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11/28/94 PEOPLE STATE ILLINOIS v. TONYA WOODS AND

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION


November 28, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TONYA WOODS AND RAY COLLINS, DEFENDANTS-APPELLANTS.

Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelly, Judge Presiding.

Rehearing Denied December 22, 1994. Released for Publication January 13, 1995. Withdrawn from the Bound Volume.

Justice O'connor delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.

The opinion of the court was delivered by: O'connor

Justice O'CONNOR delivered the opinion of the court:

In this consolidated appeal, defendants, Tonya Woods and Ray Collins, challenge their convictions and sentences for armed robbery.

Appeal No. 88-2643

A jury found Tonya Woods guilty of the armed robbery of a Chicago paint store, and the circuit court sentenced her to a 30 year term of imprisonment. Woods raises two issues concerning the propriety of her sentence.

She first maintains that this court must reduce her sentence for armed robbery because it is inconsistent with the lesser sentences received by her co-defendants. Generally, in considering the appropriateness of punishment, a reviewing court accords great weight to the trial court's judgment. ( People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 11 Ill. Dec. 274.) Although an arbitrary and unreasonable disparity between sentences of co-defendants is impermissible, a disparity between sentences will not be disturbed when it is warranted by differences in the nature and extent of participation in the offense or by a more serious criminal record. ( People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121, 61 Ill. Dec. 524; People v. Wooton (1990), 198 Ill. App. 3d 591, 596-97, 555 N.E.2d 1214, 144 Ill. Dec. 695.) We have reviewed the backgrounds of Woods and her accomplices, along with their relative participation in the robbery, and conclude that the circuit court's sentence was neither arbitrary nor unreasonable.

Woods further contends that the circuit court failed to consider evidence of her rehabilitative potential when it sentenced her to 30 years of imprisonment. Woods' sentence is well within the range prescribed by the applicable section of the Code of Corrections. (See Ill. Rev. Stat. 1989, ch. 38, par. 5-8-1(a)(3) (allowing 30 year maximum sentence).) Moreover, the record belies Woods' contentions that the court failed to consider her rehabilitative potential. Accordingly, we decline to reduce the sentence imposed by the circuit court.

Appeal Nos. 89-210 and 90-2821

Ray Collins was indicted for one count of attempted murder, three counts of armed robbery, three counts of aggravated battery, and one count of armed violence, all stemming from the armed robbery of a Chicago restaurant. Collins waived his right to a jury. Co-defendant Woods, similarly charged, opted for a jury. Although severed, the cases were tried simultaneously. Another defendant, Michael Paicely, was tried separately from Collins and Woods. The circuit court found Collins guilty of all counts, and he received an extended term of 60 years for the armed robbery and attempt counts. Woods' jury returned verdicts of guilty of all charges except that of attempted murder. She received an extended term of 60 years for the armed robbery conviction and an extended term of 10 years for the aggravated battery conviction, to be served concurrently. However, the two sentences were to be served consecutively to the 30 year sentence Woods had received for the paint store robbery that we have affirmed in this opinion.

In appeal 90-2821, Woods, who is black, mounts a two-pronged attack on the State's use of its peremptory challenges. She argues that the State used pretextual reasons in striking several black venirepersons from the jury. She further argues that the State engaged in religious discrimination in striking those venirepersons from the jury.

The equal protection clause of the federal constitution prohibits the State from utilizing its peremptory challenges to exclude prospective jurors on the basis of race. ( Batson v. Kentucky (1986), 476 U.S. 79, 85, 90 L. Ed. 2d 69, 80, 106 S. Ct. 1712.) In Batson, the U.S. Supreme Court established a two stage inquiry by which a defendant's claim of discrimination must be reviewed. The defendant must first present a prima facie case of purposeful discrimination in the State's use of its challenges. ( Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1723.) If a prima facie case is established, the burden then shifts to the State to provided race-neutral explanations for its exclusion of each venireperson. ( Batson, 476 U.S. at 97 n.20, 90 L. Ed. 2d at 88 n.20, 106 S. Ct. at 1723 at n.20.) The procedure set out in Batson repeatedly has been cited with approval by our own supreme court. See e.g., People v. Wiley (1993), 156 Ill. 2d 464, 475, 622 N.E.2d 766, 190 Ill. Dec. 736; People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784, 151 Ill. Dec. 329.

