People v. Jocko

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People v. Jocko

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-0870 Rel

Case Date: 03/30/2009

Preview:FIRST DIVISION MARCH 30, 2009

No. 1-07-0870

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT JOCKO, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County. No. 05 CR 40854 Honorable Carol A. Kipperman, Judge Presiding.

PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the court: Defendant Robert Jocko was charged with burglary. Specifically, he was accused of removing power tools, worth approximately $300, from a detached, residential garage in Berwyn, Illinois, on July 6, 2005. A neighbor and eyewitness to the burglary failed to identify defendant at trial, although he had previously identified defendant at a showup. The getaway van was registered not to defendant, but to someone else who happened to live in defendant's apartment building. The driver of the van was apprehended close to the scene, but the passenger escaped. Approximately an hour after the burglary, a plainclothes detective went to the address in Cicero, Illinois, where the van was registered, and approached defendant when defendant happened to emerge from an apartment in the same building. Defendant was startled and fled; and the detective used a nearby broomstick to subdue him. Immediately after defendant had been subdued with a broomstick and handcuffed, the showup identifications occurred. An officer who

No. 1-07-0870 had witnessed part of the burglary and an officer who had witnessed the flight immediately after the burglary gave conflicting, initial descriptions of the passenger in the getaway van; but both officers identified defendant as the passenger at the showup. The State introduced no fingerprint evidence from the burglarized garage, from the getaway van or from the tools carried by the burglars from the garage and later recovered by the police from the van. A co-owner of the garage testified that she may have left the garage door open. After a jury trial in March 2007, defendant Robert Jocko was convicted of burglary. On April 6, 2007, the circuit court of Cook County sentenced him to 12 years in prison. The cooffender, Joseph Ball, had been sentenced by the same trial judge to four years in prison. On appeal, defendant claims: (1) that the trial court erred by failing to ask potential jurors whether they understood and accepted the principle that the defendant's failure to testify cannot be held against him; (2) that the trial court refused to rule on defendant's motion in limine concerning the admissibility of his prior convictions for impeachment purposes and thereby prevented defendant from making an informed decision about whether to testify; and (3) that the trial court failed to address defendant's pro se allegations that he was deprived of effective assistance of counsel. For the following reasons, we remand to permit the trial court to inquire into defendants' claims of ineffective assistance of counsel. BACKGROUND 1. Pretrial Motions and Documents Prior to trial, motions were filed both by defense counsel and by defendant acting pro se. On November 17, 2005, an assistant public defender filed a motion to quash defendant's arrest

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No. 1-07-0870 and suppress evidence. After a hearing on February 16, 2006 at which three police officers testified, the trial court denied the motion to quash. Defendant's pro se pretrial motion was filed April 25, 2006, and was entitled "motion to dismiss for violation of due process." The motion made a number of allegations. The allegations relating to counsel are quoted below: "2.Actual and substantial prejudice to the defendant has results from (Counsel was not present during ARRAIGNMENT or BAIL HEARING ***. *** 6.That when Cook County Sheriff brought me from one lock up area to other. 7. That I asked Sheriff acouple [sic] of times to talk to a Public Defender while in the second lockup area ***. 8. That while waiting to see Judge for ARRAIGNMENT & BAIL for 15 to 20 min. in lock up area 2, asked to talk to the Public DEFENDER and was told `YES' wait *** 9. That as I was brought ### out of lock up area to hall way door to court room for awhile, STILL TALK TO NO COUNSEL. 10. That we went in front of Judge for ARRAIGNMENT & BAIL HEARING ***. 11. That Judge did not ask where my counsel was then asked what charges are. Denial of assistance of counsel altogether,

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No. 1-07-0870 either actually or constrictly [sic] is presumable [sic] prejudicial. *** 12. That the State Attorney read charges of Burglary and resisting errest, [sic] Denial of Assistance of Counsel altogether, either actually or ###### constrictly, is presumable prejudicial. *** 13. That the Bail was set at 100,000." There is no dispute that the trial judge knew of defendant's motion. The half-sheet contains an entry for April 25, 2006, that states: "Jail Mail Request For Motion To Dismiss For Violation of Due Process." In addition, at a proceeding on May 2, 2006, the trial court observed that the defendant's pro se motion was "recorded, and it was put on the call for today's date." However, on May 2, 2006, defendant was not present; and the matter was rescheduled for May 25, 2006. On May 25, 2006, there was no discussion of defendant's motion. The May 25 transcript indicates that the case was called; that Assistant Public Defender James J. Mularski announced that he was appearing on behalf of the defendant; that the trial court asked "[w]hat date do you want?"; that the assistant defender replied "6-27 by agreement, please"; that the court agreed; and that was all that transpired on May 25. Defendant claims on appeal that his motion was not discussed on any subsequent day; and the State does not dispute this fact. On September 6, 2006, Assistant Public Defender Rick Fadell took over as defendant's counsel. On that date, Mr. Fadell indicated to the trial court that his client had provided "some information on potential witnesses." After Assistant Public Defender Fadell's appointment, defendant sent an undated letter to

