SIXTH DIVISION
November 2, 2007
No. 1-05-2995
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit
ILLINOIS, ) Court of Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 04 C6 60827
)
JAMES PEDEN, ) Honorable
) Christopher J. Donnelly,
Defendant-Appellant. ) Judge Presiding.
JUSTICE O'MALLEY delivered the opinion of the court:
Following a jury trial, defendant James Peden was convicted
of residential burglary and sentenced to 10 years' imprisonment.
On appeal, defendant contends that (1) the trial court violated
his sixth amendment right to counsel by interfering with his
attorney-client relationship during trial, and (2) the State
violated his fifth amendment right not to testify during closing
arguments. In addition, defendant challenges his 10-year prison
sentence and the constitutionality of section 40-5(7) of the
Alcoholism and Other Drug Abuse and Dependency Act (20 ILCS
301/40-5(7) (West 2004)), which pertains to eligibility for
participation in Treatment Alternatives for Criminal Justice
Clients (TASC). For the following reasons, we reverse and remand
for a new trial.
BACKGROUND
Defendant was indicted on a single count of residential
burglary, which alleged that on April 20, 2004, he knowingly and
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without authority entered the residence of Nancy Peden with the
intent to commit a theft therein.
The undisputed evidence at defendant's jury trial
established that the victim, Nancy Peden, was married to David
Peden, who was defendant's brother. On April 17, 2004, David
died after being involved in a motorcycle accident. Between
April 17 and April 28, 2004, Nancy did not stay at the home she
shared with David in Blue Island. Nancy gave Carol Peden
(defendant's mother) keys to her home so that Carol could enter
her home and provide care for Nancy's cats. In the evening on
April 28, 2004, Nancy returned to her home and encountered
defendant inside. Nancy asked defendant for her keys and told
defendant to leave. Shortly thereafter, Nancy discovered that
some coins that belonged to her son and a gold antique ring were
missing. Ultimately, defendant confessed to police officers that
he took the coins and Nancy's ring and sold the ring at a pawn
shop.
The primary issue at defendant's trial was whether defendant
entered Nancy's home with the intent to commit a theft. In
relevant part, during opening statements, defense counsel argued
that although defendant took items from Nancy's home he was not
guilty of residential burglary because he did not enter Nancy's
residence intending to steal. Instead, according to defense
counsel, defendant initially entered Nancy's residence to feed
her cats, but became overcome with grief after thinking about his
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deceased brother David, which led him to take the coins and ring
to sell for money to buy alcohol "in a pitiful attempt to drown
his sorrow." Defense counsel emphasized that defendant initially
went to Nancy's house with the intention of feeding her cats, not
the intent to steal; therefore, he did not commit residential
burglary.
In relevant part, immediately following defense counsel's
opening statements, the following colloquy occurred outside the
presence of the jury, as follows:
"THE COURT: [Defendant], you just heard
your lawyer give an opening statement, is
that right?
DEFENDANT: Yes, sir.
THE COURT: Have you discussed with your
attorney what she was going to say in her
opening statement?
DEFENDANT: Not completely, no. I mean
not - I didn't know everything that she was
going to say, no.
THE COURT: Well, I understand you
wouldn't know everything *** but did you
understand that she said some things during
her opening statement which could be viewed
as admissions in which, for example, she
seemed to indicate that you did, in fact,
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take a diamond ring and some money from this
[residence] and that seemed to be without the
permission of the person who owned these
things and that could certainly be construed
as a theft. And, so, that could be construed
as an admission on your part. Did you
discuss this particular trial strategy with
your attorney?
DEFENDANT: Yes.
THE COURT: And you had given your
permission to your attorney that this was
part of a trial strategy and you were in
agreement with this trial strategy, is that
correct, sir?
DEFENDANT: Yes, sir.
THE COURT: Okay. Thank you."
The State's first witness was Nancy, who testified that
after her husband David died on April 17, 2004, she stayed at her
mother's home. During that time, Nancy permitted her mother-in-
law, Carol Peden, to access her home to take care of Nancy's two
cats. Nancy provided Carol with keys to her home, but Nancy did
not give anyone else permission to enter her home.
At approximately 8:50 p.m. on April 28, 2004, Nancy returned
to her home and found defendant inside. Nancy asked defendant to
return her keys and leave her property and defendant complied.
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After defendant left, Nancy discovered that a gold ring and some
coins were missing from her home.
