Opinion
No. 1-18-1811
05-13-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK STEWART, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 17 CR 7493 Honorable Stanley Sacks, Judge, presiding. PRESIDING JUSTICE GORDON delivered the judgment of the court.
Justices Lampkin and Reyes concurred in the judgment.
ORDER
¶ 1 Held: Defendant's convictions for second degree murder and unlawful use or possession of a weapon by a felon are affirmed over his contention that the sentencing judge erred by not considering mitigating evidence, and that his sentence for second degree murder is excessive in light of the facts of the case. ¶ 2 Following a jury trial, defendant Frederick Stewart was found guilty of second degree murder and unlawful use or possession of a weapon by a felon (UUWF) and sentenced to an extended-term prison sentence of 28 years for second degree murder and to a consecutive term of 2 8 years for UUWF, for a total of 36 years in prison. On appeal, defendant challenges his sentence, arguing the trial court erred by refusing to consider evidence of his heart condition in mitigation, and his sentence for second degree murder is excessive in light of the facts of the case. For the following reasons, we affirm. ¶ 3 Defendant was charged by a 12-count indictment in connection with the shooting death of Javontay Tolliver on or about April 17, 2017. The State proceeded to a jury trial on counts V, VI, and VII and nol-prossed the remaining counts. Counts V and VI alleged that defendant committed first degree murder in that he, without lawful justification, intentionally or knowingly shot and killed Tolliver while armed with a firearm (720 ILCS 5/9-1(a)(1) (West 2016)) and shot and killed Tolliver while armed with a firearm, knowing that such act created a strong probability of death or great bodily harm to Tolliver (720 ILCS 5/9-1(a)(2) (West 2016)), and during the commission of the offense, personally discharged a firearm that proximately caused death. Count VII alleged that defendant committed UUWF in that he knowingly possessed a firearm on or about his person after having been previously convicted of the felony offense of aggravated arson (720 ILCS 5/24-1.1(a) (West 2016)). Defendant waived his right to counsel and appeared pro se at trial. As he solely challenges his sentence, we include only the facts necessary to resolve the issue on appeal. ¶ 4 At trial, Teresa Gogins, a Chicago Transit Authority (CTA) customer service assistant, testified that on April 17, 2017, she worked at the Garfield CTA station. Around 2 a.m., Gogins heard two men arguing outside of her kiosk. She testified, "[O]ne of them said, have you heard of '480,' or something like that. And the other guy said, I don't give an F who 480 is." Gogins stepped out of her kiosk and asked the men to leave the station, but they did not pay attention to her. Gogins remembered one man wore a baseball cap, black jeans, and gym shoes; the other wore a black 3 brimmed hat, black leather jacket, black pants, and black shoes. Eventually, the man in the baseball cap apologized to Gogins before they left and continued arguing. ¶ 5 Two or three minutes later, the men reentered the station still arguing. The man in the baseball cap stood inside the "mezzanine area," while the man in the black brimmed hat stood "in between the door." Gogins then heard "pop" sounds, observed the men run outside, and heard two or three more gunshots. A few seconds later, she observed the man in the black brimmed hat fall down outside on a bridge across from the station. ¶ 6 Thomas Barnette testified that around 2:30 a.m. on April 17, 2017, he was stopped in his motor vehicle at a red light when he observed an altercation in front of the Garfield station. Barnette observed an individual leave the station followed by a second individual. The first person "[l]ooked like he was just fleeing, running, and he used traffic to try to elude whoever was chasing him." Barnette then observed him fall to the ground and the person behind him continued running west. Barnette, a former combat medic, exited his vehicle and attempted to render aid to the fallen man. The man was clutching jewelry and a black leather hat in his hands and did not have any visible weapons on or around him. After retrieving his phone from his vehicle, Barnette called 911, then returned to the victim to prevent people approaching the scene from robbing him or taking items from the scene. ¶ 7 Video surveillance footage taken at the train station was admitted in evidence and played for the jury and both Gogins and Barnette narrated portions. Our review of the footage shows a man in a baseball hat walking towards a station turnstile. He stops before entering the turnstile, turns to look back, and a man in a black brimmed hat approaches him. The men converse, and after a period, a train station employee exits a kiosk and says something to them while gesturing for 4 them to leave. The men ignore her and she returns to her kiosk. At some point, the man in the black brimmed hat reaches towards his jacket pocket, and the man in the baseball hat grabs at that pocket. The man in the baseball hat then reaches at his waistband and then into his own jacket pocket and looks the other man up and down as he speaks. The man in the black brimmed hat reaches out and slaps at the man in the baseball hat's chest area. The man in the baseball hat then turns away from the other man and retrieves belongings