Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 10 CR 2330. The Honorable Angela M. Petrone, Judge Presiding.
For APPELLANT: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Kristen E. Mueller, Assistant Appellate Defender, Chicago, Illinois.
For APPELLEE: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Assistant State's Attorney, Yvette Loizon, Assistant State's Attorney, Brian A. Levitsky, Special Assistant State's Attorney, Of Counsel, Chicago, Illinois.
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
[¶1] On January 14, 2010, defendant was arrested after being discovered by Eugene Witherspoon in Witherspoon's apartment attempting to remove a flat screen television set. After a bench trial, defendant was convicted of residential burglary and aggravated battery of Witherspoon. 720 ILCS 5/19-3(a), 12-4(a) (West 2008). Defendant filed a pro se posttrial motion for a new trial claiming ineffective assistance of counsel, which was denied. Defense counsel filed a posttrial motion for a new trial with numerous claims, which was also denied. After hearing arguments on aggravation and mitigation, defendant was sentenced to 30 years with the Illinois Department of Corrections (IDOC) for residential burglary and 7 years for aggravated battery, to run concurrently. This direct appeal followed.
[¶2] On appeal, defendant claims that: (1) the State presented insufficient evidence to prove defendant guilty of residential burglary and aggravated battery beyond a reasonable doubt; (2) defendant was denied effective assistance of counsel at the hearing on his pro se posttrial motion; (3) the trial court sentenced defendant to an excessive 30-year sentence by finding that Witherspoon's speech impediment was the result of the injury suffered in the incident; (4) the trial court erred in sentencing defendant to a 7-year extended sentence for aggravated battery because it was the lesser offense of the offenses he was found guilty of; and (5) the fines and fees were incorrectly calculated. The State agrees that the fines and fees order should be modified, and the " Order Assessing Fines, Fees, and Costs" is corrected as follows: the $5 electronic citation fee is removed, the defendant is credited $5 per day for the 1,104 days defendant was incarcerated awaiting trial, and this credit is applied to the $50 in fines due from defendant. Thus, the total fees and costs due from defendant is adjusted to $365. The mittimus is corrected accordingly.
[¶3] For the following reasons, we do not find persuasive defendant's claims: (1) that the State's evidence was insufficient to prove residential burglary and aggravated battery; and (2) that the sentence for residential burglary was excessive. However, defendant is correct that he engaged in a single course of action when a security guard blocked defendant's only escape path and defendant bit off a portion of his lip. Thus, the extended-term sentence on the lesser offense of aggravated battery was inappropriate and we correct the mittimus to reflect a five-year sentence for that offense. In addition, we remand for a Krankel hearing before a different judge, as required by our supreme court's seminal decision in People v. Jolly, 2014 IL 117142, ¶ 46, 389 Ill.Dec. 101, 25 N.E.3d 1127.
[¶5] We provide a detailed description of testimony below, but in sum, the State's evidence at trial established that, on January 14, 2010, Eugene Witherspoon, a security guard and resident of an apartment building located on East 46th Street in Chicago, was outside talking to a number of employees from a security company about installing security cameras in the building. His wife, Mary Johnson, was asleep in their second-floor apartment. While outside discussing the installation of security cameras, Witherspoon heard a noise from inside the building and ran to the third floor, where he believed the noise originated. He then descended to the second floor, where he observed a woman exiting his apartment with his laptop. Rather than follow this woman, Witherspoon entered his apartment to check on his wife and observed defendant in his apartment wrapping an unplugged television cord around Witherspoon's television set. While defendant and Witherspoon testified to differing versions of the events that followed, it is undisputed that a physical altercation between defendant and Witherspoon ensued and that during this altercation, defendant bit off Witherspoon's lower lip.
[¶6] I. Evidence at Trial
[¶7] The State's evidence at trial consisted of the testimony of four witnesses: (1) Eugene Witherspoon, the victim; (2) Mary Johnson, Eugene Witherspoon's wife, who was asleep in the apartment at the time of the incident; (3) police officer John Thill, the arresting officer; and (4) police officer Thomas Ellerbeck, one of the evidence technicians who processed the crime scene. The parties also stipulated to the testimony of Michael Cox, the Illinois State Police crime lab fingerprint examiner who reviewed fingerprints from the crime scene.
