*1 ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE OF OF STATE COLLIER, Defendant-Appellant. MICHAEL (5th Division) District First No. 1 — 99—3317 Opinion filed March 2002. J.,
REID, dissenting. (Ronald Alwin, Pub- Defender, Chicago P Assistant of Fry, Rita A. Public Defender, counsel), appellant. for lic of (Renee Goldfarb, Devine, Attorney, Chicago Linda Richard A. State’s Attorneys, counsel),
Woloshin, Collins, and Suzanne T. Assistant State’s People. QUINN opinion JUSTICE of the court: delivered Following trial, jury defendant Michael Colher convicted degree attempted degree first first He murder murder. *2 prison years, respectively. sentenced consecutive terms of and 15 appeal, On trial in denying defendant contends that court erred his after had so he motion his case he rested that could testify. He also his uncon- prison contends that consecutive terms are under New L. Apprendi Jersey, stitutional 530 U.S. Ed. 2d below, 120 S. Ct. affirm For the reasons set forth we defendant’s convictions and sentence.
BACKGROUND p.m. September Vontain Mercier that about 4 on testified he Park, was Washington with Cornelius at Fernwood which is located near Chicago, waiting 104th and Wallace in play basketball when they gunshots heard and began Immediately prior to run. hearing gunshots, defendant, Vontain saw whom he did not at the know time, sitting drinking on a bench a beer. Vontain also that stated he noticed blue gray park’s a van with trim in parking lot. After hearing shots, a Vontain second man run saw blue van. leaving park,
After eventually and Washington Vontain went house, Vontain’s located at 10141 standing South Wallace. While brother, front of Mercier, the house with his Wadley Dionte Dion and Washington, Vontain saw driving defendant the blue van he had seen earlier at Fernwood Park. a gave “tough Defendant look” in the direc- street, tion of the four on pulled got over and out of the De- van. fendant something, screamed which out Vontain made as “What’s up?” approached. them, and When about 25 feet from defendant fired in the direction of Vontain and the that others. Vontain stated he chest, heard Washington, about shots fired. who in the was shot died result leg. as a of his wounds. Dionte struck in the night, by
Later that police Vontain was taken to 100th and Aber- deen, driving prior where he identified a as the van one defendant was shootings. 11 p.m. night, About the same Vontain identified de- a police lineup. fendant in In lineup, the same Vontain also identified John day Clark as someone he had seen earlier at Fernwood open court, Park. In person Vontain identified defendant as the who Washington. shot that, time,
Dionte testified on standing at the relevant he was Vontain, curb Washington Wadley talking with and when he de- saw seen, fendant, previously approach driving he never a blue whom had traveling stopped, 10 miles an hour. the van van around When side, clos- the driver’s which was the side the van exited asked, Dionte, and at the loudly up est to “What’s with shit passenger that there was a in the van who never park?” Dionte stated Defendant, away, got out of from about feet then raised the vehicle. rapid aim and or seven shots in. succession at the fired six run- response, they four men In fled the scene. While street. leg. had ning, Dionte fell realized that he been shot house, making After it back to the Dionte heard a second round of fired, by Skyles, about followed the voice Sammie Lee shots neighbor, yelling plate.” “Get the license taken Hospital by
Dionte was to Roseland ambulance where his evening, being from leg wound treated. Later that after released lineup. open a hospital, police Dionte viewed Both court at lineup, as the driver of the van. Dionte identified defendant passenger in the van. lineup, he identified Clark as defendant’s same lineup, Although he did not know Clark’s name the time he played him he recognized previously as with whom someone basketball. involving pend- alleged Morgan,
