People v. Davis ( 2006 )

NO. 4-05-0674 Filed: 12/12/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
FREDERICK B. DAVIS, ) No. 03CF992
Defendant-Appellant. )
) Honorable
) Leslie J. Graves,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In February 2004, a jury convicted defendant, Frederick
B. Davis, of residential burglary (720 ILCS 5/19-3(a) (West
2002)) and robbery (720 ILCS 5/18-1 (West 2002)). In May 2004,
the trial court sentenced him to 14 years in prison on each
conviction, with those sentences to be served concurrently.
In June 2004, defendant filed a motion to reconsider
his sentence, which the trial court later denied. In August
2004, defendant pro se filed a petition for relief under the
Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-8 (West
2004)), alleging that (1) he received ineffective assistance of
trial counsel when his counsel failed to move for statutory
speedy-trial dismissal of the robbery charge and (2) counsel's
error deprived him of a fair trial on the residential-burglary
charge.
Following a May 2005 hearing, the trial court (1)
granted defendant's postconviction petition, (2) vacated his
robbery conviction, and (3) ordered a new sentencing hearing on
his residential-burglary conviction. Following a July 2005
hearing, the court resentenced defendant to 12 years in prison.
Defendant appeals, arguing that the trial court erred
by not vacating his residential-burglary conviction and remanding
for a new trial. We disagree and affirm.
I. BACKGROUND
A. Defendant's Trial
In October 2003, the State charged defendant with
residential burglary (720 ILCS 5/19-3(a) (West 2002)), alleging
that on September 8, 2003, he knowingly and without authority
entered the home of Willard Shaffer with the intent to commit
theft therein.
On January 27, 2004, the State charged defendant with
robbery (720 ILCS 5/18-1 (West 2002)), alleging that on September
8, 2003, he knowingly took property (cash and prescription
medications) from Shaffer by the use of force or threatening the
imminent use of force.
At defendant's February 2004 jury trial, Springfield
police officer Steve Dahlkamp testified that on the evening of
September 8, 2003, he was dispatched to Shaffer's residence at
2909 East Elm in Springfield. Shaffer, who was 89 years old,
told Dahlkamp that a man had just left in a cab with Shaffer's
money and medications. Shaffer explained that he had heard a
knock on the front door, which he had left unlocked because he
was expecting his son. Shaffer opened the door, and a man (later
identified as defendant) pushed Shaffer aside, entered the house,
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and started looking through Shaffer's things. Defendant took (1)
$60 from Shaffer's wallet (which had been on the kitchen table)
and (2) prescription medications from a kitchen cabinet.
Dahlkamp's investigation led him to the cabdriver
(Charles Burke) who picked up defendant at Shaffer's residence.
Burke told Dahlkamp that when defendant got into the cab, he was
carrying a bowl of chili and he spilled some of it inside the
cab. He also told Dahlkamp that defendant got out of the cab
near the Best Rest Motel and walked to a nearby residence. The
cabdriver showed Dahlkamp the residence, which was located at
3236 East Enos in Springfield.
Dahlkamp went to 3236 East Enos and spoke with Kelly
Busch, who lived there. Busch denied that any males were at the
house that met defendant's description. However, Dahlkamp could
see a man in the living room and asked Busch to have him step
out. Defendant then came out to talk with Dahlkamp. He said
that he had been at the house since 4 p.m. that day and had not
gone out. Dahlkamp noticed what appeared to be a chili stain on
defendant's pants.
Dahlkamp then had Burke come to Busch's residence and
when he got there, Burke identified defendant as the man he had
picked up at Shaffer's residence. Dahlkamp placed defendant
under arrest. Busch then allowed Dahlkamp into the house and
retrieved from her bedroom a plastic bag containing Shaffer's
medications.
Springfield police evidence technician Neil Brown
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testified that on September 8, 2003, he went to Shaffer's resi-
dence. He tested a chili can, telephone, and microwave for
fingerprints. None of the fingerprints he obtained were of
"comparison value."
Busch testified that on September 8, 2003, defendant
arrived at her residence in the evening and about an hour later
Dahlkamp arrived. Busch acknowledged that she used crack cocaine
that day. She had been in her bedroom prior to defendant's
arrival.