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No. 1-07-0870 the clerk's office. The envelope, which is also part of the appellate record, was postmarked "Chicago IL 606, 13 DEC 2006 PM 8 T" and is stamped "FILED 2006 DEC 14 AM 11:13" by the clerk of the circuit court of the Fourth District. In pen on the back of the letter, someone wrote "12-20-06 opened." While the half-sheet contained an entry for defendant's "Jail Mail" motion filed on April 25, it does not contain an entry for this letter. In its appellate brief, the State admits that "[t]here is no indication in the record that the complaints raised in defendant's letter were addressed by the court." The letter claimed that defendant's new public defender, Rick Fadell, had failed to enter into evidence "certain affidavits and subpoenas" and a 911 conversation. The letter stated in full: "Dear circuit Clerk, I am writing in regards of my lawyer not raissing [sic] certen [sic] issues in my case that is material and relevant evidence that pertain to my case. I would like for this letter to be placed in my master filed as a legal document in case I have to argue on an appeal, can you please stamp this with a legal notification. I would like a copy of

this legal document sent to me as soon as possible [,] thank you! I have requested certain affidavits and subpoenas to to be entered and my lawyer has advised me that it would notbe [sic] to my best interests, and I have also requested for the 911 Motor Rola

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No. 1-07-0870 converstion to be entered as evidence in my behalve [sic] and his statement responce [sic] was that they do not hold them after thirty days. My lawyers [sic] name was Tim Muarlarski for several months, then he with-drew [sic] from my case [.] now I have Rick Fiedell [who] has not been fighting my case to the best of interest. Sincerely Mr. Robert Jocko " There is a third pretrial document in the appellate record, in which defendant alleges lack of assistance of counsel. However, on appeal, defendant does not argue that this document is part of the basis of his claim that the trial court failed to inquire. The appellate record contains a typed document entitled "Affidavit" that is dated "9-6-06" in pen and signed by defendant. In the affidavit, defendant stated that he submitted it in support of a motion to suppress; and he made several allegations about the circumstances surrounding his arrest. The only allegation concerning legal representation was that: "[p]olice held me in custody and brought me before an alleged victim with out [sic] affording me the right to have a lawyer present and depriving me of other legal rights." Assistant Public Defender Mularski had filed a motion to quash arrest and suppress evidence that was denied after a hearing on February 16, 2006. This affidavit is dated several months after the motion had already been heard and denied. 2. Voir Dire Jury selection for defendant's trial began on March 6, 2007. During voir dire, the trial

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No. 1-07-0870 court asked certain questions of prospective jurors as a group, and then posed certain questions individually to prospective jurors. The group questions included questions about whether they understood and accepted: (1) that a defendant is presumed innocent; (2) that he is not required to offer any evidence in his own behalf; and (3) that he must be proved guilty beyond a reasonable doubt. However, neither the group nor individual questions asked whether the prospective jurors understood and accepted that a defendant's failure to testify in his own behalf cannot be held against him. Concerning the presumption of innocence, the trial court asked: "THE COURT: Now I'm going to ask certain questions to you as a group. Do you all accept that is [a] person accused of a crime is presumed to be innocent of the charges against them? Do you all accept that presumption of innocence? (All prospective jurors indicating.) THE COURT: And do you understand that the presumption of innocence stays with the defendant throughout the trial and is not overcome unless from all of the evidence you believe the State has proved his guilt beyond a reasonable doubt. Do you all agree with that and accept that? (All prospective jurors indicating.)" Concerning the State's burden of proof, the trial court asked: "THE COURT: Do you understand the State has the burden

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No. 1-07-0870 of proving the defendant's guilt beyond a reasonable doubt? Do you all understand that? (All prospective jurors indicating.)" Concerning the lack of any need for the defendant to offer evidence, the trial court asked: "THE COURT: And do you all understand the defendant does not have to present any evidence on his own behalf and prove his innocence. Do you all understand and accept that?" The trial court asked a couple of more questions before the transcript again stated: "(All prospective jurors indicating.)" Prior to asking these questions, the trial court had addressed the prospective jurors as a group to explain some basic principles of the law. As part of this address, the trial court informed the prospective jurors: (1) that a defendant is presumed innocent; (2) that he is not required to offer any evidence in his own behalf; and (3) that he must be proved guilty beyond a reasonable doubt. However, the trial court did not state that a defendant's failure to testify in his own behalf cannot be held against him. The trial court stated, in pertinent part: "Under the law, a defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict. And it is not overcome unless from all of the evidence in the case you're convinced beyond a reasonable doubt the defendant is guilty.

