People v. Wright ( 2018 )

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Supreme Court Date: 2018.03.02
12:19:48 -06'00'
People v. Wright, 2017 IL 119561
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court: EUGENE WRIGHT, Appellee.
Docket No. 119561
Filed September 21, 2017
Rehearing denied November 20, 2017
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Timothy Chambers, Judge, presiding.
Judgment Appellate court judgment affirmed in part and reversed in part.
Circuit court judgment affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,
Annette Collins, and Jon Walters, Assistant State’s Attorneys, of
counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy
Defender, and Peter Sgro, Assistant Appellate Defender, of the Office
of the State Appellate Defender, of Chicago, for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from the conviction of defendant, Eugene Wright, of armed robbery with
a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) following a jury trial in the circuit court of
Cook County. Prior to being allowed to represent himself, defendant was admonished by the
circuit court pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) but was
incorrectly informed of the potential maximum sentence of the charged offense. The appellate
court reversed and remanded for a new trial based upon this incorrect admonishment while
affirming on all other grounds addressed. 2015 IL App (1st) 123496, ¶ 86. For the reasons that
follow, we affirm in part and reverse in part the appellate court’s judgment.
¶2 BACKGROUND
¶3 Defendant and codefendant, Michael Morgan, were charged with armed robbery with a
firearm in connection with the December 26, 2010, robbery of a Bakers Square restaurant at
7131 North Western Avenue in Chicago.1
¶4 At the grand jury proceedings on August 15, 2011, Detective Allen Lee testified that he
investigated the robbery at the restaurant. According to his testimony, defendant and
codefendant walked into the restaurant, and codefendant announced a robbery. The two men
exited after taking money from the safe. Detective Lee testified that codefendant had the
handgun that was used in the crime, that codefendant had time to dispose of the weapon before
he was apprehended by police, and that no weapon was recovered. Detective Lee also testified
that defendant was positively identified by one of the victims of the robbery and by Chicago
police officer Paul Cirrincione, who had been staking out the restaurant. The grand jury
returned a true bill for armed robbery with a firearm.
¶5 On February 7, 2011, defendant was arraigned. He was represented at the hearing by a
public defender. Defendant informed the court that he would not agree to continuances. The
public defender told the court that she would have to withdraw as counsel, as she was not ready
for trial. After the public defender sought a continuance to order discovery, defendant told the
court that he wanted to hire his own attorney, and the case was continued.
¶6 On February 24, 2011, defendant advised the court that he had not retained his own counsel
and indicated that he wished to proceed pro se. The trial court informed him that he had a right
to an attorney, but the court would not appoint counsel other than the one from the public
defender’s office. The court also informed defendant that he had the right to represent himself
but that if he did so he would be held to the same standards as an attorney. The court
admonished defendant that he was charged with armed robbery in two different cases and that
he could possibly be sentenced to consecutive sentences with a range of 21 to 45 years in
1
Codefendant Morgan is not a party to this appeal.
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prison for each conviction.2 After the State informed the court that defendant was eligible for a
maximum sentence of 60 years in prison because of his criminal background, the court
admonished defendant that he could be eligible for an extended-term sentence with a
maximum term of 60 years’ imprisonment. Defendant reiterated that he wanted to proceed
pro se.
¶7 On March 1, 2011, the trial court admonished defendant again pursuant to Rule 401(a). The
court informed defendant, inter alia, that based upon his criminal history and the use of a
handgun during the offense, he faced concurrent sentences of 21 to 60 years in prison on the
charged offenses. During questioning by the trial court, defendant represented that he had
completed two years of college and had experience with the criminal justice system. The trial
court ultimately allowed defendant to proceed pro se.
¶8 On July 17, 2012, defendant’s jury trial commenced.
¶9 Martin Perez, the manager of the Bakers Square restaurant at 7131 North Western Avenue,
testified that prior to the robbery, he had received a few e-mails from his employer that two
black men, both about six feet tall, had robbed another Bakers Square restaurant in the area. On
December 26, 2010, shortly before 11 p.m., Michael Morina, a waiter at the restaurant, told
Perez that someone wanted to place an order to go. Perez went to the front of the restaurant and
saw codefendant. He was wearing a grey hoodie and a white hat. Perez asked codefendant if he
could help him. Codefendant turned around and lifted his hoodie to reveal what “looked like a
black automatic, black gun” tucked into the waistband of his pants. Codefendant informed
him, “ ‘[t]his is a robbery; take me to the office.’ ” Perez testified that he was sure the gun was
an actual firearm. He thought it was a semiautomatic pistol and related that he had experience
firing such guns.
¶ 10 Perez further testified that he observed defendant enter the restaurant and approach the
counter. Defendant was wearing a black hoodie, blue jeans, and a black headband or hat. Perez
walked toward the office with codefendant behind him. While he was walking, Perez “felt
something sharp in [his] back,” which he thought was a gun. Once in the office, codefendant
ordered Perez to open the safe and give him the money inside. Perez complied and gave
codefendant a deposit bag marked “Bakers Square” as well as some loose bills. Footage from a
surveillance camera inside Perez’s office was shown to the jury. Perez identified defendant on
the video as the man who came into the office after codefendant and grabbed rolls of coins
from the safe.
¶ 11 Perez testified that after he gave codefendant the money, codefendant told him to gather all
of his employees. Perez asked Morina, Tsehayens Tsegaye, a waitress, and Leo Martinez, a
cook, to come toward the kitchen. Codefendant then told all of them to throw their cell phones
into a garbage can. He also demanded Morina’s tip money, and Morina complied. Codefendant
ordered all of the employees into the walk-in cooler and told them to wait there for five
minutes before exiting. Once inside, Perez pulled the alarm located inside. About 15 minutes
after the police arrived, Perez was asked to look through the blinds of the restaurant at two
suspects standing in the parking lot. Perez positively identified codefendant as the man with
the gun. He also positively identified defendant as the second offender.
2
Defendant was charged with the December 11, 2010, robbery of another Bakers Square restaurant
in Chicago, which is not at issue in this appeal.
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¶ 12 Tsegaye and Morina testified consistently with Perez. Tsegaye testified that when she
asked codefendant why he wanted her to throw her cell phone into the garbage, he told her she
was being robbed and lifted his shirt up to reveal the handle of a gun in his waistband. She
identified codefendant as the man who had the gun but did not view the second person at the
show-up because she did not see his face. Morina testified that he also observed the handle of
codefendant’s gun. He had seen guns before and believed it to be a “9 millimeter pistol.”
Morina identified codefendant at the show-up. He testified that during the robbery he also
observed another individual in a black hooded sweatshirt going toward the manager’s office.
