{ "id": 2888714, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN BURNETT, Defendant-Appellant", "name_abbreviation": "People v. Burnett", "decision_date": "1993-12-29", "docket_number": "No. 1\u201482\u20142213", "first_page": "383", "last_page": "389", "citations": [ { "type": "official", "cite": "257 Ill. App. 3d 383" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "267 Ill. App. 3d 11", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333190 ], "opinion_index": -1, "case_paths": [ "/ill-app-3d/267/0011-01" ] }, { "cite": "244 Ill. App. 3d 284", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5100698 ], "pin_cites": [ { "page": "285-86" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0284-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "91 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091996 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/91/0164-01" ] }, { "cite": "180 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2614814 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/1065-01" ] }, { "cite": "215 Ill. App. 3d 800", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5293444 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0800-01" ] }, { "cite": "121 Ill. App. 3d 938", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560911 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0938-01" ] }, { "cite": "189 Ill. App. 3d 473", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681099 ], "year": 1984, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/189/0473-01" ] }, { "cite": "99 Ill. App. 3d 914", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3100419 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0914-01" ] }, { "cite": "141 Ill. App. 3d 243", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495770 ], "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0243-01" ] }, { "cite": "185 Ill. App. 3d 768", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647254 ], "year": 1986, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0768-01" ] }, { "cite": "186 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2658352 ], "year": 1989, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0668-01" ] }, { "cite": "109 Ill. 2d 102", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126650 ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0102-01" ] }, { "cite": "135 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256255 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/135/0423-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1990, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 769, "char_count": 14687, "ocr_confidence": 0.774, "pagerank": { "raw": 5.67683038770863e-08, "percentile": 0.35326847240900916 }, "sha256": "191cbd59286d1162a857ada83ad93fd84160bb13337c8c838e6cb1baf336bcf0", "simhash": "1:36e9df07f74e9ce3", "word_count": 2392 }, "last_updated": "2023-07-14T22:49:13.043500+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. MELVIN BURNETT, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE TULLY\ndelivered the opinion of the court:\nDefendant Melvin Burnett was charged by indictment with four counts of murder, armed robbery, attempt (armed robbery), conspiracy to commit armed robbery and armed violence. After a bench trial, defendant was convicted as charged with the exception of an acquittal on the charge of armed robbery. Subsequently, defendant was sentenced to 80 years\u2019 imprisonment for the four murder counts, 15 years\u2019 imprisonment for attempt (armed robbery), 7 years\u2019 imprisonment for conspiracy and 15 years\u2019 imprisonment for armed violence, all terms to run concurrently. Defendant appeals to this court from the judgment of conviction pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).\nFor the reasons which follow, we affirm and remand.\nFACTUAL BACKGROUND\nOn August 21, 1980, Carl Stohn was shot to death in the area of 950 North La Salle Street in Chicago. Defendant, along with Billy Martin, a codefendant, was indicted for the crime as indicated above. Martin is not a party to this appeal.\nPrior to trial, defendant filed a motion to suppress certain statements after his arrest on November 15, 1980, made to the police and an assistant State\u2019s Attorney. Defense counsel contended that defendant did not possess the requisite mental ability to make a voluntary, knowing and intelligent waiver of his rights under Miranda. Accordingly, the trial court held a suppression hearing at which Detectives Clay Steen, John Bittenbinder and Thomas Sappanos of the Chicago police department and Assistant State\u2019s Attorney Paula DaLeo testified as to the circumstances of their conversations with defendant.\nBittenbinder recounted that he read defendant his Miranda rights from a sign on the wall of the interview room. After defendant said that he understood his rights, Bittenbinder questioned defendant about the shooting with no one else present. Bittenbinder testified that he did not threaten or harass defendant during the course of their conversation. Bittenbinder stated that defendant did not appear to be afraid during the interview nor could Bittenbinder recall anything unusual about the way defendant comported himself.\nFollowing Bittenbinder\u2019s interrogation of defendant, DaLeo was called to assist in the investigation. DaLeo had three separate conversations with defendant about the shooting of Carl Stohn. The first interview took place at the police station in the presence of Sap-panos. DaLeo questioned defendant about 10 to 15 minutes after she read him his Miranda rights.\nShortly after DaLeo\u2019s first interview with defendant, she had a second conversation with him in the presence of Sappanos, Bitten-binder and Detective O\u2019Leary. The second interview took place at the scene of the shooting and lasted about 10 to 15 minutes.\nFinally, DaLeo had a third conversation with defendant at the police station in the presence of Sappanos and a court reporter. The court reporter transcribed a statement by defendant and DaLeo gave it to him.