People v. Washington

873 N.E.2d 540, 375 Ill. App. 3d 243, 313 Ill. Dec. 916, 2007 Ill. App. LEXIS 858, 2007 WL 2264708

• Court: Appellate Court of Illinois
• Decided: August 8, 2007
• Docket: 1-05-0138
• Status: Published

Opinions

PRESIDING JUSTICE THEIS

delivered the opinion of the court:

Following a jury trial, defendant Jonathan Washington was convicted of armed robbery and sentenced to seven years’ imprisonment. On appeal, defendant contends that: (1) the trial court committed reversible error when it refused to instruct the jury on the lesser included offense of theft; (2) he was denied his sixth amendment right to effective assistance of counsel where counsel failed to request that the trial court answer a question submitted by the jury during deliberations; and (3) he was denied his right to a fair trial when the prosecutor misstated facts central to the case in closing argument. For the following reasons, we affirm.

Defendant was charged with multiple counts of armed robbery (720 ILCS 5/18 — 2 (West 2002)), aggravated robbery (720 ILCS 5/18 — 5 (West 2002)), and robbery (720 ILCS 5/18 — 1 (West 2002)) in connection with the robbery of Derrius Perry, which occurred shortly after midnight on November 5, 2002, near 87th Street and California Avenue in Chicago. The following evidence was adduced at defendant’s trial.

Derrius Perry testified that after finishing work at the Walgreen’s store at 87th and California at midnight, he purchased a bar of soap and a tube of toothpaste, and left the store to walk home. As he was walking south on California Avenue, an individual approached him and asked him directions to King Drive. Perry told him, then resumed his walk, crossing to the other side of the street. The man who had asked him directions followed.

When Perry noticed that he was being followed, he crossed the street again. He also slowed down hoping that the man would pass him. However, when he did, the man approached him, pointed a gun into his ribs, and began taking items from Perry’s pockets. Then, two other men approached and began taking things from Perry.

Defendant then exited a tan, four-door Ford vehicle and approached Perry. Someone dropped Perry’s wallet. Defendant walked behind Perry and picked it up. Defendant then walked in front of Perry, enabling Perry to see defendant’s face. Perry also saw that defendant was holding a knife in his hand. The knife was opened with the blade pointed up at Perry.

Then, someone in the group said, “[ljet’s go,” and ran to the tan Ford. The men took with them Perry’s money and wallet, as well as his sweatshirt and the items he had purchased at Walgreen’s. Perry ran back to the Walgreen’s and called the police.

Officer Michael Rimkus testified that at 12:20 a.m., he and his partner, Officer Charmaine Kielbasa, received a flash message that a robbery had taken place near 87th and California. The message also indicated that four black male suspects had fled the scene in a tan, four-door Ford. About 20 minutes later, Officers Rimkus and Kielbasa observed a vehicle matching the description with its lights off driving slowly. The officers subsequently pulled the vehicle over, drew their weapons, and ordered three black male occupants out of the car. Defendant was the driver. A search of the car yielded a silver-colored BB gun, a black-handled folding knife, and a hooded sweatshirt.

Officer Adam Zimmer testified that he and his partner, Officer Thomas Ostrowski, went to Perry’s home to speak with him about the robbery. The officers then took Perry to the location where Officers Rimkus and Kielbasa had detained defendant and two other men. There, Perry identified his missing sweatshirt. Officer Ostrowski testified that he searched the vehicle a second time and found a Walgreen’s bag containing the soap and toothpaste Perry had purchased. The officers took defendant and the two other men to the police station.

At the police station, Assistant State’s Attorney (ASA) Barbara Bailey spoke with defendant. He told her that in the early morning hours of November 5, 2002, he was driving around with two friends. One of them indicated that he recognized someone walking down the street, so defendant parked the car, and the two friends got out to meet him. Defendant remained by the car and smoked a cigarette. When defendant next looked over to where his friends were, he saw them “roughing up” the other man, who had a terrified look on his face.

Defendant approached them, knowing that “something was wrong,” and observed his friends take the man’s hooded sweatshirt. Defendant’s friends then demanded that the man give them everything he had, and the man complied. The man then gave defendant, who was standing in front of him, his wallet. Defendant’s friends next told the man to run away, which he did. Defendant and his friends thus returned to defendant’s car and drove away. On cross-examination, ASA Bailey admitted that although defendant agreed to tell her his version of the events that evening, he refused to sign a handwritten statement.

