Appeal from the Circuit Court of Cook County No. 06 CR 4088 (02) The Honorable Marcus R. Salone, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
¶ 1 Defendant, Levi Gilbert, appeals his convictions after a jury trial of first degree murder and two counts of armed robbery, and his sentence of 20 years' imprisonment and two concurrent terms of six years' imprisonment. On appeal, Gilbert contends his case must be remanded for a new trial where (1) he was denied his sixth amendment right to counsel because at the time of trial his counsel faced a one-year suspension of his law license and suffered from dementia, and counsel never informed him of these occurrences; and (2) his counsel committed numerous trial errors, rendering his assistance ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Gilbert also argues that we must vacate his two convictions for armed robbery because they were the predicate felonies for his felony murder conviction. For the following reasons, we affirm Gilbert's conviction for felony murder and vacate his convictions for armed robbery.
¶ 3 The trial court sentenced Gilbert on October 4, 2010. He filed a notice of appeal on October 4, 2010. 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 Gilbert and co-defendant Michael Woods were charged with armed robbery and felony first degree murder for the police shooting of another co-defendant, Cleon Jones. Each defendant was tried simultaneously before separate juries. Gilbert was represented by attorney William E. Brooks. At the time of trial, which began on August 6, 2008, and ended on August 11, 2008, Brooks faced a recommendation by the Attorney Registration and Disciplinary Commission (ARDC) hearing board that his license be suspended for one year. The review board affirmed this recommendation on December 12, 2008, and the suspension began on March 16, 2009, when the supreme court finalized the determination. While representing Gilbert, Brooks did not inform him of the ARDC's recommendation.
¶ 6 At trial, Officers Sliva and Ferraro testified as to the events of January 17, 2006. Acting on information they received, the officers conducted surveillance at the Auto Zone store located at Diversey and Central Avenues in Chicago, Illinois. They set up surveillance about 300 yards from the store. Around 10 p.m., they noticed a maroon car pull into the Auto Zone parking lot.
Three men exited the car and entered the store. One of the men pulled up the hood of his jacket, and Officer Sliva saw another man, wearing a dust mask, lock the front door from inside the store. The officers believed they were witnessing a robbery and called other units for assistance. As they waited, Officers Sliva and Ferraro positioned themselves behind a parked car about 10 to 15 feet from the front door of the store.
¶ 7 Officers Brosnan and Bone arrived at the scene and positioned themselves behind the maroon car. Other officers took positions at the rear and side of the building. Eventually, the officers in front of the store saw a man wearing a black hoodie jacket with a dust mask over his face walk from behind the counter in the store toward the front door. The man carried keys in his left hand and a handgun in his right hand. He unlocked the door and as he opened it the officers shouted, "Police, drop the gun." Officers Sliva and Brosnan testified that the man raised his gun and pointed it at Sliva and Ferraro. The officers fired their weapons, 39 rounds in all, within a second or two. The man took a couple of steps back and fell into the store.
¶ 8 When the officers entered the store, they found Cleon Jones on the floor. They recovered a bluesteel revolver about 15 to 20 feet behind Jones. No fingerprints were detected on the weapon. The officers also recovered three white envelopes containing United States currency from Jones. Jones died from a single gunshot wound to his chest.
¶ 9 Adrian Matos, the manager of the Auto Zone, and employees Jonathan Laluz and Oscar Pizano were working on the night of January 17, 2006. Matos and Pizano were in the front of the store when three men entered. Laluz was in back restocking parts. Two of the men wore painters' masks and one had a scarf tied around his face. The man with the scarf had a gun. The men took Matos' and Pizano's wallets, keys and phones, and ordered them to take them to the safe. They went into the office, and when the men ordered Matos to open the safe, he complied. The men then ordered Matos and Pizano to lie down and they tied Matos' and Pizano's hands with spark plug cables. When Laluz walked out from the back of the store, he ran into the man with the scarf, who took Laluz to the office. Laluz was then tied up. Matos, Pizano, and Laluz heard the men banging on the safe and then heard footsteps going to the front door of the store. They heard gunfire, but no one heard police shout, "Police, drop your gun" before the gunfire. Soon thereafter, police arrived and untied them.
¶ 10 Sergeant Lohman answered a call about a robbery in progress at the Auto Zone store just before 10 p.m. on January 17, 2006. He went to the side door of the building where other officers had set up a perimeter in case anyone tried to exit from that door. Sergeant Lohman heard shouts of "Police, put the gun down" in front of the store. The officers then heard gunfire. After the shooting, the side door opened and co-defendant Woods was seen holding a canvas bag as he pushed open the door. Gilbert was behind Woods. Woods said, "Oh, shit," and ...