NO. 4-03-1018 Filed: 3/10/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County JOSHUA KRUGER, ) No. 99CF357 Defendant-Appellant. ) ) Honorable ) Thomas J. Fahey, ) Judge Presiding. _________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
In June 2003, a jury convicted defendant, Joshua Kruger, of (1) first
degree murder (720 ILCS 5/9-1(a) (West 1998)), (2) home invasion (720 ILCS 5/12-
11(a) (West 1998)), (3) residential burglary (720 ILCS 5/19-3(a) (West 1998)), and (4)
attempt (robbery) (720 ILCS 5/8-4(a), 18-1(a) (West 1998)). In August 2003, the trial
court sentenced him to the following concurrent prison terms: natural life for first degree
murder, 30 years for home invasion, 15 years for residential burglary, and 5 years for
attempt (robbery). Defendant's motion to reconsider sentence was denied and he
appealed. We affirm as modified and remand with directions.
I. BACKGROUND
On July 15, 1999, the police were called to 81-year-old Peter Godels's
home in Westville after Godels did not answer his door when a woman came to deliver
his meal. The police found Godels dead in his bedroom. An autopsy performed on July
16, 1999, showed Godels had 16 external injuries and died 6 to 24 hours before the autopsy was performed from cranial cerebral injuries due to multiple blunt-force trauma.
Defendant was eventually indicted in connection with Godels's homicide
for multiple counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 1998)),
home invasion, residential burglary, and attempt (robbery).
Defendant proceeded with a jury trial. Before the trial, defense counsel
filed motions to suppress evidence, objecting to a search of defendant's car. The trial
court granted the motion in part. The State appealed. This court found that the trial
court erred in excluding the evidence. People v. Kruger, 327 Ill. App. 3d 839, 845, 764
N.E.2d 138, 142 (2002). While the appeal was pending, the State filed a new
indictment that restated the charges from the original indictment but added the following
counts: count XIII (victim 60 years or older), count XIV (brutal or heinous behavior),
count XV (section 9-1(b)(6) aggravating factor (murder committed during forcible felony)
(720 ILCS 5/9-1(b)(6) (West 1998))), and count XVI (section 9-1(b)(16) aggravating
factor (the victim was over 60 and the acts were brutal or heinous) (720 ILCS 5/9-
1(b)(16) (West 1998))).
At trial, the State presented Barbara Johnson, who testified that she knew
defendant since she was a child. According to Johnson, defendant came to her house
in July 1999. At that time, Mendi Toth, Johnson's roommate; Jeff Holmes, Johnson's
boyfriend; and Earl Harris, Holmes's friend, were at Johnson's house. Johnson stated
that defendant, Holmes, and Harris went to get marijuana, then came back. When the
three got back, Johnson told defendant she heard that he wanted to do something
illegal to make some money. Over objection by defense counsel, Johnson testified
- 2 - defendant asked her if she knew where he could get a gun and she responded that she
did and that she knew where they could possibly get some money. Johnson told
defendant that a man named "Pete" supposedly had a lot of money. Defendant,
Johnson, Holmes, and Harris drove to "Pete's" house, and Godels was standing
outside. Johnson and defendant agreed that if they got any money, they would split it.
Over objection from defense counsel, Johnson testified that from Godels's
house, the group went to Billee Weston's house to see about getting a gun. Weston did
not give Johnson a gun. The group then went back to Johnson's and agreed to meet
later when it was dark to rob Godels. Everyone returned to Johnson's when it was dark.
Defendant asked if he was wearing dark enough clothes. The group smoked marijuana
and then Holmes, Johnson, and defendant left for Westville in defendant's car. In the
backseat of defendant's car, Johnson noticed a crowbar, masking tape, and a black ski
mask. When they arrived at Godels's residence, Johnson was to go to the door
because Godels knew her and would let her inside. After getting out of the car,
Johnson turned around because she got scared. Defendant got mad and began hitting
the dashboard of the car. Defendant eventually drove them back to Johnson's house.
