People v. Bush

1

2024 IL App (1st) 230728-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID BUSH, Defendant-Appellant.

No. 1-23-0728

Court of Appeals of Illinois, First District, Third Division

July 17, 2024

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. 15 CR 8443 Honorable Maria Kuriakos-Ciesil, Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment.

ORDER

LAMPKIN JUSTICE

¶ 1 Held: We affirm defendant's convictions for attempted armed robbery with a firearm and attempted first degree murder during which he personally discharged a firearm; vacate the sentences imposed on other counts of attempted first degree murder and aggravated battery pursuant to the one-act, one-crime doctrine; and reject defendant's procedurally defaulted contention that his aggregate sentence is excessive.

¶ 2 Following a jury trial, defendant David Bush was convicted of attempted first degree murder (count III) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2014)), attempted first degree murder while personally discharging a firearm (count V) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2014)), aggravated battery (count X) (720 ILCS 5/12-3.05(e)(1) (West 2014)), and attempted armed robbery with a firearm (count XI) (720 ILCS 5/8-4(a), 18-2(a)(2)) (West 2014)). The trial court imposed three concurrent sentences of 26 years in prison on counts III, V, and X, and a consecutive sentence of 4 years in prison on count XI, for an aggregate sentence of 30 years in prison.

¶ 3 On appeal, defendant contends that (1) the State failed to prove beyond a reasonable doubt that he personally discharged a firearm; (2) his three convictions for the single charged act of shooting one victim violate the one-act, one-crime doctrine; and (3) his sentence is excessive. For the reasons that follow, we vacate defendant's sentences on counts III and X as violative of the one-act, one-crime doctrine, and affirm his convictions and sentences on counts V and XI.^[1]

¶ 4 Defendant's convictions arose from an attack on an off-duty police officer by two assailants in the alley behind the officer's house on the 300 block of West 103rd Place in Chicago. Following arrest, defendant and another individual, Taiwan McNeal, were charged in a 21-count indictment with a range of crimes. Prior to trial, the court granted defendant's motion to sever his trial from McNeal's. McNeal is not a party to this appeal.

¶ 5 At trial, Oak Park police officer Johnny Patterson testified that on the morning of May 3, 2015, he prepared for work by dressing in his uniform pants, a t-shirt, and a Cubs jersey. He carried his loaded, off-duty .40-caliber firearm in a holster on his hip. About 5:10 a.m., he drove his vehicle from the front of his house to the alley, parked, and walked into his garage through the service door to retrieve a protein shake from the refrigerator. Although the sun was not up yet, the area near the garage was "well-lit" by an alley light.

¶ 6 As Patterson exited the garage into the alley, he saw motion to his left. He turned and saw a person 20 to 25 feet away "come from behind a pole and start approaching *** with a weapon." In court, he identified this person as defendant. Defendant walked toward Patterson at a fast pace, pointing his weapon directly at Patterson's face. Patterson was at the driver's door of his vehicle and defendant walked to the bumper. Patterson said, "I am the police, I am the police."

¶ 7 A second man appeared and grabbed Patterson's sides and pockets, patting him down. Patterson glanced at the second man, but his focus was on defendant. The second man said, "He got something, shoot him, shoot him," at which point defendant opened fire. A bullet struck Patterson's right forearm, which he used to cover his face. Patterson moved, was shot in the left side, and pulled his own weapon and returned fire as he went to the ground. Patterson recalled firing his own weapon four times. Defendant fired more rounds, one of which struck Patterson's right calf. Defendant started to back up and fell. Although defendant had fallen, he was still firing. Patterson did not know whether he had hit defendant "until he was running away and he yelled to his partner, 'He shot me, he shot me.'" Defendant and the second man ran northbound through the alley toward 103rd Street.

¶ 8 Patterson testified that the firearm defendant used was "kind of large and dark colored." Patterson saw defendant's face as defendant approached, and nothing blocked Patterson's view. He described defendant as light complexioned with "nappy, wooly, long, dreadlock-type hair." He could not remember what defendant was wearing. He estimated that the entire incident lasted 90 seconds, "no more than 2 minutes."

