People v. Lake

No. 1-96-3755

SECOND DIVISION
June 16, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM
) THE CIRCUIT COURT
Plaintiff-Appellee, ) COOK COUNTY.
)
v. ) No. 93 CR 1352
)
JERMAIL LAKE, ) THE HONORABLE
) JAMES D. EGAN,
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
Defendant Jermail Lake was charged by indictment with two
counts of first degree murder in the shooting death of Alvin
Gilmore. Lemont Lake, Allen Duncan and Tineshea Lake were also
charged in the indictment. After a bench trial, defendant
Jermail Lake was found guilty of first degree murder and
sentenced to 20 years' imprisonment.
On appeal, defendant contends that: (1) he was denied his
constitutional right to a jury trial because he was never advised
in open court of his right to a jury trial, nor did he
understandingly waive his right or execute a written waiver of
his right to a jury trial; (2) he was denied the right to
confront witnesses against him by the admission of irrelevant
hearsay; and (3) he was denied a fair trial by the improper use
of a witness's prior consistent statement.
BACKGROUND
Events that began with a street encounter between two women
and a slap ended on December 26, 1992, with a hail of bullets
being fired at and into a building. As a result, Alvin Gilmore,
who was inside the building, suffered a fatal gunshot wound to
the head.
On December 26, 1992, Lashundia Davis, while on her way to a
store by her home, ran into Tineshea Lake, who was with two other
women, Rashawn Jackson and Kimberly Manning. Tineshea had
previously dated Lashundia's boyfriend, Orlando Potts. Rashawn
approached Lashundia, said something to her and slapped her
across the face. At this point, Tineshea said "let's get her."
Lashundia then ran home and spoke to her sister and brother, who
then accompanied her to Tineshea's home. At Tineshea's house,
Lashundia offered to fight Tineshea but Tineshea refused and
Lashundia went home. On her way home, Lashundia ran into her
mother and her boyfriend, Orlando Potts. After they conversed,
Orlando Potts went to Tineshea's house and broke windows in her
house.
Ben Harden testified for the State pursuant to a plea
agreement in which first degree murder charges against him were
dropped and he received a sentence of 12 years' imprisonment for
aggravated discharge of a firearm. According to Harden's
testimony, he was in a car with Lemont Lake when Lemont stopped
to make a phone call in response to a page he received on his
pager. Harden testified that Lemont appeared to be angry when he
got back in the car and told Harden that "[t]hey was bogus."
Lemont then drove to Allen Duncan's apartment on 55th and Union
Streets. Once inside, Lemont told Allen to "give me that," at
which point Allen retrieved a black, 9 millimeter gun along with
a loaded clip and handed it to Lemont. Lemont put the loaded
clip into the gun.
Lemont Lake, Ben Harden and Allen Duncan left Allen's
apartment where, soon thereafter, they saw defendant Lake and
Shon Scott. Lemont told defendant and Allen Duncan, "They was
bogus for doing that." Lemont, Ben Harden and Shon Scott then
drove to the Lake house at 39th and Prairie, where they met
defendant Lake and Shon Scott who had driven separately. Rashawn
Jackson was sweeping up the glass from the window that Orlando
Potts had broken. Harden further testified that Tineshea told
Lemont that Orlando had broken the windows because she had called
him "out [sic] his name." Harden also testified that Tineshea
told the group, which consisted of himself, defendant, Lemont
Lake, Shon Scott, and Allen Duncan, that they should go to
Orlando's house and "kick his ass," but that they should be
careful because someone would be there. Lemont then pulled out
the 9 millimeter gun and said, "don't worry about it."
Defendant, Lemont Lake, Ben Harden, Shon Scott and Allen
Duncan left the apartment and walked northbound on Prairie to
Lashundia's house. Lashundia lived at 3932 S. Prairie, which is
a low-rise housing unit. When they reached a tree about 30 feet
away from Orlando's apartment, Lemont told the group to stop,
pulled the gun out of his jacket and aimed it toward the
apartment. As Lemont fired the gun he said, "watch me light
this place up." He fired 16 shots at the apartment. On cross-
examination, Harden testified that he could see people in
Orlando's apartment before Lemont began shooting.
Ben Harden, Lemont Lake and Allen Duncan ran to Lemont's car
and Allen drove them to Lemont's house, where they drank and
watched videos. Defendant and Shon Scott arrived 5 to 10 minutes
later. Defendant then made a phone call in which Ben heard him
say, "Is everybody straight? Is she O.K.?" Approximately 15
minutes later, the police arrived and arrested everyone.