The circuit court here made no findings that Woods had demonstrated a prima facie case of purposeful racial discrimination. Nonetheless, the State volunteered its race-neutral explanations for the record after Woods' counsel objected to the use of the State's peremptory challenges. The circuit court found that the proffered reasons were indeed racially neutral.

The circuit court's collapsing of the Batson procedure into a single step inquiry moots the preliminary issue of whether Woods established a prima fade case of purposeful discrimination as set forth in Batson. (See Hernandez v. New York (1991), 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859; People v. Kitchen (1994), 159 Ill. 2d 1, 19, 636 N.E.2d 433, 201 Ill. Dec. 1; People v. Hudson (1993), 157 Ill. 2d 401, 626 N.E.2d 161, 193 Ill. Dec. 128, cert. denied (1994), U.S. , 130 L. Ed. 2d 77, 115 S. Ct. 135.) Thus, we turn to the second prong of the Batson procedure, the race-neutrality of the State's explanations for its exclusion of each venireperson. The United States Supreme Court has identified the guidelines to be used in evaluating the race neutrality of an attorney's explanation. Assuming the proffered reasons are true, the court must determine whether the challenges violate the equal protection clause as a matter of law. ( Hernandez v. New York, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.) A neutral explanation is one based on something other than the race of the venireperson, and it need not rise to the level of a challenge for cause. ( Hernandez v. New York, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866.) The prosecutor's explanation will be accepted unless a discriminatory intent is inherent in the explanation. ( Hernandez v. New York, 500 U.S. at 360, 114 L. Ed. 2d at 406, 111 S. Ct. 1866; Batson v. Kentucky, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The circuit court's findings on the neutrality of proffered explanations are, in essence, credibility determinations; accordingly, those findings are given great deference upon review and will not be overturned unless they are clearly erroneous. Batson v. Kentucky, 476 U.S. at 98, 90 L. Ed. 2d at 89, 106 S. Ct. at 1724; People v. Kitchen, 159 Ill. 2d at 19.

Wood challenges four venirepersons excused by the State, arguing that the proffered reasons for exclusion were pretextual.

VIVIAN BRENT

The prosecutor's sole reason for excluding Vivian Brent was "because of her membership in the Pentecostal church" and that because of that membership he was not sure whether she "would be able to make a decision as to guilt." However, the prosecutor did not seek any elaboration as to the extent of Ms. Brent's religious practices or whether her religious beliefs would affect her ability to follow the law. Ironically, this court has recently condemned similar pretextual reasons in its reversal and remand of the conviction of Woods' co-defendant, Kenneth Gaston. (See People v. Gaston (1994), 256 Ill. App. 3d 621, 624, 628 N.E.2d. 699, 195 Ill. Dec. 235.) In Gaston, we noted that the record in that case provided no basis for the prosecutor to conclude that a venireperson's church attendance precluded her from following the law. The same is true here. Ms. Brent merely noted her religious affiliation in response to the circuit court's broad question regarding her membership in clubs and organizations. Her answer, in and of itself, provided no insight into the depth of her convictions and whether those convictions would impair her ability to follow the law. Under these circumstances, therefore, we must conclude that the prosecutor's reasoning was pretextual.

JOHNNIE WEST

The prosecutor offered similar reasons for excluding Ms. Johnnie West from the venire. Responding to the same broad question as Ms. Brent, Ms. West volunteered that she was studying to become a Jehovah's Witness. Despite the prosecutor's lack of any follow-up questioning as to what type of studying she was undertaking, he later explained to the circuit court that the "type of practice in learning that they go through" would prevent her from finding guilt. Again, like Ms. Brent, without more on the record, such a Conclusion is unfounded.

