People v. Stokes

FOURTH DIVISION
December 11, 1997



No. 1-95-3863

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
NORMAN STOKES, ) THE HONORABLE
) THEMIS KARNEZIS,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE SOUTH delivered the opinion of the court:

Norman Stokes and Charles Lawrence were charged by
indictment with attempted first degree murder, armed robbery,
home invasion, aggravated battery, and armed violence. The
State nolle-prossed the aggravated battery and armed violence
counts. Defendants were found guilty on the charges of attempted
first degree murder, armed robbery and home invasion. The court
sentenced Stokes and Lawrence to 15 years imprisonment to be
served concurrently on each count. Stokes appeals from this
judgment.
On October 5, 1994, defendant's case was called for jury
trial. Neither defendant nor his attorney were present and the
assistant State's Attorney informed the court that defendant was
incarcerated in the 7th District from an incident that occurred
the night before, but he was I-bonded over and directed to be in
court. The judge passed the case. When the case was recalled,
defendant's attorney represented that defendant was in route,
that he had been released from the 7th District at 9:30 a.m., and
that his mother was bringing him to court as soon as possible.
The judge indicated that he would wait for defendant, and the
case was passed again.
At approximately 11:15 a.m., the court swore in the voir
dire panel without any defense attorneys or defendant being
present. A recess was taken after the court informed the panel
that "we are waiting for everybody to arrive. I expect them any
moment. In fact they are a little late now. As soon as
everybody has arrived we will begin promptly."
During the recess, the court stated on the record that
counsel for Lawrence and defendant Lawrence arrived at 11:44 a.m.
At 11:55 a.m., the court discovered that Stokes' attorney had
left the building. The court fined him $1000 in direct contempt
for delaying the trial approximately 45 minutes.
When the trial resumed, both defense attorneys were present,
but Stokes had not arrived. The court informed the prospective
jurors:
"Regarding Mr. Stokes he is in route is my
understanding. I wanted to get started. He will
be with us momentarily but I will get into that
also in a moment."

The court proceeded to conduct 22 voir dire examinations outside
of defendant's presence. Defense counsel exercised five
preemptory challenges before defendant arrived. The State
challenged six prospective jurors, and two jurors were excused
for cause by the court. The judge then stated on the record that
defendant had arrived, but he did not state a time. Defense
counsel never objected to the court proceeding with trial in
defendant's absence.
On the evening of February 10, 1994, Derrick Williams, who
had previously been convicted of burglary, was in his home at
2417 West 70th Street. Williams lived in the west apartment on
the second floor with his girlfriend Shariba Riley, and his
friends Carl Henderson and Fletch. At 10 p.m., Williams,
Shariba, Carl, Tyrone, Fletch and a friend named Juice were in
the apartment. Williams, Shariba and Tyrone were in the bedroom
and Carl, Fletch and Juice were in the living room. Everyone was
drinking beer, and Williams was smoking marijuana. As Williams
sat in the bedroom, he heard a loud "boom" and someone say,
"stickup." When Williams heard "stickup," he tried to hide his
money in a couch in the bedroom. He then looked out the bedroom
door and saw a tall man wearing a beige coat holding a silver
pistol and a short man holding a sawed-off shotgun enter the
apartment. These men entered the bedroom which was illuminated
with an electric light and candles. The man with the shotgun
left the bedroom, and the other man waved a gun and told everyone
to get on the floor. Williams did not get on the floor but went
toward the man with the gun. The man grabbed Williams causing
him to fall over a table and to the floor. This man grabbed
Williams by the neck and fired twice. One bullet struck Williams
in the head. He felt a sting, passed out and then revived. He
never completely lost consciousness. After the shots, the men
ran out the back door.
Williams left the apartment through the front door and went
to the corner of 70th and Western Avenue. The police and an
ambulance came to the scene, and Williams was taken to the
hospital where the bullet was surgically removed from his head.
After the incident, Williams discovered he had $100 missing from
his pocket. Williams did not know who took his money because he
passed out for a second after he was shot. He could only say
that it was the tall man who shot him. The short man had Juice
and Fletcher on the living room floor and placed Henderson in the
bathroom with the door shut.
At a lineup conducted a few days later, Williams could not
positively identify either defendant. Shariba identified the
short man with the sawed-off shotgun as Charles Lawrence, while
Henderson identified both Lawrence and Stokes at the lineup.
Upon arriving at the scene, Officer Carson Earnest saw
defendants running next to the apartment building holding a
sawed-off shotgun and a revolver. Earnest and his partner,
Officer Jaritz, pursued defendants. Earnest noticed defendant
Stokes was bleeding from his left hand, and that his light pants
were stained in blood. After seeing defendants discard their
weapons, the officers left their squad car and chased them on
foot. The officers never lost sight of defendants during this
chase. Jaritz apprehended Stokes, and Lawrence was apprehended
by another officer. Defendant was admitted to the hospital with
a gunshot wound to his left thumb.
The police recovered a 410 sawed-off shotgun, a five-shot
.38 silver nickel type colored revolver and five rounds from the
revolver, two of which had been expended. During a custodial
search of Stokes, police recovered two rounds in his hip pocket
which were similar to the rounds found inside the weapon.
Williams, Shariba, Henderson, and Fletcher stated that they
lived in the apartment. However, Williams informed hospital
personnel that his address was on South Campbell, which was his
sister's address. He stated that he received mail both at his
sister's home and at the 70th Street apartment. Shariba
testified that she lived at the 70th Street apartment with
Williams, Henderson and Fletcher. On cross-examination, she
admitted that she lived with her grandmother on South Damen.
No one had a lease to the apartment, which lacked a stove, a
bed and gas. The bedroom contained a couch, television table,
lamp and two candles. According to Shariba, the couch let out to
a bed. There were two candles in the living room. While Shariba
stated that the kitchen housed a table, sink and refrigerator,
Henderson stated that there was no refrigerator. The
electricity, which was in the landlord's name, functioned only
after 6 p.m. by running off a socket in the hallway.
During the preliminary hearing, the court granted
defendants' motion in limine to bar any mention that defendants
were gang members or any indication of a gang war. The State
agreed, adding that they "weren't planning on introducing
anything." On Lawrence's cross-examination, the State asked him,
"[i]sn't it true that you told the detectives that they were your
gang friends?" Defense counsel immediately moved for a mistrial
following this question, and the judge overruled the objection.
Lawrence denied that he had gang friends and admitted to visiting
with friends prior to going to the apartment.
The State called Detective William Moser as a rebuttal
witness. Moser testified that Lawrence told him he was a member
of the Gangster Disciples street gang. He added that Lawrence
told him he went to the apartment to purchase cocaine.
At the close of its case, the State nolle-prossed all
charges except attempted first degree murder, armed robbery and
home invasion. The jury found defendants guilty on all three
charges. The court sentenced defendants to 15 concurrent years
imprisonment.

