Court of Appeals of Illinois, First District, Fourth Division
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Appeal from the Circuit Court of Cook County. No. 11 CR 13186. Honorable Timothy Chambers, Judge, presiding.
Reversed and remanded with instructions.
FOR APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, Peter Sgro, Assistant Appellate Defender, OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL.
FOR APPELLEE: Anita Alvarez, Alan J. Spellberg, Michelle Katz, Samuel C. Ray, Assistant State's Attorneys, OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL.
JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and opinion.
[¶1] Defendant Eugene Wright was convicted of four counts of armed robbery while armed with a firearm pursuant to section 18-2(a)(2) of the Criminal Code of 1961 (the Code) (720 ILCS 5/18-2(a)(2) (West 2010)), and sentenced to 50 years in prison. On appeal, defendant asserts: (1) his due process rights were violated when the State secured his indictment for armed robbery with misleading testimony; (2) the trial court failed to properly admonish him pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984); (3) the trial court improperly excluded codefendant's statement that codefendant committed the crime with a BB gun; (4) the State failed to prove him guilty beyond a reasonable doubt of armed robbery while armed with a firearm; and (5) the trial court erred by failing to instruct the jury on the definition of a firearm. We reverse defendant's conviction, and remand his case for a new trial.
[¶3] The State charged Eugene Wright and codefendant Michael Morgan, who is not a party to this appeal, by indictment with four counts of armed robbery with a firearm in connection with a December 26, 2010, robbery at a Baker's Square restaurant located at 7131 North Western Avenue in Chicago. Defendant was originally indicted under No. 11 CR 928 on January 10, 2011, when Officer Tracy Walczak provided inaccurate testimony that three witnesses identified defendant at the show-up when only one witness identified him. As a result of the inaccurate testimony, the State reindicted defendant under No. 11 CR 13186 and ultimately nol-prossed the original indictment.
[¶4] At the August 15, 2011, grand jury proceeding, Detective Allen Lee testified that he investigated the Baker's Square robbery. He stated that defendant and codefendant walked into the restaurant and codefendant announced a robbery. After taking the money from the safe, defendant and codefendant exited. Codefendant used a handgun during the robbery, but disposed of the weapon before he was apprehended after leaving the restaurant. Detective Lee stated that a weapon was never recovered. Detective Lee also testified that defendant was identified as a perpetrator by one eyewitness and Officer Cirrincione, who had been staking out the restaurant. The grand jury returned a true bill for armed robbery with a firearm.
[¶5] On February 7, 2011, defendant was arraigned. Initially, defendant was represented by a public defender. However, after the public defender sought a continuance to order discovery, defendant said he wanted to hire his own attorney and the case was continued until February 24, 2011. On February 24, 2011, defendant indicated that he wished to proceed pro se. The trial court informed defendant that he had a right to an attorney, but the court would not appoint counsel other than the one from the public defender's office. The court admonished defendant that he was charged with two different cases of armed robbery and that he could possibly be sentenced to consecutive sentences with a range of 21 to 45 years in prison for each conviction. The State informed the court that defendant was eligible for a maximum sentence of 60 years in prison because of his criminal background, and the court then admonished defendant that he could be eligible for an extended-term sentence with a maximum range of 60 years in prison. Defendant confirmed that he wanted to proceed pro se.
[¶6] The court admonished defendant again on March 1, 2011. The court informed defendant that he was not eligible for consecutive sentences, but based on his criminal history and the use of a handgun during the offense, he faced a concurrent sentence of 21 to 60 years in prison. Defendant stated that he had completed two years of college and had experience with the criminal justice system, and the court allowed defendant to proceed pro se. The following evidence was adduced at trial.