Although Woods identifies two other venirepersons excluded by the prosecutor for religious grounds, in those instances, the prosecutor offered other reasons for exclusion which our courts have upheld as race neutral.

Our decision regarding Woods' jury selection challenge on established Batson grounds precludes our review of her second constitutional argument. Defendant has urged us to consider extending Batson to apply to religious discrimination. However, our supreme court has expressly admonished this court not to consider new constitutional issues if we can decide the case on the basis of established law. ( People v. Mitchell (1993), 155 Ill. 2d 344, 356, 614 N.E.2d 1213, 185 Ill. Dec. 528 (vacatur of that portion of appellate court opinion which extended Batson to cover gender discrimination in jury selection); People v. Dixon (1963), 28 Ill. 2d 122, 125, 190 N.E.2d 793. Accordingly, Woods' conviction is reversed and the cause is remanded for a new trial.

In appeal 89-0210, Collins maintains that he did not receive the effective assistance of counsel guaranteed to him by the sixth amendment of the federal constitution. (U.S. Const., amend. VI.) His argument centers around a complaint he filed against his lawyer, Steven Sosman, with the Attorney Registration and Disciplinary Commission (ARDC), in which he accused Sosman of conspiring with the State's Attorney to convict him. He contends that the complaint created a per se conflict of interest for Sosman, which the circuit court failed to rectify by refusing to appoint the Public Defender. Although the circuit court initially refused Collins' request to proceed pro se, the court allowed him to do so after questioning him as to his educational background and familiarity with the legal process. At that time, Collins stated that he did not want the court to appoint counsel, but would prefer "to go pro se." The court found that Collins' wish to represent himself was voluntary and was intelligently made. The court further found that Sosman had "been more than able and competent in his representation * * * throughout these proceedings." The court ruled that appointing the public defender would prolong the trial, which had been pending for 20 months. The court, citing Sosman's familiarity with the case, appointed him to act as "standby" counsel so that Collins could consult with him during the course of the trial. Collins also received a month long continuance to prepare for his trial.

During the next three months, Collins filed numerous motions for discovery and for a substitution of Judge. Except for the hearing on Collins' motion for substitution of Judge, the hearings on these motions are not contained in the record. Collins alleged at the substitution motion hearing that the circuit Judge, Sosman, and the assistant state's attorney were all acting in concert to convict him. However, Collins' sole proof of such conduct was that Judge Kelly had made some rulings against him which he did not like. Judge Mannion, who heard the motion, denied it. The cause was returned to Judge Kelly where Collins continued to voice concerns about his situation. An excerpt of the trial transcript best states the nature of Collins' complaints with both Sosman and the circuit Judge:

"THE COURT: Well, I am ready to go to trial. As far as motions being filed * * * Mr. Sosman has filed several motions on your behalf. They were denied by me and the bases for those rulings were given at time the hearing was held * * *.

Mr. Sosman is under an obligation not to file frivolous motions. He's under an obligation to this court not to file motions that are frivolous or have no merit under the law. What you're saying what you said to me are common to me. You don't care if they're denied or granted, as long as the motions are filed and I'm saying he's under an obligation not to file frivolous motions and meritless motions.

As far as what has transpired during the last 23 months during the pendency of this matter, Mr. Collins it's been quite obvious to me where the matter had its turning point and that is after the pretrial conference was heard or held and it was explained to you what sentence would impose -- would be imposed upon you if you wished to plead guilty to the four cases in which you are a named defendant.

Now you may think that the sentence is unfair. I believe it to be more than fair under the circumstances. But it's clear that is at the point where all these other proceedings begun or began and I explained to you at the time of the pretrial negotiations, I explained to you about the pretrial pursuant to Supreme Court Rule 402. And it was after that that I noticed the change in your outlook towards these proceedings here. It was after that that you filed the complaint against Mr. Sosman. It was after that that you filed a motion for substitution of Judge.

And it appears to me that that is where your attitude changed."

The trial proceeded with Sosman acting as Collins' attorney.

