People v. Gilbert

• Decision Date: 18 April 2013
• Docket Number: Docket No. 1–10–3055.
• Citation: 989 N.E.2d 213,2013 IL App (1st) 103055,370 Ill.Dec. 825
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Levi GILBERT, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 103055

989 N.E.2d 213

370 Ill.Dec. 825

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Levi GILBERT, Defendant–Appellant.

Docket No. 1–10–3055.

Appellate Court of Illinois, First District, Second Division.

March 19, 2013.

Rehearing Denied April 18, 2013.

Michael J. Pelletier, Alan D. Goldberg, Jonathan Steffy, and Heidi Linn Lambros, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary Needham, and William L. Toffenetti, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

[370 Ill.Dec. 828]¶ 1 Defendant, Levi Gilbert, appeals his convictions after a jury trial of first degree murder and two counts of armed robbery, and his sentence of 20 years' imprisonment and two concurrent terms of six years' imprisonment. On appeal, Gilbert contends his case must be remanded for a new trial where (1) he was denied his sixth amendment right to counsel because at the time of trial his counsel faced a one-year suspension of his law license and suffered from dementia, and counsel never informed him of these occurrences; and (2) his counsel committed numerous trial errors, rendering his assistance ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gilbert also argues that we must vacate his two convictions for armed robbery because they were the predicate felonies for his felony murder conviction. For the following reasons, we affirm Gilbert's conviction for felony murder and vacate his convictions for armed robbery.

¶ 2 JURISDICTION

¶ 3 The trial court sentenced Gilbert on October 4, 2010. He filed a notice of appeal on October 4, 2010. Accordingly, this court has jurisdiction pursuant to articleVI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

¶ 4 BACKGROUND

¶ 5 Gilbert and codefendant Michael Woods were charged with armed robbery and felony first degree murder for the police shooting of another codefendant, Cleon Jones. Each defendant was tried simultaneously before separate juries. Gilbert was represented by attorney William E. Brooks. At the time of trial, which began on August 6, 2008, and ended on August 11, 2008, Brooks faced a recommendation by the Attorney Registration and Disciplinary Commission (ARDC) hearing board that his license be suspended for one year. The review board affirmed this recommendation on December 12, 2008, and the suspension began on March 16, 2009, when the supreme court finalized the determination. While representing Gilbert, Brooks did not inform him of the ARDC's recommendation.

¶ 6 At trial, Officers Sliva and Ferraro testified as to the events of January 17, 2006. Acting on information they received, the officers conducted surveillance at the Auto Zone store located at Diversey and Central Avenues in Chicago, Illinois. They set up surveillance about 300 yards from the store. Around 10 p.m., they noticed a maroon car pull into the Auto Zone parking lot. Three men exited the car and entered the store. One of the men pulled up the hood of his jacket, and Officer Sliva saw another man, wearing a dust mask, lock the front door from inside the store. The officers believed they were witnessing a robbery and called other units for assistance. As they waited, Officers Sliva and Ferraro positioned themselves behind a parked car about 10 to 15 feet from the front door of the store.

¶ 7 Officers Brosnan and Bone arrived at the scene and positioned themselves behind the maroon car. Other officers took positions at the rear and side of the building. Eventually, the officers in front of the store saw a man wearing a black hoodie jacket with a dust mask over his face walk from behind the counter in the store toward the front door. The man carried keys in his left hand and a handgun in his right hand. He unlocked the door and as he opened it the officers shouted, “Police, drop the gun.” Officers Sliva and Brosnan testified that the man raised his gun and pointed it at Sliva and Ferraro. The officers fired their weapons, 39 rounds in all, within a second or two. The man took a couple of steps back and fell into the store.

¶ 8 When the officers entered the store, they found Cleon Jones on the floor. They recovered a bluesteel revolver about 15 to 20 feet behind Jones. No fingerprints were detected on the weapon. The officers also recovered three white envelopes containing United States currency from Jones. Jones died from a single gunshot wound to his chest.

