People v. McGee

2021 IL App (2d) 190040

186 N.E.3d 38

452 Ill.Dec. 591

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

v.Aaron A. MCGEE, Defendant-Appellant.

No. 2-19-0040

Appellate Court of Illinois, Second District.

Opinion filed June 22, 2021

James E. Chadd, Douglas R. Hoff, and Jonathan Krieger, of State Appellate Defender's Office, of Chicago, for appellant.

Jamie L. Mosser, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Mary Beth Burns, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Defendant, Aaron A. McGee, appeals the second-stage dismissal of his petition filed under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)) seeking relief from his convictions, following a jury trial, of armed robbery with a dangerous weapon ( 720 ILCS 5/18-2(a)(1) (West 2010)) and armed robbery with a firearm (id. § 18-2(a)(2) ). He contends that he made a substantial showing that his trial counsel provided ineffective assistance by unduly influencing him to reject a plea offer through the promise of an acquittal and by stipulating to the admissibility of a jail phone call involving defendant. We affirm in part, reverse in part, and remand for third-stage proceedings.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with multiple counts but, before trial, all counts except for the armed robbery counts were dismissed. At trial, the victim, a cab driver, testified that, on May 8, 2011, at approximately 11 p.m., he was dispatched to pick up two passengers in Elgin. The two men directed his route as he drove but did not provide a destination address. Eventually, the men asked him to pull over near a house. One of the men exited the cab, approached the home, and knocked on the door. The other man remained in the cab. After knocking on the door, the first man returned to the cab and conversed with the other man through the back seat window. Several minutes later, the victim told the men that they had to pay their fare. The victim then felt something wet on the back of his head and smelled pepper spray. The victim grabbed his keys from the ignition and jumped out of the cab. One of the men then came up behind the victim, placed an object against his head, and demanded money. The man said that he had a gun and would shoot the victim. The victim ran away, turned around, and witnessed one of the men going through his cab and taking a bag that contained his insulin, wallet, mobile phone, and identification cards. The victim testified that he was shown a photo array five weeks after the incident but could not make an identification. He also stated that, due to the passage of time, he would be unable to make an in-court identification of the man who threatened to shoot him.

¶ 4 Frank Rosas testified that, on May 8, 2011, he and defendant made plans to rob a cab driver. Rosas testified about the crime and said that defendant displayed a gun during the robbery. However, Rosas did not know if it was real or fake. When the two arrived at their destination in the victim's cab, defendant left the taxi first and began pacing back and forth on the sidewalk. When the victim flashed a light at Rosas, he sprayed the victim with mace. Rosas then ran away, telling defendant that the plan had failed. Rosas did not look back to see what defendant did after that.

¶ 5 Elgin police detective Brian Gorcowski obtained a statement from defendant. Defendant stated that Rosas had previously told him that he wanted to rob someone, but defendant denied planning the robbery with Rosas. Defendant said that, when the taxi arrived at their destination with him and Rosas, Rosas said he did not have any money. Defendant was mad and suspected that Rosas might be thinking about committing a robbery. Defendant got out and knocked on some doors to avoid getting in trouble. He said that Rosas then sprayed mace on the victim and grabbed a bag from the cab. Defendant said that Rosas eventually gave him the bag, which he threw away. He offered to pay for the bag if he were charged with theft.

¶ 6 The State entered into evidence a recording of a phone call. The parties stipulated that (1) the phone call was between defendant (who was in jail) and another party, (2) the recording was made in the ordinary course of business, (3) the foundation for the admissibility of the recording was "complete," and (4) the recording was a true and accurate recording of the conversation.

¶ 7 After playing the recording, the trial court queried the jury, "Was everyone able to hear that? I couldn't hear a word that was said." A transcript of the recording was not prepared. At the end of its case in chief, the State claimed that the recording was fixed and played it again.