A per se conflict of interest between a defendant and his attorney is not created simply because the defendant files a complaint with the ARDC. ( People v. Nitz (1991), 143 Ill. 2d 82, 572 N.E.2d 895, 157 Ill. Dec. 431 cert. denied, U.S. , 116 L. Ed. 2d 283, 112 S. Ct. 344; People v. Dean (1992), 226 Ill. App. 3d 465, 589 N.E.2d 888, 168 Ill. Dec. 488 appeal denied, 145 Ill. 2d 638, 596 N.E.2d 632.) Specifically, this court has recognized the undesirability of a per se rule requiring reversal whenever either a personal conflict or animosity develops between an accused and his counsel. Indeed, such a rule "would instigate the filing of groundless complaints" with the agency in order to secure a "reliable mode of reversal should conviction result from the trial." ( People v. Gardner (1977), 47 Ill. App. 3d 529, 534, 362 N.E.2d 14, 5 Ill. Dec. 701.) Given the circumstances here, the cautions expressed in People v. Gardner are particularly apt. We are satisfied that the circuit court did not abuse its discretion in finding that Collins' actions were dilatory.

Although the sixth amendment guarantees an accused the right to assistance of counsel at trial, it does not include the right to select counsel of choice, particularly if the exercise of that claimed right would delay or impede the effective administration of Justice. ( People v. West (1990), 137 Ill. 2d 558, 588, 560 N.E.2d 594, 148 Ill. Dec. 196, cert. denied (1991), 500 U.S. 928, 114 L. Ed. 2d 126, 111 S. Ct. 2042.) A defendant has the right to be represented by retained counsel of his own choosing ( People v. Johnson (1979), 75 Ill. 2d 180, 185, 387 N.E.2d 688, 25 Ill. Dec. 812); however, he does not have the right to be represented by appointed counsel selected by him. ( People v. Lewis (1981), 88 Ill. 2d 129, 160, 430 N.E.2d 1346, 58 Ill. Dec. 895, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307.) The record here reflects that, despite his indigence, Collins did not want the Public Defender's Office to represent him because he did not think that the office could handle a case of this severity.

Collins' contentions are similar those rejected by our supreme court in People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335, 102 Ill. Dec. 322, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618. There, the court held that the circuit court did not err in denying defendant a substitution of counsel on the eve of trial. Like Collins, defendant Hall made various claims of a conspiracy between his attorney and the Office of the State's Attorney. In fact, defendant Hall came to blows with his attorney. Nevertheless, the court sustained the circuit court's ruling that he remain as counsel, noting in particular, Hall's "deliberate" behavior which was "designed to delay and disrupt his trial." People v. Hall, 114 Ill. 2d at 403-404.

Even if this court were to evaluate Collins' claims under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, Collins could not establish prejudice. Generally, in order to establish ineffective assistance of counsel, a defendant must show both that counsel's representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for the error, the result would be different. ( Strickland v. Washington, 466 U.S. at 668, 80 L. Ed. 2d at 674, 104 S. Ct. at 2052.) In adopting Strickland, our supreme court recognized that the party alleging ineffective assistance of counsel bears a heavy burden to overcome the strong presumption in favor of a finding that counsel's advocacy was not ineffective. ( People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, 85 Ill. Dec. 441, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) Further, the determination of the reasonableness of trial counsel's actions must be evaluated from counsel's perspective at the time of the alleged error, without hindsight, in light of the totality of the circumstances. ( Strickland v. Washington, 466 U.S. at 668, 80 L. Ed. 2d at 674, 104 S. Ct. at 2052.) The evidence presented at Collins' trial established his guilt. We note particularly the testimony of the victims, which was credible, clear, and convincing. As to Collins' arguments that Sosman failed to make an opening argument, neither Sosman nor the prosecutor presented opening arguments due to the fact that the case was not being heard by a jury, but by Judge Kelly. The record reveals that Sosman more than adequately represented Collins in this manner and does not suggest any ineffectiveness.