¶ 9 After defendant and the other man fled, Patterson called his wife, who called 911. When the police arrived, he described his assailants along the lines of "two male blacks with nappy, wooly hair." Patterson was taken to the hospital for treatment of "through and through" gunshot wounds to his forearm, side, and calf. There, his sister-in-law, Monica McCoy-Eiland, showed him photographs on her phone. Patterson told her, "[Y]es, those are the two guys that shot me." Shortly thereafter, detectives showed him the same photographs and he confirmed that "those were the guys" who were involved in the shooting. Patterson remained hospitalized for four days and required surgery on his leg because the wound had become infected.

¶ 10 On cross-examination, Patterson stated that the alley light did not cast a shadow on defendant's face. He reiterated that he only "glimpsed" the second man because he was "looking at the person with the gun in front of me." Patterson estimated that defendant fired five or six shots, stated that defendant "was close up on me," and agreed that the incident was frightening. He clarified that he identified the two men in the photographs "within like an hour or so."

¶ 11 Clarence Covington, a bus operator for the Chicago Transit Authority, testified that around 5:10 a.m. on May 3, 2015, he was driving his route on 103rd Street when he heard gunshots. He then saw two men running north from an alley and across the street in front of him, about 1/ blocks west of Wentworth Avenue. Both men were wearing dark clothing; one had a hoodie on and the other had dreadlocks. One of the men was hobbling.

¶ 12 Covington continued his route to the end, turned around, and drove back toward Wentworth. When he arrived back at the alley, about 15 minutes after having seen the two men, he noticed police officers at the scene. Covington stopped and told the officers what he had seen.

¶ 13 Chicago police officer Leonid Shvartser testified that he was among the officers who responded to the scene. Around 5:30 a.m., after Patterson was taken away in an ambulance, Shvartser heard a dispatch that a 911 caller had reported receiving a call from someone "saying that they were shot and they were hiding out on the 9900 block of South Princeton." Shvartser and his partner drove to that location, about two minutes away, and were directed to a gangway between two houses. As Shvartser walked through the gangway, he saw two men crouching at the bottom of a stairwell. He directed them to stand and, when they did, he noticed one of them had been shot. In court, he identified that man as defendant.

¶ 14 Shvartser testified that, based on the proximity of the gangway to the scene of the shooting, Patterson's report that he had shot at his assailants, and the direction of the perpetrators' flight, he believed defendant and the other man were the "individuals who were suspected in that shooting." Shvartser and his partner detained defendant and the other man. Defendant did not have a weapon on him.

¶ 15 Chicago fire department paramedic Timothy Cosgrove testified that, about 5:50 a.m. on the morning in question, he responded to a dispatch call of a gunshot victim. When he arrived at the location, he saw defendant, whom he identified in court, sitting on the curb or the sidewalk. Defendant had multiple fresh gunshot wounds: entrance wounds to the left bicep and the left ankle, a graze wound in the lower right quadrant of the abdomen, and a gunshot wound to the front of his right thigh. Cosgrove and other paramedics provided treatment to control defendant's bleeding, after which he was transported to the hospital in an ambulance.

¶ 16 McCoy-Eiland testified that, about 6 a.m. on the day in question, she learned from her son, Devin White, that Patterson had been shot. She immediately went to the hospital to see him. While she was in the waiting room, she received a text message from White with two photographs of two young men, one on a gurney and the other in handcuffs. When she saw Patterson, she showed him the photographs. Regarding the photograph of the young man on the gurney, Patterson spontaneously said, "[T]hat's the guy that shot me." She denied telling Patterson anything regarding the photographs. Police officers who were present took pictures of the photographs and returned her phone.

¶ 17 White testified that, on the day in question, he learned from McCoy-Eiland that Patterson had been shot. Sometime later, he sent McCoy-Eiland photographs "of the alleged attack of [his] uncle" via text message. He did not remember where he had gotten the photographs from, but agreed it was "fair to say" that he had received them from a family member.

¶ 18 Chicago police detective Patrick Hackett testified that he interviewed Patterson at the hospital. Patterson informed Hackett that he had...