People v. Abrego

THIRD DIVISION
March 7, 2007

No. 1-04-3259

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
ERUBY ABREGO, ) No. 99 CR 9739 (02)
)
Defendant-Appellant. )
)) Honorable
) Kenneth J. Wadas,
Judge Presiding.

JUSTICE KARNEZIS delivered the opinion of the court:

Following a jury trial, defendant Eruby Abrego was found guilty of first degree

murder and aggravated battery with a firearm and was sentenced to consecutive prison

terms of 60 and 30 years', respectively. On appeal, defendant contends: (1) the trial

court abused its discretion by excluding certain hearsay testimony that an individual

other than defendant had confessed to the shooting; (2) the trial court erred by
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improperly responding to a note the jury sent to the court during deliberations; (3) the

trial court abused its discretion by admitting "gruesome" photographs of the victim; (4)

his sentence was excessive; and (5) the compulsory extraction and perpetual storing of

his DNA is unconstitutional.

BACKGROUND

Defendant's conviction was the result of an ongoing conflict between the Insane

Orchestra Albany and the Latin Kings street gangs. The jury found defendant guilty of

shooting Jose Garcia and Julio Lugo. Garcia died as a result of his injuries. On March

22, 1999, at about 5:30 or 5:45 p.m., defendant was riding in a car with several

individuals who belonged to the Insane Orchestra Albany gang. They drove to the area

of Belmont Avenue and Monticello Avenue where they saw another car with members

of the Latin Kings' gang. They flashed gang signs at the Latin Kings, "threw down" the

Latin Kings sign and threw a bottle at their car. The car with the Latin Kings drove

around the corner, and Julio Lugo and his 11-year-old cousin, Isidro Quinones, exited

the car. Lugo and Quinones were walking toward a grocery store when they stopped to

talk to Ramon Torres and Jose Garcia, who were sitting in a nearby car. As they were

talking, defendant approached the group on foot and began shooting, hitting Garcia and

Lugo. Defendant then fled.

Subsequently, defendant was arrested and identified in a lineup by Torres and

Quinones as the shooter. Defendant also signed a court-reported statement admitting

he was the shooter, which was introduced into evidence at trial. The gun used in the

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shooting was recovered from a fellow gang member's home.

ANALYSIS

Defendant first contends that the trial court abused its discretion by excluding

certain hearsay testimony that an individual other than defendant had confessed to the

shooting. Prior to trial, defendant filed a motion pursuant to Chambers v. Mississippi,

410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), to admit statements made by

Jason Rodriguez to his girlfriend, Elizabeth Montalvo, that Rodriguez was involved in

the shooting. The court held a hearing on the matter.

At the hearing, Montalvo testified that on March 22, 1999, she had been living

with Rodriguez for about six months. They also have a child together. On that night,

Rodriguez told Montalvo that he had to take care of something or had to prove

something and asked her to get his black "hoody." Rodriguez left and returned about

four hours later. Montalvo stated that when Rodriguez returned, he appeared very

nervous and closed the window blinds. She asked him what was wrong, but he did not

answer. A couple of days later, Rodriguez's friend came to the house and told

Rodriguez that he needed to hide. Montalvo stated that she would not let Rodriguez

leave until he told her what was "going on." Rodriguez told her that the reason he had

to hide was because he shot a Latin King. He said that he was on Belmont Avenue, by

himself, when he got out of his car and approached some individuals. He heard one of

them say in Spanish "watch that black guy." He approached the group, looked one of

them in the eye and shot at them. He said that he shot two people. Montalvo stated

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that she was not sure where on Belmont Avenue the shooting occurred but guessed it

was around Belmont Avenue and Central Park. Montalvo stated that after a few days,

Rodriguez returned and told her that everything was all right because someone else

had been charged with the shooting. Montalvo further stated that after she and

Rodriguez broke up, he stalked her and beat her and told her not to tell anyone what he

had told her. Montalvo described Rodriguez as about 5 feet 11 inches to 6 feet tall and

dark complected with a heavy build. On cross-examination, Montalvo stated that

Rodriguez left the house on the night of the shooting at about 6:30 or 7:30 p.m. When

Rodriguez returned, he was wearing a T-shirt, blue jeans and white gym shoes.

