{ "id": 1472415, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL COLLIER, Defendant-Appellant", "name_abbreviation": "People v. Collier", "decision_date": "2002-03-29", "docket_number": "No. 1\u201499\u20143317", "first_page": "744", "last_page": "755", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 744" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "196 Ill. 2d 269", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351226 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-2d/196/0269-01" ] }, { "cite": "843 F.2d 258", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10543211 ], "year": 1988, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/f2d/843/0258-01" ] }, { "cite": "978 F.2d 369", "category": "reporters:federal", "reporter": "F.2d", "year": 1992, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "128 F.3d 1105", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 978109 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/f3d/128/1105-01" ] }, { "cite": "181 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821414 ], "year": 1998, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0001-01" ] }, { "cite": "155 Ill. 2d 422", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810080 ], "year": 1993, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0422-01" ] }, { "cite": "304 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564578 ], "year": 1999, "pin_cites": [ { "page": "8-9" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/0001-01" ] }, { "cite": "406 U.S. 605", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172691 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0605-01" ] }, { "cite": "186 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2658352 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0668-01" ] }, { "cite": "294 N.E.2d 285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "54 Ill. 2d 21", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2934161 ], "year": 1973, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0021-01" ] }, { "cite": "305 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208048 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "851" }, { "page": "852" }, { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0840-01" ] }, { "cite": "176 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544855 ], "year": 1997, "pin_cites": [ { "page": "235", "parenthetical": "\"the trial court is not required to advise a defendant of his right to testify, to inquire whether he knowingly and intelligently waived that right, or to set of record defendant's decision on this matter\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0217-01" ] }, { "cite": "194 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096315 ], "year": 2000, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0361-01" ] }, { "cite": "308 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261407 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "101-02" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0093-01" ] }, { "cite": "238 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156395 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "258" }, { "page": "258" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0253-01" ] }, { "cite": "20 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737298 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/20/0126-01" ] }, { "cite": "151 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541297 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "1053" }, { "page": "1053" }, { "page": "1053" }, { "page": "1054" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/1049-01" ] }, { "cite": "272 Ill. App. 3d 843", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251186 ], "year": 1995, "pin_cites": [ { "page": "846" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0843-01" ] }, { "cite": "137 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251719 ], "year": 1990, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0195-01" ] }, { "cite": "149 Ill. 2d 71", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599698 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0071-01" ] }, { "cite": "196 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351267 ], "year": 2001, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0105-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 6, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "137 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3638963 ], "year": 1985, "pin_cites": [ { "page": "778" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/137/0773-01" ] }, { "cite": "299 Ill. App. 3d 944", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221441 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ill-app-3d/299/0944-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "295" }, { "page": "309" }, { "page": "1046" } ], "opinion_index": 1, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "483 U.S. 44", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28133 ], "weight": 6, "year": 1987, "pin_cites": [ { "page": "55-56" }, { "page": "49" }, { "page": "2711" } ], "opinion_index": 1, "case_paths": [ "/us/483/0044-01" ] }, { "cite": "177 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317127 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "145-46" }, { "page": "146" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/177/0116-01" ] }, { "cite": "308 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261407 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "102" }, { "page": "103" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/308/0093-01" ] }, { "cite": "238 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156395 ], "year": 1992, "pin_cites": [ { "page": "258" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/238/0253-01" ] }, { "cite": "20 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737298 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/ill-2d/20/0126-01" ] }, { "cite": "151 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541297 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "1053" }, { "page": "1054" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/151/1049-01" ] } ], "analysis": { "cardinality": 1202, "char_count": 29277, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05516228938443902 }, "sha256": "035aa7fdcd6ca166baebdf88a5872717a33b5470978f894f926a9c1122d09fe4", "simhash": "1:a3aad4a6726f74f1", "word_count": 4953 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL COLLIER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE QUINN\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Michael Colher was convicted of first degree murder and attempted first degree murder. He was sentenced to consecutive prison terms of 40 and 15 years, respectively. On appeal, defendant contends that the trial court erred in denying his motion to reopen his case after he had rested so that he could testify. He also contends that his consecutive prison terms are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons set forth below, we affirm defendant\u2019s convictions and sentence.\nBACKGROUND\nVontain Mercier testified that about 4 p.m. on September 3, 1997, he was with Cornelius Washington at Fernwood Park, which is located near 104th and Wallace in Chicago, waiting to play basketball when they heard gunshots and began to run. Immediately prior to hearing the gunshots, Vontain saw defendant, whom he did not know at the time, sitting on a bench drinking a beer. Vontain also stated that he noticed a blue van with gray trim in the park\u2019s parking lot. After hearing the shots, Vontain saw a second man run to the blue van.\nAfter leaving the park, Vontain and Washington eventually went to Vontain\u2019s house, located at 10141 South Wallace. While standing in front of the house with his brother, Dionte Mercier, Dion Wadley and Washington, Vontain saw defendant driving the blue van he had seen earlier at Fernwood Park. Defendant gave a \u201ctough look\u201d in the direction of the four on the street, pulled over and got out of the van. Defendant screamed something, which Vontain made out as \u201cWhat\u2019s up?\u201d and approached. When about 25 feet from them, defendant fired in the direction of Vontain and the others. Vontain stated that he heard about 15 shots fired. Washington, who was shot in the chest, died as a result of his wounds. Dionte was struck in the leg.\nLater that night, Vontain was taken by police to 100th and Aberdeen, where he identified a van as the one defendant was driving prior to the shootings. About 11 p.m. the same night, Vontain identified defendant in a police lineup. In the same lineup, Vontain also identified John Clark as someone he had seen earlier that day at Fernwood Park. In open court, Vontain identified defendant as the person who shot Washington.\nDionte testified that, at the relevant time, he was standing on the curb with Vontain, Washington and Wadley talking when he saw defendant, whom he had never previously seen, approach driving a blue van traveling around 10 miles an hour. When the van stopped, defendant exited the driver\u2019s side, which was the side of the van closest to Dionte, and loudly asked, \u201cWhat\u2019s up with that shit at the park?\u201d Dionte stated that there was a passenger in the van who never got out of the vehicle. Defendant, from about 30 feet away, then raised his right aim and fired six or seven shots in. rapid succession at the four men on the street. In response, they fled the scene. While running, Dionte fell and realized that he had been shot in the right leg. After making it back to the house, Dionte heard a second round of about 12 shots fired, followed by the voice of Sammie Lee Skyles, his neighbor, yelling \u201cGet the license plate.\u201d\nDionte was taken to Roseland Hospital by ambulance where his leg wound was treated. Later that evening, after being released from the hospital, Dionte viewed a police lineup. Both in open court and at the lineup, Dionte identified defendant as the driver of the van. In the same lineup, he identified Clark as defendant\u2019s passenger in the van. Although he did not know Clark\u2019s name at the time of the lineup, he recognized him as someone with whom he had previously played basketball.