left on the turnstile. He says something to the station employee in the kiosk and walks out of the station with the man in the black brimmed hat following him. ¶ 8 Footage taken in front of the station's entrance shows the man in the black brimmed hat walk outside with his back to the street, continuing to talk to an unseen person with his hands in his jacket pockets. He steps to the side with his back to the street and his hands pointing forwards in his pockets until he disappears from the camera's view. Later, a man runs into the street and falls as another man chases him with an arm outstretched in a manner consistent with shooting a firearm. The fallen man rolls in the street, then pulls himself up by a fence, and the man behind him turns and runs the other way. The man who stood by the fence runs a few steps before falling again. A vehicle pulls over and an individual exits and approaches the fallen man before more passersby approach. The driver briefly goes back to his vehicle before returning to the fallen man. ¶ 9 Chicago police officer Daniel Symons testified that sometime after 2:30 a.m. on April 17, 2017, he and his partners responded to a radio call that someone had been shot at the Garfield station. At the scene, the victim had already been taken away by ambulance. Barnette provided a description of the offender, and Symons soon located a person who matched the description, whom Symons identified in court as defendant. Defendant began to run from police, "pulling and tugging 5 at his right waistband" as he turned to look at Symons. He eventually surrendered, and officers recovered a firearm in the area where Symons observed defendant fumbling at his waistband. ¶ 10 Chicago police evidence technician Tizoc Amaro testified that the recovered firearm was a .22-caliber revolver, of which six of seven cartridges had been fired. Forensic scientist Scott Rochowicz testified that he tested defendant with his gunshot residue kit and opined that both of defendant's hands tested positive for the presence of gunshot residue. Chicago police detective Jeffrey Santos testified that there were no weapons or firearms-related items found with Tolliver's personal belongings at the hospital. ¶ 11 Dr. Stephanie Powers, an assistant medical examiner at the Cook County Medical Examiner's Office, testified that on April 18, 2017, she supervised the autopsy of Tolliver and found that Tolliver sustained, inter alia, penetrating gunshot wounds to the left side of his head, the right side of his chest, and the lower right side of his back. Tolliver's cause of death was multiple gunshot wounds and the manner of death was homicide. ¶ 12 The State entered a certified copy of defendant's felony conviction for aggravated arson into evidence. ¶ 13 Defendant testified on his own behalf that on April 16, 2017, his friend dropped him off at the train station after a party. Tolliver was standing outside at a bus stop and greeted defendant's friend by name. Defendant exited the vehicle and entered the station when Tolliver approached him from behind and said, "I got loose squares." Defendant responded that he did not smoke. Defendant turned to face the turnstile and Tolliver said, "[L]et me put you on the train. Just give me $2." Defendant responded that he had a bus card. Tolliver then said, "I got the Lyle [sic]." Defendant again said that he did not smoke. 6 ¶ 14 Tolliver got closer and said, "[M]an, just give me everything you got, man. Don't make no *** actions or get loud." Defendant asked if Tolliver was really going to rob him on camera, and Tolliver said that he would kill defendant. Defendant testified that he told Tolliver, "[Y]ou just call my man by name. If you know my man, you know me. You know Four Baby. That's my brother." Tolliver said, "I don't give a f*** about none of that. Give me everything. I am going to kill you." Defendant said, "[Y]ou going to kill me? You not the person out here that can kill somebody. Just go about your business and let me get on the train." ¶ 15 Defendant testified that Tolliver continued to threaten to kill him and that defendant tried to "defuse the situation." Defendant then pulled out a revolver and stuck it in the side of his jacket facing downward and told Tolliver to let him get on the train and go home. Tolliver said, "I don't give a f*** about none of that. You ain't gonna use that, n***." Defendant ran out of the station door away from Tolliver, who chased after him. Traffic prevented defendant from crossing the street, so he ran back to the station. As defendant ran past Tolliver, Tolliver "snatched" one of his "chains." Defendant testified that he feared for his safety. Defendant again asked Tolliver to leave him alone, and Tolliver said, "[N]o n***, that ain't going to happen." ¶ 16 Defendant started to shoot. Tolliver began to run and tried to pull something out his pocket. Defendant chased Tolliver while shooting because he "did not want [Tolliver] to pull out whatever he had in his pocket and shoot [defendant]." Defendant testified, "[T]he only way that I could prevent [Tolliver] from harming me was by making sure that he could not harm me." Tolliver fell after defendant shot him and defendant ran away, leaving the firearm by the side of a friend's house. Defendant stopped running because his heart rate was accelerated and he did not want to 7 collapse because he was a "heart patient." He eventually walked through a vacant lot, began running when he observed the police, and ultimately surrendered. ¶ 17 On cross-examination, defendant testified that he did not ask Gogins for help, call the police after the incident, see Tolliver with a firearm, or tell detectives that Tolliver threatened to kill him. Defendant asserted Tolliver had his hand in his pocket and told defendant he had a firearm. Defendant shot Tolliver multiple times, but did not shoot Tolliver while Tolliver laid on the ground, as defendant ran away before Tolliver fell. Defendant did not know if Tolliver was dead or alive when he left, but was just trying to get himself to safety. Defendant narrated the video surveillance footage, noting it showed that, when he walked away from Tolliver out of the station, Tolliver was behind him. Defendant denied chasing Tolliver across the street, testifying that he never left the sidewalk regardless of what the footage showed. He denied continuing to shoot Tolliver as Tolliver laid on the ground. Asked to explain video footage showing him with his arm out while Tolliver was on the ground, defendant testified he did not know what was "going on right there because that never took place involving myself." ¶ 18 Defendant requested a jury instruction on self-defense. Over the State's objection, the trial court agreed to provide the jury with the instruction. It also ordered the jury be instructed on second degree murder. ¶ 19 The jury found defendant guilty of second degree murder and UUWF. ¶ 20 Defendant was represented by counsel for posttrial motions and sentencing. The court denied defendant's motion and supplemental motion for a new trial and proceeded to sentencing. ¶ 21 The presentence investigation report (PSI) showed that defendant had a close relationship with his mother and younger brother, but not with his father, who was not around when he was a 8 child, or with his older brother. Defendant reported that he was a good student in high school, but was suspended for fighting. Defendant was not employed due to his medical condition, but he volunteered at Kuumba Lynx and The Boulevard in 2016 and 2017. Defendant was single and childless. He reported he suffers from Ebstein Anomaly, for which he was prescribed medication, and was under the care of a physician while in jail. Defendant also reported that he was shot in his head, shoulder, arms, hip, and buttocks during a 2003 robbery. ¶ 22 The PSI listed four prior convictions but, as a result of corrections made by the parties, the court considered only two: defendant's 2008 aggravated arson conviction, for which he was sentenced to nine years in prison, and his 2003 battery conviction, for which he was sentenced to 14 days in jail. The State informed the court defendant was on parole from the aggravated arson conviction when he shot Tolliver. The parties agreed defendant's sentence for second degree murder was extendable based on his prior aggravated arson felony conviction, and the sentencing range was therefore 4 to 30 years. The court subsequently clarified the sentencing range for the offense was 15 to 30 years. The parties agreed that the sentencing range for defendant's UUWF offense was 3 to 14 years, and the sentence was mandatorily consecutive to his second degree murder sentence. ¶ 23 The State presented in-person victim impact statements from Tolliver's sister Latoyria Tolliver and his grandmother Iris James, and a written statement from Tolliver's sister Elisha Tolliver, which was read at the hearing. Latoyria stated she was left feeling "hurt, lost and 9 confused" after her brother's death, and dreamt about telling him to run faster. Tolliver was a father figure to her children, and she and they were heavily impacted by his loss. James told the court Tolliver loved people and made friends with everyone he met on the street. Elisha's statement described the pain she felt when her brother died, which led her to drinking and being unable to eat or sleep. ¶ 24 In aggravation, the State reviewed the facts of that case, arguing that defendant repeatedly shot Tolliver as he ran from defendant. The State told the trial court that defendant was on parole when he committed the offenses at issue, and requested a sentence close to the maximum of 44 years' imprisonment. ¶ 25 In mitigation, defense counsel argued that the jury found that defendant was acting in unreasonable self-defense when he shot and killed Tolliver. Counsel stated defendant was 34 years old and "had a heart condition that has ailed him his whole life," for which he received treatment while in jail during the pendency of his case. Defendant had taken medication for most of his life, was bedridden "for a couple years," and was close with his mother and brother. Counsel acknowledged the surveillance footage showed defendant chasing Tolliver, but asked the court to consider that it also showed the argument between defendant and Tolliver and Tolliver following defendant out of the station. Counsel concluded, "Given his medical ailment, I would ask for somewhere close to the minimum." ¶ 26 In rendering its sentencing decision, the trial court stated defendant had "medical issues" and had been treated at a hospital while in custody, "[s]o" his needing treatment while in custody was "really a non issue." Reciting a recent situation in which a defendant sentenced to life imprisonment was taken to a hospital for medical treatment, the court reiterated, "So the issue 10 about the medical thing is really a non issue