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People v. Wright

Supreme Court of Illinois

September 21, 2017


          JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.



         ¶ 1 This appeal arises from the conviction of defendant, Eugene Wright, of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) following a jury trial in the circuit court of Cook County. Prior to being allowed to represent himself, defendant was admonished by the circuit court pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1, 1984) but was incorrectly informed of the potential maximum sentence of the charged offense. The appellate court reversed and remanded for a new trial based upon this incorrect admonishment while affirming on all other grounds addressed. 2015 IL App (1st) 123496, ¶ 86. For the reasons that follow, we affirm in part and reverse in part the appellate court's judgment.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant and codefendant, Michael Morgan, were charged with armed robbery with a firearm in connection with the December 26, 2010, robbery of a Bakers Square restaurant at 7131 North Western Avenue in Chicago.[1]

         ¶ 4 At the grand jury proceedings on August 15, 2011, Detective Allen Lee testified that he investigated the robbery at the restaurant. According to his testimony, defendant and codefendant walked into the restaurant, and codefendant announced a robbery. The two men exited after taking money from the safe. Detective Lee testified that codefendant had the handgun that was used in the crime, that codefendant had time to dispose of the weapon before he was apprehended by police, and that no weapon was recovered. Detective Lee also testified that defendant was positively identified by one of the victims of the robbery and by Chicago police officer Paul 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. He was represented at the hearing by a public defender. Defendant informed the court that he would not agree to continuances. The public defender told the court that she would have to withdraw as counsel, as she was not ready for trial. After the public defender sought a continuance to order discovery, defendant told the court that he wanted to hire his own attorney, and the case was continued.

         ¶ 6 On February 24, 2011, defendant advised the court that he had not retained his own counsel and indicated that he wished to proceed pro se. The trial court informed him 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 also informed defendant that he had the right to represent himself but that if he did so he would be held to the same standards as an attorney. The court admonished defendant that he was charged with armed robbery in two different cases and that he could possibly be sentenced to consecutive sentences with a range of 21 to 45 years in prison for each conviction.[2] After the State informed the court that defendant was eligible for a maximum sentence of 60 years in prison because of his criminal background, the court admonished defendant that he could be eligible for an extended-term sentence with a maximum term of 60 years' imprisonment. Defendant reiterated that he wanted to proceed pro se.

         ¶ 7 On March 1, 2011, the trial court admonished defendant again pursuant to Rule 401(a). The court informed defendant, inter alia, that based upon his criminal history and the use of a handgun during the offense, he faced concurrent sentences of 21 to 60 years in prison on the charged offenses. During questioning by the trial court, defendant represented that he had completed two years of college and had experience with the criminal justice system. The trial court ultimately allowed defendant to proceed pro se.

         ¶ 8 On July 17, 2012, defendant's jury trial commenced.

         ¶ 9 Martin Perez, the manager of the Bakers Square restaurant at 7131 North Western Avenue, testified that prior to the robbery, he had received a few e-mails from his employer that two black men, both about six feet tall, had robbed another Bakers Square restaurant in the area. On December 26, 2010, shortly before 11 p.m., Michael Morina, a waiter at the restaurant, told Perez that someone wanted to place an order to go. Perez went to the front of the restaurant and saw codefendant. He was wearing a grey hoodie and a white hat. Perez asked codefendant if he could help him. Codefendant turned around and lifted his hoodie to reveal what "looked like a black automatic, black gun" tucked into the waistband of his pants. Codefendant informed him, " '[t]his is a robbery; take me to the office.' " Perez testified that he was sure the gun was an actual firearm. He thought it was a semiautomatic pistol and related that he had experience firing such guns.

