THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRON L. PATRICK, Defendant-Appellant.
No. 2-08-0745
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Filed: 22-23-10
JUSTICE BOWMAN delivered the opinion of the court:
Appeal from the Circuit Court of Lake County. No. 07--CF--2274 Honorable George Bridges, Judge, Presiding.
I. BACKGROUND
On July 18, 2007, defendant was indicted for several offenses relating to a traffic accident on May 20, 2007, that killed Holly Graham and injured Tiara Langston, Gary Nixon, and Jauqtel Foster. In count I, defendant was charged with failing to report an accident involving the death of Graham pursuant to
On February 26, 2008, the jury selection process began. In the presence of 35 potential jurors, the trial court stated:
“I shall at this time touch upon certain, broad fundamental principles of law that apply to all criminal cases, and they specifically apply to the criminal case that is before me and now before all of you. ***
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It is absolutely essential as we select this jury that each of you understands and embraces these fundamental principles and they are: The defendant is presumed innocent of the charge that brings him before you, that the State has the burden of proof, the State must prove the charges here beyond a reasonable doubt, the defendant does not have to prove his innocence, he does not have to testify, he does not have to call any witnesses, he does not have to present any evidence at all. He and his attorneys can simply sit there and rely upon what they believe is going to be the State‘s inability to prove him guilty beyond a reasonable doubt. And should that happen, you will have to decide this case on the basis of the evidence presented by the State.
The fact that the defendant may not testify in these proceedings is not to be considered by you in any way in arriving at your verdict. ***
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The bottom line however is that under our system of laws, the defendant is not
required to prove his innocence. That rests squarely with the State and they must prove the defendant guilty beyond a reasonable doubt.”
The court ultimately impaneled jurors 352, 274, 70, 40, 96B, 307, 149, 330, 96A, 46, 387, and 27. We review the questioning of these jurors only as relevant to our Rule 431(b) analysis.
The court first called the following 12 potential jurors into the jury box: 46, 96A, 149, 307, 288, 64, 387, 312, 330, 96B, 274, and 352. The following ensued:
“THE COURT: You heard me talk about those fundamental principles of law that govern and apply to this case, the fact that the defendant is presumed innocent of the charges here, that the State has the burden of proof, the State has to prove the charges beyond a reasonable doubt, the defendant does not have to prove his innocence, he does not have to testify or call any witnesses. Do you understand and accept those principles?
JUROR #352: Yes, I do.
THE COURT: Do you disagree with any one of those principles?
JUROR #352: No, I don‘t.”
Jurors 70, 40, 96B, 149, 307, 330, 96A, 46, and 387 were asked a question that named the identical principles that were included in Juror 352‘s question. They responded in a likewise manner.
Juror 274 was asked the following:
“You heard me talk about those fundamental principles of law that apply to all criminal cases, the fact that the defendant is presumed innocent of the charges here, the State has the burden of proof, the State has to prove the charges beyond a reasonable doubt, the defendant does not have to prove his innocence, he does not have to call any witnesses as I indicated earlier. He and his attorney can simply sit there and rely upon what they believe will
be the State‘s inability to prove him guilty beyond a reasonable doubt. Do each of you understand and accept these principles?”
Juror 274 replied yes and said that he did not disagree with any of those principles.
Juror 27 was asked and answered in the following manner:
“And talking about those principles that govern this case, you heard me indicate that the defendant is presumed innocent, that he doesn‘t have to call witnesses, he doesn‘t have to testify or present any evidence. Do you agree with that?
JUROR #27: Yes, I do.
THE COURT: And you promise you will not require him to prove his innocence?
JUROR #27: Yes.
THE COURT: Anything about either of those principles that causes you concern that you may or cannot follow them?
JUROR #27: No.
THE COURT: And you understand that the State has the burden of proof, the State in this case must prove the charges here beyond a reasonable doubt. Do you understand and accept those principles?
JUROR #27: Yes.
THE COURT: Do you have any disagreement at all with them?
JUROR #27: No.”
Jurors 177 and 112 were selected as alternate jurors. The court stated:
“Under our system of laws, the State has the burden in [the] case here. They have to prove this charge or the charges here beyond a reasonable doubt. The defendant is presumed
innocent. He does not have to testify or call any witnesses. Do both of you understand and accept those principles?”
The alternates responded “yes,” and they responded “no” when asked if they disagreed with any of those principles.
