{ "id": 3616898, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAYLOR FITZGERALD, Defendant-Appellant", "name_abbreviation": "People v. Fitzgerald", "decision_date": "1988-06-01", "docket_number": "No. 85-2107", "first_page": "218", "last_page": "226", "citations": [ { "type": "official", "cite": "171 Ill. App. 3d 218" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "462 N.E .2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "750" }, { "page": "750" } ], "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 210", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5678151 ], "weight": 2, "pin_cites": [ { "page": "215" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0210-01" ] }, { "cite": "404 N.E .2d 1082", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1084" } ], "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 1073", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5556666 ], "pin_cites": [ { "page": "1076" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/1073-01" ] }, { "cite": "335 N.E.2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639103 ], "year": 1980, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0001-01" ] }, { "cite": "418 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "998" } ], "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3129153 ], "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0602-01" ] }, { "cite": "469 N.E.2d 1090", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1097" } ], "opinion_index": 0 }, { "cite": "103 Ill. 2d 395", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152559 ], "weight": 2, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0395-01" ] } ], "analysis": { "cardinality": 741, "char_count": 16652, "ocr_confidence": 0.777, "pagerank": { "raw": 6.862013170351342e-08, "percentile": 0.417957185920878 }, "sha256": "b073515c0b72c4140dd44c0a2196db70dacfe5709c8e2fe42c7d19506bebdb52", "simhash": "1:cba212b0eb62de7d", "word_count": 2801 }, "last_updated": "2023-07-14T21:35:27.168167+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. TAYLOR FITZGERALD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE RIZZI\ndelivered the opinion of the court:\nFollowing a bench trial, defendant, Taylor Fitzgerald, was convicted of attempted murder and armed robbery. Defendant was sentenced to a term of six years\u2019 imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that: (1) he was improperly tried as an adult pursuant to the automatic juvenile transfer statute (111. Rev. Stat. 1985, ch. 37, par. 702 \u2014 7(6)); and (2) he was not proven guilty beyond a reasonable doubt of attempted murder and armed robbery. Defendant later filed a supplemental brief on appeal in which he alleges that he was denied fundamental fairness, due process and equal protection of the law, because at his sentencing hearing the trial court considered only the dispositions available under section 5 \u2014 1\u20141 et seq. of the Uniform Code of Corrections (111. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 1\u20141 et seq.), and that he was denied effective assistance of counsel. We affirm.\nOn October 22, 1983, at approximately 3 a.m., Wendy Weaver arrived at her apartment building located at 2514 West Van Bur\u00e9n Street. Upon entering the vestibule of the building, Weaver observed three men standing there. Weaver recognized defendant as a man she knew from around the neighborhood. Weaver then left the vestibule and proceeded to her apartment.\nThereafter, at approximately 3:30 a.m., the victim, Ned Sterling, entered the vestibule of Weaver\u2019s building. Sterling, who is also Weaver\u2019s boyfriend, proceeded to the elevator. As Sterling pushed the elevator call button, a silver-barrelled revolver was placed at his head by defendant. Sterling was told not to move and was backed up against the elevator doors. At that point, Sterling saw that there were three men present. Sterling, who was familiar with the area, recognized defendant, who was standing directly in front of Sterling approximately an arm\u2019s length away and holding a gun to Sterling\u2019s head.\nAt the request of one of the other two men present, Sterling surrendered his money and his keys. The two men. then searched Sterling\u2019s pockets while defendant held the gun to Sterling\u2019s forehead. After searching Sterling\u2019s pockets, the two men left the area while defendant continued holding the gun to Sterling\u2019s head. Sterling then watched as defendant began to squeeze the trigger of the gun. Sterling instinctively jerked his head to the side as the gun went off. The bullet went through Sterling\u2019s hair, causing it to burn. Defendant then ran from the building, and Sterling escaped to Weaver\u2019s apartment.