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No. 1-07-0870 The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the case. The defendant is not required to prove his innocence nor is he required to present any evidence on his own behalf. He may rely on the presumption of innocence."

3. Trial After jury selection, defendant's counsel filed two motions in limine. The first motion sought to bar the State from introducing evidence of defendant's prior convictions. The trial court ruled: "At this present time, I would grant the motion with regard to the [State's] case in chief and reserve ruling on prior convictions for impeachment [if the defendant testifies]." The second motion sought to bar the State from introducing evidence of the struggle that ensued when police officers tried to arrest defendant. The trial court ruled: "And this is part of the chain of events and the Court would find first, that it goes to a consciousness of guilt and secondly, it is just part of the full occurrence. And therefore, that motion would be denied." After jury selection and motions on March 6, 2007, the trial commenced on March 7, 2007. At trial, six witnesses testified, all called by the State. The first witness, Luis Andrade, was an eyewitness to the burglary but he could not identify defendant in court, even though he had identified defendant at a showup identification on the day of the burglary. The next two witnesses, Carmen Cruz Santiago and her husband, Hiram Rivera, were the burglary victims; and Santiago testified that she may have left the garage door open. The last three witnesses were

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No. 1-07-0870 police officers who participated in the arrest of defendant and Joseph Ball, a co-offender. The State did not introduce any fingerprint evidence from the garage, the getaway van or the tools that were carried by the burglars from the garage and later recovered by the police from the van. The State also conceded that the getaway van was not registered to defendant. Luis Andrade, the neighbor who witnessed the burglary, testified as follows. On July 6, 2005, at approximately 4:30 p.m., he was driving his vehicle in the alley behind his home and he was about to pull into his garage, when he observed a blue van parked in the alley. Detached residential garages line both sides of the alley, including a garage for Andrade's home and a garage for the home at 3511 Ridge Avenue, near where the blue van was parked. Andrade observed two white1 males wearing tee shirts and shorts, one with short hair and one with long hair. At trial, Andrade was not able to identify defendant as one of these two men. The prosecutor asked the following questions and Andrade gave the following answers: "ASSISTANT STATE'S ATTORNEY: At this time I ask you to look around the courtroom. Do you see either of these men in court today? ANDRADE: No. ASSISTANT STATE'S ATTORNEY: You don't recognize anyone in court as being one of these two? ANDRADE: No."

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The presentence report and the arrest record indicate that defendant is Native American,

of medium complexion. 10

No. 1-07-0870 Andrade testified that when he first observed the two men, they were trying to put gas in the van, with a gas can they had obtained from the garage at 3511 Ridgeland. The overhead garage door of that garage was open, from the time that Andrade arrived at the scene. After parking his own vehicle, Andrade closed his garage, entered his home and went into the kitchen. Through his kitchen window, Andrade observed the two men enter and exit the garage three or four times, carrying tools from the garage and into the van. Shortly after Andrade called 911 on his cellular telephone, the two men entered the van, and the van drove away. Andrade went into the alley, and a burgundy van drove down the alley and stopped next to him. Andrade testified that the driver of the burgundy van was a police officer, that he informed the officer what he had just observed, and that the officer started following the blue van. After the officer drove off, Andrade went to the house of the neighbors whose garage was just burglarized. Carmen Cruz Santiago answered the door; he informed her what happened; and then he returned home. At approximately 5:20 p.m., a police squad vehicle arrived at his home, and a Berwyn police officer drove him to 3812 Lombard, in Berwyn. Andrade identified a man at that location as the man with short hair whom he had observed in the alley. The police then drove Andrade to 35th Street and 56th Street in Cicero, at approximately 5:45 p.m. At this second location, Andrade identified a male as the man with long hair whom he had also observed in the alley. Andrade testified that the second man was dressed in different clothes than when Andrade last saw him. On cross-examination, Andrade testified that his entire description of the two men to the 911 dispatcher was that they were white men, wearing jeans shorts and tee shirts; that one had

