People v. Jocko

• Decision Date: 30 March 2009
• Docket Number: No. 1-07-0870.,1-07-0870.
• Citation: 906 N.E.2d 38
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert JOCKO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

906 N.E.2d 38

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert JOCKO, Defendant-Appellant.

No. 1-07-0870.

Appellate Court of Illinois, First District, First Division.

March 30, 2009.

Office of the State Appellate Defender, Patricia Unsinn-Deputy Defender, Katherine M. Donahoe-Assistant Appellate Defender, Chicago, IL, for Appellant.

Anita Alvarez-State's Attorney of Cook County, Attn: James E. Fitzgerald, Michele Grimaldi Stein and Karisa F. Flores of Counsel, Chicago, IL, for Appellee.

Presiding Justice ROBERT E. GORDONdelivered the opinion of the court:

Defendant Robert Jocko was charged with burglary. Specifically, he was accused of removing power tools, worth approximately $300, from a detached, residential garage in Berwyn, Illinois, on July 6, 2005. A neighbor and eyewitness to the burglary failed to identify defendant at trial, although he had previously identified defendant at a showup. The getaway van was registered not to defendant, but to someone else who happened to live in defendant's apartment building. The driver of the van was apprehended close to the scene, but the passenger escaped. Approximately an hour after the burglary, a plainclothes detective went to the address in Cicero, Illinois, where the van was registered, and approached defendant when defendant happened to emerge from an apartment in the same building. Defendant was startled and fled; and the detective used a nearby broomstick to subdue him. Immediately after defendant had been subdued with a broomstick and handcuffed, the showup identifications occurred. An officer who had witnessed part of the burglary and an officer who had witnessed the flight immediately after the burglary gave conflicting, initial descriptions of the passenger in the getaway van; but both officers identified defendant as the passenger at the showup. The State introduced no fingerprint evidence from the burglarized garage, from the getaway van or from the tools carried by the burglars from the garage and later recovered by the police from the van. A co-owner of the garage testified that she may have left the garage door open.

After a jury trial in March 2007, defendant Robert Jocko was convicted of burglary. On April 6, 2007, the circuit court of Cook County sentenced him to 12 years in prison. The co-offender, Joseph Ball, had been sentenced by the same trial judge to four years in prison. On appeal, defendant claims: (1) that the trial court erred by failing to ask potential jurors whether they understood and accepted the principle that the defendant's failure to testify cannot be held against him; (2) that the trial court refused to rule on defendant's motion in limine concerning the admissibility of his prior convictions for impeachment purposes and thereby prevented defendant from making an informed decision about whether to testify; and (3) that the trial court failed to address defendant's pro se allegations that he was deprived of effective assistance of counsel. For the following reasons, we remand to permit the trial court to inquire into defendants' claims of ineffective assistance of counsel.

BACKGROUND

1. Pretrial Motions and Documents

Prior to trial, motions were filed both by defense counsel and by defendant acting pro se. On November 17, 2005, an assistant public defender filed a motion to quash defendant's arrest and suppress evidence. After a hearing on February 16, 2006 at which three police officers testified, the trial court denied the motion to quash. Defendant's pro se pretrial motion was filed April 25, 2006, and was entitled "motion to dismiss for violation of due process." The motion made a number of allegations. The allegations relating to counsel are quoted below:

"2. Actual and substantial prejudice to the defendant has results from (Counsel was not present during ARRAIGNMENT or BAIL HEARING * * *.

* * *

6. That when Cook County Sheriff brought me from one lock up area to other.

7. That I asked Sheriff acouple [sic] of times to talk to a Public Defender while in the second lockup area * * *.

8. That while waiting to see Judge for ARRAIGNMENT & BAIL for 15 to 20 min. in lock up area 2, asked to talk to the Public DEFENDER and was told `YES' wait * * *

9. That as I was brought ### out of lock up area to hall way door to court room for awhile, STILL TALK TO NO COUNSEL.

10. That we went in front of Judge for ARRAIGNMENT & BAIL HEARING * * *.

11. That Judge did not ask where my counsel was then asked what charges are. Denial of assistance of counsel altogether, either actually or constrictly [sic] is presumable [sic] prejudicial.

