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People v. Howard

August 17, 2007


Appeal from the Circuit Court of Cook County Honorable Colleen McSweeney-Moore, Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher

Published opinion

Following a bench trial, defendant Antonio Howard was convictedof armed robbery and two counts of aggravated discharge of a firearm. He was sentenced to 30 years in prison for the armed robbery count and 15 years for the aggravated discharge counts, with the latter sentences to run concurrently. On appeal, defendant contends that the evidence presented by the State at trial failed to prove him guilty beyond a reasonable doubt. Alternatively, defendant argues that he is entitled to a new trial because the trial court violated his sixth amendment right to counsel of his choice when it permitted his attorney to withdraw over his objection. For the reasons set forth below, we affirm defendant's convictions for armed robbery and aggravated discharge of a firearm. We also hold that the trial court did not abuse its discretion by permitting defendant's trial counsel to withdraw.


On the morning of October 10, 2002, Frederick Thomas and Perry King arrived by car at a Chicago Housing Authority (CHA) housing project at 4120 South Prairie Avenue seeking day labor for the contracting business of Thomas's brother. Thomas and King were the primary victims of defendant's actions and the State's lead witnesses in its case against defendant.

At about 7:30 a.m., Thomas got out of King's car and approached the entrance to the CHA building. King remained behind in the driver's seat. King testified initially that from his vantage point he could not see the entrance of the building and that he lost sight of Thomas for "three or [four] seconds, minutes or something" before Thomas returned. King later clarified that he meant three or four minutes. Consistent with his previous statement, King testified under cross-examination that he lost sight of Thomas for "two or three minutes, seconds or something. A very short time." Under cross-examination, however, King testified that he believed he saw Thomas enter the building.

Thomas testified that as he neared the CHA building, defendant approached him from behind and asked if he had any money. On cross-examination, Thomas recalled defendant confronted him "maybe four steps" from the entrance of the building. After Thomas told defendant he had no money, defendant hit him once on the left cheek and twice in the back of the head with a semiautomatic pistol. Thomas testified that he was certain defendant hit him with that type of weapon because it had a clip rather than a revolving chamber.

After defendant struck Thomas, Thomas handed defendant a $10 bill and walked back to King's car because he feared for his safety. On cross-examination, Thomas stated that he saw defendant's face for "about 20 or 15 minutes." Asked if he was "having a conversation" with defendant, Thomas answered, "I didn't have [a] conversation with him. He had a weapon and he was scared and he had me standing there." Thomas later stated he was unsure how long the encounter lasted. Upon returning to the car, Thomas told King he had been robbed of $10. King testified that he saw a "hole" in Thomas's head and "a lot" of blood, some of which dripped onto the car's interior.

Defendant then approached the street and King, parked across the street, backed his car up within 15 feet of defendant to confront him. Thomas testified King stopped the car about two car lengths away from defendant and "hollered out the car [sic]. He said what is happening, man[?]" King similarly testified that he backed up the car to "see what he hit [Thomas] like that for." Under cross-examination, Thomas testified that he, at some point, told King that defendant had a gun.

Thomas and King both testified that defendant pulled out a pistol and began firing at the car. King recalled that defendant pulled out a black semiautomatic pistol and fired "[m]aybe three, four, maybe five" shots, holding the weapon sideways in his right hand. Although King initially stated that he observed defendant in the car's mirrors, under cross-examination, King said he watched defendant through the left rear passenger window. King said defendant ran into the middle of the street as he fired the weapon.

Thomas testified that he heard defendant fire "three or four gunshots" at the car and that he was facing forward and looking away from defendant. Thomas claimed he could see defendant firing the weapon through King's rearview mirror, however, and that defendant was in the middle of the street. According to Thomas, King "pulled away in a speed that, you know, that the bullet wouldn't hit the car." Similarly, King testified that he "pulled out to keep ahead of" defendant, estimating the car's speed at 25 miles per hour. Thomas and King testified they heard a single bullet ricochet off the car.

Thomas testified that they flagged down a police car at 35th and State, although Thomas said he was disoriented from his head wound and could not remember how long it took to locate help. Thomas also testified that King drove south, while King testified they drove north. Although King testified that they located police at 39th and State, that intersection, like 35th and State, is north of the CHA building.

The State also presented the testimony of Derrick Gardner, who was driving south on Prairie Avenue to look at potential property investments in the neighborhood. Gardner stated that as he approached the intersection of 41st Street and Prairie Avenue, he witnessed defendant fire a gun at King's vehicle. Gardner testified that as he neared the scene, King's car was facing north and was "kind of in the middle of the street," which is what drew Gardner's attention.

Gardner recalled that defendant was standing on the same side of the street as the CHA building and was "on the [curb] -- like right off the [curb] in the street" as he fired at King's car. Gardner testified King's car was speeding northbound when it passed within five feet of his own car and that defendant fired two or three shots at King's vehicle. Consistent with King's account, Gardner testified defendant held his firearm sideways in his right hand.

On cross-examination, Gardner recalled he stopped his car 10 or 15 feet from defendant for "two or three seconds" and backed up toward 41st Street while keeping his eyes on defendant.

When the two men made eye contact, Gardner claimed that defendant fired a shot in his direction. Gardner then ducked his head down and drove west on 41st Street. Gardner dialed 911 on his cell phone and told police that a light-skinned African-American male wearing a black coat and a black hood was firing a gun at the intersection of 41st Street and Prairie Avenue. Gardner then flagged down two police officers near the intersection of 45th and Michigan.