¶ 13 Officer Cirrincione testified that on December 26, 2010, at 10:30 p.m., he and Officer
Tracy Walczak started conducting surveillance of the Bakers Square restaurant on Western
Avenue. They chose that time because a nearby Bakers Square had recently been robbed close
to closing. The officers had been informed that the other robbery had been carried out by two
black males in their late twenties or early thirties. The two men had been observed leaving that
location in a dark or black van with tinted windows.
¶ 14 Officer Cirrincione further testified that on December 26, 2010, he and his partner were in
an unmarked vehicle approximately 100 feet from one of the entrances to the restaurant.
Shortly before 11 p.m., he observed two men who fit the general description of the subjects
leave the restaurant and walk quickly south on Western Avenue. The officers followed the two
men by car as they walked east onto Estes Street. Officer Cirrincione asked them to approach
the car, and they fled on foot in different directions. The man he identified as defendant was
wearing blue jeans, a black hoodie, and something covering part of his head. He ran east on
Estes Street while the man he identified as codefendant ran southwest to a nearby mini-mall
parking lot. Officer Walczak got out of the car and chased codefendant on foot.
¶ 15 Officer Cirrincione testified that he drove the car around the alley east of the mini-mall in
an attempt to cut off codefendant. At the beginning of the chase, he briefly lost sight of
codefendant. Officer Cirrincione eventually got out of the car and chased codefendant on foot.
While in pursuit, he received a radio call that the Bakers Square restaurant had been robbed. He
continued the foot chase until codefendant slipped in front of a house at 2322 West Greenleaf
Street. He and other officers were able to detain codefendant there. A search of codefendant’s
person revealed a night deposit bag labeled “Bakers Square,” which contained a large bundle
of cash. They also discovered a separate large bundle of loose bills in his pocket. The police
searched the surrounding area, which was covered by a large amount of snow. They were
unable to locate a firearm.
¶ 16 Sergeant Ken Lewandowski testified that after codefendant was detained, he headed back
toward the Bakers Square restaurant. On Western Avenue, he noticed a black conversion van
with tinted windows, which was similar to the description of the van used in the earlier
robbery. He radioed for officers to stop the van, and several responded.
¶ 17 Sergeant Lewandowski further testified that officers brought defendant and codefendant to
the restaurant to conduct show-ups. Sergeant Lewandowski was inside with the witnesses, who
viewed the suspects through the blinds of the restaurant while the suspects were in the parking
lot. Perez, Morina, and Tsegaye each individually identified codefendant as one of the
offenders. Perez also positively identified defendant as the other offender. Morina and Tsegaye
did not view the show-up of defendant because they told police that they did not get a good
look at the second offender.
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¶ 18 Chicago police officer Eric Killion testified that defendant was the sole occupant of the van
that was curbed by police on Western Avenue. Defendant was wearing a black hooded
sweatshirt and jeans at the time he was apprehended. Police searched the van and found four
rolls of dimes and two rolls of quarters by the front seat.
¶ 19 Detective Lee testified that on December 27, 2010, at approximately 12:30 a.m., he went to
the Bakers Square to investigate the robbery. He viewed the surveillance video and
interviewed Perez. Detective Lee later viewed surveillance photos of the suspects involved in
the earlier robbery at the Bakers Square restaurant at Harlem and Foster Avenues in Chicago.
He testified that he inspected the black van defendant had been driving when stopped by police
in this case. He found a gray puffy vest on one of the passenger seats that was similar to the one
worn by one of the suspects in the surveillance photos of the earlier Bakers Square robbery.
¶ 20 On cross-examination, defendant asked Detective Lee whether he had testified before the
grand jury that a weapon had not been recovered. Detective Lee responded, “That is correct. At
that date it was not.” He further testified in response to a similar question by defendant, “[o]n
that date of the incident, no weapon was recovered. A gun was subsequently recovered. When
it was recovered, it was undetermined if it was involved in this case or not.” After being
allowed to review a Chicago police evidence report that contained his detective notes, he
further testified that on January 2, 2011, a black Crossman BB gun was observed by a citizen in
the street in the vicinity of where one of the suspects was running. Detective Lee requested the
BB gun be analyzed by the Illinois State Police for fingerprints in order to possibly link it with
one of the two offenders in this case. He testified that no suitable fingerprints were found on
the BB gun and that it could not be tied to this case.
¶ 21 Defendant showed Detective Lee photographs of a BB gun that was discovered near
Western Avenue and Estes Street. Defendant moved to enter the photos into evidence. The trial
court asked if he knew who took the photos and when they were taken. Defendant did not
know. Detective Lee stated that he had never seen the photos before. The trial court informed
defendant that he could not ask questions about them. Defendant then moved to dismiss the
case, asserting that “the State violated the Brady Rule by not submitting these pictures to me.”
¶ 22 A sidebar conference ensued. The assistant State’s Attorney told the court that he had not
seen the photos.3 He further related that he had tendered to defendant the Chicago police crime
scene processing report, which detailed that a BB gun had been discovered on January 2, 2011,
within the vicinity of the restaurant. The report also disclosed that the BB gun was submitted
for fingerprints but it had not yielded any suitable prints linking it to this case. Defendant
argued that in addition to a Brady violation, the indictment should be dismissed because
Detective Lee had provided inaccurate testimony before the grand jury when he testified that
no weapon had been recovered.
¶ 23 In response to the assistant State’s Attorney’s comment that there was no evidence that the
BB gun was used in the robbery, defendant was asked by the trial court to make an offer of
proof. Defendant responded that codefendant told Detective Lee that he committed the robbery
with a black BB gun. Defendant acknowledged that the statement was hearsay and that he
needed “the actual person” to testify. The State responded that if defendant was going to call
3
Defendant told the trial court that he received the photos from the Cook County State’s Attorney’s
office.
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codefendant “to talk about the BB gun, he can call him to see what he says, but he also gave a
statement that he committed this crime with this defendant so he is running a risk.” Defendant
responded that he had “no problem” with eliciting codefendant’s statement. The trial court
denied defendant’s motion to dismiss the indictment based on a Brady violation. Similarly, the
trial court denied the motion to dismiss the indictment based upon Detective Lee’s purportedly
false testimony before the grand jury.
¶ 24 Following the sidebar conference, defendant continued his cross-examination of Detective
Lee, who testified that he interviewed codefendant about the crime. When defendant asked him
about the conversation, the trial court sustained the State’s objection, stating, “[w]e are not
going into the statement, the nature of the conversation with [codefendant].”
¶ 25 The State also presented evidence concerning the December 11, 2010, Bakers Square
robbery. The jury was instructed to consider this other-crimes evidence related to defendant
only for the purpose of identification and modus operandi.
¶ 26 Defendant testified on his own behalf and called witnesses. He attempted to call
codefendant, but codefendant exercised his fifth amendment right not to testify.
