Appeal from the Circuit Court of Cook County. No. 06 CR 4088 The Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Defendant Michael Woods appeals from his conviction after a jury trial of first degree murder and armed robbery, and his sentence of two concurrent 20-year terms of imprisonment. On appeal, he contends that his trial counsel provided ineffective assistance when he conceded Woods' guilt to the armed robbery charge which, he argues, amounted to a concession of guilt to the first degree murder charge under the theory of felony murder.*fn1
¶ 3 The trial court sentenced Woods on October 7, 2009, and he filed a timely notice of appeal on October 7, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 Sergeant Sliva testified for the State in Woods' jury trial. Sliva stated that on January 17, 2006, around 8:30 p.m., he took part in a team conducting surveillance at an Auto Zone auto store at Central and Diversey in Chicago. Around 10 p.m., he noticed a maroon vehicle pull into the store's parking lot. Three people exited the vehicle and entered the store. One of the three pulled his hoodie up before entering the store. Through the front door, Sliva saw that an individual wearing a white dust mask used keys to lock the door from the inside. Based on his experience, he believed a robbery was taking place and he radioed for assistance. Officers responded "within a minute" and took cover behind the maroon vehicle. Sliva assumed that other officers stood guard behind the building because he had asked for help in forming a perimeter "to prevent any escape routes."
¶ 6 As Sliva watched the front door, he observed a male wearing a black jacket with a hoodie and a dust mask over his face come to the door. Sliva stated that the man, later identified as Cleon Jones, had a weapon in his right hand and keys in his left hand. After Jones unlocked the door, he turned toward Sliva and the other officers with him. One of the officers said, "Police. Drop the gun." Jones, however, raised the gun toward the officers at which point Sliva discharged his gun approximately nine times. Other officers also discharged their weapons. Sliva believed they had fired about 39 shots altogether.
¶ 7 One of the shots fired hit Jones, who took a couple of steps back and fell. Sliva did not see anyone else in the store at the time. The officers then entered the store whereupon Sliva observed Jones on the floor and, about 15 feet behind him, a bluesteel revolver. Sliva testified that the revolver was the same weapon Jones had pointed at the officers earlier. He then searched the aisles looking for the two other offenders whom officers subsequently detained in the store.
¶ 8 During cross-examination, Sliva stated that his weapon was a semiautomatic weapon that would take only "a second or two" to discharge the nine rounds he fired at Jones. He acknowledged that he did not know whether officers continued to fire rounds at the other offenders after Jones had been hit. Defense counsel also elicited testimony from Sliva that two officers on the scene fired 16 rounds and 8 rounds, respectively, at Jones.
¶ 9 Adrian Matos testified that on January 17, 2006, he worked for the Auto Zone as a parts and sales manager. Just before 10 p.m. that evening, he was at the store with two employees, Oscar Pizano and Jonathan Laluz. While Matos was talking to Pizano in the front of the store, a man wearing a scarf entered. He walked past Matos and then another man walked in behind him. The second man wore a painter's mask and he told Matos not to touch anything. The men grabbed Matos and Pizano and took them to the back of the office, where they demanded that Matos and Pizano empty their pockets. Laluz was also in the room and the men forced him to empty his pockets.
¶ 10 The men told Matos to open the safe in the office. After Matos opened the safe, they told him to lie down and proceeded to tie his hands behind his back with a spark plug cable. Matos testified that he believed Pizano and Laluz were also tied up and on the ground. One of the men took his store keys and Matos heard him lock the front door. Then the men tried to break open the inner safe and he heard something like change falling into a bag. The men instructed Matos, Pizano and Laluz not to move and told them to count to 10. Matos heard footsteps to the front door, and then he heard "it's the police" or "it's the cops" before gunfire erupted. When he heard the gunshots, Matos broke free of the cable and pulled Pizano and Laluz to a corner. Soon after, an officer came by and they identified themselves as employees of the store.
¶ 11 Laluz testified that on January 17, 2006, just before 10 p.m., he was in the back of the store stocking parts. Two other employees, Matos and Pizano, were also in the store at the time. He observed two African-American men wearing painters' masks walk into the store. When Laluz walked to the front of the store, another man, wearing a scarf, held a gun to his head. The scarf covered everything on the man's face except for his eyes. The man with the gun told Laluz to "follow my lead" and they walked down the aisles. He then took Laluz to the office area, where Laluz saw the other employees tied up, facedown on their stomach. Two men wearing painters' masks were in the office. One told Laluz to get down on his knees, and he was tied with a telephone wire. The men with masks tried to break open the safe. Laluz testified that he did not know which person had the gun in the office area. One of the men walked to the front door and "shots started coming in the office." The two other men ran to the emergency doors in the back and then police entered the office.
¶ 12 On cross-examination, Laluz stated that before gunshots were fired, he did not hear anyone yell, "Drop the gun. Drop the gun." He also did not see anyone actually ...