Busch admitted that she had lied to Dahlkamp when she
told him that nobody had just arrived and when she initially told
him that no prescription medications were in the house. She led
him to the medications after he told her it was important for
Shaffer to get them back. She knew they were in the bedroom
because "any time anybody comes over, any of my friends, we would
always go straight back to my room, straight back, no stops, just
straight back."
Burke testified that on September 8, 2003, he was
working as a cabdriver and was dispatched to 2909 East Elm. At
that address, he picked up defendant, who emerged not from the
house but from an area near a toolshed. Defendant was carrying
some kind of power tool, a bowl of chili, and a "sack." During
the cab ride, defendant spilled some of the chili.
Shaffer testified that around 6 p.m. on September 8,
2003, he was getting into the shower when there was a knock at
the front door. Because he was expecting his son, he said, "come
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in." Shaffer was "in the middle of the hall" when he saw defen-
dant, who shoved him and said, "Pops, I'm not going to hurt you."
Defendant went into the kitchen and opened a cabinet. He picked
up a sack and went through the house. He kept Shaffer with him
by pushing him around. Shaffer saw defendant pick up his wallet
but did not see him take any money out. At some point, defendant
stood in front of the cabinet where Shaffer kept his medications,
but defendant was blocking Shaffer's view. Defendant asked
Shaffer to heat up some chili for him, and Shaffer helped defen-
dant operate the stove. Defendant started eating the chili
before it was hot. Defendant called a taxicab.
While waiting for the taxicab, defendant became impa-
tient and allowed Shaffer to get dressed so that he could drive
defendant to an automated teller machine. When they went out to
Shaffer's car, the cab arrived. When defendant went to the cab,
he was carrying some kind of tool, the bowl of chili, and a
plastic sack.
Shaffer did not scream or ask the cabdriver for help
because he was confused and scared. He then went inside and
called his son. About 20 minutes later, he called police and an
officer came to speak with him. The police also later returned
and took Shaffer to identify defendant.
On this evidence, the jury convicted defendant of
residential burglary and robbery, and the trial court later
sentenced him to 14 years in prison on each conviction, to be
served concurrently.
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On direct appeal from his convictions and sentences,
this court affirmed the trial court's judgment. People v. Davis,
No. 4-04-0819 (May 3, 2006) (unpublished order under Supreme
Court Rule 23).
B. Posttrial Proceedings
In August 2004, while defendant's June 2004 motion to
reconsider was pending in the trial court, defendant pro se filed
a postconviction petition. In his petition, defendant claimed
that (1) he received ineffective assistance of trial counsel when
his counsel failed to move for statutory speedy-trial dismissal
of the robbery charge and (2) counsel's error deprived him of a
fair trial on the residential-burglary charge.
Following a May 2005 hearing on defendant's postcon-
viction petition, the trial court entered a written order (1)
granting his petition, (2) vacating the robbery conviction, and
(3) ordering a new sentencing hearing on defendant's residential-
burglary conviction. In July 2005, the court later resentenced
defendant to 12 years in prison for residential burglary. This
appeal followed.
II. DEFENDANT'S CLAIM THAT THE TRIAL COURT SHOULD
HAVE VACATED HIS RESIDENTIAL-BURGLARY CONVICTION
Defendant argues that after the trial court determined
that his trial counsel rendered ineffective assistance, the court
should have vacated his residential-burglary conviction along
with his robbery conviction. Specifically, he contends that the
State's case against him was improperly strengthened by the
State's late addition of the robbery charge, pointing out that,
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but for his trial counsel's error, he would have faced only one
charge. Defendant concludes by asserting that he "should be
placed in the same position he should have been in, but for his
attorney's error. Consequently, [his] conviction should be
reversed, his sentences vacated, and a new trial ordered." For
the reasons that follow, we disagree.
A. Standard of Review
Before addressing the merits of defendant's argument,
we first determine the appropriate standard of review. Doing so
requires us initially to determine the nature of the judgment we
are reviewing.
In May 2005, the trial court conducted a hearing on
defendant's postconviction petition and concluded that his trial
counsel had provided ineffective assistance of counsel because of
his failure to object to the late-filed robbery charge. When the
court indicated that it was prepared to vacate the robbery
conviction, defendant cited People v. Stanley, 266 Ill. App. 3d
307, 641 N.E.2d 1224 (1994), and argued that the court should
also vacate the residential-burglary conviction. The court and
counsel discussed the matter further, and the court ultimately
decided to vacate only the robbery conviction and conduct a new
sentencing hearing on the residential-burglary conviction. The
court stated that the new sentencing hearing would ensure that
the court was "completely fair" in resentencing defendant.