¶ 9 Adrian Matos, the manager of the Auto Zone, and employees Jonathan Laluz and Oscar Pizano were working on the night of January 17, 2006. Matos and Pizano were in the front of the store when three men entered. Laluz was in back restocking parts. Two of the men wore painters' masks and one had a scarf tied around his face. The man with the scarf had a gun. The men took Matos' and Pizano's wallets, keys and phones, and ordered them to take them to the safe. They went into the office, and when the men ordered Matos to open the safe, he complied. The men then ordered Matos and Pizano to lie down and they tied Matos' and Pizano's hands with spark plug cables. When Laluz walked out from the back of the store, he ran into the man with the scarf, who took Laluz to the office. Laluz was then tied up. Matos, Pizano, and Laluz heard the men banging on the safe and then heard footsteps going to the front door of the store. They heard gunfire, but no one heard police shout, “Police, drop your gun” before the gunfire. Soon thereafter, police arrived and untied them.

¶ 10 Sergeant Lohman answered a call about a robbery in progress at the Auto Zone store just before 10 p.m. on January 17, 2006. He went to the side door of the building where other officers had set up a perimeter in case anyone tried to exit from that door. Sergeant Lohman heard shouts of “Police, put the gun down” in front of the store. The officers then heard gunfire. After the shooting, the side door opened and codefendant Woods was seen holding a canvas bag as he pushed open the door. Gilbert was behind Woods. Woods said, “Oh, shit,” and dropped the bag as he ran back into the store. Police entered the store through the side door and apprehended Woods and Gilbert inside the store.

¶ 11 At the close of the State's case, defense counsel moved for a directed finding arguing that the State failed to prove that any of the three men were armed and that Gilbert was forced to participate. The trial court denied the motion.

¶ 12 Defense counsel called two witnesses, Officers Scott and McNamara. Officer Scott was positioned near the side entrance and did not observe anything before the shooting. He did hear shouts of “Police” just before the shooting. McNamara stood behind a sign about 30 to 40 feet from the officers who were near the front door of the store. He observed someone come out of the front door, but he could not see whether the person had anything in his hands. As the front door opened, people shouted, “Police” and the man raised his right arm toward Officers Sliva and Ferraro. McNamara then heard shots fired.

¶ 13 The jury found defendant guilty of armed robbery and felony murder. Gilbert filed a motion alleging ineffective assistance of counsel at trial and the court gave counsel leave to withdraw. A public defender was appointed to represent Gilbert in posttrial proceedings. Gilbert's new counsel then filed a motion for a new trial, alleging that trial counsel was ineffective for (1) including an alibi defense in his answer to discovery rather than a coercion defense; (2) failing to investigate witness CeCe O'Connor, who would have supported the coercion defense; (3) arguing jury nullification; (4) failing to offer a jury instruction on coercion; and (5) telling Gilbert not to testify at trial. At the hearing, counsel orally amended the motion to include the allegation that counsel was ineffective for failing to inform Gilbert that ARDC disciplinary action was pending against him.

¶ 14 The trial court conducted a Krankel hearing in which trial counsel testified. The trial court noted that an attorney under investigation by the ARDC “may be under some extraordinary pressure and distraction, and that may affect his performance.” It may have explained trial counsel's filing of the alibi defense during pretrial discovery. However, the trial court also noted that counsel's strategy of jury nullification was a reasonable one given the evidence presented. The court concluded “that there were deficiencies in Mr. Gilbert's defense. But I do not believe the deficiencies affected the outcome of a caught inside robbery or armed robbery.” It denied the motion and sentenced Gilbert to 20 years' imprisonment for felony murderand a consecutive 6–year term for each armed robbery conviction, with the 6–year terms to be served concurrently with each other. Gilbert filed this timely appeal.

¶ 15 ANALYSIS

¶ 16 Gilbert first contends that he was denied effective assistance of counsel because his trial attorney faced a one-year suspension of his law license at the time of trial. To prevail on an ineffective assistance of counsel claim, Gilbert must show that (1) his counsel's performance was deficient so as to fall below an objective standard of reasonableness; and (2) the deficient performance prejudiced him so as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052 (1984). To demonstrate sufficient prejudice under the second prong, he must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickl...