People v. Flores
| Citation | 613 N.E.2d 1372,245 Ill.App.3d 149,184 Ill.Dec. 780 |
| Decision Date | 20 May 1993 |
| Docket Number | No. 2-91-0432,2-91-0432 |
| Parties | , 184 Ill.Dec. 780 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rickey FLORES, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender, Kathleen J. Hamill, Office of the State Appellate Defender, Elgin, for Rickey Flores.
James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy
Director, Martin P. Moltz, State's Attys. Appellate Prosecutor, Elgin, for the People.
After a bench trial, the trial court found defendant, Rickey Flores, guilty of armed robbery (Ill.Rev.Stat.1991, ch. 38, par. 18-2(a)). The trial court sentenced defendant to six years' imprisonment. Defendant appeals contending: (1) the trial court erred in refusing to allow him to withdraw his waiver of a jury trial on the ground that the waiver was not knowing and intelligent, and (2) his trial counsel was ineffective. We affirm.
The following evidence was presented at defendant's trial. Ariel Sanchez, a minor, testified for the State. Sanchez testified that on August 16, 1989, he, defendant and Minor Velasquez decided to rob the Delta Sonic Car Wash (Delta Sonic) in Elmhurst, Illinois. According to Sanchez, defendant suggested they rob the Delta Sonic because he had previously done work on the roof of that establishment. The three individuals gathered supplies, including nylon stockings to use as masks, extra sets of clothing, a bag, rope, and a baseball bat. They then discussed what each person's job would be in the robbery. Sanchez was to hold the bag and carry the money. Velasquez was to be the lookout. Defendant was to do the talking and carry the bat.
Sanchez, Velasquez, and defendant drove to the Delta Sonic and parked in the adjacent Burger King parking lot. They put the stocking masks over their heads and walked the short distance to the Delta Sonic. Defendant was carrying the bat. They arrived at the Delta Sonic as it was closing. They noticed a man in the parking lot. Sanchez later learned that this man was Robert Maggi. The three individuals approached Maggi. Defendant was holding the bat with his fists together as if he were about to hit a ball. Defendant instructed Maggi to return to the building and turn off the alarm. Maggi complied. All four individuals entered the building.
There were two safes in the car wash. One safe was in the office and one was outside the office. Defendant instructed Maggi to open the safe outside the office. Maggi complied and Sanchez took the money and threw it into the bag. Defendant then instructed Maggi to open the safe inside the office. Sanchez took the money from that safe and put it into the bag. Velasquez took Maggi's wallet and he also took two cartons of cigarettes from the car wash's convenience store.
Sanchez claimed defendant then told Maggi to lie on the floor and count to 100. Defendant also told Maggi there was someone outside the store with a shotgun. The three left the Delta Sonic and ran to the car. On their way back to the car, they dropped some of the money, the cigarettes, the bat, and two of the masks. They did not bother to pick up these items. They returned to Velasquez' house and split up the money. Each person received $1,500.
On cross-examination, defendant's attorney elicited testimony from Sanchez that it was Sanchez who recruited Velasquez, but that Sanchez told Velasquez defendant had planned the robbery. Defendant's counsel also elicited the statement that during the alleged robbery defendant told Maggi, "If you don't move I am going to kick your ass."
Officer Michael Campise of the Elmhurst police department testified for the State. Campise stated that at 10:36 p.m. on August 16, 1989, he made a traffic stop of a car which had no registration tags. According to Campise, Velasquez was the driver of the car and there were two passengers. Campise testified that "the subject sitting * * * at the defense table * * * looks familiar as the subject, possibly sitting in the front passenger side." He also noticed a bat in the backseat of the car. Velasquez explained to Campise that he carried the bat with him for protection. Campise did not further detain the occupants of the car.
Officer Herb Hogberg of the Elmhurst police department also testified for the State. Hogberg was involved with the investigation of the Delta Sonic robbery. Hogberg stated that a carton of cigarettes, nylon stockings, and a baseball bat were recovered from the Delta Sonic. The State attempted to elicit testimony from Hogberg that defendant made incriminating statements to Hogberg. The trial court granted defendant's motion to suppress these statements.