[¶8] The parties stipulated that Michael Cox, a senior fingerprint examiner for the Illinois State Police crime lab, would testify that in Cox's opinion one of the two latent prints recovered at the crime scene belonged to defendant within a reasonable degree of scientific certainty. It was further stipulated that no other prints suitable for comparison were recovered from the other items submitted into evidence.
[¶9] Eugene Witherspoon, age 39, testified that, on January 14, 2010, he was working as a security guard in an apartment building on East 46th Street in Chicago, Illinois. He also lived in a duplex unit in the building with his wife, Mary Johnson. Witherspoon's duplex unit was on the second and third floors of the apartment building. On January 14, 2010, his wife was suffering from a migraine headache, had taken some medicine for her migraine, and was asleep in one of the upstairs bedrooms of the couple's apartment. At 2 p.m., Witherspoon received a telephone call from several employees of a security company who were present at the building to determine locations for new security cameras. Witherspoon locked his apartment door and went outside the building to meet with the security camera personnel. Witherspoon testified that the front door of the building was locked because the door locked automatically.
[¶10] Witherspoon was outside for 30 minutes when he heard a noise from inside his section of the building which, due to remodeling, was occupied at the time by only Witherspoon and his wife. Witherspoon ran to the third floor, where he believed the noise originated. Not finding anything on the third floor, Witherspoon walked down the stairs to the second floor, where he observed a young woman, whom Witherspoon did not recognize, leaving Witherspoon's apartment. The unidentified woman was carrying a bag with a laptop protruding from it that Witherspoon recognized as his own personal laptop. The woman ran down the stairs when she observed Witherspoon. Observing that his apartment door was ajar, Witherspoon chose to enter his apartment instead of chasing the woman in the hallway.
[¶11] Upon entering his apartment, Witherspoon encountered defendant, who was standing above Witherspoon's flat screen television set and was wrapping the unplugged television cord around the television set. The television had been moved from its usual stand and onto the floor. When defendant observed Witherspoon he ran at Witherspoon, who was blocking the doorway, and a fight ensued. Defendant and Witherspoon fought in Witherspoon's apartment for between 5 and 10 minutes before the fight moved to the apartment's hallway and then down the apartment's stairs. During the encounter, Witherspoon tried to dial 911 on his cell phone and tried to shout to his wife for help, but Witherspoon was unable to dial the phone and Witherspoon's wife did not respond to his shouts. After the fight moved into the hallway, defendant bit Witherspoon's lower lip off. This caused Witherspoon tremendous pain and made him dizzy and nauseous. After defendant bit Witherspoon's lip, Witherspoon drew his handgun, which he was licensed to carry, and hit defendant with the gun once on the top of the head, at which point the pistol fired and shattered the glass doorway to the building. Following the gunshot, several individuals entered the building, Witherspoon informed them that his apartment had been burglarized by defendant, and these unidentified individuals detained defendant until the police arrived. Witherspoon was transported to two separate hospitals, where his lip was reattached. Witherspoon suffered immense pain from the surgeries, and his lip would occasionally turn white and the skin on his lip would peel.
[¶12] Witherspoon also testified that a hat, jacket, glove, cell phone, cigarette butt, pocket knife, and flathead screwdriver discovered in the hallway of the building were not his. Witherspoon further testified that the scratch marks found on his door had not previously been there. The State showed Witherspoon People's exhibit No. 14, a photograph of Witherspoon's apartment, and Witherspoon marked an " X" where he and defendant fought. This exhibit was later admitted into evidence without objection.
[¶13] During cross-examination, defense attempted to impeach Witherspoon's testimony that there were only two people inside his apartment, noting Witherspoon's testimony at a preliminary hearing that there were three people inside his " residence" : defendant, the woman, and a " lookout guy." The State objected and the trial court sustained the objection, noting: " The only reason I'm sustaining the objection is the residence might be interpreted to mean the entire building." Upon further questioning, Witherspoon clarified that there were three people " at" his " residence" : defendant and the woman in Witherspoon's apartment and a male " lookout" standing immediately outside of the building.
