People v. Peacock

• Decision Date: 21 August 2001
• Docket Number: No. 1-98-3552.,1-98-3552.
• Citation: 324 Ill. App.3d 749,756 N.E.2d 261,258 Ill.Dec. 279
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Taki PEACOCK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

756 N.E.2d 261

324 Ill. App.3d 749

258 Ill.Dec. 279

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Taki PEACOCK, Defendant-Appellant.

No. 1-98-3552.

Appellate Court of Illinois, First District, Second Division.

August 21, 2001.

Michael J. Pelletier, Deputy Defender, Jennifer Bonjean, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, Cook County State's Attorney (Renee Goldfarb, Alan Spellberg, William Carroll, and William L. Toffenetti, Assistant State's Attorneys, of counsel, with the assistance of Donald D. Gardiner, a graduate of John Marshall Law School and a Law Clerk in the Criminal Appeals Division of the Cook County State's Attorneys Office), Chicago, for Appellee.

Justice McBRIDE delivered the opinion of the court:

Following a bench trial, defendant Taki Peacock was found guilty of first degree murder, aggravated vehicular hijacking, armed robbery, and aggravated kidnapping. Defendant was given an extended-term sentence of 80 years for first degree murder and 30 years on each of the other offenses, to run concurrent with the 80-year term.

The evidence at trial showed that on August 31, 1995, the victim, 60-year-old Rufus Taylor, was confronted in his garage at 6937 South Merrill Avenue in Chicago by defendant and Lawrence Wallace. According to a written statement defendant later gave to an assistant State's Attorney, he and Wallace had planned to take the victim's car the day before but had decided against it after seeing someone sitting on a porch near the victim's garage. On August 31, when the victim got out of his car, Wallace put a .25 caliber gun to his head. Defendant had obtained the gun earlier from his sister-in-law. Defendant drove the victim's car to an area near 131st Street and Halsted Street while Wallace held the victim at gunpoint in the backseat. On the way, the victim asked to be dropped off and Wallace said they could not drop him off because he had seen their faces. Defendant, in his statement, acknowledged that he then "figured Wallace was going to kill Mr. Taylor." Upon arriving at 131st and Halsted, defendant located a secluded spot on property belonging to the Cook County Forest Preserve. According to defendant's statement, they got out of the car and Wallace then shot the victim in the face. Defendant, after unjamming the gun, fired a single shot at the victim but missed. Wallace then shot the victim again. Defendant and Wallace left the wounded victim and drove to Gary, Indiana, in the victim's car. Wallace gave defendant $200 that they had taken from the victim. When defendant and Wallace were told the "chop-shop" they were looking for was closed, they went to a fast-food restaurant drive-up window and bought a bucket of chicken. The drive-through attendant testified at trial that defendant, who was driving, asked her what time she was going to get off work and offered to come back and pick her up later.

After being left to die by defendant and Wallace, the victim managed to get to Halsted Street, where civilians came to his aid and called the police. Police and paramedics arrived on the scene. The victim was initially conscious and told an officer that his car had been taken by two black males, one tall, one short, and that the shorter one (Wallace) had shot him. One of the civilians who had stopped to help contacted the victim's wife. The officers learned that the victim's car was a black Jaguar with vanity plates.

Following a message sent out over the Illinois State Police Emergency Network, defendant and Wallace were apprehended in the victim's car by Lake County, Indiana, sheriff's police. Defendant subsequently met with assistant State's Attorneys from Cook County and gave a signed statement detailing the above events.

The victim was taken to a hospital, where he died several days later. The cause of death was a single gunshot wound to the head.

Defendant's case was set for a jury trial on July 13, 1998. On that day, defense counsel stated that after extensive discussion with his client, defendant had decided to waive his right to a jury trial. Counsel also informed the court that defendant had discussed the matter with his mother. Defense counsel tendered to the court a jury waiver signed by defendant in open court. The trial court then admonished defendant regarding his right to a jury trial and ruled that defendant had knowingly waived his right to a jury. Defendant's counsel stated that it was his understanding that the trial would commence the next day. The State acknowledged that it had "all the witnesses on line for tomorrow as if it was a jury trial." After determining a starting time for the next afternoon, the trial court stated: "Gentlemen, will that be by agreement hold on call to tomorrow?" The State then entered a nolle prosequi on 14 of the counts against defendant, leaving 8 counts for trial. The court then stated: "Okay, gentlemen, trial will stand recessed until tomorrow."