According to Nancy, defendant was not welcome inside her
home during her entire two-year marriage to defendant's brother
David and was never permitted to enter her home. Nancy testified
that she never gave defendant permission or authority to enter
her home after David died. On cross-examination, Nancy clarified
that defendant would periodically attend dinner at her home, but
he was always accompanied by Carol (defendant's mother). Nancy
further testified that defendant would sometimes arrive alone and
uninvited at her home and "to save family face" defendant would
be allowed inside.
Blue Island police detective Christopher Connors testified
that on June 2, 2004, he interviewed defendant at the Blue Island
police department. After Detective Connors read defendant his
Miranda rights, defendant agreed to give an oral statement, which
Detective Connors memorialized. In that statement, defendant
stated that on April 20, 2004, he was in the process of making
arrangements for David's funeral when he found Nancy's keys,
which had been given to his mother (Carol). After leaving the
funeral home, defendant went to Nancy's house "to see what [he]
could get." Defendant took an engagement ring and some coins and
later sold that ring at a Cash America pawnshop for $300.
Schechinatzin Moreno testified that she was an assistant
manager at Cash America Pawn. Moreno identified in a court a
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loan ticket dated April 20, 2004, that reflected a transaction
where a gold ring was exchanged for $300. The loan ticket
included, inter alia, defendant's signature, address, date of
birth, and social security number.
The defense called Carol Peden, who testified that she was
defendant's mother. According to Carol, she visited Nancy and
David's home on multiple occasions during their marriage. Carol
further testified that defendant often was present during those
visits and he was never asked to leave Nancy's home.
Following David's death, Carol agreed to take care of
Nancy's cats. Carol explained that she and defendant went to the
home where Nancy was staying, and defendant retrieved the keys
from Nancy. Subsequently, Carol made numerous visits to Nancy's
house to feed Nancy's cats and pick up the mail. Carol testified
that defendant often accompanied her when she went to Nancy's
home to care for her cats. Carol explained that she was never
told that defendant was not permitted inside Nancy's residence.
After Carol finished testifying, the trial court dismissed
the jury for a brief recess. During this time, two colloquies
occurred that are relevant to the issues presented on appeal and
are therefore recounted in detail. First, shortly after the jury
was dismissed for a recess, the following colloquy occurred:
"THE COURT: [Defense] [c]ounsel, how do
you wish to proceed?
MR. HENRY [Defense Counsel]: Judge, we
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are going to call our final witness,
[defendant].
THE COURT: I am sorry, you said you are
going to call [defendant]?
MR. HENRY: Yes, we are.
THE COURT: [Defendant].
DEFENDANT: Yes, sir.
THE COURT: You need to understand that
you have both the right to testify and the
right not to testify and that is your right.
You have heard me admonish this jury about
how you don't need to prove anything and
things along those lines. You heard me say
those things?
DEFENDANT: Yes.
THE COURT: Okay. And, therefore, you
have a right to testify and a right not to
testify. Your attorney has discussed that
with you. You have a right to [sic] both to
testify and not tetsify [sic], correct?
DEFENDANT: Yes, sir.
THE COURT: You also heard me tell the
jury that even if you did not, that they
could not hold that against you. You heard
that, didn't you?
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DEFENDANT: Yes, sir.
THE COURT: Now, lastly, I want to tell
you that this right, as I indicated, is your
right, it is not your attorney's right.
Obviously, you can consult with them, which I
know you have, as to whether you are going to
testify or not testify, but ultimately the
decision is yours. You understand that, sir?
DEFENDANT: Yes, sir.
THE COURT: Have you made the decision
about whether you wish to testify or not
testify?
DEFENDANT: Yes, sir.
THE COURT: What is your decision?
DEFENDANT: I will testify.
THE COURT: Very well. Okay, [c]ounsel,
are you ready to proceed now?"
Immediately following defendant's oral confirmation of his desire
to testify and the State informing the court that the State was
ready to proceed, the trial court questioned defense counsel in
defendant's presence during a second colloquy, as follows:
"THE COURT: Now, taking a step further
in line with what [defendant] and Ms. Harvey
said during opening statement, are you
anticipating your client making an admission?
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Actually, I am speaking to your attorney.
MR. HENRY [Defense counsel]: Yes.
THE COURT: You are anticipating your
client making an admission, potentially, to
the charge of theft?
MR. MALONEY [Assistant State's
Attorney]: Judge, may I say something
regarding this issue?
THE COURT: No, not at this point in
time. Thank you.
MR. HENRY: Yes.
THE COURT: Okay. Have you talked to
your client about the ramifications of
admitting to a crime on the witness stand?
MR. HENRY: I didn't talk to him about
what could happen further on down the line.
Give me a second.
(BRIEF PAUSE.)
MR. HENRY: Judge, after further
reviewing, he will not be testifying.