Nicasio Santiago testified that on March 22, 1999, in the afternoon or early

evening, he was riding in a car with Jason Rodriguez in the Logan Square

neighborhood. According to Santiago, defendant was not with them. Santiago and

Rodriguez exited the car and saw a group of Latin Kings around Belmont Avenue and

Monticello Avenue. They exchanged gang signs with the Latin Kings and threw bottles

at their car. He and Rodriguez walked around the corner and saw the Latin Kings' car.

Rodriguez approached the car and the individuals standing near the car and started

shooting at them. He and Rodriguez then fled. Santiago described Rodriguez as about

5 feet 9 inches tall. On cross-examination, Santiago acknowledged that he had signed

a statement written by an assistant State's Attorney, but stated that the statement was

untrue and the result of police brutality. According to the statement, he did not

implicate Rodriguez in the shooting.

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Julio Lugo testified that the shooter was dark complected, was shorter than 5

feet 8 inches or 5 feet 9 inches and was wearing a dark-colored jogging suit. He also

described the shooter as “caramel complected.”

Detective Guevara testified that he and his partner interviewed Lugo after the

shooting and Lugo described the shooter as a Hispanic male in his twenties, 5 feet 8

inches to 5 feet 10 inches tall, weighing about 200 pounds, and wearing a dark-colored

jogging suit.

Officer Thesedosia Jaks testified that she wrote a police report from an interview

with Ramon Torres and Julio Lugo. The report indicated that the shooter had been

described as a dark Hispanic male, 5 feet 7 inches tall, weighing 200 pounds, and

wearing a brown sweatsuit with a hoody.

Officer Eduardo Rios testified that he obtained a description of the shooter as a

Hispanic male with a black jacket and black hoody.

Detective Raymond Schalk testified that he interviewed Isidro Quinones, who

described the shooter as a Hispanic male, 18 to 22 years old, 5 feet 9 inches tall, black

hair, dark complected, and wearing a black hoody and black jacket.

The parties stipulated that if Detective Robert Smith would testify, he would state

that he interviewed Ramon Torres, who described the shooter as a dark Hispanic male,

19 to 20 years old, about 6 feet tall, 180 pounds, with black hair and wearing a black,

zipped jacket with a hoody, and dark jeans and white tennis shoes.

The parties further stipulated that a photograph of Jason Rodriguez from the

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Chicago police department dated September 16, 1999, indicated that Rodriguez was a

black Hispanic male, 5 feet 7 inches tall, weighing 150 pounds, with brown eyes, black

hair and a dark complexion.

Following the hearing, the court analyzed the four factors the United States

Supreme Court set forth in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93

S. Ct. 1038, to determine whether Montalvo's testimony was admissible. With regard to

the first factor, whether the confession was made spontaneously to a close

acquaintance shortly after the crime occurred, the trial court found that there was no

question that there was a close relationship between Montalvo and Rodriguez. The

court stated however, that because Rodriguez's statement was made two days after the

crime occurred, it did not seem spontaneous.

With respect to the second factor, whether the confession was corroborated by

some other evidence, the court found that there was not sufficient independent

corroboration to the statement. The court stated that Santiago's testimony was not

credible and noted that Santiago was

"one of the most disreputable individuals that has ever testified in this

courtroom. On a credibility assessment scale of one to ten, his falls

somewhere around zero."

The court also stated that Rodriguez's statement was vague, and although it seemed to

be an admission to a shooting, it did not necessarily refer to this shooting. The court

further stated that the description of the shooter as "dark complected" was vague,

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because it could mean different things to different people.

With respect to the third factor, whether the confession was self-incriminating

and against the declarant's interests, the trial court found that Rodriguez's statement

was against his penal interests.

