Opinion
No. 1-15-0800
08-24-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG FREEMAN, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 09 C6 60105 Honorable Frank G. Zelezinski, Judge Presiding. PRESIDING JUSTICE ELLIS delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶ 1 Held: Affirmed. Trial court did not abuse discretion in denying defendant's motion to sever trial from his codefendant. ¶ 2 Following a jury trial, defendant Craig Freeman was convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2008)) and sentenced to 23 years' imprisonment. On appeal, he argues the trial court abused its discretion in denying his motion to sever the trial from his codefendant. We affirm. ¶ 3 Defendant and codefendants Sammie Jackson and Tollie Rowry were charged with armed robbery for taking a cell phone from Derrick Elibasich, Sr. while armed with a firearm. Defendant and Rowry proceeded to a joint jury trial. ¶ 4 Prior to trial, defendant filed an answer claiming the State would be unable to prove him guilty beyond a reasonable doubt. Rowry filed a motion to sever his trial from defendant, which defendant joined. The trial court denied that motion. Shortly before the jury was selected, Rowry renewed his motion for severance, and defendant joined that motion, too. The trial court denied the motion. ¶ 5 As an aside: Neither of those motions to sever were included in the record on appeal in this case, because Rowry, who filed those motions and also is appealing his conviction, had checked out the record in preparing his briefs. Thus, defendant has filed a motion that this court take judicial notice of those written motions to sever, which he joined at trial. We grant that motion and will judicially notice those written motions for severance as if part of the record in defendant's appeal. See People v. Davis, 65 Ill. 2d 157, 164-65 (1976). ¶ 6 At trial, Derrick Elibasich testified that, on December 17, 2008, he drove his wife Andrea Swearengin (who was his fiancee at the time) to a residence at 125th and Honore in Calumet Park, where she worked as a home health care worker. His son, DJ, joined him and the two went for lunch. They returned and parked in front of the residence where Swearengin was working. As they sat in the car, Elibasich noticed a car circling the area. It eventually pulled in front of his vehicle. Two individuals got out of the car and approached Elibasich's driver's side door. Elibasich rolled down the window, and one individual, identified in court as defendant, punched him in the face. The other individual, identified in court as Rowry, pulled out a shotgun and struck Elibasich with it. While Rowry held the shotgun towards Elibasich's face, defendant took a gold Razr cell phone from Elibasich and a cell phone, keys, and $5 from DJ. Eventually, Rowry and defendant returned to their vehicle. ¶ 7 Following Elibasich's testimony, counsel for Rowry renewed his motion to sever, and counsel for defendant joined in it. Counsel for Rowry argued that there were "clearly antagonistic defenses now" because defendant's defense was that Rowry had the weapon and that defendant did not know Rowry was going to have a weapon. Rowry's defense was that he was not present at the scene. The court noted that the original motion filed was "a blanket type of statement" that was "unsupported by any affidavits" indicating antagonistic defenses. The court denied the renewed motion to sever. ¶ 8 Andrea Swearengin testified that, on December 17, 2008, around 11:00 a.m., she was dropped off by Elibasich at her job. While inside her place of work, she noticed a copper-colored car circle around the block three or four times. Swearengin did not feel comfortable and called 911. Eventually, she saw this vehicle stop in front of the car containing Elibasich and DJ. Two individuals got out and approached Elibasich's car. Swearengin then noticed one individual pull out a silver gun and point it at Elibasich. She saw DJ getting "slapped around" and his "pockets emptied." The individuals then returned to their car and drove off. She provided the license plate number of the vehicle to police. ¶ 9 Blue Island police corporal Bernadine Rzab testified that, on December 17, 2008, around 12:30 p.m., she was on duty when she heard a radio dispatch of an armed robbery that occurred at 125th and Honore in Calumet Park. The dispatch indicated the suspects were three black males, with one in possession of a gun, in a copper-colored, four-door vehicle. Shortly thereafter, Rzab noticed a vehicle matching the description being followed by two squad cars. She joined in the pursuit, and the vehicle was pulled over. As Rzab approached the vehicle with her weapon drawn, both the rear and front passenger began running from the vehicle. The front passenger, identified in court as Rowry, had a shotgun in his right hand as he was running away. Rzab and Officer Elton continued after him, and Rzab noticed a muzzle of a weapon lying in a stairwell. Elton stayed with the weapon, and Rzab proceeded after Rowry, who entered a crawlspace under the front porch of a house. Rzab found Rowry in the fetal position inside the crawlspace and took him into custody. ¶ 10 Blue Island police officer Michael Elton testified that, on December 17, 2008, around 12:30 p.m., he was on duty and heard a radio transmission indicating an armed robbery had occurred in Calumet Park. Elton heard a description of the car and, as he approached 127th Street and Wood Street, noticed a vehicle matching its description being followed by Sergeant Corrigan. After the car was pulled over, Elton saw two individuals get out of the vehicle. The individual in the front passenger seat, whom Elton identified as