THE COURT: All right. [Defendant], now
we need to have the same kind of
conversation. Now you have had further
discussions with your attorney, is that
right?
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DEFENDANT: Yes, Judge, that is correct.
THE COURT: And is it your desire to
testify, or not testify?
DEFENDANT: No, I will not be testifying.
THE COURT: [Defendant] is it because of
what I said or is it because of the
discussions that you had with your attorney?
DEFENDANT: It was on my own decision,
but it was based upon the discussion I had
with my attorney.
THE COURT: So, it was not based upon
what I said. I didn't influence you one way
or the other?
DEFENDANT: No, sir.
THE COURT: Okay. All right. Now we can
bring the jury out.
After these two colloquies, the parties selected jury
instructions and the jury was then called back into the courtroom
for closing arguments.
During closing arguments, the State argued that defendant
used his brother's death as an opportunity to "capitalize on his
grieving sister-in-law." The State further argued that although
defendant knew he was not permitted in Nancy's home, he took the
keys that Carol had for Nancy's home and went to Nancy's home in
order to steal from her. The State cited defendant's statement
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to police officers as evidence that he intended to steal from
Nancy and that "he was not there to tend to cats, he was there to
steal, and that is what he did."
In rebuttal, defense counsel argued that defendant initially
went to Nancy's home to feed her cats and only later decided to
take the items from her home. Defense counsel further argued
that defendant had permission to enter Nancy's home and that the
whole incident amounted to "a breakdown of a family
relationship." Defense counsel noted that defendant's statement
to police officers was written by a police officer, and not by
defendant. Defense counsel repeatedly asserted that defendant
went to Nancy's home only with the intention to feed her cats,
and the State failed to prove otherwise.
In surrebuttal, the State made the following comments, which
are relevant on appeal and recounted in full, as follows:
"You heard the defendant pawned those
rings to get money to help his grieving. You
heard that from the defense attorney. Was
there any evidence of that at any point in
the trial? No. Zero. All you heard is from
his statement where he said I went there to
see what I could get. You are told that just
to create sympathy, as if he is upset that
his brother has passed away, that you should
feel for him today because he had a rough
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time. Well, there was no evidence of that.
You just heard that from the defense
attorney, no one else."
The State reasserted that defendant was not grieving, but that he
went to Nancy's home with the intention to steal and took
advantage of her personal situation.
Following closing arguments, the jury found defendant guilty
of residential burglary.
At the sentencing hearing, in relevant part, defense counsel
referenced an earlier colloquy where the trial court indicated
that it would consider imposing a lesser sentence if defendant
would assist in returning the ring to Nancy. In response, the
trial court commented, as follows:
"Well, I will be glad to do this. I'm
going to proceed with sentencing today. If
that ring does in fact turn up, then I will
be glad - and [defendant] had something to do
with it, to somehow get that ring back into
[Nancy's] hands - I will be glad to
reconsider his sentence. If [defendant] had
something to do with it."
At the close of the sentencing hearing, the court sentenced
defendant to 10 years' imprisonment.
This appeal followed.
ANALYSIS
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On appeal, defendant first contends that the trial court
violated his sixth amendment right to counsel by interfering with
his attorney-client relationship during trial. Specifically,
defendant asserts that "the trial judge interfered with [his]
attorney-client relationship in violation of the Sixth Amendment
by questioning [him] and his attorney during trial as to
strategic choices they had made which ultimately induced
[defendant] not to testify."
The State replies that defendant has waived this issue by
failing to object at his trial and not including this issue in
his motion for a new trial. Alternatively, the State contends
that the trial court's admonitions were proper and
nonthreatening, and did not cause defendant not to testify.
According to the State, the contested comments were made in an
attempt to ensure that defendant understood the consequences of
his admission, his right against self-incrimination, his right to
testify, and his right to a presumption of innocence. In
addition, the State contends that defendant has failed to prove
that his testimony would have changed the outcome of the trial.
Initially, while defendant has waived this issue by failing
to object at trial and raise it in a posttrial motion, we note
that "a less rigid standard of waiver applies when the issue
involves potential misconduct by a trial judge." People v.
Vaughn, 354 Ill. App. 3d 917, 924 (2004). Moreover, waiver is a
limitation on the parties, but does not limit this court's
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ability to consider the issue. People v. Meadows, 371 Ill. App.
3d 259, 261 (2007). Here, we choose to address the merits of
defendant's claim because it involves alleged misconduct by the
trial court.