* * *

12. That the State Attorney read charges of Burglary and resisting errest, [sic] Denial of Assistance of Counsel altogether, either actually or ###### constrictly, is presumable prejudicial. * * *

13. That the Bail was set at 100,000."

There is no dispute that the trial judge knew of defendant's motion. The half-sheet contains an entry for April 25, 2006, that states: "Jail Mail Request For Motion To Dismiss For Violation of Due Process." In addition, at a proceeding on May 2, 2006, the trial court observed that the defendant's pro se motion was "recorded, and it was put on the call for today's date."

However, on May 2, 2006, defendant was not present; and the matter was rescheduled for May 25, 2006. On May 25, 2006, there was no discussion of defendant's motion. The May 25 transcript indicates that the case was called; that Assistant Public Defender James J. Mularski announced that he was appearing on behalf of the defendant; that the trial court asked "[w]hat date do you want?"; that the assistant defender replied "6-27 by agreement, please"; that the court agreed; and that was all that transpired on May 25. Defendant claims on appeal that his motion was not discussed on any subsequent day; and the State does not dispute this fact.

On September 6, 2006, Assistant Public Defender Rick Fadell took over as defendant's counsel. On that date, Mr. Fadell indicated to the trial court that his client had provided "some information on potential witnesses."

After Assistant Public Defender Fadell's appointment, defendant sent an undated letter to the clerk's office. The envelope, which is also part of the appellate record, was postmarked "Chicago IL 606, 13 DEC 2006 PM 8 T" and is stamped "FILED 2006 DEC 14 AM 11:13" by the clerk of the circuit court of the Fourth District. In pen on the back of the letter, someone wrote "12-20-06 opened."

While the half-sheet contained an entry for defendant's "Jail Mail" motion filed on April 25, it does not contain an entry for this letter. In its appellate brief, the State admits that "[t]here is no indication in the record that the complaints raised in defendant's letter were addressed by the court."

The letter claimed that defendant's new public defender, Rick Fadell, had failed to enter into evidence "certain affidavits and subpoenas" and a 911 conversation. The letter stated in full:

"Dear circuit Clerk,

I am writing in regards of my lawyer not raissing [sic] certen [sic] issues in my case that is material and relevant evidence that pertain to my case.

I would like for this letter to be placed in my master filed as a legal document in case I have to argue on an appeal, can you please stamp this with a legal notification. I would like a copy of this legal document sent to me as soon as possible [,] thank you!

I have requested certain affidavits and subpoenas to be entered and my lawyer has advised me that it would notbe [sic] to my best interests, and I have also requested for the 911 Motor Rola converstion [sic] to be entered as evidence in my behalve [sic] and his statement responce [sic] was that they do not hold them after thirty days.

My lawyers [sic] name was Tim Muarlarski for several months, then he with-drew [sic] from my case [.] now I have Rick Fiedell [who] has not been fighting my case to the best of interest.

                     Sincerely
                     Mr. Robert Jocko"
                

There is a third pretrial document in the appellate record, in which defendant alleges lack of assistance of counsel. However, on appeal, defendant does not argue that this document is part of the basis of his claim that the trial court failed to inquire. The appellate record contains a typed document entitled "Affidavit" that is dated "9-6-06" in pen and signed by defendant. In the affidavit, defendant stated that he submitted it in support of a motion to suppress; and he made several allegations about the circumstances surrounding his arrest. The only allegation concerning legal representation was that: "[p]olice held me in custody and brought me before an alleged victim with out [sic] affording me the right to have a lawyer present and depriving me of other legal rights." Assistant Public Defender Mularski had filed a motion to quash arrest and suppress evidence that was denied after a hearing on February 16, 2006. This affidavit is dated several months after the motion had already been heard and denied.

2. Voir Dire

Jury selection for defendant's trial began on March 6, 2007. During voir dire, the trial court asked certain questions of prospective jurors as a group, and then posed certain questions individually to prospective jurors. The group questions included questions about whether they understood and accepted: (1) that a defendant is presumed innocent; (2) that he is not required to offer any evidence in his own behalf; and (3) that he must be proved guilty beyond a reasonable doubt. However, neither the group nor individual questions asked whether the prospective jurors understood and accepted that a defendant's failure to testify in his own behalf cannot be held against him.

Concerning the presumption of innocence, the trial court asked:

"THE COURT: Now I'm going to ask certain questions to you as a group. Do you all accept that is [a] person accused of a crime is presumed to be innocent of the charges against them? Do you all accept that...