People v. Wright ( 2015 )

2015 IL App (1st) 123496
No. 1-12-3496
Opinion filed May 21, 2015
Fourth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the
ILLINOIS, ) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
) No. 11 CR 13186
v. )
) Honorable
EUGENE WRIGHT, ) Timothy Chambers,
Defendant-Appellant. ) Judge, presiding.
)
______________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and
opinion.
OPINION
¶1 Defendant Eugene Wright was convicted of four counts of armed robbery while armed
with a firearm pursuant to section 18-2(a)(2) of the Criminal Code of 1961 (the Code) (720 ILCS
5/18-2(a)(2) (West 2010)), and sentenced to 50 years in prison. On appeal, defendant asserts: (1)
his due process rights were violated when the State secured his indictment for armed robbery
with misleading testimony; (2) the trial court failed to properly admonish him pursuant to Illinois
Supreme Court Rule 401(a) (eff. July 1, 1984); (3) the trial court improperly excluded
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codefendant’s statement that codefendant committed the crime with a BB gun; (4) the State
failed to prove him guilty beyond a reasonable doubt of armed robbery while armed with a
firearm; and (5) the trial court erred by failing to instruct the jury on the definition of a firearm.
We reverse defendant’s conviction, and remand his case for a new trial.
¶2 BACKGROUND
¶3 The State charged Eugene Wright and codefendant Michael Morgan, who is not a party
to this appeal, by indictment with four counts of armed robbery with a firearm in connection with
a December 26, 2010, robbery at a Baker’s Square restaurant located at 7131 North Western
Avenue in Chicago. Defendant was originally indicted under No. 11 CR 928 on January 10,
2011, when Officer Tracy Walczak provided inaccurate testimony that three witnesses identified
defendant at the show-up when only one witness identified him. As a result of the inaccurate
testimony, the State reindicted defendant under No. 11 CR 13186 and ultimately nol-prossed the
original indictment.
¶4 At the August 15, 2011, grand jury proceeding, Detective Allen Lee testified that he
investigated the Baker’s Square robbery. He stated that defendant and codefendant walked into
the restaurant and codefendant announced a robbery. After taking the money from the safe,
defendant and codefendant exited. Codefendant used a handgun during the robbery, but disposed
of the weapon before he was apprehended after leaving the restaurant. Detective Lee stated that a
weapon was never recovered. Detective Lee also testified that defendant was identified as a
perpetrator by one eyewitness and Officer 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. Initially, defendant was represented by a
public defender. However, after the public defender sought a continuance to order discovery,
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defendant said he wanted to hire his own attorney and the case was continued until February 24,
2011. On February 24, 2011 1, defendant indicated that he wished to proceed pro se. The trial
court informed defendant 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 admonished defendant
that he was charged with two different cases of armed robbery and that he could possibly be
sentenced to consecutive sentences with a range of 21 to 45 years in prison for each conviction.2
The State informed the court that defendant was eligible for a maximum sentence of 60 years in
prison because of his criminal background, and the court then admonished defendant that he
could be eligible for an extended-term sentence with a maximum range of 60 years in prison.
Defendant confirmed that he wanted to proceed pro se.
¶6 The court admonished defendant again on March 1, 2011. The court informed defendant
that he was not eligible for consecutive sentences, but based on his criminal history and the use
of a handgun during the offense, he faced a concurrent sentence of 21 to 60 years in prison.
Defendant stated that he had completed two years of college and had experience with the
criminal justice system, and the court allowed defendant to proceed pro se. The following
evidence was adduced at trial.
¶7 On December 26, 2010, shortly before 11 p.m., codefendant, wearing a gray hoodie, a
white hat, jeans, and gym shoes, entered the Baker's Square located at Touhy and Western and
asked server Michael Morina if they were still selling pies. Morina went to the back of the
restaurant to find the manager, Martin Perez, and told him that a customer wished to place a to-
1
Although Judge Timothy J. Chambers presided over the jury trial and sentencing in the proceedings, Judge Lauren
Edidin was the presiding judge during the February 24, 2011, hearing in which defendant was initially admonished
pursuant to Rule 401(a) and Judge William T. O'Brien presided over the March 1, 2011, proceeding in which
defendant was again admonished.
2
Defendant was also charged in a related case with six counts of armed robbery with a firearm of a Baker's Square
located at Foster and Harlem on December 11, 2010.
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go order. Perez testified that he went to the front counter and asked codefendant what he needed
and codefendant turned around and lifted his hoodie to reveal what Perez thought "looked like a
black automatic, black gun" tucked into his waistband, and stated "[t]his is a robbery; take me to
the office." Perez was sure codefendant's gun was an actual firearm as he had seen guns like that
in Mexico. Defendant, wearing a black hoodie, blue jeans, and a black headband, entered the
restaurant and approached the counter. Codefendant followed Perez into the office. Perez "felt
something sharp in [his] back" as he walked which he stated was the barrel of the gun. Perez had
previously received e-mails that two black men, about 6 feet tall, had robbed other Baker's
Square restaurants and he thought these men might be the ones about whom he had been warned.
¶8 In the office, codefendant ordered Perez to open the safe and give him the money inside.
Perez unlocked the safe and gave codefendant a deposit bag marked "Baker's Square" and some
loose bills from an extra cash drawer. After receiving the money, codefendant told Perez to
gather all his employees. Perez asked Martin, Morina, Tsehayens Tsegaye, a waitress, and Leo
Martinez, a cook, to come near the kitchen. Codefendant asked the employees to throw their cell
phones into a garbage can. He told Morina to stop looking at him and demanded his tip money.
After Morina gave codefendant his tip money, codefendant ordered all of the employees into the
walk-in cooler and told them to wait there for five minutes before exiting. Once codefendant and
defendant left, Perez pulled the alarm inside of the cooler. After two or three minutes, Perez and
Morina exited the cooler, leaving Tsegaye and Martinez inside. Perez then went to the office and
called 911.
¶9 Tsegaye and Morina testified in a manner consistent with Perez. Tsegaye added that
when she asked defendant why he wanted her to throw away her cell phone, codefendant
grabbed her arm, pulled up his shirt, showed her a gun in his waistband and told her that "you're
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being robbed." Tsegaye could only see the handle of the gun. Morina testified that he also
observed the handle of defendant's gun and believed it to be a "9 millimeter pistol."
¶ 10 Chicago police officers Paul Cirrincione, Tracy Walczak, and Sergeant Lewadowski were
assigned to conduct surveillance of the Baker's Square at Western and Touhy. The officers
received this assignment because the Baker's Square at Harlem and Foster in Chicago had been
previously robbed near closing time. The officers were told that the previous robbery had been
carried out by two black males in their late twenties and early thirties, one wearing a gray vest
and the other a dark hoodie, and that they used a black van with tinted windows as the getaway
car. Around 11 p.m., the officers observed two black males, fitting the description of the suspects
from the previous robbery, exit the restaurant. The officers later identified these men as
defendant and codefendant. After the men exited the Baker's Square, they looked around and
then walked "very fast" southbound on Western Avenue, and then turned eastbound onto Estes
Avenue. Based on these observations, the officers drove their car through the parking lot toward
defendant and codefendant and asked the men to come over. As the officers got out of their
squad car, the men looked at them and then fled.
¶ 11 Officer Walczak chased codefendant on foot while Officer Cirrincione drove the squad
car through an alley behind the mini-mall in an attempt to cut him off. Officer Cirrincione exited
his squad car and chased codefendant on foot. During the chase, a radio call came in that the
Baker's Square had been robbed. Officer Cirrincione alerted other officers in the area via radio
that he was chasing codefendant. Officer Cirrincione chased codefendant until codefendant
slipped in front of a house at 2322 West Greenleaf and Cirrincione grabbed him. The two men
wrestled until Sergeant Lewandowski and Officer Gremo arrived and helped place codefendant
into custody. Officer Gremo searched codefendant's pockets and recovered a deposit bag labeled
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"Baker's Square," containing cash, and a separate large bundle of loose cash. After a search of
the area where codefendant was detained, officers were unable to locate his gun, noting the large
amount of snow on the ground.