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No. 1-07-0870 short hair and one had long hair; and that one of the tee shirts was white. Andrade had never seen either man before. The location where Andrade identified the second man, 35th Street and 56th Court in Cicero, is approximately two miles from Andrade's home. The police officers showed Andrade only one man to identify, and that individual was not wearing jeans shorts. Carmen Cruz Santiago testified that she lived at 3511 Ridgeland Avenue. At approximately 4:15 p.m. on July 6, 2005, she drove home and parked her vehicle in her garage. The overhead door of the garage opens into an alley. After she backed her vehicle into her garage, her vehicle was facing toward the alley and she observed a blue van drive by, with two men inside, one in the driver's seat and one in the front passenger seat. The man in the front passenger seat had light skin; and both men "were looking into the garage. After Santiago exited her vehicle, she exited the garage by a side door. She did not recall whether she left the overhead door open, or whether she locked the side door. She testified that the garage contained power tools, as well as regular tools. Approximately 20 minutes later, her neighbor Luis Andrade knocked on her back door. She then went to her garage and noticed that some power tools were missing, and called her husband. Officer Gamino from the Berwyn police department came to her house, and she reported the missing tools. After her husband arrived home, the two of them made a list of the missing tools and brought it to the Berwyn police station at approximately 6:30 p.m. At the station, the police asked them to go to the parking lot behind the station, where Santiago observed the blue van, as well as tools from her garage lying on the ground. Santiago and her husband identified some of the tools, as well as a tool box, as being those taken from their garage; and the police photographed their tools. At trial, Santiago identified photographs of

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No. 1-07-0870 their tools and the blue van. Santiago testified that the blue van in the photograph was the same blue van that she had observed passing by her house and the same van that was parked behind the Berwyn police station. On direct examination, Santiago testified that she did not recognize the defendant; and on cross-examination, she testified that she did not recall seeing him by her garage and that she could not identify the two men in the van. On cross, Santiago also testified that she did not observe any signs of forced entry to her garage. Hiram Rivera, Santiago's husband, testified that he identified his tools at the Berwyn police station. Rivera also testified that he kept gas cans filled with gas in the garage and that several were missing. Rivera identified a photograph with two groups of tools: one group consisted of his tools; and the other group did not belong to him. Officer Robert Trofimchuk testified that he was an auxiliary police officer with the Berwyn police department and that on July 6, 2005, he was assigned to the park district detail. After hearing a radio transmission, he drove his maroon van into an alley, and observed a blue van parked in the alley and two men walking back and forth between an open garage and the van. The two were white men, with brown hair, approximately 190 pounds and 5 feet 11 inches, and dressed in tee shirts and shorts. One had a ponytail. Officer Trofimchuk observed the two men walk back and forth between the garage and the van three times, and then enter the van, and drive away. Officer Trofimchuk testified that a person in the alley "flagged" him down and stated "officer, that is them." Officer Trofimchuk then followed the blue van. When the blue van stopped because of traffic, Officer Trofimchuk pulled behind it, activated the police lights on his

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No. 1-07-0870 vehicle and instructed the driver to place his van in park. Officer Trofimchuk testified that the driver smiled and accelerated through traffic, and that the van was then pursued by Officer Gamino who was in a police squad vehicle. Officer Trofimchuk followed in his maroon van. Officer Trofimchuk testified that after the blue van was pulled over, the driver and passenger exited and ran. Officers Trofimchuk and Gamino pursued the driver, who they later learned was Joseph Ball, and took hin into custody. In response to a radio transmission, Officer Trofimchuk drove to 35th Street and 56th Court in Cicero, where he observed a man in custody. Officer Trofimchuk identified this man as the defendant, and as one of the men whom Officer Trofimchuk had previously observed entering and exiting the garage. Officer Trofimchuk testified that he subsequently observed a "showup" of the defendant to Andrade, at the same location. Officer Trofimchuk testified that defendant's appearance in court was different from his appearance on the day of the burglary, in that on the day of the burglary his hair was longer and he had a small patch of facial hair beneath his lower lip. Over defense objection, the trial court admitted defendant's arrest photograph into evidence. In the photograph, defendant's eyes are nearly closed and appear as slits. On cross-examination, Officer Trofimchuk testified that when he observed the two men walking back and forth between the garage and the van, he could not discern whether they were carrying anything. He also testified that the driver had short hair. On redirect examination, when asked if he saw the faces of the two men as they walked back and forth between the garage and the van, he answered: "More of their profile." Officer Gamino testified that he received a dispatch about a possible burglary After