\nTravis Morgan, who had a case involving an alleged assault pending at the time of defendant\u2019s trial, stated that on the date in question, he lived across the street from the Merciers. About 6 p.m. that evening, he was in front of his house while Dionte, Vontain and two others were standing near the Mercier home. At that time, Morgan saw a van driving down the street toward his home. A man, whom Morgan identified in open court as defendant, got out of the van and began shooting at the four men standing in front of the Mercier home until he appeared to be out of bullets. Defendant then got into the van and coasted to a nearby corner. Once there, defendant got out of the van, appeared to reload the gun and began shooting at Morgan\u2019s neighbors, who had attempted to get the van\u2019s license plate number. Later that evening, Morgan identified defendant in a police lineup as the person who had exited the van and fired the shots.\nOfficer Lynn Lopit of the Chicago police department testified that she and her partner arrived at the crime scene about 7 p.m., where they recovered one .45-caliber cartridge casing at 10137 South Wallace and three .38-caliber cartridge casings near 102nd and Wallace. After inventorying the casings, they proceeded to 100th and Aberdeen, where they had been told that a van used during the shooting was located. There, they found the blue van, from which they recovered a bloody shirt and two .38-caliber cartridge casings. No weapons were found in the van. Testing performed by a forensic scientist specializing in firearms identification revealed that all five .38-caliber casings recovered the day of the shootings were fired from the same weapon.\nSammie Lee Skyles testified that on September 3, 1997, she lived with her family at 10151 South Wallace. About 6 p.m. that day she heard gunshots and went to her front door, where she saw people running down the street. Near the corner of 101st and Wallace, Skyles saw her son and daughter. After Skyles shouted to her children to get the license plate number to the van, the person driving it got out and asked, \u201c[Y]ou want the license plate number, humm?\u201d He then stated, \u201c[H]ere it is,\u201d and began shooting. Skyles was unable to see the face of the shooter.\nOfficer Michael Sweeney testified that he arrived at the crime scene shortly after 6 p.m. and conducted interviews with witnesses. With the information he had gathered, Sweeney began looking for an older model, gray Chevrolet conversion van with blue trim and a Minnesota license plate. After receiving a radio message, Sweeney went to 10023 South Aberdeen, where, at about 6:45 p.m., he saw a van fitting the description he had been given. Inside the van were two black males. As Sweeney and his partner approached, the person in the passenger seat fled. Defendant, who was sitting in the driver\u2019s seat, then got out of the van. Sweeney saw a spent shell casing on the stepboard of the van, arrested defendant and advised him of his rights.\nInitially, defendant denied being at the park and stated that he was not involved in the shootings. But, when questioned about the bloody shirt in the van, defendant, who did not appear to have been shot, stated that he had been at Fernwood Park. He further stated that in exchange for $4, he had given a friend, who had been shot at the park, a ride to a hospital. When questioned about the van, defendant stated that he owned it and that he was the only person who had access to it.\nAfter the State rested, the parties stipulated that if called to testify, Detectives Fassl and Almazan would state they spoke with Dionte at Area 2 police headquarters about 10:55 p.m. the night of September 3, 1997, and that he identified Clark as being with defendant at the time of the shooting. It was further stipulated that the detectives would testify that they spoke with Vontain at Area 2 the same night and were told by him that both the driver and passenger had gotten out of the van before the shooting. It was also stipulated that Vontain identified Clark as being with defendant when defendant did the shooting.\nFollowing these stipulations, the defense rested. After dismissing the jury for lunch, the following exchange occurred:\n\u201cTHE COURT: Mr. Collier, I want to address you for a moment here regarding the case. Your attorney just rested the case, and I want to advise you that you have a right to testify in this case if you want to. You also have a right not to testify. That has to be your decision.\nDo you understand what I am saying?\nDEFENDANT COLLIER: Yes.\nTHE COURT: Is it your decision that you don\u2019t want to testify in this case?\nDEFENDANT COLLIER: Yes.\u201d\nAfter the lunch break the instructions conference was held. Soon after it began, the following was stated:\n\u201c[DEFENSE COUNSEL]: Judge, my client claims he\u2019s changed his mind. I know we rested. He may choose to testify. It may be too. late.\nTHE COURT: Find out right now.\u201d\nDefense counsel then told the court, \u201cHe is not going to testify.\u201d The record does not reflect whether counsel spoke to defendant prior to informing the court that defendant would not testify.