People v. Rowry
| Decision Date | 24 August 2017 |
| Docket Number | No. 1-15-0782,1-15-0782 |
| Citation | 2017 IL App (1st) 150782 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOLLIE ROWRY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
Honorable Frank G. Zelezinski Judge Presiding.
¶ 1 Held: Affirmed. Trial court did not abuse its discretion in denying motion for severance, as defenses were not antagonistic. After first polled juror stated she had mixed emotions, trial court properly directed jurors to continue deliberations. Trial court's decision not to declare mistrial was not error when juror unequivocally stated she agreed with verdict.
¶ 2 Following a jury trial, defendant Tollie Rowry was convicted of armed robbery and sentenced to 38 years of imprisonment, which included a 15-year enhancement for committing the crime while armed with a firearm, plus a three-year mandatory release period after the sentence is completed. On appeal, defendant argues that the trial court erred in denying his motion for severance based on his codefendant's antagonistic defense. He also claims that the trial court erred in ordering the jury back for further deliberations after polling one juror only, and further erred when it denied a motion for mistrial where that juror later stated the verdicts were hers while crying and shaking her head.
¶ 3 We affirm. The trial court did not err in denying defendant's motion for severance, as defendant and codefendant did not have antagonistic defenses. Nor did the trial court err when it directed the jurors to continue deliberations after the first polled juror stated she had mixed emotions. Finally, after the jury returned from additional deliberations and was polled again, the trial court did not act clearly unreasonably in determining that this juror voluntarily assented to the verdict; though the juror was still emotional, she unequivocally answered "yes" to the question of whether the verdicts were hers.
¶ 6 Defendant moved to sever his trial from the codefendant, Craig Freeman, based on antagonistic defenses. The State opposed the motion, arguing that defendant failed to show how the defenses were antagonistic, having provided no details or specificity as to either defense or the substance of any testimony. The trial court denied defendant's motion.
¶ 8 1. State's Case-in-Chief
¶ 10 The State's first witness was Derrick Elibasich. On December 17, 2008, he drove his wife Andrea Swearengin (who was his fiancée at the time) to a residence at 125th and Honore in Calumet Park, where she worked as a home health care worker. Ten to fifteen minutes later, Elibasich's son met him there, and they went to get lunch. The two of them returned and parked in front of the residence where Swearengin was working. As they sat in the car, Elibasich saw acopper four-door car circling at least three times. The car pulled directly in front of Elibasich's car; both cars were facing east.
¶ 11 Two men got out of the car, one from the passenger side and one from behind the driver, and approached Elibasich's car. When Elibasich rolled down the window, codefendant Freeman punched him in the face. Elibasich started to open his door and defendant pulled out a gun. Defendant pointed the gun two to three inches from Elibasich's face and hit him in the face with the gun.
¶ 12 While defendant held the gun, codefendant Freeman went through Elibasich's pockets. Elibasich testified that Freeman had braids at the time and did not have the gun. Freeman took Elibasich's gold Razr cell phone from his pocket. Freeman then circled around the car and started searching Elibasich's son. Meanwhile, defendant was holding the gun in Elibasich's face. Freeman took a phone and five dollars from Elibasich's son.
¶ 13 Defendant told Elibasich to get out of the car, turn around, and run, but Elibasich refused to leave his son. Defendant and Freeman backed away and returned to their car. Defendant got into the car on the rear passenger side; Freeman got into the front passenger side. The car headed east. Elibasich went to check on his son; he also heard and saw Swearengin in the window.
¶ 14 The police arrived five minutes later. Elibasich told the officer what happened. While Elibasich was with the paramedics, another squad car arrived, and Elibasich identified defendant and Freeman. The officers showed Elibasich property, including his and his son's cell phones, five dollars, and the keys to the vehicle his son was driving.
¶ 15 Throughout the State's examination, Elibasich testified that defendant was the individual with the gun, and that Freeman was the one with braids and no gun. Elibasich was shown a weapon and testified that it was the gun that defendant put to his head.
