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People v. Lucious

Court of Appeals of Illinois, First District, Fourth Division

September 8, 2016

KEITH LUCIOUS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 13-CR-8824; the Hon. Nicholas Ford, Judge, presiding. Vacated and remanded.

          Michael J. Pelletier, Patricia Mysza, and Carolyn R. Klarquist, all of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Peter Maltese, Assistant State's Attorneys, of counsel), for the People.

          PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.


          ELLIS, JUSTICE

         ¶ 1 Defendant Keith Lucious, along with codefendant Anthony Scott, were charged with armed robbery, aggravated robbery, and aggravated unlawful restraint for accosting a woman in an alley and taking two backpacks from her. The aggravated robbery charge alleged that defendant and codefendant "indicat[ed] verbally, or by their actions, " that they were armed. See 720 ILCS 5/18-1(b) (West 2012) (person commits aggravated robbery when he or she commits a robbery "while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm or other dangerous weapon"). Defendant was 15 years old at the time of the offense, and codefendant was 16.

         ¶ 2 Defendant and codefendant were tried at a joint bench trial and convicted of aggravated robbery and unlawful restraint. At trial, the State introduced evidence that both defendant and codefendant had confessed to the offense. But only codefendant admitted that, during the robbery, he told the victim, "Don't make him [(i.e., defendant)] shoot you." In its findings, the trial court cited codefendant's statement as evidence supporting the aggravated robbery charge.

         ¶ 3 In this appeal, defendant alleges that his trial attorney was ineffective for failing to object to the introduction of codefendant's inculpatory statement. We agree. Codefendant's statement was inadmissible as evidence of defendant's guilt, but the trial court expressly considered it as such. And that evidence prejudiced defendant with respect to his aggravated robbery conviction, as it offered direct proof of an essential element of the offense. We vacate defendant's conviction and remand for a new trial.

         ¶ 4 I. BACKGROUND

         ¶ 5 The State charged defendant with armed robbery predicated on his being armed with a firearm during the robbery, aggravated robbery, and aggravated unlawful restraint. The aggravated robbery charge alleged that, on April 5, 2013, defendant and codefendant committed a robbery "while indicating verbally, or by their actions *** that they were presently armed with a firearm or other dangerous weapon."

         ¶ 6 At the time of defendant's trial, armed robbery committed with a firearm by an offender who was at least 15 years old was an offense requiring defendant's case to be transferred to adult court without a hearing. 705 ILCS 405/5-130(1)(a) (West 2012).

         ¶ 7 Both defendant and codefendant elected to have bench trials. Neither defendant's counsel nor codefendant's counsel moved to sever their trials before they began.

         ¶ 8 Naritza Castellanos, through a Spanish interpreter, testified that at 10:30 a.m. on April 5, 2013, she was distributing fliers in an alley near 4251 West Haddon Avenue in Chicago. Castellanos was carrying two backpacks with her. The backpacks contained fliers, keys, a cell phone, and $20 in cash.

         ¶ 9 She testified that two young men, whom she identified as defendant and codefendant, approached her and asked her for money. She said she did not have any, and defendant hit her in her face and stomach. Defendant and codefendant threw Castellanos to the ground, took her backpacks, and fled. Castellanos also testified that defendant pressed a gun to her right temple while she was on the ground.

         ¶ 10 Castellanos testified that codefendant had red hair and that defendant wore "like braids or bows" in his hair. Castellanos said that defendant wore a black and brown checkered jacket, and codefendant wore a black jacket.

         ¶ 11 Shortly after defendant and codefendant fled, a passerby loaned his cell phone to Castellanos so that she could call the police. She testified that, a few minutes after she called the police, she saw codefendant again in the same area, but he had changed into a white jacket with red lettering on the back. Some time later, the police brought defendant and codefendant to Castellanos in a squad car, and Castellanos identified them as the boys who had robbed her.

         ¶ 12 Officer Michna testified that he and his partner responded to a call of a robbery near Thomas Street and Kildare Avenue. The prosecutor asked Michna if he was given "a description of any sort regarding the robbery, " and Michna replied, "Just it was armed robbery and two male black teens." The court interjected, "I think she means the description of the individuals involved, " and Michna said, "Two male black teens."

         ¶ 13 Michna saw two black teenagers in the area, whom he identified as defendant and codefendant, and approached them in his car. Michna said that one of them "had braids and the other one had orangish-red hair." Michna asked where they were coming from, and defendant and codefendant "gave conflicting stories." Michna testified that he and his partner put defendant and codefendant into their squad car and drove them back to Castellanos's location to conduct a showup. Castellanos identified defendant and codefendant as the robbers.

         ¶ 14 After Castellanos identified defendant and codefendant, they were placed under arrest and searched. The police recovered a set of keys from codefendant, which Castellanos identified as her keys. Defendant and codefendant did not have a cell phone or any money on them. Michna testified that no firearm was recovered in connection with the robbery.

         ¶ 15 On cross-examination, codefendant's counsel asked Michna if he stopped defendant and codefendant simply because of their proximity to the site of the robbery, and Michna replied, "No, based on the red hair. They were male teens, black teens." He also testified that he saw them less than two blocks from the reported site of the robbery.

         ¶ 16 Detective Suzanne Chevalier testified that she and an assistant State's Attorney questioned defendant about the robbery while defendant's father was present. Defendant said that he and codefendant skipped school that day to go shoe shopping. They saw Castellanos in an alley and "decided that they wanted to take her backpacks."

         ¶ 17 Chevalier testified that defendant admitted that he and codefendant approached Castellanos, threw her to the ground, and took her backpacks. Defendant said that Castellanos's face hit the ground when they threw her down. He also said that "he had a cell phone" during the robbery.

         ¶ 18 Chevalier testified that codefendant gave a statement that described the robbery in the same way as defendant's. But codefendant added that "he told the victim, don't make him shoot you." Codefendant also said that he did not know why he said, "don't make him shoot you, " because defendant "only had a cell phone with him." Codefendant said that he found keys in one of the backpacks and that, after the robbery, he and defendant walked around the neighborhood looking for Castellanos's car "so that they could take it."

         ¶ 19 After Detective Chevalier testified, the State rested. Defendant moved for a directed finding on the armed ...

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