With respect to the fourth factor, whether the declarant was available for cross-

examination, the trial court found that the factor was not satisfied.

The court noted in concluding that factor one was only marginally met, factor two

was not met, factor three was met, and factor four was not met. The court further

stated that there was not a sufficient indicia of reliability regarding the statement from

Rodriguez to Montalvo that would make it reliable to give a jury an opportunity to assess

it and assess Montalvo's credibility.

In Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, the

United States Supreme Court found that hearsay statements that satisfy the following

factors may be admissible at trial. The factors a court must consider are whether (1)

the confession was made spontaneously to a close acquaintance shortly after the crime

occurred; (2) the confession was corroborated by some other evidence; (3) the

confession was self-incriminating and against the declarant's interests; and (4) the

declarant was available for cross-examination. Chambers, 410 U.S. at 300-01; 35 L.

Ed. 2d at 312, 93 S. Ct. At 1048-49. These factors are "merely guidelines to

admissibility rather than hard and fast requirements." People v. Tenney, 205 Ill. 2d 411,

435 (2002). "[T]he presence of all four factors is not a condition of admissibility."

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Tenney, 205 Ill. 2d at 435. Rather, the question to consider is "whether the declaration

was made under circumstances that provide 'considerable assurance' of its reliability by

objective indicia of trustworthiness." People v. Bowel, 111 Ill. 2d 58, 67 (1986). "The

admission of evidence is within the sound discretion of the trial court, and its ruling will

not be reversed" absent an abuse of discretion. Tenney, 205 Ill. 2d at 436.

Here, as the trial court found, we agree that Rodriguez's statement to Montalvo

was made to a close acquaintance. We also agree with the trial court that the

statement was not exactly spontaneous. Rodriguez's statement was made in response

to Montalvo's questions and Montalvo's insistence that he tell her what was "going on"

before he went to “hide out.” Defendant relies on People v. Tenney, 205 Ill. 2d 411

(2002), in which our supreme court determined that the declarant's statement could be

considered spontaneous even though it was in response to his girlfriend's "demand" for

an explanation. The court determined that merely because the declarant's girlfriend

asked the declarant "what was going on," that "single, simple question did not rob [the

declarant's] statement of spontaneity." Tenney, 205 Ill. 2d at 439. The court then

distinguished the case from People v. Hampton, 249 Ill. App. 3d 329 (1993), where the

hearsay statement was found to be inadmissible because it was made in response to

"comments and pointed questioning." Tenney, 205 Ill. 2d at 439. We find that

Montalvo's questioning of Rodriguez was more akin to the facts in Hampton than in

Tenney. Montalvo stated that she would not let Rodriguez leave until he told her what

was "going on." Montalvo's demand that Rodriguez provide her with an explanation

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was more than just a single, simple question. It was similar to the comments and

pointed questioning in Hampton, in which the declarant's response was not considered

spontaneous.

Defendant questions the viability of the Hampton decision, alleging that it was

overturned by the federal court. The defendant Hampton filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. §2254 (2000) in federal district court, which the

court denied. The Seventh Circuit Court of Appeals vacated the denial of Hampton's

petition and remanded the matter to the district court for further proceedings to consider

Hampton's claim that his trial counsel was ineffective in failing to file a timely motion to

reconsider the trial court's judgment. See Hampton v. Roth, 221 F.3d 1338 (7th Cir.

2000). The untimely motion to reconsider had alleged that Mel Thompson's confession

to Constance Catchings that he had committed the crime could be corroborated by the

testimony of Johnnie Smith, a newly discovered witness, who claimed that Thompson

also confessed to him. The trial court had barred Catchings' testimony pursuant to

Chambers because there was no corroboration of the confession. The motion to

reconsider had been denied solely on the grounds that it was untimely. Upon remand

from the Seventh Circuit, the district court found that Hampton had been prejudiced by

his trial counsel's failure to file a timely motion for reconsideration. The district court

granted Hampton's petition for habeas corpus but stayed execution of the writ on the

condition that the State of Illinois grant Hampton a new trial. See U.S. ex rel. Hampton

v. Roth, No. 97 C 7994 (September 25, 2000).