Defendant also testified on his own behalf, relating a somewhat different account of the events on the night in question. He stated that his friends Antonio Thornton and Emanuel Reed came to his house and asked him if he wanted to go out, “ride around,” and “holler at some females.” Defendant agreed to do so and drove them around the southwest side of Chicago in his aunt’s car. They stopped around 87th and California when one of his friends said that he recognized someone. Defendant smoked a cigarette while Reed and Thornton spoke with the man, whom defendant identified as Derrius Perry. However, when Perry removed his sweatshirt on that cold November night, defendant decided to approach them to find out what was going on. When defendant did, Perry, looking scared, said to defendant, “here, you want it?” and started handing things to defendant. Defendant still had his cigarette in his hand; he denied ever having a knife. Defendant tried to catch Perry’s wallet, but dropped it. After dropping his cigarette, he picked up the wallet from the ground. Then, Reed and Thornton told Perry to run away, which he did.

Defendant, along with Reed and Thornton, drove to a nearby gas station, where Reed and Thornton went through Perry’s wallet. Defendant stated that he forgot to turn on the vehicle’s headlights because he was nervous. Defendant did not call the police because he was scared that Reed and Thornton might take his aunt’s car.

After the parties rested, the court conducted a jury instruction conference. At that conference, the defense requested that the jury be instructed on robbery. The State did not object, and the court agreed to give the instruction. The defense also requested that the jury be instructed on the lesser included offense of theft. Defense counsel argued that this instruction was supported by the evidence because defendant was the last person to arrive on the scene and the testimony presented only differed with respect to whether defendant merely picked up Perry’s wallet from behind Perry after someone dropped it, or whether Perry threw his wallet to defendant and defendant picked it up. The State responded that the evidence did not support a theft instruction because there were weapons involved in the offense. The State further argued that the offense was not complete until they told Perry to run away; therefore, defendant was a part of an armed robbery. The court ultimately found that the theft instruction was not appropriate under the facts of the case. Accordingly, the court instructed the jury on armed robbery and robbery. The court also instructed the jury on accountability for those two offenses.

During jury deliberations, the jury submitted several notes to the court. One of these notes read:

“Does the commission of a robbery or armed robbery include the get-away?

The law on legally responsible [sic] includes the phrase ‘before or during the commission of an offense,’ but we are unclear when the commission of the offense ends.”

After the jury submitted the note, the court held a conference with the parties. However, neither side was able to suggest a definitive response to the question, so the parties agreed that the court give the jury the following answer:

“You have heard the evidence and been instructed as to the law— please continue your deliberations.”

Shortly thereafter, the jury returned a verdict finding defendant guilty of armed robbery.

Subsequently, defendant filed a motion for a new trial, in which he contended, inter alia, that the trial court should have instructed the jury on theft because some of the evidence showed that defendant merely picked up Perry’s wallet after it had already been given away. Defendant also claimed that the prosecution deprived him of due process by making speculative and erroneous statements in closing argument. The court denied defendant’s motion.

Following a subsequent sentencing hearing, it sentenced defendant to seven years’ imprisonment. Defendant then filed this timely appeal.

Defendant first contends that the trial court committed reversible error when it refused to instruct the jury on theft, which he claims is a lesser included offense of robbery. We disagree.

Generally, a defendant cannot be convicted of an offense for which he was never charged. People v. Baldwin, 199 Ill. 2d 1, 6, 764 N.E.2d 1126, 1129 (2002). However, a defendant can be properly convicted of an uncharged offense where: (1) the uncharged offense is identified by the charging instrument as a lesser included offense of the one charged and (2) the evidence adduced at trial rationally supports a conviction of the lesser included offense. Baldwin, 199 Ill. 2d at 6, 764 N.E.2d at 1129.

Regarding the first step, in this case, defendant was charged with armed robbery and robbery. In order to sustain a conviction of robbery, the State must show that defendant took property “from the person or presence of another by the use of force or by threatening the imminent use of force.” 720 ILCS 5/18 — 1(a) (West 2002). Consistent with that offense, defendant was charged with “knowingly [taking] property, to wit: a wallet, clothes, keys, toothpaste and soap, from the person or presence of Derrius Perry, by the use of force or by threatening the imminent use of force.” In order to sustain a conviction of armed robbery, the State must show that defendant committed a robbery while armed with a dangerous weapon. 720 ILCS 5/18 — 2(a) (West 2002). To that end, defendant was charged with “knowingly [taking] a wallet, clothes, keys, toothpaste and soap from the person or presence of Derrius Perry, by the use of force or by threatening the imminent use of force while armed with a dangerous weapon, to wit: a knife.”

Defendant requested that the jury be instructed on theft. In order to sustain a conviction of theft, the State must show that the defendant knowingly “obtain[ed] or exert[ed] unauthorized control over property of the owner.” 720 ILCS 5/16 — 1(a)(1) (West 2002).