¶ 12 After codefendant was detained, Sergeant Lewandowski returned to the Baker's Square.
On the way there, he saw a large black conversion van with tinted windows traveling southbound
on Western Avenue matching the description of the van used in the previous Baker's Square
robbery. He radioed that a black van with tinted windows and a low-hanging muffler was
traveling south on Western, and that it was possibly involved in a robbery. The van was located
by Officer Eric Killion after he heard the call. Killion curbed the van, took defendant out of the
van and handcuffed him. Killion did a quick search of defendant and the van for weapons, but he
did not find any.
¶ 13 Officer Michael Chuchro also responded to the call and put defendant in his squad car.
Chuchro searched the van and did not see a weapon, but saw several rolls of coins on the floor
between the front seats. Officer Nester DeJesus stayed with the van while Chuchro and his
partner, Officer Accardo, took defendant to the Baker's Square parking lot for a show-up
identification. Officer Lewandowski was inside the restaurant with the witnesses for the show-
up. Lewandowski testified that Perez, Morina, and Tsegaye each individually identified
codefendant as one of the offenders. Although Perez identified defendant as the second offender,
Morina and Tsegaye did not view defendant because they did not get a good look at the second
offender. After the show-up, the men were arrested and taken to the 24th District police station.
Officer Chuchoro returned to where Nestler had secured the van and drove it to the police station
garage, where Officers Carden and McGovern searched the van and recovered four rolls of
dimes and two rolls of quarters next to the driver's seat and a gray vest from the backseat.
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¶ 14 Detective Lee, who provided testimony at the August 15, 2011, grand jury proceeding,
testified that he went to the Baker's Square at about 12:30 a.m. on December 27, 2010, to
investigate the robbery. He interviewed Perez and watched the Baker's Square surveillance
video. Detective Lee went to the 24th District station and viewed surveillance photographs of the
Harlem and Foster Baker's Square robbery. He inspected the black van and saw a gray vest in the
backseat that looked similar to a vest worn by one of the suspects in the Harlem and Foster
Baker's Square robbery. Detective Lee had codefendant put the vest on and took a picture of him,
which was introduced into evidence.
¶ 15 On cross-examination, defendant asked Detective Lee about his grand jury testimony.
Specifically, defendant asked whether he told the assistant State's Attorney that a weapon had
never been recovered in connection with the robbery. Detective Lee testified that a weapon had
not been recovered "on that date of the incident." However, he noted that on January 2, 2011, a
black Crossman BB gun was observed by a citizen lying in the street in the vicinity where one of
the offenders was running. On January 15, 2011, Detective Lee submitted an evidence report
requesting to have the gun tested for fingerprints to link the weapon with one of the two
offenders. Defendant asked Detective Lee about the photographs contained within the evidence
technician's report that showed where the BB gun was recovered and moved to enter them into
evidence. The court asked defendant if he knew who took the photographs and when they were
taken. Defendant said he did not know, and Detective Lee said he had never seen the
photographs before. After the court told defendant that he could not ask about the photographs,
defendant moved that his case be dismissed on the grounds that "the State violated the Brady
Rule by not submitting these pictures to me."
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¶ 16 At a sidebar conference, the assistant State's Attorney informed the court that he had not
seen the photographs in question, but admitted that he had tendered the reports regarding the BB
gun being discovered on January 2, 2011. The assistant State's Attorney explained that the gun
was submitted for fingerprints, but it had not yielded any suitable fingerprints for comparison to
codefendant. Defendant argued that in addition to a Brady violation, Detective Lee had deceived
the grand jury when he testified that no weapon was recovered when he knew that the BB gun
had been found. In response to the assistant State's Attorney's comment that there was no proof
that the BB gun was used in the robbery, defendant made an offer of proof that Detective Lee
would testify that codefendant said he committed this crime with a black BB gun. However,
defendant acknowledged that the statement was hearsay, and he needed "the actual person" to
testify. The State asserted that if defendant tried to elicit codefendant's statement, it would elicit
that codefendant also said he committed this crime with defendant. Defendant responded that he
had no problem with eliciting codefendant's full statement. The trial court denied defendant's
motion to dismiss the indictment based on a Brady violation.
¶ 17 After the motion was denied, the following exchange took place:
"THE DEFENDANT: Then I'm asking a motion in alignment to dismiss charges because
the State knowingly deceived the Grand Jury when Detective Lee was asked was a weapon ever
recovered.
THE COURT: Well, as I heard Detective Lee, he was asked if a weapon was recovered
that night. So based on that, I would deny the motion.
THE DEFENDANT: I'm reading from the transcript. The statement was never from that
night. The statement---
THE COURT: That's how he heard it.
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THE DEFENDANT: That's amazing.
THE COURT: Well, let's go back in court. The motions to dismiss are denied. It was not
a Brady violation."
¶ 18 After the sidebar, defendant continued with his cross-examination of Detective Lee:
"THE DEFENDANT: Do you remember doing an interview with [codefendant]?
DETECTIVE LEE: I did, yes.
THE DEFENDANT: And do you remember---
ASSISTANT STATE'S ATTORNEY: I'm going to object, Judge. This is the
codefendant.
THE COURT: I will sustain it. We are not going to go into the statement, the nature of
the conversation with [codefendant]."
¶ 19 The State then presented testimony relating to the December 11, 2010, Baker's Square
robbery at Foster and Harlem, and the jury was instructed to consider the other crimes evidence
only for identity and modus operandi.
¶ 20 Following the State's presentation of testimony, the court held a hearing on the record
outside of the presence of the jury. During the hearing, the court placed codefendant under oath
and he invoked his right not to testify pursuant to the fifth amendment. Defendant then told the
court: "I would still like to call him and allow the jury to hear him plead--I still have questions
and he can plead out on it." The State objected. The court sustained the objection and stated that
it would not call codefendant in the presence of the jury "solely for the purpose of asserting his
Fifth Amendment privilege." The State rested in the presence of the jury, and defendant
proceeded with his case-in-chief.
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¶ 21 Defendant called Perez, the manager of the Baker's Square on Touhy and Western, to
testify. Perez maintained that although he could only see the handle of the gun, he was "100%
sure" codefendant's gun was "an actual firearm." Defendant then showed Perez a photo of the BB
gun recovered near the Baker’s Square a week after the robbery and asked him if the BB gun
looked like the gun used in the robbery, and Perez stated that "[he] couldn't tell."
¶ 22 Defendant testified on his own behalf that on December 26, 2011, he was driving south
on Western when police stopped his van near Western and Pratt. He was taken out of his car and
searched, and then taken to Baker's Square for a show-up identification. Defendant admitted that
he was convicted of robbery in 2000 and sentenced to nine years in prison. He stated that in
December 2010, he was living in Atlanta, Georgia, but was staying with a friend at 6331 South
Sangamon in Chicago. Before he was stopped by police, he had dropped his friend off at Howard
and Clark on the northside of Chicago. Defendant denied waiving his Miranda rights. He also
denied telling an assistant State's Attorney and a detective that he had gone to 7300 North Bell
Avenue to meet a woman he met on an adult website but she was not at home. Further, defendant
denied that he knew codefendant. He stated that he did not have a roll of quarters or dimes in the
van.
¶ 23 The State called Detective Lee and Assistant State's Attorney Sean O'Callaghan in
rebuttal. Detective Lee testified that on December 27, 2011, at 2:40 a.m., he interviewed
defendant at a police station after defendant waived his Miranda rights. Defendant told him that,
prior to being stopped, he went to the 7300 block of North Bell to meet a girl that he met on an
adult sex website, but the girl had given him a "bogus" address. Defendant did not say that he
dropped a woman off at Howard and Clark.