The sixth amendment right to assistance of counsel exists in
order to protect a defendant's fundamental right to a fair trial
and, consequently, it is not recognized for its own sake, but
rather for its effect on the ability of the accused to receive a
fair trial. Lockhart v. Fretwell, 506 U.S. 364, 368-69, 122 L.
Ed. 2d 180, 188-89, 113 S. Ct. 838, 842 (1993).
Our supreme court has determined that a trial court is
neither required to admonish a defendant regarding his
constitutional right to testify nor to set of record defendant's
decision on that matter. People v. Smith, 176 Ill. 2d 217, 234-
35 (1997). The Smith court explained that its conclusion was
based, inter alia, on concerns that a court issuing such
admonishments "'might improperly intrude on the attorney-client
relation, protected by the Sixth Amendment,'" or potentially
"interfere with defense strategy.'" Smith, 176 Ill. 2d at 235,
quoting United States v. Martinez, 883 F.2d 750, 760 (9th Cir.
1989), vacated on other grounds, 928 F.2d 1470 (9th Cir. 1991).
Thus, it is typically defense counsel's responsibility to advise
a defendant about his right to testify and discuss potential
advantages and disadvantages of exercising that right. Vaughn,
354 Ill. App. 3d at 925.
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In accordance with the concerns articulated in Smith, our
supreme court has recognized that when a trial court chooses to
admonish a defendant on issues that implicate trial strategy, the
court "runs the risk of improperly intruding on the attorney-
client relation and interfering with the defense strategy counsel
has pursued, a strategy perhaps long in the making, but quickly
undone by generalized admonishments." People v. Medina, 221 Ill.
2d 394, 409 (2006).
Nevertheless, a trial court has discretion to admonish a
defendant of his right against self-incrimination. Vaughn, 354
Ill. App. 3d at 925. Where a trial court exercises its
discretion in that regard, it must be careful to issue
admonishments regarding self-incrimination and the right not to
testify without impairing the defendant's ability to present his
defense. Vaughn, 354 Ill. App. 3d at 925.
Ultimately, a reviewing court will find that a trial court
has deprived a defendant of his right to a fair trial where the
trial judge's improper admonitions influence the defendant not to
testify, and thereby prejudice the outcome of his case. Vaughn,
354 Ill. App. 3d at 925, citing People v. King, 154 Ill. 2d 217,
224 (1993). Nonetheless, even where such admonitions cause the
defendant not to testify, there is no deprivation of his right to
a fair trial unless it affects the outcome of his trial. Vaughn,
354 Ill. App. 3d at 925.
Here, the record contains numerous instances where the trial
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court queried or admonished defendant or his counsel about issues
of defense strategy or regarding defendant's intention to
testify. First, immediately following opening statements, the
trial court engaged in a rather lengthy discussion with defendant
regarding the defense theory announced during opening statements
and asked defendant whether he had acquiesced in that theory.
Defendant unequivocally informed the trial court that he was
aware of his counsel's defense strategy and that he agreed with
that strategy.
Next, after the defense had finished questioning its first
witness (Carol Peden), defense counsel informed the trial court
that defendant would be testifying. Immediately thereafter, the
court admonished defendant of his right to testify or to decline
to do so in detail. After this colloquy, defendant unequivocally
informed the trial court that he wanted to testify.
Finally, and most significantly, even though the trial court
had been explicitly informed by defendant both that he acquiesced
with his defense counsel's strategy and wanted to exercise his
right to testify, the trial court nevertheless proceeded to again
discuss defense strategy with defendant's counsel in defendant's
presence. During this incident, the trial court inquired with
defense counsel whether he had talked to defendant about "the
ramifications" of making a potential admission to the charge of
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theft on the witness stand.1 As a result of the trial court's
questioning, defense counsel chose to have a brief discussion
with defendant and immediately thereafter informed the trial
court that defendant did not wish to testify. The trial court
then asked defendant whether the court's statements had
influenced his decision to not testify. Defendant told the court
that he had made that decision on his own and "based upon the
discussion I had with my attorney."
Even though the trial court solicited a statement from
defendant that the court's admonishments had not influenced his
decision and he chose not to testify after consulting with his
counsel, the record strongly suggests that defendant would have
testified had the trial court refrained from repeatedly
discussing with him and his counsel matters involving the defense
theory and defendant's decision to testify. Notably, defendant
originally informed the trial court that he agreed with his
counsel's strategy and wanted to testify, but later changed his
mind after the court chose to revisit the issue by asking
defendant counsel, in defendant's presence, whether counsel had
discussed with defendant "the ramifications" of defendant's
potential testimony.