Defendant first contends that he was denied a fair trial due
to the numerous comments made by the judge in the presence of the
jury. The State maintains that defendant received a fair trial,
and that defendant has failed to prove that the remarks made by
the judge were prejudicial and that he was harmed by them.
People v. Westfield, 207 Ill. App. 3d 772, 586 N.E.2d 392 (1990).
Illinois courts have long upheld the right of an accused to
a fair and impartial trial by jury, free from influence or
intimidation by the trial court. People v. Mitchell, 228 Ill.
App. 3d 167, 169, 592 N.E.2d 175, 177 (1992). Every defendant,
regardless of the nature of the proof against him or her, is
entitled to a trial that is free from improper and prejudicial
comments on the part of the trial judge. People v. Heidorn, 114
Ill. App. 3d 933, 936, 449 N.E.2d 568, 572 (1983). The remarks
and conduct of the court in the presence of the jury
demonstrating that his attitude toward defense counsel was one of
impatience and hostility prevented defendant from receiving a
fair trial. People v. Kelley, 29 Ill. 2d 53, 193 N.E.2d 21
(1963). Comments by a court do not require reversal unless they
are prejudicial and harm defendant. The verdict will not be
disturbed unless the court's remarks constitute a material factor
in the conviction or unless prejudice to defendant appears to be
their probable result. People v. Walker, 228 Ill. App. 3d 76,
83, 592 N.E.2d 1, 6 (1992).
In the case at bar, the judge displayed bias against the
defense in numerous ways. During defense counsel's cross-
examination of Henderson, the court interrupted complaining that
the cross-examination was driving him "crazy." The judge also
stated that maybe he could do a better job than defense counsel.
The court made the following comment to defense counsel in the
presence of the jury:
"I don't know. I don't know. Thank [g]od.
I mean the jury has to try to figure this
all out somehow but we will get through
it one way or the other. We have allies
[sic], cleaners, and all sorts of stuff.
You know, I am wondering what the relevance
is of where these guys are. What difference
does it make?"