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We disagree with defendant's contention that Hampton is no longer good law.

Hampton's petition for writ of habeas corpus and subsequent new trial was granted on

the basis that Hampton was prejudiced by his trial counsel's failure to file a timely

motion to reconsider in which he alleged that a newly discovered witness could

corroborate Mel Thompson's confession to Constance Catchings. This court's opinion

and the trial court's finding that Thompson's confession to Catchings was not

spontaneous because it was made in response to comments and pointed questioning

are still viable. Neither the federal district court nor the Seventh Circuit commented on

that aspect of the trial court's finding. Further, our supreme court's decision in Tenney

was two years after the federal district court's order granting Hampton's petition. Had

Hampton been "overturned," our supreme court would have had no need to distinguish

it. Therefore, we find that Hampton is still viable and instructive for purposes of our

analysis.

Moving on to the final part of the first Chambers factor, we note that Rodriguez's

statement to Montalvo was not made shortly after the crime occurred, but was made

two days after the shooting. However, this court has determined that two days can be

considered "shortly after the crime occurred." See People v. Anderson, 291 Ill. App. 3d

843, 850 (1997). Therefore, we agree with the trial court that the first factor is only

somewhat satisfied.

Considering the second factor, defendant raises the following points of

corroboration in addition to Santiago's testimony; Rodriguez shot at two people; the

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shooting occurred on Belmont Avenue; the eyewitness descriptions of the shooter were

of a dark-complected Hispanic male between 5 feet 7 inches and 6 feet tall, wearing a

black hoody; and the victims were Latin Kings.

Here, as the trial court found, these corroborating details are somewhat vague

and could easily refer to a different shooting. The description of the shooter as a dark-

complected Hispanic male between 5 feet 7 inches and 6 feet tall is somewhat generic.

And, hoody sweatshirts are extremely commonplace. Although the corroborating detail

that the shooting occurred on Belmont Avenue is more specific, Rodriguez’s statement

did not specify where on Belmont Avenue he shot at two people. As the trial court

noted, Belmont Avenue runs as far east as the lake and as far west as the City of

Chicago’s limits. Additionally, the victims’ identities as Latin Kings is also more specific,

but, not specific enough such it could independently corroborate Rodriguez’s

statements. Rival gang violence is unfortunately a routine occurrence. Further, there is

other contradictory evidence; namely, the time frame when Rodriguez left his home on

the night of the shooting. Montalvo stated that Rodriguez left home at about 6:30 or

7:30 p.m. that night. Testimony at trial established that the shooting occurred at about

5:30 or 5:45 p.m. Therefore, we agree with the trial court that this factor is not satisfied.

Considering the third factor, we agree that Rodriguez’s statements are self-

incriminating and against his interests.

Considering the fourth factor, defendant failed to establish that Rodriguez was

available for cross-examination. The trial court was not presented with any evidence

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that Rodriguez was available for cross-examination. Therefore, we agree with the trial

court’s finding that this factor is not satisfied.

In conclusion, we find that only the third Chambers factor was satisfied. The first

factor was only somewhat satisfied and the other two factors were not. Although the

factors are merely guidelines to admissibility rather than requirements, the absence of

the majority of factors in this case leads us to conclude that Rodriguez's declaration

was not made under circumstances that provide "considerable assurance" of its

reliability. Therefore, we find that the trial court's determination to exclude Montalvo's

testimony was not an abuse of discretion.

Despite the trial court’s ruling, defendant additionally contends that Montalvo’s

testimony from the hearing should have been admissible at trial because she failed to

respond to a subpoena and thus was unavailable to testify at trial. Defendant further

contends that, in the alternative, the trial court should have admitted the nonhearsay

portions of Montalvo's testimony. Defendant’s contentions are misplaced. Montalvo’s

testimony was excluded because it was found to be unreliable. Even if she became

unavailable to testify at trial, her prior testimony would still be excluded because it did

not satisfy the criteria set forth in Chambers. Moreover, her testimony as a whole was

found to be unreliable pursuant to Chambers; therefore, it was not an abuse of

discretion for the trial court to exclude the nonhearsay portions of Montalvo's

testimony.

