People v. Rouse

224 N.E.3d 862

2022 IL App (1st) 210761

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

v.Darron ROUSE, Defendant-Appellant.

No. 1-21-0761

Appellate Court of Illinois, First District, First Division.

Filed December 5, 2022

Appeal from the Circuit Court of Cook County. No. 10 CR 21758, The Honorable Nicholas Ford, Judge, presiding.

James E. Chadd, Douglas R. Hoff, and Gavin J. Dow, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Retha Stotts, and James Naughton, Assistant State’s Attorneys, of counsel), for the People.

OPINION

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

¶ 1 After a bench trial, the court found Darron Rouse guilty of one count of armed robbery. We affirmed a direct appeal challenge to Rouse’s sentence, after which Rouse filed a postconviction petition. Three claims are relevant here, all involving ineffective assistance of trial counsel (i) for interfering with his right to a jury trial, (ii) for failing to prepare for and present Rouse’s testimony, and (iii) for failing to call Rouse’s sister to testify. The trial court dismissed Rouse’s petition at the second stage of postconviction proceedings.

¶ 2 Critical to our review, the State failed to challenge Rouse’s counsel’s alleged errors on the merits for the first two claims. Instead, the State argues (i) the record rebuts that Rouse’s counsel’s actions denied him the right to a jury trial and (ii) Rouse inadequately pled his claim that counsel ineffectively prevented him from testifying. We reject these arguments because (i) the trial court’s admonishments about Rouse’s right to a jury trial were incomplete and so do not rebut his claim and (ii) Rouse’s petition adequately alleges that by failing to prepare him, his counsel prevented him from testifying. And given that Rouse’s sister’s proposed testimony is largely corroborative of his testimony (which the State does not challenge on the merits), we find Rouse has made a substantial showing of a reasonable probability the outcome of his trial would have been different had counsel performed adequately.

¶ 3 We reverse and remand for an evidentiary hearing consistent with the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)).

¶ 4 Background

¶ 5 The trial court found Rouse guilty of one count of armed robbery after a bench trial. Immediately before trial, the trial court admonished Rouse about giving up his right to a jury trial. Rouse agreed that he understood that, by going forward with a bench trial, the judge would decide his guilt or innocence. He also understood his right "12 of [his] peers’ who decide [his] guilt or innocence" with "any decision they would make *** be[ing] unanimous meaning they would all Have to agree." Rouse denied receiving threats or promises in exchange for choosing a bench trial and affirmed he was choosing a bench trial "of [his] own free will." The trial court found Rouse’s jury waiver valid, and after arguments on counsel’s oral motion to suppress a show-up identification of Rouse (which the trial court denied), the parties proceeded to trial.

¶ 6 Khuiin Hangora and Salman Ali offered substantially similar testimpny about the incident. The two were getting food at a Maxwell Street Polish stand. Ali had explained to Hangora that he was looking to buy a car for his wife. While the two were waiting in line, Rouse ap- proached them and told them about an SUV he had for sale. After Ali asked a few questions about the condition of the SUV, the three men got out of line and went to see it. They got into Hangora’s car—a BMW—with Hangora driving, Ali in the front passenger seat, and Rouse in the back seat. Rouse gave Hangora directions and after about five minutes, they stopped across from a parking lot where Rouse pointed to a car that matched the description.

¶ 7 When Hangora stopped, Rouse pulled out a revolver and said, "put your head down. Put your hand[s] on the lap." Rouse then demanded everything Hangora and Ali had, including their cell phones, as he pointed the revolver back and forth between them. Hangora gave Rouse his cell phone (a Blackberry), his keys, and between $1200 and $1300. Ali gave Rouse his cell phone and $1500 to $1700 in cash. Rouse told Hangora and Ali not to look, back and to count to 100. He then got out on the passenger side. Hangora watched as Rouse went north and then west, before moving out of sight. Ali explained that he watched Rouse leave in the side mirror and saw him "ma[k]e a left towards the fire station," before losing sight of him.

¶ 8 Ali then called 911 with a second phone Hangora kept in his pocket. The police arrived, and Hangora and Ali gave them a description. A "short time later" officers returned with a suspect in a police wagon. Ali and Hangora went over and saw Rouse in the back. Officers then took Hangora and Ali to the police station where they identified their phones, cash in similar denominations as the money they had earlier, and a gun officers recovered as the revolver Rouse pointed at them.

