People v. Horton

• Decision Date: 30 January 1990
• Docket Number: No. 2-88-0672,2-88-0672
• Citation: 140 Ill.Dec. 498,193 Ill.App.3d 695,549 N.E.2d 1370
• Parties: , 140 Ill.Dec. 498 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William HORTON, a/k/a Melvin L. Horton, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1370

549 N.E.2d 1370

193 Ill.App.3d 695, 140 Ill.Dec. 498

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William HORTON, a/k/a Melvin L. Horton, Defendant-Appellant.

No. 2-88-0672.

Appellate Court of Illinois Second District.

Jan. 30, 1990.

G. Joseph Weller, Deputy Defender, Thomas A. Lilien (argued), Asst. Deputy Defender, Office of the State Appellate Defender, Elgin, for Melvin L. Horton.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, Cynthia N. Schneider (argued), State's Attys. Appellate Prosecutor, Elgin, for People.

Justice DUNN delivered the opinion of the court:

Defendant, Melvin Horton, was charged in a 10-count indictment with (1) armed robbery, armed violence and aggravated battery for taking property from John Marzolo and striking Marzolo on July 16, 1987, (2) two counts of armed robbery and armed violence and one count of aggravated battery for taking property from Ted Selnes and Gerald Konopka and striking Selnes on July 19, 1987, and (3) armed robbery and armed violence for taking property from Robert Hanrahan on July 10, 1987. He was convicted in two separate stipulated bench trials of three counts of armed robbery and two counts of aggravated battery for offenses against Marzolo and Selnes and Konopka. The armed violence counts were merged with the armed robbery counts. He was acquitted of offenses against Hanrahan in a third bench trial in which the evidence was not stipulated. Defendant was sentenced to concurrent terms of 15 years' imprisonment for the armed robbery convictions and three years' imprisonment for the aggravated battery convictions.

On appeal, defendant raises the following issues: (1) whether his stipulated bench trials were tantamount to guilty pleas requiring Supreme Court Rule 402 admonishments and whether defense counsel gave ineffective assistance by conceding the sufficiency of the evidence; (2) whether the cause should be remanded for a new post-trial hearing on defendant's pro se challenge to his attorney's performance; (3) whether defendant's challenge to the constitutionality of his arrest, which was raised in a separate appeal, has been resolved in his favor, thus requiring the same resolution in this case. We affirm.

Defendant was represented throughout the proceedings by an assistant public defender who also represented codefendant, Charles Nunnery, who was charged with the same five counts as defendant for the acts of July 19, 1987. Counsel filed a joint pretrial motion to suppress identification evidence on behalf of defendants. In the motion, defendants sought to quash their arrests and suppress the fruits of the arrest, which included defendants' presence at lineups and sets of fingerprints used for comparison purposes. The motion was denied.

Counsel also moved to sever the multiple counts into three groups and to sever on Nunnery's behalf, seeking a separate trial from Horton because evidence of the other counts could be presented against Horton to Nunnery's prejudice. The court granted the motion to sever the multiple counts but denied the motion on Nunnery's behalf to be severed from defendant.

Defendant moved pro se for appointment of private counsel, alleging the assistant public defender had a conflict of interest because Nunnery was not going to fight the case (counsel had earlier stated that Nunnery agreed to proceed by stipulated bench trial) and might be a witness against defendant. Defendant also alleged counsel could not devote enough time to the case. The assistant public defender stated that the defendants had a personality conflict that could cause problems at a joint trial, but they did not have antagonistic or conflicting defenses. The trial judge denied the motion but stated he would reconsider it if a problem developed.

At the next appearance, defense counsel stated defendant waived his right to a jury trial and would proceed under a stipulated bench trial, not contesting the sufficiency of the evidence, but preserving the suppression issues. The trial court admonished defendant of his right to a jury trial and accepted defendant's waiver.

At the first bench trial, defendant and Nunnery were tried together for the incident of July 19, 1987. All the evidence except testimony from complainant Ted Selnes was accepted by stipulation. Selnes testified that when he entered a gas station to pay the attendant, he offered the money to a tall black man who asked him if that was all he had and then displayed a revolver. Selnes attempted to leave when the man struck him on the head with the gun, pushed him to the back of the room, and made him get on the floor. A second, shorter black man went through Selnes' pockets and took his wallet. Selnes could not identify either assailant at a lineup. Defense counsel briefly cross-examined defendant after this testimony.