The State first called Langston. In the early morning hours of May 20, 2007, Langston was coming home from a gathering with friends. Graham was driving the car. Nixon and Foster were sitting in the backseat. Langston recalled that she was talking to Foster and heard Nixon say “watch out.” Langston then blacked out. She remembered next waking up in Lake Forest Hospital with broken ribs, bruised lungs, and a bruised kidney.
Foster testified that he was seated in the backseat of Graham‘s car. He did not remember anything after the car traveled toward 12th and Jackson Streets in North Chicago. He did not recall being thrown from the vehicle. He recalled waking up the next day in Condell Medical Center with stitches above his right eye, a broken pelvis, collapsed lungs, and broken ribs.
Nixon testified that he was seated behind Graham. As they approached 12th and Jackson Streets, he told Graham that he loved her and then saw bright lights coming from the left. The next thing he recalled was waking up in Victory Hospital with broken ribs, a cracked pelvis, a punctured lung, and a punctured spleen. Nixon was paralyzed for three days, had two surgeries on his mouth, had split both ears, and had breathing problems.
The parties stipulated that Graham owned the car involved in the crash and that she died as a result of the crash, on May 20, 2007, at age 19.
Lieutenant Richard Theis of the North Chicago police department testified that while on general patrol on May 20, around 12:30 a.m., he observed a black vehicle traveling at a high rate of
Vernice Wright, defendant‘s mother, testified that on May 19, 2007, she purchased a black 2007 Monte Carlo and parked it in back of her home in the 1800 block of Jackson. In the early morning hours of May 20, her stepson called her and asked where the Monte Carlo was. Wright, who was out with a friend, drove to her home and saw that the car was gone. She went to see if her other car was in front, and an acquaintance drove up and told her that there was a bad accident up the road and that it looked like her son was there. She went to the scene but was not allowed to verify if her car was there. Police verified that her son was not at the scene.
Officer Donald Florance of the North Chicago police department testified that he responded to Theis‘s call for backup on the morning of May 20. He met Theis near the intersection of 14th and Jackson, where he observed a cloud of smoke and lights in the distance to the north. The officers continued in that direction and observed the accident scene. The black Monte Carlo had no occupants. Three people were in the white car, a Mercury. On May 7, 2007, Florance was patrolling an area of 22nd Street. He observed defendant standing outside a gray Cadillac. Defendant got into
Officer Morris Wade of the North Chicago police department testified that he was assigned to investigate the crash. On May 22, defendant called and spoke to Wade. Defendant asked what kind of charges he would be facing if he turned himself in. Wade informed defendant that he was unsure because the investigation was incomplete. Defendant advised that he would be turning himself in shortly. Wade asked if defendant had gotten medical treatment for any injuries, and defendant stated that he was not hurt. Wade admitted that defendant did not identify himself as the driver of the black vehicle.
Sergeant Salvatore Cecala of the North Chicago police department testified that he was part of the department‘s accident reconstruction team and was assigned to the May 20 crash. Cecala identified a photograph of the Monte Carlo‘s driver‘s deployed air safety bag with blood on it. The manner in which the blood was smeared on the air bag caused Cecala to believe that it could have come only from the driver. He also identified some blood splatter on the rail where a person would climb into the car, near the carpet. Cecala recovered from the front passenger floorboard a purse with identification of Tarielle Walls. Another purse was recovered from the rear driver‘s-side floorboard. A cell phone was hooked up to the back console. Another cell phone was on the floorboard of the driver‘s side and another on the floorboard of the passenger side. One phone had a “Monique” nameplate. Based on the skidmarks, Cecala estimated that the Monte Carlo had been traveling at 95 miles per hour.
Defendant called Tarielle Walls. On the night of May 19, Walls was “partying” with her sisters, Marielle and Monique, and a cousin at the Rainbow Club in Waukegan when they met up with defendant and a man named “D.” “D” was a short, dark-skinned man with a low haircut. They left the club in defendant‘s white Monte Carlo. Defendant was driving and Walls was in the front passenger seat. “D” was in the backseat. They drove to defendant‘s home in North Chicago. Defendant went inside his home and returned with some car keys. They then got into a new, black Monte Carlo. “D” drove, Walls was in the front passenger seat, and defendant was in the backseat on the passenger side. When they got to 12th and Jackson, a white car pulled out from a stop sign, and “D” swerved but the cars collided. “D” jumped out of the car, defendant spoke to Walls, and then he also left the vehicle. Walls got out of the car with the assistance of a neighbor and sat on the curb until the police came. She denied that the car had been traveling 90 miles per hour. She identified her purse and her sister‘s purse, which had been recovered from the vehicle.