At trial, Lashundia Davis testified that, at about 6:30
p.m., shortly after Orlando had gone to Tineshea's home to break
her windows, she was at home with her mother, siblings, Eric
Watkins and her nieces and nephews, including Alvin Gilmore.
Eric Watkins looked out the window and said something that caused
Lashundia to look out the window. When Lashundia looked out the
window she saw defendant, Rashawn Jackson, Kimberly Manning,
Tineshea, Lemont Lake and Allen Duncan approaching her apartment
from the courtyard directly across from her apartment. Lashundia
claimed that the group was within 40 feet of her apartment at one
time prior to shooting. Prior to the shooting, 14 year-old Alvin
Gilmore was sitting at the kitchen table near a window.
Testimony established that he died from a gunshot wound to his
brain.
At the conclusion of simultaneous bench and jury trials,
all of the defendants were found guilty of first degree murder.
Defendant was sentenced to 20 years' imprisonment. Defendant now
appeals.
We affirm.
ANALYSIS
I
Defendant first contends that he is entitled to a new trial
because he did not waive his right to a jury trial in writing as
is required by section 115--1 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/115--1 (West 1992)), nor did he
understandingly and knowingly waive his right to a jury trial in
open court.
Section 115--1 of the Code states that "[a]ll prosecutions
*** shall be tried by the court and a jury unless the defendant
waives a jury trial in writing." 725 ILCS 5/115--1 (West 1992).
However, in People v. Tooles, 177 Ill. 2d 462, 464, 687 N.E.2d 48, 49 (1997), the Illinois Supreme Court recently reiterated the
well-settled rule that the failure to secure a written jury
waiver does not require a new trial where it can be shown that
the defendant's waiver was otherwise understandingly made.
Tooles, 177 Ill. 2d at 464, 687 N.E.2d at 49; 725 ILCS 5/103-6
(West 1992). Rather, the determination of whether a jury waiver
was made understandingly turns on the facts and circumstances of
each particular case. Tooles, 177 Ill. 2d at 469, 687 N.E.2d at
51, citing People v. Tye, 141 Ill. 2d 1, 24, 565 N.E.2d 931
(1990). This court has held that a defendant has knowingly,
understandingly and voluntarily waived his constitutional right
to a jury trial when he permits his counsel in his presence and
without his objection to waive his right to a jury trial on his
behalf, because a defendant is deemed to have acquiesced in, and
is bound by, his counsel's actions. People v. Asselborn, 278
Ill. App. 3d 960, 962-63, 664 N.E.2d 110 (1996).
In People v. Asselborn, 278 Ill. App. 3d 960, 664 N.E.2d 110, the following colloquy occurred:
"THE COURT: Have a seat. Jury waiver. Bench or jury?
MR. LEVIN [Defense counsel]: It will be a bench your
Honor." Asselborn, 278 Ill. App. 3d at 962.
We concluded that the defendant in that case properly waived his
right to a jury trial in open court because he was present during
the colloquy and failed to object to his counsel's actions.
Asselborn, 278 Ill. App. 3d at 962-63.
Defendant argues that Tooles supersedes Asselborn and
requires that the trial court question the defendant in order to
ensure that his jury waiver is understandingly made. In Tooles,
the supreme court reviewed the trial records of three defendants,
Tyreese Tooles, William Farmer and Demarco Gray, in order to
ascertain whether each defendant had understandingly waived his
right to a jury trial. In each trial, the respective trial
courts spoke directly to the defendants. Defendants Tooles and
Gray were asked whether they understood the difference between a
bench and jury trial. Tooles, 177 Ill. 2d at 469, 472, 687 N.E.2d
at 52, 53. Tooles was asked whether his desire to waive his
right to a jury trial was the product of any promises or threats.
Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 52. Furthermore, both
Tooles and Farmer were told that their right to a jury trial was
a constitutional right. Tooles, 177 Ill. 2d at 469, 687 N.E.2d
at 52. It was explained to defendants Farmer and Gray that
waiving their right to a jury trial would result in a judge,
without a jury, deciding the case. Tooles, 177 Ill. 2d at 469-
72, 687 N.E.2d at 52-53. In light of these facts, the supreme
court concluded that all the defendants had understandingly
waived their right to a jury trial.