The following day, the following colloquy took place:

"THE COURT: Please be seated. * * * Ready for trial?

[DEFENSE COUNSEL]: Yes, Judge. For the record, I would like to spread of record that earlier today around 12:30, I had an opportunity to come here to speak to my client and I was alerted by the court personnel that my client had an urgent request to speak to me.

Upon speaking with my client, he has instructed me at this time that he would respectfully like to withdraw his jury waiver that he tendered and entered before this Court yesterday. I discussed the matter with him extensively, Judge, and I feel that it is my duty to relay to the Court his request at this time to withdraw the waiver that he had entered yesterday, so we will be moving to withdraw said waiver, and ask for a jury instead.

THE COURT: Thank you, Mr. Wilson. Mr. Lynn.

[STATES ATTORNEY]: Judge, it is my understanding of the law in Illinois that a jury waiver that has been knowingly and voluntarily entered should stand, absent some showing as to that it was given under some misapprehension of the facts or the law. There is no indication that the defendant was improperly admonished in any fashion as to the facts or the consequences, or as to the law.

I believe therefore it is within the discretion of the Court as to whether the Court feels the defendant was properly admonished and whether the waiver was voluntarily and knowingly made. And therefore, Judge, I believe it is within Your Honor's decision, and absent any showing, I believe the defendant cannot now after knowingly waiving, with all witnesses present in court, I don't believe he can not [sic] waive it.

THE COURT: The waiver was executed yesterday and filed, and the defendant was appropriately admonished, and knowingly waived his right to jury, and with the assurance that number one, the defendant will have a fair trial.

Number two, the only evidence which will be considered will be the evidence which is brought out in open court in this trial, and that the defendant will have a fair trial, and if, if found guilty, a fair sentencing.

With my thanks Mr. Wilson, the waiver will stand."

After hearing the evidence, the trial court found defendant guilty of first degree murder, aggravated vehicular hijacking, armed robbery, and aggravated kidnapping. After hearing evidence in aggravation and mitigation, the trial court sentenced defendant to an extended term of 80 years on the murder based on findings that the offense was accompanied by heinous behavior indicative of wanton cruelty and was committed against a person 60 years of age or older. The court also sentenced defendant to 30 years on the other three counts, to run concurrent to the 80-year sentence for murder.

Defendant now appeals.

Defendant first contends that he was deprived of his fundamental right to trial by jury when the trial court denied his request to withdraw his jury waiver prior to trial. According to defendant, in denying his request, the court failed to consider whether granting the motion would result in a delay of the trial, impede justice, prejudice the State, or inconvenience the witnesses.

Although a defendant has a right to a trial by jury, once he has voluntarily waived that right he cannot then withdraw his waiver as a matter of right. People v. Catalano, 29 Ill.2d 197, 202, 193 N.E.2d 797 (1963). Whether a defendant may withdraw his waiver is a matter that is ordinarily within the discretion of the trial court unless the circumstances indicate the defendant failed to realize the consequences of his waiver. Catalano, 29 Ill.2d at 202, 193 N.E.2d 797. Defendant's waiver was knowingly and understandingly made in open court and the validity of that waiver is not in dispute here. The question before us is whether the trial court abused its discretion in denying defendant's motion to withdraw his validly entered jury waiver.

Although not raised by the parties on appeal, defendant's claim of error has been waived. Defendant's motion to withdraw his waiver was made orally by defense counsel. Upon denial of the motion, defense counsel did not object and instead simply stated that defendant was ready for trial. Defendant did not raise the issue of the denial of his motion to withdraw in a posttrial motion. The issue has therefore been waived. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988).

Nor do we find defendant's claim of error reviewable as plain error. Pursuant to Supreme Court Rule 615(a), issues affecting substantial rights are reviewable as plain error even where such issues were not properly preserved for review. 134 Ill.2d R. 615(a). The plain error rule may be invoked only where either the evidence is closely balanced or the errors are of such magnitude that defendant was denied a fair and impartial trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Williams, 193 Ill.2d 306, 348-49, 250 Ill....