as far as I'm concerned if [defendant] needs treatment he'll get it. The state will pay for treatment for [defendant]." ¶ 27 The court then stated that, as far as the crime itself, it read the "numerous" statutory factors in aggravation and mitigation. It told defendant it had "no quarrel" with the jurors' verdict of second degree murder, but that still meant defendant was guilty of murder, albeit with a mitigating circumstance, unreasonable self-defense, and there was nothing mitigating about the crime itself. The court recounted that Tolliver was running from defendant when defendant shot him, that defendant was caught with the murder weapon, and that defendant was on parole for aggravated arson at the time of the offense. ¶ 28 In recounting defendant's criminal history, the court noted defendant's aggravated arson conviction was based on his starting a fire where he knew that people were present and then, while on parole for that offense, he shot and killed Tolliver. The court considered the victim impact statements. It told defendant that, being in his thirties, he was old enough to make his own choices and had to live with his choice to carry a firearm as a convicted felon on parole and shoot a man. The court concluded by stating that it considered the factors in aggravation and mitigation but "one of the most important things" is "the nature of the crime itself." The court then sentenced defendant to 28 years' imprisonment for second degree murder and to a mandatory consecutive term of 8 years' imprisonment for UUWF. ¶ 29 Defendant filed a motion to reconsider sentence, which the trial court denied, stating that the sentence was "relatively significant but nonetheless it was within my authority to do so and I don't think it was excessive." 11 ¶ 30 On appeal, defendant argues the sentencing judge erred by refusing to consider evidence of defendant's "serious heart ailment" in mitigation, and that his second degree murder sentence, which is only two years short of the maximum extended term, is unwarranted by the facts of the case. Defendant asks us to reduce his sentence or alternatively, order a new sentencing hearing. ¶ 31 The Illinois Constitution mandates that criminal sentences reflect the seriousness of the offense and the objective of restoring the offender to useful citizenship. Ill. Const. 1970, art. I, § 11; People v. Ligon, 2016 IL 118023, ¶ 10. In light of this directive, "the trial court is charged with fashioning a sentence based upon the particular circumstances of the individual case, including the nature of the offense and the character of the defendant." People v. Fern, 189 Ill. 2d 48, 55 (1999). "The sentencing judge is to consider all matters reflecting upon the defendant's personality, propensities, purposes, tendencies, and indeed every aspect of his life relevant to the sentencing proceeding." (Internal quotation marks omitted.) Fern, 189 Ill. 2d at 55. ¶ 32 In determining a sentence, the trial court must consider all relevant factors in aggravation and mitigation, including, among other things, the defendant's age, demeanor, mentality, criminal history, moral character, social environment, and education, as well as the nature and circumstances of the offense and the defendant's role in it. People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). The court need not recite or assign a value to each factor it considers (People v. McGuire, 2017 IL App (4th) 150695, ¶ 38), and is presumed to consider all mitigating evidence presented (People v. Burton, 2015 IL App (1st) 131600, ¶ 38). To rebut this presumption, a defendant must make an affirmative showing that the court did not consider the relevant factors. Burton, 2015 IL App (1st) 131600, ¶ 38. The seriousness of the offense is the most important factor in determining a sentence. People v. Jackson, 2014 IL App (1st) 123258, ¶ 53. 12 ¶ 33 A trial court's sentencing decision is entitled to great deference because, having observed the defendant and the proceedings, it had the opportunity to weigh the defendant's demeanor, credibility, general moral character, mentality, habits, social environment, and age. People v. Alexander, 239 Ill. 2d 205, 213 (2010). Thus, a sentence will not be disturbed absent an abuse of discretion. People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A sentence will generally not be found to be an abuse of discretion if it is within the permissible statutory sentencing range for the offense, unless the defendant makes an affirmative showing that "it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense." Fern, 189 Ill. 2d at 54; People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. Because it is the trial court's responsibility to weigh the competing factors, we cannot substitute our judgment for that of the trial court simply because we might balance the factors differently. Stacey, 193 Ill. 2d at 209. ¶ 34 Second degree murder is a Class 1 felony. 720 ILCS 5/9-2(d) (West 2016). When a defendant is convicted of any felony after having been previously convicted of the same, similar, or greater class felony within 10 years, excluding time spent in custody, and the charges are separately brought and tried and arise out of different series of acts, a court may impose an extended term sentence. 730 ILCS 5/5-5-3.2(b)(1) (West 2016). Defendant here was convicted of aggravated arson, a Class X felony, in 2008, within 10 years of committing the instant offense. He was therefore eligible for an extended sentence, and the sentencing range for his extended Class 1 second degree murder offense was 15 to 30 years in prison. 