[¶14] Witherspoon also testified on cross-examination that when he entered the apartment he was standing between defendant and the doorway, and there was no other clear path between defendant and the apartment's exit. Witherspoon also testified that before using his gun to hit defendant, Witherspoon observed defendant reaching for something, and this was what prompted Witherspoon to draw his gun. Witherspoon testified on cross-examination that he had used his gun to hit defendant " once or twice." Witherspoon further testified that at the time of the incident his height was " six-seven" and he weighed 240 pounds. Witherspoon acknowledged that he was " quite a bit taller" than defendant. Witherspoon also confirmed that there was a coffee table with various items on it and a plugged-in heater immediately outside the area in Witherspoon's apartment where Witherspoon fought defendant. However, nothing in the apartment was knocked over during the fight between him and defendant.
[¶15] Mary Johnson, age 42, testified that, on January 14, 2010, she left her school, where she was a student, at noon because she was suffering from a migraine. Johnson arrived around 1 p.m. to her and Witherspoon's apartment on East 46th Street. She took two Excedrin Migraine pills and went to sleep in the upstairs bedroom. She slept through the altercation between Witherspoon and defendant and only woke when a Chicago police officer called to her after arriving at the scene. She stated that a hat, jacket, glove, cell phone, cigarette butt, pocket knife, and flathead screwdriver discovered in the hallway of the building did not belong to her or Witherspoon and that these items had not been present when she came home. Johnson confirmed that the television set had been moved and the laptop that was taken from the apartment belonged to her and Witherspoon. Johnson further testified that the buzzer system to the apartment building did not work. On cross-examination, Johnson confirmed that no items in the apartment had been knocked over or were out of place, besides the television and missing laptop.
[¶16] Police officer John Thill testified that, on January 14, 2010, he responded to a call to East 46th Street concerning an altercation. Two individuals in a vehicle parked outside the building pointed the officer to the building. These two individuals left after Officer Thill entered the building. Officer Thill observed Witherspoon and defendant both appearing " exhausted" and Witherspoon had blood on his face. Officer Thill attempted to interview defendant, who was " verbally elusive." After Officer Thill talked to Witherspoon, he placed defendant in handcuffs in order to prevent defendant from leaving the scene and called an ambulance for Witherspoon. Officer Thill noticed that the door to Witherspoon's apartment appeared to have multiple pry marks on it. Officer Thill arrested defendant and gave defendant a pat-down search before bringing defendant to the police station, but he did not discover anything noticeable. However, a more thorough search at the police station recovered a Phillips-head screwdriver in defendant's pocket.
[¶17] Police officer Thomas Ellerbeck, an evidence technician, testified that, on January 14, 2010, he responded to a call to proceed to Provident Hospital to take photographs of Witherspoon. After Officer Ellerbeck took photographs of Witherspoon and Witherspoon's injuries, Officer Ellerbeck went to Witherspoon's apartment building, where he found a hat, jacket, glove, cell phone, cigarette butt, pocket knife, flathead screwdriver, and an expended cartridge case inside the building. He photographed these items and placed them into an evidence bag. Officer Ellerbeck noticed the pry marks on Witherspoon's door and photographed them. Officer Ellerbeck then took two fingerprint lifts from the television set inside the apartment and submitted the lifts into an evidence bag. One of these lifts would later be identified as matching a fingerprint of defendant. On cross-examination, Officer Ellerbeck testified that he did not observe, nor did he photograph, any wood shavings on the floor near Witherspoon's door. Officer Ellerbeck also acknowledged that he took one photo showing a pocket knife and cell phone on a telephone book, with a piece of glass on the cell phone, and that the cell phone and pocket knife were removed and placed into evidence bags before Officer Ellerbeck took another photo of the entryway where the cell phone and pocket knife had been located.
[¶18] The State then rested, and the trial court denied defendant's motion for a directed finding. Defendant then chose to testify on his own behalf. Defendant, age 36, testified that, on January 14, 2010, defendant was walking to work when he was approached by a woman he recognized as frequenting the restaurant where defendant worked, a woman defendant knew only as " Wanda." Wanda asked defendant to help her move and defendant, who had 45 minutes before he needed to be at work, agreed to help her. Defendant followed Wanda to an apartment building at East 46th Street where Wanda opened the door to an apartment and led defendant inside.