         ¶ 10 Perez further testified that he observed defendant enter the restaurant and approach the counter. Defendant was wearing a black hoodie, blue jeans, and a black headband or hat. Perez walked toward the office with codefendant behind him. While he was walking, Perez "felt something sharp in [his] back, " which he thought was a gun. Once in the office, codefendant ordered Perez to open the safe and give him the money inside. Perez complied and gave codefendant a deposit bag marked "Bakers Square" as well as some loose bills. Footage from a surveillance camera inside Perez's office was shown to the jury. Perez identified defendant on the video as the man who came into the office after codefendant and grabbed rolls of coins from the safe.

         ¶ 11 Perez testified that after he gave codefendant the money, codefendant told him to gather all of his employees. Perez asked Morina, Tsehayens Tsegaye, a waitress, and Leo Martinez, a cook, to come toward the kitchen. Codefendant then told all of them to throw their cell phones into a garbage can. He also demanded Morina's tip money, and Morina complied. Codefendant ordered all of the employees into the walk-in cooler and told them to wait there for five minutes before exiting. Once inside, Perez pulled the alarm located inside. About 15 minutes after the police arrived, Perez was asked to look through the blinds of the restaurant at two suspects standing in the parking lot. Perez positively identified codefendant as the man with the gun. He also positively identified defendant as the second offender.

         ¶ 12 Tsegaye and Morina testified consistently with Perez. Tsegaye testified that when she asked codefendant why he wanted her to throw her cell phone into the garbage, he told her she was being robbed and lifted his shirt up to reveal the handle of a gun in his waistband. She identified codefendant as the man who had the gun but did not view the second person at the show-up because she did not see his face. Morina testified that he also observed the handle of codefendant's gun. He had seen guns before and believed it to be a "9 millimeter pistol." Morina identified codefendant at the show-up. He testified that during the robbery he also observed another individual in a black hooded sweatshirt going toward the manager's office.

         ¶ 13 Officer Cirrincione testified that on December 26, 2010, at 10:30 p.m., he and Officer Tracy Walczak started conducting surveillance of the Bakers Square restaurant on Western Avenue. They chose that time because a nearby Bakers Square had recently been robbed close to closing. The officers had been informed that the other robbery had been carried out by two black males in their late twenties or early thirties. The two men had been observed leaving that location in a dark or black van with tinted windows.

         ¶ 14 Officer Cirrincione further testified that on December 26, 2010, he and his partner were in an unmarked vehicle approximately 100 feet from one of the entrances to the restaurant. Shortly before 11 p.m., he observed two men who fit the general description of the subjects leave the restaurant and walk quickly south on Western Avenue. The officers followed the two men by car as they walked east onto Estes Street. Officer Cirrincione asked them to approach the car, and they fled on foot in different directions. The man he identified as defendant was wearing blue jeans, a black hoodie, and something covering part of his head. He ran east on Estes Street while the man he identified as codefendant ran southwest to a nearby mini-mall parking lot. Officer Walczak got out of the car and chased codefendant on foot.

         ¶ 15 Officer Cirrincione testified that he drove the car around the alley east of the mini-mall in an attempt to cut off codefendant. At the beginning of the chase, he briefly lost sight of codefendant. Officer Cirrincione eventually got out of the car and chased codefendant on foot. While in pursuit, he received a radio call that the Bakers Square restaurant had been robbed. He continued the foot chase until codefendant slipped in front of a house at 2322 West Greenleaf Street. He and other officers were able to detain codefendant there. A search of codefendant's person revealed a night deposit bag labeled "Bakers Square, " which contained a large bundle of cash. They also discovered a separate large bundle of loose bills in his pocket. The police searched the surrounding area, which was covered by a large amount of snow. They were unable to locate a firearm.

         ¶ 16 Sergeant Ken Lewandowski testified that after codefendant was detained, he headed back toward the Bakers Square restaurant. On Western Avenue, he noticed a black conversion van with tinted windows, which was similar to the description of the van used in the earlier robbery. He radioed for officers to stop the van, and several responded.