¶ 27 Defendant testified that on December 26, 2010, he was driving south on Western Avenue
when police stopped his van around Western Avenue and Pratt Boulevard. The police took him
to a nearby Bakers Square restaurant for a show-up. He testified that in December 2010, he was
living in Atlanta, Georgia, but was staying with a friend at 6331 South Sangamon Street in
Chicago. He denied telling police that prior to being stopped he had driven to 7300 North Bell
Avenue to see a woman he had met online. He also denied committing either Bakers Square
robbery, knowing codefendant, or having rolls of dimes or quarters in the van that was stopped
by police.
¶ 28 Officer Walczak testified that she completed a case report that represented that three
complainants of the robbery and another witness positively identified defendant at the
show-up. On further questioning, however, she acknowledged that this was in error, as three
complainants identified codefendant but only one identified defendant.
¶ 29 Perez testified that he only saw the handle of the gun but that he was “100% sure” that the
weapon codefendant displayed was an “actual firearm.” Defendant showed him a group
exhibit of photos, which included a BB gun. Perez said that the object in one of the photos
looked like a gun. He testified that it was unclear, however, whether the gun looked like the
type of gun used in the robbery because the photo was blurry.
¶ 30 In rebuttal, Detective Lee testified that defendant told him that prior to being stopped in the
van, he had driven to the north side of the city to meet a woman he had contacted on a website.
He told Detective Lee that he drove to 7312 North Bell Avenue to see the woman he met online
but she had given him a “ ‘bogus address.’ ”
¶ 31 At the jury instruction conference, the State asked for an instruction on both armed robbery
and the lesser included offense of robbery because defendant had introduced evidence of the
BB gun that had been found a week after the robbery in the vicinity of the restaurant.
Defendant objected. The trial court explained that the instruction would be given, over his
objection, because he “introduced evidence of a gun and then argued that it was a BB gun.”
The trial court noted, however, that “the [BB] gun in question has not been tied to this case, it’s
not been identified by anyone as being in the Bakers Square in the possession of [codefendant]
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or anyone else; indeed it’s not tied to any person at all.” The jury was tendered verdict forms
for both robbery and armed robbery.
¶ 32 The jury found defendant guilty of armed robbery. At sentencing, the State informed the
trial court that defendant was eligible for a maximum sentence of 75 years but sought the
imposition of a 60-year sentence. 4 The trial court sentenced defendant to 50 years’
imprisonment.
¶ 33 On appeal, defendant raised several issues. He asserted that he was entitled to a new trial
because the trial court failed to properly admonish him under Rule 401(a) before allowing him
to waive his right to counsel. 2015 IL App (1st) 123496, ¶ 43. This argument was based on the
fact that he was incorrectly informed of the potential maximum sentence for the charged
offense. Id. ¶ 47. The appellate court recognized that defendant had forfeited this issue but held
that the trial court did not substantially comply with Rule 401(a) when it informed him that he
was eligible for an extended-term sentence up to 60 years in prison for the charged offense,
rather than the correct maximum sentence of 75 years. Id. ¶¶ 44, 47. Based upon this error, the
appellate court held that defendant’s waiver of counsel was unknowing and involuntary. Id.
¶ 47. The appellate court noted that defendant’s case did not fall within any exception where a
deficiency in the admonishment had been found not to prejudice a defendant. Id. ¶ 51.
¶ 34 The appellate court rejected the remaining issues raised by defendant and found that
because it was remanding on other grounds it need not determine whether the trial judge’s
failure to sua sponte provide the jury with the instruction on the definition of a firearm was
error. Id. ¶¶ 41, 70, 78, 83. The appellate court reversed defendant’s conviction and remanded
for further proceedings. Id. ¶ 86.
¶ 35 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1,
2015).
¶ 36 ANALYSIS
¶ 37 I. State’s Appeal
¶ 38 The State contends that the appellate court erred by concluding that the trial court’s
admonishments failed to substantially comply with Rule 401(a) on the basis that defendant was
misinformed as to the maximum potential sentence for armed robbery. The State asserts that
the record shows that defendant’s waiver of his right to counsel was made knowingly and
voluntarily and the sole admonishment he did not receive in no way prejudiced his rights.
¶ 39 The sixth amendment to the United States Constitution (U.S. Const., amend. VI)
guarantees an accused in a criminal proceeding both the right to the assistance of counsel and
the correlative right to proceed without counsel. Faretta v. California, 422 U.S. 806, 832-34
(1975). This court has long recognized that the right to self-representation is “as basic and
fundamental as [the] right to be represented by counsel.” (Internal quotation marks omitted.)
People v. Nelson, 47 Ill. 2d 570, 574 (1971). An accused may therefore waive his
constitutional right to counsel as long as the waiver is voluntary, knowing, and intelligent.
People v. Haynes, 174 Ill. 2d 204, 235 (1996) (citing Faretta, 422 U.S. at 835). “Although a
4
Based upon a prior armed robbery conviction for an offense committed by defendant within 10
years of the instant offense and excluding time spent in custody, the State asserted that he was eligible
for an extended-term sentence of 21 to 75 years, which included a 15-year firearm enhancement.
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court may consider the decision unwise, a defendant’s knowing and intelligent election to
represent himself must be honored out of ‘ “that respect for the individual which is the
lifeblood of the law.” ’ ” Id. (quoting People v. Silagy, 101 Ill. 2d 147, 180 (1984), quoting
Illinois v. Allen, 397 U.S. 337, 350-51 (1970)).
¶ 40 Illinois Supreme Court Rule 401(a) governs the trial court’s acceptance of an accused’s
waiver of counsel in Illinois. That rule states:
“Any waiver of counsel shall be in open court. The court shall not permit a waiver of
counsel by a person accused of an offense punishable by imprisonment without first, by
addressing the defendant personally in open court, informing him of and determining
that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when
applicable, the penalty to which the defendant may be subjected because of prior
convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for
him by the court.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984).
¶ 41 This court has recognized that compliance with Rule 401(a) is required for an effective
waiver of counsel. Haynes, 174 Ill. 2d at 236 (citing People v. Baker, 94 Ill. 2d 129, 137
(1983)). We have recognized for 30 years that “[s]trict technical compliance with Rule 401(a),
however, is not always required. Rather, substantial compliance will be sufficient to effectuate
a valid waiver if the record indicates that the waiver was made knowingly and voluntarily, and
the admonishment the defendant received did not prejudice his rights.” Id. (citing People v.
Coleman, 129 Ill. 2d 321, 333 (1989), and People v. Johnson, 119 Ill. 2d 119, 132 (1987)).