Later during defense's cross-examination, the judge exclaimed,
"[t]his is unbelievable, isn't it? Unbelievable. Go ahead. Pose
your questions." During defense counsel's cross-exmination of
Officer Earnest, the judge stated: "I don't know where we are
going. I am telling you something right now, ladies and
gentlemen, when and if this is not tied up, all this stuff you
can ignore." The court continued: "Kind of like some of the
other stuff you heard that was not tied up. That you can ignore,
too." The court asked defense counsel: "[y]ou are not going to
start crying are you Mr. Fay?" The judge also characterized
defense counsel's posing of questions as unartful.
Clearly, all of these remarks belittled defense counsel and
communicated to the jury the judge's opinion of defense counsel
and the case. While any one set of these judicial remarks would
not be enough to create prejudice and bias, the cumulative effect
of these remarks denied defendant the fair trial to which he is
entitled. Mitchell, 228 Ill. App. 3d at 169, 592 N.E.2d at 178;
People v. Albanese, 102 Ill. 2d 54, 82-83, 464 N.E.2d 206, 220
(1964). For this reason, we reverse this conviction and remand
the cause for a new trial.
Because of the conclusion we have reached, we address
defendant's remaining contentions only for the guidance of the
parties.
Defendant contends that he was denied a fair trial under the
state and federal constitutions because he was not present for
most of his voir dire. The State contends that defendant's
absence from a part of voir dire did not have an effect on the
impartiality of the jury selected.
Under the State Constitution, defendant's right to be
present at trial is not absolute. Rather, defendant is
guaranteed the right to be present at any stage of the criminal
proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure. People v. Starks,
287 Ill. App. 3d 1035, 679 N.E.2d 764 (1997); People v. Jones,
269 Ill. App. 3d 925, 647 N.E.2d 612 (1995). Under the State
Constitution, jury selection is a critical stage of trial, at
which defendant has the right to be present. People v. Bean, 137 Ill. 2d 65, 84, 560 N.E.2d 258 (1990).
In the instant case, defendant was not present during 22 out
of 31 individual voir dire sessions. Defendant had been
incarcerated on a separate charge the night before and was
released at 9:30 a.m. on the day of trial. The court was aware
of this fact and passed the case twice. However, at 11:15 a.m.
without defense counsel and defendants being present, the court
swore in a panel. Within the hour, the court proceeded to conduct
voir dire.
The court was aware that defendant was in route, and
defendant did arrive before jury selection was completed. The
State, contrary to its assertion, never proved that Stokes was
willfully absenting himself from trial, thus leading to a trial
in absentia. The court should have waited to proceed with jury
selection after the State had established that defendant was
willfully absent.
Defendant next asserts that he was not proven guilty of
attempted first degree murder, armed robbery and home invasion
beyond a reasonable doubt.
When presented with a challenge to the sufficiency of the
evidence, it is the reviewing court's function to carefully
examine the evidence, giving due consideration to the fact that
the court and jury saw and heard the witnesses. People v.
Bailey, 265 Ill. App. 3d 262, 271, 638 N.E.2d 192, 198 (1994).
It is not the function of a reviewing court to retry the
defendant, but rather, the determination of the credibility of
witnesses, the weight to be given their testimony and the
reasonable inferences to be drawn from the evidence are
responsibilities of the trier of fact. Bailey, 265 Ill. App. 3d
at 272, 638 N.E.2d at 198.
The offense of attempted murder requires the mental state of
specific intent to commit murder. People v. Jones, 81 Ill. 2d 1,
405 N.E.2d 343 (1979). The necessary specific intent to kill for
attempted murder may be shown by surrounding circumstances,
including the character of the assault and the use of a deadly
weapon. People v. Hill, 276 Ill. App. 3d 683, 658 N.E.2d 1294
(1995). Specific intent could be inferred in an attempt murder
prosecution from defendant's use of a gun. People v. Feyrer, 269
Ill. App. 3d 734, 646 N.E.2d 1244 (1994). Firing a gun at a
person supports the conclusion that the person doing so acted
with the intent to kill. People v. Strickland, 254 Ill. App. 3d
798, 627 N.E.2d 218 (1993).
The evidence proved defendant's specific intent to kill
Williams where, with total disregard for Williams life, he
grabbed Williams' neck and shot his gun twice in Williams'
direction. One bullet struck Williams in the back of the head
and the second bullet pierced defendant's hand. To sustain a
charge of attempt to murder, it is sufficient to discharge a
weapon in the direction of another individual, either with malice
or total disregard for human life. Bailey, 265 Ill. App. 3d at
273, 638 N.E.2d at 199. Thus, defendant was proven guilty of
attempted first degree murder beyond a reasonable doubt.
The purpose for which a structure is used, rather than the
nature of the structure, determines whether it is a dwelling
place. People v. Bates, 108 Ill. 2d 182, 483 N.E.2d 517 (1985).
Defendant contends that since Williams' apartment lacked
electricity (prior to 6:00 p.m. and then only from an outlet
outside the apartment), gas, a bed, refrigerator and a stove,
this could not have been his home. The evidence, however, showed
that Williams was living in the apartment and that a light was on
and that a television was in use at the time defendant entered.
For purposes of the home invasion statute, Williams' apartment
was a dwelling.
Defendant argues next that he was not proven guilty of armed
robbery beyond a reasonable doubt because the State failed to
prove that he took money from Williams. Williams testified that
when defendant first entered the apartment, he hid some of his
money in the couch but that $100 remained in his pocket. After
the incident, Williams recovered the money from the couch, but
the $100 in his pocket was gone. Williams passed out after
defendant shot him in the head. Williams was in the bedroom with
Shariba and Tyrone, either of whom could have taken his money.
Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could not have found that
the State proved defendant guilty of armed robbery beyond a
reasonable doubt.

Defendant argues that he was prejudiced by the lower court's
admission of evidence of his codefendant's gang affiliation.
Defendant has waived the opportunity to challenge the
court's admission of this testimony. While defendant objected to
this testimony at trial, he did not include this issue in his
post-trial motion for a new trial. Such failure is fatal to the
preservation of that issue for review. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).
We reverse defendant's conviction and remand the cause for a
new trial.
Reversed and remanded.
HOFFMAN, P.J., and HARTMAN, J., concur.