Travis who had case an assault trial, ques- that on the date in ing at the time of defendant’s stated *3 tion, p.m. About 6 that he across the street from the Merciers. lived Dionte, and evening, in of his while Vontain two he was front house time, Morgan standing the At that others were near Mercier home. man, A driving a van the street his home. saw down toward whom defendant, of got court out the van and Morgan open identified as standing men of the Mercier home began shooting at the four front got then into the van he to be out of bullets. Defendant appeared until there, got out of the nearby a corner. Once defendant and coasted to shooting Morgan’s gun began at van, appeared to the and reload plate license number. attempted get had the van’s neighbors, who police lineup in a evening, Morgan identified defendant as Later that fired the van and the shots. person the had exited who that Chicago police department testified Lynn Lopit of the Officer where p.m., at crime about partner and arrived the scene she her 10137 South Wallace cartridge casing at they recovered one .45-caliber and After cartridge casings near 102nd Wallace. three and .38-caliber Aberdeen, 100th and casings, they proceeded to inventorying the shooting the during used had been told that a van they where van, they a from recovered There, they the blue which located. found weapons were cartridge casings. No bloody and two shirt .38-caliber specializing scientist Testing performed by a forensic van. found the casings all firearms identification revealed that five .38-caliber day shootings weapon. fired from the same recovered were 3, 1997, Sammie September Lee that lived Skyles testified on she p.m. day family with her at 10151 South Wallace. About 6 that she door, gunshots heard went run- people and to her front where she saw Wallace, ning Skyles down the street. Near the corner of 101st and daughter. saw her and her Skyles get son After shouted to children to plate van, person driving number it out and got license asked, number, humm?” plate stated, “[Y]ou want license He then is,” began shooting. “[H]ere it and Skyles unable see face of the shooter. Sweeney
Officer Michael testified that he arrived at the crime shortly p.m. scene after 6 and conducted interviews with witnesses. With gathered, Sweeney began looking the information he had for an model, older gray Chevrolet conversion with trim a Min- van blue and plate. nesota After receiving license a radio message, Sweeney went to Aberdeen, where, p.m., South at about he fitting 6:45 saw a van the description given. had he been the van were black Inside two males. Sweeney partner person As and his approached, pas- in the senger Defendant, seat fled. sitting seat, who was in the driver’s then got out of the Sweeney spent casing van. saw a shell stepboard van, of the him arrested and rights. advised of his Initially, defendant being park denied at that and stated he was not shootings. But, involved in the when questioned about bloody van, defendant, shirt in did appear who to have been shot, stated that he had at been Fernwood Park. He stated further exchange $4, that in given friend, he had who had been shot at the park, a ride a hospital. questioned van, When about defendant stated that he it that only person owned and he was the who had access to it. rested,
After the parties State if stipulated testify, called to Fassl they spoke Detectives and Almazan would state with Dionte at 2 police Area headquarters p.m. night September about 10:55 being and that he identified Clark as with defendant at the time of the shooting. stipulated It was further that the detectives would they spoke night with Vontain Area 2 the same by were him gotten told that both the driver out passenger *4 the shooting. stipulated van before the It was also that Vontain identi- fied being Clark as did shooting. with defendant when defendant
Following stipulations, dismissing these the defense After rested. jury lunch, following exchange for occurred: Collier,
“THE you COURT:Mr. I to moment want address for a attorney just regarding here Your and I case. rested right testify to case if you you have a this want advise you testify. not to That to be want to. You also has have your decision. saying? I am
you Do understand what COLLIER:Yes. DEFENDANT your you
THE COURT:Is it decisionthat don’t want to this case? Yes.”