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¶ 24 Assistant State's Attorney O'Callaghan testified that he was working in the felony review
unit on December 27, 2011, and that in the early morning hours he went to the police station in
regards to defendant's armed robbery. At approximately 5 a.m., he and Detective Lee read
defendant his Miranda rights and interviewed him. Defendant also told him that he was stopped
by police after he went to visit a woman named Lakesha, who lived on the 7300 block of North
Bell, but no one was home.
¶ 25 Following arguments, the jury was tendered verdict forms on armed robbery and
robbery. 3 The jury found defendant guilty of armed robbery. Defendant stated that he wished to
represent himself for his possttrial proceedings and sentencing, and then filed a number of pro se
posttrial motions. When the trial court asked defendant if he wished to address his motion for a
new trial, defendant responded, "I'll deal with it on the appellate level." The court denied all of
defendant's posttrial motions.
¶ 26 During defendant's sentencing hearing, the State presented aggravating evidence that
defendant committed an armed robbery of a Baker's Square in Alsip, Illinois, on December 20,
2010. The State also presented evidence that on September 17, 2010, Officer Brandon Smith
stopped defendant in a car after a traffic violation. According to Officer Smith, defendant refused
to stop his vehicle and his passenger jumped out of the car and fled. Defendant and the passenger
were eventually apprehended, and his passenger had a loaded AK-47 assault rifle. Defendant told
Officer Smith that he did not know the passenger had a gun. Defendant then stated that if he
himself had had a gun, Officer Smith would have ended up like the officer on 75th Street.
3
At the jury instruction conference, the State noted defendant's introduction of the BB gun and asked for an
instruction on the lesser included offense of robbery. Prior to agreeing to the instruction, the court explicitly noted
that "the gun in question has not been tied to this case, it's not been identified by anyone as being in the Baker's
Square in the possession of [codefendant] or anyone else; indeed it's not tied to any person at all."
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Officer Smith informed the court that a week prior to the traffic stop an officer had been shot on
75th Street.
¶ 27 The State also presented certified copies of defendant's three prior convictions for
robbery, including an armed robbery in 1994, for which defendant was sentenced to nine years in
prison. Because the 1994 conviction was within 10 years of the instant offense, excluding time
spent in custody, the State asserted that defendant was eligible for an extended-term sentence of
up to 75 years in prison. The trial court sentenced defendant to an extended term of 50 years in
prison. Defendant appealed.
¶ 28 ANALYSIS
¶ 29 Grand Jury Proceedings
¶ 30 We first address defendant's argument concerning the validity of his indictment.
Defendant contends that the indictment charging him with armed robbery with a firearm was
based on misleading testimony, and therefore, the trial court erred by denying his motion to
dismiss the indictment. According to defendant, Detective Lee provided inaccurate testimony
that no weapon was recovered in connection with this crime, when in actuality a BB gun was
later recovered in the area where the codefendant fled the scene. Defendant maintains that had
Detective Lee informed the grand jury about the BB gun, "there is a good chance the grand
jurors would have not found the element of a firearm and not have indicted defendant on armed
robbery with a firearm" because a BB gun is excluded from the definition of firearm for purposes
of the Code. 720 ILCS 5/2-7.5 (West 2010); see also 430 ILCS 65/1.1 (West 2010) (definition of
"firearm" in the Firearm Owners Identification Card Act).
¶ 31 The State contends that defendant forfeited this issue because he failed to preserve the
issue in his posttrial motion. We disagree. To preserve an alleged error for appeal, a defendant
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must both object at trial and include the alleged error in a written posttrial motion. People v.
Colyar, 2013 IL 111835, ¶ 27. The failure to object at trial or file a posttrial motion alleging an
issue constitutes forfeiture of that issue on review. People v. Piatkowski, 225 Ill. 2d 551, 564
(2007). It is required only that specific issues be raised at trial and in a posttrial motion in order
to give the trial court an opportunity to correct the error claimed. See People v. Hope, 184 Ill. 2d
39, 45 (1998).
¶ 32 We find that defendant properly preserved this issue for review. First, during trial
defendant made an oral motion to dismiss the indictment on the grounds that Detective Lee
provided deceptive testimony to the grand jury. Second, the State is correct that defendant’s
posttrial motion for a new trial alleged that the trial court erred when it denied a "pretrial motion
to dismiss the indictment," when in fact the motion to dismiss the indictment based on Detective
Lee's testimony was made mid-trial. However, we note that in a different section of the posttrial
motion for a new trial, defendant specifically alleged that "the Court erred when it sustained
objections made by the state to questions asked of witnesses by the Defendant, if the weapon
used could have been fake, did detective Lee have knowledge of a b.b. [sic] gun being found
before he went to the grand jury in August 2011." Therefore, because defendant specifically
referenced the claim in his motion for a new trial, we find that the issue was adequately
preserved on appeal. See People v. Heider, 231 Ill. 2d 1, 18 (2008) ("where the trial court clearly
had an opportunity to review the same essential claim that was later raised on appeal, *** there
was no forfeiture").
¶ 33 A grand jury "determines whether probable cause exists that an individual has committed
a crime, thus warranting a trial." People v. DiVincenzo, 183 Ill. 2d 239, 254 (1998). The State
advises the grand jury by informing it of the proposed charges and pertinent law. Id. Challenges
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to grand jury proceedings are limited, and a defendant may not challenge the validity of an
indictment returned by a legally constituted grand jury or seek to challenge the sufficiency of the
evidence if some evidence was presented. People v. Reimer, 2012 IL App (1st) 101253, ¶ 26. "In
reviewing challenges to an indictment, courts will generally limit consideration to the transcript
of the grand jury proceedings." DiVincenzo, 183 Ill. 2d at 255 (citing People v. Linzy, 78 Ill. 2d
106, 109 (1979)). Still, a trial court may dismiss an indictment if the defendant establishes that
he suffered a prejudicial denial of due process. People v. Oliver, 368 Ill. App. 3d 690, 694
(2006). The due process rights of a defendant may be violated if the prosecutor deliberately or
intentionally misleads the grand jury, uses known perjured or false testimony, or presents other
deceptive or inaccurate evidence. DiVincenzo, 183 Ill. 2d at 257. The State’s presentation of
deceptive evidence may violate due process "regardless whether the deception was intentional."
Oliver, 368 Ill. App. 3d at 696.
¶ 34 Furthermore, the defendant must show that the denial of due process is "unequivocally
clear" and resulted in prejudice that is "actual and substantial." Id. at 694-95. A due process
violation is actually and substantially prejudicial only if without it the grand jury would not have
indicted the defendant. Id. at 696-97. Where, as here, the facts about what transpired at the grand
jury proceeding are undisputed, we apply a de novo standard of review. People v. Legore, 2013
IL App (2d) 111038, ¶ 23.
¶ 35 We note that during trial, defendant moved to dismiss the indictment on the grounds that
Detective Lee testified falsely to the grand jury by saying that no weapon was recovered.
However, the trial court denied the motion, stating that Detective Lee interpreted the question as
whether a weapon was found the night of the incident. We acknowledge that it is unclear from
the record whether the court solely relied on the transcripts of the grand jury proceeding;
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however, we reiterate that the courts' role in reviewing grand jury proceedings is extremely
limited. Courts may dismiss an indictment that is based solely on perjured or otherwise
incompetent evidence, but they are not to scrutinize the proceedings to evaluate the weight and
quality of the evidence. Therefore, we presume that the trial court's decision not to inquire
further into Detective Lee's grand jury statement was informed by the limitation. We emphasize
that this court is similarly limited and thus our review of whether the trial court erred in
dismissing the indictment is confined to the transcripts of the grand jury proceedings. See
DiVincenzo, 183 Ill. 2d at 255. We now turn to the merits of this claim.
