{ "id": 3559770, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HURSEY DAVIS, Defendant-Appellant", "name_abbreviation": "People v. Davis", "decision_date": "1984-02-16", "docket_number": "No. 82\u2014730", "first_page": "916", "last_page": "923", "citations": [ { "type": "official", "cite": "121 Ill. App. 3d 916" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "430 N.E.2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3079067 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0346-01" ] }, { "cite": "413 N.E.2d 60", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3158805 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0524-01" ] }, { "cite": "389 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 731", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582852 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0731-01" ] }, { "cite": "429 NE.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3077130 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0414-01" ] }, { "cite": "420 N.E.2d 1051", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 426", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12134222 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0426-01" ] }, { "cite": "419 N.E.2d 384", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3127969 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0830-01" ] }, { "cite": "416 N.E.2d 1149", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 61", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3134476 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0061-01" ] }, { "cite": "415 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3148954 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/1095-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "pin_cites": [ { "page": "24" }, { "page": "710-11" }, { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "439 U.S. 357", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330305 ], "weight": 9, "pin_cites": [ { "page": "364" }, { "page": "586-87" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/us/439/0357-01" ] }, { "cite": "419 U.S. 522", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176665 ], "weight": 15, "year": 1979, "pin_cites": [ { "page": "528" }, { "page": "697" }, { "page": "697" }, { "page": "538" }, { "page": "702" }, { "page": "701" }, { "page": "538" }, { "page": "703" }, { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/us/419/0522-01" ] } ], "analysis": { "cardinality": 830, "char_count": 15076, "ocr_confidence": 0.755, "pagerank": { "raw": 6.915127027606875e-08, "percentile": 0.4200511303940886 }, "sha256": "09778538f7d7369c2c8663304c1f66a3023bdd524da8b9bb4a4e93b696fb850b", "simhash": "1:7480d7cede5411a6", "word_count": 2581 }, "last_updated": "2023-07-14T21:31:09.364868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HURSEY DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nDefendant, Hursey Davis, appeals his conviction for attempted murder and theft. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 \u2014 4(a), 16 \u2014 1(a).) He was sentenced to an extended term of 50 years for the attempted murder, and to a five-year concurrent term for the theft. He raises two issues for review: (1) whether the \u201cpersonal choice\u201d system of selecting a venire for third district cases which resulted in an all-white venire denied him his constitutional right to a jury drawn from a fair cross-section of the community, and (2) whether he was improperly sentenced to an extended term where the conduct that formed the basis of the attempted murder was used to enhance the penalty.\nWe affirm as modified.\nThe facts of this case are unrebutted. Testimony at trial established that on February 13, 1981, at 1:30 a.m., Paul Grudek, a Des Plaines policeman, was on patrol near Elmhurst Road and Dempster in Des Plaines, Illinois. As he drove past a small shopping center, he saw a car in the parking lot. Two men were sitting in the car. Grudek reported the license plate number to his headquarters and left the area. When headquarters reported a \u201chit,\u201d i.e., something was wrong with the car or the driver, Grudek returned to the lot and talked with the passenger in the car. The latter pointed to a Dunkin Donuts store and said he was waiting for a friend.\nGrudek then saw a man walking toward the car. Grudek drove forward and asked the man for his driver\u2019s license. After Grudek got out of the police car, the man quickly put down a cup he was carrying. The man reached for his back pocket, his front pocket, and then came at the officer with his right hand and said something the policeman did not understand. Grudek raised his left hand, saw a flash, felt pain in his hip, screamed, and fell into his car. Grudek raised his hands to cover his face, saw another flash, felt pain in his leg, and screamed again.\nThe man ran back to his car. Grudek fired four times at the driver\u2019s side of the other car. The driver and the passenger left the car and ran eastward. At this point in his testimony, Grudek identified defendant as his assailant. Grudek ran after the suspects but stopped when his leg began to hurt. He was taken to a hospital where his wound was treated. Shortly before trial, a bullet was removed from his leg. At the time of trial, Grudek suffered no ill effects from his stomach wounds but did experience sharp pains in his leg, which also had a tendency to \u201cfall asleep.\u201d Grudek eventually discovered that the car defendant was driving had been stolen.\nGregory Butts testified that he knew defendant because they both worked at A. M. International in the same area. On December 12, 1980, Butts drove to work. His 1980 Camaro was stolen. Car keys were taken from a coat Butts had left unattended. It was Butts\u2019 car that defendant drove at the time of the offense.\nBemie Wolter, an evidence technician for the Des Plaines police, investigated the shooting. He found a baseball cap near a large refuse dumpster that was behind an apartment building. After Wolter \u201csaw shoes inside the dumpster,\u201d the suspects were ordered to surrender. Wolter identified defendant as one of the individuals who got out of the dumpster.\nGerald Loconsole, another evidence technician, removed a revolver from behind the dumpster.\nThomas Fahey, an orthopedic surgeon, was on duty at Holy Family hospital on February 13, 1981, and treated Officer Grudek. The victim had gunshot wounds in his right knee and groin. At the time of the shooting, Officer Grudek\u2019s wounds were not life threatening and he was administered no pain killers. In March 1981, Fahey approved Grudek\u2019s return to full-time regular duty. On October 14, 1981, a bullet fragment was removed from Grudek\u2019s right thigh.\nAfter the prosecution rested, the defense called Aug Schwiesow, a Des Plaines policeman, as a witness. Schwiesow investigated the shooting and spoke with defendant. After he was advised of his Miranda rights, defendant said, \u201cyou don\u2019t think I meant to kill the officer? *** If I intended to kill him, I would have shot him between the eyes.\u201d This statement was made at 10:30 a.m. on February 13, 1981.\nThe jury found defendant guilty of attempted murder, aggravated battery, armed violence and theft. The trial court sentenced defendant for attempted murder and theft. At the sentencing hearing, the trial judge stated:\n\u201cThe Defendant intended to fire a shot into the body of Grudek who by the evidence clearly indicates was completely helpless at this time, was incapable of protecting himself at this time other than raising his leg and covering his body with his legs.\nAt this point the act is accompanied by exceptionally brutal and heinous behavior. He fired a second shot into the wounded officer who was not posing any threat, whatsoever, to the Defendant. None.\nAt that time there was no question he was helpless and yet the second shot was fired. Why was that necessary except for the sole purpose of taking his life or seriously injuring him.\nAnd that I find was exceptionally brutal, and it is, in fact, heinous indicative of wanton cruelty, and that is the finding of this Court, and I find, therefore, it\u2019s a basis for an extended term.\nAnd I also find that he is a threat to society, and to protect ' society, there is a basis for an extended term.\u201d\nFor the attempted murder, defendant was sentenced to 30 years and to an extended term of 20 years, for a total of 50 years. He was sentenced to five years for theft, the sentence to run concurrently with the 50-year sentence. Defendant appeals.\nThe first issue raised by defendant is whether the \u201cpersonal choice\u201d system of selecting a venire for third district cases which resulted in an all-white venire denied defendant his constitutional right to a jury drawn from a fair cross section of the community. Defendant argues as follows: He is a black man charged with the attempted murder of a white police officer. His jury was selected from an all-white venire. When defense counsel observed that the venire was all white, he asked the trial court to inquire as to how the jurors were chosen for Des Plaines. The trial court refused. Defense counsel informed the court that in another case involving a black defendant and white victim which he tried in Des Plaines the trial judge ordered a new trial after questioning the jurors as to how they were selected for Des Plaines. In that case, the jurors had been asked if it would be convenient for them to travel to Des Plaines.\nDefendant notes that according to the 1980 census, blacks comprise one-fourth of the population of Cook County, but fewer than 1% of the population of Des Plaines and the surrounding communities. Defendant alleges that giving jurors the option of going out to Des Plaines results in an all-white venire because black jurors prefer not to travel to an area where few blacks live. Defendant cites Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, and Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, for the proposition that all criminal defendants are entitled to a venire selected from a fair cross section of the community. When a procedure in a selection system results in the underrepresentation of a cognizable group, that system violates the accused\u2019s constitutional right to a fair and impartial jury.\nIn Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, the Supreme Court declared unconstitutional a Louisiana statute that provided a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The Supreme Court held that \u201cthe selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.\u201d (Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.) The court acknowledged that the \u201cfair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.\u201d (Taylor v. Louisiana (1975), 419 U.S. 522, 538, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701.) The court imposed \u201cno requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition [citations]; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.\u201d Taylor v. Louisiana (1975), 419 U.S. 522, 538, 42 L. Ed. 2d 690, 703, 95 S. Ct. 692, 702.