People v. Collins

• Decision Date: 05 July 2006
• Docket Number: No. 1-03-3456.,1-03-3456.
• Citation: 853 N.E.2d 10
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnest COLLINS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

853 N.E.2d 10

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Earnest COLLINS, Defendant-Appellant.

No. 1-03-3456.

Appellate Court of Illinois, First District, Third Division.

July 5, 2006.

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Office of the State Appellate Defender, Chicago (Michael Pelletier, Deputy Defender, and Rebecca L. Myhr, Assistant Appellate Defender, of counsel), for Appellant.

Richard A. Devine, State's Attorney, Chicago (James Fitzgerald, Samuel Shim and Nicole M. Torrado, of counsel), for Appellee.

Justice ERICKSON delivered the opinion of the court:

Defendant Earnest Collins was convicted following a bench trial of one count of attempted robbery and one count of possession of a stolen motor vehicle and was sentenced to a prison term of nine years. Defendant contends on appeal that: (1) the trial court violated his sixth amendment right to confront witnesses by (a) allowing the State to invoke the fifth amendment rights of the victim, Emmett Harrington, and (b) restricting defense counsel's cross-examination of Harrington about his prior convictions; (2) the State failed to prove he committed attempted robbery beyond a reasonable doubt; (3) his trial counsel was ineffective for failing to make a sufficient closing argument; and (4) the extended-term sentence imposed on his attempted robbery conviction is void.

BACKGROUND

The State's theory of the case was that on February 19, 2003, defendant drove off in a van in Harrington's possession after Harrington momentarily stepped away from it while the engine was running. When Harrington caught up with and entered the van approximately two blocks later while it was stuck in traffic, defendant demanded money from Harrington and struck him on his neck.

Defendant's theory of the case was that Harrington agreed to purchase from him a handheld color television set and told defendant to wait for him in his van. When both men were in the van, defendant asked Harrington to pay. Harrington refused and attacked defendant.

To support the theory that Harrington was the aggressor, defense counsel filed a pretrial motion seeking to admit evidence that on February 22, 2003, Harrington was arrested for battery. Counsel argued that such evidence was admissible as other crimes evidence and under the supreme court's decision in People v. Lynch, 104 Ill.2d 194, 200, 83 Ill.Dec. 598, 470 N.E.2d 1018 (1984) (Lynch), which holds that when the theory of self-defense is raised, the victim's aggressive and violent character is relevant to show the victim's violent nature or to support the defendant's version of the facts. Defense counsel acknowledged that this case did not involve self-defense. The State argued the evidence was not admissible under Lynch, but conceded it was relevant to show Harrington's biases, interests, or motives for testifying. The following also transpired:

"THE COURT: Well, how do you expect to prove this up, this evidence?

MR. STAHL [defense counsel]: Judge, I would need to either call the victim in that case or one of the police officers who personally witnessed the battery happening. * * * I will be able to get a witness to the battery in the court."

The trial court allowed the motion, and defendant's trial began.

Harrington testified that on February 19, 2003, he was employed by Advanced Presort Services (APS) and was driving a 1997 Chevrolet van owned by APS collecting mail from various companies. At approximately 5:45 p.m., he was parked in an alley near 435 North LaSalle Street in Chicago. He momentarily departed from his van while the engine was running. He then noticed an individual, whom he identified as defendant, enter the van through the driver's side and drive away.

Harrington pursued the van on foot and caught up with it in approximately two blocks where it was stuck in traffic. Harrington entered the van and told defendant the van belonged to him and to pull over. Defendant said to Harrington "You got some money? Give me some money." Harrington then reached across defendant to grab the keys from the ignition. As he did so, defendant grabbed his wrist and a struggle ensued. Defendant swung at Harrington several times and hit him once on the left side of his neck. Harrington was able to get the keys from the ignition. The men continued to struggle, and eventually Harrington was able to open the driver's side door, causing both men to fall into the street. Harrington subdued defendant until police arrived. According to Harrington, neither he nor anyone else at APS gave defendant permission to enter the van.