Additionally, we note that the evidence in this case was not closely balanced.

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Defendant was positively identified in a lineup by eyewitnesses Ramon Torres and

Isidro Quinones, defendant signed a court-reported statement admitting he was the

shooter, and the gun used in the shooting was found in a fellow gang member's home.

JURY NOTE

Next, defendant contends that the trial court erred by improperly responding to a

note the jury sent to the court during deliberations.

During deliberations, the jury sent the trial court four notes. The fourth note,

which is at issue in this appeal, stated, "[M]ay we see Daniel Gallagher's bond hearing

report taken on March 27th, 1999."

Daniel Gallagher was defendant's public defender in bond court on March 27,

1999. Gallagher testified at trial that he did not have any independent recollection of

the matter and referred to the transcript from the bond hearing to refresh his

recollection. Gallagher testified that according to the transcript, defendant told

Gallagher that he had been beaten by police and had been coughing up blood. Also

according to the transcript, Gallagher asked the court to note the cuts on defendant's

chest and bruises on his arm; however, there was no indication from the transcript

whether the judge noted any injuries. The bond hearing transcript was not admitted into

evidence at defendant's trial.

The trial court gave the jurors each of the reports they requested in their first

three notes. However, after reading the fourth note, the judge and the parties agreed

that a bond hearing "report" did not exist. Defense counsel argued that the trial court

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should inform the jury that no report existed. Defense counsel also argued that the

jurors' note indicated that they wanted the transcript from defendant's bond hearing,

and their note erroneously asked for a "report" rather than the "transcript." The court

disagreed with defense counsel, stating that if the jurors had wanted the transcript, they

would have asked for the transcript rather than a report. The court thought it would be

improper to interpret the jury's note by reading into or creating a word that the jury did

not use. The court further stated:

"[T]o tell them there is no bond hearing report is a finding of fact. I am not

finding any facts in this case. That's what they asked for. We don't have

anything like that. If they want a transcript and ask for a transcript, then

we will deal with that issue when they ask for it."

The court responded to the jurors' note by informing them that they had all the evidence

and to continue deliberating.

Defendant’s contention on appeal is not entirely clear. Defendant argues in his

opening brief that the trial court abused its discretion by denying the jury’s request for

defendant’s bond hearing “transcript.” However, defendant argues in his reply brief that

the jury requested the transcript of Gallagher’s trial testimony. Defendant’s inconsistent

argument may be attributed to the State’s argument in its brief that the trial court's

response was proper because even if the jury had requested the bond hearing

transcript, the transcript was not admitted into evidence at defendant’s trial and would

not have been available to the jury. Nevertheless, the thrust of defendant’s contention

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on appeal is that the trial court erred in replying to the jury’s note because it mistakenly

believed that it had no discretion to ascertain what the jury’s note meant. Defendant

argues that error may result where the trial court fails to ascertain specifically what the

jury is requesting because the trial court mistakenly believes it is without discretion to do

so. People v. Jackson, 26 Ill. App. 3d 618 (1975); People v. Queen, 56 Ill. 2d 560

(1974); and People v. Autman, 58 Ill. 2d 171 (1974).

The Jackson, Queen and Autman decisions are based on our supreme court’s

decision in People v. Pierce, 56 Ill. 2d 361 (1974). In Pierce, our supreme court held

that it is within the trial court’s discretion to allow or refuse a jury’s request for a review

of testimony. In Jackson, Queen and Autman, the trial courts’ responses to the juries'

notes were found to be in error because it was clear that they mistakenly believed they

were without discretion to consider the juries' request. In Jackson, the jury requested a

transcript of the trial, which the trial court denied. This court found on appeal that the

trial court failed to ascertain from the jury the specific testimony that it wished to review

and failed to fulfill its duty of determining whether a review of the requested testimony

would have assisted the jury in its deliberations. Jackson, 26 Ill. App. 3d at 629. In

Queen, 56 Ill. 2d at 565, the jury requested “defendant’s words on the stand.” The trial

court replied “'I cannot have any testimony of any witnesses read to you.'” Queen, 56

Ill. 2d at 565. In Autman, the jury requested a transcript of three witnesses’ testimony

and the trial court simply responded “no.”

