People v. Gilbert , 2013 IL App (1st) 103055 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Gilbert, 2013 IL App (1st) 103055
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption LEVI GILBERT, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-10-3055
Filed March 19, 2013
Rehearing denied April 18, 2013
Held Defendant failed to establish that his counsel in his trial for felony murder
(Note: This syllabus and armed robbery was ineffective, notwithstanding his contentions that
constitutes no part of his counsel was facing suspension by the ARDC and had not notified
the opinion of the court defendant of the pending suspension and that his counsel suffered from
but has been prepared dementia; however, defendant’s convictions for armed robbery were
by the Reporter of vacated on the ground that those convictions were the predicate felonies
Decisions for the on which the first degree murder convictions were based.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 06-CR-4088(02); the
Review Hon. Marcus R. Salone, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Michael J. Pelletier, Alan D. Goldberg, Jonathan Steffy, and Heidi Linn
Appeal Lambros, all of State Appellate Defender’s Office, of Chicago, for
appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
Needham, and William L. Toffenetti, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court,
with opinion.
Justices Quinn and Simon concurred in the judgment and opinion.
OPINION
¶1 Defendant, Levi Gilbert, appeals his convictions after a jury trial of first degree murder
and two counts of armed robbery, and his sentence of 20 years’ imprisonment and two
concurrent terms of six years’ imprisonment. On appeal, Gilbert contends his case must be
remanded for a new trial where (1) he was denied his sixth amendment right to counsel
because at the time of trial his counsel faced a one-year suspension of his law license and
suffered from dementia, and counsel never informed him of these occurrences; and (2) his
counsel committed numerous trial errors, rendering his assistance ineffective under
Strickland v. Washington, 466 U.S. 668 (1984). Gilbert also argues that we must vacate his
two convictions for armed robbery because they were the predicate felonies for his felony
murder conviction. For the following reasons, we affirm Gilbert’s conviction for felony
murder and vacate his convictions for armed robbery.
¶2 JURISDICTION
¶3 The trial court sentenced Gilbert on October 4, 2010. He filed a notice of appeal on
October 4, 2010. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of
the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals
from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art.
VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶4 BACKGROUND
¶5 Gilbert and codefendant Michael Woods were charged with armed robbery and felony
first degree murder for the police shooting of another codefendant, Cleon Jones. Each
defendant was tried simultaneously before separate juries. Gilbert was represented by
attorney William E. Brooks. At the time of trial, which began on August 6, 2008, and ended
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on August 11, 2008, Brooks faced a recommendation by the Attorney Registration and
Disciplinary Commission (ARDC) hearing board that his license be suspended for one year.
The review board affirmed this recommendation on December 12, 2008, and the suspension
began on March 16, 2009, when the supreme court finalized the determination. While
representing Gilbert, Brooks did not inform him of the ARDC’s recommendation.
¶6 At trial, Officers Sliva and Ferraro testified as to the events of January 17, 2006. Acting
on information they received, the officers conducted surveillance at the Auto Zone store
located at Diversey and Central Avenues in Chicago, Illinois. They set up surveillance about
300 yards from the store. Around 10 p.m., they noticed a maroon car pull into the Auto Zone
parking lot. Three men exited the car and entered the store. One of the men pulled up the
hood of his jacket, and Officer Sliva saw another man, wearing a dust mask, lock the front
door from inside the store. The officers believed they were witnessing a robbery and called
other units for assistance. As they waited, Officers Sliva and Ferraro positioned themselves
behind a parked car about 10 to 15 feet from the front door of the store.
¶7 Officers Brosnan and Bone arrived at the scene and positioned themselves behind the
maroon car. Other officers took positions at the rear and side of the building. Eventually, the
officers in front of the store saw a man wearing a black hoodie jacket with a dust mask over
his face walk from behind the counter in the store toward the front door. The man carried
keys in his left hand and a handgun in his right hand. He unlocked the door and as he opened
it the officers shouted, “Police, drop the gun.” Officers Sliva and Brosnan testified that the
man raised his gun and pointed it at Sliva and Ferraro. The officers fired their weapons, 39
rounds in all, within a second or two. The man took a couple of steps back and fell into the
store.
