People v. Sims

• Decision Date: 08 June 2007
• Docket Number: No. 1-04-2709.,1-04-2709.
• Citation: 869 N.E.2d 1115
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Glenn SIMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

869 N.E.2d 1115

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Glenn SIMS, Defendant-Appellant.

No. 1-04-2709.

Appellate Court of Illinois, First District, Sixth Division.

June 8, 2007.

Kristine A. Neal, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

James E. Fitzgerald, Mary P. Needham, Ljubica D. Popovic, Assistant State's Attorneys, Cook County, Chicago, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County defendant, Glenn Sims, was found guilty of first degree murder and armed robbery. Defendant was sentenced to consecutive terms of 28 years' and 9 years' imprisonment, respectively. On appeal, defendant contests the sufficiency of evidence to sustain his conviction for first degree murder. He specifically contends that the State failed to prove beyond a reasonable doubt that the stress caused by the armed robbery was a contributing cause of the victim's death, which occurred approximately 5½ hours after the robbery. Defendant also contends that the trial court erred in prohibiting the defense expert witness from referring to a hospital protocol to explain his conclusion that the victim died from respiratory arrest not related to any stress resulting from the robbery. Defendant further contends that he was provided ineffective assistance of counsel because counsel (1) failed to appropriately raise the affirmative defense of compulsion and neglected to have the jury instructed as to this defense; and (2) failed to tender the hospital protocol to the State, thereby precluding the expert from fully testifying to an alternate theory of causation in the victim's death. Defendant finally contends that the trial court abused its discretion in sentencing him, because it did not adequately consider mitigating factors. For the reasons discussed below, we reverse and remand.

I. BACKGROUND

Defendant was arrested and charged with one count of first degree murder arising from the commission of a forcible felony, armed robbery in violation of section 9-1(a)(3) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(3) (West 2000)) and two counts of armed robbery in violation of section 18-2 (720 ILCS 5/18-2 (West 2000)), one of Queen Smith, and the other of Guillermo Ramirez.

The evidence adduced at trial shows that on March 23, 2001, Noemi Ramirez, and her brother Guillermo Ramirez were working as cooks at Taurus Flavors restaurant at 8534 South Stony Island in Chicago, along with three other employees and Queen Smith, the night manager.

At trial, Noemi Ramirez testified on behalf of the State that about 9:30 p.m., two men wearing ski masks entered the restaurant. One of the men was carrying a gun and he jumped across the counter. Noemi testified that she and Guillermo lay face down on the floor as the man searched their pockets. Noemi then heard Smith come out of the bathroom, which was located in the back of the restaurant. According to Noemi, she heard a man order Smith to open the safe. Shortly, afterwards, she heard two gunshots and then the men running through the rear door of the restaurant. After the police arrived, Noemi went to see Smith and observed Smith sitting in front of the bathroom door, unable to talk, breathing fast and "look[ing] scared."

Noemi also identified defendant in court and testified that he had worked at Taurus Flavors restaurant for a period of about three months, but that he was not an employee of the establishment at the time of the robbery. Noemi also testified that Smith was "a lady with a lot of energy" and a fast worker.

Guillermo Ramirez next testified to essentially the same sequence of events. He added that as he lay on the floor next to his sister, one of the masked men searched his pockets and took his wallet, which contained money. Guillermo further testified that after he heard the men run out of the store, he went to check on Smith and noticed that she looked very scared, "like she wanted to cry, but couldn't," and that she waved her hands as if she needed air. Guillermo also identified defendant in court as a former employee of the restaurant.

On cross-examination, Guillermo testified that after he came to help Smith, she spoke and asked him for a glass of water.