Here, we disagree with defendant's interpretation of the court's response. We do

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not believe that the evidence indicated that the court thought it was without discretion to

do anything other than to tell the jury to keep deliberating. The court did not state that it

had no discretion to inquire into the jury's note. The court simply stated that the report

for which the jury asked did not exist, and it was not going to attempt to second-guess

the jurors' intentions by reading meanings into words that were not there. Therefore,

we agree with the trial court that the proper answer to the jury's note was to inform the

jurors that they had all the evidence and they should continue deliberating.

PHOTOGRAPHS

Next, defendant contends that the trial court abused its discretion by admitting

"gruesome" photographs of the victim, Jose Garcia, which deprived him of a fair trial

because the photographs were prejudicial and not probative of any fact in issue.

Specifically, defendant argues that People's Exhibits 45, 46, 47 and 48 should not have

been admitted into evidence.

Dr. Nancy Jones, a forensic pathologist, testified at trial that she performed an

autopsy on the victim's body and noted that the victim had two gunshot wounds to the

head. She described People's Exhibit 45 as "a close up photograph taken of the

gunshot wound that was in the center of [the victim's] forehead to show the unusual

appearance of that particular wound." She identified People's Exhibit 46 as "a

photograph that was taken at the beginning of the internal examination of [the victim's]

head [to show] where the bullet that had caused the injury in the right forehead or the

forehead region had struck the frontal bond and been deflected outward." She

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identified People's Exhibit 47 as " a close up photograph taken of [the victim's] left eye,

it shows the location and the appearance of the gunshot wound that was there." She

also identified People's Exhibit 48 as "a photograph that was taken during the internal

examination of the head, the skull cap has been removed so that the brain has been

exposed, and the bleeding and the damage that was caused to the brain from the bullet

coursing through the head can be seen in this photograph. Also, what can be seen is

some of the fractures in the frontal region above the eye that's the base of the skull."

On cross-examination, Dr. Jones testified that one of the wounds had evidence

of close-range firing, whereas the other wound did not. On redirect examination, she

explained that one of the wounds had "very scant or very few numbers of small

abrasions that are present around the wound that appear to be something like

stippling," which could indicate close-range firing. She also explained that a stippling

effect could be caused from something like the bullet hitting glass first and then the

victim. Dr. Jones further stated that she was unable to determine whether one of the

wounds was from close-range firing.

At the close of evidence the State sought to admit People's Exhibits 45, 46, 47

and 48. The defense objected, arguing that the photographs were "horrendously

graphic and gruesome." The court admitted the photographs, finding that they were

relevant to the issue of close-range firing, which was raised by the defense in the cross-

examination of Dr. Jones. The court explained that "these photos are going in because

the jury will get to see the stippling, if it is that, or it is possibly bullet glass from window

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residue that might have made the tattooing on the face." The court further found that

the photographs would augment Dr. Jones' testimony relating to the cause and manner

of death.

If photographic evidence is relevant to prove facts at issue and if the probative

value outweighs the potential prejudice, the photographs are admissible, even if such

photographs are gruesome. People v. Mercado, 333 Ill. App. 3d 994, 1001 (2002).

The trial court's admission of photographs will not be reversed absent an abuse of

discretion. People v. Rissley, 165 Ill. 2d 364, 403 (1995).