         ¶ 17 Sergeant Lewandowski further testified that officers brought defendant and codefendant to the restaurant to conduct show-ups. Sergeant Lewandowski was inside with the witnesses, who viewed the suspects through the blinds of the restaurant while the suspects were in the parking lot. Perez, Morina, and Tsegaye each individually identified codefendant as one of the offenders. Perez also positively identified defendant as the other offender. Morina and Tsegaye did not view the show-up of defendant because they told police that they did not get a good look at the second offender.

         ¶ 18 Chicago police officer Eric Killion testified that defendant was the sole occupant of the van that was curbed by police on Western Avenue. Defendant was wearing a black hooded sweatshirt and jeans at the time he was apprehended. Police searched the van and found four rolls of dimes and two rolls of quarters by the front seat.

         ¶ 19 Detective Lee testified that on December 27, 2010, at approximately 12:30 a.m., he went to the Bakers Square to investigate the robbery. He viewed the surveillance video and interviewed Perez. Detective Lee later viewed surveillance photos of the suspects involved in the earlier robbery at the Bakers Square restaurant at Harlem and Foster Avenues in Chicago. He testified that he inspected the black van defendant had been driving when stopped by police in this case. He found a gray puffy vest on one of the passenger seats that was similar to the one worn by one of the suspects in the surveillance photos of the earlier Bakers Square robbery.

         ¶ 20 On cross-examination, defendant asked Detective Lee whether he had testified before the grand jury that a weapon had not been recovered. Detective Lee responded, "That is correct. At that date it was not." He further testified in response to a similar question by defendant, "[o]n that date of the incident, no weapon was recovered. A gun was subsequently recovered. When it was recovered, it was undetermined if it was involved in this case or not." After being allowed to review a Chicago police evidence report that contained his detective notes, he further testified that on January 2, 2011, a black Crossman BB gun was observed by a citizen in the street in the vicinity of where one of the suspects was running. Detective Lee requested the BB gun be analyzed by the Illinois State Police for fingerprints in order to possibly link it with one of the two offenders in this case. He testified that no suitable fingerprints were found on the BB gun and that it could not be tied to this case.

         ¶ 21 Defendant showed Detective Lee photographs of a BB gun that was discovered near Western Avenue and Estes Street. Defendant moved to enter the photos into evidence. The trial court asked if he knew who took the photos and when they were taken. Defendant did not know. Detective Lee stated that he had never seen the photos before. The trial court informed defendant that he could not ask questions about them. Defendant then moved to dismiss the case asserting that, "the State violated the Brady Rule by not submitting these pictures to me."

         ¶ 22 A sidebar conference ensued. The assistant State's Attorney told the court that he had not seen the photos.[3] He further related that he had tendered to defendant the Chicago police crime scene processing report, which detailed that a BB gun had been discovered on January 2, 2011, within the vicinity of the restaurant. The report also disclosed that the BB gun was submitted for fingerprints but it had not yielded any suitable prints linking it to this case. Defendant argued that in addition to a Brady violation, the indictment should be dismissed because Detective Lee had provided inaccurate testimony before the grand jury when he testified that no weapon had been recovered.

         ¶ 23 In response to the assistant State's Attorney's comment that there was no evidence that the BB gun was used in the robbery, defendant was asked by the trial court to make an offer of proof. Defendant responded that codefendant told Detective Lee that he committed the robbery with a black BB gun. Defendant acknowledged that the statement was hearsay and that he needed "the actual person" to testify. The State responded that if defendant was going to call codefendant "to talk about the BB gun, he can call him to see what he says, but he also gave a statement that he committed this crime with this defendant so he is running a risk." Defendant responded that he had "no problem" with eliciting codefendant's statement. The trial court denied defendant's motion to dismiss the indictment based on a Brady violation. Similarly, the trial court denied the motion to dismiss the indictment based upon Detective Lee's purportedly false testimony before the grand jury.

         ¶ 24 Following the sidebar conference, defendant continued his cross-examination of Detective Lee, who testified that he interviewed codefendant about the crime. When defendant asked him about the conversation, the trial court sustained the State's objection, stating, "[w]e are not going into the statement, the nature of the conversation with [codefendant]."

