APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
543 N.E.2d 508, 187 Ill. App. 3d 661, 135 Ill. Dec. 125 1989.IL.1167
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.
JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and NASH, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS
Following a jury trial, defendant, Jeffrey Walters, was found guilty of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2), attempted armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 8-4(a)), and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(1)). Defendant was sentenced to 17 1/2 years on the armed violence conviction and to 8 1/2 years for attempted armed robbery, both sentences to run concurrently. The court did not impose a sentence on the aggravated battery conviction. Defendant filed a timely notice of appeal.
On appeal, defendant contends that: (1) the trial court erred in denying his motion to suppress; (2) his aggravated battery conviction should be vacated; and (3) the trial court erred in failing to appoint independent counsel to review defendant's claim of ineffective assistance of counsel. We reverse and remand.
Joseph Imbrogno testified at trial that he was the owner of Pal Joey's Restaurant in West Chicago, Illinois. On February 4, 1987, at approximately 1:30 a.m., Imbrogno was approached by two men as he was sitting in his car behind his restaurant. One of the men told Imbrogno that they wanted his money and fired a shot into the car. The bullet hit Imbrogno in the face, and Imbrogno drove his car away from the restaurant and onto Roosevelt Road. Imbrogno managed to attract the attention of a West Chicago police officer, and he was taken to the emergency room of a nearby hospital. Imbrogno gave a brief description of the two men to the police, although he was unable to identify them because they were wearing ski masks.
Chester Fallin, a co-defendant in the case, agreed to testify against defendant in exchange for a 10- to 15-year sentence on charges identical to those facing defendant. Fallin testified that he decided to rob Pal Joey's Restaurant because he was familiar with Joseph Imbrogno's habits. Fallin stated that he brought two ski masks, along with a gun, to the robbery scene. He further stated that after Imbrogno exited the restaurant, defendant grabbed the gun from him, approached Imbrogno's automobile, and shot Imbrogno. Fallin took the gun back and later sold it to an individual identified as Ray Lamping. Fallin left West Chicago the following day and returned approximately one month later. He was arrested on March 14, 1987.
On March 16, 1987, Fallin gave a statement to the police implicating himself, defendant, and Ray Lamping in the shooting. However, he later told the police that Lamping was not involved in the crime. Fallin admitted that he had implicated Lamping because Lamping gave the gun to the police.
Michael Hatchell testified that he was a friend of defendant and spoke to defendant on the phone two or three days after the shooting. Hatchell stated that defendant told him that Fallin shot Imbrogno during a robbery attempt and that defendant "wished he hadn't done it." In October 1987, Hatchell received another phone call from defendant. Defendant told Hatchell that he did not commit the crime but instead that Fallin and Lamping committed the crime.
The State's final witness, Joseph Verive, agreed to testify against defendant after the State agreed to recommend a four-year sentence on an unrelated residential burglary charge and not to prosecute him for a bail bond violation. Verive testified that Fallin and defendant planned the Pal Joey's robbery while at Verive's apartment on February 3, 1987. Verive stated that Fallin and defendant left his apartment around 10 p.m., with Fallin returning about six hours later. Fallin's first words to Verive were "man, Jeff [the defendant] shot a guy." Verive also stated that he saw defendant approximately two or three weeks after the robbery. Defendant told Verive that he had to leave the State because the police recovered the gun that was used in the shooting.
Defendant did not testify and did not present any evidence at trial. Following closing arguments, the jury returned guilty verdicts on all three counts. Defendant filed two post-trial motions, one by counsel and the other pro se, which were both denied. This appeal followed.
Defendant first contends on appeal that the trial court erred in denying his motion to suppress the ski masks found as a result of a search at his apartment. Defendant argues that he had standing to contest the search, that the search warrant was invalid, and that the consent given on the ...