People v. Fleming

• Decision Date: 25 June 2014
• Docket Number: No. 1–11–3004.,1–11–3004.
• Citation: 14 N.E.3d 509
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Riley FLEMING, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

14 N.E.3d 509

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Riley FLEMING, Defendant–Appellant.

No. 1–11–3004.

Appellate Court of Illinois, First District, Third Division.

June 25, 2014.

Michael J. Pelletier and Brett C. Zeeb, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and

Matthew Connors, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice HYMAN delivered the judgment of the court, with opinion.

¶ 1 This is an apparent case of first impression involving joinder of codefendants and offenses before a single jury. Defendant, Riley Fleming, claims he was denied a fair trial when the same jury decided both the charges against him and the charges brought solely against his codefendant for an arguably subsequent and distinct offense. Fleming also contests the sufficiency of the evidence to convict him of aggravated discharge of a firearm and attempted armed robbery on accountability on the basis that the State failed to offer any evidence supporting its theory other than his mere presence at the scene. Lastly, Fleming contends the trial court should have imposed a two-year term of mandatory supervised release (MSR) because he was found guilty of a Class 1 offenses instead of the three-year term which attaches to Class X felonies.

¶ 2 We find the trial court properly exercised its discretion in granting the State's motion for joinder. We further find the evidence was sufficient to support Fleming's convictions and he was properly subjected to a Class X MSR term of three years. We affirm his convictions and sentence.

¶ 3 BACKGROUND

¶ 4 The State charged Fleming, and codefendant, Brandon Myers, with the armed robbery of Eric Thomas, aggravated discharge of a firearm in the direction of Damarial Pendleton, and the attempted armed robbery of Pendleton. The State theorized that Fleming and Meyers robbed Thomas and attempted to rob Pendleton before fleeing together. The incident occurred on July 1, 2009, around 11:30 p.m. near the 3300 block of Maypole Avenue, Chicago (case 1). The State argued that Fleming robbed Thomas and was accountable for Myers's shooting at and unsuccessful robbery of Pendleton.

¶ 5 In a separate case (case 2), the State charged Myers with two counts of attempted first-degree murder of a police officer and two counts of aggravated discharge of a firearm. These charges stemmed from a shooting involving Myers and two Chicago police officers about five blocks away from the scene of the robbery and five minutes after Myers and Fleming fled together. Fleming was not charged with the offenses in case 2.

¶ 6 A little over a year after the State brought the charges against Myers in case 2, the State moved to join the two cases, arguing the offenses involved multiple acts that were part of the same comprehensive transaction. In response, Fleming's counsel argued, “[t]hese are totally different crimes. Just prior to the second offense allegedly being committed, as [the State] indicated, my client actually exited himself from the scene. He was not part of it at all.” Fleming's counsel also argued that Myers's additional charge, “is a very serious offense and to bring [Fleming] into it is highly prejudicial. Close in time I acknowledge, your Honor. Different police officers involved. Different personnel involved. It would be highly prejudicial.” The matter was continued.

¶ 7 On the next court date, Fleming's counsel reiterated the arguments against joinder, specifically highlighting that “when this second incident began to emerge, [Fleming] had actually exited himself from that environment, it is not even suggested that he in any way was a participant.” In response to the court's question as to how Fleming would be prejudiced by the joinder, Fleming's counsel cited the serious nature of the attempted murder charge. The trial court granted the State's motion under section 114–7 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114–7 (West 2008) ), finding the State could have charged Fleming and Myers together for the attempted murder and aggravated discharge of a firearm counts because “the shooting is during the course of the attempted escape from the armed robbery where both men are charged with together. * * * It's one comprehensive transaction, an armed robbery, leaving the scene of an armed robbery, the car stops, guys get out, shooting by one person allegedly at the police, shooting back by the police at the one person.”

¶ 8 Single Jury Trial

¶ 9 The trial court introduced Fleming and Myers to the jury and instructed the jury regarding the charges. The court informed the jury that “both men are charged with the offenses” and then listed the offenses in both case 1 and case 2 without differentiating between the codefendants.

¶ 10 Both victims testified. Pendleton testified he was outside around 11:30 p.m. on July 1, 2009, with Thomas and another person when a gray Ford stopped suddenly in front of them. Two men exited. The front passenger wore a mask, blocking the lower part of his face, and a white shirt. The rear passenger wore a red shirt.