\nIn Duren v. Missouri (1979), 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664, the Supreme Court explained the nature of the fair-cross-section inquiry set forth in Taylor v. Louisiana. It stated as follows:\n\u201cIn order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a \u2018distinctive\u2019 group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.\u201d Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 586-87, 99 S. Ct. 664, 668.\nIn the instant case, the trial court refused to ask jurors how they were chosen for Des Plaines, thus precluding defendant from even attempting to establish a prima facie violation of the fair-cross-section requirement. However, we do not believe this omission mandates reversal. All errors, constitutional or otherwise, do not require automatic reversal and may be harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.\nIn the case at bar, there was overwhelming evidence of defendant\u2019s guilt. At trial, the victim positively identified defendant. Defendant was arrested in the vicinity of the crime and within hours of its commission. Defendant himself admitted to shooting the victim. In our opinion, the failure of the trial court to conduct a hearing as to how jurors were selected for Des Plaines does not constitute reversible error.\nThe next issue raised by this appeal is whether defendant was improperly sentenced to an extended term. We hold that defendant was improperly sentenced.\nDefendant was convicted of attempted murder. An element of that offense is a specific intent to kill. (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 4(a).) A defendant may be sentenced to an extended term \u201c[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 5\u20143.2(b)(2).) In sentencing defendant to an extended term, the trial judge found the offense brutal and heinous because defendant intended to kill. Thus, the trial court relied on conduct inherent in the offense as an aggravating factor.\nWe have examined recent cases in which an extended term was upheld. They are distinguishable from the instant case because there were circumstances other than intent aggravating the offense. In People v. Sias (1980), 91 Ill. App. 3d 1095, 415 N.E.2d 618, defendant waited for the victim whom he had known for two years and, after engaging him in conversation, unexpectedly shot the victim twice, once in the side of the face and once in the buttocks as he tried to escape. After the offense, defendant started a rumor as to the involvement and guilt of another person in the offense. In People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149, defendant hit the victim, a 19-year-old woman, in the head or face five times, threatened repeatedly to kill her, and forced her into acts of sexual intercourse and deviate sexual conduct. In People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384, defendant promised to give the victim a horse, lured her to the site of a previously prepared grave and raped her there. As she started to leave, he strangled her, put her body in the grave and covered it with dirt. In People v. Young (1981), 96 Ill. App. 3d 426, 420 N.E.2d 1051, the defendant put a gun down the victim\u2019s throat. Finally, in People v. Clark (1981), 102 Ill. App. 3d 414, 429 NE.2d 1255, defendant invaded the victims\u2019 home, held a gun to the head of a one-year-old child, and threatened to kill him if the par-ents failed to cooperate. Defendant tied up the husband and forced the wife to commit a deviate sexual act while her husband and son watched. The victims were tied up while defendant ransacked their home for 40 minutes.\nIn the instant case, defendant shot the victim with a .22-caliber revolver in the abdomen and leg. The victim was able to fire at defendant and chased him until his leg began to hurt. The victim\u2019s wounds were cleaned but no bullets were removed when he was initially treated at the hospital. His condition was not life threatening. The victim was able to return to full-time employment the next month.\nThe cases cited by the State do not support the proposition that an extended term is appropriate in the instant case. In People v. Bradford (1979), 71 Ill. App. 3d 731, 389 N.E.2d 636, although defendants argued their sentences were excessive, the appellate court upheld the sentences because defendant had long records of both felonies and misdemeanors. In People v. Williams (1980), 90 Ill. App. 3d 524, 413 N.E.2d 60, defendant argued that an extended term could not be imposed for attempted murder. In People v. Hudson (1981), 102 Ill. App. 3d 346, 430 N.E.2d 51, the appellate court upheld imposition of an extended term because defendant\u2019s conduct was heinous and with no apparent justification where he shot three men, two of whom died.\nSince we believe this is not a proper case for imposition of an extended term, we hereby vacate the 20-year extended term imposed by the trial court with the 30-year sentence for the attempted murder remaining.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified.\nAffirmed as modified.\nLINN, P.J., and ROMITI, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thomas Wood Flynn, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HURSEY DAVIS, Defendant-Appellant.\nFirst District (4th Division)\nNo. 82\u2014730\nOpinion filed February 16, 1984.\nJames J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Thomas Wood Flynn, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0916-01", "first_page_order": 938, "last_page_order": 945 }