At the close of evidence, the trial court ruled on jury instructions. The State requested Illinois Pattern Jury Instructions, Criminal, No. 23.05 (4th ed. 2000) (hereinafter IPI Criminal 4th). Defense counsel objected to IPI Criminal 4th No. 23.05 because it differed from the actual charges against defendant, which included the element of failing to provide notice to the police within 30 minutes of leaving the accident scene. The State‘s response was merely that the IPI instructions often differ. The court ruled that it would provide IPI Criminal 4th No. 23.05.
IPI Criminal 4th No. 23.05 provides:
“A person commits the offense of leaving the scene of an accident involving death or personal injury when he is the driver of a vehicle involved in a motor vehicle accident resulting in death or personal injury to any person and, with knowledge that an accident has occurred, and with knowledge that the accident involved another person, he fails to immediately stop his vehicle at the scene of the accident and remain there until he has performed the duty to give information and render aid.” IPI Criminal 4th No. 23.05.
Defense counsel also objected to IPI Criminal 4th No. 23.06, which provides:
“To sustain the charge of leaving the scene of an accident involving death or personal injury, the State must prove the following propositions:
First Proposition: That the defendant was the driver of a vehicle involved in a motor vehicle accident; and
Second Proposition: That the motor vehicle accident resulted in a death or personal injury; and
Third Proposition: That the defendant knew an accident occurred; and
Fourth Proposition: That the defendant knew that the accident involved another person; and
Fifth Proposition: That the defendant failed to immediately stop his vehicle at the scene of the accident and remain at the scene of the accident until he had performed the duty to give information and render aid.
If you find from your consideration of all of the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all of the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” IPI Criminal 4th No. 23.06.
After closing arguments, the trial court admonished the jury that defendant was presumed innocent, that the State carried the burden of proving defendant‘s guilt beyond a reasonable doubt, that defendant was not required to prove his innocence, that he did not have to testify, and that the jury must not consider the fact that defendant did not testify in arriving at its verdict. The trial court then read through the remaining jury instructions. The jury returned guilty verdicts on all charges.
On March 20, 2008, defendant filed a motion for judgment notwithstanding the verdict (n.o.v.) or alternatively for a new trial. An amended motion was filed on April 10, 2008. On May 16, 2008, the trial court denied the motion. The matter continued to sentencing. After the trial court heard the witnesses and arguments, it sentenced defendant to an extended term of nine years’ imprisonment for reckless homicide, a Class 3 offense, and nine years’ imprisonment for failing to report an accident involving a death, a Class 2 offense, to be served consecutively. For each of the three counts of failing to report an accident involving an injury, a Class 3 offense, the trial court sentenced defendant to five years’ imprisonment, to be served concurrently. The court ordered that defendant would serve 85% of the reckless homicide sentence. Additionally, defendant would serve the two years’ mandatory supervised release period for the Class 2 offense and one year for the Class 3 offenses.
On June 10, 2008, defendant filed a motion to reduce his sentences. On June 24, defendant filed a pro se motion titled “Motion for Appointment of Counsel Outside the Office of the Lake County Public Defender.” Within that motion, defendant challenged the competency of his trial
On June 24, 2008, defendant also filed a pro se motion for a judgment n.o.v. or alternatively for a new trial. In that motion, defendant made similar allegations of ineffective assistance of counsel. On June 25, 2008, defense counsel appeared but defendant was not in court. Defense counsel was unaware of the pro se motions. The court stated that it “admonished the Defendant, so [his motions] will not be considered by the Court. [They are] untimely.” The court then heard the motion to reduce his sentences. It continued the matter so it could consider the law. On August 1, 2008, the court stated that it believed that it could sentence defendant for both reckless homicide and failing to report an accident because those were two acts. It believed that the first act was the reckless homicide and that the second act was failing to report. The court therefore denied the motion. Defendant timely appealed.
II. ANALYSIS
On appeal, defendant makes several arguments, some of which the State concedes. We first briefly address those conceded points.
Counts I through IV charged defendant with failing to report the accident within one-half hour of the accident, pursuant to
When reviewing the sufficiency of the evidence, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. DeFilippo, 235 Ill. 2d 377, 384-85 (2009). The critical inquiry on review is not simply whether the jury was
“The driver of any vehicle involved in a motor vehicle accident resulting in personal injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at the scene of the accident until the requirements of Section 11--403 have been fulfilled. Every such stop shall be made without obstructing traffic more than is necessary.”