         ¶ 25 The State also presented evidence concerning the December 11, 2010, Bakers Square robbery. The jury was instructed to consider this other-crimes evidence related to defendant only for the purpose of identification and modus operandi.

         ¶ 26 Defendant testified on his own behalf and called witnesses. He attempted to call codefendant, but codefendant exercised his fifth amendment right not to testify.

         ¶ 27 Defendant testified that on December 26, 2010, he was driving south on Western Avenue when police stopped his van around Western Avenue and Pratt Boulevard. The police took him to a nearby Bakers Square restaurant for a show-up. He testified that in December 2010, he was living in Atlanta, Georgia, but was staying with a friend at 6331 South Sangamon Street in Chicago. He denied telling police that prior to being stopped he had driven to 7300 North Bell Avenue to see a women he had met online. He also denied committing either Bakers Square robbery, knowing codefendant, or having rolls of dimes or quarters in the van that was stopped by police.

         ¶ 28 Officer Walczak testified that she completed a case report that represented that three complainants of the robbery and another witness positively identified defendant at the show-up. On further questioning, however, she acknowledged that this was in error, as three complainants identified codefendant but only one identified defendant.

         ¶ 29 Perez testified that he only saw the handle of the gun but that he was "100% sure" that the weapon codefendant displayed was an "actual firearm." Defendant showed him a group exhibit of photos, which included a BB gun. Perez said that the object in one of the photos looked like a gun. He testified that it was unclear, however, whether the gun looked like the type of gun used in the robbery because the photo was blurry.

         ¶ 30 In rebuttal, Detective Lee testified that defendant told him that prior to being stopped in the van, he had driven to the north side of the city to meet a woman he had contacted on a website. He told Detective Lee that he drove to 7312 North Bell Avenue to see the woman he met online but she had given him a " 'bogus address.' "

         ¶ 31 At the jury instruction conference, the State asked for an instruction on both armed robbery and the lesser included offense of robbery because defendant had introduced evidence of the BB gun that had been found a week after the robbery in the vicinity of the restaurant. Defendant objected. The trial court explained that the instruction would be given, over his objection, because he "introduced evidence of a gun and then argued that it was a BB gun." The trial court noted, however, that "the [BB] gun in question has not been tied to this case, it's not been identified by anyone as being in the Bakers Square in the possession of [codefendant] or anyone else; indeed it's not tied to any person at all." The jury was tendered verdict forms for both robbery and armed robbery.

         ¶ 32 The jury found defendant guilty of armed robbery. At sentencing, the State informed the trial court that defendant was eligible for a maximum sentence of 75 years but sought the imposition of a 60-year sentence.[4] The trial court sentenced defendant to 50 years' imprisonment.

         ¶ 33 On appeal, defendant raised several issues. He asserted that he was entitled to a new trial because the trial court failed to properly admonish him under Rule 401(a) before allowing him to waive his right to counsel. 2015 IL App (1st) 123496, ¶ 43. This argument was based on the fact that he was incorrectly informed of the potential maximum sentence for the charged offense. Id. ¶ 47. The appellate court recognized that defendant had forfeited this issue but held that the trial court did not substantially comply with Rule 401(a) when it informed him that he was eligible for an extended-term sentence up to 60 years in prison for the charged offense, rather than the correct maximum sentence of 75 years. Id. ¶¶ 44, 47. Based upon this error, the appellate court held that defendant's waiver of counsel was unknowing and involuntary. Id. ¶ 47. The appellate court noted that defendant's case did not fall within any exception where a deficiency in the admonishment had been found not to prejudice a defendant. Id. ¶ 51.

         ¶ 34 The appellate court rejected the remaining issues raised by defendant and found that because it was remanding on other grounds it need not determine whether the trial judge's failure to sua sponte provide the jury with the instruction on the definition of a firearm was error. Id. ¶¶ 41, 70, 78, 83. The appellate court reversed defendant's conviction and remanded for further proceedings. Id. ¶ 86.