¶8 When the officers entered the store, they found Cleon Jones on the floor. They recovered
a bluesteel revolver about 15 to 20 feet behind Jones. No fingerprints were detected on the
weapon. The officers also recovered three white envelopes containing United States currency
from Jones. Jones died from a single gunshot wound to his chest.
¶9 Adrian Matos, the manager of the Auto Zone, and employees Jonathan Laluz and Oscar
Pizano were working on the night of January 17, 2006. Matos and Pizano were in the front
of the store when three men entered. Laluz was in back restocking parts. Two of the men
wore painters’ masks and one had a scarf tied around his face. The man with the scarf had
a gun. The men took Matos’ and Pizano’s wallets, keys and phones, and ordered them to take
them to the safe. They went into the office, and when the men ordered Matos to open the
safe, he complied. The men then ordered Matos and Pizano to lie down and they tied Matos’
and Pizano’s hands with spark plug cables. When Laluz walked out from the back of the
store, he ran into the man with the scarf, who took Laluz to the office. Laluz was then tied
up. Matos, Pizano, and Laluz heard the men banging on the safe and then heard footsteps
going to the front door of the store. They heard gunfire, but no one heard police shout,
“Police, drop your gun” before the gunfire. Soon thereafter, police arrived and untied them.
¶ 10 Sergeant Lohman answered a call about a robbery in progress at the Auto Zone store just
before 10 p.m. on January 17, 2006. He went to the side door of the building where other
officers had set up a perimeter in case anyone tried to exit from that door. Sergeant Lohman
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heard shouts of “Police, put the gun down” in front of the store. The officers then heard
gunfire. After the shooting, the side door opened and codefendant Woods was seen holding
a canvas bag as he pushed open the door. Gilbert was behind Woods. Woods said, “Oh, shit,”
and dropped the bag as he ran back into the store. Police entered the store through the side
door and apprehended Woods and Gilbert inside the store.
¶ 11 At the close of the State’s case, defense counsel moved for a directed finding, arguing
that the State failed to prove that any of the three men were armed and that Gilbert was
forced to participate. The trial court denied the motion.
¶ 12 Defense counsel called two witnesses, Officers Scott and McNamara. Officer Scott was
positioned near the side entrance and did not observe anything before the shooting. He did
hear shouts of “Police” just before the shooting. McNamara stood behind a sign about 30 to
40 feet from the officers who were near the front door of the store. He observed someone
come out of the front door, but he could not see whether the person had anything in his
hands. As the front door opened, people shouted, “Police” and the man raised his right arm
toward Officers Sliva and Ferraro. McNamara then heard shots fired.
¶ 13 The jury found defendant guilty of armed robbery and felony murder. Gilbert filed a
motion alleging ineffective assistance of counsel at trial and the court gave counsel leave to
withdraw. A public defender was appointed to represent Gilbert in posttrial proceedings.
Gilbert’s new counsel then filed a motion for a new trial, alleging that trial counsel was
ineffective for (1) including an alibi defense in his answer to discovery rather than a coercion
defense; (2) failing to investigate witness CeCe O’Connor, who would have supported the
coercion defense; (3) arguing jury nullification; (4) failing to offer a jury instruction on
coercion; and (5) telling Gilbert not to testify at trial. At the hearing, counsel orally amended
the motion to include the allegation that counsel was ineffective for failing to inform Gilbert
that ARDC disciplinary action was pending against him.
¶ 14 The trial court conducted a Krankel hearing in which trial counsel testified. The trial
court noted that an attorney under investigation by the ARDC “may be under some
extraordinary pressure and distraction, and that may affect his performance.” It may have
explained trial counsel’s filing of the alibi defense during pretrial discovery. However, the
trial court also noted that counsel’s strategy of jury nullification was a reasonable one given
the evidence presented. The court concluded “that there were deficiencies in Mr. Gilbert’s
defense. But I do not believe the deficiencies affected the outcome of a caught inside robbery
or armed robbery.” It denied the motion and sentenced Gilbert to 20 years’ imprisonment for
felony murder, and a consecutive 6-year term for each armed robbery conviction, with the
6-year terms to be served concurrently with each other. Gilbert filed this timely appeal.