At Johnson's house, defendant told Johnson he would "do it with or without [her]."
Holmes testified to a similar version of events. He added that after he
heard about Godels's murder, he asked defendant if he went back to Westville and
defendant responded "your girlfriend's a[] *** liar" and "I killed a man for nothing." Harris
also testified, and his version of the initial trip to Westville was substantially the same as
Holmes's and Johnson's versions.
Edgar Newton testified that he was Godels's friend and former tenant but
- 3 - had moved out before Godels was murdered. Newton knew Johnson, as well as Henry
Graham, a codefendant. Gary Beauchamp testified he was Godels's friend and had
built the house in which Godels was living.
Michelle Carlton, defendant's former girlfriend and mother of his children,
testified that she lived with defendant in 1999. One evening in July, defendant, wearing
only his boxers and undershirt, came to bed unusually quiet. Carlton asked him why he
was home so early and he stated he was trying to make some quick cash by selling
drugs, but he got scared and gave the drugs away. Later, Carlton noticed defendant's
dark tennis shoes were missing.
Carlton further testified that after that night, they were at defendant's
mother's house and defendant was in a big hurry to get home to watch the news, which
was unusual. The news ran a story about a man murdered in Westville, and defendant
laughed at the television and said "they don't have any leads, they don't know what they
are talking about." Carlton asked defendant how he would know that, and defendant
responded "they never know what they're doing." Later that evening, a man Carlton had
never seen came to talk to defendant. After the man spoke with defendant, he returned
panicked, saying he was going to his dad's in Maryland. When Carlton asked defendant
what was wrong, he responded "I killed that man" and pointed toward the television.
Carlton also relayed a conversation she had with defendant before he was
arrested in which he described how he had pounded on the dashboard in his car
because he was mad that the robbery had not yielded any money.
Carlton had testified in front of the grand jury that defendant was either
with her or Chad Cooper all night but admitted at trial that she had lied to the grand jury.
- 4 - After Carlton testified for the grand jury, she talked to defendant at the jail, and he told
her that Holmes and Johnson had told him about Godels. According to Carlton,
defendant stated the plan had been that he and Holmes would rob Godels but that
defendant ended up robbing Godels by himself. Defendant later told Carlton that Henry
Graham had been with him and Graham hit Godels while they both demanded money.
Defendant stated Graham continued to hit Godels while defendant searched the house.
Defendant told Carlton he had a ski mask, crowbar, and duct tape and Graham had a
gun. According to Carlton, defendant stated he burned the clothes he wore when he
went to Godels's residence.
Carlton testified that defendant had a gang tattoo on his back that says
"GD gang." Carlton believed defendant and Graham were in the same gang.
The State also presented defendant's grand jury testimony to the jury.
Defendant's grand jury testimony indicated he had a girlfriend, Michelle Carlton, but he
did not know Barbara Johnson, Jeff Holmes, Mendi Toth, or Earl Harris. Defendant
claimed he never went to Westville the week Godels was killed. Further, defendant
stated that the entire day and night of the murder he was either at Carlton's apartment,
with Carlton, or with his best friend Chad Cooper.
The State called numerous police officers and crime scene investigators.
One official testified he seized a blue knit cap, a blue hooded sweatshirt, a black and
green nylon bag, a blue bandana, and blue gloves from the front passenger seat of
defendant's car. The official also collected a swab of a reddish stain from defendant's
car. The only fingerprints found at the victim's home belonged to Beauchamp and
Newton. One forensic scientist matched a swab retrieved from defendant's car to
- 5 - Godels's DNA (deoxyribonucleic acid).
Defendant called Chad Cooper, who testified that defendant was with him
from around 6 p.m. to around 9 p.m. the night of the murder. Cooper also stated that
defendant had asked him to arrange a visit between defendant and his children.
Cooper asked Carlton, but she stated she wanted nothing to do with defendant or to
"mess up" her new relationship.