Harrington admitted on direct examination that he previously had been convicted of two charges of possession of a controlled substance and had been sentenced to probation. He was again convicted of possession of a controlled substance and was sentenced to three years' imprisonment and received boot camp for violating his probation. Harrington admitted he was arrested for battery on February 22, 2003, but that that charge had been stricken with leave to reinstate prior to defendant's trial. No promises were made by either the office of the State's Attorney or the police regarding that case.

On cross-examination, defense counsel asked Harrington if the drugs he was convicted of possessing were for his own use or for sale. Harrington responded that they had been for sale. When counsel asked what kind of drugs they were, the trial court sustained the State's objection. Defense counsel asked Harrington if he received probation. Harrington replied that he did. When counsel asked "when you were put on probation you agreed that you were not going to violate the law again?" the court sustained the State's objection. When counsel asked Harrington if after being placed on probation, he committed another offense, the court again sustained the State's objection.

Defense counsel also asked Harrington about his battery arrest. The following transpired:

"Q. Three days after this offense happened, you committed a battery?

A. Yes, sir. It was a heads up fight.

* * *

Q. What do you mean when you say it's a head [sic] up fight?

MR. DRISCOLL [Assistant State's Attorney]: Judge, I am going to object to the witness getting into the facts of that case. I believe he has a Fifth Amendment, right. The case was SOLd back in April of 2003. We've already fronted the fact he was arrested for a battery. The disposition of that case — For him now to have to testify as to actual facts involved inside that battery, I think he —.

THE COURT: Sustained.

MR. STAHL: Judge, I think I thought that you had ruled in favor of my motion.

THE COURT: I did. I did. You indicated that you were going to bring it in through either the victim in that case or the police officer.

MR. STAHL: I also said I was going to cross examine the complainant.

THE COURT: Not as to the facts of the case, no.

MR. STAHL: Can I have the basis for why I am not allowed ask [sic] him those questions?

THE COURT: I think Mr. Driscoll he just articulated that.

MR. STAHL: Then I would ask that all his testimony be stricken.

* * *

THE COURT: He has a privilege on that particular case. That case has nothing to do with this case other than it's proof of other crimes you indicated. And I told you that you could bring in that evidence not through him."

Defense counsel then ended his cross-examination of Harrington.

Officer Liarakos testified on direct examination that he responded to a call of a battery in progress and saw defendant and Harrington struggling on the ground near a van. When he got closer, he noticed that Harrington was holding defendant's wrists behind his back. Liarakos looked into the van and saw large bags of mail, envelopes, and packages. After speaking to Harrington, Liarakos arrested defendant and contacted detectives.

Detective Bradley testified that he spoke to defendant on February 20, 2003, at Northwestern Hospital, where he observed defendant had a swollen and bruised eye and nose. After first denying any involvement in the crime, defendant eventually told Bradley "that he observed the van parked at the curb with the engine running and that he needed a ride home up on North Sheridan Road and he took control of the vehicle." Defendant acknowledged he did not have permission to take the van.

After the State rested, and his motion for a directed finding was denied, defendant called Chicago Police Officer Theodorides to testify. Theodorides testified that at 2:15 a.m. on February 22, 2003, he arrested Harrington after he saw him on North Avenue "beating and stomping" on the face and body of an individual. Theodorides acknowledged that he did not know what the fight had been about.

Defendant testified that he approached Harrington on North LaSalle Street and offered to sell him a handheld color television set for $80. Defendant gave Harrington the set after Harrington agreed to buy it, and Harrington told defendant to wait in his van. Defendant waited in the passenger side, and eventually Harrington entered the van and drove away. When they stopped at a light, defendant inquired if Harrington was going to buy the set. Harrington said "I'm not giving you shit. Get the fuck out of this van." After defendant told Harrington to give the set back, Harrington hit him in his right eye. Defendant tried to exit the van from the passenger's side, but was unable to because Harrington pulled him back into the van and began running his hands through defendant's pockets. The men wrestled and eventually fell out of the van. Shortly thereafter the police arrived. Defendant denied telling Detective Bradley that he took the van. Defendant also stated he had in his possession 18 Chicago Transit Authority (CTA) passes that his wife had given him that day.

On cross-examination, defendant stated that he told Officer Liarakos and Detective Bradley about the television set and that Harrington attacked him. In response to questioning from the court, defendant responded that he did...