¶ 36 Defendant relies on People v. Oliver, 368 Ill. App. 3d 690 (2006), to support his
contention that the trial court erred by denying his motion to dismiss the indictment. In Oliver,
the defendant was indicted on two counts of unlawful possession of a controlled substance with
the intent to deliver and one count of unlawful possession. Id. at 690. Based on the false and
misleading testimony of a detective before the grand juries, the trial court dismissed two counts
of the indictment (the possession with intent to deliver counts), and the State appealed. Id. at
690-91. The detective was the sole witness to testify during the two grand jury proceedings. Id.
During the first grand jury proceeding, the detective explicitly stated that he observed the events,
which were hand-to-hand transactions between the defendant and other individuals at an
apartment that was under police surveillance because of prior drug activity. Id. at 691, 695. The
detective did not observe the events, but relied on the report of another police officer eyewitness.
Id. at 694. During the second grand jury proceeding, though the detective did not explicitly say
so, he testified as if he were conveying his own personal observations rather than those of the
actual eyewitness. Id. at 695. Based on this testimony, the court concluded that the State
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presented the grand juries with deceptive or inaccurate evidence and, as a result, denied the
defendant due process. Id.
¶ 37 The Oliver court then focused its review on the issue of prejudice, noting that a due
process violation was actually and substantially prejudicial only if without it the grand jury
would not have indicted the defendant. Id. at 696-97. The court noted that if the only defect in
the detective’s testimony was that its hearsay nature was concealed, the defendant would not be
able to show actual and substantial prejudice. Id. at 697. However, the court believed that the
detective’s testimony was "doubly" deceptive because it went beyond the hearsay issue in that it
mischaracterized the observations of the actual police eyewitness so as to establish probable
cause where none existed. Id. First, the detective testified that the defendant’s hand-to-hand
transactions would lead him to believe that the defendant intended to deliver the cocaine that he
was found later to possess, despite the fact the officer actually witnessing the exchange "never
saw what was exchanged in those transactions and thus had no basis to draw that inference." Id.
Second, the detective’s testimony that the defendant engaged in several transactions was
misleading, where the defendant only engaged in two transactions. Id. Finally, the amount of
cocaine found on the defendant did not support a reasonable inference that he had the intent to
deliver, despite the detective’s testimony that the amount of cocaine would lead him to believe
that the defendant intended to deliver the cocaine. Id. at 698. The Oliver court held that but for
the detective’s mischaracterization of the eyewitness' observations, the grand juries could not
have found probable cause to indict the defendant for unlawful possession of a controlled
substance with the intent to deliver. Id. at 698-99. Therefore, the due process violation was
actually and substantially prejudicial. Id. at 699.
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¶ 38 In this case, we do not find that Detective Lee's grand jury testimony amounts to an
"unequivocally clear" denial of defendant’s due process rights such as the case in Oliver. During
the second grand jury proceeding, Detective Lee gave testimony that defendant and codefendant
robbed a Baker's Square restaurant at 7131 North Western Avenue. After taking the money from
the safe, the men left the store. Codefendant used a handgun during the robbery, but disposed of
the weapon before he was apprehended after leaving the restaurant. Detective Lee stated that the
weapon was never recovered. However, at trial he stated that a week later a BB gun was
recovered in the area where defendant fled. Because there is no evidence that the BB gun was
ever connected to the case, Detective Lee provided, at best, incomplete testimony to the grand
jury that no gun was recovered in connection with the crime. Thus, we do not find that Detective
Lee’s grand jury testimony rose to the level of a due process violation as, factually, no gun had
been recovered and specifically linked to the robbery.
¶ 39 Although defendant argues that there is a "good chance" that the outcome of the
proceedings would have been different had Detective Lee presented testimony of the BB gun, we
cannot say with any certainty that the omitted testimony actually and substantially prejudiced
defendant. See Oliver, 368 Ill. App. 3d at 698-99. Specifically, defendant fails to show that the
grand jury would not have otherwise found probable cause to indict defendant for armed robbery
had Detective Lee testified that a BB gun was recovered a week later in the vicinity that the
codefendant fled. Defendant concedes that the BB gun was submitted for fingerprints, but it had
not yielded any suitable fingerprints for analysis. Therefore, had Detective Lee mentioned the
BB gun during the proceeding, he would have also been obliged to inform the grand jury that the
gun was submitted for fingerprint analysis, but there was no evidence linking the BB gun to
either defendant or codefendant.
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¶ 40 Furthermore, we find that Detective Lee’s testimony was otherwise sufficient to secure
an indictment for armed robbery. As our supreme court has previously held, an indictment will
withstand scrutiny if the transcript of the grand jury proceedings reveals that "some evidence
relative to the charge" was presented to the grand jury. People v. Rodgers, 92 Ill. 2d 283, 290
(1982); see also People v. Whitlow, 89 Ill. 2d 322, 331 (1982) (holding that if there is some
evidence presented to the grand jury from which defendant's illegal conduct can be inferred, the
reviewing court will not inquire into the "adequacy of the evidence"). "Some evidence" does not
mean that the State must present the grand jury with evidence as to each element of the offense,
but rather means that the evidence submitted must be such that it "tends to connect the accused to
the offense charged." Rodgers, 92 Ill. 2d at 290. This evidence which connects may be any direct
or circumstantial evidence from which an inference of criminal conduct can be derived. People v.
Williams, 383 Ill. App. 3d 596, 631 (2008) (quoting People v. Edwards, 243 Ill. App. 3d 280,
285 (1993)).
¶ 41 In this case, applying the applicable standard of proof enunciated by our supreme court,
we find that there was some evidence presented to the grand jury which tended to connect
defendant to the crime of armed robbery with a firearm with which he was charged. A review of
the proceedings' transcript reveals that Detective Lee testified that he investigated the Baker’s
Square robbery. Based on his investigation, codefendant used a handgun during the incident, but
had time to dispose of the weapon prior to being apprehended. Detective Lee also testified that
an eyewitnesses and a police officer, who was staking out the restaurant, positively identified
defendant as the second perpetrator in the robbery. Thus, we find Detective Lee’s testimony
sufficient evidence for the grand jury to infer that a firearm was used in the commission of the
robbery and the trial court did not err when it denied defendant’s motion to dismiss the
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indictment for armed robbery. See Rodgers, 92 Ill. 2d at 290. Finding a valid indictment, we now
review defendant's other claims.
¶ 42 Rule 401(a) Admonishment
¶ 43 Defendant's second contention is that his conviction should be reversed and the cause
remanded for a new trial because the trial court did not properly admonish him pursuant to
Supreme Court Rule 401(a) before it allowed him to waive his right to counsel.
¶ 44 Initially, we note that defendant failed to object to the comments at trial or in a posttrial
motion, and therefore the issue was forfeited and cannot be considered on appeal unless it was
plain error. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain error doctrine bypasses forfeiture
principles and allows a reviewing court to consider unpreserved error when: (1) the evidence is
close, regardless of the seriousness of the error; or (2) the error is serious, regardless of the
closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 187 (2005). We have repeatedly
held that the trial court's failure to comply with Rule 401(a) denies a defendant his or her
fundamental right to be represented by counsel and, therefore, is reviewable as plain error under
the second prong of the doctrine. People v. LeFlore, 2013 IL App (2d) 100659, ¶ 51; People v.
Black, 2011 IL App (5th) 080089, ¶ 23. Therefore, although defendant did not properly preserve
this issue (People v. Enoch, 122 Ill. 2d 176, 186 (1988)), we consider his claimed error under the
plain error doctrine.