The supreme court has found that theft can be a lesser included offense of armed robbery where the conduct and the mental states required for theft are alleged in the armed robbery indictment. People v. Jones, 149 Ill. 2d 288, 295, 595 N.E.2d 1071, 1074 (1992). Here, defendant’s indictment for either the armed robbery or robbery charge contained the elements of theft, namely, knowingly obtaining or exerting unauthorized control over Perry’s property. Therefore, we find theft to be a lesser included offense of armed robbery and robbery as charged in this case.

Turning to the second step, a defendant is entitled to the lesser included offense instruction if there is any evidence tending to prove the defendant guilty of the lesser offense rather than the greater, even if that evidence is very slight. People v. Garcia, 188 Ill. 2d 265, 284, 242 N.E.2d 295, 305 (1999). Here, Perry’s testimony at trial indicated that while defendant’s friend held Perry at gunpoint, defendant, who was brandishing a knife, took Perry’s wallet. The police officers testified that they found that knife and a BB gun in defendant’s vehicle after they pulled him over. However, defendant’s testimony at trial sharply contradicted Perry’s version of the events. Defendant denied that he ever had a knife and denied that he or his friends ever used a weapon, force, or the threat of force. Instead, defendant maintained that he approached Perry and his friends to find out why Perry had removed his sweatshirt on a cold November night. Nevertheless, defendant did not deny taking Perry’s wallet. Thus, there was evidence presented which, if believed, would have enabled the jury to convict defendant of the lesser included offense of theft but acquit him of armed robbery and robbery. Where, as here, the evidence conflicts, it is for the jury to decide whether the defendant is guilty of the greater offense or the lesser offense. People v. Scott, 256 Ill. App. 3d 844, 852, 628 N.E.2d 456, 462 (1993). Accordingly, the trial court should have instructed the jury on theft.

However, “ ‘[e]ven though error may have been committed in giving or refusing [to give an instruction,] it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.’ ” People v. Jones, 81 Ill. 2d 1, 9, 405 N.E.2d 343, 346 (1979), quoting People v. Ward, 32 Ill. 2d 253, 256, 204 N.E.2d 741, 743 (1965); see also People v. Lopez, 245 Ill. App. 3d 41, 45, 614 N.E.2d 329, 332-33 (1993) (discussing Jones). Similarly, where the evidence is sufficient to convict a defendant of the greater offense, it is not reversible error to instruct the jury only as to that offense. People v. Fonville, 158 Ill. App. 3d 676, 685, 511 N.E.2d 1255, 1262 (1987).

The distinguishing element among armed robbery, robbery, and theft is whether force or the threat of force or a dangerous weapon is employed. See, e.g., Jones, 149 Ill. 2d at 296, 595 N.E.2d at 1075 (discussing elements that distinguish armed robbery and robbery from theft). Put another way, theft is a simple deprivation of property; robbery is a deprivation of property, plus force or the threat of force; and armed robbery is the deprivation of property, plus force or the threat of force, plus the use of a dangerous weapon. 720 ILCS 5/16 — 1(a)(1), 18 — 1(a), 18 — 2(a) (West 2002).

Here, the jury was presented with the option of finding defendant guilty of robbery or armed robbery. In addition, the jury was instructed that defendant could have been found guilty of robbery or armed robbery based on either defendant’s own actions or the actions of his friends, for which he was accountable. Ultimately, the jury found defendant guilty of the greater offense of armed robbery. This means that the jury did not believe defendant’s version of the incident but, rather, believed the testimony of Perry and the police officers, and found that defendant and/or his friends employed a dangerous weapon and the use of force or the threat of force to deprive Perry of his property. Because the jury found that the State had proven those two elements, it would not have returned a conviction of theft instead of armed robbery if it were presented with that option. Therefore, we find any error in the trial court’s refusal to instruct the jury on theft to be harmless. See, e.g., Fonville, 158 Ill. App. 3d at 687, 511 N.E.2d at 1263 (finding that any error in refusing to instruct jury on the lesser included offense of possession of a controlled substance was harmless where the evidence was sufficient to show the greater offense of possession with intent to manufacture or deliver a controlled substance).

Defendant next contends that he was denied his sixth amendment right to effective assistance of counsel when his counsel failed to request that the trial court provide an answer to the jury’s question regarding whether the commission of the offense included the “getaway.” Defendant maintains that the failure to respond left the jury susceptible to the erroneous belief that a getaway was an element of the armed robbery.

A defendant’s claim that he has been denied his sixth amendment right to effective assistance of counsel is evaluated under the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under that standard, a defendant must establish (1) that his attorney’s assistance was objectively unreasonable under prevailing professional norms, and (2) that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. People v. Curry, 178 Ill. 2d 509, 519, 687 N.E.2d 877, 882 (1997). Because the defendant must establish both of these prongs, his failure to establish either one is fatal to his claim. People v. Ceja, 204 Ill. 2d 332, 358, 789 N.E.2d 1228, 1245 (2003).

As a general rule, “the trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994). However, the trial court may exercise its discretion and properly decline to answer a jury’s question where: the instructions are readily understandable and sufficiently explain the relevant law; further instruction would serve no useful purpose or would potentially mislead the jury; the jury’s inquiry involves a question of fact; or the giving of an answer would cause the court to express an opinion that would likely direct a verdict one way or another. Childs, 159 Ill. 2d at 228, 636 N.E.2d at 539.

Here, the jury sent a note asking, “Does the commission of a robbery or armed robbery include the get-away?” The jury also cited the court’s instruction in its note, stating “The law on legally responsible [sic] includes the phrase ‘before or during the commission of an offense,’ but we are unclear when the commission of the offense ends.” After a hearing, the trial court sent back the response, “You have heard the evidence and been instructed as to the law — please continue your deliberations.”

Under these circumstances, we find that defense counsel was not ineffective for failing to request that the court provide a specific answer to the jury’s question. The trial judge is not required to answer a jury’s question when the jury instructions explain the point of law in plain language which the average person could understand. People v. Blalock, 239 Ill. App. 3d 830, 842, 607 N.E.2d 645, 653 (1993) (finding no error in court’s failure to answer jury’s request to define the term “abet” or provide the jury with a dictionary where the instructions explained the concept in plain language). Here, the plain language of the legal responsibility instruction given, which the jury properly cited, is clear that a person can only be legally responsible for the criminal conduct of another where he promotes or facilitates the conduct before or during the commission of the offense, not after. Thus, the trial court did not have to respond to the question. As a result, defendant cannot have been prejudiced by defense counsel’s failure to request that the trial court provide a specific response.

Defendant’s third and final contention on appeal is that he was denied his right to a fair trial when the prosecutor misstated facts that were central to the case in closing argument. Specifically, defendant claims that the prosecutor erroneously stated that defendant pointed a knife at Perry and held the knife to him until the robbery was completed.

We initially observe, as the State correctly notes, that defendant has waived this issue because he never objected to the prosecutor’s closing argument. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129 (1988). Nevertheless, defendant encourages us to consider his argument pursuant to the plain error doctrine. “[T]he plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005). In either case, defendant must first show that there was a plain error. Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479. Here, we decline to apply the plain error doctrine because we find no error in the State’s remarks.

Defendant faces a substantial burden in attempting to achieve reversal of his conviction based upon improper remarks made during closing argument. People v. Williams, 332 Ill. App. 3d 254, 266, 773 N.E.2d 143, 152 (2002). The State is afforded a great deal of latitude in presenting closing argument and is entitled to argue all reasonable inferences from the evidence. People v. Nieves, 193 Ill. 2d 513, 532-33, 739 N.E.2d 1277, 1286 (2000). Further, improper comments can constitute reversible error only when they engender substantial prejudice against defendant such that it is impossible to say whether or not a verdict of guilty resulted from those comments. Nieves, 193 Ill. 2d at 533, 739 N.E.2d at 1286.

Here, during his opening closing argument, the prosecutor described defendant’s role in the offense in the following way:

“[Defendant] picks up [Perry’s] wallet, which has been thrown to the ground as he was being roughed-up by the three individuals who were robbing him at the time. Mr. Washington picks up his wallet, Mr. Washington then produces a knife of his own, points it at [Perry], and holds him at knife point while the robbery is being completed by the other three individuals.”

The prosecutor reiterated this characterization of defendant’s involvement two more times during the course of his argument.

This is not a misstatement of the evidence. Perry testified that as he was being held at gunpoint and robbed by the other individuals, defendant approached and picked up his wallet. After defendant did so, Perry observed that defendant was holding an open knife with the blade pointed up at him. Perry further testified that he remained held in this manner until the assailants finished robbing him and one of them told him to run away. Thus, the evidence clearly stated that defendant was pointing a knife at Perry, and based on the circumstances of the robbery, it was reasonable for the prosecutor to argue that defendant was holding Perry at knifepoint while one of defendant’s friends held the BB gun against Perry. See Nieves, 193 Ill. 2d at 532-33, 739 N.E.2d at 1286 (holding that the State is entitled to argue all reasonable inferences based on the evidence); People v. Calderon, 369 Ill. App. 3d 221, 236, 859 N.E.2d 1163, 1177 (2006) (finding that it was not improper for prosecutor to argue that a vehicle’s lights might have been on because it was late at night and that was a reasonable inference to make). Further, we cannot say that the prosecution’s argument here engendered such substantial prejudice against defendant that it is impossible to say whether or not the guilty verdict arose from the comment. Therefore, defendant is not entitled to a reversal of his conviction based on the prosecutor’s remark.

For these reasons, we affirm defendant’s conviction and sentence.

Affirmed.

GREIMAN, J., concurs.