People v. Wright

2017 IL 119561

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 119561)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

EUGENE WRIGHT, Appellee.

Opinion filed September 21, 2017.

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

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and

Burke concurred in the judgment and opinion.

OPINION

¶1 This appeal arises from the conviction of defendant, Eugene Wright, of armed

robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) following a jury trial

in the circuit court of Cook County. Prior to being allowed to represent himself,

defendant was admonished by the circuit court pursuant to Illinois Supreme Court

Rule 401(a) (eff. July 1, 1984) but was incorrectly informed of the potential

maximum sentence of the charged offense. The appellate court reversed and

remanded for a new trial based upon this incorrect admonishment while affirming

on all other grounds addressed. 2015 IL App (1st) 123496, ¶ 86. For the reasons

that follow, we affirm in part and reverse in part the appellate court’s judgment.

¶2 BACKGROUND

¶3 Defendant and codefendant, Michael Morgan, were charged with armed

robbery with a firearm in connection with the December 26, 2010, robbery of a

Bakers Square restaurant at 7131 North Western Avenue in Chicago. 1

¶4 At the grand jury proceedings on August 15, 2011, Detective Allen Lee

testified that he investigated the robbery at the restaurant. According to his

testimony, defendant and codefendant walked into the restaurant, and codefendant

announced a robbery. The two men exited after taking money from the safe.

Detective Lee testified that codefendant had the handgun that was used in the

crime, that codefendant had time to dispose of the weapon before he was

apprehended by police, and that no weapon was recovered. Detective Lee also

testified that defendant was positively identified by one of the victims of the

robbery and by Chicago police officer Paul Cirrincione, who had been staking out

the restaurant. The grand jury returned a true bill for armed robbery with a firearm.

¶5 On February 7, 2011, defendant was arraigned. He was represented at the

hearing by a public defender. Defendant informed the court that he would not agree

to continuances. The public defender told the court that she would have to

withdraw as counsel, as she was not ready for trial. After the public defender sought

a continuance to order discovery, defendant told the court that he wanted to hire his

own attorney, and the case was continued.

¶6 On February 24, 2011, defendant advised the court that he had not retained his

own counsel and indicated that he wished to proceed pro se. The trial court

informed him that he had a right to an attorney, but the court would not appoint

counsel other than the one from the public defender’s office. The court also

informed defendant that he had the right to represent himself but that if he did so he

would be held to the same standards as an attorney. The court admonished

1

Codefendant Morgan is not a party to this appeal.

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defendant that he was charged with armed robbery in two different cases and that

he could possibly be sentenced to consecutive sentences with a range of 21 to 45

years in prison for each conviction. 2 After the State informed the court that

defendant was eligible for a maximum sentence of 60 years in prison because of his

criminal background, the court admonished defendant that he could be eligible for

an extended-term sentence with a maximum term of 60 years’ imprisonment.

Defendant reiterated that he wanted to proceed pro se.

¶7 On March 1, 2011, the trial court admonished defendant again pursuant to Rule

401(a). The court informed defendant, inter alia, that based upon his criminal

history and the use of a handgun during the offense, he faced concurrent sentences

of 21 to 60 years in prison on the charged offenses. During questioning by the trial

court, defendant represented that he had completed two years of college and had

experience with the criminal justice system. The trial court ultimately allowed

defendant to proceed pro se.

¶8 On July 17, 2012, defendant’s jury trial commenced.

¶9 Martin Perez, the manager of the Bakers Square restaurant at 7131 North

Western Avenue, testified that prior to the robbery, he had received a few e-mails

from his employer that two black men, both about six feet tall, had robbed another

Bakers Square restaurant in the area. On December 26, 2010, shortly before 11

p.m., Michael Morina, a waiter at the restaurant, told Perez that someone wanted to

place an order to go. Perez went to the front of the restaurant and saw codefendant.

He was wearing a grey hoodie and a white hat. Perez asked codefendant if he could

help him. Codefendant turned around and lifted his hoodie to reveal what “looked

like a black automatic, black gun” tucked into the waistband of his pants.

Codefendant informed him, “ ‘[t]his is a robbery; take me to the office.’ ” Perez

testified that he was sure the gun was an actual firearm. He thought it was a

semiautomatic pistol and related that he had experience firing such guns.

¶ 10 Perez further testified that he observed defendant enter the restaurant and

approach the counter. Defendant was wearing a black hoodie, blue jeans, and a

black headband or hat. Perez walked toward the office with codefendant behind

2

Defendant was charged with the December 11, 2010, robbery of another Bakers

Square restaurant in Chicago, which is not at issue in this appeal.

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him. While he was walking, Perez “felt something sharp in [his] back,” which he

thought was a gun. Once in the office, codefendant ordered Perez to open the safe

and give him the money inside. Perez complied and gave codefendant a deposit bag

marked “Bakers Square” as well as some loose bills. Footage from a surveillance

camera inside Perez’s office was shown to the jury. Perez identified defendant on

the video as the man who came into the office after codefendant and grabbed rolls

of coins from the safe.

¶ 11 Perez testified that after he gave codefendant the money, codefendant told him

to gather all of his employees. Perez asked Morina, Tsehayens Tsegaye, a waitress,

and Leo Martinez, a cook, to come toward the kitchen. Codefendant then told all of

them to throw their cell phones into a garbage can. He also demanded Morina’s tip

money, and Morina complied. Codefendant ordered all of the employees into the

walk-in cooler and told them to wait there for five minutes before exiting. Once

inside, Perez pulled the alarm located inside. About 15 minutes after the police

arrived, Perez was asked to look through the blinds of the restaurant at two suspects

standing in the parking lot. Perez positively identified codefendant as the man with

the gun. He also positively identified defendant as the second offender.

¶ 12 Tsegaye and Morina testified consistently with Perez. Tsegaye testified that

when she asked codefendant why he wanted her to throw her cell phone into the

garbage, he told her she was being robbed and lifted his shirt up to reveal the handle

of a gun in his waistband. She identified codefendant as the man who had the gun

but did not view the second person at the show-up because she did not see his face.

Morina testified that he also observed the handle of codefendant’s gun. He had seen

guns before and believed it to be a “9 millimeter pistol.” Morina identified

codefendant at the show-up. He testified that during the robbery he also observed

another individual in a black hooded sweatshirt going toward the manager’s office.

¶ 13 Officer Cirrincione testified that on December 26, 2010, at 10:30 p.m., he and

Officer Tracy Walczak started conducting surveillance of the Bakers Square

restaurant on Western Avenue. They chose that time because a nearby Bakers

Square had recently been robbed close to closing. The officers had been informed

that the other robbery had been carried out by two black males in their late twenties

or early thirties. The two men had been observed leaving that location in a dark or

black van with tinted windows.

