People v. Andrews

• Decision Date: 22 June 2005
• Docket Number: No. 2-03-0959.,2-03-0959.
• Citation: People v. Andrews, 831 N.E.2d 66, 358 Ill. App. 3d 744 (Ill. 2005)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Shauntel L. ANDREWS, Defendant-Appellant.
• Court: Illinois Supreme Court

831 N.E.2d 66

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Shauntel L. ANDREWS, Defendant-Appellant.

No. 2-03-0959.

Appellate Court of Illinois, Second District.

June 22, 2005.

COPYRIGHT MATERIAL OMITTED

G. Joseph Weller, Deputy Defender and Kathleen J. Hamill(Court-appointed), Elgin, for Shauntel L. Andrews.

John A. Barsanti, Kane County State's Attorney, St. Charles, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Kristine A. Karlin, Mt. Prospect, for the People.

Justice KAPALAdelivered the opinion of the court:

Defendant, Shauntel L. Andrews, was charged by indictment with aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18-4(a)(4)(West 2002)).A first trial ended in a mistrial due to jury deadlock.On retrial, a second jury convicted defendant of the offense, and the trial court sentenced him to 14 years' imprisonment.Defendant timely appeals, contending first that his second trial violated his rights under the double jeopardy clauses of the United States and Illinois Constitutions.Second, defendant contends that the offense of aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18-4(a)(4)(West 2002)) was declared unconstitutional in People v. Moss,206 Ill.2d 503, 276 Ill.Dec. 855, 795 N.E.2d 208(2003), and, therefore, his conviction must be reversed and supplanted with a conviction of the lesser-included offense of vehicular hijacking (720 ILCS 5/18-3(West 2002)).As alternatives to his second contention, defendant contends that the evidence presented at his second trial was insufficient to sustain his conviction of aggravated vehicular hijacking while carrying a firearm, and that the trial court erred in refusing to answer a question posed by the jury posed during its deliberation at the second trial regarding the firearm.

We reject defendant's first appellate contention, but we agree with defendant's second contention and, consequently, we do not reach defendant's two alternative appellate contentions.For the reasons that follow, we reverse defendant's conviction of aggravated vehicular hijacking while carrying a firearm in violation of subsection 18-4(a)(4), and we vacate his 14-year sentence.However, we order the entry of a judgment of conviction of the Class 1 felony of vehicular hijacking in violation of section 18-3(720 ILCS 5/18-3(West 2002)), and we remand this cause to the circuit court of Kane County for resentencing.

I.FACTS

A.The First jury Trial

Defendant's first jury trial began on February 3, 2003.Erica Rocha testified that she drove her mother's white pickup truck to an Office Depot in Aurora, Illinois, on September 28, 2002.Erica's friend Amber Ibarra was Erica's passenger.After Erica parked the pickup truck, a man with a goatee, wearing a black "hoody" and black "Wilson" gloves, approached the pickup truck.Erica made an in-court identification of defendant as the man who approached the pickup truck.Defendant told Erica that he liked her truck and that he wanted to show her something, and he then pulled out a gun.Erica described the gun as a black metal revolver with rust spots and scratches on it.Defendant told Erica and Amber to empty their pockets and to give him all their money.After Erica and Amber told defendant that they had no money, defendant said that he liked the truck and was going to take it.After Erica asked defendant not to take the truck, defendant asked if it was worth her life.With that, Erica said no, and she and Amber got out of the pickup truck.Defendant got into the pickup truck and drove away.Thereafter, Erica telephoned the police.On October 4, 2002, Detective Guillermo Trujillo of the Aurora police department showed Erica two six-photograph arrays.Erica identified the person depicted in photograph number four in the second array as the person who took her mother's pickup truck.The individual depicted in photograph number four was defendant.On cross-examination, Erica agreed that the gun defendant had on the afternoon in question could have been fake, but she believed that it was real.

Amber Ibarra's testimony was substantially similar to Erica's testimony.Amber also made an in-court identification of defendant as the man who hijacked the pickup truck.Amber independently selected a photograph of defendant from the same arrays of photographs viewed by Erica.On cross-examination, Amber added that she saw defendant get out of a car before he approached the pickup truck.Amber responded affirmatively to defense counsel's question, "[a]nd that car you said had a half-circle shape on the trunk?"