\nAt the conclusion of the instructions conference, this colloquy occurred:\n\u201c[DEFENSE COUNSEL]: Another matter that I bring to the Court\u2019s attention is, my client has indicated that he has had a change of heart. I would ask if we can re-open our case for the Defendant to testify.\nTHE COURT:- Based upon my earlier talk with the Defendant, that request is denied at this time.\u201d\nFinal arguments were heard, and after being instructed, the jury found defendant guilty of the first degree murder of Washington and the attempted first degree murder of Dionte. He was sentenced to a 40-year prison term for the first degree murder conviction and a consecutive 15-year term for the attempted first degree murder conviction. Defendant now appeals.\nANALYSIS\nDefendant first contends that the trial court erred in refusing to allow him to testify at his trial.\nThe State asserts this claim of error is waived on appeal based upon defendant\u2019s failure to object to the trial court\u2019s denial of his request to reopen his case and for his failure to raise the issue in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Despite his failure to properly preserve the issue for review, defendant argues that we should consider the alleged error on appeal under the plain error doctrine because consideration of the issue is necessary in order to preserve the integrity of the judicial process.\nPlain error is a limited and narrow exception to the general waiver rule, to be used only where the evidence is closely balanced or the alleged error is so substantial that it deprived the defendant of a fair trial. People v. Kuntu, 196 Ill. 2d 105, 128 (2001). \u201cThis second prong of the plain error exception is to be invoked only where the possible error is so serious that its consideration is \u2018necessary to preserve the integrity and reputation of the judicial process.\u2019 \u201d People v. Hampton, 149 Ill. 2d 71, 102 (1992), quoting People v. Herrett, 137 Ill. 2d 195, 214 (1990). \u201cThe right of a criminal defendant to testify in his own behalf at his trial is a fundamental constitutional right.\u201d People v. Piper, 272 Ill. App. 3d 843, 846 (1995). Thus, we agree with defendant that review of this issue is necessary so as to ensure the integrity of the judicial process.\nOnly under the most extreme circumstances should the trial court exclude defense testimony. People v. Johnson, 151 Ill. App. 3d 1049, 1053 (1987), citing People v. Franceschini, 20 Ill. 2d 126 (1960). When deciding whether to allow a defendant to reopen his case so that he can testify in his own behalf, it is proper for the trial court to consider various factors, including: (1) the timeliness of the motion to reopen; (2) the character and importance of the testimony to be presented; (3) the effect of granting the motion, in particular, whether the State is prejudiced; and (4) the reasonableness of the explanation for the defendant\u2019s failure to present the evidence in his case in chief. People v. Watkins, 238 Ill. App. 3d 253, 258 (1992). It is within the trial court\u2019s sound discretion as to whether a case may be reopened for further evidence, and unless that discretion is clearly abused, reversal will not result. People v. Figueroa, 308 Ill. App. 3d 93, 101-02 (1999).\nIn the instant case, as defendant did not testify before resting his case, it may be surmised that defendant did not wish to testify in his own behalf at that time. See People v. Enis, 194 Ill. 2d 361, 399 (2000). A brief time later, although not required to do so, the trial court admonished defendant as to his right to testify. See People v. Smith, 176 Ill. 2d 217, 235 (1997) (\u201cthe trial court is not required to advise a defendant of his right to testify, to inquire whether he knowingly and intelligently waived that right, or to set of record defendant\u2019s decision on this matter\u201d). After defendant indicated that he understood the admonishments, the trial court asked defendant if it was his desire not to testify at trial, to which defendant responded, \u201cYes.\u201d Following a recess for lunch and the start of the instructions conference, defense counsel informed the trial court that defendant had \u201cchanged his mind\u201d with respect to his decision not to testify. Based upon our review of the record, the trial court\u2019s instructing defense counsel to \u201c[f]ind out right now\u201d was a third opportunity defendant was given to testify. In response, defense counsel informed the trial court that defendant did not wish to testify. Only after yet another \u201cchange of heart\u201d did the trial court deny defendant\u2019s request to testify. In short, defendant turned down three opportunities to testify before the trial court denied his request to reopen his case.