People v. Garcia

2018 IL App (5th) 150363

116 N.E.3d 1082

426 Ill.Dec. 782

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

v.Joseph GARCIA, Defendant-Appellant.

NO. 5-15-0363

Appellate Court of Illinois, Fifth District.

Opinion Filed: October 3, 2018

James E. Chadd, Ellen J. Curry, and Jennifer M. Lassy, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

Christopher Hitzemann, State’s Attorney, of Waterloo (Patrick Delfino, David J. Robinson, and Erin Wilson Laegeler, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

¶ 1 A jury convicted the defendant, Joseph Garcia, of attempted burglary, and the circuit court sentenced him to 10 years of imprisonment and 2 years of mandatory supervised release. This is the defendant's direct appeal from his conviction and sentence. During his jury trial, the State presented two videotaped confessions that the parties agree contained inadmissible and prejudicial evidence of other crimes involving the defendant. Prior to trial, the circuit court granted the defendant's motion in limine , which barred the State from presenting other crimes evidence during the trial. The defendant's counsel, however, did not object to the State admitting unedited copies of the videotaped confessions, thus exposing the jury to the prejudicial other crimes evidence.

¶ 2 The defendant's attorney raised this error in a posttrial motion, characterizing the error as plain error instead of ineffective assistance of counsel. The circuit court denied the posttrial motion. On appeal, the defendant argues that his trial counsel had either a per se or an actual conflict of interest during the posttrial hearing because counsel had to argue that his own error resulted in an unfair trial. For the following reasons, we agree with the defendant's argument that defense counsel had an actual conflict of interest when he argued the posttrial motion. Therefore, we vacate the circuit court's denial of the defendant's posttrial motion and remand for the appointment of conflict-free posttrial counsel and for further posttrial proceedings.

¶ 3 I. BACKGROUND

¶ 4 The defendant was charged with attempted residential burglary involving a home owned by Mike and Carla Becherer located in Columbia, Illinois. The charges stem from events that occurred in the afternoon on Wednesday, December 17, 2014, at the Becherers' residence. The Becherers' daughter, Veronica, was home alone when someone began knocking on the front door and ringing the doorbell. Veronica did not answer. She watched the person at the front door walk across the street and then back to her house, where he started knocking on the door again. The person then walked to the back of her house and onto the back deck.

¶ 5 Veronica called her mother, Carla, and told her about the person at the house and about a car in the driveway with Missouri license plates. Carla told Veronica to hide, and she called 9-1-1. Veronica hid in a closet and heard loud banging at the back door.

¶ 6 Officers Josh Bayer and Ryan Doetsch with the Columbia Police Department immediately responded to the Becherers' residence. Upon arrival, Bayer saw a gray Mazda passenger car with tinted windows parked in the driveway. Because the windows were tinted, he did not notice that there was a person in the driver's seat of the car. At the back of the house, the officers found the defendant and another individual that they identified as Ryan Ewald, standing on the top of the back deck's stairs. They both wore gloves and cotton stocking caps. The officers arrested them. The person in the gray Mazda drove away, but he was arrested a short time later. The officers learned that the driver was Ryan Ewald's brother, Derek Ewald. As Bayer secured the defendant into the back of a police car, the defendant told him that he was at the house with "Cisco" because of an ad posted on Craigslist. Bayer determined that "Cisco" was Ryan Ewald.

¶ 7 After the arrest, the officers discovered a black knife on the back deck. The tip of the knife was broken off. They also discovered pry marks around the sliding glass door and a broken chuck of landscaping brick that was on a bench on the deck. Carla came home while the officers were still at the house. She told the officers that the broken landscaping brick sitting on a bench did not belong there and that it was not there when she left for work that morning. She also told the officers that the knife found on the back deck did not belong to them and that she had never seen the knife before. She told the officers that scratches by the back door's handle were not there before. She noticed that the back door no longer opened properly. However, there was no evidence that the defendant or Ryan Ewald ever entered the house.