DEFENDANTCOLLIER: Soon After the lunch break the instructions conference held. following began, after it stated: changed Judge, my claims COUNSEL]: client he’s “[DEFENSE testify. may I He It be may mind. know we chooseto his rested. too. late. Find
THE COURT: out now.” testify.” court, going “He is not counsel then told the Defense spoke prior reflect counsel to defendant The record does not whether informing the court that defendant would conference, oc- colloquy this At the conclusion of instructions curred: bring that I COUNSEL]: Another matter
“[DEFENSE is, that he had a my attention client has indicated has Court’s re-open if case the De- I ask we can our change of heart. would for fendant to my Defendant, Based earlier talk with upon
THE COURT:- denied at this time.” request is heard, instructed, arguments being jury and after Final were Washington guilty degree of the first murder found defendant to a degree murder of Dionte. He was sentenced attempted first a con- degree murder conviction and 40-year prison term for first attempted degree first murder convic- for the 15-year term secutive appeals. Defendant tion. now
ANALYSIS refusing the trial court erred first contends that Defendant his him to trial. allow appeal is based this claim of error waived
The asserts State to the trial court’s denial object upon defendant’s failure in a for failure to raise the issue reopen his case and request to Enoch, 176, 186 De motion. posttrial See review, defendant issue preserve the properly his failure to spite appeal error on under alleged consider the argues that we should necessary is of the issue because consideration plain error doctrine judicial process. of the preserve integrity order general exception error a limited narrow Plain is
749 rule, closely is balanced or only to used where the evidence waiver be of a deprived is so substantial that it the defendant alleged error (2001). Kuntu, 105, v. Ill. “This People fair trial. 196 2d 128 second exception only pos error is prong plain of to be invoked where ‘necessary is to preserve sible error so serious that its consideration is ” reputation judicial process.’ People the integrity Hamp and of the v. ton, 71, (1992), Herrett, Ill. quoting People 149 2d 102 v. 137 Ill. 2d (1990). 195, criminal right testify 214 of in his “The a defendant to People a right.” own behalf at his trial is fundamental constitutional v. (1995). 843, Piper, Thus, agree 3d App. 272 Ill. 846 we with defendant that is necessary integrity review of this issue so as to ensure the judicial process.
Only under the most extreme circumstances should trial court exclude v. testimony. People App. defense 151 Ill. 3d (1960). 1049, (1987), citing People Franceschini, v. 20 2d deciding When a reopen whether to allow defendant to his case so behalf, he can testify in his it proper own is for the trial court to (1) factors, consider including: various (2) the timeliness of the to motion reopen; importance the character and of the to be (3) presented; of granting motion, particular, effect whether (4) is prejudiced; State the reasonableness of explanation for the present defendant’s failure to the evidence in his case in chief. (1992). Watkins, People v. App. 253, 238 Ill. 3d It is within the trial court’s sound discretion to a may reopened as whether case be evidence, further and unless clearly abused, that discretion is reversal (1999). People Figueroa, will not result. App. 308 Ill. 3d 101-02 case, In the testify instant as defendant did not resting before his it may be surmised testify that defendant did not to wish his own behalf Enis, at that time. See People later, A brief although so, time required to do trial court right admonished defendant to testify. as his to See (1997) (“the Smith, 176 Ill. 2d required trial court is not to advise a right testify, defendant his to inquire whether he know ingly intelligently or right, waived that to set of record defendant’s matter”). decision on this After defendant indicated that he understood admonishments, the trial court asked defendant if it was desire his testify trial, not to responded, at to which Following defendant “Yes.” a conference, recess for lunch and the start of the instructions defense counsel informed the trial “changed court that defendant had his mind” respect with testify. upon his decision not to Based our review record, instructing of the the trial “[f]ind court’s defense counsel to out now” a opportunity third defendant was given testify. response, In defense counsel informed the trial court that defendant Only yet did “change
did not wish to after another heart” short, request In deny the trial court defendant’s testify three before the trial court denied opportunities turned down request his case. Frieberg, 305 Ill. the defen People v. argued denying postconviction dant that the trial court erred he received ineffective assistance of trial counsel petition because usurped allegedly when that the defendant’s constitutional counsel court to choose whether to his own behalf at trial. This postconviction peti in denying held that the trial court did not err stating as provided guidance by tion and the trial courts follows: “In whether to holding, so we note because decision ultimately defendant, involving trial lies with issues *6 unexploded how that decision was made lurk—like an bomb—in eveiy resulting supreme in a conviction.As the court noted in case 21, 24, (1973), Brown, ‘in 294 N.E.2d raised, lawyer’s every retrospect is advice will in case which issue Thus, to bad advice.’