[¶7] On December 26, 2010, shortly before 11 p.m., codefendant, wearing a gray hoodie, a white hat, jeans, and gym shoes, entered the Baker's Square located at Touhy and Western and asked server Michael
Morina if they were still selling pies. Morina went to the back of the restaurant to find the manager, Martin Perez, and told him that a customer wished to place a to-go order. Perez testified that he went to the front counter and asked codefendant what he needed and codefendant turned around and lifted his hoodie to reveal what Perez thought " looked like a black automatic, black gun" tucked into his waistband, and stated " [t]his is a robbery; take me to the office." Perez was sure codefendant's gun was an actual firearm as he had seen guns like that in Mexico. Defendant, wearing a black hoodie, blue jeans, and a black headband, entered the restaurant and approached the counter. Codefendant followed Perez into the office. Perez " felt something sharp in [his] back" as he walked which he stated was the barrel of the gun. Perez had previously received e-mails that two black men, about 6 feet tall, had robbed other Baker's Square restaurants and he thought these men might be the ones about whom he had been warned.
[¶8] In the office, codefendant ordered Perez to open the safe and give him the money inside. Perez unlocked the safe and gave codefendant a deposit bag marked " Baker's Square" and some loose bills from an extra cash drawer. After receiving the money, codefendant told Perez to gather all his employees. Perez asked Martin, Morina, Tsehayens Tsegaye, a waitress, and Leo Martinez, a cook, to come near the kitchen. Codefendant asked the employees to throw their cell phones into a garbage can. He told Morina to stop looking at him and demanded his tip money. After Morina gave codefendant his tip money, codefendant ordered all of the employees into the walk-in cooler and told them to wait there for five minutes before exiting. Once codefendant and defendant left, Perez pulled the alarm inside of the cooler. After two or three minutes, Perez and Morina exited the cooler, leaving Tsegaye and Martinez inside. Perez then went to the office and called 911.
[¶9] Tsegaye and Morina testified in a manner consistent with Perez. Tsegaye added that when she asked defendant why he wanted her to throw away her cell phone, codefendant grabbed her arm, pulled up his shirt, showed her a gun in his waistband and told her that " you're being robbed." Tsegaye could only see the handle of the gun. Morina testified that he also observed the handle of defendant's gun and believed it to be a " 9 millimeter pistol."
[¶10] Chicago police officers Paul Cirrincione, Tracy Walczak, and Sergeant Lewadowski were assigned to conduct surveillance of the Baker's Square at Western and Touhy. The officers received this assignment because the Baker's Square at Harlem and Foster in Chicago had been previously robbed near closing time. The officers were told that the previous robbery had been carried out by two black males in their late twenties and early thirties, one wearing a gray vest and the other a dark hoodie, and that they used a black van with tinted windows as the getaway car. Around 11 p.m., the officers observed two black males, fitting the description of the suspects from the previous robbery, exit the restaurant. The officers later identified these men as defendant and codefendant. After the men exited the Baker's Square, they looked around and then walked " very fast" southbound on Western Avenue, and then turned eastbound onto Estes Avenue. Based on these observations, the officers drove their car through the parking lot toward defendant and codefendant and asked the men to come over. As the officers got out of their squad car, the men looked at them and then fled.
[¶11] Officer Walczak chased codefendant on foot while Officer Cirrincione drove the
squad car through an alley behind the mini-mall in an attempt to cut him off. Officer Cirrincione exited his squad car and chased codefendant on foot. During the chase, a radio call came in that the Baker's Square had been robbed. Officer Cirrincione alerted other officers in the area via radio that he was chasing codefendant. Officer Cirrincione chased codefendant until codefendant slipped in front of a house at 2322 West Greenleaf and Cirrincione grabbed him. The two men wrestled until Sergeant Lewandowski and Officer Gremo arrived and helped place codefendant into custody. Officer Gremo searched codefendant's pockets and recovered a deposit bag labeled " Baker's Square," containing cash, and a separate large bundle of loose cash. After a search of the area where codefendant was detained, officers were unable to locate his gun, noting the large amount of snow on the ground.
[¶12] After codefendant was detained, Sergeant Lewandowski returned to the Baker's Square. On the way there, he saw a large black conversion van with tinted windows traveling southbound on Western Avenue matching the description of the van used in the previous Baker's Square robbery. He radioed that a black van with tinted windows and a low-hanging muffler was traveling south on Western, and that it was possibly involved in a robbery. The van was located by Officer Eric Killion after he heard the call. Killion curbed the van, took defendant out of the van and handcuffed him. Killion did a quick search of defendant and the van for weapons, but he did not find any.