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¶ 14 Officer Cirrincione further testified that on December 26, 2010, he and his

partner were in an unmarked vehicle approximately 100 feet from one of the

entrances to the restaurant. Shortly before 11 p.m., he observed two men who fit the

general description of the subjects leave the restaurant and walk quickly south on

Western Avenue. The officers followed the two men by car as they walked east

onto Estes Street. Officer Cirrincione asked them to approach the car, and they fled

on foot in different directions. The man he identified as defendant was wearing blue

jeans, a black hoodie, and something covering part of his head. He ran east on Estes

Street while the man he identified as codefendant ran southwest to a nearby

mini-mall parking lot. Officer Walczak got out of the car and chased codefendant

on foot.

¶ 15 Officer Cirrincione testified that he drove the car around the alley east of the

mini-mall in an attempt to cut off codefendant. At the beginning of the chase, he

briefly lost sight of codefendant. Officer Cirrincione eventually got out of the car

and chased codefendant on foot. While in pursuit, he received a radio call that the

Bakers Square restaurant had been robbed. He continued the foot chase until

codefendant slipped in front of a house at 2322 West Greenleaf Street. He and other

officers were able to detain codefendant there. A search of codefendant’s person

revealed a night deposit bag labeled “Bakers Square,” which contained a large

bundle of cash. They also discovered a separate large bundle of loose bills in his

pocket. The police searched the surrounding area, which was covered by a large

amount of snow. They were unable to locate a firearm.

¶ 16 Sergeant Ken Lewandowski testified that after codefendant was detained, he

headed back toward the Bakers Square restaurant. On Western Avenue, he noticed

a black conversion van with tinted windows, which was similar to the description

of the van used in the earlier robbery. He radioed for officers to stop the van, and

several responded.

¶ 17 Sergeant Lewandowski further testified that officers brought defendant and

codefendant to the restaurant to conduct show-ups. Sergeant Lewandowski was

inside with the witnesses, who viewed the suspects through the blinds of the

restaurant while the suspects were in the parking lot. Perez, Morina, and Tsegaye

each individually identified codefendant as one of the offenders. Perez also

positively identified defendant as the other offender. Morina and Tsegaye did not

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view the show-up of defendant because they told police that they did not get a good

look at the second offender.

¶ 18 Chicago police officer Eric Killion testified that defendant was the sole

occupant of the van that was curbed by police on Western Avenue. Defendant was

wearing a black hooded sweatshirt and jeans at the time he was apprehended.

Police searched the van and found four rolls of dimes and two rolls of quarters by

the front seat.

¶ 19 Detective Lee testified that on December 27, 2010, at approximately 12:30

a.m., he went to the Bakers Square to investigate the robbery. He viewed the

surveillance video and interviewed Perez. Detective Lee later viewed surveillance

photos of the suspects involved in the earlier robbery at the Bakers Square

restaurant at Harlem and Foster Avenues in Chicago. He testified that he inspected

the black van defendant had been driving when stopped by police in this case. He

found a gray puffy vest on one of the passenger seats that was similar to the one

worn by one of the suspects in the surveillance photos of the earlier Bakers Square

robbery.

¶ 20 On cross-examination, defendant asked Detective Lee whether he had testified

before the grand jury that a weapon had not been recovered. Detective Lee

responded, “That is correct. At that date it was not.” He further testified in response

to a similar question by defendant, “[o]n that date of the incident, no weapon was

recovered. A gun was subsequently recovered. When it was recovered, it was

undetermined if it was involved in this case or not.” After being allowed to review a

Chicago police evidence report that contained his detective notes, he further

testified that on January 2, 2011, a black Crossman BB gun was observed by a

citizen in the street in the vicinity of where one of the suspects was running.

Detective Lee requested the BB gun be analyzed by the Illinois State Police for

fingerprints in order to possibly link it with one of the two offenders in this case. He

testified that no suitable fingerprints were found on the BB gun and that it could not

be tied to this case.

¶ 21 Defendant showed Detective Lee photographs of a BB gun that was discovered

near Western Avenue and Estes Street. Defendant moved to enter the photos into

evidence. The trial court asked if he knew who took the photos and when they were

taken. Defendant did not know. Detective Lee stated that he had never seen the

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photos before. The trial court informed defendant that he could not ask questions

about them. Defendant then moved to dismiss the case asserting that, “the State

violated the Brady Rule by not submitting these pictures to me.”

¶ 22 A sidebar conference ensued. The assistant State’s Attorney told the court that

he had not seen the photos. 3 He further related that he had tendered to defendant

the Chicago police crime scene processing report, which detailed that a BB gun had

been discovered on January 2, 2011, within the vicinity of the restaurant. The report

also disclosed that the BB gun was submitted for fingerprints but it had not yielded

any suitable prints linking it to this case. Defendant argued that in addition to a

Brady violation, the indictment should be dismissed because Detective Lee had

provided inaccurate testimony before the grand jury when he testified that no

weapon had been recovered.

¶ 23 In response to the assistant State’s Attorney’s comment that there was no

evidence that the BB gun was used in the robbery, defendant was asked by the trial

court to make an offer of proof. Defendant responded that codefendant told

Detective Lee that he committed the robbery with a black BB gun. Defendant

acknowledged that the statement was hearsay and that he needed “the actual

person” to testify. The State responded that if defendant was going to call

codefendant “to talk about the BB gun, he can call him to see what he says, but he

also gave a statement that he committed this crime with this defendant so he is

running a risk.” Defendant responded that he had “no problem” with eliciting

codefendant’s statement. The trial court denied defendant’s motion to dismiss the

indictment based on a Brady violation. Similarly, the trial court denied the motion

to dismiss the indictment based upon Detective Lee’s purportedly false testimony

before the grand jury.

¶ 24 Following the sidebar conference, defendant continued his cross-examination

of Detective Lee, who testified that he interviewed codefendant about the crime.

When defendant asked him about the conversation, the trial court sustained the

State’s objection, stating, “[w]e are not going into the statement, the nature of the

conversation with [codefendant].”

3

Defendant told the trial court that he received the photos from the Cook County

State’s Attorney’s office.

-7-

¶ 25 The State also presented evidence concerning the December 11, 2010, Bakers

Square robbery. The jury was instructed to consider this other-crimes evidence

related to defendant only for the purpose of identification and modus operandi.

¶ 26 Defendant testified on his own behalf and called witnesses. He attempted to call

codefendant, but codefendant exercised his fifth amendment right not to testify.

¶ 27 Defendant testified that on December 26, 2010, he was driving south on

Western Avenue when police stopped his van around Western Avenue and Pratt

Boulevard. The police took him to a nearby Bakers Square restaurant for a

show-up. He testified that in December 2010, he was living in Atlanta, Georgia, but

was staying with a friend at 6331 South Sangamon Street in Chicago. He denied

telling police that prior to being stopped he had driven to 7300 North Bell Avenue

to see a women he had met online. He also denied committing either Bakers Square

robbery, knowing codefendant, or having rolls of dimes or quarters in the van that

was stopped by police.

¶ 28 Officer Walczak testified that she completed a case report that represented that

three complainants of the robbery and another witness positively identified

defendant at the show-up. On further questioning, however, she acknowledged that

this was in error, as three complainants identified codefendant but only one

identified defendant.

¶ 29 Perez testified that he only saw the handle of the gun but that he was “100%

sure” that the weapon codefendant displayed was an “actual firearm.” Defendant

showed him a group exhibit of photos, which included a BB gun. Perez said that the

object in one of the photos looked like a gun. He testified that it was unclear,

however, whether the gun looked like the type of gun used in the robbery because

the photo was blurry.

¶ 30 In rebuttal, Detective Lee testified that defendant told him that prior to being

stopped in the van, he had driven to the north side of the city to meet a woman he

had contacted on a website. He told Detective Lee that he drove to 7312 North Bell

Avenue to see the woman he met online but she had given him a “ ‘bogus

address.’ ”

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¶ 31 At the jury instruction conference, the State asked for an instruction on both

armed robbery and the lesser included offense of robbery because defendant had

introduced evidence of the BB gun that had been found a week after the robbery in

the vicinity of the restaurant. Defendant objected. The trial court explained that the

instruction would be given, over his objection, because he “introduced evidence of

a gun and then argued that it was a BB gun.” The trial court noted, however, that

“the [BB] gun in question has not been tied to this case, it’s not been identified by

anyone as being in the Bakers Square in the possession of [codefendant] or anyone

else; indeed it’s not tied to any person at all.” The jury was tendered verdict forms

for both robbery and armed robbery.

¶ 32 The jury found defendant guilty of armed robbery. At sentencing, the State

informed the trial court that defendant was eligible for a maximum sentence of 75

years but sought the imposition of a 60-year sentence. 4 The trial court sentenced

defendant to 50 years’ imprisonment.

¶ 33 On appeal, defendant raised several issues. He asserted that he was entitled to a

new trial because the trial court failed to properly admonish him under Rule 401(a)

before allowing him to waive his right to counsel. 2015 IL App (1st) 123496, ¶ 43.

This argument was based on the fact that he was incorrectly informed of the

potential maximum sentence for the charged offense. Id. ¶ 47. The appellate court

recognized that defendant had forfeited this issue but held that the trial court did not

substantially comply with Rule 401(a) when it informed him that he was eligible

for an extended-term sentence up to 60 years in prison for the charged offense,

rather than the correct maximum sentence of 75 years. Id. ¶¶ 44, 47. Based upon

this error, the appellate court held that defendant’s waiver of counsel was

unknowing and involuntary. Id. ¶ 47. The appellate court noted that defendant’s

case did not fall within any exception where a deficiency in the admonishment had

been found not to prejudice a defendant. Id. ¶ 51.

¶ 34 The appellate court rejected the remaining issues raised by defendant and found

that because it was remanding on other grounds it need not determine whether the

4

Based upon a prior armed robbery conviction for an offense committed by defendant

within 10 years of the instant offense and excluding time spent in custody, the State

asserted that he was eligible for an extended-term sentence of 21 to 75 years, which

included a 15-year firearm enhancement.

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trial judge’s failure to sua sponte provide the jury with the instruction on the

definition of a firearm was error. Id. ¶¶ 41, 70, 78, 83. The appellate court reversed

defendant’s conviction and remanded for further proceedings. Id. ¶ 86.

¶ 35 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.

Jan. 1, 2015).

¶ 36 ANALYSIS

¶ 37 I. State’s Appeal

¶ 38 The State contends that the appellate court erred by concluding that the trial

court’s admonishments failed to substantially comply with Rule 401(a) on the basis

that defendant was misinformed as to the maximum potential sentence for armed

robbery. The State asserts that the record shows that defendant’s waiver of his right

to counsel was made knowingly and voluntarily and the sole admonishment he did

not receive in no way prejudiced his rights.

¶ 39 The sixth amendment to the United States Constitution (U.S. Const., amend VI)

guarantees an accused in a criminal proceeding both the right to the assistance of

counsel and the correlative right to proceed without counsel. Faretta v. California,

422 U.S. 806, 832-34 (1975). This court has long recognized that the right to

self-representation is “as basic and fundamental as [the] right to be represented by

counsel.” (Internal quotation marks omitted.) People v. Nelson, 47 Ill. 2d 570, 574

(1971). An accused may therefore waive his constitutional right to counsel as long

as the waiver is voluntary, knowing, and intelligent. People v. Haynes, 174 Ill. 2d

204, 235 (1996) (citing Faretta, 422 U.S. at 835). “Although a court may consider

the decision unwise, a defendant’s knowing and intelligent election to represent

himself must be honored out of ‘ “that respect for the individual which is the

lifeblood of the law.” ’ ” Id. (quoting People v. Silagy, 101 Ill. 2d 147, 180 (1984),

quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970)).

¶ 40 Illinois Supreme Court Rule 401(a) governs the trial court’s acceptance of an

accused’s waiver of counsel in Illinois. That rule states:

“Any waiver of counsel shall be in open court. The court shall not permit a

waiver of counsel by a person accused of an offense punishable by

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imprisonment without first, by addressing the defendant personally in open

court, informing him of and determining that he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including,

when applicable, the penalty to which the defendant may be subjected

because of prior convictions or consecutive sentences; and

(3) that he has a right to counsel and, if he is indigent, to have counsel

appointed for him by the court.” Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

¶ 41 This court has recognized that compliance with Rule 401(a) is required for an

effective waiver of counsel. Haynes, 174 Ill. 2d at 236 (citing People v. Baker, 94

Ill. 2d 129, 137 (1983)). We have recognized for 30 years that “[s]trict technical

compliance with Rule 401(a), however, is not always required. Rather, substantial

compliance will be sufficient to effectuate a valid waiver if the record indicates that

the waiver was made knowingly and voluntarily, and the admonishment the

defendant received did not prejudice his rights.” Id. (citing People v. Coleman, 129

Ill. 2d 321, 333 (1989), and People v. Johnson, 119 Ill. 2d 119, 132 (1987)).

¶ 42 This court has considered the contours of substantial compliance with Rule

401(a) in several cases. In Coleman, relied upon by the State, the defendant filed a

motion prior to trial to proceed pro se. Coleman, 129 Ill. 2d at 331. The trial court

admonished the defendant of his right to counsel and, as an indigent, his right to

court-appointed counsel. Id. The trial court further admonished him of the nature of

the charges against him and informed him that the maximum sentence prescribed

by law was the death penalty and the minimum sentence prescribed by law was a

20-year term of imprisonment. Id. In fact, the minimum sentence possible was

natural life imprisonment. Id. at 332.