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No. 1-07-0870 arriving at Pershing and Kyler, Officer Gamino observed Officer Trofimchuk try to make a stop of the blue van, which ignored his commands and left. Officer Gamino pursued the van approximately two blocks, when the van stopped and two occupants fled. Officer Gamino testified that he and Officer Trofimchuk pursued and apprehended one subject, who was later identified as Joseph Ball. After Andrade identified Ball, Officer Gamino transported Andrade to an address in Cicero where another suspect was in custody. Officer Gamino testified that he was able to observe the suspect as he fled from the van, that he identified the person in custody as that suspect; and that this individual was also the defendant in the courtroom. Officer Gamino also testified that Andrade made a positive identification of defendant at the location in Cicero. Officer Gamino testified that defendant appeared differently in court than he did on the day of the burglary. Officer Gamino testified that at trial defendant had short hair and a moustache, whereas on the day of the burglary he had long hair and no mustache. Officer Gamino testified that he later reviewed his police report and realized that he had made a "typographical" error. He stated: "In the description of the subjects radioed in and written in the report I transposed the driver and passenger. Describing the passenger, I identified him as the driver and the passenger I identified him as the driver." On cross-examination, Officer Gamino admitted that his report described the driver as having long hair and the passenger, who had escaped from the scene, as having short hair. He testified that his report was wrong and that he never submitted a supplementary report to correct

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No. 1-07-0870 the mistake. Officer Gamino also testified that while he was transporting Luis Andrade to Cicero, he told the witness that "we had a possible suspect in custody and that we needed him to make an identification." Officer Gamino testified that, when he and Andrade arrived at the location in Cicero, defendant, who was the alleged passenger, was in handcuffs and had long hair. Officer Gamino testified that Andrade remarked that Andrade thought defendant was "wearing different clothes" from the burglars whom he had observed earlier. Officer Gamino also testified that the individuals who had run from the van were both wearing tee shirts and jeans shorts. Detective Michael Ochsner of the Berwyn police department testified that on July 6, 2005, he was keeping surveillance on a multiunit apartment building, which was the address to which the van was registered, when he observed defendant exit one of the units. At the time, Detective Ochsner was in plain clothes and sitting in an unmarked vehicle. Defendant appeared differently on the day of the burglary than he did at trial. On July 6, defendant had long hair and some facial hair below his lip; while at trial, defendant had a moustache. Detective Ochsner testified that, approximately an hour after the burglary, he observed defendant exit a unit, walk down stairs, retrieve a bicycle that was leaning against the building, walk towards the parkway and mount the bicycle. Detective Ochsner then approached and identified himself as a police officer. Defendant appeared startled and started to flee. Detective Oschner grabbed the bicycle. Defendant jumped off the bike, pushed the detective backwards and ran in a clockwise loop back toward the apartment building. The detective ran after him and radioed for backup. Eventually, the detective used a nearby broomstick to subdue defendant; and

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No. 1-07-0870 the detective jumped on top of defendant and kept him subdued, until other officers arrived. On cross-examination, Detective Oschner testified that defendant's name was not on the van's registration. After the jurors began deliberating, they sent a note that stated: "Need part of transcript referring to whether Mr. Jocko came out of the specific apartment to which the van was registered, or did he come out of that building generally? Please specify number of units in the building." The trial court informed them to rely on their own memory and that transcripts were not available. Subsequently, the jury returned a verdict of guilty. On April 6, 2007, Assistant Public Defender Fadell filed a posttrial motion for a new trial, which the trial court denied and proceeded to sentencing. Although all the witnesses had stated that the burglars had been white men, the presentence report noted that defendant was Native American. The trial court stated that the minimum available sentence was 6 years, and then sentenced defendant to 12 years. The assistant State's Attorney observed that the trial judge had sentenced Joseph Ball, the co-offender who had pled guilty, to 4 years in prison. Defendant moved to reconsider sentence, which the trial court denied. Defense counsel then filed a notice of appeal. ANALYSIS Defendant claims (1) that the trial court erred by failing to ask potential jurors whether they understood and accepted the principle that the defendant's failure to testify cannot be held

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No. 1-07-0870 against him; (2) that the trial court refused to rule on defendant's motion in limine concerning the admissibility of his prior convictions for impeachment purposes and thereby prevented defendant from making an informed decision about whether to testify; and (3) that the trial court failed to address defendant's pro se allegations that he was deprived of effective assistance of counsel. 1. Questioning the Venire First, defendant claims that the trial court failed to question the potential jurors about whether they understood and accepted the principle that the defendant's failure to testify could not be held against him. Defendant claims that this failure violated both (1) amended Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); and (2) the Illinois Supreme Court's holding in People v. Zehr, 103 Ill. 2d 472 (1984). Defendant acknowledges that his trial occurred before the effective date of the amendment to Rule 431(b), but he argues that this court should apply the amendment retroactively

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