                            ILLINOIS OFFICIAL REPORTS
                                           Appellate Court




                           People v. Gallagher, 2012 IL App (1st) 101772




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     THOMAS GALLAGHER, Defendant-Appellant.



District & No.              First District, Second Division
                            Docket No. 1-10-1772


Filed                       June 5, 2012


Held                        Defendant’s conviction for residential burglary was reversed and the
(Note: This syllabus        cause was remanded for a new trial where defendant’s trial counsel was
constitutes no part of      ineffective in failing to request an instruction on the lesser-included
the opinion of the court    offense of criminal trespass to a residence after he argued the theory that
but has been prepared       defendant inadvertently entered the victim’s hotel room in search of a
by the Reporter of          restroom, especially when the failure to offer an instruction based on the
Decisions for the           argument could not be deemed a trial strategy under the circumstances.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Cook County, No. 08-CR-23465; the
Review                      Hon. Evelyn B. Clay, Judge, presiding.



Judgment                    Reversed and remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Patrick Morales-Doyle, all of
Appeal                      State Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                            Michelle Katz, and Christine Cook, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE HARRIS delivered the judgment of the court, with opinion.
                            Justices Cunningham and Connors concurred in the judgment an
                            opinion.




                                              OPINION

¶1          Defendant, Thomas Gallagher, appeals his conviction after a jury trial of one count of
        residential burglary and his sentence of four years’ imprisonment. On appeal, Gallagher
        contends (1) his trial counsel was ineffective for failing to tender jury instructions on the
        lesser-included offense of criminal trespass to a residence; (2) the State failed to prove
        beyond a reasonable doubt that he entered a hotel room with the intent to commit a theft; (3)
        the trial court violated Illinois Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1,
        2007)) by combining three legal principles into a single question, and failing to address the
        fourth principle; and (4) the State made improper comments during closing argument
        implying that Gallagher lied about being an artist, and vouching for the credibility of the
        State’s witnesses. For the following reasons, we remand the cause for a new trial.

¶2                                        JURISDICTION
¶3          The trial court sentenced Gallagher on May 19, 2010, and he filed a timely notice of
        appeal on June 7, 2010. Gallagher filed an amended notice of appeal on May 17, 2011.
        Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois
        Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final
        judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S.
        Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

¶4                                        BACKGROUND
¶5          Gallagher was charged with one count of residential burglary for entering the hotel room
        of Kenneth Burkes. The following facts are relevant to the disposition of this case.
¶6          At trial, Kenneth Burkes testified that he was 29 years old and resided in Wisconsin. On
        November 22, 2008, he, his girlfriend Stephanie, and Stephanie’s five-year-old daughter

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       came to Chicago to celebrate the Festival of Lights and visit the American Girl store. While
       in Chicago, they stayed at the Hilton located at 198 East Delaware. Gallagher stated that after
       walking through the door of their hotel room, there was “a small table with a sink in it and
       then the bathroom [was] there, then the bed [Gallagher slept in] [was] next to that *** [and]
       there’s a night stand in between and another bed on the other side” in which Stephanie and
       her daughter slept. That night, Stephanie and her daughter were already asleep in their bed.
       Burkes had fallen asleep watching television when a text message to his cell phone woke
       him. He then went to the bathroom and prepared for bed. He testified that he liked “things
       to be square and neat” so he folded his pants and placed them over his bag. He took his
       “wallet out of [his] pocket, put that on the table [by the door] and it obviously had to be
       square with the table, and I had that in the upper left-hand corner of the table.” He then
       turned off the lights and went to bed.
¶7         Burkes awoke again at some point because he either heard a noise or sensed something
       in the room, like he was “being watched.” He observed a glare on the wall and after making
       sure Stephanie and her daughter were still sleeping in their bed, he “sat up and looked
       directly at the doorway.” He then said, “Somebody [is] in our f-ing room.” As he looked at
       the doorway, he “saw a man with a hat on, a black shirt with stripes, with I would say grayish
       stripes, and basically made contact, was able to completely identify the man standing in the
       doorway clear as day because the hallway was shining right on him, I mean he was working
       his way out and the door closed and that’s what I saw.” Burkes identified Gallagher as the
       man he saw in his room that night. He testified that he said “hello” to the man. When he first
       saw Gallagher, he was in the room “next to the table where [Burkes’] wallet was.”
¶8         Burkes turned on the light and Stephanie asked him what he was doing. He told her that
       somebody was in their room and she replied that Burkes was probably dreaming. Burkes,
       however, got out of bed and opened the door. He heard the elevator ding and when he got to
       the elevator he looked in and saw two women and Gallagher, who was holding a bag and
       looking down at the floor. He wore the same clothing Burkes had seen him wear in the
       doorway of his room. At trial, Burkes identified a baseball cap and shirt as the items he saw
       Gallagher wear when he first observed him in the doorway.
¶9         After he failed to stop the elevator, Burkes went back to his room. He recalled that when
       he had first left the room to follow Gallagher to the elevator, he glanced at the table and
       noticed that his wallet was open “and some money fanned out.” It was no longer in the corner
       of the table where he had placed it before going to bed. When Burkes came back to the room,
       Stephanie was counting the money in his wallet “because [they] were on a budget” and it
       appeared to be $40 short. When he told Stephanie that he wanted to investigate the matter
       further she thought he was crazy because the “guy could have a gun, he could have a knife.”
       She wanted him to “leave it.”
¶ 10       Burkes, however, went down to the lobby, where he saw the two women from the
       elevator at the front desk. They asked him what had happened and Burkes spoke with them.
       He then went to the twenty-second floor to see if he could find the man he saw in his room.
       When he did not see anyone, he went down to the lobby, where he spoke with Darlene
       Hampton, an employee of the Hilton. While he was with Hampton, the elevator door opened
       and a man wearing a blue shirt with glasses came out. He was carrying the same bag Burkes