[¶13] Officer Michael Chuchro also responded to the call and put defendant in his squad car. Chuchro searched the van and did not see a weapon, but saw several rolls of coins on the floor between the front seats. Officer Nester DeJesus stayed with the van while Chuchro and his partner, Officer Accardo, took defendant to the Baker's Square parking lot for a show-up identification. Officer Lewandowski was inside the restaurant with the witnesses for the show-up. Lewandowski testified that Perez, Morina, and Tsegaye each individually identified codefendant as one of the offenders. Although Perez identified defendant as the second offender, Morina and Tsegaye did not view defendant because they did not get a good look at the second offender. After the show-up, the men were arrested and taken to the 24th District police station. Officer Chuchoro returned to where Nestler had secured the van and drove it to the police station garage, where Officers Carden and McGovern searched the van and recovered four rolls of dimes and two rolls of quarters next to the driver's seat and a gray vest from the backseat.
[¶14] Detective Lee, who provided testimony at the August 15, 2011, grand jury proceeding, testified that he went to the Baker's Square at about 12:30 a.m. on December 27, 2010, to investigate the robbery. He interviewed Perez and watched the Baker's Square surveillance video. Detective Lee went to the 24th District station and viewed surveillance photographs of the Harlem and Foster Baker's Square robbery. He inspected the black van and saw a gray vest in the backseat that looked similar to a vest worn by one of the suspects in the Harlem and Foster Baker's Square robbery. Detective Lee had codefendant put the vest on and took a picture of him, which was introduced into evidence.
[¶15] On cross-examination, defendant asked Detective Lee about his grand jury testimony. Specifically, defendant asked whether he told the assistant State's Attorney that a weapon had never been recovered in connection with the robbery. Detective Lee testified that a weapon had
not been recovered " on that date of the incident." However, he noted that on January 2, 2011, a black Crossman BB gun was observed by a citizen lying in the street in the vicinity where one of the offenders was running. On January 15, 2011, Detective Lee submitted an evidence report requesting to have the gun tested for fingerprints to link the weapon with one of the two offenders. Defendant asked Detective Lee about the photographs contained within the evidence technician's report that showed where the BB gun was recovered and moved to enter them into evidence. The court asked defendant if he knew who took the photographs and when they were taken. Defendant said he did not know, and Detective Lee said he had never seen the photographs before. After the court told defendant that he could not ask about the photographs, defendant moved that his case be dismissed on the grounds that " the State violated the Brady Rule by not submitting these pictures to me."
[¶16] At a sidebar conference, the assistant State's Attorney informed the court that he had not seen the photographs in question, but admitted that he had tendered the reports regarding the BB gun being discovered on January 2, 2011. The assistant State's Attorney explained that the gun was submitted for fingerprints, but it had not yielded any suitable fingerprints for comparison to codefendant. Defendant argued that in addition to a Brady violation, Detective Lee had deceived the grand jury when he testified that no weapon was recovered when he knew that the BB gun had been found. In response to the assistant State's Attorney's comment that there was no proof that the BB gun was used in the robbery, defendant made an offer of proof that Detective Lee would testify that codefendant said he committed this crime with a black BB gun. However, defendant acknowledged that the statement was hearsay, and he needed " the actual person" to testify. The State asserted that if defendant tried to elicit codefendant's statement, it would elicit that codefendant also said he committed this crime with defendant. Defendant responded that he had no problem with eliciting codefendant's full statement. The trial court denied defendant's motion to dismiss the indictment based on a Brady violation.
[¶17] After the motion was denied, the following exchange took place:
" THE DEFENDANT: Then I'm asking a motion in alignment to dismiss charges because the State knowingly deceived the Grand Jury when Detective Lee was asked was a weapon ever recovered.
THE COURT: Well, as I heard Detective Lee, he was asked if a weapon was recovered that night. So based on that, I would deny the motion.
THE DEFENDANT: I'm reading from the transcript. The statement was never from that night. The statement__
THE COURT: That's how he heard it.
THE DEFENDANT: That's amazing.
THE COURT: Well, let's go back in court. The motions to dismiss are denied. It was not a ...