from the Circuit Court of the 12th Judicial Circuit, Will
No. 3-14-0530 Circuit No. 11-CF-1285 Honorable Robert P.
Livas, Judge, Presiding.
Justice McDade concurred in the judgment and opinion.
Justice Wright dissented, with opinion.
1 Following a bench trial, the trial court found defendant,
Alexander Fletcher, guilty of armed robbery, a Class X
felony. The court sentenced defendant to 21 years'
imprisonment-the 6-year minimum plus the 15-year statutory
firearm enhancement. On appeal, defendant argues (1) his
conviction should be vacated because the record does not show
that he knowingly and understandingly waived his right to a
jury trial, and (2) the State failed to prove him guilty
beyond a reasonable doubt of armed robbery with a firearm. We
vacate defendant's conviction and remand for a new trial.
3 On July 14, 2011, the State charged defendant by indictment
with armed robbery with a firearm. 720 ILCS 5/18-2(a)(2)
(West 2010). The indictment was based on a theory of
accountability and alleged that defendant, along with Aaron
Anderson, knowingly took United States currency from the
person of Jacob McNamara by threatening the use of force
while carrying a firearm.
4 In a separate case not before this court, the State charged
defendant with attempted armed robbery. On April 29, 2013,
defendant entered a guilty plea in the attempted armed
robbery case. The trial court admonished defendant of his
right to a jury trial and defendant agreed to waive that
right. The instant case was set for a jury trial on October
1, 2013. On August 12, 2013, defense counsel informed the
court that defendant's attempted armed robbery case was
set for sentencing that day. With regard to the status of the
instant case, defense counsel stated, "It is also bench,
Judge. We waived." From that point on, all references
were to a bench trial. The record on appeal does not contain
a written jury waiver in the instant case.
5 On October 29, 2013, the State filed a notice of intent to
enhance sentencing upon conviction pursuant to section
111-3(c) of the Code of Criminal Procedure of 1963 (Code)
(725 ILCS 5/111-3(c) (West 2010)). The State intended to seek
a 15-year sentencing enhancement upon defendant's
conviction under count I for possessing a firearm during the
commission of the offense.
6 A bench trial began on February 7, 2014. The trial judge
received testimony from Jacob McNamara concerning events that
took place on July 2, 2011. McNamara explained that on July
2, 2011, at approximately 1 a.m., he stopped his vehicle at a
Chase Bank automated teller machine (ATM) located in
Frankfort, Illinois. At that time, McNamara spotted a silver
sports utility vehicle (SUV) in the nearby parking lot. As
McNamara finished his ATM transaction, someone stuck a black
revolver in the window of his vehicle on the driver's
side. McNamara first saw the gun when the assailant pointed
it at his face about a foot away for at least a minute.
McNamara stated that he knew the gun was a revolver because
he saw a cylinder.
7 McNamara described the person who approached the car as a
heavier set black male wearing a white T-shirt with another
white T-shirt wrapped around his face. The person had longer
hair, dreads or braids of some sort. The man took
McNamara's money, ATM card, and pin number.
8 McNamara stated that as he left the parking lot, the same
man stood in front of his car, again pointed the gun at him,
and demanded his cell phone before stating, "don't
make me kill you." McNamara complied. As he drove away,
McNamara noticed that two people were seated in the silver
SUV and the vehicle had no front license plate. McNamara did
not describe the appearance of the second occupant of the
9 The State called Kevin Johnson, a police detective for the
village of Frankfort police department, as its next witness.
Johnson testified that on July 3, 2011, he was assigned to
investigate an incident that occurred on July 2, 2011.
Johnson testified that he learned the facts of the case from
Jacob McNamara. McNamara told Johnson he had been robbed on
July 2, 2011, at the Chase Bank in Frankfort, Illinois.
Johnson described a black male weighing approximately 200
pounds, wearing a white T-shirt, blue jeans, and tan boots.
According to Johnson, still images from the ATM security
camera corroborated McNamara's physical description of
the man that approached him at the ATM. McNamara told Johnson
the assailants drove a silver SUV, possibly a Toyota. Based
on this description, Johnson put out a "critical reach
flier." The flier contained information about the date
and nature of the incident, along with vehicle and suspect
10 Greg Selin, an investigator for the Mokena police
department, testified that on July 5, 2011, he, along with
Detective Jeff Kowalczyk, had an opportunity to interview
defendant about an armed robbery that took place on July 5,
2011. During this conversation, defendant admitted that he
drove his silver Toyota to the Chase Bank in Mokena,
Illinois, during the early morning hours of July 5, 2011.
Once a car pulled up to the ATM, defendant said he approached
the car intending to take money from the occupants. Defendant
admitted that as he approached the woman in the car, he
possessed a gun he had obtained from Chicago earlier that
day. According to defendant, he held the gun down at his
side, opened the back door of the car, but "froze
up" when the females inside the car began screaming. As
the car drove away, defendant ran back to his car parked in a
nearby parking lot.
11 Following the interview by the Mokena investigators,
officers from Frankfort interviewed defendant about both the
July 5, 2011, incident at the Chase Bank in Mokena and the
July 2, 2011, incident at the Chase Bank in Frankfort. At
first, defendant denied knowledge of the Frankfort robbery.
The detectives then explained that an armed robbery had taken
place on July 2, 2011, in Frankfort. The detectives advised
defendant they had a videotape of his car parked at the Chase
Bank close in time to the armed robbery.
12 The detectives also explained that the armed robbery was
caught on videotape and that they were confident defendant
did not approach the victim on July 2, 2011; the man that
approached the victim was much larger than defendant and
heavily tattooed. However, the detectives had a video from
the security camera at the bank that clearly showed the
heavyset gunman was carrying defendant's gun on July 2,
2011. Defendant did not respond to the detectives'
comment about the armed robber possessing defendant's
firearm on July 2, 2011. However, defendant did admit that he
and Anderson had robbed a person on July 2, 2011, in
13 Next, Chris Carlson, an officer with the Mokena police
department, testified. Carlson testified that on July 5,
2011, at approximately midnight, he observed a silver SUV
that pulled into the JC Penney's parking lot. After the
vehicle left the parking lot on July 5, 2011, Carlson
received a dispatch of an armed robbery that had just
occurred at the Chase Bank in the same parking lot complex.
Upon speaking with the victims at the Chase Bank, Carlson
learned the assailants were driving either a white, or
light-colored SUV. At this point, Carlson was informed that
New Lenox police officers had stopped a vehicle matching the