\nSappanos testified that defendant was cooperative during questioning and did not appear to be nervous. Sappanos was present when defendant was given the statement prepared by the court reporter to read to himself. Sappanos stated that he viewed defendant signing the statement and noticed nothing unusual about defendant\u2019s signature.\nAfter the State finished presenting its case at the suppression hearing, the trial court announced that it would rule on the motion to suppress at the next hearing. Defense counsel responded that two members of defendant\u2019s family would testify along with a doctor from the Psychiatric Institute, a division of the circuit court of Cook County. The trial court asked what bearing the doctor\u2019s testimony would have on the motion to suppress. Defense counsel responded the doctor would testify concerning defendant\u2019s ability to understand his Miranda rights, whether he was able to resist pressure by authorities during interrogation and whether he could give a statement on his own volition. The trial court would not allow the doctor to testify as a rebuttal witness. The trial court then continued the hearing for five days so defendant could present additional witnesses. The additional witnesses never appeared. The trial judge denied defendant\u2019s motion to suppress. The case then went to trial.\nAt trial, both defendant and Martin waived their right to a jury trial and were jointly tried by the court. It was stipulated that Dr. Daniel Delboccio, a pathologist with the Cook County medical examiner\u2019s office, performed an autopsy on Carl Stohn on August 21, 1980, which revealed that he died as a result of a gunshot wound to the head. The parties further stipulated Carl Stohn\u2019s friend of 12 years, Lee McGovern, if called to testify, would state that he went to the Cook County morgue and identified the victim\u2019s body.\nBittenbinder testified that on August 21, 1980, he received an assignment in the area of 950 North La Salle Street. Bittenbinder recounted that when he arrived on the scene he observed the victim lying on the sidewalk with a gunshot wound above his right eye.\nDaLeo testified at trial as to the circumstances of her interviews with defendant and his signing the statement prepared by the court reporter. The written statement was then introduced into evidence at trial. In the document defendant stated that on August 21, 1980, he planned with Melvin Lewis to \"go out and stick up somebody.\u201d Lewis gave defendant a pistol and defendant left with Martin. Subsequently, defendant and Martin went to Madden Park, where they met a man called \"Demp.\u201d Upon leaving the park, defendant, Martin, an individual known as \"Hitman,\u201d and two other persons traveled in a stolen automobile to the intersection of Division Street and La Salle Street. The five men saw the victim coming down the street. The car was stopped and defendant, Martin and Hitman exited it near a bus stop. As the victim walked behind defendant, defendant \"wheeled around on him and put the gun to [the victim\u2019s] head, and said, this is a stick-up.\u201d Defendant pushed the victim up against a fence. The victim grabbed Martin\u2019s collar. Martin then said three times \"shoot him.\u201d As defendant held the gun against the victim\u2019s head, he shot the victim and ran away.\nFollowing closing arguments, the trial court found defendant and Martin guilty in the manner and form charged in the indictment. Subsequently, the trial court heard and denied defendant\u2019s motion for a new trial.\nAt the State\u2019s request, the trial court conducted a death penalty hearing concerning defendant. After the exhaustive hearing was completed, due to defendant\u2019s lack of prior \"extreme criminal activity,\u201d the trial court declined to impose the death penalty.\nISSUES PRESENTED FOR REVIEW\nOn appeal, defendant contends that: (1) his rights under the fifth, sixth and fourteenth amendments to the United States Constitution were violated when at the pretrial hearing on his motion to suppress his written statement the trial court barred relevant psychiatric evidence concerning his ability to understand his Miranda rights and whether he had the intellectual capacity to make a knowing and intelligent waiver of those rights; (2) the trial court abused its discretion in sentencing defendant to the maximum extended term for murder where it made no finding that the offense was exceptionally brutal or heinous within the meaning of section 5 \u2014 5\u20143.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 5\u20143.2(b)(2)); (3) this cause must be remanded for a new sentencing hearing where the trial court improperly sentenced defendant to 80 years\u2019 imprisonment in order to ensure that defendant would be \"burned out\u201d when released; (4) three of defendant\u2019s convictions for murder and his conviction for armed violence must be vacated on \"one act, one crime\u201d principles; and (5) this cause must be remanded for a new sentencing hearing where the trial court imposed a seven-year sentence for conspiracy where the statute only authorizes a maximum term of three years\u2019 imprisonment.\nOPINION\nWe turn first to defendant\u2019s contention that his Federal constitutional rights as guaranteed by Miranda were violated by the trial court\u2019s not admitting into evidence the testimony of a doctor from the Psychiatric Institute at the suppression hearing. We believe that this issue was waived by defendant. It is settled law that absent plain error, \"/b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.