730 ILCS 5/5-4.5-30(a) (West 2016). As defendant's 28-year sentence falls within this sentencing range, we presume the sentence was proper unless defendant makes an affirmative showing otherwise. See Fern, 189 Ill. 2d at 54; Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. 13 ¶ 35 Defendant's eight-year sentence for UUWF is similarly presumed proper. Defendant was previously convicted of aggravated arson, which is defined as a forcible felony. 720 ILCS 5/2-8 (West 2016). Where a defendant has been previously convicted of a forcible felony, UUWF is a Class 2 felony for which the offender shall be sentenced to not less than 3 years and not more than 14 years in prison. 720 ILCS 5/24-1.1(e) (West 2016). Therefore, defendant's eight-year sentence for UUWF fell within the applicable statutory sentencing range and we presume the sentence was proper unless defendant makes an affirmative showing otherwise. See Fern, 189 Ill. 2d at 54; Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. He does not make that showing here regarding either his second degree murder or UUWF sentence. ¶ 36 Defendant argues the trial court refused to consider evidence of defendant's "serious heart ailment" in mitigation, pointing to the court's two declarations at sentencing that defendant's medical issue was a "non issue" because defendant would get medical care if he needed it while in prison. As defendant contends, a defendant's need for health care can be a mitigating factor in imposing sentence. See, e.g., People v. Kosanovich, 69 Ill. App. 3d 748, 752 (1979) (considering the defendant's need for health care in reducing sentence). However, the mere fact that the court declared defendant's medical needs to be a "non issue" does not affirmatively show the court did not consider this factor in mitigation. Rather, taking the court's comments at sentencing as a whole as we must (People v. Burgess, 2015 IL App (1st) 130657, ¶ 227), the record shows the court came to this conclusion after fully considering defendant's medical needs and the fact that he was receiving adequate medical care while in custody. ¶ 37 The court noted defendant had a medical condition, thus acknowledging defense counsel's argument to that effect, and that defendant recently had been treated at a hospital. It then went on 14 to say that defendant's medical condition was "really a non issue" because defendant would receive any necessary treatment at the State's expense while incarcerated. Thus, contrary to defendant's claim, the court expressly considered his heart ailment, but determined it had little mitigating weight because defendant would receive necessary medical treatment even if incarcerated. The record therefore rebuts defendant's assertion that the court refused to consider his medical condition as a mitigating factor. ¶ 38 Defendant next contends the 28-year sentence for second degree murder, only two years less than the maximum extended term sentence, was unwarranted by the facts of the case. The record shows that the court considered the information contained in defendant's PSI, the victim impact statements, the parties' arguments, and the required statutory factors in aggravation and mitigation. It considered that defendant was on still on parole from the aggravated arson conviction when he shot Tolliver, and that he was a felon barred from carrying a firearm. ¶ 39 Crucially, as the court correctly noted, the most important factor at sentencing is the seriousness of the offense (People v. Kelley, 2015 IL App (1st) 132782, ¶ 94), and the evidence here showed defendant chased Tolliver and shot him multiple times from behind as Tolliver ran away. Barnette testified he observed a man chasing another man until the chased man fell to the ground. The video evidence corroborates this testimony and shows defendant shot Tolliver while Tolliver was on the ground. The autopsy disclosed a penetrating bullet wound behind Tolliver's left ear and another in his lower back; defendant conceded he did not see Tolliver with a weapon; Barnette testified he was at Tolliver's side immediately, observed no weapon, and prevented the people approaching the scene from removing anything from the scene or robbing Tolliver; and no weapons were recovered on Tolliver. We do not find a 28-year sentence greatly at variance with 15 the spirit and purpose of the law or manifestly disproportionate to the nature of the offense where defendant shot an apparently unarmed man running away from him in the back multiple times while on parole for aggravated arson. ¶ 40 As defendant points out, the jury found him guilty of second degree murder based on an unreasonable belief in self-defense, presumably premised on his testimony that Tolliver threatened to kill him. But his unreasonable belief that chasing after Tolliver and shooting him multiple times from behind was somehow self-defense does not alter the fact that, as the trial court found, defendant, a convicted felon on parole, made the choice to carry a firearm and, rather than extricate himself from the situation, chase after and shoot Tolliver to death. We find the trial court did not abuse its discretion in sentencing defendant to 28 years for second degree murder. ¶ 41 For these reasons, we affirm the judgment of the circuit court of Cook County. ¶ 42 Affirmed.