The chief investigator in this case testified that he had received
information from Henry Graham that defendant went to a particular area to burn his
clothing from the night of the murder and that a crowbar was thrown in that area. When
police searched the area, they found nothing of significance to the case. Godels was
murdered in July, and the police searched the area in the winter when four to six inches
of snow covered the ground.
The parties stipulated that Shawn Williams, a former tenant of Godels,
moved out of Godels's residence three to five weeks before the murder. Williams knew
Henry Graham and his brother but does not remember whether Henry had ever been to
Godels's home.
Finally, defendant testified in his own defense. Defendant admitted that
on July 13, 1999, he saw Johnson, Holmes, and Harris. Defendant claimed he was
driving to see if he could buy a gun for protection and saw Holmes and Harris at
Johnson's house. Holmes stated he could get a gun, so defendant, Holmes, and Harris
drove to some apartments. Holmes went inside to get the gun but came back empty-
handed. The group headed back to Johnson's house where they found Johnson.
Johnson said she could get defendant a gun if he bought her some marijuana.
- 6 - Defendant bought the marijuana. Johnson directed defendant to a trailer in Westville.
Defendant drove and Johnson, Holmes, and Harris went along. When they arrived at
the trailer park, Johnson stated that the guy's car was not there, so they could not get
the gun. Defendant drove the group back to Johnson's house. During the drive,
Johnson pointed to Godels's house and stated Shawn Williams had robbed the house
and they could easily rob it. Defendant responded he did not want to have anything to
do with a robbery.
Defendant claims on July 14, 1999, he went to his mother's house in the
morning, Carlton later came to his mother's house, and they eventually went back to
Carlton's apartment. At 6 p.m., Cooper picked him up and they went for a run, and then
went to Fazoli's. Cooper dropped him back at home at 9 p.m. Defendant only left that
evening to get milkshakes. Defendant remembers the day because Carlton started a
new job the next day.
The day Carlton started her new job, July 15, defendant awoke and found
a note from Carlton stating she would meet him at his mother's house after she got off
of work. Defendant's pager went off while he was taking a shower. The page was from
Holmes, who stated he had a gun for defendant at Holmes's mother's house. At the
house, defendant saw Holmes and Henry Graham talking. Holmes gave defendant a
gun. Graham and defendant started talking, and Graham asked defendant for a ride to
the mall. Defendant took Graham to the mall and they discussed a party that was to be
held that night. Defendant agreed to go with Henry Graham to the party. After the mall,
defendant went to his mother's house and met Carlton. That night, he drove Graham
and Tyson Jones to a bar and nightclub. After going to the nightclub, defendant went
- 7 - home.
The next day, July 16, defendant noticed an article in the newspaper
about a suspicious death in Westville. Defendant recognized the man as the person
standing in front of the house that Johnson had said would be easy to rob. Defendant
thought it was a big coincidence, so when Carlton came to his mother's after work, he
told her he wanted to get home to watch the news. While watching the story about
Godels, defendant told Carlton he thought he knew who killed that man. Defendant told
Carlton what happened with Johnson. The two considered going to the police but
decided not to because defendant was on parole.
On July 17, Holmes approached defendant and told him Johnson was
blaming him for the murder in Westville. Defendant told Holmes that Johnson was a
liar. Holmes asked defendant if he was going to the police, and defendant said he was
not. Holmes threatened to tell the police about defendant's gun if he told the police.
A week and a half later, defendant was arrested for possession of a
firearm by a felon after the police saw a gun in defendant's car when they were
investigating him for Godels's murder. The police towed defendant's car. Defendant
remained in jail until, according to him, he was told that he had a phone call. Instead of
receiving a call, he was taken to the grand jury room and told he had to testify. At the
time, he was represented for the firearms charge, but his attorney was not present at
the grand jury. After the grand jury, defendant was charged with Godels's murder.