¶ 15 ANALYSIS
¶ 16 Gilbert first contends that he was denied effective assistance of counsel because his trial
attorney faced a one-year suspension of his law license at the time of trial. To prevail on an
ineffective assistance of counsel claim, Gilbert must show that (1) his counsel’s performance
was deficient so as to fall below an objective standard of reasonableness; and (2) the
deficient performance prejudiced him so as to deny him a fair trial. Strickland v. Washington,
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466 U.S. 668, 687-88 (1984). To demonstrate sufficient prejudice under the second prong,
he must show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
¶ 17 Gilbert argues that the ARDC hearing board found his counsel in violation of the Illinois
Rules of Professional Conduct (Rules) (eff. Jan. 1, 2010), and counsel “was merely awaiting
the Supreme Court’s confirmation of that suspension” at the time of trial. Therefore,
Gilbert’s counsel was “unqualified” and incapable of representing him. Initially, we note that
the record on appeal does not contain any transcripts of the proceedings before the hearing
board, or any of the board’s recommendations. Gilbert’s brief refers to an appendix in
footnote 2, in which the report and recommendation are attached; however, there is no
appendix attached to the brief or in the record. The record also does not contain the final
determination of our supreme court. Gilbert, as appellant, has the duty to present a complete
record on appeal and any doubts arising from an incomplete record must be resolved against
the appellant. U.S. Minerals & Mining, Inc. v. Licensed Processors, Ltd., 194 Ill. App. 3d
428, 434 (1990). An appellant’s arguments which depend on facts not contained in the record
are not sustainable on appeal. Palanti v. Dillon Enterprises, Ltd., 303 Ill. App. 3d 58, 66
(1999). Therefore, Gilbert cannot prevail on his claim that his trial counsel provided
ineffective assistance because he faced a one-year suspension for violating the Rules.
¶ 18 It also appears that on the merits, Gilbert cannot prove that his trial counsel provided
ineffective assistance based on his disciplinary status. From the appellant and appellee briefs,
the facts show that the ARDC hearing board recommended the suspension of trial counsel’s
law license on September 4, 2007. Gilbert’s trial took place from August 6 through August
11, 2008. The hearing board’s recommendation was affirmed by the review board on
December 12, 2008, and the supreme court finalized the suspension on March 16, 2009.
¶ 19 Our supreme court “possesses the inherent and exclusive power to regulate the practice
of law in this State and to sanction or discipline the unprofessional conduct of attorneys
admitted to practice before it. [Citations.]” In re Mitan, 119 Ill. 2d 229, 246 (1987). The
court also has the sole authority to promulgate rules for attorney conduct and to discipline
attorneys for violations of those rules. Id. Thus, our supreme court has adopted the Rules and
appointed the ARDC to supervise attorney disciplinary proceedings. People ex rel. Brazen
v. Finley, 119 Ill. 2d 485, 494 (1988). Rule 764 sets forth the duties of a disciplined attorney.
It provides:
“An attorney who is disbarred, disbarred on consent, or suspended for six months or
more shall comply with each of the following requirements. ***
***
(b) Withdrawal from Law Office and Removal of Indicia as Lawyer. Upon entry of
the final order of discipline, the disciplined attorney shall not maintain a presence or
occupy an office where the practice of law is conducted. The disciplined attorney shall
take such action necessary to cause the removal of any indicia of the disciplined attorney
as lawyer, counsellor at law, legal assistant, legal clerk, or similar title.
(c) Notification to Clients. Within 21 days after the entry of the final order of
discipline, the disciplined attorney shall notify *** all clients whom the disciplined
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attorney represented on the date of the imposition of discipline, of the following:
(1) the action taken by the supreme court;
(2) that the disciplined attorney may not continue to represent them during the
period of discipline;
(3) that they have the right to retain another attorney; and
(4) that their files, documents, and other records are available to them,
designating the place where they are available.” Ill. S. Ct. R. 764 (eff. Aug. 27,
1990).