¶ 43 The Coleman court held that the trial court had substantially complied with

Rule 401(a) in that it had admonished the defendant of his right to counsel,

informed him of the nature of the charges against him, and explained that the death

penalty was the possible maximum sentence. Id. at 333. In holding that the trial

court substantially complied with Rule 401(a), we stated: “Where a defendant

knows the nature of the charges against him and understands that as a result of those

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charges he may receive the death penalty, his knowledge and understanding that he

may be eligible to receive a lesser sentence pales in comparison.” Id. at 333-34. In

Coleman, the record established the defendant knew that the minimum sentence

was natural life imprisonment, offered legitimate reasons for waiving his right to

counsel, and attempted to manipulate the proceedings by repeatedly refusing the

services of counsel. Id. at 340. We therefore concluded that the defendant’s waiver

of counsel, despite the incorrect admonishment of the minimum sentence, was

made knowingly and intelligently. Id.

¶ 44 Similarly, in Johnson, the trial court incorrectly informed the defendant under

Rule 401(a) that the minimum sentence was a “number of years” when it was

actually natural life in prison. Johnson, 119 Ill. 2d at 129. This court held that the

admonishment the defendant received substantially complied with the rule despite

this error. Id. at 132. We held that a review of the entire record indicated that the

defendant’s waiver of his right to counsel was made knowingly and voluntarily and

the sole admonishment that he did not receive in no way prejudiced his rights. Id.

¶ 45 Thereafter, in Haynes, the defendant asserted that the admonishments were

insufficient to satisfy Rule 401(a) because the trial court neglected to include the

minimum and maximum sentences possible for a burglary charge. Haynes, 174 Ill.

2d at 242. This court held that the information omitted from the admonishments did

not invalidate the defendant’s waiver of counsel. Id. at 243. As in Coleman and

Johnson, the defendant was fully aware of the range of sentences possible for the

most serious charge against him, first degree murder, including the possibility of

the death sentence. Id. Given that, the importance of the defendant having specific

knowledge of the minimum and maximum sentences for the significantly less

serious charge of burglary paled in comparison. Id. Consequently, we held that the

trial court’s admonishments, despite the omission of the sentences for burglary,

substantially complied with Rule 401(a). Id.

¶ 46 This court further held in Haynes that the record as a whole clearly showed that

the defendant’s decision to waive counsel was made freely, knowingly, and

intelligently. Id. The defendant first expressed his desire to represent himself at the

outset of the proceedings against him and reiterated that desire in open court on

several other occasions. Id. at 243-44. Further, several examining doctors at the

fitness hearing testified that, during their meetings with the defendant, he was

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adamant in his desire to represent himself. Id. at 244. Consequently, we held that

there could be no doubt as to the defendant’s choice. Id. In addition, testimony at

the fitness hearing revealed that the defendant expressed an understanding of the

nature of the charges against him, the role an attorney would play, and the fact that

the death penalty was a possible sentence. Id. With regard to his right to appointed

counsel, the defendant was repeatedly advised of that right and, in fact, received the

assistance of appointed counsel for a period of time prior to trial. Id. Therefore, in

Haynes, it was evident that the defendant understood that he was entitled to legal

representation. Id. We concluded that the defendant’s waiver of counsel was

therefore valid and that reversal for a new trial was not warranted. Id.

¶ 47 In contrast, in People v. Campbell, this court held there was no compliance,

substantial or otherwise, with Rule 401(a). People v. Campbell, 224 Ill. 2d 80, 84

(2006). There, the defendant had been accused of an offense punishable by

imprisonment. Id. The trial court, however, allowed him to proceed pro se without

making any attempt to inform him of the nature of the charges, the range of possible

penalties, or his right to counsel. Id. We therefore concluded that his waiver of

counsel was invalid and his conviction could not stand. Id. at 85.

¶ 48 In this case, the record reveals the following facts. Defendant was arraigned on

February 7, 2011. He asserted at the hearing that he would not agree to

continuances. The public defender indicated that she would have to withdraw as

counsel, as she was not ready for trial. The trial court continued the case for

defendant to seek counsel. At the next court date on February 24, 2011, before

Judge Lauren Edidin, defendant did not have an attorney. When the trial court

asked defendant how long his family indicated it might take to find an attorney,

defendant responded that he was “not giving up [his] right to speedy trial at all.”

The trial court passed the case to allow defendant to speak to a public defender.

¶ 49 Afterward, the following colloquy occurred:

“THE COURT: Mr. Wright, I gave you some documents and those

documents—the offenses were purported to occur on December 11th, 2010 and

there is actually some other charges as well, another case that occurred. Well,

this says on December 11th as well.

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MR. CENAR [Assistant State’s Attorney]: One is December 26th and

one—it’s the 26th on these.

THE COURT: What I gave you says the 26th.

THE DEFENDANT: It does.

THE COURT: Thank you. I have another copy that says the 11th. They

were actually both put in.

MR. CENAR: Very good.

THE COURT: So there are actually two cases and I don’t know if based on

any information if that would be—would that be possible consecutive

sentences?

MR. CENAR: It’s possible.

THE COURT: It’s possible it could be consecutive which would be 2l and

then another additional 21 minimum or it could be the maximum 45 and an

additional 45; do you understand that?

THE DEFENDANT: I do.

THE COURT: Again, I am going to ask you, I have told you that you would

be entitled to have a public defender represent you, is that correct?

THE DEFENDANT: You have told me that.

THE COURT: And currently there’s no basis for me to appoint an attorney

other than a Public Defender; do you understand that?

THE DEFENDANT: Yes.

THE COURT: You do have the right to represent yourself and I have given

you all the bases and tried to give you as much information so that you could

understand how serious this case is and how it would be quite challenging for

you to do this on your own and if you are convicted after handling this case on

your own and you choose to appeal that conviction, you will not then be able to

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complain that you were not competent to represent yourself; do you understand

that?

THE DEFENDANT: I do.

THE COURT: Okay. Understanding that, I believe you are making a very

big mistake and I am afraid it may be something that you might regret. Mr.

Wright, do you still wish to represent yourself?

THE DEFENDANT: Yes, I do.”

¶ 50 Later, based on the State’s representation, the trial court clarified that defendant

was subject to possible extended-term consecutive sentences with up to 60 years in

prison.

¶ 51 On March 1, 2011, Judge William O’Brien re-admonished defendant. The

following colloquy ensued:

“THE COURT: This is Mr. Eugene Wright. Okay. Mr. Wright was up the

last time February the 24th. I was not here. Judge Edidin was in my stead. And

at that time Mr. Wright had indicated that he wished to represent himself. Is that

correct, Mr. Wright?

THE DEFENDANT: It is.