\nUpon arriving at Weaver\u2019s apartment, and hearing of Sterling\u2019s misfortune, Weaver phoned the police. Weaver then left her' apartment and went to the apartment of defendant\u2019s girlfriend, who also lived in the building. Weaver informed the woman of what had happened to Sterling and demanded the return of Sterling\u2019s money and keys. Later that day, Sterling\u2019s keys were returned. Thereafter, on October 29, 1983, Sterling identified defendant as his assailant.\nWe initially address defendant\u2019s argument that he was tried and convicted in violation of the Juvenile Court Act (Act) (111. Rev. Stat. 1983, ch. 37, par. 701 \u2014 1 et seq.), because the indictment against him failed to specify that the crime of armed robbery had been committed with a firearm.\nAt the time of defendant\u2019s indictment, section 702 \u2014 7(6) provided in relevant part:\n\u201c(6Xa) The definition of delinquent minor under Section 2 \u2014 2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, rape, deviate sexual assault or armed robbery when the armed robbery was committed with a firearm. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.\n(6)(b) If before trial or plea an information or indictment is filed which does not charge an offense specified in paragraph (a) of subsection (6) of this Section, the State\u2019s Attorney may proceed on the lesser charge or charges but only in Juvenile Court pursuant to the other provisions of the Juvenile Court Act, unless prior to trial the minor defendant knowingly and with advice of counsel waives, in writing, his right to have the matter proceed in Juvenile Court.\u201d (111. Rev. Stat. 1983, ch. 37, pars. 702-7(6Xa), (6Xb).)\nSection 2 \u2014 2 of the Act defined a delinquent minor as \u201cany minor, who prior to his 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance.\u201d (111. Rev. Stat. 1983, ch. 37, par. 702 \u2014 2.) At the time of defendant\u2019s arrest, he was 16 years old.\nIn the present case, the complaint for preliminary examination charged \u25a0 defendant with armed robbery \u201cwhile armed with a dangerous weapon, unknown caliber handgun.\u201d The indictment charged defendant with committing armed robbery \u201cwhile armed with a dangerous weapon.\u201d It is defendant\u2019s contention that since the count against him for robbery did not specifically allege' that the robbery was committed \u201cwith a firearm,\u201d but instead stated that the armed robbery occurred while defendant was armed with a \u201cdangerous weapon,\u201d it was error to subject defendant to automatic transfer under the Act. Defendant therefore argues that the indictment against him should be dismissed, his conviction vacated and his case remanded for disposition under the Act. We disagree.\nIn People v. J.S., (1984), 103 Ill. 2d 395, 469 N.E.2d 1090, our supreme court addressed the issue raised by defendant. In J.S., a consolidated appeal, each defendant was charged with committing an armed robbery while armed with a dangerous weapon. The indictment against the defendants did not specify that the robberies were committed with a firearm. On appeal, the defendants contended that they were not subject to automatic transfer under the Act because the indictments were fatally flawed due to the failure to charge the defendants with armed robbery by the use of a firearm.\nThe J.S. court rejected the defendants\u2019 contention and stated:\n\u201c[W]e believe that the offenses charged were sufficiently set forth so as to enable the defendants to be apprised of the charges against them, to properly prepare their defenses, and to use any judgments entered against them as a bar to a future prosecution for the same offense.\nWe agree with the State that the charges read as a whole clearly specify that the defendants were charged with armed robbery with'a firearm ***.\u201d (103 Ill. 2d at 409, 469 N.E.2d at 1097.)\nWe believe that the court\u2019s analysis and conclusion in J.S. is dispositive of the issue raised by defendant.\nHere, defendant was indicted for committing an armed robbery while armed with a dangerous weapon. Defendant was also indicted for two acts of armed violence. These indictments stated:\n\u201c(1.) [W]hile armed with a dangerous weapon, to wit: a gun without lawful justification with intent to commit the offense of murder, intentionally and knowingly attempted to kill Ned Sterling by shooting him with a gun in violation of Chapter 38, section 33A \u2014 2/1/8\u20144(38\u20149\u20141) of the Illinois Revised Statutes 1981 as amended.\n(2.) [Wjhile armed with a dangerous weapon, to wit: a gun by the use of force and by threatening the imminent use of force took United States Currency and keys from the person and presence of Ned Sterling, in violation of Chapter 38, Section 33A \u2014 2/1/18\u20142\u2014A of the Illinois Revised Statutes 1981 as amended.