Detective Trujillo testified that he met with Erica Rocha and Amber Ibarra on October 4, 2002, and interviewed them individually.Both Erica and Amber selected a photograph of defendant from the second of two photograph arrays and indicated that the photograph was of the man who hijacked the white pickup truck.When asked on cross-examination why he included a photograph of defendant in the photograph arrays, Detective Trujillo said that defendant's name was given to him by the North Chicago police department based on information provided to them from the arrest of James Walls and Angelo Wilcox in North Chicago.Detective Trujillo said that the North Chicago police department obtained defendant's name from James Walls and Angelo Wilcox.Detective Trujillo did not elaborate further on why defendant's photograph was included.

In his case, defendant called Officer Steven Bonnie, who testified that he took a description of the suspect from Erica Rocha and Amber Ibarra on September 28, 2002.Officer Bonnie said that in his report he used the hairstyle code "CUR," from the Aurora police department's code sheet, which corresponded to the hairstyle category of "curly slash [A]fro."On cross-examination, Officer Bonnie said that Erica and Amber told him that the suspect was an approximately 6-foot tall, 180-pound, African-American with short black hair and brown eyes, and facial hair on his chin.

Evidence technician Renaldo Rivera of the Aurora police department testified that he processed a 1997 Dodge pickup truck and a 1973Ford Thunderbird in connection with this case.Officer Rivera indicated that he believed that the Thunderbird had a crescent or half-moon shape on the trunk.Officer Rivera said that he took prints from the Dodge pickup truck, but the prints were not sent to the lab.No gun was found in either vehicle.Officer Rivera found four black batting gloves in the Thunderbird, but none were "Wilson" batting gloves.

Defendant testified in the narrative.He admitted that he was convicted of two felony offenses in 1998.Defendant testified that he had never seen Erica Rocha or Amber Ibarra before their appearance at his trial and had never seen the pickup truck.Defendant admitted that the 1973Ford Thunderbird belonged to him, but he claimed that the vehicle was towed from the house of a girl named Lakesha on September 28, 2002, and that he was nowhere near his car on that date.Defendant denied telling Sergeant Bell of the North Chicago police department that he sold his car to Demetrius Wilcox of Waukegan.

In its rebuttal case, for impeachment purposes, the State produced certified copies of defendant's 1998 conviction of attempted armed robbery in Kane County and defendant's 1998 conviction of attempted armed robbery in Kendall County.

In addition to giving the jury instructions on the charged offense of aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18-4(a)(4)(West 2002)), on defendant's motion and over the objection of the State, the trial court gave the jury instructions on the lesser-included offense of vehicular hijacking (720 ILCS 5/18-3(a)(West 2002)).Additionally, on the State's motion and over defendant's objection, the trial court gave the jury instructions on the lesser-included offense of aggravated vehicular hijacking with a dangerous weapon (720 ILCS 5/18-4(a)(3)(West 2002)).

The jury began deliberating at 10 a.m.After an undetermined period of time, the jury posed two questions, and the following exchange between the trial court and the attorneys ensued:

"THE COURT: Well, counselwe have some questions.

QuestionNo. 1, what is the testimony or was there any testimony on where the pickup was found?

Second question, can we see the transcript?

I think—personally I think the answer to the first question is clear, that we can't answer it.

The second part, can we see the transcript, I believe is discretionary with the Court.There is something in the record.Although, I don't recall anything in the record on where the pickup was found.

[Assistant State's Attorney]: Correct.There would be no transcript that would be helpful.

THE COURT: So, do you wish for the Court to answer the question that way?There is no transcript that would be helpful to answer these questions?

[Defense counsel]: May I have a moment, Your Honor?

(Pause.)

[Assistant State's Attorney]: Judge, our suggestion would be a simple answer.You've heard the testimony and the evidence.Please continue to deliberate.

[Defense counsel]: We concur with that.

THE COURT: All right.I will answer it that way.

(Pause.)

THE COURT: I will answer you have heard the testimony of the witnesses and seen the evidence.Please continue to deliberate to your verdict.

Stay close, folks."

After the jurors deliberated further, they sent a message to the trial court at approximately 2 p.m.The following discussion ensued:

"THE COURT: We have a message from the jury.The message reads: We are deadlocked at seven/five.We all believe that the likelihood of reaching a unanimous verdict is slim.

Do you want to give them the Prim instruction?

[Assistant State's Attorney]: No.

THE COURT: Do you want me to declare a mistrial?

[Assistant State's Attorney]: Yes.

THE COURT: Okay.

[Defense counsel]: Judge, they've only been out for less than four...