Here, as illustrated by the parties' respective opening and
closing arguments, defendant's intention at the time he entered
1
As an aside, we note that defendant had not been charged
with theft, but rather was solely charged with residential
burglary.
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Nancy's home was a crucial issue at trial. In fact, defendant's
testimony was pivotal to his theory of defense, namely, that he
did not intend to commit theft when he entered his sister-in-law
Nancy's home and the trial court knew about this theory from
opening arguments forward. However, because defendant did not
testify, as he originally intended to do, there was no
testimonial evidence produced at trial supporting this key
defense theory. Simply put, in all likelihood, the trial court's
admonishments seriously compromised defendant's ability to
present his defense by causing defendant not to testify.
Our decision in Vaughn presents a similar situation. In
Vaughn, this court found that the trial court committed
reversible error when the court stopped the defendant during his
testimony, admonished the defendant of his constitutional rights
to counsel and against self-incrimination, and indicated to the
defendant that the defendant's testimony essentially amounted to
a confession of criminal guilt. Vaughn, 354 Ill. App. 3d at 920-
22. As a result, the defendant chose to stop testifying and his
previous testimony was stricken. Vaughn, 354 Ill. App. 3d at
922. While it might be fair to characterize the court's conduct
in Vaughn as more extreme because the court in that case
interrupted defendant's testimony, the basic principle remains
the same: generalized admonishments by a trial court that
implicate strategic choices reserved for a defendant carry the
risk of improperly intruding on and interfering with the
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attorney-client relationship. See Medina, 221 Ill. 2d at 409.
Accordingly, after reviewing this record in light of the
concerns articulated by our supreme court in Smith and Medina and
this court in Vaughn, we find that the trial court's excessive
and repetitive admonishments regarding issues of defense strategy
and defendant's right to testify were improper. We further find,
contrary to the State's assertions otherwise, that the trial
court's admonishments caused defendant not to testify and very
likely affected the outcome of his trial, thereby denying him a
fair trial. Consequently, we reverse defendant's conviction and
remand for a new trial. See Vaughn, 354 Ill. App. 3d at 927
(reversing and remanding for a new trial where trial court issued
inappropriate admonishments).
The State's reliance on our supreme court's decision in
People v. Hattery, 109 Ill. 2d 449 (1985), is misplaced because
Hattery is readily distinguishable from the case sub judice. In
Hattery, defense counsel conceded at trial that the defendant was
guilty of murder, but argued that defendant was not eligible for
the death penalty. Hattery, 109 Ill. 2d at 464. Ultimately, our
supreme court determined that the defendant had been denied his
sixth amendment right to effective assistance of counsel because
the record did not establish that the defendant knowingly and
intelligently consented to his counsel's strategy. Hattery, 109
Ill. 2d at 465.
Here, in stark contrast to Hattery, defense counsel
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consistently argued that defendant was innocent of the offense of
residential burglary, which was the only offense that he was
charged with, and never conceded defendant's guilt to residential
burglary. Furthermore, also dissimilar to Hattery, is the fact
that the record in the case sub judice indisputably establishes
that defendant was aware of his counsel's defense strategy and
agreed to pursue that strategy.
The State's citation to our decision in People v. Sowewimo,
276 Ill. App. 3d 330 (1995), does not alter our conclusion.
Significantly, unlike this case, in Sowewimo "[t]here was a great
deal of confusion as to the defendant's desire to testify."
Sowewimo, 276 Ill. App. 3d at 339. Here, the record is quite
clear that defendant was initially unambiguous in his desire to
testify.
We recognize that the trial court had discretion to admonish
defendant regarding his right to avoid self-incrimination.
However, in this case, we emphasize that the court did not simply
admonish defendant of that right, but instead also repeatedly and
extensively discussed issues directly related to defense strategy
with both defendant and his counsel.
Moreover, even though the trial court's admonishments were
well intended, "the determination of whether the defendant will
testify is an important part of trial strategy best left to the
defendant and counsel without the intrusion of the trial court,
as that intrusion may have the unintended effect of swaying the
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defendant one way or the other." United States v. Pennycooke, 65
F.3d 9, 11 (3d Cir. 1995). Here, we reiterate that the record
reasonably supports a conclusion that defendant would have
testified in furtherance of the strategy advanced by his counsel
during opening arguments had the trial court not repeatedly
questioned defendant and counsel on matters related to that
strategy.
Because we reverse defendant's conviction and remand for a
new trial, we do not need to address the remaining issues that
defendant raises on appeal.
CONCLUSION
For the foregoing reasons, we reverse defendant's conviction
and remand for a new trial.
Reversed and remanded.
McBRIDE, P.J., and McNULTY, J., concur.
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