha Bell waited for defendants in a car in the parking lot. After the shooting,
defendants jumped into the car and Bell drove out of the parking lot. The police picked up
defendants shortly thereafter. Eyewitnesses identified defendants as the shooters in a show-up
and from photo arrays.
¶9 Dismuke went to the emergency room with multiple gunshot wounds. Dr. Simon Wu
testified that he reviewed Dismuke’s medical records; Wu was not the doctor who treated
Disumke on the day of the shooting. Dismuke underwent various treatments at the hospital. He
suffered a fractured left elbow and a fractured left femur. The doctors placed a rod in his left
femur. Dismuke also suffered a gunshot wound in the suprapubic area. Wu opined that the
injuries Dismuke suffered resulted from being shot.
¶ 10 After discharge from the hospital, Dismuke used a walker and attended physical therapy.
He also received medical care at home. Dismuke took pain medication, anxiety medication, and
had a series of injections to keep his blood from clotting. A couple weeks later, Dismuke was
able to walk on his own. The court admitted photographs of Dismuke’s injuries without
objection.
¶ 11 Defendants then presented the following evidence. Jerrell testified that Bell gave
Jonathan and Jerrell a ride to the barbershop. The barbershop was crowded so Jerrell told his
barber that Jonathon and he would wait outside until it was time for their haircuts. Shortly
thereafter, Dismuke exited the barbershop, approached defendants and said, “What’s up?”
4 Jerrell asked Dismuke what he meant and Dismuke responded, “You know what it is.” Dismuke
then pulled out a gun and fired shots at Jerrell.
¶ 12 Jerrell pulled out his gun and fired at Dismuke in self-defense. Dismuke hid behind a
truck and Jerrell headed toward Dismuke so that Dismuke could not continue shooting at
defendants from behind the truck. Dismuke ran between cars, but continued to shoot at
defendants. Jerrell stopped shooting once Dismuke dropped his gun. Jerrell assumed Dismuke
dropped the gun after Jerrell shot him. After Jerrell shot Dismuke, Jerrell and Jonathan jumped
into Bell’s car and left; Jerrell did not think that the police would believe he shot Dismuke in
self-defense. Jerrell explained that he had recently been shot at and two of his brothers were
killed by gunfire. Jerrell heard that Dismuke shot at him and killed his brothers. He denied
shooting at Dismuke in retaliation of the deaths of his brothers. Jerrell testified that Jonathan did
not have a gun on the day of the shooting.
¶ 13 Jonathan testified that he did not have a gun during the incident outside the barbershop.
He ducked behind Jerrell to avoid the cross-fire. Jonathan did not know that Dismuke was in the
barbershop when Jerrell and Jonathan arrived. He did not see Dismuke get shot.
¶ 14 The court provided the jury with instructions. The instruction at issue on appeal stated:
“Members of the jury, if you have found either or both of the
defendants guilty of attempt first degree murder you must then
decide whether or not either or both of the defendants (a)
personally discharged a firearm in the commission of the offense;
and (b) whether or not either or both of the defendants personally
discharged a firearm that proximately caused great bodily harm,
permanent disability or permanent disfigurement.”
5 ¶ 15 The jury found defendants guilty of all charges and found that both defendants
discharged a firearm in the commission of the offense and discharged a firearm that proximately
caused great bodily harm, permanent disability, or permanent disfigurement.
¶ 16 The court sentenced Jerrell to 39 years’ imprisonment for attempted murder. His
sentence included the mandatory 25-year sentencing enhancement based on the jury’s finding
that he personally discharged a firearm that proximately caused bodily harm, permanent
disability, or permanent disfigurement. The court merged the aggravated battery with a firearm
charge with the attempted murder charge. The court also sentenced Jerrell to five years’
imprisonment for the unlawful possession of a weapon by a felon, to be served consecutively
with his sentence for attempted murder. The court sentenced Jonathan to 32 years’
imprisonment for attempted murder. His sentence also included the mandatory 25-year
sentencing enhancement based on the jury’s finding that he personally discharged a firearm that
proximately caused bodily harm, permanent disability, or permanent disfigurement. Again, the
court merged the aggravated battery charge with the attempted murder charge.