625 ILCS 5/11--401(a) (West 2006).
“Any person who has failed to stop or to comply with the requirements of paragraph (a) shall, as soon as possible but in no case later than one-half hour after such motor vehicle accident, or, if hospitalized and incapacitated from reporting at any time during such period, as soon as possible but in no case later than one-half hour after being discharged from the hospital, report the place of the accident, the date, the approximate time, the driver‘s name and address, the registration number of the vehicle driven, and the names of all other occupants of such vehicle, at a police station or sheriff‘s office near the place where such accident occurred. No report made as required under this paragraph shall be used, directly or indirectly, as a basis for the prosecution of any violation of paragraph (a).”
625 ILCS 5/11--401(b) (West 2006).
In this case, defendant was indicted for violating
B. One Act, One Crime
Defendant argues that because all four convictions of leaving the scene of an accident arose out of a single physical act, the trial court erred in convicting and sentencing defendant on all four
Whether a defendant was improperly convicted of multiple crimes based on the same act is a question of law, which we review de novo. People v. Lee, 325 Ill. App. 3d 643, 652 (2001). An alleged violation of the one-act, one-crime rule is reviewable under the plain-error doctrine because the defendant‘s convictions and sentences affect his substantial rights. People v. Carter, 213 Ill. 2d 295, 299 (2004). Therefore, we agree with the parties that we may review this issue despite the fact that defendant failed to raise it in the trial court.
The supreme court established the one-act, one-crime rule in People v. King, 66 Ill. 2d 551 (1977). King provided that a criminal defendant may not be convicted of, or sentenced for, more than one offense carved from a single physical act. King, 66 Ill. 2d at 566. “Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts.” King, 66 Ill. 2d at 566. “Act” is intended to mean any “overt or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566.
In People v. Sleboda, 166 Ill. App. 3d 42, 44 (1988), the defendant was indicted on three counts of leaving the scene of an accident and three counts of reckless homicide. The defendant was found guilty and was sentenced to concurrent terms of 364 days for each leaving-the-scene-of-an-accident conviction and four years for each reckless homicide conviction. Sleboda, 166 Ill. App. 3d at 44. The defendant argued that the trial court erred in entering judgment on three convictions of leaving the scene of an accident under
We agree with Sleboda. Section 11--403 states that the driver of any vehicle involved in an accident resulting in injury or death to any person shall provide the necessary information to the “person struck or the driver or occupant” of the other vehicle and shall render assistance to any person injured.
C. Sentencing
Because we agreed with defendant‘s arguments and reduced his Class 2 (failing to report an accident involving death) and Class 3 (failing to report an accident involving injury) convictions to one Class 4 conviction (leaving the scene of an accident involving a death), we need not address whether the trial court erred in sentencing him to an extended term for reckless homicide, which is a Class 3 offense. Defendant concedes that once we reduce his other convictions to Class 4, the extended term on the reckless homicide conviction is proper because then the reckless homicide is the most serious offense.
Regardless of the extended-term sentence issue, defendant argues that the trial court lacked statutory authority to order that he serve 85% of the reckless homicide sentence.
“For all offenses *** other than the offense of reckless homicide as defined in subsection (e) of Section 9--3 of the Criminal Code of 1961 committed on or after January 1, 1999, *** the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of good conduct credit for each day of his or her sentence of imprisonment or recommitment under Section 3--3--9. Each day of good conduct credit shall reduce by one day the prisoner‘s period of imprisonment or recommitment under Section 3--3--9.”
“The rules and regulations on early release shall provide that a prisoner who is serving
a sentence for reckless homicide as defined in subsection (e) of Section 9--3 of the Criminal Code of 1961 committed on or after January 1, 1999, *** shall receive no more than 4.5 days of good conduct credit for each month of his or her sentence of imprisonment.”
Defendant was convicted of reckless homicide pursuant to
D. Rule 431(b)
On a point that is not conceded by the State, defendant argues that the trial court did not comply with Rule 431(b) requirements during voir dire. Defendant argues that because of the violation, he is entitled to a new trial. The State argues that the trial court‘s failure to fully comply with Rule 431(b) was not so serious that defendant was deprived of a fair trial.
Defendant neither objected at the time of voir dire nor raised this issue in his posttrial motion. Regardless, we may review a forfeited error under the plain-error rule if either the evidence is so
Rule 431(b) provides:
“The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant‘s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant‘s failure to testify when the defendant objects.
The court‘s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.2
Here, the trial court addressed each of the four principles when it broadly addressed all potential jurors. In the individual questioning, however, the trial court failed to address the fourth principle, that defendant‘s failure to testify could not be held against him. Such failure was error.
