People v. Brickhouse

2018 IL App (3d) 150807

115 N.E.3d 248

425 Ill.Dec. 693

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dameko S. BRICKHOUSE, Defendant-Appellant.

Appeal No. 3-15-0807

Appellate Court of Illinois, Third District.

Opinion filed July 20, 2018

Michael J. Pelletier, Patricia Mysza, and Yasaman Hannah Navai, of State Appellate Defender’s Office, of Chicago, for appellant.

Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, David J. Robinson, and Steven A. Rodgers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Dameko S. Brickhouse, was convicted of two counts of armed robbery ( 720 ILCS 5/18-2(a)(2) (West 2008) ) and was sentenced to two concurrent terms of 30 years in prison. On direct appeal, defendant's convictions and sentences were affirmed. People v. Brickhouse , 2011 IL App (3d) 100289-U, ¶ 2, 2011 WL 10468139. Defendant filed a postconviction petition, alleging that he was denied ineffective assistance of trial counsel because trial counsel failed to file a motion to suppress defendant's statements to police. After a third-stage evidentiary hearing, the trial court denied defendant's postconviction petition. Defendant appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 In July 2008, defendant was charged with two counts of armed robbery. The charging instrument alleged that defendant, while carrying a handgun, knowingly took money from the person or presence of Rochelle Hicks (count I) and Jeffrey Hicks (count II) by the use, or threatened use, of force.

¶ 4 In May 2009, defendant's case proceeded to a jury trial. The evidence presented at the trial can be summarized as follows. Rochelle Hicks testified that on July 1, 2008, she and her husband, Jeffrey Hicks, went to a credit union or bank in Bourbonnais, Illinois, where Jeffrey withdrew $1000 from his account to pay bills. Jeffrey gave $500 to Rochelle and kept the remaining $500 for himself. Thereafter, Rochelle and Jeffrey went to a currency exchange in Kankakee, Illinois, so that Jeffrey could pay the electric bill and Rochelle could pay the telephone bill. While in the currency exchange, Rochelle saw defendant and Curtis Phillips walk past the building. Rochelle had known defendant for approximately three years, through her uncle, but had never talked to defendant and had known Curtis for several years. According to Rochelle, on the date of the robbery, defendant was wearing a white T-shirt, blue jeans, and a black White Sox hat.

¶ 5 When Rochelle and Jeffrey left the currency exchange, they started walking toward Jeffrey's sister's house. As Rochelle and Jeffrey were walking down an alley behind some houses, they ran into Curtis, who was alone at the time. Jeffrey and Curtis had a brief conversation. After the conversation ended, Curtis went on his way, and Jeffrey and Rochelle continued down the alley. When they got to about the middle of the alley, defendant jumped out from between two garages with a small silver handgun, which Rochelle also described as a "silver caliber handgun." Defendant pointed the gun at Rochelle and Jeffrey and told them to give him all of their money before he killed them. Jeffrey told Rochelle to give her money to defendant, and Rochelle did so. Jeffrey did not give defendant the remaining $500 that he had in his possession. After defendant received the money, he told Rochelle and Jeffrey to walk away. As they did so, defendant ran up the alley. When Rochelle and Jeffrey got to Jeffrey's sister's house, Rochelle called the police.

¶ 6 At the police station, Rochelle identified defendant from a photographic lineup. Rochelle told the police that defendant had a short silver gun. The police showed Rochelle a photograph of a gun, but Rochelle stated that the gun in the picture was not the gun used in the robbery. Rochelle also identified defendant's hat from a police photograph.

¶ 7 On cross-examination, Rochelle admitted that she received social security payments because she had a learning disability. Additionally, Rochelle admitted that she did not know what a "silver caliber handgun" meant, but Jeffrey had told her the name of the gun.

¶ 8 Jeffrey Hicks testified, similar to Rochelle, that on July 1, 2008, the couple went to a credit union to withdraw some money and then to a currency exchange to pay some bills. After leaving the currency exchange, Jeffrey and Rochelle were walking into an alley to take a shortcut to Jeffrey's sister's house, when they were approached by Curtis. Jeffrey and Curtis had a brief conversation, and then Curtis left and went in the other direction. As Jeffrey and Rochelle continued down the alley, they were confronted by defendant. Defendant jumped out of the bushes, demanded money, and threatened to shoot the couple with a silver-colored handgun. Jeffrey thought that the gun was a .38 caliber. Jeffrey told Rochelle to give her money to defendant, and Rochelle complied. Defendant directed Jeffrey and Rochelle to walk away. As they did so, defendant ran in the opposite direction.