Robert Maggi testified for the State that he was the night manager of the Delta Sonic. He stated that at approximately 10:30 or 11 p.m. on August 16, 1989, he locked up the Delta Sonic and as he was getting into his car he noticed some movements behind the building. As he then got out of his car, three men approached him. Two were carrying baseball bats and all three had stocking masks on their heads. He could not identify the men, but he stated the taller of the men appeared to be the leader. Of the shorter men, one was heavy and the other was thin.
The taller man, who was carrying a bat, told Maggi to return to the building and open it up. Two of the men pushed him toward the building by prodding him with a bat. At their insistence, he disengaged the alarm. He testified that there were two safes in the Delta Sonic. One was in the car wash portion of the establishment and the other was in the convenience store portion. Each safe had a top compartment which contained $150 and a set of keys to the bottom compartment. The bottom compartment of each safe contained the day's receipts. The men ordered Maggi around to the back of the building to the car wash safe. Pursuant to the men's demands, Maggi opened both compartments of the safe, and one of the shorter men took the money. The men then directed Maggi to the convenience store and ordered him to open the safe located there. Maggi stated he had trouble opening the second safe because it was dark inside the store. The short heavy man suggested that they hit Maggi, but the taller man insisted that they give him another chance. Maggi eventually opened the second safe and the men took the money. The short thin man was grabbing items off of the store shelves. According to Maggi, it was also the short thin man who took the money out of the safes.
Maggi was ordered to lie on the floor and count to 100, and was also told that there was another man waiting outside with a shotgun. After the men left, Maggi got up and noticed his wallet and car keys, which he had left by the alarm, had been stolen. He called the police. Maggi stated that during the incident he was threatened with bodily harm five times and prodded in the back with the bat. We turn now to our discussion of the issues raised on appeal.
First, defendant contends the trial court erred in refusing to permit defendant to withdraw the waiver of his right to a jury trial. The record reveals that, prior to trial, defendant's attorney attempted, unsuccessfully, to negotiate a plea agreement with the State whereby defendant would plead guilty to the lesser included offense of robbery.
The record also reveals that, until the date of trial, different prosecuting attorneys represented the State throughout the proceedings in this cause and different judges presided over the proceedings as well. One judge, on June 28, 1990, presided over the hearing on defendant's motion to strike the indictment. Craig Chval represented the State. The same judge continued to preside through the September 27, 1990, hearing, after which he left the trial court. Beginning July 26, 1990, Jill Wilger represented the State. Her representation continued through the January 7, 1991, hearing, although Chval took her place a few times. Another judge began to preside over the proceedings at the October 19, 1990, status hearing and continued to preside through the January 7, 1991, hearing, and, on January 7, 1991, accepted defendant's jury waiver and continued the case for trial. The trial began on February 5, 1991. Because prosecutor Wilger was sick, Jeffrey Kendall and Robert Kleeman represented the State. Judge Mehling presided.
On the day of trial, the judge inquired as to whether the cause was up for a bench trial. Defendant's attorney replied in the affirmative and stated that he was close to reaching a plea agreement with the State. The trial court passed the case so that defendant's attorney could speak with prosecutors Kendall and Kleeman. The parties, however, were unable to reach an agreement.
After a hearing on some preliminary matters, and after the prosecutor again refused to reduce the charge to robbery, defendant's counsel moved to withdraw his jury waiver on the ground that it was based on the assumption that he would reach a plea agreement with the State. Defendant's attorney argued that he had been close to reaching an agreement with Wilger and that it was unfair for the State to substitute Kendall and Kleeman, who refused to agree to the reduced charge. The trial court denied defendant's motion and the parties proceeded to trial on the armed robbery charge.
A defendant's waiver of his right to a trial by jury must be knowing and intelligent. (Ill.Rev.Stat.1991, ch. 38, par. 103-6; People v. St. Pierre (1992), 146 Ill.2d 494, 508, 167 Ill.Dec. 1029, 588 N.E.2d 1159.) Defendant must understand the right he is giving up and the consequences of the waiver. (People v. Catalano (1963), 29 Ill.2d 197, 202, 193 N.E.2d 797; United States v. Rosa (7th Cir.1991), 946 F.2d 505, 507.) Whether to allow a defendant to withdraw a jury waiver that has been knowingly and intelligently made is within the discretion of the...
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