We next determine whether we may review this forfeited error by determining whether (1) the evidence is so closely balanced that the jury‘s guilty verdict may have resulted from the error and
Following the parties’ briefing in this case, the supreme court issued its opinion in People v. Thompson, No. 109033 (October 21, 2010), which directly confronted whether a Rule 431(b) violation warranted reversal under the second prong of the plain-error analysis. In Thompson, without objection by the defendant, the trial court failed to individually ask any prospective juror if he understood or accepted that the defendant was not required to offer any evidence. Thompson, slip op. at 2-3. The defendant did not testify or present any other witnesses in his defense, and at the close of trial, the court properly instructed the jury that the fact that the defendant did not do so must
Like the defendant in Thompson, defendant in this case does not argue, nor does the record support, that he was prejudiced by the trial court‘s failure to individually ask prospective jurors whether they accepted the principle that in delivering a verdict they could not use against him defendant‘s decision not to testify. The record shows that prospective jurors were informed of all four Zehr principles before individual questioning commenced. When individually questioning each juror, the trial court either reminded the juror of the principles of law it spoke of earlier or admonished the juror that defendant did not have to testify or both. Each juror responded that he or she understood and accepted these principles. Further, the jury was instructed verbally and given
E. Motion Alleging Ineffective Assistance of Counsel
Defendant‘s final claim on appeal is that the trial court erred in failing to inquire into his allegations of ineffective assistance of counsel. Defendant filed a pro se motion entitled “Motion for Appointment of Counsel Outside the Office of the Lake County Public Defender,” in which he made several allegations of ineffective assistance by his trial counsel. He raised similar claims in a pro se motion for a new trial. On June 25, 2008, without hearing evidence or argument or making any comment on defendant‘s allegations, the trial court found the pro se motions untimely and refused to consider them. The State contends that the motions were untimely, having been filed 119 days after the verdict and 40 days after the final judgment. Defendant argues that when a defendant files a pro se challenge to trial counsel‘s performance, the trial court is to inquire into and examine the matters underlying the defendant‘s claims pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).
When a defendant is represented by counsel, he generally has no authority to file pro se motions, and the court should not consider them. People v. Serio, 357 Ill. App. 3d 806, 815 (2005). Defendants have the right either to have counsel represent them or to represent themselves, but they do not have the right to both. Serio, 357 Ill. App. 3d at 815. Therefore, a defendant represented by counsel may not file pro se motions. Serio, 357 Ill. App. 3d at 815. An exception to this rule permits a defendant represented by counsel to raise pro se claims of ineffective assistance of counsel if they include supporting facts and specific claims. Serio, 357 Ill. App. 3d at 815. Here, we conclude that
We next consider whether defendant‘s pro se motions were untimely, as the State contends. Defendant argues that the trial court had continuing jurisdiction because defendant‘s motion to reduce his sentences, which was filed by counsel, was pending, and thus the pro se motions were timely. We agree with defendant that the trial court maintained jurisdiction over the matter. See Serio, 357 Ill. App. 3d at 817 (the trial court has jurisdiction to consider a successive postjudgment motion where the successive motion is filed within 30 days of the final disposition of the preceding postjudgment motion). Here, defendant‘s pro se motions alleging ineffective assistance of counsel were filed more than 30 days following the trial court‘s denial of his motion for a new trial but before the denial of the motion attacking the sentencing order. While new counsel is not automatically required in every case in which the defendant presents a pro se posttrial motion alleging ineffective assistance of counsel, the trial court is required to first examine the factual basis of the defendant‘s claim. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). If the trial court determines that the claim is meritless or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. Moore, 207 Ill. 2d at 78. If the allegations show possible neglect of the case, new counsel should be appointed. Moore, 207 Ill. 2d at 78. Here, the trial court entirely failed to inquire into defendant‘s allegations. While certainly some of defendant‘s allegations pertain to trial strategy, such as the failure to call a witness, other allegations, such as the failure to object to a sleeping juror, might support an ineffective-assistance-of-counsel claim, and at a minimum the trial court was required to inquire into these allegations. Accordingly, we remand this cause so that the trial court may conduct a proper Krankel hearing to determine whether new counsel is warranted to represent defendant on
III. CONCLUSION
In conclusion, we (1) vacate defendant‘s convictions on counts II, III, and IV, as they violate the one-act, one-crime rule; (2) reduce his conviction on count I from a Class 2 violation of
Affirmed in part and vacated in part; cause remanded.
BURKE and HUDSON, JJ., concur.