One week after the hearing on the postconviction
petition, the trial court entered the following written order:
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"1. The Petition for Post-Conviction
Relief is granted;
2. The conviction on COUNT II, Robbery,
is hereby VACATED;
3. This cause shall be set for a new
Sentencing Hearing July 18, 2005[,] at 11:00
a.m. on the conviction entered on COUNT I,
RESIDENTIAL BURGLARY."
In People v. Johnson, 206 Ill. 2d 348, 357, 794 N.E.2d
294, 301 (2002), the supreme court discussed the various stan-
dards of review that apply to different stages of postconviction
proceedings and explained its earlier decision on that subject in
People v. Coleman, 183 Ill. 2d 366, 378-89, 701 N.E.2d 1063,
1070-75 (1998), as follows:
"The lengthy explanation of the standard of
review in Coleman has since been reduced to a
simple formula: de novo review for the dis-
missal of post[]conviction petition without
an evidentiary hearing and review for mani-
fest error when petitioner's constitutional
claims were denied following an evidentiary
hearing."
See also People v. Petty, 366 Ill. App. 3d 1170, 1175, 853 N.E.2d
429, 433 (2006) (in which this court held that "[t]rial court
determinations on postconviction petitions made after an eviden-
tiary hearing will not be disturbed unless manifestly errone-
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ous").
However, neither Coleman, Johnson, nor Petty addressed
precisely the situation in this case. Here, as the trial court's
written order noted, defendant's postconviction petition was
granted, and the only question defendant raises on appeal is
whether the relief granted him by the trial court was appropri-
ate. We conclude that in such a situation, the question as to
the relief the trial court should award a defendant upon finding
in his favor on a postconviction petition should lie in that
court's sound discretion. Accordingly, this court will review
the trial court's determination of that question and reverse only
if we find an abuse of that court's discretion.
B. The Prejudicial Effect of Defendant's Being Tried for
Robbery as Well as Residential Burglary
Although defendant contends that but for his trial
counsel's error, he would have faced only one charge (namely,
residential burglary, instead of both residential burglary and
robbery), he never explains how he was prejudiced by facing both
charges. Nor does he claim that evidence was presented at his
trial for robbery and residential burglary that would not have
been presented had he been tried for residential burglary alone.
1. Other-Crimes Evidence Admissible as Part of
a Continuing Narrative
The evidence at defendant's February 2004 jury trial
focused exclusively on events occurring on the evening of Septem-
ber 8, 2003, at Shaffer's residence. A jury found that evidence
sufficient to convict defendant of both residential burglary and
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robbery, but even if defendant had not been charged with robbery,
all of the evidence presented at defendant's February 2004 jury
trial would still have been admissible as part of a continuing
narrative of the events on that day. In People v. Carter, 362
Ill. App. 3d 1180, 1189-90, 841 N.E.2d 1052, 1060 (2005), this
court held that evidence of another crime is admissible if it is
part of a continuing narrative of the event giving rise to the
offense or, in other words, intertwined with the offense charged.
In this case, that standard is clearly met.
In our judgment, the evidence against defendant would
have been the same even if he had not been charged with robbery.
Indeed, not only would the same evidence have been admissible,
but as this court noted in defendant's earlier appeal, that
evidence was "overwhelming." Slip op. at 8.
2. The Applicability of This Court's Decision in People v. Trail
The remaining question before us is what, if any,
prejudice does a defendant suffer when (1) he is appropriately on
trial for one charge and the jury is improperly permitted to
consider a second charge against him and (2) the evidence pre-
sented at his trial in support of both charges would be no
different than the evidence presented at trial had he been tried
only on the proper charge? The answer to this question is found
in this court's earlier decisions in cases in which a defendant
claimed he was entitled to a severance of the charges against him
even though the evidence to be presented at his trial would have
been the same or essentially the same.
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In People v. Trail, 197 Ill. App. 3d 742, 746, 555
N.E.2d 68, 71 (1990), the defendant was charged with two sexual
assaults that occurred within the same household during closely
related periods of time and involved similar victims, the defen-
dant's teenage stepdaughters. After being convicted of two
counts of criminal sexual assault committed upon his stepdaugh-
ters, the defendant appealed, in part, on the ground that the
trial court erred by denying his motion to sever the charges.