¶ 9 Later, Jeffrey told the police that the assailant wore a black White Sox hat, white T-shirt, and blue jeans. Jeffrey identified defendant from a photographic lineup. On cross-examination, Jeffrey remembered telling the police that the assailant had braids in his hair.

¶ 10 Curtis Phillips testified that he knew defendant, Rochelle, and Jeffrey. On the morning of the robbery, Curtis was walking to the hospital to visit his girlfriend when he met up with defendant on the street. Defendant was wearing jeans and a T-shirt at the time. Curtis and defendant walked together for a while, went past the currency exchange, and then split up and went in their own directions. As they split up, defendant told Curtis that he was "trying to go and hustle up him some money," which Curtis took to mean that defendant was going to try to find some work or some money. Curtis did not see defendant with a gun that day.

¶ 11 Shortly after Curtis and defendant separated, Curtis saw Rochelle and Jeffrey walking behind him. Curtis spoke to Jeffrey briefly and then went on his way. About four or five minutes later, as Curtis was crossing the street, he heard Jeffrey yelling. Curtis looked back and saw Jeffrey, Rochelle, and some other people standing on the street corner calling for the police. Curtis tried to find out what was going on, but the police officer told Curtis to move along. Rochelle and Jeffrey told Curtis that "Dameko" had robbed them. Having been told to move along, Curtis continued on his way to the hospital.

¶ 12 When Curtis returned home from the hospital, he found his uncle and defendant at his house. Curtis's uncle had a construction business. Defendant appeared to have been working, had different clothes on, and had putty on his hands. The police showed up a short time later and took Curtis to the police station, where he identified defendant from a photographic lineup as the person who was with him earlier that day in front of the currency exchange.

¶ 13 After Curtis returned home from the police station, he received a phone call from a person identifying himself as defendant. The person asked Curtis to "see if they want the money back * * * so they can drop the charges." About an hour or two later, Curtis had another conversation with defendant. Defendant asked Curtis to talk to Rochelle to see if she would take the money back so that the charges could be dropped. Curtis did not contact Rochelle about the matter, however, because he did not want to get involved.

¶ 14 When asked on the witness stand about whether defendant had braids in his hair on the date of the robbery, Curtis testified that defendant always had his hair cut as it was in court and that he did not remember defendant having braids. Upon further questioning, Curtis indicated that he cut defendant's hair and that he knew for a fact that defendant did not have braids.

¶ 15 Detective Tim Kreissler testified that on the date of the armed robbery, later in the afternoon, he conducted an audio- and video-recorded interview with defendant. Before the interview began, Kreissler read defendant a Miranda form that explained defendant his rights. Defendant indicated that he understood his rights and signed the Miranda form.

¶ 16 During Kreissler's testimony, the State introduced the audio and video recording of defendant's interview. Shortly after the start of the recording, a clunk or bang could be heard, the video cut out, and only the audio was available. As the interview continued, Kreissler obtained defendant's name and some background information. Kreissler asked defendant for permission to record the interview. Defendant stated that he did not do anything wrong and told Kreissler that Kreissler could call defendant's parole officer.¹

Kreissler again asked for consent to record the interview. Defendant consented but then stated to Kreissler, "I can't ask for a lawyer?" The following conversation ensued:

"KREISSLER: Well, we'll get to that point, but um we're not at that point yet. Right now we're just getting over whether we're gonna, you know, audio and video, so just sign there—you said, yeah, we can audio-video it—and then we'll read you your rights, which we'll get to that point [inaudible].

DEFENDANT: Read me my rights? I ain't did nothing.

KREISSLER: Well, you just said, you know, can you have your lawyer present. If you didn't—[pause].

Dameko, put your initials there, where it says that, yes, we can audio and video it."

Kreissler then read defendant his Miranda rights, including the warning that defendant had the right to an attorney and that one would be provided for him if he could not afford one. In total, about 30 seconds had passed from the point where defendant had made the question or comment about a lawyer and the point where Kreissler had read defendant his Miranda rights. After the statement of each...