Appeal from the Circuit Court of Cook County. No. 08 CR 23465 The Honorable Evelyn B. Clay, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.
¶ 1 Defendant, Thomas Gallagher, appeals his conviction after a jury trial of one count of residential burglary and his sentence of four years' imprisonment. On appeal, Gallagher contends (1) his trial counsel was ineffective for failing to tender jury instructions on the lesser-included offense of criminal trespass to a residence; (2) the State failed to prove beyond a reasonable doubt that he entered a hotel room with the intent to commit a theft; (3) the trial court violated Illinois Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)) by combining three legal principles into a single question, and failing to address the fourth principle; and (4) the State made improper comments during closing argument implying that Gallagher lied about being an artist, and vouching for the credibility of the State's witnesses. For the following reasons, we remand the cause for a new trial.
¶ 3 The trial court sentenced Gallagher on May 19, 2010, and he filed a timely notice of appeal on June 7, 2010. Gallagher filed an amended notice of appeal on May 17, 2011. 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 Gallagher was charged with one count of residential burglary for entering the hotel room of Kenneth Burkes. The following facts are relevant to the disposition of this case.
¶ 6 At trial, Kenneth Burkes testified that he was 29 years old and resided in Wisconsin. On November 22, 2008, he, his girlfriend Stephanie, and Stephanie's five-year-old daughter came to Chicago to celebrate the Festival of Lights and visit the American Girl store. While in Chicago, they stayed at the Hilton located at 198 East Delaware. Gallagher stated that after walking through the door of their hotel room, there was "a small table with a sink in it and then the bathroom [was] there, then the bed [Gallagher slept in] [was] next to that *** [and] there's a night stand in between and another bed on the other side" in which Stephanie and her daughter slept. That night, Stephanie and her daughter were already asleep in their bed. Burkes had fallen asleep watching television when a text message to his cell phone woke him. He then went to the bathroom and prepared for bed. He testified that he liked "things to be square and neat" so he folded his pants and placed them over his bag. He took his "wallet out of [his] pocket, put that on the table [by the door] and it obviously had to be square with the table, and I had that in the upper left-hand corner of the table." He then turned off the lights and went to bed.
¶ 7 Burkes awoke again at some point because he either heard a noise or sensed something in the room, like he was "being watched." He observed a glare on the wall and after making sure Stephanie and her daughter were still sleeping in their bed, he "sat up and looked directly at the doorway." He then said, "Somebody [is] in our f -ing room." As he looked at the doorway, he "saw a man with a hat on, a black shirt with stripes, with I would say grayish stripes, and basically made contact, was able to completely identify the man standing in the doorway clear as day because the hallway was shining right on him, I mean he was working his way out and the door closed and that's what I saw." Burkes identified Gallagher as the man he saw in his room that night. He testified that he said "hello" to the man. When he first saw Gallagher, he was in the room "next to the table where [Burkes'] wallet was."
¶ 8 Burkes turned on the light and Stephanie asked him what he was doing. He told her that somebody was in their room and she replied that Burkes was probably dreaming. Burkes, however, got out of bed and opened the door. He heard the elevator ding and when he got to the elevator he looked in and saw two women and Gallagher, who was holding a bag and looking down at the floor. He wore the same clothing Burkes had seen him wear in the doorway of his room. At trial, Burkes identified a baseball cap and shirt as the items he saw Gallagher wear when he first observed him in the doorway.
¶ 9 After he failed to stop the elevator, Burkes went back to his room. He recalled that when he had first left the room to follow Gallagher to the elevator, he glanced at the table and noticed that his wallet was open "and some money fanned out." It was no longer in the corner of the table where he had placed it before going to bed. When Burkes came back to the room, Stephanie was counting the money in his wallet "because [they] were on a budget" and it appeared to be $40 short. When he told Stephanie that he wanted to investigate the matter further she thought he was crazy because the "guy could have a gun, he could have a knife." She wanted him to "leave it."
¶ 10 Burkes, however, went down to the lobby, where he saw the two women from the elevator at the front desk. They asked him what had happened and Burkes spoke with them. He then went to the twenty-second floor to see if he could find the man he saw in his room. When he did not see anyone, he went down to the lobby, where he spoke with Darlene Hampton, an employee of the Hilton. While he was with Hampton, the elevator door opened and a man wearing a blue shirt with glasses came out. He was carrying the same bag Burkes had seen Gallagher holding earlier that night. The man proceeded to Cafe Med and Burkes identified the bag. Hampton followed the man into Cafe Med and grabbed him by the arm. Burkes told Hampton that it was the same man he saw in his room, except he wore different clothing. Burkes testified that he never gave Gallagher permission to be in his room that night.
¶ 11 On cross-examination, Burkes stated that he was "one hundred percent positive" he closed the door to the hotel room before going to bed. Although he did not latch the door, he stated that the door locked when it closed. He stated that he saw Gallagher in the doorway next to the table where he had placed his wallet. Burkes testified that he could see Gallagher's face because he was backing out of the room. He told hotel security that night someone may have taken $40 from his wallet, but he did not talk to security about it the next morning. Burkes also stated ...