appear to defendant have been on behalf at trial convicted defendants who testified their own doing personal was not their choice often will later claim that so hand, to On the other their trial counsel forced them testify not trial will later claim that defendants who did at often them they really testify prevented to but their trial counsel wanted doing so. from situation, urge every courts in explosive
To
we
trial
defuse this
needed,
to
after the State has
case
take the few seconds
criminal
presentation of the defense
case in chief and before the
rested its
case,
that
alone
personally
possesses
to
the defendant
he
admonish
behalf,
testify
that
right to
to
on his own
choose whether
consulting
counsel.”
make that decision after
with
he should
Frieberg,
3d
852.
(Emphasis
original.)
App.
305 Ill.
at
manner,
in this
it
by admonishing
defendants
This court said
argue
that his
“virtually impossible” for defendant to
would make it
In
Frieberg,
App.
3d at 852.
usurped.
testify
was
suggested admonitions
case,
complied with the
the trial court
present
Frieberg.
(1989), the trial court
186 Ill.
3d 668
App.
People Phillips,
each
p.m.
they would hear evidence until
jurors
advised
court then ad
p.m.
case
The trial
The State rested its
at
day
trial.
counsel
witnesses. Defense
any
to call
defense
vised defense counsel
until the
not be available
that the witnesses would
informed
court
and his counsel
then informed the defendant
next
The trial court
day.
day
do so that
testify, he would have to
that if the defendant wished
testify,
defendant would
and,
to not
if the defendant decided
permitted
change
be
testify
day.
his mind and
the next
The defen
conviction,
dant told the court that he did
not wish
After his
the defendant
appeal
raised on
the court’s order that the defendant
testify
would have to
before his defense witnesses testified. This order
contrary
Tennessee,
to Brooks v.
406 U.S.
L.
Ed. 2d
(1972),
This court found that the trial court’s actions amounted to harm- less error because the defendant’s decision not to was not made direction, as a result of the court’s but was made independently before begin presentation defense was to of its case. In the instant inquired the trial court of defendant’s intention after again during jury defense rested and instruction conference. There is no indication in the record before us that defendant’s deci- sion not to testify anything other than a voluntary and informed decision on part of defendant.
We find guidance also in several other Watkins, cases. In People v. 238 Ill. App. (1992), 3d 253 the trial court denied the defendant’s request to reopen proofs where sought he police introduce testimony perfect the impeachment of a State witness. The argued appeal that this affirming was error. In the trial ruling, court’s this court stated that defense counsel present had failed to an excuse as to his failure to recall the officer and further stated that the defendant impeach wanted to was “not of the importance” utmost Watkins, defendant’s case. App. 238 Ill. 3d at 258.
Defendant
heavily
relies
upon two cases for support
argu
of his
ment. In People
151 Ill.
the de
*7
fendant,
had
who
not
trial,
testified at
rested her case because she
incapable
“was
of testifying in her defense.” The
day
remainder of the
spent
was
on the instructions conference. The following morning,
defense
sought
counsel
reopen
defendant,
the case so that the
who
was
composed
“more
and therefore
willing
to testify,”
pre
could
Johnson,
sent evidence.
App.