¶ 42 This court has considered the contours of substantial compliance with Rule 401(a) in
several cases. In Coleman, relied upon by the State, the defendant filed a motion prior to trial to
proceed pro se. Coleman, 129 Ill. 2d at 331. The trial court admonished the defendant of his
right to counsel and, as an indigent, his right to court-appointed counsel. Id. The trial court
further admonished him of the nature of the charges against him and informed him that the
maximum sentence prescribed by law was the death penalty and the minimum sentence
prescribed by law was a 20-year term of imprisonment. Id. In fact, the minimum sentence
possible was natural life imprisonment. Id. at 332.
¶ 43 The Coleman court held that the trial court had substantially complied with Rule 401(a) in
that it had admonished the defendant of his right to counsel, informed him of the nature of the
charges against him, and explained that the death penalty was the possible maximum sentence.
Id. at 333. In holding that the trial court substantially complied with Rule 401(a), we stated:
“Where a defendant knows the nature of the charges against him and understands that as a
result of those charges he may receive the death penalty, his knowledge and understanding that
he may be eligible to receive a lesser sentence pales in comparison.” Id. at 333-34. In Coleman,
the record established the defendant knew that the minimum sentence was natural life
imprisonment, offered legitimate reasons for waiving his right to counsel, and attempted to
manipulate the proceedings by repeatedly refusing the services of counsel. Id. at 340. We
therefore concluded that the defendant’s waiver of counsel, despite the incorrect
admonishment of the minimum sentence, was made knowingly and intelligently. Id.
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¶ 44 Similarly, in Johnson, the trial court incorrectly informed the defendant under Rule 401(a)
that the minimum sentence was a “number of years” when it was actually natural life in prison.
Johnson, 119 Ill. 2d at 129. This court held that the admonishment the defendant received
substantially complied with the rule despite this error. Id. at 132. We held that a review of the
entire record indicated that the defendant’s waiver of his right to counsel was made knowingly
and voluntarily and the sole admonishment that he did not receive in no way prejudiced his
rights. Id.
¶ 45 Thereafter, in Haynes, the defendant asserted that the admonishments were insufficient to
satisfy Rule 401(a) because the trial court neglected to include the minimum and maximum
sentences possible for a burglary charge. Haynes, 174 Ill. 2d at 242. This court held that the
information omitted from the admonishments did not invalidate the defendant’s waiver of
counsel. Id. at 243. As in Coleman and Johnson, the defendant was fully aware of the range of
sentences possible for the most serious charge against him, first degree murder, including the
possibility of the death sentence. Id. Given that, the importance of the defendant having
specific knowledge of the minimum and maximum sentences for the significantly less serious
charge of burglary paled in comparison. Id. Consequently, we held that the trial court’s
admonishments, despite the omission of the sentences for burglary, substantially complied
with Rule 401(a). Id.
¶ 46 This court further held in Haynes that the record as a whole clearly showed that the
defendant’s decision to waive counsel was made freely, knowingly, and intelligently. Id. The
defendant first expressed his desire to represent himself at the outset of the proceedings against
him and reiterated that desire in open court on several other occasions. Id. at 243-44. Further,
several examining doctors at the fitness hearing testified that, during their meetings with the
defendant, he was adamant in his desire to represent himself. Id. at 244. Consequently, we held
that there could be no doubt as to the defendant’s choice. Id. In addition, testimony at the
fitness hearing revealed that the defendant expressed an understanding of the nature of the
charges against him, the role an attorney would play, and the fact that the death penalty was a
possible sentence. Id. With regard to his right to appointed counsel, the defendant was
repeatedly advised of that right and, in fact, received the assistance of appointed counsel for a
period of time prior to trial. Id. Therefore, in Haynes, it was evident that the defendant
understood that he was entitled to legal representation. Id. We concluded that the defendant’s
waiver of counsel was therefore valid and that reversal for a new trial was not warranted. Id.
¶ 47 In contrast, in People v. Campbell, this court held there was no compliance, substantial or
otherwise, with Rule 401(a). People v. Campbell, 224 Ill. 2d 80, 84 (2006). There, the
defendant had been accused of an offense punishable by imprisonment. Id. The trial court,
however, allowed him to proceed pro se without making any attempt to inform him of the
nature of the charges, the range of possible penalties, or his right to counsel. Id. We therefore
concluded that his waiver of counsel was invalid and his conviction could not stand. Id. at 85.
¶ 48 In this case, the record reveals the following facts. Defendant was arraigned on February 7,
2011. He asserted at the hearing that he would not agree to continuances. The public defender
indicated that she would have to withdraw as counsel, as she was not ready for trial. The trial
court continued the case for defendant to seek counsel. At the next court date on February 24,
2011, before Judge Lauren Edidin, defendant did not have an attorney. When the trial court
asked defendant how long his family indicated it might take to find an attorney, defendant
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responded that he was “not giving up [his] right to speedy trial at all.” The trial court passed the
case to allow defendant to speak to a public defender.
¶ 49 Afterward, the following colloquy occurred:
“THE COURT: Mr. Wright, I gave you some documents and those
documents—the offenses were purported to occur on December 11th, 2010 and there is
actually some other charges as well, another case that occurred. Well, this says on
December 11th as well.
MR. CENAR [Assistant State’s Attorney]: One is December 26th and one—it’s the
26th on these.
THE COURT: What I gave you says the 26th.
THE DEFENDANT: It does.
THE COURT: Thank you. I have another copy that says the 11th. They were
actually both put in.
MR. CENAR: Very good.
THE COURT: So there are actually two cases and I don’t know if based on any
information if that would be—would that be possible consecutive sentences?
MR. CENAR: It’s possible.
THE COURT: It’s possible it could be consecutive which would be 2l and then
another additional 21 minimum or it could be the maximum 45 and an additional 45; do
you understand that?
THE DEFENDANT: I do.
THE COURT: Again, I am going to ask you, I have told you that you would be
entitled to have a public defender represent you, is that correct?
THE DEFENDANT: You have told me that.
THE COURT: And currently there’s no basis for me to appoint an attorney other
than a Public Defender; do you understand that?
THE DEFENDANT: Yes.
THE COURT: You do have the right to represent yourself and I have given you all
the bases and tried to give you as much information so that you could understand how
serious this case is and how it would be quite challenging for you to do this on your
own and if you are convicted after handling this case on your own and you choose to
appeal that conviction, you will not then be able to complain that you were not
competent to represent yourself; do you understand that?
THE DEFENDANT: I do.
THE COURT: Okay. Understanding that, I believe you are making a very big
mistake and I am afraid it may be something that you might regret. Mr. Wright, do you
still wish to represent yourself?
THE DEFENDANT: Yes, I do.”
¶ 50 Later, based on the State’s representation, the trial court clarified that defendant was
subject to possible extended-term consecutive sentences with up to 60 years in prison.
¶ 51 On March 1, 2011, Judge William O’Brien re-admonished defendant. The following
colloquy ensued:
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“THE COURT: This is Mr. Eugene Wright. Okay. Mr. Wright was up the last time
February the 24th. I was not here. Judge Edidin was in my stead. And at that time Mr.
Wright had indicated that he wished to represent himself. Is that correct, Mr. Wright?
THE DEFENDANT: It is.
THE COURT: All right. What I am going to do is, just so I am clear, I am going to
re-admonish you as to your pro se rights. Okay? Do you understand that you
have—you have indicated that you wish to represent yourself. Is that correct, Mr.
Wright?
THE DEFENDANT: It is.
THE COURT: All right. You understand that you have the right to be represented
by an attorney, that I would appoint the public defender to represent you. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. You said—you do not wish to be represented by the public
defender, is that correct?
THE DEFENDANT: The thing I want, as I am going to say, I am asking for a
speedy trial. And there is a conflict.
THE COURT: Well, that’s the situation, Mr. Wright. You know, the public
defender is a lawyer on it. And they have to answer ready and demand trial when they
are ready to go ahead and do it. And it’s hard to ask a lawyer to go ahead and do that
when they don’t even have the reports in front of them. That is why they don’t do that.
They have to, at least, wait until they get all the discovery and then they decide. That is
the reason that they do that. Otherwise, you are going to come back at them later on if
it’s not a good result and say, ‘Well, wait a minute. You were ineffective.’ ‘Well, I was
ineffective because I did not have all the reports.’ So, they are kind of in a catch 22. Do
you understand that’s why they do not do that right off the bat? But—and that’s why
they say, if you want to go ahead and do that, you are acting as your own lawyer. So,
that’s your choice.
THE DEFENDANT: It shouldn’t be part of the constitution then if it is a conflict.
THE COURT: Again, it’s your right, your right to represent yourself. You
understand that?
THE DEFENDANT: Yeah.
THE COURT: All right. So, you have indicated that you do not want the public
defender to represent you. Is that correct?
THE DEFENDANT: I am saying there is a conflict. And as long as there is a
conflict, it can’t get done.
THE COURT: This is the question.
THE DEFENDANT: I heard the question.
THE COURT: Well, it calls for yes or no.
THE DEFENDANT: As long as there is a conflict, it can’t get done.
THE COURT: So, you do not want the public defender to represent you?
THE DEFENDANT: As long as there is a conflict, it can’t get done.
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THE COURT: All right. Do you understand that there is no basis for me to appoint
an attorney other than the public defender? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: You understand you have the right to represent yourself. But before
I allow you to do so, I must inform you of certain things. First, you are charged with the
offense of—11 CR 927 is 1, 2, 3, 4—6 counts of armed robbery. So, it’s a Class X
offense. And the range is 6 to 30 years. And on Case Number 11 CR 928, you are
charged with—it looks like 4 counts of armed robbery. Those cases are not consecutive
sentencing. Is that correct, State?
MR. CENAR: Right, Judge.
THE COURT: It’s not a consecutive situation.
MR. CENAR: No.
THE COURT: It’s a concurrent situation.
MR. CENAR: Yes.
THE COURT: And, also, the range is 6 to 30. Are there any enhancements on these
cases as a result of Mr. Wright’s—any background?
MR. CENAR: Well, first of all, as charged, he is charged with armed robbery with
a firearm. And the minimum is 21 years. It’s 6 plus 15 per the statute. And based upon
his record, he is extendable.
THE COURT: So, he is looking at 21 through—
MR. CENAR: Through 60.
THE COURT: Through 60 is the range of sentencing that you face. It’s a 3-year
period of mandatory supervised release. Is it 50 percent time?
MR. CENAR: Yes, 50 percent time.
THE COURT: It’s not an 85 percent sentence. All right. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. How old are you, sir?
THE DEFENDANT: I am 37.
THE COURT: 37. How far did you get in school?
THE DEFENDANT: I have been in college.
THE COURT: How far in college?
THE DEFENDANT: Second year.
THE COURT: Sophomore. And have you ever had any legal training at all?
THE DEFENDANT: No.
THE COURT: Have you ever represented yourself in court before?
THE DEFENDANT: I did on appeal.
THE COURT: On appeal?
THE DEFENDANT: Yes.
THE COURT: And for what kind of a charge was that? Was it a felony or
misdemeanor?
THE DEFENDANT: A felony.
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THE COURT: How long ago was that?
THE DEFENDANT: It’s been about 10 years.
THE COURT: Okay. And so, you have done legal research, is that correct?
THE DEFENDANT: Yes.
THE COURT: Yes?
THE DEFENDANT: Yes.
THE COURT: Okay. Do you know anything about the rules of evidence that apply
in a criminal case?
THE DEFENDANT: There are certain things I know.
THE COURT: Okay. Have you ever selected a jury?
THE DEFENDANT: Yes.
THE COURT: You have selected a jury?
THE DEFENDANT: I have been in part of a jury, [Y]our Honor, selection I should
say.
THE COURT: As a defendant, have you ever selected a jury?
THE DEFENDANT: No.
THE COURT: No, okay. Do you understand that the prosecutors in this case have
tried many cases? They have gone to college and law school. They have passed the bar
exam and received training through the State’s Attorney’s Office. And they know the
rules of evidence. You understand that?
THE DEFENDANT: Yes.
THE COURT: You understand that you may be at a great disadvantage of trying
this case against them because you too will have to follow those rules of evidence and
just like any lawyer is expected to do? When you step into those shoes, you are going to
be held to the same standards that any lawyer would be held to. I cannot assist you. Do
you understand that?
THE DEFENDANT: Yes.
THE COURT: And once the trial begins, you will not be able to change your mind
and say, ‘Wait a minute. It doesn’t look like this is going too well. Time out. I want to
have a lawyer.’ No. Once the ship has sailed, the ship has sailed. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: By examining the charges, I will not appoint a stand-by counsel to
represent you. So, you won’t have a lawyer you can refer questions to in this case. The
charges are not that difficult to understand. And I have also considered the nature and
gravity of the charge, the expected factual and legal complexity of the proceedings and
your abilities and experience. And, so, like I said before, once you begin, you are on
your own. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And if you are convicted—if you are convicted—if you are
convicted, on appeal, you would you not be able to complain about your own
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competency to represent yourself. Do you understand me? That does not become an
issue for you.
THE DEFENDANT: Yes.
THE COURT: All right. Understanding that, I believe you are making a very big
mistake. But do you still wish to represent yourself?
THE DEFENDANT: Yes.”
¶ 52 After reviewing the above colloquy, the appellate court concluded that because the trial
judge informed defendant that the maximum possible sentence he faced was 60 years’
imprisonment, rather than the correct 75-year sentence, the admonishments failed to
substantially comply with Rule 401(a), amounting to plain error and warranting a new trial.