It was stipulated that if Gerald Konopka were called to testify, he would state he was the gas station attendant on July 19, 1987, when two black men, one a short male wearing glasses and the other a tall thin man not wearing glasses, walked into the station. The taller man revealed a revolver and pointed it at Konopka, demanding money. When Konopka opened the cash register, the taller man grabbed him and shoved him in the back room. Approximately $106, a gold chain, a gold watch, and a ring were taken from Konopka. Konopka identified defendant in a lineup as the taller assailant and Nunnery as the shorter one. When the trial judge inquired whether that was the extent of the stipulation, the prosecutor added that if called to testify, Konopka would identify defendant as the taller individual whom he earlier identified as the assailant.

Another stipulation covering fingerprint evidence stated that an expert determined that two prints on the gas station counter and one on the phone matched Nunnery's prints, and three latent prints on the gas can recovered at the scene matched defendant's prints.

At the conclusion of the stipulations, the court asked defendants if they had any evidence. The assistant defender stated he had consulted with his clients, and they did not wish to testify or present any evidence. The trial court told defendants they had a right to testify as well as a right to be silent. When asked if it was his decision not to testify, defendant responded affirmatively. At this point, the prosecutor made a brief closing argument. Defense counsel replied that defendants were not contesting the sufficiency of the evidence to convict. The purpose of the stipulated trial procedure was to preserve previously denied motions to quash arrest and suppress the lineup. The court found both defendants guilty of two counts of armed robbery and one count of aggravated battery.

Defendant was then tried by stipulated bench trial for the offenses of July 16, 1987. The stipulation stated that John Marzolo would have testified that he was driving a cab in Elmhurst at 1:45 a.m. on July 16, 1987, when two black men approached the cab as it was stopped. The taller man produced a gun. He pointed it at Marzolo and opened the driver's door. The shorter man entered through the passenger door and went through Marzolo's property. Marzolo's wallet was taken. The taller man hit Marzolo in the head several times. Marzolo identified defendant in a lineup as the taller assailant, and he would make the same identification if called to trial. There was also a stipulation that a latent fingerprint taken from the cab window matched defendant's left middle finger.

Defense counsel informed the court that he had discussed the accountability rule with defendant, and defendant acknowledged there was sufficient evidence to convict, but for purposes of later argument at sentencing, defendant did not accept the stipulation that he hit Marzolo. The State would have to prove this fact if it wanted to argue it at sentencing. The trial court again advised defendant of his right to testify and his right to remain silent, and defendant responded that he did not wish to testify. After brief argument by the State, the court found defendant guilty of armed robbery and aggravated battery. Defense counsel filed a motion for a new trial, preserving the suppression issues. Defendant also filed, pro se, a motion for a new trial, alleging, among other things, ineffective assistance of counsel.

Defendant first argues that his stipulated bench trial was tantamount to a guilty plea where his trial counsel conceded the sufficiency of the evidence, and, therefore, the trial court erred in failing to admonish him pursuant to Supreme Court Rule 402 (107 Ill.2d R. 402).

For this proposition defendant relies primarily on People v. Smith (1974), 59 Ill.2d 236, 319 N.E.2d 760. In Smith, the supreme court ruled that defendant's stipulated bench trial was tantamount to a guilty plea because it "was designed to establish guilt beyond a reasonable doubt." (Smith, 59 Ill.2d at 242, 319 N.E.2d 760.) The stipulation stated that the facts presented (also by stipulation) were sufficient under the law to find the defendant guilty of the crime charged beyond a reasonable doubt. (Smith, 59 Ill.2d at 239, 319 N.E.2d 760.) The court found there was no indication defendant was made aware of the stipulation's effect and ruled that where the circumstances indicate that calculated efforts have been made which amount to the entry of a guilty plea, defendant must be afforded the protections under Supreme Court Rule 402. Smith, 59 Ill.2d at 242-43, 319 N.E.2d 760.

The State counters that the proceedings were not tantamount to a guilty plea because defendant preserved his objection to admission of certain evidence. Appellate courts since Smith have held that a stipulated bench trial is not tantamount to a guilty plea where a factual or legal defense has been presented. (People v. Russ (1975), 31 Ill.App.3d 385, 334 N.E.2d 108; People v. Sampson (1985), 130 Ill.App.3d 438, 442, 85...