¶ 45 The sixth amendment of the United States Constitution guarantees a defendant the right
to effective assistance of counsel at all critical stages of criminal proceedings. U.S. Const.,
amends. VI, XIV; People v. Hughes, 2012 IL 112817, ¶ 44. In Illinois, when a criminal
defendant wishes to waive his right to counsel, a trial court may only permit a waiver after it first
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No. 1-12-3496
admonishes the defendant in accordance with Rule 401(a). People v. Campbell, 224 Ill. 2d 80, 84
(2006). Rule 401(a) provides:
"(a) Waiver of Counsel. 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).
¶ 46 "Strict, technical compliance with Rule 401(a) *** 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." (Emphasis added.) People v. Haynes, 174 Ill. 2d 204, 236 (1996). In
limited circumstances, this court has found that a deficiency in the admonishments does not
prejudice the defendant in instances where: (1) the defendant already knows of the omitted
information or (2) because the defendant's degree of legal sophistication makes evident his or her
awareness of the omitted information. LeFlore, 2013 IL App (2d) 100659, ¶ 52 (quoting People
v. Gilkey, 263 Ill. App. 3d 706, 711 (1994)). "The rule provides a procedure which eliminates
any doubt that a defendant understands the nature and consequences of the charge against him
before a court accepts his waiver of the right to counsel and precludes him from waiving the
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No. 1-12-3496
assistance of counsel without full knowledge and understanding." People v. Johnson, 123 Ill.
App. 3d 128, 130 (1984) (citing People v. Derra, 92 Ill. App. 3d 1106, 1109 (1981)). Whether
the trial court's admonishments complied with Rule 401(a) is a question of law, which we review
de novo. People v. Bahrs, 2013 IL App (4th) 110903, ¶ 13.
¶ 47 Here, we find that the trial court’s failure to substantially comply with Rule 401(a)
rendered defendant’s waiver of his right to counsel unknowing and involuntary. Defendant was
first admonished that he was eligible for consecutive sentences with a range of 21 to 45 years in
prison. Then in the same proceeding, after prompting from the State, the court admonished
defendant that he was eligible for an extended-term sentence with a maximum range of 60 years
in prison. The court admonished defendant again during a later proceeding and informed
defendant that he was not eligible for consecutive sentences, but based on his criminal history
and the fact that he used a handgun during the robbery, he faced a concurrent sentence of 21 to
60 years in prison. However, during defendant's sentencing hearing, the State informed the court
that defendant’s criminal history made him eligible for a maximum sentence of 75 years in
prison.
¶ 48 Rule 401(a) explicitly requires the court to "inform[] [defendant] of and determin[e] that
he understands" his maximum sentence prior to accepting his waiver of counsel. Ill. S. Ct. R.
401(a). Thus, based on the clear and unambiguous language of Rule 401(a), the trial court’s
incorrect admonishments regarding defendant’s maximum sentence compels the conclusion that
defendant did not make a knowing and voluntary waiver of his right to counsel. Therefore, we
find that defendant’s waiver was invalid. See Bahrs, 2013 IL App (4th) 110903, ¶¶ 14-15;
People v. Koch, 232 Ill. App. 3d 923, 927-28 (1992).
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¶ 49 The State, however, contends that although the trial court misstated defendant's
maximum sentence, the court’s actions did not prejudice defendant because he was ultimately
sentenced to 50 years, well below the 60 year sentence that the trial court informed him. We
disagree. Our supreme court has made it abundantly clear that the purpose of the Rule 401(a)
admonishment is to ensure that a waiver of counsel is knowingly and voluntarily made. See
Haynes, 174 Ill. 2d at 241; People v. Coleman, 129 Ill. 2d 321, 333 (1989); People v. Johnson,
119 Ill. 2d 119, 132 (1987); Derra, 92 Ill. App. 3d at 1111 (in determining whether a waiver of
counsel is valid " '[t]he letter and spirit of Supreme Court Rule 401(a) cannot be cavalierly
disregarded' ") (quoting People v. Bolden, 59 Ill. App. 3d 32, 35 (1978)). Therefore, on appeal,
"the burden is not on the defendant to show a lack of prejudice in order to reach the question of
whether the record affirmatively shows a knowing and voluntary waiver of counsel." Bahrs,
2013 IL App (4th) 110903, ¶ 56. "If the defendant has suffered no prejudice, it is only because
the record shows the defendant's waiver of counsel was knowing and voluntary, that is, the goal
of Rule 401(a) has been achieved." Id. Moreover, this court has noted that, under the second
prong of the plain error analysis, an unknowing waiver of the right to counsel is such a serious
error due to the right involved that prejudice will be presumed. See Black, 2011 IL App (5th)
080089, ¶¶ 25-26 (rejecting the State’s argument that the defendant was required to show
prejudice under prong-two plain error analysis where the trial court failed to comply with Rule
401(a)).
¶ 50 In this case, we find that regardless of the sentence that defendant actually received, we
cannot say for certain that defendant would have proceeded to represent himself pro se had he
known that he was facing 75 years in prison instead of 60 years. Finding otherwise would mean
that, in cases where the court misstates a defendant’s maximum sentence but does not sentence
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No. 1-12-3496
him in excess of that sentence, a reviewing court may speculate as to whether a defendant still
would have waived his right to counsel had the trial court properly admonished him, effectively
taking the decision to waive counsel out of the hands of the defendant. See Koch, 232 Ill. App.
3d at 927 (declining to presume that the defendant would have waived his right to counsel even
if he had been correctly informed of the possible sentence he was later given). The purpose of
Rule 401(a) is to avoid such a result. See Johnson, 123 Ill. App. 3d at 130.
¶ 51 Furthermore, we do not find that defendant's case falls within either limited exception
where this court has found a deficiency in the admonishments does not prejudice the defendant,
that is where: (1) the defendant already knows of the omitted information or (2) because the
defendant's degree of legal sophistication makes evident his or her awareness of the omitted
information. LeFlore, 2013 IL App (2d) 100659, ¶ 52. It is for this reason that we reject the
State’s reliance on Johnson, 119 Ill. 2d 119, and Coleman, 129 Ill. 2d 321, to support its
contention that a court can substantially comply with Rule 401(a), even though it misstates the
sentencing range.
¶ 52 In Johnson, the trial court incorrectly stated that the defendant's minimum sentence was a
"number of years" when his prior murder conviction required a minimum sentence of natural life
in prison. Johnson, 119 Ill. 2d at 129. Despite the incorrect admonishment, our supreme court
held that the trial court substantially complied with Rule 401(a) and the defendant's waiver of his
right to counsel was knowingly and voluntarily made because "the record reveals that he was
aware of this penalty." Id. at 132. Similarly, in Coleman, the trial court incorrectly told defendant
that he was facing a minimum of 20 years in prison when his previous murder conviction made
him eligible for a minimum sentence of natural life in prison. Coleman, 129 Ill. 2d at 334. Our
supreme court held that although the trial court failed to inform the defendant that he was eligible
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No. 1-12-3496
to receive a minimum sentence of natural life, "[t]he record reveals that from his arraignment to
the closing arguments at his sentencing hearing, the defendant knew and understood that natural
life imprisonment was the minimum sentence prescribed by law." Id. at 335. There is nothing in
the instant case that remotely suggests, and the State does not argue, that defendant already knew
of the possible penalty prior to waiving his right to counsel such as the defendants in Johnson
and Coleman. In fact, the court never properly admonished defendant that he was eligible for a
maximum sentence of 75 years, and he was not made aware until the State informed the court
during his sentencing hearing.
¶ 53 Furthermore, both Coleman and Johnson are inapposite because the defendants in those
cases were informed that the maximum sentence was the death penalty and that was the sentence
that was imposed. In the instant case, defendant was misinformed regarding his maximum
sentence. See Bahrs, 2013 IL App (4th) 110903, ¶ 15 (while a misstatement of the minimum
sentence "is excusable if the defendant [is] sentenced to death," understating the maximum
penalty does not satisfy Rule 401(a)).
¶ 54 Alternately, the State argues that defendant's deficient admonishments did not constitute
reversible error because his case falls within the second exception where this court has found no
prejudice for a deficient admonishment when a defendant’s degree of legal sophistication makes
evident his or her awareness of the omitted information. See LeFlore, 2013 IL App (2d) 100659,
¶ 52. Specifically, the State, relying on People v. Eastland, 257 Ill. App. 3d 394 (1993), argues
that defendant’s admonishments did not constitute reversible error because he displayed a high
level of legal sophistication in filing and arguing pretrial motions and in representing himself
during trial. In Eastland, the defendant represented himself in his first trial, which ended in a
mistrial, as well as in his second trial, which ended in his conviction. Id. at 395-99. He was
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No. 1-12-3496
ultimately sentenced to concurrent terms of 60 years for rape and two counts of deviate sexual
assault, and a 15-year term for two counts of aggravated kidnapping to run consecutively with
the other sentences. In the second trial, the trial court failed to fully comply with Rule 401(a),
omitting to admonish him that he could receive consecutive sentences. Id. at 399. Nevertheless,
this court found no reversible error. Id. One of the reasons was that the defendant had "exhibited
a high degree of legal sophistication." Id.
¶ 55 We find Eastland distinguishable. First, before the defendant in Eastland waived his right
to counsel during his first trial, the court informed him that he could possibly receive a life
sentence. Id. During the second trial, the court told the defendant that he could receive 30 to 60
years. Nonetheless, this court found that although the trial court failed to advise the defendant of
his eligibility to receive consecutive sentences at the second trial, the defendant’s "presence
during the first trial indicates his awareness of the minimum, maximum, extended or consecutive
sentences available for his alleged crimes." Id. As support for this contention, the court then
referenced the defendant’s "high degree of legal sophistication perhaps gained from his presence
throughout these proceedings," as evidence that he was already aware of the possibility that he
could receive consecutive sentences. Id.
¶ 56 In the instant case, although we agree that defendant appeared to possess somewhat of a
high level of legal sophistication, we do not believe that this made his knowledge of the
maximum sentence evident. First, unlike the defendant in Eastland, defendant was never given
an accurate statement of the maximum punishment he faced prior to waiving his right to counsel
or was otherwise aware of the penalty. Therefore, we cannot assume that defendant knew or
should have known the maximum penalty because he intelligently argued his case. A trial court's
admonishments regarding the maximum penalty must be accurate before the court accepts the
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No. 1-12-3496
defendant's waiver of counsel. Koch, 232 Ill. App. 3d at 927. Also, we note that unlike defendant
in the instant case, the defendant in Eastland had received the technical assistance of standby
counsel in his second trial which further supported the court's holding. Eastland, 257 Ill. App. 3d
at 400. Thus, we reject the State’s argument in this case that defendant’s high degree of legal
sophistication renders his waiver of counsel knowing and voluntary.
¶ 57 The State also relies on People v. Phillips, 392 Ill. App. 3d 243 (2009), to support its
position that defendant’s admonishments did not constitute reversible error because defendant
had extensive experience in the criminal justice system. However, we find the State's argument
unavailing for the same reason as we did in Eastland. In Phillips, the trial court accurately
admonished the defendant of the minimum and maximum penalty he faced, but failed to
admonish him about the nature of the charges or his right to counsel. Id. at 262-63. The appellate
court held that there was substantial compliance with Rule 401(a) because defendant had been,
inter alia, fully admonished nine months before trial when the possibility of waiver was first
discussed at length, and again a month before trial. Id. As a further basis for finding substantial
compliance, the court noted that "defendant had extensive experience with the court system," and
had been charged with the same crime he was convicted of in that case "a number of times
before." Id. at 264. Again, in the instant case, even though defendant possessed a criminal history
that included three previous robbery charges, including a 1994 conviction for armed robbery, and
apparent knowledge of criminal procedure because he had previously represented himself pro se,
there is no evidence that defendant was otherwise aware of the maximum sentence before he
waived counsel as the trial court never gave him an accurate admonishment at any point during
proceedings. Thus, we find Phillips inapposite.
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No. 1-12-3496
¶ 58 We note that the only case that the State relies on where the trial court's misstatement of
the maximum sentence does not amount to reversible error is People v. Ray, 130 Ill. App. 3d 362
(1984). In Ray, the trial court admonished defendant that he was eligible for a sentence of three
to seven years; however, on appeal this court stated that "[t]he record indicate[d]" that he was
actually eligible for an extended-term sentence of a maximum of 14 years. Id. at 364. The court
ultimately sentenced defendant to the minimum sentence of three years. This court found that
although the court failed to properly admonish defendant that he was subject to an extended-term
sentence, defendant was "[o]bviously *** not prejudiced by the lack of the admonishment"
because none were imposed. Id. at 365. We agree with defendant that it is unclear from the facts
of Ray whether the trial court knew at sentencing that the defendant was even subject to an
extended term when it imposed the defendant's sentence. In the instant case, the State informed
the court during defendant's sentencing hearing that his criminal history made him eligible for a
maximum sentence of 75 years. However, defendant did not receive the same benefit of knowing
the maximum sentence he faced before he waived his right to counsel. Therefore, unlike the
defendant in Ray, the court ultimately considered an entirely different sentencing range at
sentencing than the one defendant contemplated before waiving his right to counsel. Thus, we
decline to extend the holding in Ray to facts in the instant case.
¶ 59 We also reject the State’s reliance on cases where the issue concerns whether a defendant
received proper admonishments under Illinois Supreme Court Rule 402 (eff. July 1, 1997).
Although these cases may be instructive (see Bahrs, 2013 IL App (4th) 110903, ¶ 31), they do
not concern the fundamental right to counsel. Finding that defendant did not already know his
maximum sentence or possess a degree of legal sophistication that made evident his awareness of
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No. 1-12-3496
the maximum sentence, we believe that, regardless of the sentence the defendant ultimately
received, he was prejudiced when he unknowingly waived his right to counsel.
¶ 60 Because we find that the trial court's pretrial admonishments failed to substantially
comply with Rule 401(a) prior to accepting defendant's waiver to counsel, we need not reach
defendant’s claims that his posttrial admonishments were similarly deficient. Accordingly, we
reverse defendant’s conviction and remand this case to the circuit court for a new trial. On
remand, defendant must be given the opportunity to either be represented by an attorney, or to
make a knowing and intelligent waiver of that right, which will occur only after he is given
proper admonishments as required by Rule 401(a). See LeFlore, 2013 IL App (2d) 100659, ¶ 60.
¶ 61 Finding defendant's conviction should be reversed, we now address the remainder of
defendant's claims in order to provide instruction on remand.
¶ 62 Exclusion of Codefendant's Statement
¶ 63 Defendant's third contention is that the trial court erred when it improperly excluded
codefendant's statement that codefendant committed this crime with a BB gun. During trial,
defendant made an offer of proof that codefendant told Detective Lee that he committed this
crime with a BB gun. Defendant contends that codefendant's statement should have been
admitted as a statement against penal interest.
¶ 64 We note that defendant frames this contention as a constitutional issue, citing Chambers
v. Mississippi, 410 U.S. 284 (1973). In Chambers, the defendant was prevented under the state's
evidentiary rules from cross-examining McDonald, who had confessed to the crime but
subsequently recanted, and from introducing the testimony of three witnesses to McDonald's
confessions. Id. at 297. The Court reversed the defendant's conviction because it found that the
confession in that case was so overwhelming and substantially corroborated by some evidence
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No. 1-12-3496
that exclusion of the evidence of the confession violated the defendant's due process and thus
deprived him of a fair trial. Id. at 287-301. However, the Chambers court explicitly noted the
narrowness of the ruling stating that "we establish no new principles of constitutional law. Nor
does our holding signal any diminution in the respect traditionally accorded to the States in the
establishment and implementation of their own criminal trial rules and procedures. Rather, we
hold quite simply that under the facts and circumstances of this case the rulings of the trial court
deprived Chambers of a fair trial." Id. at 302-03.
¶ 65 We find that the facts of this case do not rise to the level of a constitutional due process
violation as in Chambers. Instead, we find that defendant's contention is more appropriately
reviewed for admissibility as a statement against penal interest under Illinois Rule of Evidence
804(b)(3) (eff. Jan. 1, 2011). Defendant concedes that he failed to properly preserve this issue;
however, because defendant argues that the admissibility of the hearsay statement in this case
interfered with his substantial right to present a defense, we will review the issue under the plain
error doctrine. See People v. Caffey, 205 Ill. 2d 52, 90 (2001). However, before we can
determine whether the plain error rule applies, we must first determine whether an error actually
occurred. See People v. Cosby, 231 Ill. 2d 262, 273 (2008).
¶ 66 A hearsay exception applies to declarations against penal interest. People v. Tenney, 205
Ill. 2d 411, 433 (2002). Illinois Rule of Evidence 804(b)(3) provides that a statement that tends
to subject a declarant to civil or criminal liability, and that is corroborated, is admissible. People
v. McCullough, 2015 IL App (2d) 121364, ¶ 135. Our supreme court in examining Federal Rule
of Evidence 804(b)(3), which is identical to 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)
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No. 1-12-3496
corroborating circumstances must support the trustworthiness of the statement." Id. (citing
People v. Rice, 166 Ill. 2d 35, 43 (1995)). Evidentiary rulings are within the sound discretion of
the trial court and will not be reversed unless the trial court has abused that discretion. Caffey,
205 Ill. 2d at 89. "An abuse of discretion will be found only where the trial court's ruling is
arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by
the trial court." Id.
¶ 67 First, we agree with the State that the threshold issue before a court can consider a
statement against interest for admissibility is whether the declarant was "unavailable" for
purposes of Rule 804(b)(3). Pursuant to Illinois Rule of Evidence 804(a)(1), a witness' exercise
of a privilege satisfies the requirement of unavailability. Accordingly, a declarant who properly
asserts his fifth amendment right not to testify is unavailable for purposes of Rule 804(b)(3).
Caffey, 205 Ill. 2d at 101. The record reveals that in 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. However, defendant
acknowledged that the statement was hearsay and that he needed "the actual person" to testify.
Following the sidebar, defendant resumed his cross-examination of Detective Lee, during which
he attempted to elicit codefendant's statement. The assistant State's Attorney objected, and the
trial court sustained the objection, stating that "[w]e are not going into the statement, the nature
of the conversation with [codefendant]." Subsequently, prior to defendant's case-in-chief, the
trial court conducted a hearing on the record outside of the presence of the jury with the
codefendant present. During the hearing, the codefendant invoked his right not to testify under
the fifth amendment. Thus, the record clearly shows that codefendant was unavailable for
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No. 1-12-3496
purposes of Rule 804(b)(3), as defendant was not able to call him as a witness to testify
regarding his statement to Detective Lee.
¶ 68 We find, additionally, that codefendant's statement was against his penal interest, and we
reject the State's contention that the statement was not "unquestionably" so. The State cites
Williamson v. United States, 512 U.S. 594 (1994), in an attempt to argue that codefendant's full
hearsay statement was self-serving and not credible because although codefendant inculpates
defendant by stating that it was defendant's idea to commit the robbery, he qualifies his own
culpability by stating that he committed the crime because he "had no job, no money, and no
place to live" and "had nothing to lose." In Williamson, following a traffic stop, an officer found
Harris with two suitcases of cocaine in his trunk. Id. at 596. During a subsequent interview with
a Drug Enforcement Administration (DEA) agent, he admitted that he was knowingly
transporting the cocaine. Id. After initially lying about the source of the cocaine, he told the
agent that the defendant had supplied him with the cocaine. Id. Harris would not testify at the
defendant's trial, but the district court allowed the government to introduce Harris' statements
through the DEA agent who interviewed him as a statement against interest pursuant to Federal
Rule 804(b)(3). Id. at 597. The Supreme Court held that admission of the statement that
Williamson had supplied the cocaine was error because although Harris freely implicated
himself, the statement "did little to subject Harris himself to criminal liability." Id. at 604.
Moreover, the Court viewed Harris' statement as shifting the blame to the defendant. See id. at
609 (Scalia, J., concurring) (finding that although some of Harris' statements incriminated him,
they provided only marginal evidence of his guilt and "project[ed] an image of a person acting
not against his penal interest, but striving mightily to shift principal responsibility to someone
else").
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No. 1-12-3496
¶ 69 In the instant case, we note that, unlike in Williamson, it was defendant, and not the State,
who was seeking to have admitted the hearsay statement, and as previously acknowledged, the
admissibility of a hearsay statement which allegedly supports the defense's theory of the case
implicates a defendant's substantial right to present a defense. See Caffey, 205 Ill. 2d at 90;
People v. Bean, 137 Ill. 2d 65, 81 (1990). Furthermore, our review of the statement reveals that,
unlike the declarant in Williamson, although codefendant does give reasons as to why he
committed the robbery, we do not find that the reasons in any way lessen his culpability as he
ultimately confessed to Detective Lee that he committed the robbery with defendant.
¶ 70 Notwithstanding our finding of the declarant's unavailability and that his statement was
against penal interest, we cannot say that the trial court abused its discretion. Our review of the
record reveals that defendant failed to pursue having the statement admitted once codefendant's
unavailability was established. Specifically, following codefendant's invocation of his fifth
amendment right not to testify, there is no indication from the record that defendant, during his
case-in-chief, either attempted to call Detective Lee in order to elicit codefendant's statement or
requested a sidebar conference to discuss the admissibility of the statement. Thus, we find that
defendant effectively abandoned the issue, and the trial court made no further rulings on the
admissibility of the statement. Therefore, we find that the trial court did not abuse its discretion
when it excluded codefendant's statement because defendant had not established, at the time of
the court's ruling, the conditions for admissibility under Rule 804(b)(3). Absent a finding of
error, there can be no plain error. People v. Williams, 193 Ill. 2d 306, 349 (2000). Further,
because we find that codefendant was unavailable to testify at defendant's trial and the statement
was against codefendant's penal interest, should this issue arise again on remand, the trial court is
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No. 1-12-3496
instructed to find codefendant's statement inadmissible only if defendant is unable to satisfy the
conditions for admissibility under Rule 804(b)(3).
¶ 71 Sufficiency of the Evidence
¶ 72 Defendant's fourth contention is that the State failed to prove codefendant possessed a
"firearm" as defined under the Code because the State did not introduce a firearm and relied
solely on the insufficient testimony of the Baker's Square employees.
¶ 73 When this court considers a challenge to a criminal conviction based upon the sufficiency
of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill. 2d 305, 329-
30 (2000). Rather, our inquiry is limited to "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." Id. at 330 (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). It is the responsibility of the trier of fact to "fairly *** resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts."
Jackson, 443 U.S. at 319. It follows that where the finding of guilt depends on eyewitness
testimony, a reviewing court must decide whether, in light of the record, a fact finder could
reasonably accept the testimony as true beyond a reasonable doubt. People v. Cunningham, 212
Ill. 2d 274, 279 (2004). However, the reviewing court should not substitute its judgment for that
of the trier of fact, who is responsible for weighing the evidence, assessing the credibility of
witnesses, resolving conflicts in the evidence, and drawing reasonable inferences and
conclusions from the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). A reviewing
court must set aside a defendant’s conviction if a careful review of the evidence reveals that it
was so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the
defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004).
