People v. Montgomery

• Decision Date: 21 June 2007
• Docket Number: No. 4-05-0151.,4-05-0151.
• Citation: 872 N.E.2d 403,373 Ill. App.3d 1104
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Martel MONTGOMERY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

872 N.E.2d 403

373 Ill. App.3d 1104

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Martel MONTGOMERY, Defendant-Appellant.

No. 4-05-0151.

Appellate Court of Illinois, Fourth District.

June 21, 2007.

Presiding Justice STEIGMANN delivered the opinion of the court:

In September 2004, a jury convicted defendant, Martel Montgomery, of armed robbery (720 ILCS 5/18-2(a) (West 2004)), conspiracy to commit armed robbery (720 ILCS 5/8-2(a) (West 2004)), aggravated discharge of a firearm (720 ILCS 5/24-1.2 (West 2004)), and home invasion (720 ILCS 5/12-11(a)(3) (West 2004)). At defendant's December 2004 sentencing hearing, the trial court determined that defendant's conviction for conspiracy (count II) merged into his conviction for armed robbery (count I) and then sentenced defendant to 21 years in prison for home invasion, 6 years in prison for armed robbery, and 4 years in prison for aggravated discharge of a firearm. The court also found that great bodily harm and severe bodily injury occurred and, accordingly, ordered that (1) defendant's sentences were to be served consecutively and (2) he was required to serve 85% of each sentence.

Defendant appeals, arguing that (1) he was denied his constitutional right to retain counsel of his choice; (2) his trial counsel was ineffective because he failed to inform defendant of the potential punishment for the crimes with which he was charged; (3) the prosecutor's closing argument was improper; (4) the trial court erred by failing to conduct an appropriate examination of his posttrial allegations of ineffective assistance of counsel; (5) the court erred when it determined that defendant's conduct caused great bodily harm and severe bodily injury; and (6) assuming that the truth-in-sentencing statute applies, the court erred when it ordered defendant to serve 85% of all three of his sentences. We disagree with each of defendant's arguments and affirm.

I. BACKGROUND

Because defendant does not challenge the sufficiency of the State's evidence to support his convictions, we will discuss it only to the extent necessary to put his arguments in context.

The evidence at defendant's September 2004 jury trial showed that defendant, Demario Danley, and his brother, Don Danley, agreed to rob Nicholas Griffitts at Griffitts' trailer. Don had previously bought marijuana from Griffitts at the trailer. On March 19, 2004, defendant and the Danley brothers went to Griffitts' trailer, and Griffitts let them in after Don said they were there to buy marijuana. Griffitts' friend, Sam Grant, was also present. Once inside, they discussed a marijuana purchase. During the discussion, Adrian Brown came to the trailer to purchase some marijuana.

As the negotiations continued in the trailer's family room, defendant got up, walked down a hallway, and then walked back into the family room with a revolver in his hand. He struck Griffitts on the head with the gun, knocking him to the floor. Defendant then demanded of him, "Where is your stuff? Where is your money?" When Griffitts did not respond, defendant repeatedly kicked him.

When Griffitts got to his feet, defendant pointed the gun at him and fired two shots past his head into the trailer wall. As he did so, defendant yelled, "Where is the money? Where is the stuff? I know you got it." Defendant then fired a third shot into the trailer wall.

At that point, Grant, who was lying on the floor in the family room, told defendant where to find some hidden money. Demario then located a money box, and defendant grabbed a bag of marijuana off the table. The Danley brothers and defendant then began leaving. On his way out, defendant said, "Don't think of following me," and fired a fourth shot, this time into Griffitts' television.

Shortly after defendant and the Danley brothers fled the trailer, the police and paramedics were called to the scene. An officer described Griffitts as having a "large cut or gash to his head" that was bleeding. Griffitts also appeared "a little disoriented."

The officer also testified that approximately 10 to 15 minutes after he was dispatched to Griffitts' trailer, the phone in the trailer rang. The officer answered the phone and identified himself. The caller stated that his name was Don and although he had been at the trailer earlier that night, he was not involved in what happened. The caller claimed he did not know what was going on and did not want to get his friends involved.

The officer later went to the hospital to speak with Griffitts, who informed him that the caller was probably Don Danley, who lived in a nearby apartment complex. The police went to that location, found Don, and a short time later he gave a full statement to the police, which implicated himself, Demario, and defendant.