151 Ill.
3d at 1053. The trial court denied
the defendant’s motion to reopen. This court
appeal,
reversed on
find
ing plausible
it was
that the defendant’s decision whether
state,
resulted from her emotional
“as opposed to an intentional
manipulation
process.” Johnson,
of the trial
In People v. Figueroa, App. 3d 93 the trial court struck the defendant’s testimony entirety its due to his refusal to answer certain questions on cross-examination. After both the State and rested, defense had but prior conference, to the instructions requested defense counsel defendant, case so that the willing questions, the State’s could was then to answer who appeal, motion. On this court found this The trial court denied the the State would not have been denial to be reversible error because testimony and the prejudiced by timing of the defendant’s claim of self-defense. importance” “of the utmost 3d at 104. Figueroa, App. 308 Ill. Watkins, support the Figueroa and cases
We find that the Johnson Unlike in reopen. denial of defendant’s motion to trial court’s defendant’s vacillat no indication as to the rationale behind there is justification The respect to his decision whether to ing with “change appears manipulation of heart” to be a repeated defendant’s supports ruling. the trial court’s See process, of the trial which that, in Also, the record reflects Watkins, App. 238 Ill. 3d at 258. any prosecution failed to disclose to the discovery, answer self-defense, trial, including or to raise at alibi defense that he wished 413(d)). 413(d) (134 Il Ill. 2d R. The Supreme Court Rule pursuant to that, “A part in relevant defense provides of 1961 linois Criminal Code of force, exoneration, provisions on the of or of based justifiable use 1998). (West defense.” 720 ILCS Article is an affirmative this 5/7—14 an that where a defendant wishes to assert It settled Illinois is well this fact. defense, notify the and the court of affirmative he must State (1999). Burns, 1, 8-9 See, v. 304 Ill. e.g., People argue or defense counsel did not self-defense We further note that request closing arguments and also did opening in their or alibi consequence, there is As a jury that the be instructed self-defense. going that defendant was absolutely no basis to believe distinguish These facts or had an alibi. he acted self-defense Figueroa, where the defendant’s case defendant’s case from Even of self-defense. important issue testimony related barred to the State would prejudice that the argument defendant’s accepting reopen his defendant been allowed great been not have testify, but he chose opportunities to given numerous defendant was not to. dem required proof offer of to make the
Further, defendant failed
testimony.
People
See
of his
nature and character
onstrating the
(1993).
primary functions
“The two
Ill. 2d
457-58
Peeples, counsel
judge
opposing
to the trial
are to disclose
proof
an offer of
appropriate
to take
evidence, enabling them
the nature of the offered
a record to determine
reviewing court with
action,
provide
and to
harmful.”
the evidence was erroneous
exclusion of
whether
1, 10
Thompkins,
to a
applied
has
proof
been
of an offer
requirement
The
Taylor,
States
testimony.
United
potential trial
defendant’s
*8
(7th
1997),
had been convicted of bank
F.3d 1105
Cir.
the defendants
robbery,
appeal
and on
defendant Robinson asserted that he was
prevented
denied
of trial counsel and was
from
effective assistance
testifying
rejecting
argument,
own
defense.
defendant’s
appeals
the court of
that the
indicated that
it
found
record
The
defendant’s choice
court continued:
appeal,
testimony
“On
Robinson does not describe the
that he
omission,
presented
have
taken the stand. This
would
he
coupled
overwhelming
guilt,
with the
evidence
Robinson’s
any
causing
establishes that
error
him not to
harmless
369,
beyond
Zillges,
a reasonable doubt. United States v.
978 F.2d
(7th
(7th
1992); Ortega O’Leary,
258,
Cir.
v.
843 F.2d
Cir.
1988).” Taylor,
Similarly,
against
Further,
the evidence
overwhelming.
Collier was
in order for the trial court to
testimony
have found that defendant’s
importance
was of such
reopening
warrant
of his
an offer
proof
presented
should have been
before the court ruled on his
request or immediately thereafter. Given the lack
insight
as to the
testimony
character of his
fading
present
during
and reasons for
it
chief,
his case
say
clearly
we cannot
that the trial court
abused its
denying
discretion when
reopen
defendant’s motion to
case.
Finally,
upon
based
Supreme
Court’s
in Apprendi
decision
v.
Jersey,
466,
435,
New
530 U.S.
(2000),
147 L. Ed. 2d
The Illinois Supreme Court in
v.
People Wagener,
Accordingly, judgment of the circuit court of County Cook is affirmed.
Affirmed.
