Court of Appeals of Illinois, First District, Fourth Division
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.
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.
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
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
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
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 ...