\u201d\nMoreover, defendant gave a statement implicating himself in the armed robbery of the victim. Defendant\u2019s statement indicates that he and a coassailant planned to \u201cstick up anybody who came through the front door.\u201d We believe that in light of the facts present in this case, specifically the preliminary examination, the indictments against defendant, his statement to the police and the posture of the charges against him, the charges read as a whole clearly apprised defendant that he was going to be tried for armed robbery with a firearm. We, therefore, find no error in the trial court\u2019s automatic transfer of defendant pursuant to the Act.\nWe next address defendant\u2019s argument that he was not proven guilty beyond a reasonable doubt of armed robbery. Defendant essentially contends that because the State failed to produce a gun at trial, his conviction for armed robbery must be reversed and vacated. We find no merit to defendant\u2019s argument.\nA person commits armed robbery when he takes property from the person or presence of another by the use of force or by threatening the use of force while armed with a dangerous weapon. (HI. Rev. Stat. 1985, ch. 38, par. 18 \u2014 2(a).) In the present case, Sterling testified that a gun was held to his head while he was robbed of his money and his keys. Sterling further indicated that the incident at issue here occurred approximately three to five feet from a working light fixture. We believe that Sterling\u2019s testimony was sufficient evidence from which the trial court could determine that a dangerous weapon, a gun, was used to commit the robbery of Sterling. See People v. Chapman (1981), 94 Ill. App. 3d 602, 606, 418 N.E.2d 995, 998.\nMoreover, in a written statement, defendant corroborated Sterling\u2019s testimony by stating:\ntold me he had a gun and that he planned to stick up anybody who came through the front door. \u2014 told me we would split up whatever we got. The three of us were in the lobby alone when a man with a hook on his hand came in. I have known this man by site [sic] for a long time. The man knew me. ***\nI didn\u2019t get any money that night because \u2014 and \u2014 got on the bus. The next day \u2014 gave me six or seven dollars which was my share of what was taken from the man. A friend of the man went to see my girl friend Cynthia. She said that the man wanted his keys back. \u2014 had taken the man\u2019s keys when he was robbed. I went to \u2014 and told him let\u2019s give the man back his keys.\u201d\nBased on the record before us, we find no error in the trial court\u2019s finding defendant guilty of armed robbery.\nDefendant likewise contends that the evidence was insufficient to prove him guilty of attempted murder beyond a reasonable doubt because the State failed to produce any evidence of a gun being discharged. We disagree.\nIn order to prove defendant guilty of attempted murder, the State was required to show that defendant committed an act which constituted a substantial step toward the commission of a murder and that defendant acted with the intent to kill or do great bodily harm, or had knowledge of the fact that his actions created a strong probability of death or great bodily harm. (111. Rev. Stat. 1985, ch. 38, pars. 8 \u2014 4, 9 \u2014 1.) Intent can be inferred from the facts and circumstances surrounding a defendant\u2019s acts and the natural and probable consequences of such actions. (People v. Fleming (1976), 42 Ill. App. 3d 1, 4, 335 N.E.2d 345, 348.) Moreover, intent may be inferred when it has been demonstrated that a defendant voluntarily and willfully committed an act, the natural tendency of which is to destroy another individual\u2019s life. People v. Myers (1980), 83 Ill. App. 3d 1073,1076, 404 N.E .2d 1082,1084.\nIt is well established that in a bench trial, the credibility of the witnesses and the weight to be afforded their testimony are to be determined by the trier of fact, as it is in the best position to make such a determination. A trial court\u2019s decision will not be reversed on appeal unless the evidence is so improbable as to raise a reasonable doubt of defendant\u2019s guilt. (People v. Velez (1984), 123 Ill. App. 3d 210, 215, 462 N.E .2d 746, 750.) Moreover, the testimony of even one witness, if positive and credible, is sufficient to convict, even if it is controverted by the accused. Velez, 123 Ill. App. 3d at 215, 462 N.E.2d at 750.