This court rejected that argument after first concluding that,
"On the facts of this case, evidence pertaining to one sexual[-]
assault count would have been admissible as 'other crimes'
evidence for the other count." Trail, 197 Ill. App. 3d at 746,
555 N.E.2d at 71. We explained further, as follows:
"We emphasize that where, as here,
'other crimes' evidence is properly admissi-
ble, the potential prejudice to a defendant
of having the jury decide two separate
charges is greatly diminished because the
jury is going to be receiving evidence about
both charges anyway." (Emphasis in origi-
nal.) Trail, 197 Ill. App. 3d at 746, 555
N.E.2d at 71.
This court has since reaffirmed Trail's holding. See, for
example, People v. Lewis, 269 Ill. App. 3d 523, 529, 646 N.E.2d
305, 309 (1995). The Second District Appellate Court has simi-
larly cited Trail approvingly in People v. Willer, 281 Ill. App.
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3d 939, 953, 667 N.E.2d 708, 718 (1996).
Just as we concluded in Trail that any prejudice
against a defendant for having his motion to sever denied is
greatly diminished when the jury would be receiving evidence
about both charges anyway, so we conclude that any prejudice to
defendant from having the jury consider both the residential-
burglary charge and the robbery charge against him was greatly
diminished for the same reason. Accordingly, we further conclude
that the trial court did not abuse its discretion by denying
defendant's request to vacate his residential-burglary conviction
and grant him a new trial thereon.
In reaching this conclusion, we reject defendant's
claim that the decision of the Third District Appellate Court in
Stanley requires otherwise.
C. Defendant's Reliance Upon Stanley
In support of defendant's argument that the trial court
erred by not vacating his residential-burglary conviction,
defendant relies primarily upon the Third District Appellate
Court's decision in Stanley. For the reasons that follow, we
decline to follow it.
In Stanley, the State charged the defendant and his
wife in May 1987 with aggravated criminal sexual assault, alleg-
ing that on May 13, 1986, the defendant and his wife committed an
act of sexual penetration with J.W. in that the defendant placed
his penis in contact with J.W.'s vagina while the defendant's
wife held J.W.'s legs apart. On August 31, 1987, two weeks
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before the defendant's jury trial, the State filed a five-count
amended information that alleged he committed aggravated criminal
sexual assault on or about May 13, 1986, by committing various
other acts of sexual penetration upon J.W. One of the counts in
the new information (count III) repeated the charge originally
brought against the defendant, but the other four charges were
new. Stanley, 266 Ill. App. 3d at 310, 641 N.E.2d at 1226-27.
Two weeks later, on September 14, 1987 (125 days after
the defendant was taken into custody), a jury found the defendant
guilty of all five counts of the amended information. Stanley,
266 Ill. App. 3d at 309, 641 N.E.2d at 1225. The trial court
sentenced him to 25 years in prison on count I (no sentence was
apparently imposed on any other count), and his conviction was
affirmed on direct appeal.
The defendant later filed a postconviction petition,
alleging, in part, that his trial counsel was ineffective for
failing to move for a speedy-trial discharge of the four new
charges. On appeal, he further argued that his appellate counsel
was ineffective for failing to raise the issue on direct appeal.
Stanley, 266 Ill. App. 3d at 309, 641 N.E.2d at 1226. Following
an evidentiary hearing on these claims, the trial court denied
the defendant's petition. On appeal, the Third District agreed
with the defendant that his trial counsel's failure to move for a
speedy-trial discharge of the new charges constituted ineffective
assistance of counsel and ordered a new trial. Stanley, 266 Ill.
App. 3d at 311, 641 N.E.2d at 1227. The Third District explained
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its decision as follows:
"In this case, counsel's error resulted
in forcing defendant to proceed to trial on
four new charges with a mere two weeks to
prepare. We can conceive of no rational
trial strategy that would justify counsel's
failure to move for a discharge with respect
to those charges. We believe it reasonably
probable that the outcome of a jury trial on
multiple counts would be different from a
trial on a single count, particularly given
the nature of the acts alleged in this case.