\nIn People v. Frieberg, 305 Ill. App. 3d 840, 851 (1999), the defendant argued that the trial court erred in denying his postconviction petition because he received ineffective assistance of trial counsel when that counsel allegedly usurped the defendant\u2019s constitutional right to choose whether to testify in his own behalf at trial. This court held that the trial court did not err in denying the postconviction petition and provided guidance to the trial courts by stating as follows:\n\u201cIn so holding, we note that because the decision whether to testify at trial lies ultimately with a defendant, issues involving how that decision was made lurk \u2014 like an unexploded bomb \u2014 in eveiy case resulting in a conviction. As the supreme court noted in People v. Brown, 54 Ill. 2d 21, 24, 294 N.E.2d 285, 287 (1973), \u2018in every case in which the issue is raised, the lawyer\u2019s advice will in retrospect appear to the defendant to have been bad advice.\u2019 Thus, convicted defendants who testified on their own behalf at trial often will later claim that doing so was not their personal choice and their trial counsel forced them to testify. On the other hand, defendants who did not testify at trial often will later claim that they really wanted to testify but their trial counsel prevented them from doing so.\nTo defuse this explosive situation, we urge trial courts in every criminal case to take the few seconds needed, after the State has rested its case in chief and before the presentation of the defense case, to admonish the defendant personally that he alone possesses the right to choose whether to testify on his own behalf, and that he should make that decision after consulting with counsel.\u201d (Emphasis in original.) Frieberg, 305 Ill. App. 3d at 852.\nThis court said that by admonishing defendants in this manner, it would make it \u201cvirtually impossible\u201d for a defendant to argue that his right to testify was usurped. Frieberg, 305 Ill. App. 3d at 852. In the present case, the trial court complied with the suggested admonitions in Frieberg.\nIn People v. Phillips, 186 Ill. App. 3d 668 (1989), the trial court had advised the jurors that they would hear evidence until 5 p.m. each day of trial. The State rested its case at 3 p.m. The trial court then advised defense counsel to call any defense witnesses. Defense counsel informed the court that the witnesses would not be available until the next day. The trial court then informed the defendant and his counsel that if the defendant wished to testify, he would have to do so that day and, if the defendant decided to not testify, the defendant would not be permitted to change his mind and testify the next day. The defendant told the court that he did not wish to testify. After his conviction, the defendant raised on appeal the court\u2019s order that the defendant would have to testify before his defense witnesses testified. This order was contrary to Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891 (1972), which held that a defendant cannot be required to make the choice whether to testify at his trial until after all of the defense evidence has been presented.\nThis court found that the trial court\u2019s actions amounted to harmless error because the defendant\u2019s decision not to testify was not made as a result of the court\u2019s direction, but was made independently before the defense was to begin the presentation of its case. In the instant case, the trial court inquired of defendant\u2019s intention to testify after the defense rested and again during the jury instruction conference. There is no indication in the record before us that defendant\u2019s decision not to testify was anything other than a voluntary and informed decision on the part of defendant.\nWe also find guidance in several other cases. In People v. Watkins, 238 Ill. App. 3d 253 (1992), the trial court denied the defendant\u2019s request to reopen proofs where he sought to introduce police testimony to perfect the impeachment of a State witness. The defendant argued on appeal that this was error. In affirming the trial court\u2019s ruling, this court stated that defense counsel had failed to present an excuse as to his failure to recall the officer and further stated that the testimony the defendant wanted to impeach was \u201cnot of the utmost importance\u201d to the defendant\u2019s case. Watkins, 238 Ill. App. 3d at 258.\nDefendant relies heavily upon two cases for support of his argument. In People v. Johnson, 151 Ill. App. 3d 1049, 1053 (1987), the defendant, who had not testified at trial, rested her case because she \u201cwas incapable of testifying in her defense.\u201d The remainder of the day was spent on the instructions conference. The following morning, defense counsel sought to reopen the case so that the defendant, who was \u201cmore composed and therefore was willing to testify,\u201d could present evidence. Johnson, 151 Ill. App. 3d at 1053. The trial court denied the defendant\u2019s motion to reopen. This court reversed on appeal, finding that it was plausible that the defendant\u2019s decision whether to testify resulted from her emotional state, \u201cas opposed to an intentional manipulation of the trial process.\u201d Johnson, 151 Ill. App. 3d at 1054.