¶ 17 Defendants appeal. We affirm.
¶ 18 ANALYSIS
¶ 19 Defendants argue that the trial court erred by instructing the jury regarding an uncharged
crime. Defendants contend that the indictments charged defendants with “simple” attempted
murder, but the court instructed the jury on “aggravated attempt murder.” That is, the failure to
include the aggravating factors in the indictment precludes the court from instructing on these
“elements” of the offense. Defendants concede that they forfeited the issue on appeal; defense
counsel failed to object to the jury instruction at trial. People v. Johnson, 218 Ill. 2d 125, 138
(2005) (a defendant forfeits an issue on appeal by failing to timely object at trial and raise the
6 issue in a posttrial motion). However, defendants request that we consider their argument under
the second prong of plain error. The State argues that the court did not err where the State placed
defendants on notice that it would seek the mandatory 25-year sentence enhancement.
¶ 20 A reviewing court may consider a forfeited issue under the plain-error doctrine when “(1)
a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error, or (2) a clear or obvious error occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of
the closeness of the evidence.” People v. Sargent, 239 Ill. 2d 166, 189 (2010) (citing People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007)); People v. Williams, 139 Ill. 2d. 1, 14-15 (1990).
¶ 21 The second prong of the plain-error doctrine is equated with structural error. People v.
Glasper, 234 Ill. 2d 173, 197-98 (2009). Structural error is “a systemic error which serves to
‘erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.’ ”
Id. (quoting People v. Herron, 215 Ill. 2d 167, 186 (2005)). The Supreme Court has classified
error as structural error in a limited class of cases. Neder v. United States, 527 U.S. 1, 8 (1999).
Structural error includes complete denial of counsel, a biased trial judge, racial discrimination in
selection of grand jury, denial of self-representation at trial, denial of public trial, and defective
reasonable-doubt instruction. People v. Thompson, 238 Ill. 2d 598, 609 (2010) (citing
Washington v. Recuenco, 548 U.S. 212, 218 n.2 (2006)).
¶ 22 For the following reasons, we find that the trial court did not err by instructing the jury on
the sentencing enhancement factors, despite the fact that the attempted murder indictments did
not include the aggravating elements.
7 ¶ 23 A defendant has a fundamental right to notice of the elements of the charged offense.
People v. Mimes, 2014 IL App (1st) 082747-B, ¶ 26 (citing People v. Rowell, 229 Ill. 2d 82, 92-
93 (2008)). In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that
where a fact, other than a prior conviction, enhances a penalty beyond the statutory maximum,
the jury must find such fact beyond a reasonable doubt. In response to the Court’s ruling in
Apprendi, the General Assembly enacted section 111-3(c-5) of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/111-3(c-5) (West 2012)). Mimes, 2014 IL App (1st) 082747-B, ¶
26. Section 111-3(c-5) states:
“(c-5) Notwithstanding any other provision of law, in all cases
in which the imposition of the death penalty is not a possibility, if
an alleged fact (other than the fact of a prior conviction) is not an
element of an offense but is sought to be used to increase the range
of penalties for the offense beyond the statutory maximum that
could otherwise be imposed for the offense, the alleged fact must
be included in the charging instrument or otherwise provided to the
defendant through a written notification before trial, submitted to a
trier of fact as an aggravating factor, and proved beyond a
reasonable doubt. Failure to prove the fact beyond a reasonable
doubt is not a bar to a conviction for commission of the offense,
but is a bar to increasing, based on that fact, the range of penalties
for the offense beyond the statutory maximum that could otherwise
be imposed for that offense. Nothing in this subsection (c-5)
requires the imposition of a sentence that increases the range of
8 penalties for the offense beyond the statutory maximum that could
otherwise be imposed for the offense if the imposition of that
sentence is not required by law.” 725 ILCS 5/111-3(c-5) (West
2012).