¶ 16 Codefendant Freeman's counsel first cross-examined Elibasich. He reaffirmed that the gun was concealed when the men got out of the car, and that the gun was not visible as the men approached Elibasich's car, when he rolled down his window, or when codefendant Freeman punched him in the face. Freeman's counsel had Elibasich clarify, and Elibasich again testified, that Freeman was not the individual with the gun. Elibasich also stated that Freeman was the one who went through his pockets. Then Freeman's counsel asked Elibasich which individual got into which seat of the car. When Elibasich again said that the man with the gun got into the rear passenger seat and the unarmed man got into the front passenger seat, Freeman's counsel impeached Elibasich with a prior transcript in which he stated that the armed man got into the front passenger seat, and the unarmed man got into the rear passenger seat.
¶ 17 Defendant's counsel then cross-examined Elibasich, who testified again that the person without the gun got into the front passenger seat. Elibasich also said that the man with the gun was heavy-set.
¶ 18 After Elibasich's testimony, defense counsel renewed the motion for severance based on the antagonistic defenses and asked for a mistrial. Counsel argued that the defenses were clearly antagonistic, because Freeman's defense was that defendant, and not Freeman, was the individual with the weapon, while defendant's defense was that he was not present at the scene at all. The trial court denied the motion.
¶ 19 b. Andrea Swearengin
¶ 20 The State next called Andrea Swearengin. On December 17, 2008, while working as a housekeeper at the home where Elibasich had dropped her off, she witnessed events through the kitchen window. She also saw the copper-colored car, a Ford Focus, circling the block three or four times. She did not feel comfortable and called 911.
¶ 21 She testified that the copper-colored car parked in front of Elibasich's car, and two people got out. One of the men walked towards Elibasich and the other towards his son. She saw Elibasich try to get out of the car, and the man near him pulled a silver gun out of his pants and "stuck it in [Elibasich's] face." The other man struck Elibasich's son in the face, and she saw him emptying his pockets. While on the telephone with the 911 operator, she saw the gun and told the operator that her husband and son were "getting stuck up." The audio recording of her 911 call was played in court and entered into evidence.
¶ 22 Swearengin testified that the gunman had braids and was taller and more muscular than the other man. On cross-examination, she agreed that she had provided only a license plate number of the car to the 911 operator and had not given a description of the men.
¶ 23 c. Corporal Bernadine Rzab
¶ 24 Blue Island police corporal Bernadine Rzab was the first of four police officers to testify for the State. On December 17, 2008, at around 12:30, she received a dispatch regarding an armed robbery a couple of blocks away. The dispatch indicated the suspects were three black males, with one in possession of a gun, in a copper-colored, four-door vehicle. Shortly thereafter, Rzab noticed a vehicle matching the description being followed by two squad cars. She joined in the pursuit, and the vehicle was pulled over.
¶ 25 Two of the men got out of the car and started running. Rzab was able to identify the front-seat passenger, whom she identified in court as defendant. She testified that she saw a shotgun in defendant's hand as he started running and she chased the men. Blue Island police officer Michael Elton was also chasing them. The two suspects turned the corner. As Rzab turned the corner, Elton was in front of her. They chased the men through an alley and a backyard. Rzab saw Elton pointing to a stairwell behind the house, and Rzab saw a muzzle of aweapon laying there. She told Elton to stay there while she continued chasing the men to the front yard of the house. Rzab saw prints in the snow and a partially opened gate at the house next door. She went into a crawl space where she found defendant lying in the corner. Two other officers arrived. Rzab testified that she recognized defendant as the individual who had been in the front passenger seat of the copper vehicle and who had the shotgun as he was running away. Defendant was placed into custody.
¶ 26 On cross-examination, Freeman's counsel confirmed that Rzab took defendant into custody, that she lost sight of Freeman, and did not see the officers who took Freeman into custody.
¶ 27 Defendant's counsel also cross-examined Rzab. She testified that both defendant and Freeman were running away from her in the same direction. She also testified that both men turned a corner and she lost sight of them, but that Officer Elton was in front of her. She...
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