¶ 20 The Rules require an attorney whose license to practice law has been suspended to notify
his or her clients of the suspension, and of their right to retain another attorney, within 21
days after the entry of the final order of discipline. In August of 2008, the time of Gilbert’s
trial, his trial attorney faced only the ARDC hearing board’s recommendation of suspension.
That recommendation was not affirmed by the review board until December 12, 2008, and
both briefs agree that the supreme court finalized the suspension on March 16, 2009, well
after Gilbert’s trial. Counsel’s duty to notify arose on March 16, 2009, or within 21 days
thereafter. Since trial counsel had no duty to notify at the time of trial, he did not provide
ineffective assistance when he failed to notify Gilbert of his pending suspension.
¶ 21 In support of his position that trial counsel was unqualified to represent him, Gilbert cites
In re Denzel W., 237 Ill. 2d 285 (2010), In re Moore, 63 Ill. App. 3d 899 (1978), and People
v. Cox, 12 Ill. 2d 265 (1957). These cases, however, involve representation by law students
or non-attorneys. As discussed, Gilbert’s counsel was a licensed attorney at the time of
Gilbert’s trial since the supreme court did not finalize the order of suspension until March
16, 2009. Gilbert has not cited to any cases that hold a licensed attorney facing suspension
provides representation that is per se ineffective. Instead, see People v. Perry, 183 Ill. App.
3d 534 (1989), People v. Long, 208 Ill. App. 3d 627 (1990), and People v. Bernardo, 171 Ill.
App. 3d 652 (1988), in which this court held that the mere fact an attorney faces pending
disciplinary proceedings does not render him or her incompetent to defend a person charged
with a crime. We find that an attorney who merely faces possible suspension of his license
pursuant to a recommendation by the ARDC remains a licensed attorney and is qualified to
represent clients.
¶ 22 Gilbert also argues that he never made a knowing waiver of his sixth amendment right
to counsel where his trial attorney never informed him of his pending suspension and the fact
that he faced another ARDC complaint during Gilbert’s trial. As support, he cites People v.
Williams, 226 Ill. App. 3d 188 (1992). However, in determining whether counsel in Williams
performed deficiently, the court reiterated the holdings in Perry, Long, and Bernardo that
attorneys are permitted to practice law until they are actually suspended or disbarred, and no
per se rule exists allowing criminal defendants a new trial merely because their attorneys face
suspension or disbarment. Williams, 226 Ill. App. 3d at 193-94. Instead, claims of ineffective
assistance of counsel facing suspension are reviewed under the Strickland standard. Id. at
194.
¶ 23 Gilbert also contends that his trial counsel provided ineffective assistance because he
suffered from dementia at the time of his trial. Gilbert argues that the testimony and findings
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of the hearing board show that his counsel suffered from “significant mental health
problems” during his representation. As support he refers to psychological evaluations
conducted by Dr. David Hartman and Dr. Stafford Henry from September 2006 to January
2007, which were contained in the board’s findings. We note again that the hearing board’s
findings and recommendation are not part of the record on appeal. Furthermore, the doctors
conducted their evaluations almost two years before Gilbert’s trial. There is no evidence in
the record that Gilbert’s counsel suffered from dementia at the time of his trial in August
2008. The trial court even conducted a posttrial hearing on Gilbert’s motion for a new trial
in which his trial counsel testified. The transcript of that proceeding reveals no evidence that
counsel suffered from dementia or that those present suspected he was so mentally deficient
that his representation of Gilbert was ineffective. Since Gilbert’s argument here depends on
facts not contained in the record, it is not sustainable on appeal. Palanti, 303 Ill. App. 3d at
66.1
¶ 24 Gilbert next contends that his trial counsel committed numerous errors at trial rendering
his representation of Gilbert deficient. Specifically, Gilbert alleges the following errors: (1)
counsel promised the jury a defense of compulsion but did not support this statement with
evidence at trial; (2) counsel presented the jury with a legally unsound defense; (3) counsel
filed a pretrial affirmative alibi defense when Gilbert was arrested at the scene of the offense;
and (4) counsel failed to file a Montgomery motion. “Matters of trial strategy are generally
immune from claims of ineffective assistance of counsel.” People v. Smith, 195 Ill. 2d 179,
188 (2000). These decisions include which witnesses to call at trial and what evidence to
present to the jury. People v. Munson, 206 Ill. 2d 104, 139-40 (2002). Even defense counsel’s
failure to provide testimony promised during opening statements is not per se ineffective
assistance. People v. Manning, 334 Ill. App. 3d 882, 892 (2002). Defendant must overcome
the strong presumption that the challenged action or inaction was the product of sound trial
strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999).