¶ 8 Portions of the recording are difficult to understand. However, during the brief phone call, defendant asks a person identified as "Antoine" for money, before Antoine asks defendant, "hey, you know Frank out, jo?" Defendant responded, "He out?" with a surprised inflection to his voice. Defendant then said, "I know he made a lockout statement. He gonna come to trial. They trying to buck me, jo." Antoine said that he had talked to Frank's wife who informed him of Frank's release, and defendant replied, "Go f*** with him, jo, beat his a***, jo. F*** him, jo. Look, don't even do s***, f*** him, jo. Just talk to him jo, tell him don't come to court and s***. Alright?" Antoine responded that he was not sure where Frank lived. Defendant repeated his request for money, and the call ended shortly after that.

¶ 9 The trial court denied defendant's motion for a directed verdict. Later, the bailiff informed the trial court that some of the jurors were not aware of who was talking on the tape. The trial court commented that "obviously one participant is *** defendant and then he makes a statement ‘mom’ and then a male voice comes on, and I think he refers to the male voice, but I could not understand a word that they said." The State responded that "[i]t's a male voice, and he says ‘Antoine,’ and I believe the stipulation [indicated] that it's a telephone call made by the defendant." Defense counsel commented that there would be a jury instruction and that addressing the issue before the proofs were closed was unnecessary. The trial court agreed and noted that, if the jury asked a question during deliberations, "we will gather together and prepare an answer for them." The trial court advised the jury to submit all questions to the court in writing.

¶ 10 During the jury-instruction conference, the trial court noted that the jury had submitted the following questions in writing: "Who was on the tape? Who called who? Could you reintroduce it? Can we hear it again?" The trial court commented to the parties:

"Well, it was very, very hard to understand what they are saying. I could understand several words, but you didn't go with a transcript. So I would answer this question by sending it back to them with a recording and they can listen over and over and over and answer their own questions. It's in evidence. They have a right to consider it."

The trial court advised the parties that it would give the jury an answer after the jury had retired to deliberate. The State said that it would play the tape again in closing argument. Both parties then rested.

¶ 11 During closing argument, the State argued that the jail call showed consciousness of guilt because defendant was obviously afraid of Rosas's testimony. Defense counsel argued that the purpose of the call was not to threaten Rosas:

"If you listen to it, listen to the intonation in [defendant's] voice when [Antoine] tells him [Rosas] is out of jail. He is surprised. He is surprised. And then he is mad because what he told [the police] is what he is thinking then. [Rosas] maced this guy, and he is out of jail? Listen. He is surprised. So what comes after that? I submit to you—you just hear that somebody is out of jail, and you are still stuck, and he is the one who did it? It's anger. He didn't call to make a threat. It's a reaction. His statement is a reaction to hearing that [Rosas] got out, nothing more, no threat."

¶ 12 During deliberations, the jury asked the court to define reasonable doubt. The court responded that it was for the jury to decide. The jury found defendant guilty.

¶ 13 During posttrial proceedings, the court noted that defendant had sent the court a written statement that presented a potential Krankel issue. See People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). The actual written statement does not appear in the record, but the court quoted defendant: " ‘My PD was supposed to get these X's dropped at first but she didn't do anything for me this whole time I been in jail, but give me my discovery, and that's it.’ " The court asked defendant to elaborate, and defendant stated: "I just feel that [the] counts I got found guilty on, they didn't really have enough evidence on and I feel like they should have gotten dropped." The court then asked defendant if he believed that his counsel tried to get the charges dropped by going before a jury and presenting all the evidence. The court asked, "Do you think that she tried in that regard?" Defendant responded, "Yeah, at the end she did." He added, "At the end. I'm talking about way before." The court asked if there was anything else defendant felt that his counsel did not do for him, and he said, "Not really."

¶ 14 The trial court then asked defense counsel to address defendant's complaint that she should have persuaded the State to drop the Class X felonies. Counsel replied that there had been "protracted" plea negotiations with the State. She believed that at one point there was an offer for defendant to plead guilty to simple robbery but that "[it] did not take place." She said that the offer was presented to defendant and he rejected it. The court commented: "He [defen...