At the close of all the evidence, the State submitted two theories of first
degree murder. "Type A" theorized defendant personally or by accountability performed
the acts that caused the death and intended to kill or do great bodily harm, knew his
- 8 - acts would cause death, or knew his acts created that strong probability. "Type B"
theorized felony murder during the commission or attempted commission of home
invasion, residential burglary, or robbery. Defendant was convicted of (1) first degree
murder (720 ILCS 5/9-1(a) (West Supp. 1999)), "Type B," (aggravating factors age,
brutal, or heinous behavior, and felony murder); (2) home invasion, (3) residential
burglary, and (4) attempt (robbery).
At sentencing, the trial court orally sentenced defendant to concurrent
prison terms of natural life for "Type B" first degree murder, 30 years for home invasion,
15 years for residential burglary, and 5 years for attempt (robbery). In November 2003,
the court denied defendant's motion to reconsider sentence. This appeal followed.
II. ANALYSIS
On appeal, defendant raises eight points of error. First, defendant argues
that the trial court had no jurisdiction to proceed on the indictment filed when the State's
appeal was still pending. In the alternative, defendant argues his natural life sentence
was based on a charge for which he had been acquitted and we should remand. Next,
defendant argues the court improperly allowed testimony concerning defendant's search
for and possession of a gun. Also, defendant claims the court erred in denying his
motion to suppress his statements to the grand jury. Further, the court acted improperly
in allowing Carlton's testimony that defendant had a gang tattoo and was in a gang with
Henry Graham. Defendant next claims the court committed plain error when it allowed
the State to impeach him with his prior convictions for unlawful possession of a weapon
by a felon and armed robbery. Defendant also argues he was denied effective
assistance of counsel at his jury trial. Finally, defendant contends his natural life
- 9 - sentence is grossly disproportionate to codefendant Henry Graham's sentence of 20
years.
D. Grand Jury Testimony
Defendant argues his statements to the grand jury should have been
suppressed because during the grand jury proceedings the State questioned him
without his lawyer despite his previous invocations of his right to counsel and despite his
previous invocations of his right to remain silent. The State responds that the admission
of the testimony was harmless.
The record shows that at the hearing on the motion to suppress
defendant's grand-jury statements, defendant's former attorney, Craig DeArmond,
testified that he represented defendant in 1999 on the firearms charge.
The firearms charge arose because officers were sent to defendant's
apartment as defendant was a suspect in the Godels murder investigation. When the
officers arrived at the apartment, defendant drove up in his car. Officers recognized
defendant from photographs they had seen of him, and they had information that a car
matching the description of the one defendant was driving was used to travel to
Godels's residence. The two officers approached the car and identified themselves as
police officers. One officer saw a live round on the driver's seat, and knowing defendant
to be a convicted felon, asked defendant if he was supposed to have a bullet. That
officer then saw on the front driver's seat the handgrip and clip of a gun. Defendant was
eventually charged with unlawful possession of weapon by a felon (720 ILCS 5/24-
- 10 - 1.1(a) (West 1998)).
Shortly after DeArmond was retained to represent defendant on the gun
charge, he became aware that defendant was facing the possibility of an indictment for
Godels's murder. DeArmond had a number of informal conversations with the State's
Attorney regarding whether defendant would implicate a co-actor in the Godels murder
and whether defendant would testify before the grand jury regarding the murder.
DeArmond remembered the State's Attorney calling to tell him he was thinking about
calling defendant at the grand jury, but DeArmond never told the State's Attorney it was
all right for him to call defendant without DeArmond being present. At no time did
DeArmond state defendant agreed to waive his right to have an attorney present at the
grand jury. DeArmond did not receive a notice saying that defendant was going to be
called before the grand jury. DeArmond knew the State had wanted to call defendant,
but he did not know until after the grand jury that defendant had testified.
Section 112-4(b) of the Code of Criminal Procedure of 1963 states as
follows:
"Any person *** against whom the State's
Attorney is seeking a Bill of Indictment
shall have the right to be accompanied by
counsel who shall advise him of his rights
during the proceedings but may not parti-
cipate in any other way. Before any testimony
is given by such a person, he shall be in-
formed that he has the right to refuse to
- 11 - answer any question that will tend to in-
criminate him, that anything he says may be
used against him in a court of law, that he
has the right to be accompanied and advised
of his rights by counsel, and that he will
have counsel appointed for him if he cannot
afford one." 725 ILCS 5/112-4(b) (West 2000).
