People v. Radford

• Decision Date: 15 August 2005
• Docket Number: No. 1-04-0661.,1-04-0661.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew RADFORD, Defendant-Appellant.
• Court: Illinois Supreme Court

Page 127

835 N.E.2d 127

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew RADFORD, Defendant-Appellant.

No. 1-04-0661.

Appellate Court of Illinois, First District, First Division.

August 15, 2005.

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Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Kathryn Schierl, Sally L. Dilgart, Robyn Molaro, Assistant State's Attorneys, of Counsel), for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender of Cook County, Chicago (Arianne Stein, Assistant Public Defender, of Counsel), for Defendant-Appellant.

Justice McBRIDE delivered the opinion of the court:

Following a jury trial, defendant Andrew Radford was convicted of attempted armed robbery, attempted aggravated robbery, and aggravated battery. The court sentenced him to concurrent prison terms of 10 years for each offense. Defendant contends on appeal that the trial court erred when it failed to adequately inquire into and evaluate his pro se posttrial claims of ineffective assistance of trial counsel. He also contends that his conviction for attempted aggravated robbery should be vacated because it arose from the same physical act as his conviction for attempted armed robbery. He further contends that his extended-term sentences for attempted aggravated robbery and aggravated battery were improper because section 5-8-2 of the Unified Code of Corrections (Code)(730 ILCS 5/5-8-2 (West 2002)) authorizes an extended-term sentence for only his most serious offense, attempted armed robbery. He also contends that the trial court failed to properly admonish him regarding his appeal rights, as required by Supreme Court Rule 605(a), and thus this cause should be remanded for proper admonishments. Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001. Lastly, defendant contends that compulsory extraction and storage of his DNA, as required by Code section 5-4-3 (730 ILCS 5/5-4-3 (West 2002)), violates his constitutional right to be free from unreasonable searches and seizures.

Defendant was charged by indictment with attempted armed robbery, attempted aggravated robbery, and aggravated battery. The attempted armed robbery count alleged that defendant, while armed with a glass bottle, "grabbed Jose Gonzalez and demanded money, which constituted a substantial step towards the commission of the offense of armed robbery." The attempted aggravated robbery count alleged that defendant "grabbed Jose Gonzalez and demanded money while indicating that he was armed with a firearm, which constituted a substantial step toward the commission of the offense of aggravated robbery." The three aggravated battery counts all alleged that defendant "struck Shantae Gonzalez about the body with a bottle."

At trial, Jose Gonzalez testified that, at about midnight on February 24, 2003, he and his wife, Shantae Gonzalez, were going to a store at the corner of Division Street and Pulaski Road. Jose parked across Pulaski Road from the store and was crossing the road when he saw defendant standing under a streetlight at a bus stop at the same intersection. Defendant said "rocks and blows," and Jose thus believed that defendant was selling drugs. Jose said that he was "not about that," and Jose and Shantae continued on into the store. While making a purchase, Jose saw through the store window that defendant was now standing by the store's exit door.

As Jose and Shantae left the store, defendant grabbed Jose from behind and shoved something into his back. It felt to Jose like a firearm because it was a circular object. Defendant told Jose to "give me your shit or I'm gonna blast you." Defendant then rifled through Jose's pockets with his right hand, still pressing the object against Jose's back. Defendant had not removed anything from Jose's pockets when Shantae told Jose that the object was "not a gun." Jose turned around and saw defendant's hand, holding a glass bottle, moving away from Shantae's face. Jose then noticed that Shantae's face was bleeding. Defendant fled westward on Division Street, bottle still in hand, and Jose pursued him briefly. Jose then went to the corner store to call the police. As he left the store, he saw a police vehicle. He flagged it down and told the officer what had happened, describing defendant's clothing (all black) and in which direction he had fled. The officer left, returning about three minutes later with defendant in custody. Jose identified defendant as his assailant.