Collins next challenges the sufficiency of the State's evidence with regard to his conviction for attempted murder where the actual shooter, Woods, was found not guilty of the same offense. In addressing this contention we must note that the trials of Woods and Collins were severed. Each defendant previously had implicated the other in statements made after their arrests. In order to ensure that each received fair trials, the jury was removed from the room during the presentation of evidence of Woods' guilt supplied through Collins' confession. Thus, each defendant was tried by a separate trier of fact presented with evidence different from that adduced before the other.

Collins maintains his conviction for attempt murder under an accountability theory cannot stand because the evidence fails to show that Woods had the specific intent to cause great bodily harm. We disagree. Collins planned the armed robbery with Woods and Paicely. During the robbery, each participant took charge of different restaurant employees in order to collect all the money at the restaurant. Woods told Collins that she "had to" shoot the restaurant's manager, John Giannoules, because he started to struggle with her in the office and tried to take her gun. Collins, who had entered the office after the shooting, ripped the telephone off the wall so as to ensure a clean getaway. After the robbery, all three split the proceeds, and Collins hid the weapons in his apartment. In People v. Kessler (1974), 57 Ill. 2d 493, 315 N.E.2d 29, cert. denied, 419 U.S. 1054, 42 L. Ed. 2d 650, 95 S. Ct. 635, our supreme court held that, in trying an accused for attempted murder during the course of an armed robbery, the State need only prove that there was a common design to commit the robbery which encompassed the attempted murder done in furtherance of the plan. The evidence adduced here established that common design.

The fact that Woods' jury found her not guilty of attempted murder is irrelevant to our consideration of this issue. Generally, where co-defendants are tried separately before different triers of fact, the acquittal of one co-defendant does not have any bearing on the guilt of a co-defendant regardless of the nature of the evidence presented. ( People v. Gharst (1984), 122 Ill. App. 3d 1, 5, 460 N.E.2d 813, 77 Ill. Dec. 509.) The rationale behind such reasoning is clear: the attitudes of each trier of fact may differ and could result in conflicting resolutions of factual disputes and credibility assessments. ( People v. Gharst, 122 Ill. App. 3d at 5-6.) Here, different triers of fact evaluated different evidence. In this regard, one trier of fact may be more lenient than another and enter a conviction for a lesser offense or only on one offense instead of two despite support in the evidence for both convictions. Thus, our inquiry is limited only 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." ( People v. Krueger (1994), 260 Ill. App. 3d 841, 845, 632 N.E.2d 177, 198 Ill. Dec. 118 citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) When considering a challenge to the sufficiency of the evidence, we will not retry a defendant. The resolution of conflicts in the testimony and the determination of witness credibility are wholly within the province of the trier of fact. People v. Sanchez (1986), 115 Ill. 2d 238, 261, 503 N.E.2d 277, 104 Ill. Dec. 720, cert. denied, 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240. The circuit Judge's finding of Collins' guilt of attempted murder is reasonable and is supported by the evidence.

Collins' final contention is a challenge to the propriety of his 60 year prison sentence.

As noted in our Discussion of the sentencing issues raised by Woods, the circuit court's sentence will not be disturbed absent an abuse of discretion. ( People v. Perruquet, 68 Ill. 2d at 153.) The Code of Corrections provides that an extended term may be imposed if the court finds that the crime was accompanied by "exceptionally brutal or heinous behavior" indicative of wanton cruelty. Ill. Rev. Stat. 1989, ch. 38, par. 5-8-2.

The evidence supports the court's imposition of the extended term. The armed robbery was premeditated. Upon entering Giannoules' office after the shooting, Collins stated, "let's get the fuck out of here." He then ripped the telephone from the wall, despite seeing Giannoules on the floor, bleeding from the back. No abuse of sentencing discretion is apparent from this record.

Appeal 1-88-2643: Affirmed.

Appeal 1-89-0210: Affirmed.

Appeal 1-90-2821: Reversed and remanded.

CAMPBELL, P.J. and BUCKLEY, J., concur.

19941128

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