People v. Weaver ( 2020 )

2020 IL App (1st) 172021-UNo. 1-17-2021
Order filed July 31, 2020
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 60123
)
ROBERT WEAVER, ) Honorable
) James Michael Obbish,
Defendant-Appellant. ) Judge, presiding.
JUSTICE DELORT delivered the judgment of the court.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s convictions for four counts of armed robbery while armed
with a firearm, concluding that he affirmatively acquiesced to the purported error
in the trial court’s answer to a jury question.
¶2 Following a jury trial, defendant Robert Weaver was found guilty of four counts of armed
robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2014)) and one count of
aggravated battery (720 ILCS 5/12-3.05(f)(1) (West 2014)). After the trial court merged the
counts, defendant was sentenced to four concurrent terms of 45 years’ imprisonment. On appeal,
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defendant contends he is entitled to a new trial because the court erred in responding to a
question from the jury. We affirm.
¶3 The State charged defendant with, inter alia, four counts of armed robbery and one count
of aggravated battery. The State alleged that, on July 16, 2014, defendant, by use of force or
threat of imminent use of force, took personal property from Romelia Garcia, Andrew
Arredondo, Valentina Duran, and Terrell Washington, while armed with a firearm. In addition,
the State alleged defendant struck Garcia about the body with a firearm.
¶4 At his arraignment, defendant informed the trial court he wished to proceed pro se. The
court admonished defendant in accordance with Illinois Supreme Court Rule 401(a) (eff. July 1,
1984) and also advised him, inter alia, that he would not be entitled to special treatment and he
would not be able to complain about the competency of his self-representation on appeal.
Defendant stated he understood the court’s admonishments, and the court accepted his waiver of
counsel. At a later status hearing, defendant invoked his right to counsel, and the court appointed
him counsel. At a subsequent status hearing, however, counsel was permitted leave to withdraw
at defendant’s behest and, after stating he still understood the court’s Rule 401 admonishments,
defendant resumed his pro se status. Before jury selection began, the trial court admonished
defendant that, because it wanted to prevent the jury from learning he was in custody, he would
be required to remain at his table so that the courtroom deputies did not have to walk around with
him.
¶5 Because defendant does not challenge the sufficiency of the evidence to sustain his
conviction, we recount the evidence here to the extent necessary to resolve the issue raised on
appeal.
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No. 1-17-2021
¶6 The evidence at trial showed that, around 4 p.m. on July 16, 2014, two men carried out an
armed robbery aboard a Chicago Transit Authority (CTA) orange line train as it approached the
station at Roosevelt Road. One of the men carried a gun and wore a checker- or square-patterned
sweater, and the other carried a backpack to collect the proceeds from the robbery and wore a
striped sweater, jeans, and a baseball cap. The man who carried the backpack was later identified
using CTA surveillance footage and facial recognition software as Michael Taylor. As the train
neared the Roosevelt station, the gunman and Taylor began demanding passengers’ belongings.
The gunman and Taylor took (1) Duran’s wallet, which contained $80, her employer card, her
state identification card, and a gift card; (2) Garcia’s cell phone and purse, which contained
various papers and approximately $200; (3) Washington’s phone and a “couple dollars”; and (4)
Arredondo’s iPod and $15. During the robbery, the gunman struck Garcia in the face with the
firearm when she refused to give up her purse, leaving her bruised and bloodied. When the train
arrived at Roosevelt station, the gunman told the passengers that, if they disembarked the train,
he would shoot them. CTA surveillance footage, which was admitted into evidence and
published to the jury, depicted two men wearing the clothing described at trial by Duran, Garcia,
Washington, and Arredondo riding on the train and, once it arrived at the Roosevelt station,
fleeing from the platform, down the stairs, and through a turnstile onto Roosevelt.
¶7 The State presented testimony of an individual who saw two men dividing up money in
the alley behind the patio area of a restaurant near the Roosevelt station. Another witness saw
one man enter the patio area through a back gate, which is typically used only by employees,
walk through, and exit onto Wabash Street. The second man entered the patio approximately one
minute later, asked for a menu, and then exited onto Wabash without ordering. The state
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introduced into evidence the jeans, sweater, and hat worn by Taylor at the time of the robbery,
found near the resturant. Surveillance footage from the patio area was admitted into evidence and
published to the jury, showing the two men in the patio area.