Shantae Gonzalez testified that, as she and Jose were crossing the street from their vehicle to the corner store, she saw defendant on the corner yelling "rocks and blows." She and Jose told defendant that they were "not about that" and continued walking toward the store. As they came out of the store, Shantae heard whispering and turned around. She saw defendant grab Jose around his neck from behind and point something toward Jose's back. Defendant demanded Jose's money "or I'll blast you," and Shantae whispered to Jose to "do whatever he says 'cause we got a baby at home." As defendant began rifling through Jose's pockets, Shantae could see that the object he was pressing against Jose's back was a bottle rather than a firearm. Shantae told Jose that "it's not a gun," and defendant then struck Shantae with the bottle, cursing her as he did so. The bottle struck her in the lip and she bled profusely. Defendant fled down Division Street, and Jose chased him. Shantae looked for the bottle, in case defendant had dropped it, but did not find it. Jose stopped at the corner store and then stopped a passing police vehicle to report the crime. The officer left and returned less than two minutes later with defendant in custody, and Shantae identified him as her assailant. Shantae was brought by ambulance to a hospital, where she received 16 stitches for her cut lip. Her lip was still scarred as of trial, despite three visits to a plastic surgeon.

Officer Salvador Soraparu testified that, as he patrolled on February 24, 2003, he was flagged down shortly after midnight by Jose Gonzalez at the intersection of Pulaski Road and Division Street. Jose told Officer Soraparu that he had just been robbed by a black man in dark clothing who fled westbound on Division Street. Officer Soraparu left, proceeding west on Division. After about three minutes, he saw defendant walking rapidly southbound on Keystone Avenue, the next street west of Pulaski Road. Nobody else was in the vicinity, and Officer Soraparu and his partner, Officer Christopher Dobeck, took defendant into custody. They returned immediately to the Pulaski/Division intersection, where Jose and Shantae identified defendant as their attacker. Officer Soraparu then saw that Shantae's mouth was bleeding profusely.

The parties stipulated that Jose Gonzalez was convicted in 2000 of the offense of possession of a stolen motor vehicle.

The jury found defendant guilty of all three charges: attempted armed robbery, attempted aggravated robbery, and aggravated battery.

Defendant submitted to the court a undated pro se letter requesting a new trial, alleging that one of the jurors was his "mail carrier and has been for a while * * * telling everyone in the community that she got rid of a lowlife and told my mother that I didn't belong on the street and that I needed to be locked up like the [animal] that I am." He also stated that "if my witness was called and my lawyer would have did a halfway good job that I would be at home with my family."

At the hearing on defense counsel's standard posttrial motion, the court acknowledged receipt of defendant's pro se letter and the following colloquy occurred.

"THE COURT: Have you talked to your client about this?

MR. BENESH [Defendant's Attorney]: Yes, we have.

THE COURT: Now tell me where you are going with this investigation?

MR. BENESH: There is a woman mentioned within the letter —

THE COURT: Says a juror is his mail carrier. She mentions after the fact after hearing the evidence and after agreeing with all the other jurors they got a low life off the street. Is there any indication here that she had some predisposition before she sat on the jury in his case or that she just commented about how she felt about it after the fact?

MR. BENESH: There is an indication that she was familiar with [defendant] and there is an indication that she was familiar with his family.

THE COURT: What is the indication because I don't see any of that here except after the fact she made some comments, which jurors are free to make, after the fact. There is a difference between before the fact and after the fact. If a juror makes some statement after the fact, it doesn't mean that there was any problem with them sitting on the jury before the fact.

MR. BENESH: I would agree with that, your Honor. In the interest of completeness, the fact that there is a mention of who she is telling. There is an indication that she knew who [defendant] was before the fact and that's a concern.

THE COURT: Motion defendant. But you tread carefully here. You have an absolute right to investigate that which is done so in good faith and relevant; but if I feel that jurors are being harassed for doing their civic duty, I will take a very dim view of that. So you make sure that you are operating in the best of faith.

MR. BENESH: Oh, absolutely, sir."

After a continuance of about two months "for post-trial motions," defense counsel rested on an amended posttrial motion which added to the standard posttrial motion an allegation "that the jury was furnished a Prim instruction on the record without lead counsel for the defense [being] given the opportunity to be present in the courtroom." The court ruled that the "post-trial motions for new trial that are addressed by the Court, either pretrial or at the time of the trial, the Court does not believe error occurred either pretrial or at the trial. Accordingly, motion for new trial is...