2015 IL App (1st) 123496, ¶¶ 44, 60. We reject that holding.
¶ 53 Similar to Coleman, Johnson, and Haynes, and in marked contrast to Campbell, under the
circumstances in this case, there was substantial compliance with Rule 401(a). After defendant
initially asserted that he desired to proceed pro se, the trial court provided him with a copy of
the charging instrument and admonished him that he was subject to a possible sentence of 21 to
60 years for the charged offenses and that he was entitled to have a public defender represent
him. At the next court date, defendant was again admonished by the trial court under Rule
401(a). The trial court informed him that he was charged with four counts of armed robbery.
He was told that he faced a possible sentencing range of 21 to 60 years for the offenses and that
the sentences would be served concurrently. The trial court also informed defendant of his
right to appointed counsel. The trial court further informed him that if he proceeded pro se, he
would be held to the same standards to which a lawyer would be held and, if convicted, he
could not complain about his own competency.
¶ 54 We do not diminish the importance of correct admonishments as to the actual maximum
sentence allowed. Each case, however, must be evaluated on its own particular set of facts.
Based upon the colloquy above, we conclude that the trial court substantially complied with
Rule 401(a) when it properly admonished defendant in all respects except when it informed
him that he faced a maximum sentence of 60 years in prison, when it was actually 75 years.
¶ 55 We find that defendant’s decision to waive counsel was made freely, knowingly, and
intelligently. The trial court elicited from defendant that he was 37 years old, had attended two
years of college, and had previously represented himself on appeal in a felony case. He
expressed his desire to represent himself at the beginning of this case and reiterated that desire
a number of times thereafter, even after being informed by the trial court of the potential
pitfalls of doing so. We also find compelling the basis given by defendant as to why he wished
to represent himself. He repeatedly indicated to the trial court that his reason for not accepting
the appointment of the public defender, and instead proceeding pro se, was due to speedy trial
concerns. Defendant’s articulated reason did not hinge on the maximum sentence allowed for
the charged offenses. Accordingly, the record establishes that defendant’s decision to waive
counsel was made knowingly and intelligently. See Coleman, 129 Ill. 2d at 336 (holding that
the record established that the defendant had specific, legitimate reasons for waiving his right
to counsel, including his dissatisfaction with counsel’s representation, which demonstrated
that he would have waived counsel regardless of the length of the minimum sentence
prescribed by law).
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¶ 56 Finally, there is no basis for us to conclude that defendant was prejudiced by the trial
court’s understatement of the potential maximum sentence. Defendant does not even make a
bare allegation that he would not have proceeded to represent himself if he had known the
possible maximum sentence he faced for armed robbery was actually 75 years, rather than 60
years. See id. at 334 (holding that the record contradicted the defendant’s assertion that if he
had known the actual minimum sentence of the offense was natural life in prison, he would not
have proceeded to represent himself). We also note that while defendant was eligible for a
75-year sentence, the State actually asked for the imposition of a 60-year sentence and the trial
court imposed a 50-year sentence.
¶ 57 For these reasons, we conclude that despite the trial court’s incorrect statement of the
maximum potential sentence, the trial court substantially complied with Rule 401(a), and
defendant made a voluntary, knowing, and intelligent waiver of counsel prior to being allowed
to proceed pro se.
¶ 58 II. Defendant’s Cross-Appeal
¶ 59 Grand Jury Proceeding
¶ 60 Defendant raises several arguments in his cross-appeal. First, he contends that the trial
court erred by denying his motion to dismiss the indictment based on his claim that the State
presented deceptive evidence to the grand jury through Detective Lee’s testimony. According
to defendant, if Detective Lee had testified that a BB gun was recovered by police in the
vicinity of the restaurant a week after the robbery, the grand jury may not have indicted him for
the crime of armed robbery with a firearm.
¶ 61 “Challenges to grand jury proceedings are limited. In general, a defendant may not
challenge the validity of an indictment returned by a legally constituted grand jury.” People v.
DiVincenzo, 183 Ill. 2d 239, 255 (1998), abrogated on other grounds by People v. McDonald,
2016 IL 118882. A defendant may challenge an indictment that is procured through
prosecutorial misconduct. Id. The prosecutorial misconduct, however, must rise to the level of
a deprivation of due process or a miscarriage of justice. Id. at 257.
¶ 62 The due process rights of a defendant may be violated if the State deliberately or
intentionally misleads the grand jury, uses known perjured or false testimony, or presents other
deceptive or inaccurate evidence. Id. To warrant dismissal of the indictment, a defendant must
show that the State prevented the grand jury from returning a meaningful indictment by
misleading or coercing it. Id. at 258.
¶ 63 In support of his argument, defendant relies upon People v. Oliver, 368 Ill. App. 3d 690
(2006). There, a police officer falsely testified before the grand jury that he personally
witnessed the defendant conducting hand-to-hand narcotics transactions. Id. at 691, 695. The
officer, however, had not personally observed the transactions but, instead, had relied on
another police officer’s report. Id. at 694. This testimony was found to be particularly
deceptive because it concealed its hearsay nature and also mischaracterized the other officer’s
observations of the transaction. Id. at 697. The appellate court concluded that without the
officer’s misleading testimony, the grand jury would not have found probable cause to indict
the defendant. Id. at 698-99. Consequently, the appellate court held that the defendant was
entitled to a dismissal of the indictment because he had shown that he suffered actual and
substantial prejudice due to the officer’s testimony. Id. at 699.
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¶ 64 Here, Detective Lee testified before the grand jury that defendant and codefendant walked
into the restaurant and codefendant announced a robbery. The two men exited after taking
money from the safe. Detective Lee testified that codefendant had the handgun that was used in
the crime. He also testified that defendant was positively identified by one of the victims of the
robbery and by Officer Cirrincione.
¶ 65 Defendant cites the following grand jury testimony by Detective Lee to support his claim
that the State procured, as in Oliver, inaccurate testimony that similarly warrants dismissal of
the indictment:
“Q. A handgun was used in this incident, was being held by Mr. Morgan during the
incident?
A. That’s correct.
Q. There was time though for Morgan to dispose of the weapon?
A. Yes.
Q. Because it hasn’t been recovered, has it?
A. No.”
¶ 66 Later, at trial, Detective Lee testified that a week after the robbery, a black Crossman BB
gun was observed by a citizen in the street in the vicinity of where one of the suspects was
running. Detective Lee requested that the BB gun be analyzed for fingerprints in order to
possibly link it with one of the two offenders in this case. He testified that no suitable
fingerprints were found on the BB gun and that it could not be tied to this case. The assistant
State’s Attorney also informed the trial court that he had tendered to defendant the Chicago
police crime scene processing report, which stated that a BB gun had been discovered on
January 2, 2011, within the vicinity of the restaurant. The report also disclosed that the BB gun
had been submitted for fingerprints but it had not yielded any suitable prints linking it to this
crime.
