Court of Appeals of Illinois, First District, Third Division
Modified upon denial of rehearing August 27, 2014.
Appeal from the Circuit Court of Cook County. No. 09 CR 9235. The Honorable William J. Kunkle, Judge, presiding.
Defendant's conviction for residential burglary was vacated and a conviction for burglary was entered and the cause was remanded for resentencing, since there was no evidence that at the time of the offense, the owners or occupants resided or in their absence intended within a reasonable time to reside at the premises; furthermore, even though defendant was not properly admonished pursuant to Supreme Court Rule 401 prior to his waiver of counsel, he was not entitled to a new trial, because he only represented himself with respect to a motion to quash and then elected to proceed with counsel, the denial of that motion did not affect the outcome of the trial and the incomplete admonishment did not prejudice defendant, and as a final matter, three erroneously assessed fines were also vacated.
FOR PLAINTIFFS-APPELLEE: Peter D. Fischer & Michael O'Malley, State's Attorney of Cook County, Chicago, IL.
FOR DEFENDANT-APPELLANT: Brian A. McNeil, Office of the State Appellate Defender, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
[¶1] After a bench trial, defendant Marcello Moore was found guilty of residential burglary. Moore then filed a pro se motion for the reduction of his sentence, which the trial court denied. In this consolidation of defendant's direct and postsentencing appeals, he contends the prosecution presented insufficient evidence at trial to find him guilty beyond a reasonable doubt of residential burglary. He also contends he should receive a new trial because the court did not properly admonish him before he waived counsel, which he did for a single pretrial motion before changing his mind and deciding to be represented again. Lastly, the parties agree that Moore was erroneously assessed certain fines and fees.
[¶2] We agree that the trial evidence failed to establish beyond a reasonable doubt one of the elements of residential burglary--that an owner or a resident intended to reside at the building at the time of the burglary. Accordingly, we reduce the conviction from residential burglary to burglary. We agree that the trial court improperly admonished Moore regarding waiver of counsel, but under the circumstances, that did not deprive Moore of counsel at a critical stage or prejudice him, as he acted pro se for one proceeding, a motion to quash, which his counsel had refused to pursue because of its lack of merit. As to the fines and fees, we modify the judgment.
[¶4] Marcello Moore was charged by information with residential burglary for allegedly entering 6646 South Maryland Avenue, Chicago, on May 5, 2009, without authority and with the intent to commit theft. The arrest report and complaint for preliminary examination gave the wrong address.
[¶5] Moore requested to represent himself, telling the trial court, " I have been asking [counsel] to file motions in these cases and she is refusing to file them." The court provided Moore with detailed written admonishments on self-representation, listing defendant's rights, the advantages of representation by counsel, and the disadvantages of proceeding without counsel. The document ended with a waiver of counsel signed by Moore. The document
recited, " I have received a copy of the charges against me, and I have read and understood the charging document." But it did not describe the charges, and the next sentence, " I understand the possible penalties in this case," was completed in handwriting with " I have not received copies of anything as of yet," followed by a request for access to a law library and investigator and a particular discovery request. After Moore read and signed this waiver document, the trial court confirmed on the record that Moore understood he had a right to counsel, that he would not have standby counsel, he would not later be able to claim ineffective representation, he and not counsel would be calling and questioning witnesses, and he would have limited ability to investigate his case from jail. The court confirmed that Moore waived his right to counsel voluntarily and had read and signed the waiver. The court granted Moore's motion to proceed pro se and counsel's motion to withdraw. In addition, the court ordered that defense copies of discovery be tendered to the State for redaction and then given to Moore.
[¶6] At a later court date, Moore noted that he had not yet received the discovery, and filed a pro se motion to quash his arrest and suppress evidence. Moore alleged that although arrested at 1:30 p.m. at 6446 South Maryland, records showed that officers were sent at 1:18 p.m. to investigate a report of a residential burglary at 6438 South Maryland so that the " officers were at the wrong location at 1:30 p.m. There was no reason for officers to be at 6446 S. Maryland." He also alleged that, while the police report indicated that the burglar left the building carrying " the blower to the furnace," this item was not recovered or inventoried, and therefore, " does not exist." For both reasons, Moore argued, no probable cause existed to arrest him. He also argued that a security alarm recovered in his postarrest search, later inventoried and identified by the owner as his, should be excluded. In addition, while it had been alleged that a door of the premises was kicked in, Moore pointed out that the State failed to photograph the door or gather evidence (photographs, shoeprints, or the shoes themselves) regarding his shoes. (Two of the photographs in the record on appeal are of a door dented inward and otherwise severely distorted on its lower half close to the locking, as opposed to the hinged, side.)
[¶7] He also claimed a denial of his right to confront his accuser because the officer who testified at his preliminary hearing was not the officer who saw the burglar leaving the building.
[¶8] Moore argued pro se his motion to quash. He asked police officer Salvador Lara if he was aware that he had been dispatched to 6438 rather than 6446. When he could not so recall, Moore confronted him with the report of the dispatch. The court explained to Moore that the dispatch would have to be introduced into evidence by the witness who sent it. Moore directed the same questions at Officer Stanley Gas, who testified that he did not respond to the initial dispatch but to a later call by Officer Tracy Quarles for assistance at 6446.
[¶9] Officer Quarles testified that he responded to a reported " burglary in the 6300 block of Maryland," and went to the back door of the premises (that is, 6446) while other officers went to the front. Once there, Quarles saw Moore fleeing the rear of the building, then drop a furnace blower and run toward the front.
[¶10] The trial court denied the motion to quash, stating that the officers were outside the building when they saw Moore and had " a right to be there" to investigate the ...