¶ 11 Pendleton took off running and the masked man chased him. Pendleton tripped and fell. The masked man pointed a gun down at him from 15 feet away and said “break yourself” twice, which Pendleton understood to mean “it was a robbery.” Pendleton started running again toward the street. The masked man fired, pursued Pendleton across the street, and then fired a second shot. When he looked back after a few feet, Pendleton was no longer being chased and the gray Ford was driving away.

¶ 12 Pendleton then saw his friend Antonio's van coming down the block. He got in and told Antonio what happened. Antonio pursued the Ford. At Washington Street, the Ford ran a red light, and then a police car made a U-turn to pursue it. Pendleton saw the police curb the Ford a few blocks away. When Pendleton and Antonio got out of the van, the officers directed them to the ground.

¶ 13 Thomas testified that on the night of the incident, he was with Pendleton across the street from an apartment building on Maypole waiting for a friend to come down and drive them home. When the gray car pulled up, Thomas saw a masked person in the passenger seat. Before anyone got out of the car, Thomas ran and did not look behind him. He heard a gunshot, followed by two more. After running about 20 feet, Thomas realized no one was following him.

¶ 14 Thomas crossed the street to the apartment building. At the door, someone came up behind him and told him it was a robbery. The person took his wallet, which contained a few hundred dollars, his keys, and his cellular telephone. Thomas acknowledged he never looked back at the person or saw a gun, but believed the individual had a gun because he felt a “kind of hard” object at his back. When Thomas eventually looked behind, he saw a person with a red shirt get into the backseat of the gray car.

¶ 15 While Thomas tried to enter the apartment building, a friend, Johnny Dye, came down looking for Pendleton. Thomas and Dye drove around the block a few times but did not find Pendleton. When they arrived in the area of Madison and Whipple, they saw the police with Pendleton.

Thomas thought Pendleton had been shot, so he went over to him. The police drew their weapons and asked Thomas what he was doing. Thomas told the police he was checking on his friend because they had just been robbed. Thomas informed the police the man who robbed them was wearing a red shirt. The police brought over Fleming, who was wearing a red shirt, for Thomas to identify. Thomas indicated he could identify the red shirt but did not get a good look at the individual who robbed him.

¶ 16 Later that morning, Thomas viewed a physical lineup at the police station but was unable to identify the offender. Pendleton also viewed a lineup and identified Myers as the person who shot him. In court, Pendleton identified Myers as the person wearing the mask who shot at him and Fleming as the person wearing the red shirt.

¶ 17 During cross-examination, Pendleton testified for the first time that the person in the red shirt ran after Thomas.

¶ 18 Chicago police officers Jason Bala, Francisco Iza and Marc Debose, patrolling in an unmarked squad car on July 1, 2009, saw a gray Ford run a red light at Washington and Kedzie around 11:30 p.m. The officers followed the car because of the traffic infraction; they did not know about the robbery. The Ford stopped at 3018 West Madison and, according to Bala's testimony, two African American males exited. The male in the front passenger seat wore a black shirt; the male in the rear passenger seat wore a red shirt. Officer Bala saw the man in the black shirt put a gun in his waistband, so he yelled to Iza and Debose to warn them. Bala identified Myers in court as the person in the black shirt with the gun and Fleming as the individual in the red shirt. Bala testified that Fleming and Myers ran southbound through a vacant lot after getting out of the car.

¶ 19 Officer Iza testified that he heard Bala yell that the man in the black shirt was armed. Iza took out his gun and chased Myers, while Officer Debose pursued Fleming, who was running just west of Myers. Iza saw Myers holding his side. Iza yelled, “stop, Chicago police” three times, but Myers kept running. On the corner of Madison and Whipple, Myers fell. When he got up, he ran southbound across Madison to an empty, grassy lot. About halfway through the lot, Myers turned toward Officers Iza and Debose, looked in their direction, and “with his left hand he took one shot towards us.” Iza testified he feared for his and Debose's safety, so he fired three to four shots at Myers. One of the shots hit Myers in the leg; he fell to the ground.

¶ 20 Officer Bala testified he heard four gunshots while he was following the Ford, so he turned westbound on Madison, where he saw Officer Iza standing...