¶ 9 Earlier, Chicago police officers Stanley and Wenta were on patrol. They responded to a robbery call and got a description of the offender from Hangora and Ali. After broadcasting the description, the officers received a radio communication that an officer on another beat had seen someone matching it. As they drove to the location, they saw Rouse coming towards them being pursued by Sergeant Villalobos, another officer. Wenta noticed Rouse "making a tugging motion to his waistband," and Stanley got out of his car to follow Rouse on foot.

¶ 10 Rouse went into an alley and, when Rouse’s path became blocked, Stanley saw Rouse grab "what [Stanley] observed to be a handgun and attempt[ ] to throw it onto a rooftop." The gun did not make it onto the roof, instead hitting the wall of an adjacent building and falling back into the alley. Stanley "immediately" went to retrieve the gun while Wenta and Villalobos continued to chase Rouse (at trial, Stanley identified the revolver he recovered as the one he saw Rouse throw). When Stanley caught up to them, Rouse had been arrested.

¶ 11 Wenta searched Rouse’s pockets and found a cell phone and money, specifically a Blackberry and $2995. Wenta admitted on cross-examination that there was nothing unique about the money and it was all in cash. Stanley then called for a fire engine with a ladder to investigate the roof where Rouse had attempted to throw the gun. An officer scaled the ladder and found another cell phone on the roof. Stanley admitted, however, that he did not see Rouse throw a cell phone toward the roof.

¶ 12 As part of the defense case, the parties stipulated that an expert in fingerprint evidence would testify that one latent print suitable for comparison on the revolver did not match Rouse. He also would testify that no fingerprints suitable for comparison were found on the recovered ammunition. The parties further stipulated to testimony from an employee at Chicago’s Office of Emergency Management and Communications, who would verify the description of the offender broadcast over the radio.

¶ 13 When it came to Rouse’s testimony, the court had this colloquy:

"THE COURT; Darron, you have the absolute right to testify or not testify. It’s kind of something you decide yourself. You can consult with your attorney about it; but in the end, it’s up to you. Do you understand that?

ROUSE: Yes, sir.

THE COURT: Have you talked with [your counsel] about whether or not you wanted to testify or didn’t want to testify?

ROUSE: Yes, sir.

THE COURT: And which path do you want? Do you want to testify or not testify?

ROUSE: I would like to testify."

At that point, Rouse’s counsel asked for a moment and had a discussion off the record. When the proceedings returned to the record, the colloquy continued:

"THE COURT: So do you want to testify or not, Darron?

ROUSE: Sir, no, sir.

THE COURT: You talked with [your counsel] about this. Did anyone threaten you or promise you anything to make you choose not to testify?

ROUSE: No.

THE COURT: Are you choosing not to testify of your own free will?

ROUSE: Yes, sir.

THE COURT; And this is after talking it over with your attorney?

ROUSE: Yes, it is.

THE COURT: Previously you said you wanted to testify. Do you want to testify or you don’t want to testify?

ROUSE: I don’t. She explained something to me."

After the court determined Rouse’s waiver of his right to testify "knowing, intelligent, and voluntary," The defense rested without further witnesses.

¶ 14 The trial court found Rouse guilty of armed robbery and concluded he used a firearm. The court sentenced Rouse to 9 years’ imprisonment for the underlying robbery with a mandatory 15-year enhancement for using a firearm, bringing Rouse’s total sentence to 24 years. On direct appeal, Rouse argued that the 15-year enhancement was unconstitutional; this court rejected that argument and affirmed. People v. Rouse, No. 1-11-3015 (2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 15 Rouse filed a pro se postconviction petition, which the trial court docketed and advanced to the second stage. Rouse eventually made pro se amendments to his petition, and his counsel elected to stand on the petition he filed. Counsel filed a certificate under Illinois Supreme Court Rule 651(c) (eff. Jan. 1, 1967).

¶ 16 Rouse raised several claims. The first relevant here, Rouse claimed that trial counsel was ineffective "where [her] failures prevented [Rouse] from testifying." Rouse acknowledged that the on-record colloquy with the trial court "indicates that [he] knowingly waived his right to testify." But he claimed that counsel told him, in an off-record discussion, that "if he testified it would make her look bad because she didn’t go over what his testimony would be." Rouse alleged that counsel ended their discussion by saying, "he needed to go along with her on this." An...