Before questioning defendant before the grand jury, the State's Attorney
stated as follows:
"Sir, I would advise you that you have the
right to refuse to answer any questions that
will tend to incriminate you, that anything
you say may be used against you in a court
of law. You have the right to be accompanied
by and advised of your rights by counsel.
And if you cannot afford counsel you can have
the right to have one appointed for you."
After this admonishment, defendant answered the State's questions.
The trial court determined that defendant had been given Miranda
warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602
(1966)) and advised of his rights on previous occasions and that the State's Attorney
admonished him consistent with the statutory requirements. The court determined,
therefore, that defendant was aware of his rights and "there is some onus on the
- 12 - [d]efendant to exercise those rights and seek an attorney or request an attorney if he so
chooses." The court denied the motion to suppress the grand-jury statements.
Defendant was undisputedly represented by counsel on the firearms
charge. The firearms charge was initiated because defendant, a convicted felon, was
found in possession of a firearm and ammunition while police were investigating
defendant concerning Godels's murder. Defendant's attorney for the firearms charge
knew defendant was a suspect in Godels's murder and knew the State was thinking
about calling defendant before a grand jury regarding Godels's murder. The State,
knowing defendant was represented, brought defendant from the jail where he was
being held on the firearms charge, gave him a subpoena, told him he had the right to be
advised by a lawyer, and questioned him under oath. The State never informed
defendant's attorney that defendant was being questioned before the grand jury even
though the State had been negotiating with his attorney regarding whether defendant
would testify. These unique circumstances establish a violation of defendant's sixth-
amendment right to counsel and a basis for excluding his grand-jury statements at trial.
The trial court's error in admitting the statements, though, was harmless.
The sixth amendment of the United States Constitution guarantees that in
a criminal prosecution the accused shall "have the [a]ssistance of [c]ounsel for his
defense." U.S. Const., amend. VI. In Kirby v. Illinois, 406 U.S. 682, 688, 32 L. Ed. 2d
411, 417, 92 S. Ct. 1877, 1881 (1972), the United States Supreme Court determined
that the sixth-amendment right to counsel attached "only at or after the time that
adversary judicial proceedings [had] been initiated." Once the sixth-amendment right to
counsel has attached and defendant has asserted his right to counsel, the prosecution
- 13 - may not initiate an interrogation. Michigan v. Jackson, 475 U.S. 625, 635, 89 L. Ed. 2d
631, 641-42, 106 S. Ct. 1404, 1410-11 (1986). Without defendant's counsel being
present, any purported waiver of counsel in that situation is invalid. Michigan v.
Jackson, 475 U.S. at 635, 89 L. Ed. 2d at 641-42, 106 S. Ct. at 1410-11.
The sixth amendment's guarantee of the right to counsel is "offense
specific" and "cannot be invoked once for all future prosecutions, for it does not attach
until a prosecution is commenced, that is at or after the initiation of adversary judicial
criminal proceedings." McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 166,
111 S. Ct. 2204, 2207 (1991). In determining whether an uncoerced confession of a
crime should be admissible when the confessor's sixth-amendment right to an attorney
had attached for another offense, the United States Supreme Court determined that the
meaning of the term "offense" in the sixth-amendment right-to-counsel context is the
same as in the fifth-amendment double-jeopardy context. Texas v. Cobb, 532 U.S. 162,
173, 149 L. Ed. 2d 321, 331-32, 121 S. Ct. 1335, 1343 (2001). In Cobb, the Supreme
Court noted that the ability to obtain uncoerced confessions after valid Miranda waivers
is "'essential to society's compelling interest in finding, convicting, and punishing those
who violate the law.'" Cobb, 532 U.S. at 172, 149 L. Ed. 2d at 331, 121 S. Ct. at 1343,
quoting McNeil, 501 U.S. at 181, 115 L. Ed. 2d at 170, 111 S. Ct. at 2210.
According to the United States Supreme Court, "the core purpose of the
counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted
with both the intricacies of the law and the advocacy of the public prosecutor." United
States v. Ash, 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573 (1973).
The Court recognized that today's adversary system "'involves critical confrontations of
- 14 - the accused by the prosecution at pretrial proceedings where the results might well
settle the accused's fate and reduce the trial itself to a mere formality.'" Ash, 413 U.S.
at 310, 37 L. Ed. 2d at 627, 93 S. Ct. at 2574, quoting United States v. Wade, 388 U.S.
218, 224, 18 L. Ed. 2d 1149, 1156, 87 S. Ct. 1926, 1931 (1967). The Supreme Court of
Illinois has held that "the level of prosecutorial involvement may be considered in
determining whether a defendant's sixth[-]amendment right to counsel has attached"
and a "defendant has a sixth[-]amendment right to counsel only if there has been
significant prosecutorial involvement at the time of the questioned action or if the
government has committed itself at that time to prosecute defendant." People v.
Garrett, 179 Ill. 2d 239, 248, 250, 688 N.E.2d 614, 618-19 (1997).
While defendant's grand-jury testimony came before he was formally
charged with Godels's murder and the firearms charge and the home invasion,
residential-burglary, attempt (robbery), and felony murder charges are not the same
offenses under double- jeopardy principles, defendant should not have been questioned
without his attorney under these unique circumstances. In this case, defendant's
retained attorney was representing him on a firearms charge that arose in the course of
the investigation of Godels's murder. While defendant claimed the gun was for his own
protection, substantial trial testimony established that defendant acquired the firearm in
preparation for robbing Godels. Defendant's attorney on the gun charge knew
defendant was a suspect in the Godels murder and was negotiating with the State
regarding defendant's cooperation at the grand jury. The State knew defendant was
represented yet purposefully circumvented counsel to obtain a sworn statement of
defendant's involvement in the Godels case.
- 15 - This is not the case of an uncoerced confession as in Cobb, 532 U.S. 162,
149 L. Ed. 2d 321, 121 S. Ct. 1335. Defendant did not voluntarily confess at a police
station where he was being held on another charge after receiving Miranda warnings.
Defendant was ordered to testify under oath in front of a grand jury after the brief
admonishment that he had the right to be "accompanied by and advised of his rights by
counsel." Defendant was ordered to testify under oath without the benefit of his
attorney's advice. Defendant did not give an uncoerced confession; rather, he was
confronted with the intricacies of our legal system and advocacy of the public prosecutor
and ordered to give sworn testimony without the advice of his attorney. All of this was
done after defendant retained counsel to advise him after he was charged and taken
into custody.
While defendant's grand-jury testimony should not have been admitted,
any error was harmless beyond a reasonable doubt in light of the overwhelming
evidence of defendant's guilt. People v. Mitchell, 152 Ill. 2d 274, 326, 604 N.E.2d 877,
903 (1992). Only defendant's own testimony and that of his best friend exculpated
defendant. Three of defendant's companions, however, testified consistently that
defendant was looking to rob someone and he went to Godels's residence intending to
rob him. Two witnesses, one of which was defendant's former girlfriend, testified that
defendant admitted to killing Godels. Finally, Godels's DNA was found in defendant's
car.
III. CONCLUSION
For the reasons stated, we affirm the trial court's judgment and remand
- 16 - with directions that the written judgment of sentence be corrected to show defendant
was convicted of and sentenced for count VI, first degree murder, in that he without
lawful justification performed the acts that caused the death of Godels while attempting
to commit a forcible felony, residential burglary, in violation of section 9-1(a)(3) of the
Criminal Code of 1961 (720 ILCS 5/9-1(a)(3) (West 1998)).
Affirmed as modified and remanded with directions.
TURNER, P.J., and McCULLOUGH, J., concur.
- 17 -