THE COURT: All right. What I am going to do is, just so I am clear, I am

going to re-admonish you as to your pro se rights. Okay? Do you understand

that you have—you have indicated that you wish to represent yourself. Is that

correct, Mr. Wright?

THE DEFENDANT: It is.

THE COURT: All right. You understand that you have the right to be

represented by an attorney, that I would appoint the public defender to represent

you. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Okay. You said—you do not wish to be represented by the

public defender, is that correct?

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THE DEFENDANT: The thing I want, as I am going to say, I am asking for

a speedy trial. And there is a conflict.

THE COURT: Well, that’s the situation, Mr. Wright. You know, the public

defender is a lawyer on it. And they have to answer ready and demand trial

when they are ready to go ahead and do it. And it’s hard to ask a lawyer to go

ahead and do that when they don’t even have the reports in front of them. That

is why they don’t do that. They have to, at least, wait until they get all the

discovery and then they decide. That is the reason that they do that. Otherwise,

you are going to come back at them later on if it’s not a good result and say,

‘Well, wait a minute. You were ineffective.’ ‘Well, I was ineffective because I

did not have all the reports.’ So, they are kind of in a catch 22. Do you

understand that’s why they do not do that right off the bat? But—and that’s why

they say, if you want to go ahead and do that, you are acting as your own

lawyer. So, that’s your choice.

THE DEFENDANT: It shouldn’t be part of the constitution then if it is a

conflict.

THE COURT: Again, it’s your right, your right to represent yourself. You

understand that?

THE DEFENDANT: Yeah.

THE COURT: All right. So, you have indicated that you do not want the

public defender to represent you. Is that correct?

THE DEFENDANT: I am saying there is a conflict. And as long as there is

a conflict, it can’t get done.

THE COURT: This is the question.

THE DEFENDANT: I heard the question.

THE COURT: Well, it calls for yes or no.

THE DEFENDANT: As long as there is a conflict, it can’t get done.

THE COURT: So, you do not want the public defender to represent you?

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THE DEFENDANT: As long as there is a conflict, it can’t get done.

THE COURT: All right. Do you understand that there is no basis for me to

appoint an attorney other than the public defender? Do you understand that?

THE DEFENDANT: Yes.

THE COURT: You understand you have the right to represent yourself. But

before I allow you to do so, I must inform you of certain things. First, you are

charged with the offense of—11 CR 927 is 1, 2, 3, 4—6 counts of armed

robbery. So, it’s a Class X offense. And the range is 6 to 30 years. And on Case

Number 11 CR 928, you are charged with—it looks like 4 counts of armed

robbery. Those cases are not consecutive sentencing. Is that correct, State?

MR. CENAR: Right, Judge.

THE COURT: It’s not a consecutive situation.

MR. CENAR: No.

THE COURT: It’s a concurrent situation.

MR. CENAR: Yes.

THE COURT: And, also, the range is 6 to 30. Are there any enhancements

on these cases as a result of Mr. Wright’s—any background?

MR. CENAR: Well, first of all, as charged, he is charged with armed

robbery with a firearm. And the minimum is 21 years. It’s 6 plus 15 per the

statute. And based upon his record, he is extendable.

THE COURT: So, he is looking at 21 through—

MR. CENAR: Through 60.

THE COURT: Through 60 is the range of sentencing that you face. It’s a

3-year period of mandatory supervised release. Is it 50 percent time?

MR. CENAR: Yes, 50 percent time.

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THE COURT: It’s not an 85 percent sentence. All right. Do you understand

that?

THE DEFENDANT: Yes.

THE COURT: Okay. How old are you, sir?

THE DEFENDANT: I am 37.

THE COURT: 37. How far did you get in school?

THE DEFENDANT: I have been in college.

THE COURT: How far in college?

THE DEFENDANT: Second year.

THE COURT: Sophomore. And have you ever had any legal training at all?

THE DEFENDANT: No.

THE COURT: Have you ever represented yourself in court before?

THE DEFENDANT: I did on appeal.

THE COURT: On appeal?

THE DEFENDANT: Yes.

THE COURT: And for what kind of a charge was that? Was it a felony or

misdemeanor?

THE DEFENDANT: A felony.

THE COURT: How long ago was that?

THE DEFENDANT: It’s been about 10 years.

THE COURT: Okay. And so, you have done legal research, is that correct?

THE DEFENDANT: Yes.

THE COURT: Yes?

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THE DEFENDANT: Yes.

THE COURT: Okay. Do you know anything about the rules of evidence

that apply in a criminal case?

THE DEFENDANT: There are certain things I know.

THE COURT: Okay. Have you ever selected a jury?

THE DEFENDANT: Yes.

THE COURT: You have selected a jury?

THE DEFENDANT: I have been in part of a jury, [Y]our Honor, selection I

should say.

THE COURT: As a defendant, have you ever selected a jury?

THE DEFENDANT: No.

THE COURT: No, okay. Do you understand that the prosecutors in this

case have tried many cases? They have gone to college and law school. They

have passed the bar exam and received training through the State’s Attorney’s

Office. And they know the rules of evidence. You understand that?

THE DEFENDANT: Yes.

THE COURT: You understand that you may be at a great disadvantage of

trying this case against them because you too will have to follow those rules of

evidence and just like any lawyer is expected to do? When you step into those

shoes, you are going to be held to the same standards that any lawyer would be

held to. I cannot assist you. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And once the trial begins, you will not be able to change

your mind and say, ‘Wait a minute. It doesn’t look like this is going too well.

Time out. I want to have a lawyer.’ No. Once the ship has sailed, the ship has

sailed. Do you understand that?

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THE DEFENDANT: Yes.

THE COURT: By examining the charges, I will not appoint a stand-by

counsel to represent you. So, you won’t have a lawyer you can refer questions

to in this case. The charges are not that difficult to understand. And I have also

considered the nature and gravity of the charge, the expected factual and legal

complexity of the proceedings and your abilities and experience. And, so, like I

said before, once you begin, you are on your own. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: And if you are convicted—if you are convicted—if you are

convicted, on appeal, you would you not be able to complain about your own

competency to represent yourself. Do you understand me? That does not

become an issue for you.

THE DEFENDANT: Yes.

THE COURT: All right. Understanding that, I believe you are making a

very big mistake. But do you still wish to represent yourself?

THE DEFENDANT: Yes.”

¶ 52 After reviewing the above colloquy, the appellate court concluded that because

the trial judge informed defendant that the maximum possible sentence he faced

was 60 years’ imprisonment, rather than the correct 75-year sentence, the

admonishments failed to substantially comply with Rule 401(a), amounting to plain

error and warranting a new trial. 2015 IL App (1st) 123496, ¶¶ 44, 60. We reject

that holding.