Chicago police officer Arthur Davis testified that at approximately 7:30 a.m., he was dispatched to investigate a report of shots fired by a light-skinned African-American male wearing a black coat and a black hood in front of the CHA building. Upon arriving at the scene, Davis saw defendant standing on the street across from the CHA building wearing a black coat and a hood. Davis testified he approached defendant, but did not immediately place him in custody.

Gardner then returned to the scene with the two officers he had flagged down and identified defendant as the gunman. Under cross-examination, Gardner stated that when he arrived at the scene, defendant was being questioned by only one officer and was not in handcuffs. Gardner recalled that King and Thomas returned to the scene after he did. Officer Davis recalled, however, that Gardner, Thomas and King arrived "almost simultaneously."

Thomas testified that when they returned, two or three police officers were present and that defendant was leaning against a car. King testified that defendant was in handcuffs when they arrived. According to Thomas, when he approached defendant, defendant stated, "I didn't do anything to these guys here." King also recalled defendant making a similar remark upon seeing the two men arrive.

Officer Davis transported defendant to the second district police station where he conducted a custodial search and recovered a $10 bill from defendant's pocket. A firearm was not recovered. Defendant's right hand tested positive for gunshot residue, which, according to the State's forensic scientist, established within a reasonable degree of scientific certainty that defendant discharged or was in the environment of a discharging weapon or that he touched something with gunshot residue on it.

Police photographs entered into evidence depicted (1) Thomas's face and head where he was injured; (2) King's car parked outside the police station; and (3) the license plate of King's car with an indentation that the police forensic investigator testified was consistent with a bullet ricochet. King testified that his car was five days old and that the dent was not there before the shooting. No photographs were taken of the interior of King's car and no bullets or shell casings were recovered from the scene. The parties stipulated that Thomas was a three-time convicted drug offender and that defendant previously had been convicted of possession of a controlled substance with intent to deliver.

At the close of evidence, the court stated that Thomas, King and Gardner provided credible testimony that corroborated one another's accounts. The court also noted that Gardner was an independent eyewitness. The court further noted that the testimony of Gardner and Officer Davis established that defendant was not in custody when he was first identified by Gardner and that all of the witnesses "immediately identified the defendant as the shooter" upon seeing him. The court convicted defendant of armed robbery and aggravated discharge of a firearm but acquitted him of attempted murder. Defendant was sentenced to 30 years in prison for armed robbery and 15 years for each count of aggravated discharge of a firearm, with the latter sentences to run concurrently.


I. Sufficiency of the Evidence

Defendant contends that the evidence presented at trial failed to meet the State's burden of proving his guilt beyond a reasonable doubt. He concedes that the prosecution established the elements of armed robbery and aggravated discharge of a weapon. Nevertheless, he contends that the evidence was contradictory and implausible and does not establish that he was the robber or the gunman.

When reviewing the sufficiency of the evidence of a criminal conviction, it is not this court's role to retry the defendant; rather, we determine whether, 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. Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L.Ed. 2d 560, 573, 99 S.Ct. 2781, 2788-89 (1979); People v. Ward, 215 Ill. 2d 317, 322, 830 N.E.2d 556, 558-59 (2005). Indeed, "[i]t is the trier of fact's responsibility to determine the witnesses' credibility and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from the evidence; we will not substitute our judgment for that of the trier of fact on these matters." People v. Brooks, 187 Ill. 2d 91, 131, 718 N.E.2d 88, 111 (1999).

Further, a trial court, having heard the evidence and drawn all reasonable inferences therefrom, is "'not obligated to accept any possible explanation compatible with the defendant's innocence and elevate it to the status of reasonable doubt.'" People v. Sutherland, 223 Ill. 2d 187, 272, 860 N.E.2d 178, 233 (2006), quoting People v. Evans, 209 Ill. 2d 194, 212, 808 N.E.2d 939, 949 (2004). A conviction will only be reversed when "the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt." People v. Sullivan, 366 Ill. App. 3d 770, 782, 853 N.E.2d 754, 766 (2006).

Defendant's principal contention is that the State's witnesses were not credible. Specifically, defendant attempts to impeach Thomas's testimony on the basis that his prior drug possession convictions tarnish his credibility. Defendant further alleges that several inconsistent statements by witnesses about the length of time in which the robbery occurred and the exact location from which defendant was shooting "cannot simply be explained away by the vagaries of memory."

In particular, defendant notes that: (1) Thomas stated that he thought he saw defendant's face for "20 or 15 minutes" during the robbery but later could not remember how long the encounter lasted; (2) King and Thomas offered conflicting testimony about whether the robbery took place inside or outside the CHA building; (3) King and Thomas gave conflicting accounts about the direction in which they left the scene; (4) King's and Thomas's statements that they drove away slowly were not believable if defendant was firing a gun at them; and (5) their credibility was further harmed by the implausible notion that they would confront an armed assailant.

We find these challenges to the credibility of the State's witnesses to be meritless. As the State correctly points out, although there were minor inconsistencies in the testimony, all of the witnesses testified consistently regarding the facts most pertinent to the State's case, precisely:

(1) the time and location of the robbery and shooting; (2) that the gunman shot repeatedly; (3) that he held the gun in a distinct manner in his right hand; and (4) that ...

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