¶ 24 Defendants rely on Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), in
arguing that the sentencing enhancement factors are elements of the crime that must be included
in the indictment. Not so. Alleyne simply provided a common sense explanation of that which
was implicit in Apprendi. Alleyne and Apprendi both concerned jury instructions, not
indictments. Apprendi, 530 U.S. at 490; Alleyne, 570 U.S. at ___, 133 S. Ct. at 2158. In
Apprendi, the Court held that a fact is an element of an offense that must be submitted to the trier
of fact where such fact increases the punishment above what is otherwise legally proscribed.
Apprendi, 530 U.S. at 490; Alleyne, 570 U.S. at ___, 133 S. Ct. at 2158. In Alleyne, the Supreme
Court held that facts that increase the mandatory minimum must also be submitted to the trier of
fact and found beyond a reasonable doubt. Id.
¶ 25 Defendants argue that Alleyne creates an aggravated form of attempted murder by finding
that facts increasing sentencing ranges are elements of the crime. We disagree. In Illinois, there
is no aggravated attempted murder charge. Attempted murder is a single offense. 720 ILCS 5/8-
4(c)(1) (West 2012). The Criminal Code of 2012 sets forth a sentencing enhancement factor, but
the factors do not create a separate offense. 720 ILCS 5/8-4(c)(D) (West 2012). The Court’s
holding simply means that a trier of fact must find sentencing enhancement factors beyond a
reasonable doubt. Alleyne, 570 U.S. at ___, 133 S. Ct. at 2158.
¶ 26 Here, it is undisputed that the court instructed the jury regarding whether the need to find
that defendants personally discharged a gun proximately causing great bodily harm. The court
9 complied with Alleyne, Apprendi, and section 111-3. The issue here is whether the court erred
by submitting jury instructions concerning the sentencing enhancement factors where the
indictment did not include such factors. We find that, although inartfully drafted, the
indictments sufficiently notified defendants that the State would seek the 25-year enhancement.
¶ 27 Attempted first-degree murder is a Class X felony. 720 ILCS 5/8-4(c)(1) (West 2012).
Section 8-4(c) of the Criminal Code, which describes the penalty faced for attempted first-degree
murder, states in relevant part:
“A person convicted of attempt may be fined or imprisoned or
both not to exceed the maximum provided for the offense attempted
but, except for an attempt to commit the offense defined in Section
33A-2 of this Code:
(1) the sentence for attempt to commit first degree murder is
the sentence for a Class X felony, except that
***
(C) an attempt to commit first degree murder during which
the person personally discharged a firearm is a Class X felony
for which 20 years shall be added to the term of imprisonment
imposed by the court;
(D) an attempt to commit first degree murder during which
the person personally discharged a firearm that proximately
caused great bodily harm, permanent disability, permanent
disfigurement, or death to another person is a Class X felony
for which 25 years or up to a term of natural life shall be added
10 to the term of imprisonment imposed by the court[.]” 720
ILCS 5/8-4(c)(1)(C), (D) (West 2012).
¶ 28 Here, the language of the indictments clearly alleged that defendants personally
discharged a weapon. The indictments for the attempted murder charge stated, “defendant shot
Greg Dismuke about the body with a handgun.” Further, the indictments for the aggravated
battery charge stated, “caused injury to Greg Dismuke by means of the discharging of a firearm.”
It is well established that we will read all counts of a multiple-count indictment as a whole.
People v. Morris, 135 Ill. 2d 540, 544 (1990). “[E]lements missing from one count of an
indictment may be supplied by another count.” Id. Also, defendants have sufficient notice “if
any missing elements can be reasonably inferred from the indictment allegations.” People v.
Kennebrew, 2013 IL 113998, ¶ 53. If missing elements are not fatal to an indictment, the fact
that an indictment is missing sentence-increasing elements surely does not necessarily give rise
to structural error.