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       had seen Gallagher holding earlier that night. The man proceeded to Café Med and Burkes
       identified the bag. Hampton followed the man into Café Med and grabbed him by the arm.
       Burkes told Hampton that it was the same man he saw in his room, except he wore different
       clothing. Burkes testified that he never gave Gallagher permission to be in his room that
       night.
¶ 11       On cross-examination, Burkes stated that he was “one hundred percent positive” he
       closed the door to the hotel room before going to bed. Although he did not latch the door, he
       stated that the door locked when it closed. He stated that he saw Gallagher in the doorway
       next to the table where he had placed his wallet. Burkes testified that he could see
       Gallagher’s face because he was backing out of the room. He told hotel security that night
       someone may have taken $40 from his wallet, but he did not talk to security about it the next
       morning. Burkes also stated that he called the police because he was missing $40 after
       Gallagher left his room. He acknowledged that he was nervous when he spoke with the
       police.
¶ 12       On redirect, Burkes stated that he first told Hampton about missing $40 “a good strong
       hour” after he first suspected the theft. He knew that $40 was missing after Gallagher left the
       room because Stephanie had counted the money. On recross, Burkes stated that he did not
       talk to police a few hours after the incident, but spoke with them “[t]hroughout the night.”
¶ 13       Darlene Hampton testified that she works for the Hilton as a security officer. On
       November 22, 2008, at approximately 11 p.m., she was working and having a conversation
       with four women. While talking to the women, she observed a man dressed in a blue T-shirt
       holding a green book bag come out of the elevator. The man looked at her and then ran inside
       the Café Med, a restaurant in the hotel. She followed the man into Café Med and observed
       him run to the side door, an exit door, and push the door as he tried to get out. The door was
       locked. Hampton identified Gallagher as the man she saw trying to exit Café Med. Hampton
       grabbed Gallagher and “he was jerking away. He said why are you grabbing me, I was not
       in anyone[’s] room.” Burkes then approached and spoke to them. Gallagher was placed in
       the security room and Hampton looked inside his backpack. She saw a black shirt, baseball
       cap, and a pair of sunglasses. Hampton testified that the Hilton lobby had men’s and
       women’s restrooms.
¶ 14       On cross-examination, Hampton stated that she wrote her report on the incident at around
       12:30 a.m., 1½ hours after she interviewed Gallagher. She acknowledged that she did not put
       in her report that when she made eye contact with Gallagher in Café Med, he ran. On
       redirect, Hampton stated that her report was merely a summary of the events and not a “word
       for word account of every little thing that happened.” Once the police were called, they took
       over the investigation.
¶ 15       Officer Adrian Corral testified that on November 22, 2008, he responded to a call at 198
       East Delaware in Chicago. When he arrived, he met Hampton and proceeded to a room
       behind the front desk in which a person was seated. He identified Gallagher as the person in
       the room. After placing Gallagher into custody, Officer Corral searched the green backpack
       and recovered “a black baseball cap, sunglasses, U.S. currency, and approximately $4,400
       in U.S. currency, *** some euros and pesos and *** a black shirt with white stripes.”


