Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 08 CR 12655. Honorable Thomas M. Davy, Judge Presiding.
FOR APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, Adrienne N. River, Assistant Appellate Defender, OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL.
FOR APPELLEE: Anita Alvarez, State's Attorney; Alan J. Spellberg, Christine Cook, Andrea V. Salone, Assistant State's Attorneys, OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL.
JUSTICE ELLIS delivered the judgment of the court, with opinion.[*] Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.
[¶1] Defendant Carl Hicks was charged with armed robbery for allegedly holding up a candy store. The State's witnesses testified that, during the robbery, he pointed a gun at the store's cashier and struggled with her over the money he took from the cash register. Defendant admitted that he took the money from the register, but denied carrying a gun or touching the cashier.
[¶2] Based upon his testimony, defendant requested that the jury be instructed on the lesser offense of theft, which the trial court allowed. The trial court also sua sponte instructed the jury on robbery, over defendant's objection. During its deliberations, the jury requested a legal definition of " force," an element of robbery. 720 ILCS 5/18-1(a) (West 2008). The trial court responded that there was no definition and that the jury should decide whether defendant used force based upon the facts of the case. Defendant's attorney agreed with the trial court's response. The jury convicted defendant of robbery.
[¶3] Defendant appeals, raising three issues: (1) whether the State's evidence was insufficient to prove that he took the money by the use or threat of force; (2) whether the trial court erred in sua sponte instructing the jury as to the offense of robbery; and (3) whether his trial attorney provided ineffective assistance of counsel when he failed to tender a definition of " force" in response to the jury's question.
[¶4] We conclude that the State's evidence was sufficient to prove that defendant committed robbery. The evidence at trial, viewed in the light most favorable to the State, showed that defendant grappled with the store's cashier when he took the money from the cash register and thus used " force" sufficient to convict him of the offense of robbery.
[¶5] We also conclude that the trial court did not err in instructing the jury as to the lesser-included offense of robbery. The evidence at trial supported such an instruction, and the trial court cited the correct legal authority before delivering the instruction. The record shows no abuse of discretion.
[¶6] Finally, we reject defendant's claim of ineffective assistance of counsel, because we find that defense counsel's failure to define force did not prejudice defendant. There is no pattern jury instruction defining " force," and no authority requires a trial court to define that term. Moreover, defendant cannot show that the definition of " force" would have likely changed the outcome of his trial where the State's evidence supported a finding that defendant used force. Therefore, defendant cannot show that there was a reasonable probability that the trial court would have accepted his definition of force, much less that this definition may have changed the outcome of his trial. We affirm defendant's conviction.
[¶7] I. BACKGROUND
[¶8] A. Trial Evidence
[¶9] Selena Clark testified that, on June 23, 2008, she was working at her family's candy store located at 1158 West 87th Street in Chicago. Around 4 p.m., she noticed defendant enter the store. Defendant approached the counter and " mumbled something." Clark testified that defendant held a black revolver to her with his left hand and tried " to go in the register" with his right hand. He told her to give him the money in the register. She testified that, as defendant reached for the money, she grabbed his left wrist and was " fighting him off."
[¶10] Clark testified that she screamed for her father, who was in the back office of the store. As her father ran out of the office, defendant " took off running out [of] the door" with some money from the register. After defendant fled, Clark noticed a cell phone on the floor in front of the counter. Clark testified that, after the struggle with defendant, her fingernails were broken and bleeding.
[¶11] Willie Tate, Clark's father, testified that, when he ran out of the office, defendant was " reaching in the register and [Clark was] fighting him off." Tate said that defendant " reach[ed] at the register *** and [Clark] was hitting him." As Tate approached defendant, he saw that defendant had a revolver in his right hand. Clark fought with defendant for about 15 seconds, when defendant backed away and went out the door. Tate went around the counter to the lobby of the store, where he saw a cell phone on the floor. Tate testified that he called the police after defendant left.
[¶12] Tate suffered from glaucoma, which affected his vision. Tate maintained that he could still see at the time of trial and that he saw much better in June 2008 than he did at the trial. At the time of the trial, Tate was in the custody of the Illinois Department of Corrections for a 2009 conviction for delivery of a controlled substance. He had been convicted of two other drug offenses in 2002 and 2004 and had a pending drug charge from 2011. Tate testified that he had not made any deals or agreements in exchange for his testimony.
[¶13] Tate testified that, while he was in Cook County jail in February 2010, he saw defendant. Defendant asked Tate if he remembered him. Tate testified that, later that day, he saw defendant again in the Bridgeview courthouse lockup. Tate testified that defendant said he did not mean to harm Clark or Tate on June 23, 2008; that " [h]e just was high" and " needed a couple of more bucks to get him [ sic ] some more drugs." Tate said that defendant apologized to him. Tate testified that defendant said he did not mind if Tate testified " that he committed the robbery ***, but he asked [Tate] if [he] would just not mention *** the gun."
[¶14] Officer Gabriel Campos of the Chicago police department testified that he responded to the scene of the robbery and spoke to Clark or Tate. He did not recall Clark being injured. Campos testified that he arrested defendant later that day. Clark and Tate identified defendant in a lineup at the police station.
[¶15] The parties stipulated that the cell phone left at the store was registered to defendant. They also stipulated that an investigator from the Cook County State's Attorney's office would testify that he spoke to Tate prior to trial and that Tate told the investigator that, when he spoke to defendant in jail, defendant said he did not have a gun during the robbery.
[¶16] Defendant testified that, as of June 23, 2008, he was addicted to drugs. On that date, he met a woman named Vanessa who said that she was also an addict. Defendant gave Vanessa his phone and asked if she could sell it so that defendant could use the money to buy drugs. Defendant testified that Vanessa took his phone into the candy store while defendant waited outside. Defendant testified that Vanessa finally left the store 45 minutes to an hour later. Defendant followed Vanessa to an alley, where she spit out a $10 bag of cocaine. Defendant testified that Vanessa said, " That's all he would give me."
[¶17] Defendant testified that he took the bag of cocaine and returned to the store, hoping to get his phone back. When he entered, he approached Clark, who was standing behind the counter. Defendant saw his phone sitting on the counter. Defendant put the bag of cocaine on the counter and asked for his phone back. Defendant testified that Clark denied giving the cocaine to Vanessa or accepting defendant's phone.
[¶18] Defendant testified that he reached for his phone but Clark grabbed it first. In response, defendant grabbed $40 out of the open cash register, put it in his pocket, and ran out of the store. Defendant denied having a gun with him that day. He also denied touching Clark or having a struggle with her.
[¶19] Defendant admitted that he apologized to Tate while they were both in jail. Defendant said that he told Tate that he did not have a gun in the store. Defendant testified that he asked Tate " to not come into court and ...