People v. Wright , 2015 IL App (1st) 123496 ( 2015 )

Illinois Official Reports
Appellate Court
People v. Wright, 2015 IL App (1st) 123496
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption EUGENE WRIGHT, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-12-3496
Filed May 21, 2015
Rehearing denied June 24, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 11-CR-13186; the
Review Hon. Timothy Chambers, Judge, presiding.
Judgment Reversed and remanded with instructions.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Peter Sgro, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, and Samuel C. Ray, Assistant State’s Attorneys, of
counsel), for the People.
Panel 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 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,
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
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.
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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-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 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.”
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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¶ 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 “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 Chuchro returned to where DeJesus 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.”
¶ 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–
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THE COURT: That’s how he heard it.
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.
¶ 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 north side 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
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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.
¶ 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 regard 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 posttrial 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. 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
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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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 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 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
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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; 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. 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 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
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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’s 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.
¶ 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.
¶ 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
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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 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 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;
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(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).
¶ 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 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) (eff. July 1, 1984). 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).
¶ 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
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(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 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 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
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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 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 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
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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 penalties 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.
¶ 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 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
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awareness of 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 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).
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¶ 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) 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’s
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 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’s statements through the DEA agent who interviewed him as a statement
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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’s statement as shifting
the blame to the defendant. See id. at 609 (Scalia, J., concurring) (finding that although some
of Harris’s 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”).
¶ 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 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 ***
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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).
¶ 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 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
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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 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 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.
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¶ 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.” Ill. S. Ct. R. 451(c) (eff. Apr. 8,
2013).
¶ 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 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 judge’s 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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