¶8 The identity of the gunman was the main issue at trial. Duran, Washington, and
Arredondo identified defendant in open court as the gunman. Garcia testified she did not see the
gunman in court but she identified the individual wearing the checker- or square-patterned
sweater as the gunman in the CTA surveillance footage. Before trial, Duran identified defendant
as the gunman in a physical lineup, and Arredondo identified him as the gunman in both a
photographic array and physical lineup. Garcia and Washington, however, did not identify the
defendant as the gunman prior to trial.
¶9 During its deliberations, the jury sent a note to the court, which stated, “Robert Weaver
Was he allowed to approach the jury? Are we allowed to see him up close and without glasses?” 1
The trial court asked defendant whether he had any suggestion as to how the question should be
answered, and defendant responded, “[n]ot really, to be honest, I mean, it was a reason why it
was done, you know, but – you told me not to move around.” The court proposed the following
answer: “Ladies and gentlemen of the jury, you have received all of the evidence in this case.
Please continue to deliberate.” The court asked defendant whether the proposed answer was
“agreeable,” and both defendant and the State answered affirmatively.
¶ 10 The jury found defendant guilty four counts of armed robbery and one count of
aggravated battery. Defendant filed a pro se motion in arrest of judgment and a motion for new
trial, neither of which took issue with the trial court’s response to the jury’s question. The court
1
The jury’s note is not included in the record on appeal. Our recitation of what it said is based on
the trial court’s description of the note.
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denied both motions and, pursuant to defendant’s request, appointed counsel to assist him at
sentencing.
¶ 11 The trial court merged the aggravated battery conviction into the armed robbery
conviction concerning Garcia, and sentenced defendant to four concurrent terms of 45 years’
imprisonment. Defendant filed a motion to reconsider his sentence, which the court denied. This
appeal followed.
¶ 12 On appeal, defendant contends the trial court erred in responding to the jury’s question
regarding whether he was allowed to approach the jury and whether the jury could view him up
close and without glasses. According to defendant, the court should have instructed the jury not
to draw a negative inference from the fact defendant remained at counsel table throughout trial
instead of responding that it had received all the evidence in the case and should continue to
deliberate.
¶ 13 When a defendant acquiesces in the trial court’s answer to a jury question, the defendant
cannot later complain that the trial court’s answer was error. People v. Averett, 237 Ill. 2d 1, 23-
24 (2010) (citing People v. Emerson, 189 Ill. 2d 436, 491-92 (2000)). The rule of affirmative
acquiescence is grounded in considerations of fairness and its purpose is to prevent a defendant
from securing reversal based on a purported error to which he consented. See In re Detention of
Swope, 213 Ill. 2d 210, 217 (2004).
¶ 14 Here, the record clearly shows defendant acquiesced to the purported error of which he
now complains. When the jury sent its question to the trial court asking whether defendant was
allowed to approach the jury and whether the jury could view him up close and without glasses,
the court suggested its answer in front of both parties, and defendant agreed to the answer.
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Accordingly, under the doctrine of acquiescence, defendant is unable to claim the court’s answer
was in error.
¶ 15 Defendant, relying on People v. Johnson, 2013 IL App (2d) 110535, acknowledges he
acquiesced to the purported error but asks us to overlook his acquiescence because his claim on
appeal “cannot be construed as a duplicitous tactic to take advantage of his unsuccessful trial
level acquiescence.” We decline to do so and find that Johnson is inapposite. In that case, the
defendant’s attorney acquiesced to an erroneous jury instruction regarding the extent to which it
could consider other-crimes evidence and the defendant’s prior felony conviction, which
compounded and amplified the defendant’s attorney’s ineffectiveness in acquiescing to the
joinder of two criminal cases. Id. ¶ 75. Moreover, the court’s excusal of the defendant’s
acquiescence was limited to the unique facts of that case. Id. ¶ 79. In this case, the jury
instructions did not contain a misstatement of the law, and the unique facts present in Johnson
are not present here. Accordingly, we decline to excuse defendant’s acquiescence to the
purported error.
¶ 16 For the reasons stated, we affirm the circuit court’s judgment.
¶ 17 Affirmed.
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