Here, each of the photographs showed the bullet wounds and the damage they

caused to the victim's body. They were relevant to illustrate Dr. Jones' testimony as

well as to shed light on the issue of close-range firing. Although we agree with

defendant to some extent that the photographs can be characterized as "gruesome,"

that alone does not preclude their admission. See Mercado, 333 Ill. App. 3d at 1001.

We are not persuaded by defendant's contention that the photographs were of such a

gruesome nature that any prejudice outweighed their probative value.

SENTENCING

Next, defendant contends that the trial court abused its discretion in sentencing

him to the maximum sentence for each offense. Defendant argues that he had no prior

convictions, was 20 years old when the crime was committed, and had rehabilitative

potential. Defendant asks this court to reduce his sentence to a more appropriate term

or to remand the cause to the trial court for a new sentencing hearing.

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The State responds that defendant has waived any challenge to his sentence by

failing to file a motion to reconsider his sentence. Although waiver limits a party's ability

to raise an argument, it does not preclude our jurisdiction to consider it. People v.

Benford, 349 Ill. App. 3d 721, 734 (2004). Accordingly, we will address defendant's

contention. We are mindful, however, that we afford great deference to the circuit

court's sentencing decision. People v. Fern, 189 Ill. 2d 48, 53 (1999). Absent an abuse

of discretion, a sentence within the appropriate range will be affirmed. People v.

Coleman, 166 Ill. 2d 247, 258 (1995).

At defendant's sentencing hearing, the defense presented the testimony of three

witnesses who attested to defendant's good character. Maria Castro, who is the mother

of defendant's two children, testified that defendant was a good parent and always

provided for his family. Michelle Bolova, a friend of defendant's family, testified that

defendant was a good person and was always very respectful, and she noted that

defendant helped organize sports games for kids at the park. Defendant's father

testified that he has always had a very close relationship with defendant and defendant

was very involved with their church and participated in the local YMCA's activities.

Before imposing sentence, the trial court noted defendant's lack of criminal

history in mitigation. In aggravation, the court found that defendant's conduct caused or

threatened serious harm, the sentence was necessary to deter others from committing

the same crime, and defendant committed the offense to further activities of an

organized gang. The court also stated

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"[T]he seriousness of the factors in aggravation greatly outweigh the

defendant's one sole mitigating factor. And I think that the fact that the

defendant did not have a prior criminal background somehow and he

should not be rewarded by skipping little league baseball, pony league,

high school ball and college tryout and the major leagues. He chose to

play at the major league level on his first offense, which is murder and

aggravated battery with a firearm."

The court then sentenced defendant to the maximum sentence of 60 years for first

degree murder and 30 years for aggravated battery, with the sentences to run

consecutive to one another.

Here, the sentencing range for the offense of first degree murder was 20 to 60

years. 730 ILCS 5/5-8-1(a)(1)(a) (West Supp. 1999). The sentencing range for the

offense of aggravated battery, a Class X felony, was 6 to 30 years. 730 ILCS 5/5-8-

1(a)(3) (West Supp. 1999). The trial court's sentence was clearly within the statutory

limits. It is also clear the court did consider defendant's lack of criminal history before

imposing sentence. Although the court did not specifically comment on defendant's

age and potential for rehabilitation, the court stated that it had read the presentence

investigation report and had considered the relevant factors before imposing sentence.

The court then weighed these factors with the aggravating factors to determine an

appropriate sentence. Here, defendant was convicted of shooting at a group of

individuals, including one of whom was 11 years old, because of a gang rivalry. We

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cannot say that, under these circumstances, the trial court's sentence was an abuse of

discretion.

DNA EXTRACTION

Lastly, defendant contends that the compulsory extraction and perpetual storing

of his DNA pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-

4-3 (West 2004)) (Code) violates his constitutional right to be free from unreasonable

searches and seizures.

As defendant correctly acknowledges in his reply brief, our supreme court

recently found section 5-4-3 of the Code constitutional in People v. Garvin, 219 Ill. 2d

104 (2006). We are bound by the supreme court's decision and reject defendant's

contention.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

GREIMAN, J., and CUNNINGHAM, J., concur.

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