[¶19] Inside, Wanda indicated that defendant should take the television set, which was already on the floor. The door to the apartment opened revealing Witherspoon who, upon observing defendant and Wanda, yelled " Wanda, what the f*** is you doing?" Wanda responded that she was retrieving her belongings and she began arguing with Witherspoon. Defendant moved into the hallway, unsure of what was happening. Wanda walked into the hallway of the building, telling defendant that she would have to retrieve her belongings at another time. Defendant began to follow Wanda down the stairs when Witherspoon hit defendant from behind several times in the head with a gun. Defendant and Witherspoon then began to wrestle, and at one point during this fight Witherspoon yanked defendant toward him and defendant bit Witherspoon's lip. After defendant bit Witherspoon's lip, Witherspoon released defendant, and Wanda and defendant started to leave. As Wanda held the door open for the defendant to leave, Witherspoon used his gun to shoot the front door of the building, shattering the glass in the door.
[¶20] At this point, two men entered the building to inquire what was happening. Witherspoon told the men that defendant had tried to rob his apartment. The men calmed Witherspoon down, and defendant and Witherspoon sat in the hallway until police arrived. When the police arrived they questioned one of the men who was still in the hallway and this man informed the police officer that he was unsure of what had occurred. The police then transported defendant to the police station and then to Provident Hospital. At the hospital, defendant received eight staples in three different locations in the " top of the back" of his head.
[¶21] On cross-examination defendant admitted that the jacket, hat, glove, cigarette butt, pocket knife, and cell phone located in the hallway of the building belonged to him. However, defendant denied owning the flathead screwdriver that was also found in the hallway and denied having the Phillps-head screwdriver in his pocket when transported to the police station. Defendant further testified that when he arrived at the apartment building Wanda opened the door to the building without a key and without needing to be buzzed into the building. While walking up the stairs of the building, defendant was " two or three stairs" behind Wanda and did not see if she used a key to open the door to the apartment, but the door was open and Wanda was entering the apartment when defendant reached the top of the stairs. Defendant also testified that he never observed a computer in the apartment and that Wanda did not have a bag or a computer when she left the apartment building.
[¶22] During cross-examination, defendant did not acknowledge specifically meeting with an assistant State's Attorney (ASA), but did acknowledge that " a woman" tried to talk to him while defendant was at the police station. Defendant denied talking to this woman or to any other individual at the police station.
[¶23] After cross-examination, the defense moved into evidence the medical records from Provident Hospital that detailed defendant's injuries. The State did not object and the trial court admitted the medical records into evidence.
[¶24] On rebuttal the State read a stipulation that if a certain ASA were called to testify she would testify the following to be true:
" THE STATE: If called to testify, Assistant State's Attorney *** would state that she is employed by the Cook County State's Attorney's office as an Assistant State's Attorney and was so employed on January 15, 2010, assigned to the Felony Review Unit of the Cook County State's Attorney's office.
As part of her assignment, at approximately 1:50 a.m., she went to Chicago Police Department Area 1 Detective Division at 51st and Wentworth where she, in the presence of Detective Harper *** and Detective Filbin, *** interviewed the Defendant, whom she would identified [ sic ] in open court.
Prior to her interview, she advised the Defendant of his Miranda rights and the Defendant waived each right. After waiving each Miranda right, the Defendant states in summary, the following:
He ran into his friend Wanda on 47th street. Wanda asked the Defendant to help her get some of her things out of an apartment on 46th street. He and Wanda go to a building and get buzzed in. They try to go--I'm sorry, not the word try. They go to a second floor apartment and the front door is open. Defendant and Wanda go into the apartment and get a computer and Defendant starts wrapping--
THE COURT: You said they went to an apartment. She asked him to help her get her things out of the apartment at 46th street.
THE STATE: Correct.
THE COURT: Then I lost you after that. The Defendant and Wanda go to a building and get buzzed in. They go to a second floor apartment and the front door is open.
THE COURT: The front door is open or the front door is opened?
THE STATE: The front door is open. Defendant and Wanda go into the apartment and get a computer and the Defendant starts wrapping the flat screen. Defendant stated that the victim comes in and starts arguing with Wanda.
The Defendant states he thinks they used to date. The defendant states Mary Johnson comes down and sees what's going on, says nothing, and then goes back upstairs.
The Defendant states he and victim start fighting in the apartment and hallway. They fall down some stairs and the Defendant bites the victim's lip.
The Defendant states he starts to leave and the victim shoots at him. Defendant tried to leave the building by the front door but is then stopped by ...