Larry Hardy next testified that he pleaded guilty to the murder and armed robbery of Smith and that he received a sentence of 25 years' imprisonment in exchange for his cooperation in the prosecution of defendant. Hardy stated that around 5 p.m. on March 23, 2007, he, defendant, Terrell Bell, Bernard Robinson, Megan Irwin, Carmella Hardy, and Ike Hardy were in his home discussing the Taurus Flavors restaurant, when Bell suggested that they rob it. Hardy further testified that because defendant had worked at the restaurant, he told everyone that the restaurant made money, and that the safe was located in the bathroom, but indicated that defendant was "just telling us things that we [already] knew." Hardy next averred that Bell then left the house to get a gun from his own home. When he returned, they all discussed what everyone's role in the robbery would be. According to Hardy, defendant was to be the "lookout," stand in the front of the restaurant, and knock on the window to alert the others if the police arrived. Bell and Robinson were going to go inside the restaurant, and Hardy was to stand in the back and watch for police. All three would have their faces concealed. According to Hardy, it was also decided that Irwin, Bell's girlfriend, would drive them to the restaurant.

Hardy next testified that when Irwin drove the four of them to an alleyway a block away from the restaurant, defendant got out of the car first and walked toward the front of the restaurant. He came back and told the others that there were "some Latinos" and a "little black girl" inside the restaurant. At that point, Bell told everyone where to go, and he, Robinson and Hardy started walking toward Taurus Flavors, while defendant walked toward a gas station where he was to act as lookout. Hardy and Bell put on ski masks, and Robinson tied a scarf around his face. According to Hardy, Bell walked into the restaurant first, pointed the gun at the employees, told them to get on the floor and then jumped over the counter. Bell found Smith and pulled her to the bathroom, holding her by her shirt collar. Hardy testified that he remained in the front of the store, but that he could hear "a lot of commotion" in the bathroom. Soon afterward, Hardy heard two gunshots and some "tussling," as if someone was thrown against a wall. Hardy also heard Smith say that she did not know the safe combination, as well as cries of, "Don't hit me. Don't hit me again." After he heard Robinson yell that he found five bags of money, Hardy proceeded to the back of the store, where he saw Smith next to the bathroom door. He then ran out of the restaurant together with Bell and Robinson and went to Robinson's house. Hardy testified that a short time later, they observed a police car from the window of Robinson's house, grabbed some money, and ran each in his own direction. Hardy was apprehended by police a short while later as he walked on Stony Island Avenue.

On cross-examination, Hardy testified that at the time of the robbery, he was 26 years old, Bell was older than him, and Robinson was "around his age." He also testified that defendant was only 15 years old. Hardy further testified that at the time of the robbery, defendant had run away from home and was living in Hardy's house. Hardy also stated that on the afternoon of the robbery, everyone in the house was drinking and smoking marijuana. Hardy testified that he was a regular customer of Taurus Flavors restaurant and that he knew there was a safe in the restaurant before defendant ever talked about it. According to Hardy, before everyone got into Irwin's car, defendant stated that he did not want to take part in the robbery. According to Hardy, defendant indicated that he "wasn't feeling it," and Hardy understood that to mean that defendant was afraid. At this point, Bell who held the gun in his hand told defendant that "he was there when it started, he got to be there when it finished," and everyone got into the car.

At this point the trial court called a recess, indicating to defense counsel that it seemed that counsel was attempting to raise an affirmative defense of compulsion without having pled it in the defense pleadings. The following colloquy then took place between defense counsel and the court:

"MR. FOX¹: Judge, I believe I made a mistake by not filing or asking to file a compulsion defense this afternoon around 1:30 when I talked with * * * Hardy and he told me something that he testified to now about how [defendant] wanted to get out of this robbery and one of the other guys said you couldn't get out of it.

He told me that today. I have asked him previously. He did not say that. Other witnesses I have asked did not say.

THE COURT: So you asked Mr. Hardy that on previous occasions and he did not give that information to you?

MR. FOX: Correct.

THE COURT: What other occasions have you spoken to Mr. Hardy?

MR. FOX: None with Mr. Hardy, but I talked with * * * Irwin on another court date.

THE COURT: * * * I am concerned with your lack of compliance and discovery rules and obligations that you have in representing the defendant. And clearly when an affirmative defense is being raised as to the charges against him, you have an obligation to put the State on notice as to that. Not to do so is a discovery violation and perhaps further violation of the cannons of ethics.

* * *

MR. FOX: * * * The reason I didn't file it today was because I was under the mistaken presumption that I couldn't argue it unless I could prove it. Whereas in speaking with another lawyers as long as it can be raised, that's enough to file it. I wasn't aware of the distinction.

THE...