Rowry, was carrying a silver- colored shotgun. Elton continued to chase Rowry, and eventually Rowry tossed the shotgun into a basement stairwell. Elton remained with the shotgun, and Rzab continued to chase Rowry. ¶ 11 Blue Island police officer David Stone testified that, on December 17, 2008, around 12:30 p.m., he received a radio dispatch alerting him of an armed robbery in Calumet Park. Stone drove to Oak and Honore, parked his car, and began to look through yards for individuals. After searching two or three yards, he found defendant lying in the snow between a garage and a fence. Stone testified that defendant did not have a weapon, and there was no weapon near him. Stone placed defendant into custody and brought him to Sergeant Corrigan. ¶ 12 Calumet Park sergeant Gerard Corrigan testified that, on December 17, 2008, around 12:30 p.m., he heard a radio dispatch indicating an armed robbery had occurred in Calumet Park. In the vicinity of 126th Street and Wood Street, he noticed a vehicle matching the description given by the dispatch. Corrigan activated his car's lights and siren and followed the vehicle. The vehicle eventually stopped and three occupants got out. The individual in the front passenger seat, identified in court as Rowry, was holding a shotgun while running from the vehicle. The individual in the back passenger seat, identified in court as defendant, also ran from the vehicle. Corrigan remained at the vehicle and placed the driver into custody. In the back seat of the vehicle, Corrigan saw a plastic bag containing a key, a cell phone, and a $5 bill. Eventually, defendant and Rowry were brought back to the vehicle. A custodial search of defendant recovered a gold Motorola Razr cell phone. Officer Shefcik gave Corrigan the shotgun, which was loaded, that he saw Rowry holding as he fled. ¶ 13 Corrigan then brought defendant and Rowry back to the scene of the armed robbery. There, Elibasich identified Rowry as the individual with the shotgun and defendant as the individual who went through his pockets. Corrigan showed the cell phone recovered from defendant to Elibasich, who identified it as his cell phone. Corrigan then showed the key, cell phone, and $5 bill recovered from the back of the vehicle to both Elibasich and to DJ, who identified the property as his own. Corrigan testified that, at the time of the crime, defendant had braids as his hairstyle, which he did not have at trial. ¶ 14 The State rested after Corrigan's testimony and neither defendant presented any testimony. After closing arguments, defendant's counsel again renewed the motion for severance. He argued:
"[T]he strategies and the arguments and the theory of both legal counsel for Mr. Rowry are contrary to ours. And as demonstrated by the closing arguments, we stepped on each other numerous times; therefore, making an additional prosecutor of the other defendant and counsel in this matter. We ask that your Honor consider it again in light of everything that's happened up to this point, arguments made up to this point, the arguments that were made before the jury and we ask for a mistrial."¶ 15 The trial court again denied the motion, noting "I do not feel that the evidence showed any degree of prejudice created by trying both defendants together at this point and, therefore, we go forward with our jury deliberations." ¶ 16 The jury found defendant guilty of armed robbery. Defendant filed an amended written motion to vacate the judgment notwithstanding the verdict or in the alternative for a new trial. In the motion, defendant again argued the court erred in denying the motion to sever because "[t]hroughout the trial, attorneys for both defendants pointed the finger of culpability at the other defendant, thus creating antagonistic defenses." The trial court denied the motion and sentenced defendant to 23 years' imprisonment. Defendant filed a timely notice of appeal. ¶ 17 On appeal, defendant argues the trial court erred in denying his motion to sever the trial from Rowry. Specifically, he argues that antagonistic defenses existed between Rowry and him. ¶ 18 A defendant does not have an automatic right to be tried separately from a codefendant merely because they were charged in the same indictment for crimes arising from the same circumstances. People v. Bean, 109 Ill. 2d 80, 92 (1985); accord People v. Ruiz, 94 Ill. 2d 245, 257 (1982) (accused has no right to be tried separately from his companions when charged with offenses arising out of common occurrence). The long-established general rule in Illinois is that defendants who are jointly indicted are to be jointly tried unless fairness requires a separate trial to avoid prejudice to one of the defendants. Bean, 109 Ill. 2d at 92; People v. Mahaffey, 165 Ill. 2d 445, 469 (1995); People v. Byron, 116 Ill. 2d 81, 92 (1987). Prejudice occurs when (1) statements made by a codefendant implicating the defendant are admitted at trial, but the defendant is unable to cross-examine the codefendant because he does not testify, or (2) when the codefendants' defenses are so antagonistic that, when tried jointly, one codefendant cannot receive a fair trial. People v. Olinger, 112 Ill. 2d 324, 345 (1986); Bean, 109 Ill. 2d at 93. Defendant argues the second scenario existed here. But "[a]llegations that a codefendant's theory of the case is inconsistent or contradictory to the defendant's is not sufficient to warrant severance."People v. McCann, 348 Ill. App. 3d 328, 335 (2004). ¶ 19 A motion to sever filed before the start of trial must state how the defendant will be prejudiced. People v. Rice, 286 Ill. App. 3d 394, 402 (1996). "[M]ere apprehensions are not enough." Id. When ruling on a motion for severance, the