¶ 53 Similar to Coleman, Johnson, and Haynes, and in marked contrast to Campbell,

under the circumstances in this case, there was substantial compliance with Rule

401(a). After defendant initially asserted that he desired to proceed pro se, the trial

court provided him with a copy of the charging instrument and admonished him

that he was subject to a possible sentence of 21 to 60 years for the charged offenses

and that he was entitled to have a public defender represent him. At the next court

date, defendant was again admonished by the trial court under Rule 401(a). The

trial court informed him that he was charged with four counts of armed robbery. He

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was told that he faced a possible sentencing range of 21 to 60 years for the offenses

and that the sentences would be served concurrently. The trial court also informed

defendant of his right to appointed counsel. The trial court further informed him

that if he proceeded pro se, he would be held to the same standards to which a

lawyer would be held and, if convicted, he could not complain about his own

competency.

¶ 54 We do not diminish the importance of correct admonishments as to the actual

maximum sentence allowed. Each case, however, must be evaluated on its own

particular set of facts. Based upon the colloquy above, we conclude that the trial

court substantially complied with Rule 401(a) when it properly admonished

defendant in all respects except when it informed him that he faced a maximum

sentence of 60 years in prison, when it was actually 75 years.

¶ 55 We find that defendant’s decision to waive counsel was made freely,

knowingly, and intelligently. The trial court elicited from defendant that he was 37

years old, had attended two years of college, and had previously represented

himself on appeal in a felony case. He expressed his desire to represent himself at

the beginning of this case and reiterated that desire a number of times thereafter,

even after being informed by the trial court of the potential pitfalls of doing so. We

also find compelling the basis given by defendant as to why he wished to represent

himself. He repeatedly indicated to the trial court that his reason for not accepting

the appointment of the public defender, and instead proceeding pro se, was due to

speedy trial concerns. Defendant’s articulated reason did not hinge on the

maximum sentence allowed for the charged offenses. Accordingly, the record

establishes that defendant’s decision to waive counsel was made knowingly and

intelligently. See Coleman, 129 Ill. 2d at 336 (holding that the record established

that the defendant had specific, legitimate reasons for waiving his right to counsel,

including his dissatisfaction with counsel’s representation, which demonstrated

that he would have waived counsel regardless of the length of the minimum

sentence prescribed by law).

¶ 56 Finally, there is no basis for us to conclude that defendant was prejudiced by the

trial court’s understatement of the potential maximum sentence. Defendant does

not even make a bare allegation that he would not have proceeded to represent

himself if he had known the possible maximum sentence he faced for armed

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robbery was actually 75 years, rather than 60 years. See id. at 334 (holding that the

record contradicted the defendant’s assertion that if he had known the actual

minimum sentence of the offense was natural life in prison, he would not have

proceeded to represent himself). We also note that while defendant was eligible for

a 75-year sentence, the State actually asked for the imposition of a 60-year sentence

and the trial court imposed a 50-year sentence.

¶ 57 For these reasons, we conclude that despite the trial court’s incorrect statement

of the maximum potential sentence, the trial court substantially complied with Rule

401(a), and defendant made a voluntary, knowing, and intelligent waiver of counsel

prior to being allowed to proceed pro se.

¶ 58 II. Defendant’s Cross-Appeal

¶ 59 Grand Jury Proceeding

¶ 60 Defendant raises several arguments in his cross-appeal. First, he contends that

the trial court erred by denying his motion to dismiss the indictment based on his

claim that the State presented deceptive evidence to the grand jury through

Detective Lee’s testimony. According to defendant, if Detective Lee had testified

that a BB gun was recovered by police in the vicinity of the restaurant a week after

the robbery, the grand jury may not have indicted him for the crime of armed

robbery with a firearm.

¶ 61 “Challenges to grand jury proceedings are limited. In general, a defendant may

not challenge the validity of an indictment returned by a legally constituted grand

jury.” People v. DiVincenzo, 183 Ill. 2d 239, 255 (1998), abrogated on other

grounds by People v. McDonald, 2016 IL 118882. A defendant may challenge an

indictment that is procured through prosecutorial misconduct. Id. The prosecutorial

misconduct, however, must rise to the level of a deprivation of due process or a

miscarriage of justice. Id. at 257.

¶ 62 The due process rights of a defendant may be violated if the State deliberately

or intentionally misleads the grand jury, uses known perjured or false testimony, or

presents other deceptive or inaccurate evidence. Id. To warrant dismissal of the

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indictment, a defendant must show that the State prevented the grand jury from

returning a meaningful indictment by misleading or coercing it. Id. at 258.

¶ 63 In support of his argument, defendant relies upon People v. Oliver, 368 Ill. App.

3d 690 (2006). There, a police officer falsely testified before the grand jury that he

personally witnessed the defendant conducting hand-to-hand narcotics

transactions. Id. at 691, 695. The officer, however, had not personally observed the

transactions but, instead, had relied on another police officer’s report. Id. at 694.

This testimony was found to be particularly deceptive because it concealed its

hearsay nature and also mischaracterized the other officer’s observations of the

transaction. Id. at 697. The appellate court concluded that without the officer’s

misleading testimony, the grand jury would not have found probable cause to indict

the defendant. Id. at 698-99. Consequently, the appellate court held that the

defendant was entitled to a dismissal of the indictment because he had shown that

he suffered actual and substantial prejudice due to the officer’s testimony. Id. at

699.

¶ 64 Here, Detective Lee testified before the grand jury that defendant and

codefendant walked into the restaurant and codefendant announced a robbery. The

two men exited after taking money from the safe. Detective Lee testified that

codefendant had the handgun that was used in the crime. He also testified that

defendant was positively identified by one of the victims of the robbery and by

Officer Cirrincione.

¶ 65 Defendant cites the following grand jury testimony by Detective Lee to support

his claim that the State procured, as in Oliver, inaccurate testimony that similarly

warrants dismissal of the indictment:

“Q: A handgun was used in this incident, was being held by Mr. Morgan

during the incident?

A: That’s correct.

Q: There was time though for Morgan to dispose of the weapon?

A: Yes.

Q: Because it hasn’t been recovered, has it?

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A: No.”

¶ 66 Later, at trial, Detective Lee testified that a week after the robbery, a black

Crossman BB gun was observed by a citizen in the street in the vicinity of where

one of the suspects was running. Detective Lee requested that the BB gun be

analyzed for fingerprints in order to possibly link it with one of the two offenders in

this case. He testified that no suitable fingerprints were found on the BB gun and

that it could not be tied to this case. The assistant State’s Attorney also informed the

trial court that he had tendered to defendant the Chicago police crime scene

processing report, which stated that a BB gun had been discovered on January 2,

2011, within the vicinity of the restaurant. The report also disclosed that the BB gun

had been submitted for fingerprints but it had not yielded any suitable prints linking

it to this crime.