\nIn People v. Figueroa, 308 Ill. App. 3d 93 (1999), the trial court struck the defendant\u2019s testimony in its entirety due to his refusal to answer certain questions on cross-examination. After both the State and defense had rested, but prior to the instructions conference, defense counsel requested to reopen the case so that the defendant, who was then willing to answer the State\u2019s questions, could testify. The trial court denied the motion. On appeal, this court found this denial to be reversible error because the State would not have been prejudiced by the timing of the defendant\u2019s testimony and the testimony was \u201cof the utmost importance\u201d to his claim of self-defense. Figueroa, 308 Ill. App. 3d at 104.\nWe find that the Watkins, Johnson and Figueroa cases support the trial court\u2019s denial of defendant\u2019s motion to reopen. Unlike in Johnson, there is no indication as to the rationale behind defendant\u2019s vacillating with respect to his decision whether to testify. The justification for defendant\u2019s repeated \u201cchange of heart\u201d appears to be a manipulation of the trial process, which supports the trial court\u2019s ruling. See Watkins, 238 Ill. App. 3d at 258. Also, the record reflects that, in his answer to discovery, defendant failed to disclose to the prosecution any defense that he wished to raise at trial, including alibi or self-defense, pursuant to Supreme Court Rule 413(d) (134 Ill. 2d R. 413(d)). The Illinois Criminal Code of 1961 provides in relevant part that, \u201cA defense of justifiable use of force, or of exoneration, based on the provisions of this Article is an affirmative defense.\u201d 720 ILCS 5/7 \u2014 14 (West 1998). It is well settled in Illinois that where a defendant wishes to assert an affirmative defense, he must notify the State and the court of this fact. See, e.g., People v. Burns, 304 Ill. App. 3d 1, 8-9 (1999).\nWe further note that defense counsel did not argue self-defense or alibi in their opening or closing arguments and also did not request that the jury be instructed on self-defense. As a consequence, there is absolutely no basis to believe that defendant was going to testify that he acted in self-defense or had an alibi. These facts distinguish defendant\u2019s case from the defendant\u2019s case in Figueroa, where the barred testimony related to the important issue of self-defense. Even accepting defendant\u2019s argument that the prejudice to the State would not have been great had defendant been allowed to reopen his case, defendant was given numerous opportunities to testify, but he chose not to.\nFurther, defendant failed to make the required offer of proof demonstrating the nature and character of his testimony. See People v. Peeples, 155 Ill. 2d 422, 457-58 (1993). \u201cThe two primary functions of an offer of proof are to disclose to the trial judge and opposing counsel the nature of the offered evidence, enabling them to take appropriate action, and to provide the reviewing court with a record to determine whether exclusion of the evidence was erroneous and harmful.\u201d People v. Thompkins, 181 Ill. 2d 1, 10 (1998).\nThe requirement of an offer of proof has been applied to a defendant\u2019s potential trial testimony. In United States v. Taylor, 128 F.3d 1105 (7th Cir. 1997), the defendants had been convicted of bank robbery, and on appeal defendant Robinson asserted that he was denied effective assistance of trial counsel and was prevented from testifying in his own defense. In rejecting the defendant\u2019s argument, the court of appeals found that the record indicated that it was the defendant\u2019s choice not to testify. The court continued:\n\u201cOn appeal, Robinson does not describe the testimony that he would have presented had he taken the stand. This omission, coupled with the overwhelming evidence of Robinson\u2019s guilt, establishes that any error causing him not to testify was harmless beyond a reasonable doubt. United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992); Ortega v. O\u2019Leary, 843 F.2d 258, 262 (7th Cir. 1988).\u201d Taylor, 128 F.3d at 1109.\nSimilarly, the evidence against Collier was overwhelming. Further, in order for the trial court to have found that defendant\u2019s testimony was of such importance to warrant the reopening of his case, an offer of proof should have been presented before the court ruled on his request or immediately thereafter. Given the lack of insight as to the character of his testimony and reasons for fading to present it during his case in chief, we cannot say that the trial court clearly abused its discretion when denying defendant\u2019s motion to reopen his case.\nFinally, based upon the Supreme Court\u2019s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), defendant contends that the trial court erred in ordering that his sentences be served consecutively.\nThe Illinois Supreme Court in People v. Wagener, 196 Ill. 2d 269 (2001), held that Apprendi does not apply to consecutive sentences. Thus, defendant\u2019s argument fails.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL, PJ., concurs.", "type": "majority", "author": "JUSTICE QUINN" }, { "text": "JUSTICE REID,\ndissenting:\nI dissent. A defendant\u2019s right to testify at trial is a fundamental constitutional right, as is his or her right to choose not to testify. People v. Madej, 177 Ill. 2d 116, 145-46 (1997); see Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987); Ill. Const. 