\u201d (Emphasis in original.) (People v. Enoch (1988), 122 Ill. 2d 176, 186; see also People v. Nevitt (1990), 135 Ill. 2d 423; People v. Adams (1985), 109 Ill. 2d 102.) Furthermore, the mere referral to a cited error in a post-trial motion as prejudicial or erroneous, without factual detail, is insufficient to preserve an issue on appeal. (People v. Phillips (1989), 186 Ill. App. 3d 668, 682; People v. Pendelton (1989), 185 Ill. App. 3d 768, 777; People v. David (1986), 141 Ill. App. 3d 243, 261.) In the case sub judice, defendant did object at trial and raise the issue in his post-trial motion. However, defendant\u2019s post-trial motion merely alleges prejudice generally and broad conclusions as to what the Psychiatric Institute\u2019s doctor would report. No report or evaluation of any kind was ever attached to either the original motion to suppress or the post-trial motion. In fact, the only formal communication from the Psychiatric Institute contained in the record is a letter written by Dr. Gerson Kaplan, a staff psychiatrist, five months prior to the filing of the motion to suppress, stating that defendant was able to understand the nature of the charges pending, the purpose of the court proceedings, cooperate with defense counsel, appreciate the criminality of the offense and conform his conduct to the requirements of the law. Accordingly, we find defendant\u2019s offer of proof in post-trial motion woefully inadequate to fully apprise the trial court of the cited error. Thus, as we perceive no plain error in the trial court\u2019s ruling, we find this issue waived.\nEven if we assume that the trial court somehow erred in failing to admit the doctor\u2019s testimony into evidence, we are satisfied beyond a reasonable doubt that this lack of this evidence did not prejudice defendant. There was enough evidence from which the trial court could have reasonably drawn the inferences that it did with regard to defendant\u2019s waiver of Miranda rights. Consequently, we find that the complained-of error was harmless. People v. Rickard (1981), 99 Ill. App. 3d 914.\nWe now direct our attention to defendant\u2019s second and third issues on appeal addressing the propriety of his sentencing. We find these arguments are also not cognizable on appeal. \"Where a defendant fails to object to deficiencies in sentencing proceedings and fails to raise the same issues in his post-trial motion, defendant has waived such issues on appeal.\u201d (People v. Diaz (1989), 189 Ill. App. 3d 473, 476; see also People v. Howard (1984), 121 Ill. App. 3d 938.) In the case sub judice, defendant failed to make timely objections at his sentencing hearing and, thus, has waived review of these issues.\nNext, defendant urges that four of his convictions for murder and his conviction for armed violence must be vacated on \"one act, one crime\u201d principles. Where there is only one victim, there can be only one conviction for murder. (People v. Williams (1991), 215 Ill. App. 3d 800; People v. Kidd (1989), 180 Ill. App. 3d 1065.) Therefore, since one death alone occurred in the present case, three of defendant\u2019s convictions for murder must be vacated. Moreover, defendant\u2019s conviction for armed violence must be vacated as well because he was convicted of the underlying offense of murder. People v. Donaldson (1982), 91 Ill. 2d 164; People v. King (1977), 66 Ill. 2d 551.\nAccordingly, we remand this case to the trial court for the sole purpose of correcting defendant\u2019s mittimus to reflect that defendant was convicted of only one murder under section 9 \u2014 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 \u2014 1(a)(1)), attempt (armed robbery) under section 8 \u2014 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 4), and conspiracy under section 8 \u2014 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8 \u2014 2). We find defendant\u2019s contention that a new sentencing hearing is necessary as the vacated counts may have influenced the trial judge when sentencing wholly without merit. In the case at hand, the trial judge was well aware from the inception of the case that there was only one person that was killed.\nStill to be considered is defendant\u2019s position that this cause must be remanded for a new sentencing hearing where the trial court imposed a seven-year sentence for conspiracy where the statute only authorizes a maximum term of three years\u2019 imprisonment. The State contends that .this question is moot and we agree. \"It is a hoary principle of the common law that when a case is rendered moot, a court\u2019s decision on the merits will not afford either party relief and any decision thus reached is merely an advisory opinion. [Citation.] Illinois courts do not issue advisory opinions and should not indulge in the practice of rendering opinions simply for the sake of creating precedents to govern future cases.\u201d (People v. Halasz (1993), 244 Ill. App. 3d 284, 285-86.) In the case sub judice, defendant has already served the sentence and, thus, any decision we would render regarding this issue can afford him no relief and would be merely advisory. Consequently, the issue is moot and shall not be reached by this court.\nDISPOSITION\nIn light of the foregoing, we remand this case to the circuit court of Cook County for the sole purpose of correcting defendant\u2019s mittimus as indicated above and affirm the judgment in all other respects.\nAffirmed and remanded.\nRIZZI and GREIMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE TULLY" } ], "attorneys": [ "Anne C. McAllister, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Christine Cook, Dori K. Leo, and Ross M. Eagle, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN BURNETT, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201482\u20142213\nOpinion filed December 29, 1993.\nRehearing denied February 9, 1994.\nAnne C. McAllister, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Christine Cook, Dori K. Leo, and Ross M. Eagle, Assistant State\u2019s Attorneys, of counsel), for the People.\nSubsequent to publication, this opinion was modified on remand from the Illinois Supreme Court. The modified opinion, filed September 30, 1994, is published at 267 Ill. App. 3d 11." }, "file_name": "0383-01", "first_page_order": 401, "last_page_order": 407 }