¶ 25 During opening statements, Gilbert’s counsel argued that Gilbert did not want to
participate in the robbery but codefendant Cleon Jones showed a gun and forced Gilbert to
accompany him to the Auto Zone. However, no other evidence of coercion was presented at
trial. Gilbert contends on appeal that had his trial counsel investigated the matter, he would
have found witness CeCe Connor who would have testified that he saw Jones threaten
Gilbert at gunpoint. However, it appears that counsel’s strategy was to argue that Jones
somehow forced Gilbert to participate but that none of the codefendants carried guns. Central
to counsel’s defense (as was the strategy of codefendant Woods’ counsel) was to argue that
although Gilbert acknowledged participating in a simple robbery, it would not be fair to
convict him of felony murder because he and his codefendants did not have guns and the
1
Gilbert also argues that his trial counsel’s ineffective representation was presumptively
prejudicial, citing United States v. Cronic, 466 U.S. 648, 656 (1984). However, since we found that
trial counsel was not an unlicensed attorney at the time of Gilbert’s trial, and did not suffer from
dementia, we need not address the argument at this time. See People v. Irvine, 379 Ill. App. 3d 116,
129-30 (2008) (both prongs of the Strickland analysis must be satisfied to show ineffective
assistance of counsel).
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police reacted with unforseen force which killed codefendant Jones (jury nullification).
¶ 26 The evidence against Gilbert was overwhelming. Counsel cross-examined Pizano and
Laluz, whose testimony contradicted that of other State witnesses on whether the officers
shouted “police” or “drop the gun” before firing at Jones. He presented Officers McNamara
and Scott as defense witnesses, and they testified that they did not see whether Jones had
anything in his hand before police shot at him. Pizano and Laluz also stated that they did not
recall seeing Jones with a gun. Counsel argued that Jones was not armed and focused on the
fact that police fired an excessive 39 rounds at Jones. It would be unfair, he argued, to hold
Gilbert responsible for the death of Jones because the shooting resulted from unforeseeable
police misconduct which broke the causal connection between the armed robbery and Jones’s
death.
¶ 27 Given the law of felony murder, this appeal to the jury’s sense of justice had no legal
basis as a defense. However, courts have determined that counsel’s reliance on such
arguments is not ineffective assistance per se. See People v. Nieves, 192 Ill. 2d 487, 499
(2000) (argument that the “sudden and intense passion” element of second degree murder
“could be viewed in terms of sympathy and the desire to help a friend” who wanted to die
was a “dubious proposition at best”); People v. Ganus, 148 Ill. 2d 466, 473-74 (1992)
(compulsion defense to murder not a legal defense); People v. Bloomingburg, 346 Ill. App.
3d 308, 316 (2004) (counsel presented theory of self-defense, which was unavailable because
the defendant was the aggressor and did not face imminent danger of great bodily harm or
death). In each case, the court found that counsel’s performance was not deficient given the
overwhelming evidence against the defendant and the defendant’s insistence on pleading not
guilty despite the evidence.
¶ 28 Gilbert elected to go to trial on the armed robbery and felony murder charges, and the
evidence against him was overwhelming. His counsel was not “confused as to whether
simple robbery could be a predicate felony for felony murder,” as Gilbert argues on appeal.