¶ 67 Simply put, there is no evidence that the BB gun recovered a week after the

robbery was used in the commission of this offense. As the trial and appellate

courts below recognized, unlike the officer in Oliver, Detective Lee’s grand jury

testimony cited by defendant was not false because no gun had been recovered and

specifically linked to the robbery. Consequently, defendant has not shown that the

State prevented the grand jury from returning a meaningful indictment by

misleading or coercing it.

¶ 68 Sufficiency of the Evidence

¶ 69 Next, defendant contends that the State failed to prove that he committed

robbery while armed with a firearm because the victims only briefly saw the handle

of the gun and there was evidence that during the robbery codefendant actually

possessed a BB gun.

¶ 70 “When presented with a challenge to the sufficiency of the State’s evidence, a

reviewing court must determine whether ‘ “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” ’ ” (Emphasis in

original.) People v. Ross, 229 Ill. 2d 255, 272 (2008) (quoting People v. Collins,

106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Under this standard a reviewing court does not retry the defendant, and the trier of

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fact remains responsible for making determinations regarding the credibility of

witnesses, the weight to be given their testimony, and the reasonable inferences to

be drawn from the evidence. Id. A conviction will not be set aside on appeal unless

the evidence is so unreasonable, improbable, or unsatisfactory that there remains a

reasonable doubt of the defendant’s guilt. Id.

¶ 71 Defendant was charged with armed robbery in that he, or someone he was

accountable for, “[took] property *** from the person or presence of another by the

use of force or by threatening imminent use of force” (720 ILCS 5/18-1(a) (West

2010)) and that he, or someone he was accountable for, “carrie[d] on or about his

*** person or [was] otherwise armed with a firearm” (720 ILCS 5/18-2(a)(2) (West

2010)). For purposes of this statute, a firearm is defined in section 1.1 of the

Firearm Owners Identification Card Act (FOID Act), in pertinent part, as “any

device, by whatever name known, which is designed to expel a projectile or

projectiles by the action of an explosion, expansion of gas or escape of gas” but

specifically excluding, among other items, any pneumatic gun, spring gun, paint

ball gun, or BB gun. 430 ILCS 65/1.1 (West 2010); 720 ILCS 5/2-7.5 (West 2010).

¶ 72 In People v. Washington, this court considered whether the State presented

sufficient evidence of a “dangerous weapon” to prove the defendant guilty of

armed robbery, aggravated kidnapping, and aggravated vehicular hijacking. People

v. Washington, 2012 IL 107993, ¶ 1. The defendant was charged under a previous

version of the statute, and the State had to prove that he committed the offenses

“ ‘while armed with a dangerous weapon.’ ” Id. ¶ 9. The jury found the defendant

guilty of the charges. Id. ¶ 21. On appeal, he argued that the State failed to prove

beyond a reasonable doubt that he was armed with a dangerous weapon because no

weapon was recovered or introduced into evidence and because no testimony was

provided as to the size and weight or metallic nature of the weapon. Id. ¶ 24. The

appellate court agreed that the State did not present sufficient evidence that the

defendant possessed a dangerous weapon and reversed his conviction. Id. ¶ 25.

¶ 73 In reversing the appellate court in Washington, we relied on the victim’s

testimony that the defendant had pointed a gun at him, forced him into a truck, and

then held a gun to his head while he sat between the defendant and his accomplice

in the front seat of a truck. Id. ¶ 35. The victim also testified that the defendant

pointed the gun at him when he was later forced into the cargo area of the truck. Id.

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We found this evidence established that the victim, for several minutes, had an

unobstructed view of the weapon used during the commission of the crime and that

he testified that it was a gun. Id. We held that, given the victim’s “unequivocal

testimony and the circumstances under which he was able to view the gun, the jury

could have reasonably inferred that defendant possessed a real gun.” Id. ¶ 36.

¶ 74 In Ross, relied upon by defendant, we found the situation to be different. There,

we also considered whether the evidence was sufficient to prove that the gun used

by the defendant was a dangerous weapon. Ross, 229 Ill. 2d at 272. The arresting

officer testified that, immediately after the crime, he drove the victim back to where

the crime had occurred and the victim spotted the defendant, who was then

apprehended by police. Id. at 258. The officer further testified that as he

approached the defendant, he saw him throw some items into a bush. Id. The police

retrieved the gun, which was not offered into evidence. Id. The officer, however,

described the gun as a “ ‘4.5 BB caliber gun with a three inch barrel.’ ” Id. The

inventory sheet in the record also listed the gun consistently with the officer’s

testimony. Id. The victim described the gun as “ ‘a black, very portable gun,’ ”

which was “ ‘small’ and ‘something you can conceal.’ ” Id.

¶ 75 We acknowledged in Ross that “our cases conclude that the trier of fact may

make an inference of dangerousness based upon the evidence.” Id. at 276. This

court concluded, however, that the evidence presented at the defendant’s bench

trial was insufficient to support the trier of fact’s inference that the “gun” the

defendant possessed when he committed the robbery was a dangerous weapon. Id.

at 277. That is because the evidence showed that the “gun” was actually a small BB

gun with a three-inch barrel. Id. Moreover, there was no evidence that the gun was

loaded, there was no evidence that it was brandished as a bludgeon, and there was

no evidence regarding its weight or composition. Id. Therefore, we found the

evidence precluded a finding that the “gun” used by the defendant was a dangerous

weapon. Id.

¶ 76 Here, we are asked to assess the sufficiency of the evidence to prove that

codefendant possessed a firearm, as defined in the FOID Act, during the robbery. In

finding that the evidence proved that the defendant in Washington possessed “a

dangerous weapon,” we relied on the testimony of a single eyewitness and

concluded that a rational trier of fact could infer from the testimony that the

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defendant possessed a “real gun.” Our disposition is controlled by the same

rationale here. In contrast to Ross, Perez testified at trial that codefendant told him

“this is a robbery” and lifted his hoodie to reveal what “looked like a black

automatic, black gun.” He thought it was a semiautomatic 5 and related that he had

experience firing such guns. He further testified that while walking toward his

office he “felt something sharp in [his] back,” which felt like the barrel of a gun. On

direct questioning by defendant, Perez testified that he was “100% sure” that the

weapon codefendant displayed was an “actual firearm.” Tsegaye also testified that

codefendant told her she was being robbed and that she saw the handle of a gun in

the waistband of his pants. Additionally, Morina testified that he had seen guns

before and believed codefendant’s gun was a “9 millimeter pistol.”

¶ 77 Viewing this evidence in the light most favorable to the State, it was not so

unreasonable, improbable, or unsatisfactory that no rational trier of fact could have

found that codefendant was armed with a firearm during the commission of the

robbery.

¶ 78 Exclusion of Codefendant’s Statement

¶ 79 Next, defendant asks us to consider whether the trial court erred by excluding

codefendant’s alleged statement to Detective Lee that codefendant committed the

robbery with a BB gun. He asserts that this hearsay statement was admissible under

Illinois Rule of Evidence 804(b)(3) (eff. Jan. 1, 2011) as a statement against penal

interest, sufficiently corroborated, and essential to his defense.