         ¶ 35 This court allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Jan. 1, 2015).

         ¶ 36 ANALYSIS

         ¶ 37 I. State's Appeal

         ¶ 38 The State contends that the appellate court erred by concluding that the trial court's admonishments failed to substantially comply with Rule 401(a) on the basis that defendant was misinformed as to the maximum potential sentence for armed robbery. The State asserts that the record shows that defendant's waiver of his right to counsel was made knowingly and voluntarily and the sole admonishment he did not receive in no way prejudiced his rights.

         ¶ 39 The sixth amendment to the United States Constitution (U.S. Const., amend VI) guarantees an accused in a criminal proceeding both the right to the assistance of counsel and the correlative right to proceed without counsel. Faretta v. California, 422 U.S. 806, 832-34 (1975). This court has long recognized that the right to self-representation is "as basic and fundamental as [the] right to be represented by counsel." (Internal quotation marks omitted.) People v. Nelson, 47 Ill.2d 570, 574 (1971). An accused may therefore waive his constitutional right to counsel as long as the waiver is voluntary, knowing, and intelligent. People v. Haynes, 174 Ill.2d 204, 235 (1996) (citing Faretta, 422 U.S. at 835). "Although a court may consider the decision unwise, a defendant's knowing and intelligent election to represent himself must be honored out of ' "that respect for the individual which is the lifeblood of the law." ' " Id. (quoting People v. Silagy, 101 Ill.2d 147, 180 (1984), quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970)).

         ¶ 40 Illinois Supreme Court Rule 401(a) governs the trial court's acceptance of an accused's waiver of counsel in Illinois. That rule states:

"Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court." Ill. S.Ct. R. 401(a) (eff. July 1, 1984).

         ¶ 41 This court has recognized that compliance with Rule 401(a) is required for an effective waiver of counsel. Haynes, 174 Ill.2d at 236 (citing People v. Baker, 94 Ill.2d 129, 137 (1983)). We have recognized for 30 years that "[s]trict technical compliance with Rule 401(a), however, is not always required. Rather, substantial compliance will be sufficient to effectuate a valid waiver if the record indicates that the waiver was made knowingly and voluntarily, and the admonishment the defendant received did not prejudice his rights." Id. (citing People v. Coleman, 129 Ill.2d 321, 333 (1989), and People v. Johnson, 119 Ill.2d 119, 132 (1987)).

         ¶ 42 This court has considered the contours of substantial compliance with Rule 401(a) in several cases. In Coleman, relied upon by the State, the defendant filed a motion prior to trial to proceed pro se. Coleman, 129 Ill.2d at 331. The trial court admonished the defendant of his right to counsel and, as an indigent, his right to court-appointed counsel. Id. The trial court further admonished him of the nature of the charges against him and informed him that the maximum sentence prescribed by law was the death penalty and the minimum sentence prescribed by law was a 20-year term of imprisonment. Id. In fact, the minimum sentence possible was natural life imprisonment. Id. at 332.

         ¶ 43 The Coleman court held that the trial court had substantially complied with Rule 401(a) in that it had admonished the defendant of his right to counsel, informed him of the nature of the charges against him, and explained that the death penalty was the possible maximum sentence. Id. at 333. In holding that the trial court substantially complied with Rule 401(a), we stated: "Where a defendant knows the nature of the charges against him and understands that as a result of those charges he may receive the death penalty, his knowledge and understanding that he may be eligible to receive a lesser sentence pales in comparison." Id. at 333-34. In Coleman, the record established the defendant knew that the minimum sentence was natural life imprisonment, offered legitimate reasons for waiving his right to counsel, and attempted to manipulate the proceedings by repeatedly refusing the services of counsel. Id. at 340. We therefore concluded that the defendant's waiver of counsel, despite the incorrect admonishment of the minimum sentence, was made knowingly and intelligently. Id.