Rather, trial counsel’s strategy, in part, was to argue jury nullification by appealing to the
jurors’ sympathy and sense of fairness. “[I]t is not necessarily per se ineffective assistance
for a defense attorney to advance a nonlegal defense, such as a plea for jury nullification ***
when the circumstances of the case render other defensive strategies unavailable.” People
v. Morris, 209 Ill. 2d 137, 183 (2004), overruled on other grounds by People v. Pitman, 211
Ill. 2d 502 (2004). Although counsel may not argue that jurors should ignore the law in
coming to a decision, he may present a defense evoking the “empathy, compassion or
understanding and sympathy” of the jurors. Ganus, 148 Ill. 2d at 473-74. As the court in
Ganus stated, “[j]ury nullification is always a possibility” when counsel attempts such
arguments. Id. at 473. Under the circumstances here, we find that trial counsel employed
reasonable trial strategy in arguing jury nullification, rather than compulsion or coercion, in
Gilbert’s defense.
¶ 29 Gilbert also argues that his counsel was deficient because he filed a pretrial affirmative
alibi defense when Gilbert was arrested at the scene of the offense. He contends the defense
“makes no sense” because it is based on the fact that the defendant was at a different location
at the time the crime occurred. However, as the State points out, there is no evidence that
counsel presented the alibi defense to the jury during the trial. As such, Gilbert cannot show
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how this action prejudiced him.
¶ 30 Gilbert further contends that his trial counsel’s performance was deficient because he
“failed to file a Montgomery motion before trial, so Gilbert did not know if any of his prior
convictions could be used to impeach him.” Therefore, Gilbert could not make a knowing
waiver of his right to testify, and his failure to testify prejudiced him.
¶ 31 In People v. Montgomery, 47 Ill. 2d 510, 516-17 (1971), our supreme court determined
that evidence of a witness’s prior conviction is admissible to attack his or her credibility
when (1) the prior crime was punishable by death or imprisonment in excess of one year, or
involved dishonesty or false statements; (2) less than 10 years have passed since the date of
conviction of the prior crime or the witness’s release from confinement, whichever is later;
and (3) the probative value of admitting the prior conviction outweighs the danger of unfair
prejudice. Gilbert does not state in his briefs the dates of his prior convictions, or his release
from confinement, nor does the record contain this evidence. Without it, we cannot
determine whether the trial court would have granted the motion and, therefore, whether trial
counsel was deficient in failing to file the motion. See People v. Gandy, 227 Ill. App. 3d 112,
127 (1992) (if 10 years or more have elapsed since the prior conviction or release from
confinement, “the conviction has lost its relevance to the issue of credibility”). Furthermore,
no presumption of prejudice exists where a defendant fails to testify based on a mistaken
belief that his prior conviction could be used to impeach him. People v. Rogers, 147 Ill. App.
3d 1, 4 (1986). Gilbert has not shown that trial counsel’s performance was deficient in failing
to file a Montgomery motion.
¶ 32 Even if Gilbert’s trial counsel performed deficiently, Gilbert must also show that he was
prejudiced by the deficient performance in order to prove ineffective assistance of counsel.
The evidence against Gilbert was overwhelming. Witnesses observed him enter the store and
while the crime was in progress, police surrounded the building. Police apprehended Gilbert
and codefendant Woods inside the store. Police had also observed Woods drop a bag
containing cash. Even if trial counsel’s performance was deficient in the matters put forth by
Gilbert, it is unlikely he could show a reasonable probability that the outcome would have
been different absent the deficient performance.
¶ 33 Gilbert’s final contention is that this court should vacate his convictions for armed
robbery since they were the predicate felonies on which his first degree murder conviction
was based. The State agrees with Gilbert’s contention. Therefore, we vacate his convictions
for armed robbery.
¶ 34 For the foregoing reasons, we vacate Gilbert’s convictions for armed robbery and affirm
his conviction for felony murder.
¶ 35 Affirmed in part and vacated in part.
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