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No. 1-12-3496
¶ 74 Defendant was charged under section 18-2(a)(2) of the Code (720 ILCS 5/18-2(a)(2)
(West 2010)) with armed robbery in that codefendant committed robbery and carried on or about
his person, or was otherwise armed with, a firearm. Section 2-7.5 of the Code (720 ILCS 5/2-7.5
(West 2010)) provides that the term "firearm" has the meaning ascribed to it in section 1.1 of the
Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/1.1 (West 2010)), that is,
"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 any
pneumatic gun, spring gun, paint ball or BB gun, any device used exclusively for signaling or
safety, or for the firing of industrial ammunition, and an antique firearm that is primarily a
collector's item. The State does not have to prove the gun is a firearm by direct or physical
evidence; unequivocal testimony of a witness that the defendant held a gun is circumstantial
evidence sufficient to establish that a defendant was armed during a robbery. See People v. Lee,
376 Ill. App. 3d 951, 955 (2007); People v. Thomas, 189 Ill. App. 3d 365, 371 (1989).
¶ 75 We find that the evidence was sufficient to find defendant guilty of armed robbery with a
firearm beyond a reasonable doubt. It is undisputed that codefendant possessed a gun during the
robbery; however, defendant maintains that because the witnesses only viewed the handle of the
gun, their testimonies are insufficient to find he had an actual firearm. We disagree.
¶ 76 Defendant avers that this court in People v. Malone, 2012 IL App (1st) 110517,
erroneously relied on People v. Ross, 229 Ill. 2d 255 (2008), and People v. Washington, 2012 IL
107993, instead of current statutory law; we nonetheless find Malone instructive in the instant
case. In Malone, a single victim testified that during the robbery the defendant held what
appeared to be a gun. Malone, 2012 IL App (1st) 110517, ¶ 28. This testimony was corroborated
with a surveillance video showing defendant holding what looked to be an actual gun. Id. The
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defendant in Malone similarly argued that the gun was never recovered and the witness'
testimony was deficient because she did not provide a detailed description of the gun, "so there is
no way to compare characteristics of the gun with those of a real or toy gun to determine what
the object in the offender's hand was." Id. ¶ 41. The court rejected this argument, stating that the
victim's testimony, coupled with the videotape of the offense, was sufficient, and "[t]here was no
contrary evidence presented that the gun was a toy gun, a BB gun, or anything other than a 'real
gun.' " Id. ¶ 52. We believe that the same result is warranted in the instant case. While there is no
surveillance video of the crime as in Malone, the three eyewitnesses had ample opportunity to
view the weapon at a close distance during the robbery, and although it was the handle of the
gun, we find this identification sufficient. At trial, Perez testified that during the incident
codefendant told him that "this is a robbery," and then lifted up his hoodie to reveal a gun. Perez
stated that he felt the barrel of the gun as codefendant pressed it into his back as he walked to the
office and that he was "100% sure" that codefendant's gun was "an actual firearm" as he had seen
guns before. Tsegaye similarly testified that defendant pulled up his shirt and showed her a gun
in his waistband, and told her that "you're being robbed." Morina testified that he had seen guns
before and that he believed that codefendant's gun was a "9 millimeter pistol." Viewing the
testimony in the light most favorable to the prosecution, any rational trier of fact could have
found beyond a reasonable doubt that defendant was armed with a gun that met the statutory
definition of firearm and convicted him of armed robbery with a firearm.
¶ 77 Defendant acknowledges that Ross concerned a pre-firearm version of the statute;
however, he believes that we should consider this case for guidance because, similar to his case,
although the victim testified that the defendant had a firearm, the item was actually a BB gun.
However, we find this case wholly inapposite. In Ross, the victim testified that defendant robbed
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him with a firearm. Police officers located the defendant and as they approached, they observed
the defendant throw something into a bush. Upon inspection, the officers discovered the victim's
wallet and a BB gun. The State did not offer the gun into evidence, but the officer who recovered
the gun described it as "a 4.5 BB caliber gun with a three inch barrel." Ross, 229 Ill. 2d at 258.
Additionally, the inventory sheet in the record listed the gun as a BB gun. While there was
sufficient evidence in Ross that indicated that the crime was committed with a BB gun, there is
no such evidence in the instant case linking codefendant to the BB gun, only defendant’s
conjecture that the BB gun was used the night of the robbery. Therefore, we reject defendant's
reliance on Ross.
¶ 78 Moreover, defendant attempts to link the BB gun to his case and relies on People v.
Johnson, 2013 IL App (1st) 120413, for the contention that "the State routinely convicts
defendants of gun crimes despite lack of fingerprints." In Johnson, a handgun was recovered in
the gutter of a home approximately one block away from the scene of a robbery. Id. ¶ 9.
Although there were no fingerprints recovered from the weapon, the firearm was admitted into
evidence. However, defendant fails to note that the victim of the robbery testified that the
recovered gun looked like the gun he saw the night of the robbery and the homeowner testified
during trial that she had heard a commotion near the garbage cans near her home on the night of
the robbery. Id. This is not the case here. Neither of the victims positively identified a BB gun as
being the gun used in the crime. In fact, when defendant showed Perez a photo of the BB gun
recovered on the night of the robbery, Perez simply stated "[he] couldn't tell" whether it was the
weapon used the night of the robbery. Additionally, unlike Johnson, there is absolutely no
additional testimony that connects the BB gun to the night of the robbery. Thus, we reject
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defendant's reliance on Johnson and find that the State's evidence was sufficient to prove that
codefendant was armed with a firearm during the robbery.
¶ 79 We note that because the evidence was sufficient to convict defendant, double jeopardy
does not preclude defendant’s retrial. People v. Liner, 356 Ill. App. 3d 284, 300 (2005). We
emphasize, however, that this determination is not binding on retrial and does not express an opinion
regarding defendant's guilt or innocence.
¶ 80 Jury Instructions
¶ 81 Defendant's final contention is that the trial court erred by not sua sponte instructing the
jury on the definition of a "firearm," where evidence at trial showed a BB gun was found in the
area where the codefendant fled. Defendant concedes that he did not preserve this issue in a
posttrial motion, but contends that we should review for plain error under Illinois Supreme Court
Rule 451(c). Ill. S. Ct. R. 451(c) (eff. Apr. 8, 2013). Illinois Supreme Court Rule 366 provides
that a party that fails to tender a jury instruction may not raise the failure to give the instruction
on appeal. Ill. S. Ct. R. 366 (eff. Feb. 1, 1994). Rule 451(c) provides that "substantial defects [in
jury instructions in criminal cases] are not waived by failure to make timely objections thereto if
the interests of justice require." Id.
¶ 82 "The function of instructions is to convey to the jurors the correct principles of law
applicable to the facts so that they can arrive at a correct conclusion according to the law and the
evidence." People v. Fuller, 205 Ill. 2d 308, 343-44 (2002) (citing People v. Williams, 181 Ill. 2d
297, 318 (1998)). It is well established that a defendant is entitled to an instruction on his theory
of the case if there is some foundation for the instruction in the evidence. People v. Jones, 175
Ill. 2d 126, 131-32 (1997) (citing People v. Crane, 145 Ill. 2d 520, 526 (1991)). "Very slight
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evidence upon a given theory of a case will justify the giving of an instruction." Jones, 175 Ill.
2d at 132 (citing People v. Bratcher, 63 Ill. 2d 534, 540 (1976)).
¶ 83 Here, defendant offered slight evidence contesting whether codefendant committed the
robbery with a firearm, which would justify the giving of the definitional instruction on firearms.
However, because we reverse and remand this case on other grounds, we need not determine
whether the trial judges' failure to sua sponte give the definitional instruction was error.
¶ 84 CONCLUSION
¶ 85 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.
¶ 86 Reversed and remanded with instructions.
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