¶ 29 The State also sufficiently notified defendants that it would attempt to prove that
defendants “proximately caused great bodily harm, permanent disability, permanent
disfigurement, or death to another.” 720 ILCS 5/8-4(c)(1)(D) (West 2012). The indictments for
aggravated battery with a firearm stated that defendants caused Dismuke’s injuries. Although
the language did not specifically state “proximately caused great bodily harm,” the language
sufficiently placed defendants on notice that the jury would consider whether defendants caused
Dismuke’s injuries. Again, one count may supply missing elements for another count within a
multiple-count indictment. Morris, 135 Ill. 2d at 544. It was also reasonable for defendants to
infer from the indictment for aggravated battery that the jury would consider whether defendants
caused Dismuke bodily harm. Kennebrew, 2013 IL 113998, ¶ 53; Morris, 135 Ill. 2d at 544.
11 ¶ 30 Moreover, at the arraignment, the court discussed the possible sentencing ranges while
defendants and defense counsel were present in court. The following exchange took place:
“THE COURT: All of the charges carry with them expanded
sentencing ranges. Normally Counts 1 and 2 would be sentenced
as Class X felonies would carry with it a minimum of six if
convicted and a maximum of 30. However, there is the allegation
of the use of a firearm and of the defendant personally discharging
that firearm and I believe there’s a mandatory add-on.
MR. DICKENSON [Prosecutor]: Yes, sir.
THE COURT: Is that a 25 to life? Or is that a 25?
MR. DICKENSON: It’s 25 to life if great bodily harm is
inflicted basically.
THE COURT: All right. What that means is that should the
evidence reveal that the gunshot wound or wounds caused great
bodily harm there would be an automatic add-on to any sentence of
a period of time – – period of years between 25 years and life.
Therefore, the minimum sentence, if convicted, if in fact the jury
were to find that there was great bodily harm to the victim, the
minimum sentence would be 31 years.”
Based on such discussion with the court, defendants cannot allege that they did not know that the
State would seek the 25-year mandatory sentencing enhancement.
12 ¶ 31 Furthermore, pursuant to Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001), the State
disclosed to defendants that it planned to call Dr. Simon Wu to testify about Dismuke’s injuries
and present Dismuke’s medical records at trial. As no surprise to defendants, at trial the State
presented overwhelming evidence that the gunshot wounds proximately caused Dismuke great
bodily harm. The State presented photographs of Dismuke’s injuries and called Wu to testify
regarding Dismuke’s injuries and treatment. The evidence overwhelmingly established that
Dismuke suffered a fractured left elbow and left femur and doctors placed a rod in his left femur
as a result of the gunshot wounds. Attempted murder does not require proof that the victim
suffered great bodily injury or any injury. For what purpose, other than seeking the sentencing
enhancement, would the State offer such evidence?
¶ 32 The State’s failure to include all of the sentence-enhancing elements in the indictment
neither denied defendants a fair trial, nor undermined the integrity of the judicial process.
Defendants had ample notice that the State would seek the sentencing enhancement. Ergo, the
court did not err, let alone commit structural error, by instructing the jury regarding whether
defendants personally discharged a gun proximately causing great bodily injury.
¶ 33 Although defendants argue that they are not attacking the sufficiency of the indictment,
their argument that the indictment charged them with “simple” attempted murder, but the court
instructed the jury on “aggravated” attempted murder amounts to an attack on the indictment.
That argument, too, fails.
¶ 34 Where a defendant challenges an indictment prior to trial, the indictment must strictly
comply with the requirements set forth in section 111-3. People v. DiLorenzo, 169 Ill. 2d 318,
321-22 (1996); Mimes, 2014 IL App (1st) 082747-B, ¶ 33 (citing People v. Nash, 173 Ill. 2d 423,
429 (1996)). When a defendant attacks the sufficiency of an indictment for the first time on
13 appeal, we must determine whether the indictment provided defendant with sufficient specificity
as to the crime charge so that defendant may adequately prepare his defense. DiLorenzo, 169 Ill.
2d at 322; People v. Smith, 337 Ill. App. 3d 819 (2003).
¶ 35 For the reasons stated above, we find that the indictments apprised defendants of the
offense charged and allowed defendants to adequately prepare their defense. The court did not
err in instructing the jury. Without error there can be no plain error.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, the judgment of the circuit court of Kankakee County is
affirmed.
¶ 38 Affirmed.