¶ 67 Simply put, there is no evidence that the BB gun recovered a week after the robbery was
used in the commission of this offense. As the trial and appellate courts below recognized,
unlike the officer in Oliver, Detective Lee’s grand jury testimony cited by defendant was not
false because no gun had been recovered and specifically linked to the robbery. Consequently,
defendant has not shown that the State prevented the grand jury from returning a meaningful
indictment by misleading or coercing it.
¶ 68 Sufficiency of the Evidence
¶ 69 Next, defendant contends that the State failed to prove that he committed robbery while
armed with a firearm because the victims only briefly saw the handle of the gun and there was
evidence that during the robbery codefendant actually possessed a BB gun.
¶ 70 “When presented with a challenge to the sufficiency of the State’s evidence, a reviewing
court must determine whether ‘ “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” ’ ” (Emphasis in original.) People v. Ross, 229 Ill. 2d 255, 272
(2008) (quoting People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Under this standard a reviewing court does not retry the defendant,
and the trier of fact remains responsible for making determinations regarding the credibility of
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witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn
from the evidence. Id. A conviction will not be set aside on appeal unless the evidence is so
unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of the
defendant’s guilt. Id.
¶ 71 Defendant was charged with armed robbery in that he, or someone he was accountable for,
“[took] property *** from the person or presence of another by the use of force or by
threatening imminent use of force” (720 ILCS 5/18-1(a) (West 2010)) and that he, or someone
he was accountable for, “carrie[d] on or about his *** person or [was] otherwise armed with a
firearm” (720 ILCS 5/18-2(a)(2) (West 2010)). For purposes of this statute, a firearm is
defined in section 1.1 of the Firearm Owners Identification Card Act (FOID Act), in pertinent
part, as “any device, by whatever name known, which is designed to expel a projectile or
projectiles by the action of an explosion, expansion of gas or escape of gas” but specifically
excluding, among other items, any pneumatic gun, spring gun, paint ball gun, or BB gun. 430
ILCS 65/1.1 (West 2010); 720 ILCS 5/2-7.5 (West 2010).
¶ 72 In People v. Washington, this court considered whether the State presented sufficient
evidence of a “dangerous weapon” to prove the defendant guilty of armed robbery, aggravated
kidnapping, and aggravated vehicular hijacking. People v. Washington, 2012 IL 107993, ¶ 1.
The defendant was charged under a previous version of the statute, and the State had to prove
that he committed the offenses “ ‘while armed with a dangerous weapon.’ ” Id. ¶ 9. The jury
found the defendant guilty of the charges. Id. ¶ 21. On appeal, he argued that the State failed to
prove beyond a reasonable doubt that he was armed with a dangerous weapon because no
weapon was recovered or introduced into evidence and because no testimony was provided as
to the size and weight or metallic nature of the weapon. Id. ¶ 24. The appellate court agreed
that the State did not present sufficient evidence that the defendant possessed a dangerous
weapon and reversed his conviction. Id. ¶ 25.
¶ 73 In reversing the appellate court in Washington, we relied on the victim’s testimony that the
defendant had pointed a gun at him, forced him into a truck, and then held a gun to his head
while he sat between the defendant and his accomplice in the front seat of a truck. Id. ¶ 35. The
victim also testified that the defendant pointed the gun at him when he was later forced into the
cargo area of the truck. Id. We found this evidence established that the victim, for several
minutes, had an unobstructed view of the weapon used during the commission of the crime and
that he testified that it was a gun. Id. We held that, given the victim’s “unequivocal testimony
and the circumstances under which he was able to view the gun, the jury could have reasonably
inferred that defendant possessed a real gun.” Id. ¶ 36.
¶ 74 In Ross, relied upon by defendant, we found the situation to be different. There, we also
considered whether the evidence was sufficient to prove that the gun used by the defendant was
a dangerous weapon. Ross, 229 Ill. 2d at 272. The arresting officer testified that, immediately
after the crime, he drove the victim back to where the crime had occurred and the victim
spotted the defendant, who was then apprehended by police. Id. at 258. The officer further
testified that as he approached the defendant, he saw him throw some items into a bush. Id. The
police retrieved the gun, which was not offered into evidence. Id. The officer, however,
described the gun as a “ ‘4.5 BB caliber gun with a three inch barrel.’ ” Id. The inventory sheet
in the record also listed the gun consistently with the officer’s testimony. Id. The victim
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described the gun as “ ‘a black, very portable gun,’ ” which was “ ‘small’ and ‘something you
can conceal.’ ” Id.
¶ 75 We acknowledged in Ross that “our cases conclude that the trier of fact may make an
inference of dangerousness based upon the evidence.” Id. at 276. This court concluded,
however, that the evidence presented at the defendant’s bench trial was insufficient to support
the trier of fact’s inference that the “gun” the defendant possessed when he committed the
robbery was a dangerous weapon. Id. at 277. That is because the evidence showed that the
“gun” was actually a small BB gun with a three-inch barrel. Id. Moreover, there was no
evidence that the gun was loaded, there was no evidence that it was brandished as a bludgeon,
and there was no evidence regarding its weight or composition. Id. Therefore, we found the
evidence precluded a finding that the “gun” used by the defendant was a dangerous weapon. Id.
¶ 76 Here, we are asked to assess the sufficiency of the evidence to prove that codefendant
possessed a firearm, as defined in the FOID Act, during the robbery. In finding that the
evidence proved that the defendant in Washington possessed “a dangerous weapon,” we relied
on the testimony of a single eyewitness and concluded that a rational trier of fact could infer
from the testimony that the defendant possessed a “real gun.” Our disposition is controlled by
the same rationale here. In contrast to Ross, Perez testified at trial that codefendant told him
“this is a robbery” and lifted his hoodie to reveal what “looked like a black automatic, black
gun.” He thought it was a semiautomatic5 and related that he had experience firing such guns.
He further testified that while walking toward his office he “felt something sharp in [his]
back,” which felt like the barrel of a gun. On direct questioning by defendant, Perez testified
that he was “100% sure” that the weapon codefendant displayed was an “actual firearm.”
Tsegaye also testified that codefendant told her she was being robbed and that she saw the
handle of a gun in the waistband of his pants. Additionally, Morina testified that he had seen
guns before and believed codefendant’s gun was a “9 millimeter pistol.”
¶ 77 Viewing this evidence in the light most favorable to the State, it was not so unreasonable,
improbable, or unsatisfactory that no rational trier of fact could have found that codefendant
was armed with a firearm during the commission of the robbery.
¶ 78 Exclusion of Codefendant’s Statement
¶ 79 Next, defendant asks us to consider whether the trial court erred by excluding
codefendant’s alleged statement to Detective Lee that codefendant committed the robbery with
a BB gun. He asserts that this hearsay statement was admissible under Illinois Rule of
Evidence 804(b)(3) (eff. Jan. 1, 2011) as a statement against penal interest, sufficiently
corroborated, and essential to his defense.