         ¶ 44 Similarly, in Johnson, the trial court incorrectly informed the defendant under Rule 401(a) that the minimum sentence was a "number of years" when it was actually natural life in prison. Johnson, 119 Ill.2d at 129. This court held that the admonishment the defendant received substantially complied with the rule despite this error. Id. at 132. We held that a review of the entire record indicated that the defendant's waiver of his right to counsel was made knowingly and voluntarily and the sole admonishment that he did not receive in no way prejudiced his rights. Id.

         ¶ 45 Thereafter, in Haynes, the defendant asserted that the admonishments were insufficient to satisfy Rule 401(a) because the trial court neglected to include the minimum and maximum sentences possible for a burglary charge. Haynes, 174 Ill.2d at 242. This court held that the information omitted from the admonishments did not invalidate the defendant's waiver of counsel. Id. at 243. As in Coleman and Johnson, the defendant was fully aware of the range of sentences possible for the most serious charge against him, first degree murder, including the possibility of the death sentence. Id. Given that, the importance of the defendant having specific knowledge of the minimum and maximum sentences for the significantly less serious charge of burglary paled in comparison. Id. Consequently, we held that the trial court's admonishments, despite the omission of the sentences for burglary, substantially complied with Rule 401(a). Id.

         ¶ 46 This court further held in Haynes that the record as a whole clearly showed that the defendant's decision to waive counsel was made freely, knowingly, and intelligently. Id. The defendant first expressed his desire to represent himself at the outset of the proceedings against him and reiterated that desire in open court on several other occasions. Id. at 243-44. Further, several examining doctors at the fitness hearing testified that, during their meetings with the defendant, he was adamant in his desire to represent himself. Id. at 244. Consequently, we held that there could be no doubt as to the defendant's choice. Id. In addition, testimony at the fitness hearing revealed that the defendant expressed an understanding of the nature of the charges against him, the role an attorney would play, and the fact that the death penalty was a possible sentence. Id. With regard to his right to appointed counsel, the defendant was repeatedly advised of that right and, in fact, received the assistance of appointed counsel for a period of time prior to trial. Id. Therefore, in Haynes, it was evident that the defendant understood that he was entitled to legal representation. Id. We concluded that the defendant's waiver of counsel was therefore valid and that reversal for a new trial was not warranted. Id.

         ¶ 47 In contrast, in People v. Campbell, this court held there was no compliance, substantial or otherwise, with Rule 401(a). People v. Campbell, 224 Ill.2d 80, 84 (2006). There, the defendant had been accused of an offense punishable by imprisonment. Id. The trial court, however, allowed him to proceed pro se without making any attempt to inform him of the nature of the charges, the range of possible penalties, or his right to counsel. Id. We therefore concluded that his waiver of counsel was invalid and his conviction could not stand. Id. at 85.

         ¶ 48 In this case, the record reveals the following facts. Defendant was arraigned on February 7, 2011. He asserted at the hearing that he would not agree to continuances. The public defender indicated that she would have to withdraw as counsel, as she was not ready for trial. The trial court continued the case for defendant to seek counsel. At the next court date on February 24, 2011, before Judge Lauren Edidin, defendant did not have an attorney. When the trial court asked defendant how long his family indicated it might take to find an attorney, defendant responded that he was "not giving up [his] right to speedy trial at all." The trial court passed the case to allow defendant to speak to a public defender.

         ¶ 49 Afterward, the following colloquy occurred:

"THE COURT: Mr. Wright, I gave you some documents and those documents-the offenses were purported to occur on December 11th, 2010 and there is actually some other charges as well, another case that occurred. Well, this says on December 11th as well.
MR. CENAR [Assistant State's Attorney]: One is December 26th and one-it's the 26th on these.
THE COURT: What I gave you says the 26th.
THE COURT: Thank you. I have another copy that says the 11th. They were actually both put in.
MR. CENAR: Very good.
THE COURT: So there are actually two cases and I don't know if based on any information if that would be-would that be ...

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