Accordingly, we find that counsel's error was
sufficiently grave as to deprive defendant of
his constitutional right to a fair trial. We
further find that the speedy[-]trial issue
was not waived by appellate counsel's failure
to raise it on defendant's direct appeal.
Counsel's oversight on appeal obviously prej-
udiced the defense and must be deemed inef-
fective assistance as well.
Having so found, we reject the State's
suggestion to remand this cause solely for
resentencing on count III. We agree that
defendant's trial on that count was within
the statutory time period, and it is not
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clear from the record on appeal why the trial
court chose to sentence defendant on count I.
However, a new sentencing hearing is not an
adequate form of relief. Defendant's trial
on count III was unfairly tainted by coun-
sel's deficient performance in failing to
obtain a discharge of multiple new and addi-
tional charges brought late in the speedy[-]
trial period. Accordingly, defendant is
entitled to a new trial on count III." Stan-
ley, 266 Ill. App. 3d at 311-12, 641 N.E.2d
at 1227-28.
For purposes of this appeal, Stanley is of interest
regarding the appellate court's treatment of count III, which is
the same charge that was originally brought against the defen-
dant. The Stanley court concluded that the defendant was enti-
tled to a new trial on that charge, even though it was not
subject to any speedy-trial problems, not just a remand for a new
sentencing hearing.
Other than the conclusory language that the Third
District believed "it reasonably probable that the outcome of a
jury trial on multiple counts would be different from a trial on
a single count, particularly given the nature of the acts alleged
in this case" (Stanley, 266 Ill. App. 3d at 311, 641 N.E.2d at
1227), the Third District provided no discussion or analysis as
to why this would be so. The only other discussion that appears
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in the court's decision pertinent to this issue is as follows:
"[A] new sentencing hearing is not an adequate form of relief.
Defendant's trial on count III was unfairly tainted by counsel's
deficient performance in failing to obtain a discharge of multi-
ple new and additional charges brought late in the speedy[-]
trial period." Stanley, 266 Ill. App. 3d at 312, 641 N.E.2d at
1227-28. But again, the Third District failed to provide any
explanation or analysis as to why this should be so.
Defendant contends that Stanley stands for the blanket
proposition that when a defendant has been properly tried on some
counts along with other counts that were improper under speedy-
trial grounds, a new trial on the appropriate counts is required.
To the extent Stanley does stand for that proposition, we dis-
agree and decline to follow it. Instead, we hold that the better
approach is to consider, as we did in this case, (1) how the
State's evidence against a defendant would have been different
had he been tried only on the appropriate charges and (2) what
prejudice he suffered, if any, from having the jury consider and
resolve a charge against him that should never have been before
it.
In so holding, we recognize that in Stanley the trial
court had denied the defendant's postconviction petition and the
Third District reversed that denial and remanded for a new trial
on the appropriate criminal charges. Although the Third District
had the power to take that action, it could have instead simply
reversed the denial of the defendant's postconviction petition
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and remanded to allow the trial court to determine the appropri-
ate remedy. Given that the trial court had presided over the
defendant's trial and thus would have been familiar with the
evidence presented on the various charges and its potential
prejudicial impact, that court would have been in a better
position to exercise the discretion necessary in determining
whether a new trial was actually warranted.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs of this
appeal.
Affirmed.
TURNER, P.J., concurs.
COOK, J., specially concurs.
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JUSTICE COOK, specially concurring:
I fully concur in the court's decision. I agree that
defendant's other-crimes-evidence argument must be rejected. As
the majority states, the evidence against defendant would have
been the same even if he had not been charged with robbery.
Defendants are sometimes found guilty of some charges and not
guilty of others. Sometimes defendants are found guilty of
lesser-included offenses. The fact that the jury has heard
additional evidence does not warrant reversal.
I am uncomfortable with broad reliance on the "continu-
ing narrative exception." Sometimes that exception has been
used, for example, to allow police officers to testify to every-
thing they came across during their investigations. The excep-
tion should be applied cautiously. "'The need for the evidence
is slight, the likelihood of misuse great.'" People v. Cameron,
189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989), quoting
E. Cleary, McCormick on Evidence §249, at 734 (3d ed. 1984); see
also People v. Sample, 326 Ill. App. 3d 914, 921, 761 N.E.2d
1199, 1205 (2001); People v. Warlick, 302 Ill. App. 3d 595, 599-
600. 707 N.E.2d 214, 218 (1998).
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