¶ 8 Prior to the defendant's jury trial, the defendant's attorney filed a motion in limine , requesting the court to, among other things, bar the State from presenting evidence of other crimes involving the defendant in its case-in-chief. At the hearing on the motion, the prosecutor stated that he did not object to the motion, except in the event that the defendant testified. If he testified, the State "would use his prior criminal convictions to impeach him as a witness." In response, the defendant's counsel emphasized, "I just don't want it brought up in their case in chief." The court granted the motion, barring the State from presenting evidence of other crimes in its case-in-chief. The defendant's motion also requested the court to bar the State from mentioning any burglaries in Columbia, Illinois, in which the defendant had not been charged. At the pretrial hearing, the prosecutor agreed with the motion, stating, "I don't think that would be appropriate, and we don't intend to bring in evidence." The court granted the motion and barred the State from presenting evidence of other burglaries.

¶ 9 At the defendant's trial, the State presented two videotaped interviews of the defendant that were played for the jury in their entirety without any objection from the defendant's attorney. These videotaped interviews showed questions the officers asked of the defendant concerning the events that occurred at the Becherer residence. However, the videotaped interviews also included evidence of other crimes involving the defendant and other burglaries in which the defendant had not been charged.

¶ 10 During the first videotaped interview, the defendant stated that he "did not break into nothing and did not touch nothing." Shortly into the interview, the defendant volunteered to the officers that he was just released "out of the penitentiary about a month ago." One of the officers asked, "for what?" The defendant responded, "for drugs." The officer asked, "what kind of drugs?" The defendant stated methamphetamines. The defendant added that the prison was in Booneville, Missouri, and that he was released on November 4 or 5.

¶ 11 The videotape showed the defendant telling the officers that when he was arrested at the Becherers' residence, he was with a person named "Cisco" and Cisco's brother. He stated that he knew Cisco because he had been "locked up" with him. He also stated that he knew Cisco from getting high and from the "club scene." He stated that the vehicle they used that day belonged to Cisco and his girlfriend. He first told the officers that they were at the Becherer residence because Cisco had told him he was going to buy a laptop off of Craigslist. The defendant stated that he walked around to the back of the house with Cisco to help him knock on the back door. The officers, however, told the defendant that they had already talked with Ryan and Derek Ewald, that they were aware of items in the car that were stolen from houses on previous days, and that this was his only "shot" to tell the truth.

¶ 12 The defendant later admitted that he was not at the Becherer home for a Craigslist purchase but because Cisco was "casing" houses, i.e. , looking for houses to break into in order to steal valuables. He insisted, however, that he was not going into the houses, only Cisco. He stated that, at the Becherers' residence, he was at the back of the house only to help Cisco in case someone "ran up on him while he did his thing" and to help him if someone were to "jump on him." He stated that Cisco grabbed the landscaping brick, and when Cisco was going to hit a window with it, he told Cisco, "no, don't do that, man." The defendant told the officers that the knife found on the Becherers' deck was Cisco's knife. He stated that Cisco threw the knife when the officers arrived, adding that he (the defendant) was a "dangerous felon" and "can't have no knives."

¶ 13 During the videotaped interrogation, the officers asked the defendant to tell them what other houses in other subdivisions had been burglarized. They said that they needed to know "where all that stuff came from" in the vehicle. The defendant insisted that he did not know anything about other burglaries in the area or what all was in Cisco's vehicle. He stated that Cisco had gone up to two other houses and knocked on the doors but he stayed in the vehicle. The defendant admitted that if someone answered the door, Cisco would pretend to ask for directions and that if no one answered he would "go in there." He insisted that he did not get out of the car at the other houses and that he went to the back of the Becherers' house only because Cisco was afraid that there was a dog. He stated that he did not do anything because he was "on probation."

¶ 14 The videotape showed the defendant telling the officers that he knew Cisco "through drugs" and that the two "go to the same dope dealer." The officers told the defendant that he was admitting to participating in the burglary of the Becherers' residence because he was found at the scene. The officers also accused him of "everything else" and "other burglaries," telling the...