¶ 80 A hearsay exception applies to declarations against penal interest. People v.

Tenney, 205 Ill. 2d 411, 433 (2002). Rule 804(b)(3) provides that a statement that

tends to subject a declarant to civil or criminal liability and that is corroborated by

circumstances which clearly indicate the trustworthiness of the statement is

admissible. Ill. R. Evid. 804(b)(3) (eff. Jan. 1, 2011). This court, in examining

Federal Rule of Evidence 804(b)(3), which is consistent with our rule, identified

three conditions that must be satisfied before a statement will be admitted under the

5

Perez’s testimony referred to the gun as “an automatic” several times. Asked by the

assistant State’s Attorney, “And so you believed it was a semi-automatic pistol, correct?”

Perez answered, “Yes, I do believe that.”

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rule: “(1) the declarant must be unavailable, (2) the declarant’s statement must have

been against his or her penal interest, and (3) corroborating circumstances must

support the trustworthiness of the statement.” People v. Rice, 166 Ill. 2d 35, 43

(1995).

¶ 81 Rule 804(a)(1) specifically provides that a witness’s exercise of a privilege

satisfies the requirement of unavailability. Ill. R. Evid. 804(a)(1) (eff. Jan. 1, 2011).

Accordingly, a declarant who properly asserts his fifth amendment right not to

testify is unavailable for purposes of the rule. Id.; see also People v. Caffey, 205 Ill.

2d 52, 101 (2001).

¶ 82 In this case, during a sidebar conference, which took place during the State’s

case-in-chief, defendant made an offer of proof that Detective Lee would testify

that codefendant said he committed the robbery with a black BB gun. Defendant,

however, acknowledged that the statement was hearsay and that he needed “the

actual person” to testify. Following this sidebar, defendant resumed his

cross-examination of Detective Lee. He attempted to elicit codefendant’s

statement, and the State objected. The trial court sustained the objection, stating

that “[w]e are not going into the statement, the nature of the conversation with

[codefendant].”

¶ 83 Subsequently, prior to defendant’s case-in-chief, the trial court conducted a

hearing with codefendant present, outside the presence of the jury. During the

hearing, codefendant invoked his fifth amendment right not to testify.

Consequently, we agree with defendant that codefendant was unavailable for

purposes of Rule 804(b)(3), as he was not able to call him as a witness to testify

regarding his statement to Detective Lee.

¶ 84 Following this invocation of his fifth amendment right not to testify, however,

there is no indication that defendant attempted to call Detective Lee in order to

elicit codefendant’s statement. Similarly, there is no indication in the record that he

requested any conference with the trial court to seek the statement’s admission. The

trial court was simply not asked to make any further rulings on its admissibility. We

recognize that his failure to pursue this evidence may have occurred because

defendant was not represented by counsel. Nevertheless, as the trial court

admonished him before trial, if he proceeded pro se, he is to be held to the same

standards as an attorney and cannot complain on appeal of his own lack of

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competency. We conclude that the trial court did not err by not admitting

codefendant’s statement to Detective Lee because defendant did not seek its

admission after codefendant invoked his fifth amendment right not to testify.

¶ 85 Jury Instruction

¶ 86 Finally, defendant asks this court to consider whether the trial court erred by not

sua sponte instructing the jury on the definition of “firearm” and that a BB gun is

excluded from the definition. Defendant concedes that he forfeited this issue by not

raising it in a posttrial motion but asks that we review it for plain error.

¶ 87 We find no plain error because no error occurred. People v. Thompson, 238 Ill.

2d 598, 613 (2010) (“The first step of plain-error review is determining whether

any error occurred.”).

¶ 88 “It is the burden of the party who desires a specific instruction to present it to

the court and request that it be given to the jury.” People v. Turner, 128 Ill. 2d 540,

562 (1989); Ill. S. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994). Defendant did not tender

the desired instruction but argues that the trial court should have sua sponte

provided the jury with an instruction defining firearm. “Generally, the only

situations where a fair trial requires the court to sua sponte offer an instruction

include seeing that the jury is instructed on the elements of the crime charged, on

the presumption of innocence and on the question of burden of proof.” (Internal

quotation marks omitted.) Turner, 128 Ill. 2d at 562-63. Defendant asserts that

because evidence was presented that the crime could have been committed with a

BB gun, it was critical that the trial court provide the jury with such an instruction

on its own. 6

6

Effective January 24, 2014, the Illinois Pattern Jury Instructions were amended and

reflect the current version of the armed robbery statute (Illinois Pattern Jury Instructions,

Criminal, Nos. 14.05 and 14.06 (approved Jan. 24, 2014) (hereinafter IPI Criminal Nos.

14.05 and 14.06)). The committee notes to IPI Criminal Nos. 14.05 and 14.06 do not

require that a definition for “firearm” be given when the offense involves a firearm. There

is a pattern instruction, however, defining “firearm” pursuant to section 1.1 of the FOID

Act (430 ILCS 65/1.1 (West 2010)). See IPI Criminal No. 18.35G.

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¶ 89 We disagree and emphasize that defendant’s position is contrary to the one he

took at trial. At the jury instruction conference, defendant objected to instructing

the jury that he could be found guilty of the lesser offense of robbery. The court

explained that the instruction was being given, over his objection, because he

“introduced evidence of a gun and then argued that it was a BB gun.” Thereafter,

defendant consistently objected to providing the jury a verdict form for robbery and

argued that he did not know codefendant and was not accountable for anything that

he did. During closing argument, defendant only briefly mentioned the gun when

he stated, “I showed you all some pictures of what looks to be a gun. You heard

testimony that the date of this crime that it was snow [sic] outside. This gun was

found in the direction of travel that the police say these two suspects ran.”

Defendant then argued his theory to the jury that he was innocently driving his van

when he was stopped by police, that two other individuals committed this crime,

and that he was not guilty of any charges. He never argued, in the alternative, that at

most he was guilty only of robbery because codefendant was not armed with a

firearm during the offense. The State, however, informed the jury during its closing

argument that if they believed the gun recovered by police was a BB gun, rather

than a “real firearm,” they could find defendant guilty of the lesser offense of

robbery. Despite this option, the jury returned a verdict finding defendant guilty of

armed robbery.

¶ 90 For these reasons, we reject defendant’s claim that the trial court erred in failing

to sua sponte provide a jury instruction defining the term “firearm.”

¶ 91 CONCLUSION

¶ 92 Accordingly, the judgment of the appellate court is affirmed in part and

reversed in part. The judgment of the circuit court is affirmed.

¶ 93 Appellate court judgment affirmed in part and reversed in part.

¶ 94 Circuit court judgment affirmed.

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