In the case sub judice, defendant argues that, under Tooles,
a trial court is now required to follow the factors mentioned in
Tooles, i.e., inform the defendant that his right to a jury trial
is a constitutional right, explain the difference between a bench
and jury trial and question whether the defendant's desire to
waive his right to a jury trial is the product of any promises or
threats in order to ensure that a defendant's jury waiver is
understandingly made. We believe defendant misinterprets
Tooles. While the better practice for a trial court is to make
full inquiry and admonishments and also obtain a written jury
waiver, a new trial is not necessary even though a court failed
either to speak to the defendant and or obtain a written jury
waiver where it can be shown that the defendant's waiver was
otherwise understandingly made. Tooles, 177 Ill. 2d at 464, 687 N.E.2d at 49; Asselborn, 278 Ill. App. 3d at 963. In our view,
Tooles does not require specific admonishments or advice to a
defendant. To the contrary, citing People v. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (1985), the Tooles court specifically stated:
"[W]e review each defendant's trial record to determine
whether he understandingly waived his right to a jury. In
doing so we observe that, while the circuit court must
insure that a defendant's jury waiver is understandingly
made, no set admonition or advice is required before an
effective waiver of that right may be made. Smith, 106 Ill. 2d at 334. The determination whether a jury waiver was made
understandingly instead turns on the facts and circumstances
of each particular case. People v. Tye, 141 Ill. 2d 1, 24
(1990)." (Emphasis added.) Tooles, 177 Ill. 2d at 469, 687 N.E.2d at 51.
People v. Smith, 106 Ill. 2d 327, 478 N.E.2d 357 (1985), in
turn, cites People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195
(1984), for the proposition that no set admonition or advice is
required before an effective jury waiver may be made. Smith, 106 Ill. 2d at 334.
In People v. Frey, 103 Ill. 2d 327, 469 N.E.2d 195, the
record on appeal included only the record of the bench trial and
did not include a record of the discussions between the court
and defense counsel prior to trial. Frey, 103 Ill. 2d at 330.
The appellate court ordered a new trial because it did not
believe the record supported a finding that the defendant had
implicitly or explicitly waived a jury trial. Frey, 103 Ill. 2d
at 331-32. The Illinois Supreme Court disagreed and concluded
that the defendant's jury waiver was valid because the defendant
was present on occasions when the matter of a bench trial was
discussed. Frey, 103 Ill. 2d at 333. The supreme court
concluded that the orders that had been filed prior to trial that
were included in the record indicated that a bench trial had been
set and therefore reflected defense counsel's willingness to try
the case before the court. Frey, 103 Ill. 2d at 332-33. The
supreme court further noted that, on the day of trial, a colloquy
took place between the court and defendant in which the only
reference made to a bench trial was the trial court's comments on
the matter. The trial court stated: "[t]hese causes were set
today for purposes of bench trial and the issues presented by all
three counts pending against this defendant. Are the People
ready for trial at this time?" (Emphasis omitted.) Frey, 103 Ill. 2d at 331. The supreme court pointed out that, typically,
an accused speaks and acts through his attorney and, therefore,
effect is given to jury waivers made by defense counsel in
defendant's presence where the defendant gives no indication of
any objection to the court. Frey, 103 Ill. 2d at 332. In this
way, the supreme court concluded, the accused will not be
permitted "to gamble on the outcome before the judge without a
jury and then if dissatisfied make a belated demand for a jury."
Frey, 103 Ill. 2d at 333.
Thus, after a careful reading of Tooles and its reliance of
Smith and Frey, one cannot conclude that Tooles supersedes
Asselborn. Rather, the two cases consistently set forth the rule
that, in the absence of a written jury waiver, or specific
admonishment or advice by the trial court, a defendant has
nevertheless knowingly, understandingly and voluntarily waived
his constitutional right to a jury trial in open court when he
permits his counsel in his presence and without his objection to
waive his right to a jury trial on his behalf.
In the instant case, the record reflects that defendant was
present in court on December 14, 1995, and February 13, 1996,
when his trial counsel indicated that defendant would seek a
bench trial. On December 14, 1995, the following colloquy took
place:
"THE CLERK: Shon Scott, Lamonte [sic] Lake, Allen
Duncan, Jamail [sic] Lake, Ben Harden, Tinesha [sic] Lake.
THE COURT: All right.
MR. BRENNOCK [Public Defender]: Mike Brennock from the
P.D.'s Multiple Unit on behalf of Mr. Harden who is in open
court. Miss Miller represents Jamail [sic] Lake apparently.
THE COURT: As to Jamail [sic] Lake, is there an
indication, did you say bench trial?
JAMES FRYMAN [Public defender]: She indicated that it
would be a bench trial.
* * *
THE COURT: As to Jamail [sic] Lake, 2/13 for bench
trial. Mr. Lake is 2/13."