1970, art. I, \u00a7 8. It is now generally recognized that the decision whether to testify ultimately rests with the defendant. Madej, 177 Ill. 2d at 146. Although it is within the discretion of the trial court to determine the question of whether to grant a defendant\u2019s motion to reopen the proofs, a trial court should not exclude defense testimony except in the most extreme circumstances. People v. Johnson, 151 Ill. App. 3d 1049, 1053 (1987), citing People v. Franceschini, 20 Ill. 2d 126 (1960). It is important to differentiate between motions to reopen the proofs in general and those motions to reopen the proofs so that the defendant might testify in his or her own defense. There is a world of difference, in terms of the constitutional factors involved, between these two types of situations. Society\u2019s interest in the efficient administration of justice has to be balanced with a defendant\u2019s constitutional right to a fair opportunity to defend. Johnson, 151 Ill. App. 3d at 1054.\n\u201cOf course, the right to present relevant testimony is not without limitation. The right \u2018may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.\u2019 [Citation.] But restrictions of a defendant\u2019s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant\u2019s constitutional right to testify.\u201d Rock, 483 U.S. at 55-56, 97 L. Ed. 2d at 49, 107 S. Ct. at 2711, quoting Chambers v. Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d 297, 309, 93 S. Ct. 1038, 1046 (1973).\nWhere a case presents no extreme circumstances justifying the exclusion of exculpatory testimony, a trial court risks abusing its discretion by denying a motion to reopen the proofs. People v. Figueroa, 308 Ill. App. 3d 93, 102 (1999), citing People v. Goff, 299 Ill. App. 3d 944 (1998). The Figueroa court, in discussing motions to reopen the proofs in general, identified the factors involved:\n\u201c \u2018 \u201cIn considering a motion to reopen proofs, a trial court should take into account various factors, including the existence of an excuse for the failure to introduce the evidence at trial, e.g., whether it was inadvertence or calculated risk; whether the adverse party will be surprised or unfairly prejudiced by the new evidence; whether the evidence is of the utmost importance to the movant\u2019s case; and whether there are the most cogent reasons to deny the request.\u201d \u2019 \u201d Figueroa, 308 Ill. App. 3d at 103, quoting People v. Watkins, 238 Ill. App. 3d 253, 258 (1992), quoting Hollembaek v. Dominick\u2019s Finer Foods, Inc., 137 Ill. App. 3d 773, 778 (1985).\nWhile I sympathize that Collier must have caused the trial court tremendous consternation by waffling between testifying and not testifying, his right to testify is of such a constitutional magnitude that it must be considered ahead of the Watkins factors. Collier\u2019s constitutional rights must take precedence over those general factors that a trial court would weigh in a case where a defendant wanted to reopen the proofs for the admission of general evidence or testimony other than his own. The decision faced by the trial court was a serious one, especially considering the fact that Collier had twice before clearly indicated he would not testify. That being said, the question becomes one of weighing the impact of allowing the defendant to testify under these particular facts and circumstances. I understand that reopening the proofs would have caused some increased work, some inconvenience and, doubtless, more than a little aggravation. However, Collier\u2019s final request to testify came before closing arguments were to be made before the jury. I presume the State\u2019s Attorney was properly prepared at the onset of trial for the possibility that Collier would take the witness stand in his own constitutionally protected defense. As such, claims by the State of potential prejudice and harm to the prosecution\u2019s case from having to delay closing arguments for the testimony and cross-examination of one more witness ring hollow. When weighed against Collier\u2019s constitutional right to testify, notions of trial court or prosecutorial convenience simply must give way. Under a different set of facts, or were this a case with more obvious evidence of duplicity or gamesmanship at the heart of a defendant\u2019s decision, I certainly recognize that a different result could be warranted. This is not such a case. I believe Collier should have been allowed to testify because his constitutional rights outweighed the trial court\u2019s other concerns.", "type": "dissent", "author": "JUSTICE REID," } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Ronald P Alwin, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Suzanne T. Collins, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL COLLIER, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201499\u20143317\nOpinion filed March 29, 2002.\nREID, J., dissenting.\nRita A. Fry, Public Defender, of Chicago (Ronald P Alwin, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Linda Woloshin, and Suzanne T. Collins, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0744-01", "first_page_order": 762, "last_page_order": 773 }