\nIn the present case, the trial court heard the testimony of the victim concerning the shot fired at him and the burning of his hair. The trial court also heard the testimony of additional witnesses regarding the shooting at issue here. After hearing such testimony, the trial court determined that defendant was guilty of attempted murder. Based upon our review of the record and the evidence we have previously discussed, we do not find the evidence so improbable as to raise a reasonable doubt of defendant\u2019s guilt. Accordingly, we find no error in the trial court\u2019s finding of defendant\u2019s guilt on the charge of attempted murder.\nWe next address defendant\u2019s argument that he was denied fundamental fairness, due process and equal protection of the laws, because at his sentencing hearing the trial court considered only the dispositions available under section 5 \u2014 1\u20141 et seq. of the Unified Code of Corrections and failed to consider the dispositions available pursuant to the Act. We find no merit to defendant\u2019s argument.\nOn July 11, 1985, defendant was sentenced to a term of six years\u2019 imprisonment in the Illinois Department of Corrections for attempted murder and armed robbery. At the time that defendant was sentenced, the applicable statute provided:\n\u201cIf after trial or plea the minor is convicted of an offense not covered by paragraph (a) of subsection (6) of this Section, such conviction shall not invalidate the verdict or the prosecution of the minor under the criminal laws of this State. In sentencing the court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.\u201d (111. Rev. Stat. 1983, ch. 37, par. 702 \u2014 7(6Xc).)\nPursuant to this version of the Act and due to the offenses for which defendant was convicted, the trial court was required to sentence defendant under the Unified Code of Corrections.\nHowever, this statute was later amended to provide:\n\u201cIf after trial or plea the minor is only convicted of an offense not covered by paragraph (a) of subsection. (6) of this Section, such conviction shall not invalidate the verdict or the prosecution of the minor under the criminal laws of this State, however the court must thereafter proceed pursuant to Sections 4 \u2014 7 or 4 \u2014 8. In all other circumstances, in sentencing the court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act.\u201d (111. Rev. Stat. 1985, ch. 37, par. 702-7(6Xc).)\nAs amended, the Act provided a trial court with the option to sentence a defendant under either the Unified Code of Corrections or the Act. Defendant contends that the trial court should have been afforded with the opportunity to sentence him pursuant to the statute as amended. We disagree.\nHere, while the amended portion of the Act was passed by the legislature on July 1, 1985, it did not become effective until December 2, 1985. Defendant was sentenced on September 11, 1985, more than four months before the amendment became effective. We believe that section 4 of \u201cAn Act to revise the law in relation to the construction of the statutes\u201d (111. Rev. Stat. 1985, ch. 1, par. 1103) is applicable here. Section 4 provides in relevant part that \u201c[i]f any penalty, forfeiture or punishment be mitigated by any provision of a new law, such provision may, by the consent of the party affected, *** [be] applied to any judgment pronounced after the new law takes effect.\u201d (111. Rev. Stat. 1985, ch. 1, par. 1103.) A judgment is defined as an adjudication by the court of a defendant\u2019s guilt or innocence. If the adjudication is that the. defendant is guilty, it includes the sentence pronounced by the court. 111. Rev. Stat. 1985, ch. 38, par. 102-^ 14.\nIn the present case, defendant was sentenced prior to the effective date of the amendment. As a result, defendant was not eligible to be sentenced pursuant to the Act as amended. Defendant\u2019s argument concerning this issue must therefore fail. Lastly, we have examined the remaining issue raised by defendant, that he was denied effective assistance of counsel, and find it to be utterly devoid of merit.\nAccordingly, defendant\u2019s convictions for armed robbery and attempted murder are affirmed.\nAffirmed.\nMcNAMARA and FREEMAN, JJ., concur.", "type": "majority", "author": "JUSTICE RIZZI" } ], "attorneys": [ "Steven Clark and Elizabeth Clarke, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Christopher J. Cummings, and Kathleen A. Bom, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TAYLOR FITZGERALD, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 85\u20142107\nOpinion filed June 1, 1988.\nSteven Clark and Elizabeth Clarke, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Thomas V. Gainer, Jr., Christopher J. Cummings, and Kathleen A. Bom, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0218-01", "first_page_order": 240, "last_page_order": 248 }