On February 13, 1996, the following colloquy occurred:
"THE COURT: Miss Miller, which is the one you
represent?
MS. MILLER [Public defender]: Jermail Lake, bench
trial."
The facts presented here are analogous to the facts in
Asselborn and Frey. Here, on more than one occasion, defense
counsel represented on defendant's behalf and in defendant's
presence that defendant would seek a bench trial. Accordingly,
under Asselborn, we cannot conclude that defendant failed to
properly waive his right to a jury trial.
II
Defendant further contends that he was denied the right to
confront witnesses against him when inadmissible hearsay was
admitted. At trial, Ben Harden testified that he and Lemont
Lake went to Allen Duncan's apartment where Lemont told Duncan
"give me that." Duncan responded by giving Lemont a black, 9
millimeter gun and a loaded clip. Defendant contends that this
testimony was inadmissible against him because he was not present
during this conversation and nothing in the record indicates that
he knew about the conversation or events which preceded it.
Defendant further contends that he was denied the right to
confront either Lemont Lake or Allen Duncan.
It is well-settled law that statements made by a co-
conspirator in furtherance of the conspiracy are admissible
against other members of the conspiracy as an exception to the
hearsay rule. People v. Paik, 257 Ill. App. 3d 620, 627, 628 N.E.2d 1140 (1993); People v. Gray, 85 Ill. App. 3d 726, 729, 410 N.E.2d 493 (1980). It is not necessary that a conspiracy be
alleged in the indictment and such statements may be admitted
before proof of the conspiracy has been given pending the further
production by the State of adequate evidence to show the
existence of the conspiracy. Paik, 257 Ill. App. 3d at 627. To
establish a prima facie case of the existence of a conspiracy,
the State must prove that two or more persons intended to commit
a crime, that they engaged in a common plan to accomplish the
criminal goal and that an act or acts were done by one or more of
them in furtherance of the conspiracy. People v. Melgoza, 231
Ill. App. 3d 510, 521, 595 N.E.2d 1261 (1992).
The facts in People v. Davis, 46 Ill. 2d 554, 559-60, 264 N.E.2d 140 (1970), are similar to the facts in the instant case.
In Davis, the defendant argued that evidence of his codefendant's
conversation with another party regarding a potential purchase of
narcotics from defendant was erroneously admitted because the
conversation took place prior to his arrival at the scene.
Defendant joined the group after the conversation where he
participated in the narcotics purchase. Davis, 46 Ill. 2d at
556-57. The Illinois Supreme Court held that the codefendant's
statement was properly admitted because it reflected a continuing
joint endeavor of the defendants to sell narcotics and was,
therefore, made in furtherance of their conspiracy to sell
narcotics. Davis, 46 Ill. 2d at 558. Furthermore, the defendant
in Davis argued, as does defendant Lake, that he was denied his
right to confront witnesses pursuant to Bruton v. United States,
391 U.S. 123, 20 L. Ed. 476, 88 S. Ct. 1620 (1968). Davis, 46 Ill. 2d at 557. However, the supreme court found Bruton
distinguishable as that case bars the admission of hearsay by a
codefendant under the sixth amendment when there is no recognized
exception to the hearsay rule. Davis, 46 Ill. 2d at 558. The
admission of a co-conspirator's statement against a co-
conspirator is an exception to the hearsay rule and is therefore
not barred by the rule in Bruton. Davis, 46 Ill. 2d at 558-59.
In the instant case, the State established a prima facie
case that the defendants conspired to commit a battery against
Orlando Potts. Testimony at trial established that, when Lemont
Lake found out that Orlando Potts had broken the windows at the
Lake residence, he and Ben Harden went to Allen Duncan's house,
where Allen gave Lemont a gun. Thereafter, the group returned to
the Lake apartment, where Tineshea told them that they should
"kick [Orlando's] ass." Subsequently, the group left the Lake
apartment with the common goal to hurt Orlando Potts in
retaliation for the windows he broke. Shortly thereafter, a
barrage of bullets was fired at the apartment and Alvin Gilmore
was shot through a window while inside the apartment. Thus, we
believe it reasonably can be inferred from these facts and
circumstances that a conspiracy to hurt Orlando Potts existed.
Accordingly, Lemont Lake's statement to Allen Duncan was properly
admitted because it reflected the defendant's common design or
plan to hurt Orlando Potts.
III
Defendant further contends that the State should not have
been permitted to read Ben Harden's statement to the jury because
the statement was consistent with his trial testimony. Defendant
has waived review of this issue because he failed to include this
issue in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124 (1988). However, assuming arguendo
that this issue was not waived, we believe defendant's argument
is meritless.