¶ 80 A hearsay exception applies to declarations against penal interest. People v. Tenney, 205
Ill. 2d 411, 433 (2002). Rule 804(b)(3) provides that a statement that tends to subject a
declarant to civil or criminal liability and that is corroborated by circumstances which clearly
indicate the trustworthiness of the statement is admissible. Ill. R. Evid. 804(b)(3) (eff. Jan. 1,
2011). This court, in examining Federal Rule of Evidence 804(b)(3), which is consistent with
5
Perez’s testimony referred to the gun as “an automatic” several times. Asked by the assistant
State’s Attorney, “And so you believed it was a semi-automatic pistol, correct?” Perez answered, “Yes,
I do believe that.”
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our rule, identified three conditions that must be satisfied before a statement will be admitted
under the rule: “(1) the declarant must be unavailable, (2) the declarant’s statement must have
been against his or her penal interest, and (3) corroborating circumstances must support the
trustworthiness of the statement.” People v. Rice, 166 Ill. 2d 35, 43 (1995).
¶ 81 Rule 804(a)(1) specifically provides that a witness’s exercise of a privilege satisfies the
requirement of unavailability. Ill. R. Evid. 804(a)(1) (eff. Jan. 1, 2011). Accordingly, a
declarant who properly asserts his fifth amendment right not to testify is unavailable for
purposes of the rule. Id.; see also People v. Caffey, 205 Ill. 2d 52, 101 (2001).
¶ 82 In this case, during a sidebar conference, which took place during the State’s case-in-chief,
defendant made an offer of proof that Detective Lee would testify that codefendant said he
committed the robbery with a black BB gun. Defendant, however, acknowledged that the
statement was hearsay and that he needed “the actual person” to testify. Following this sidebar,
defendant resumed his cross-examination of Detective Lee. He attempted to elicit
codefendant’s statement, and the State objected. The trial court sustained the objection, stating
that “[w]e are not going into the statement, the nature of the conversation with [codefendant].”
¶ 83 Subsequently, prior to defendant’s case-in-chief, the trial court conducted a hearing with
codefendant present, outside the presence of the jury. During the hearing, codefendant invoked
his fifth amendment right not to testify. Consequently, we agree with defendant that
codefendant was unavailable for purposes of Rule 804(b)(3), as he was not able to call him as a
witness to testify regarding his statement to Detective Lee.
¶ 84 Following this invocation of his fifth amendment right not to testify, however, there is no
indication that defendant attempted to call Detective Lee in order to elicit codefendant’s
statement. Similarly, there is no indication in the record that he requested any conference with
the trial court to seek the statement’s admission. The trial court was simply not asked to make
any further rulings on its admissibility. We recognize that his failure to pursue this evidence
may have occurred because defendant was not represented by counsel. Nevertheless, as the
trial court admonished him before trial, if he proceeded pro se, he is to be held to the same
standards as an attorney and cannot complain on appeal of his own lack of competency. We
conclude that the trial court did not err by not admitting codefendant’s statement to Detective
Lee because defendant did not seek its admission after codefendant invoked his fifth
amendment right not to testify.
¶ 85 Jury Instruction
¶ 86 Finally, defendant asks this court to consider whether the trial court erred by not sua sponte
instructing the jury on the definition of “firearm” and that a BB gun is excluded from the
definition. Defendant concedes that he forfeited this issue by not raising it in a posttrial motion
but asks that we review it for plain error.
¶ 87 We find no plain error because no error occurred. People v. Thompson, 238 Ill. 2d 598, 613
(2010) (“The first step of plain-error review is determining whether any error occurred.”).
¶ 88 “It is the burden of the party who desires a specific instruction to present it to the court and
request that it be given to the jury.” People v. Turner, 128 Ill. 2d 540, 562 (1989); Ill. S. Ct. R.
366(b)(2)(i) (eff. Feb. 1, 1994). Defendant did not tender the desired instruction but argues that
the trial court should have sua sponte provided the jury with an instruction defining firearm.
“Generally, the only situations where a fair trial requires the court to sua sponte offer an
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instruction include seeing that the jury is instructed on the elements of the crime charged, on
the presumption of innocence and on the question of burden of proof.” (Internal quotation
marks omitted.) Turner, 128 Ill. 2d at 562-63. Defendant asserts that, because evidence was
presented that the crime could have been committed with a BB gun, it was critical that the trial
court provide the jury with such an instruction on its own.6
¶ 89 We disagree and emphasize that defendant’s position is contrary to the one he took at trial.
At the jury instruction conference, defendant objected to instructing the jury that he could be
found guilty of the lesser offense of robbery. The court explained that the instruction was being
given, over his objection, because he “introduced evidence of a gun and then argued that it was
a BB gun.” Thereafter, defendant consistently objected to providing the jury a verdict form for
robbery and argued that he did not know codefendant and was not accountable for anything
that he did. During closing argument, defendant only briefly mentioned the gun when he
stated, “I showed you all some pictures of what looks to be a gun. You heard testimony that the
date of this crime that it was snow [sic] outside. This gun was found in the direction of travel
that the police say these two suspects ran.” Defendant then argued his theory to the jury that he
was innocently driving his van when he was stopped by police, that two other individuals
committed this crime, and that he was not guilty of any charges. He never argued, in the
alternative, that at most he was guilty only of robbery because codefendant was not armed with
a firearm during the offense. The State, however, informed the jury during its closing argument
that if they believed the gun recovered by police was a BB gun, rather than a “real firearm,”
they could find defendant guilty of the lesser offense of robbery. Despite this option, the jury
returned a verdict finding defendant guilty of armed robbery.
¶ 90 For these reasons, we reject defendant’s claim that the trial court erred in failing to
sua sponte provide a jury instruction defining the term “firearm.”
¶ 91 CONCLUSION
¶ 92 Accordingly, the judgment of the appellate court is affirmed in part and reversed in part.
The judgment of the circuit court is affirmed.
¶ 93 Appellate court judgment affirmed in part and reversed in part.
¶ 94 Circuit court judgment affirmed.
6
Effective January 24, 2014, the Illinois Pattern Jury Instructions were amended and reflect the
current version of the armed robbery statute (Illinois Pattern Jury Instructions, Criminal, Nos. 14.05 and
14.06 (approved Jan. 24, 2014) (hereinafter IPI Criminal Nos. 14.05 and 14.06)). The committee notes
to IPI Criminal Nos. 14.05 and 14.06 do not require that a definition for “firearm” be given when the
offense involves a firearm. There is a pattern instruction, however, defining “firearm” pursuant to
section 1.1 of the FOID Act (430 ILCS 65/1.1 (West 2010)). See IPI Criminal No. 18.35G.
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