trial court must consider "the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings." People v. Daugherty, 102 Ill. 2d 533, 541 (1985). "In reviewing a trial court's pretrial motion for severance, we may consider only the arguments made by defendant and not the subsequent happenings at trial." People v. Mercado, 397 Ill. App. 3d 622, 628 (2009). On the other hand, the trial court has a continuing duty throughout the trial to grant a severance if prejudice appears. Id.; Rice, 286 Ill. App. 3d at 402. Defendant joined the pretrial motion to sever and joined in the renewal of that motion during and after the trial. ¶ 20 The decision to sever based on antagonistic defenses is within the sound discretion of the trial court. Olinger, 112 Ill. 2d at 346. A trial court abuses its discretion only when the trial court's ruling was arbitrary, fanciful or so unreasonable that no reasonable person would agree with the view adopted by the trial court. People v. Chambers, 2016 IL 117911, ¶ 68; People v. Rivera, 2013 IL 112467, ¶ 37. ¶ 21 We first find the trial court did not abuse its discretion in denying defendant's pretrial motion to sever. Rowry's "Petition for Severance," which defendant joined, is conclusory. It merely states defendant "is in conflict with and antagonistic towards [Rowry] and [Rowry] cannot obtain a fair and impartial trial because of the prejudice created by the inconsistent, conflicting and antagonistic defense." There is no specificity regarding what the antagonistic defenses will be. Indeed, this motion only posits a "mere apprehension" of prejudice, which is not sufficient to grant a motion to sever. See Rice, 286 Ill. App. 3d at 402. ¶ 22 Nor do we see anything inherently conflicting between defendant's theory—that Rowry planned the crime and possessed the firearm—and Rowry's theory that the State could not prove him guilty beyond a reasonable doubt. As the trial court recognized, the issue of severance might be different if one of the defendants testified and implicated the other in doing so, but at the pretrial stage, without any guarantee that either defendant would testify, the only basis for severance—antagonistic defenses—was too vague to warrant severance. The trial court did not abuse its discretion in denying that pretrial motion. ¶ 23 Next, we consider the renewed motions to sever. At the outset, the fact that neither defendant here testified at trial might be enough, by itself, to uphold the denial of the renewed motions to sever. This court has observed on more than one occasion that "antagonistic defenses have been confined to those instances where one codefendant testifies implicating the other." (Emphasis added.) People v. Bramlett, 211 Ill. App. 3d 172, 179 (1991); People v. Precup, 50 Ill. App. 3d 23, 29 (1977), aff'd, 73 Ill. 2d 7 (1978); see also People v. Murphy, 93 Ill. App. 3d 606, 609 (1981) ("Antagonistic defenses have been confined to those instances where one or more co-defendants testify implicating the other.") (emphasis added). Likewise, our supreme court has referred to the problem of antagonistic defenses, in the context of a motion to sever, as one where "a codefendant takes the stand to point a finger at the defendant as the real perpetrator of the offense." (Emphasis added.) Lee, 87 Ill. 2d at 187. ¶ 24 But even if we continued our analysis, we find no abuse of discretion in denying the renewed motions to sever. In opening statements, defendant's counsel noted that defendant had no knowledge of the gun. At trial, defendant argued that he did not possess a firearm or any stolen property. He first pointed to the witness testimony that indicated that Rowry, not defendant, possessed the shotgun. Defendant then argued that the officers' testimony that he possessed Elibasich's cell phone was not believable, because the cell phone was not photographed or produced at trial. In closing argument, counsel for defendant again argued that defendant did not possess the gun. ¶ 25 Rowry's defense, on the other hand, was that the State did not prove his guilt beyond a reasonable doubt. Rowry did not implicate defendant but focused, instead, on challenging witness testimony that implicated Rowry and highlighting the fact that he was not found with stolen property. Rowry did not point the finger at defendant in any way. ¶ 26 Defendant's claim of antagonism rests largely on the fact that witness testimony indicated that the gunman had braids but, during closing argument, counsel for Rowry stated, "This is a picture of Tollie Rowry, no braids." But that did not create a situation where each codefendant implicated the other while professing his own innocence. McCann, 348 Ill. App. 3d at 335. Rowry was simply arguing that he was not the gunman, a straight reasonable-doubt argument. He did not, in any way, suggest that defendant was the one with the firearm. The court did not abuse its discretion in denying the renewed motions for severance. ¶ 27 The State further argues that defendant's defense was not a defense at all, because he was legally accountable for the crime of armed robbery, even if he did not possess the gun himself. Any perceived "antagonism," says the State, was based on a flawed understanding of the law and should not be recognized as a basis for severance. We need not delve into that argument. Legally viable or not, defendant's theory was not prejudiced by Rowry's defense of reasonable doubt. The trial court did not abuse its discretion in denying either the pretrial or the renewed motions for severance. ¶ 28 We affirm the judgment of the circuit court of Cook County. ¶ 29 Affirmed.
Codefendant Rowry's appeal is pending before this court. See People v. Rowry, No. 1-15-0782. --------