Griffitts testified that after defendant struck him in the head, defendant tried to rip Griffitts' pants off to see if he had anything in his underwear. While doing that, defendant kicked him repeatedly, trying to kick Griffitts in the chest and face. Most of Griffitts' injuries were to his forearms because he had tried to block defendant's kicks. Defendant kept asking where the money and the rest of the drugs were, but Griffitts said nothing. Griffitts estimated that the first two shots defendant fired missed him by five or six inches, while defendant's last shot missed him by three or four inches.

Griffitts further testified that he received 13 staples in his head and one stitch in his lip. (However, the prosecutor later conceded that Griffitts' medical records showed he received only seven staples in his head.) Griffitts explained that these injuries gave him a headache every day for two weeks, and his vision was blurry "until right before I got staples in my head at the hospital."

Don testified as a State's witness and identified defendant as Demario's closest friend. Don explained that he did not have any agreement with the State regarding his testifying, but he hoped that his sentence would be reduced as a result. Nonetheless, he stated that he was "only here to tell the truth." He acknowledged that he had been told that if he was "honest, [he would] receive a benefit," but he did not know what the benefit would be.

Don described the plan that he, Demario, and defendant made to rob Griffitts. On March 19, 2004, he asked his "side girlfriend," Tressa Walsh, to watch his two-year-old daughter so that he and the others could "go rob Nick."

Walsh, Don, and Don's daughter then drove to pick up Demario and defendant. Defendant's girlfriend, Marqueesha Davis, also joined them. Demario and defendant had the gun. They all drove back to Don's apartment and discussed their plan to rob Griffitts. Don's involvement was necessary because Griffitts did not know either Demario or defendant and would not have let them in his trailer. Don then described the events inside the trailer in detail, substantially corroborating Griffitts' testimony.

After the robbery was over, they went back to Don's apartment and split up the proceeds-namely, the marijuana and the money. Don then went to his cousin's house with Walsh, where he smoked some marijuana in an effort to calm himself down. He was worried about the police because Griffitts knew him. He called Griffitts and spoke to a police officer who answered.

Don then took Walsh home and went back to his apartment. When the police came, Don let them in, told them he knew why they were there, and agreed to an interview, in which he told the police what had happened. At the time he did so, he had not spoken to any prosecutors, nor had the police made any promises of any kind as to what would happen to him.

Walsh substantially corroborated Don's testimony. She also testified that before Don, Demario, and defendant went to Griffitts' trailer to rob him, she saw the gun in defendant's hand. She also heard the three of them talking about how they were going to commit the armed robbery. After the robbery, Walsh heard defendant say that he had to hit "this guy * * * in the head with the pistol because he wouldn't give his money up." She also saw them split up the proceeds from the robbery.

Davis testified that she was then in custody because, despite being subpoenaed, she did not come to court. Davis testified about conversations she heard on March 19, 2004, and a few days before that involving defendant, Don, and Demario, in which they talked about "this white dude with the weed." Her testimony about the events on March 19, 2004, substantially corroborated Don's, except that she maintained that Don, Demario, and defendant all left Don's apartment together "to go buy some weed." Davis also acknowledged that defendant was the father of her young child.

Davis also testified that when defendant and Don returned to Don's apartment, she thought something might be wrong, but she did not know for sure. As she, Don, Demario, defendant, Don's baby, and Walsh all drove away from Don's apartment, she heard some conversation about "the white guy getting hit in the head and blood going everywhere."

The State's last witness was Deputy United States Marshal John Beeman, who assisted Springfield police in apprehending defendant in Fort Wayne, Indiana. Beeman received information from Springfield authorities that defendant was traveling under the name of "Chris Brown" by Greyhound bus to Fort Wayne with his girlfriend, Latoya Morris. On March 27, 2004, Beeman and several other officers went to an address in Fort Wayne associated with Morris and found defendant hiding in the attic.

Defendant chose not to testify, and on this evidence, the jury convicted him of all charges. The trial court later sentenced him as stated. This appeal followed.

II. ANALYSIS

A. Defendant's Claim That He Was Denied His Constitutional Right To Retain Counsel of His Choice

Defendant first argues that the trial court denied him his constitutional right to retain counsel of his choice. Specifically, he contends that the...