CAMPBELL, PJ., concurs. REID,
JUSTICE
dissenting:
I
A
dissent.
defendant’s
at trial is a fundamental
right,
constitutional
as
is his or her
to choose not to
116,
(1997);
People Madej,
Arkansas,
145-46
see Rock v.
(1987);
483 U.S.
L.
2d
Ed.
question
grant
of whether to
a defendant’s motion to
in the
proofs,
except
a trial court should not exclude defense
most extreme circumstances.
Franceschini,
citing People
important
proofs
to differentiate between motions to
general
reopen
proofs
the
that the
those motions to
so
difference,
in
There
a
might testify
his or her own defense.
is world of
involved,
in terms of the constitutional
factors
between these two
in
types
Society’s
of situations.
interest
the efficient administration of
justice
right
a
to a
has to be balanced with
defendant’s constitutional
at 1054.
opportunity
App.
fair
to defend.
3d
course,
right
present
testimony
the
to
relevant
is not without
“Of
cases,
right ‘may,
appropriate
limitation. The
in
bow to accom-
legitimate
process.’
trial
modate other
interests
the criminal
right
testify may
a
to
they
[Citation.] But restrictions of defendant’s
designed
arbitrary
disproportionate
purposes
or
applying
are
be
to serve.
evidentiary
a State must evaluate
its
rules
by
justify
imposed
the limitation
whether the interests served
a rule
Rock,
right
testify.”
483 U.S.at
on
55-56,
defendant’s constitutional
2711,
49,
Chambers v.
quoting
Where a case no extreme circumstances abusing its exculpatory testimony, a trial court risks exclusion Figueroa, by denying reopen proofs. People a motion to discretion (1999), citing People Goff, App. 3d 299 Ill. 3d App. 308 Ill. (1998). court, Figueroa discussing The motions to involved: proofs general, identified factors “ ‘ considering reopen proofs, “In a a trial court should motion to factors, including the existence of an into account various
take trial, e.g., to introduce the evidence excuse for the failure risk; or calculated whether adverse whether it was inadvertence evidence; by unfairly prejudiced the new party surprised will be or to the movant’s importance of the utmost whether the evidence is cogent deny reasons to case; there are the most and whether ’ ” People v. App. quoting 3d at Figueroa, 308 Ill. request.” Watkins, quoting Hollembaek App. 238 Ill. 3d Foods, Inc., Finer 137 Ill. Dominick’s caused the trial court I that Collier must have sympathize While and not waffling testifying between by tremendous consternation magnitude testify is of such a constitutional testifying, factors. Collier’s ahead of the Watkins it must be considered general factors precedence over those rights must take constitutional a defendant wanted weigh in a case where trial court would that a or proofs general for the admission of evidence reopen the by The faced the trial court was serious other than his own. decision one, considering clearly that Collier had twice before especially fact said, being question That becomes indicated he would not testify under weighing impact allowing one of the defendant to reopening I particular these facts and circumstances. understand work, some inconve- proofs would have caused some increased and, doubtless, However, aggravation. nience more than a little Col- closing arguments to be request lier’s final came before were jury. Attorney properly pre- made I presume before State’s pared possibility at the onset of trial for the that Collier would take constitutionally As protected witness stand his own defense. such, by the and harm potential prejudice claims State of prosecution’s having closing arguments for the delay case from testimony and ring cross-examination of one more witness hollow. weighed against testify, When constitutional notions Collier’s of trial prosecutorial simply give way. court or must Under convenience facts, a different set of or were this a more case with obvious evidence duplicity decision, or gamesmanship at the heart of a defendant’s I *10 certainly recognize that a different result could be warranted. This is not such a case. I believe Collier should have been allowed rights because his constitutional outweighed the trial court’s other concerns. BRUEMMER, Persons, Similarly
ROBERT Indiv. and for a Class of Situated COMPAQ Plaintiff-Appellant, CORPORATION, COMPUTER Defendant-
Appellee. (5th Division)
First District 1 — 00—2557 No.
Opinion filed March 2002.