Proof of a prior consistent statement by a witness is
generally inadmissible unless it is made to rebut a charge or
inference of recent fabrication or motive to testify falsely, so
long as the prior statement is made before the alleged motive to
fabricate existed. People v. Jones, 293 Ill. App. 3d 119, 126,
687 N.E.2d 1128 (1997), citing People v. Ashford, 121 Ill. 2d 55,
71, 520 N.E.2d 332 (1988). Thus, in analyzing the issue as to
whether the trial court erred by admitting a witness' prior
consistent statement into evidence, it is necessary to analyze
whether the witness is alleged to have had the same motive to
fabricate at the time she made the prior consistent statement as
she did at trial; the prior consistent statement rebuts the
inference of fabrication only if the motive to fabricate is shown
not to exist at the time of the prior consistent statement.
Jones, 293 Ill. App. 3d at 126.
Defendant argues that Ben Harden's testimony indicates that
he was motivated to lie at the time he made his statement to the
police because the police told him that they would help him if he
told the truth. However, our reading of the record indicates
otherwise. At trial, Ben Harden testified as follows:
"Q. In fact, you only changed your mind because you
were told by an Assistant State's Attorney, DiMaggio, and by
a police officer [sic] by the name of Argenbright and Glynn
that if you agreed to cooperate with them, that they would
help you, isn't that correct?
A. Yeah, they said that.
Q. And in fact, that is the only reason that you chose
to make statements which they wanted you to relative to the
events which took place earlier on that evening, is that
correct?
A. No, that is not true.
* * *
"Q. And you're telling the Court and the ladies and
gentlemen of the jury that at no time did any police officer
make any statement to you about leniency if you cooperated
with them, is that correct?
A. That is correct."
In our view, Harden's testimony indicates that he did not
have a reason to lie to the police at the time he made his
statement. He testified that he did not give a statement to the
police in exchange for leniency or cooperation. Since Harden's
testimony indicates that he had no reason to fabricate at the
time he made the statement, which he made several months before
the trial of this case, the prior consistent statement was
properly admitted.
For the reasons cited herein, the judgment of the circuit
court of Cook County is affirmed. As part of our judgment, we
grant the State's request and assess defendant $150 as costs for
this appeal.
Affirmed.
McNULTY, P.J., concurs.
TULLY, J., dissents.
JUSTICE TULLY, dissenting:
Although I concur with the majority's recitation of the law, I must respectfully dissent
to the application of the law to this particular case.
As the majority correctly noted, in the absence of a written jury waiver, or specific
admonishment or advice by the trial court, a defendant has nevertheless knowingly,
understandingly and voluntarily waived his constitutional right to a jury trial in open court
when he permits his counsel in his presence and without his objection to waive his right to a
jury trial on his behalf. See People v. Tooles, 177 Ill. 2d 462, 687 N.E.2d 48 (1997); People
v. Asselborn, 278 Ill. App. 3d 960, 664 N.E.2d 110 (1996). I disagree, however, with the
majority's conclusion that defendant properly waived his right to a jury trial because defense
counsel represented on defendant's behalf and in defendant's presence, that defendant would
seek a bench trial.
On December 14, 1995, the following colloquy transpired:
"THE COURT: As to Jamail [sic] Lake, is there an indication, did you say
bench trial?
JAMES FRYMAN [Public defender]: She indicated that it would be a bench
trial.
THE COURT: As to Jamail [sic] Lake, 2/13 for bench trial. Mr. Lake is
2/13."
On February 13, 1996, the following colloquy occurred:
"THE COURT: Miss Miller, which is the one you represent?
MS. MILLER [Public defender]: Jermail Lake, bench trial."
The crux of the analysis turns on whether defendant understandingly and knowingly
waived his right to a jury trial in open court. Under the facts and circumstances of this
particular case, I do not believe defendant properly waived his right to a jury trial.
The majority asserts that this case is analogous to Asselborn. In that case, however,
the trial court explicitly used the phrase jury waiver and asked defense counsel whether it
would be a bench or jury trial. Asselborn, 278 Ill. App. 3d at 962. Conversely, in the instant
case, defense counsel merely indicated on two occasions in defendant's presence that
defendant would seek a bench trial. I cannot conclude that this fact by itself shows that
defendant understandingly and knowingly waived his right to a jury trial.
In light of the foregoing, I would reverse the judgment and remand this cause for
further proceedings consistent with this view.