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       Eventually the items were brought to the station, where Officer Musgraves inventoried them.
¶ 16        On cross-examination, Officer Corral testified that none of the items found in the green
       backpack was reported stolen, and no money was ever returned to Burkes. He stated that he
       filled out several reports on the incident and he never mentioned that $40 was taken from
       Burkes. If someone had told him that $40 had been taken from Burkes, he would have
       included it in his report.
¶ 17        After the State rested, and before the defense presented its case, the trial court held a jury
       instructions conference. Defense counsel offered Illinois Pattern Jury Instructions, Criminal,
       Nos. 16.11 and 16.11A (4th ed. 2000) (hereinafter, IPI Criminal 4th Nos. 16.11, 16.11A),
       instructions for the lesser-included offense of criminal trespass to real property. The trial
       court refused to give the instruction on the basis that the rules require that notice be given
       and no prior notice could be inferred from the record. The trial court did not revisit the jury
       instruction issue and subsequently instructed the jury only on the offense of residential
       burglary.
¶ 18        Gallagher testified in his own defense. He stated that he was 59 years old and was born
       and raised in Chicago. He moved to New Orleans when he was 27 years old and considers
       it his “home base.” He testified that he’s a professional artist whose work is displayed in The
       Neighborhood Gallery in New Orleans and also online. On November 22, 2008, Gallagher
       was in Chicago trying to market his art to galleries. Around 10:30 p.m., he was looking for
       something to do and went to the Hilton. He took the elevator upstairs to see if there was
       another bar on a mezzanine level. On the elevator he met a couple of women and they talked,
       but “there was no chemistry or anything like that.” The women got off the elevator on the
       twentieth floor and Gallagher also got off on that floor. He walked them part of the way and
       then turned around toward the elevator. Gallagher testified that he “was in dire need of a
       bathroom” and he noticed that a door to a room was “ajar.” He thought a “maid had cleaned
       the room and left the door ajar or somebody had checked out or whatever.” He could see that
       no lights were on inside the room.
¶ 19        Gallagher pushed the door open further and stepped inside, intending to use the
       bathroom. He saw items like shopping bags “semi-scattered about” and he realized that
       “something [was] not right here.” Gallagher stated that he never touched any of the items in
       the room. He knew he should leave and then he heard a voice speaking to him. Gallagher
       “turned around and left and went directly over to the bank of elevators.” The elevator doors
       opened and he saw four women on the elevator. He stepped in and then a “big guy” walk up
       to the elevator. Gallagher identified Burkes as the man he saw at the elevator. The doors
       closed and the elevator went up a couple of floors where the women got off. Gallagher
       testified that he continued to go up three floors before getting off the elevator. He “had
       created a bad situation” and felt “humiliated and embarrassed.”
¶ 20        As an artist, Gallagher carried a backpack with him because when he traveled he would
       often buy art supplies or art books. He acknowledged that after getting off the elevator, he
       took off his long-sleeved shirt and baseball cap, and placed the items in the backpack. He just
       wanted to get out of the hotel, because he knew he did not “belong [there].” He now wore
       only a blue T-shirt. Gallagher then took the elevator down to the lobby. He attempted to


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       leave through Café Med, which is where he had first entered the hotel. As he attempted to
       open the door to exit, Hampton came up to him and put her hand on his left shoulder. She
       told him to stop and he “complied with her one hundred percent.” Hampton took him to a
       room by the security office and Gallagher answered all of her questions. The police came and
       Burkes was brought into the room on three occasions.
¶ 21        On cross-examination, Gallagher stated that the urge to use the bathroom did not come
       suddenly while he was on the twentieth floor, but he “had been holding it for a while.” He
       did not use the lobby bathroom, however. When he entered Burkes’ hotel room, he assumed
       it was empty and had he “known or even suspected that somebody was in that room” he
       would not have entered. He acknowledged that when he took off his shirt and baseball cap,
       he wanted to change his appearance. Gallagher stated that the money found in his backpack
       came from his earnings as an artist and from playing backgammon. The euros were won in
       backgammon and the pesos came from a trip to Mexico. Gallagher did not have a passport
       in his backpack, however, nor did it contain any painting materials. When Hampton
       questioned him in the security office, Gallagher told her that he never went into a hotel room.
       Gallagher stated that he was subsequently taken to the police station for processing. Until the
       time he went to the police station he never used the bathroom.
¶ 22        On redirect, Gallagher stated that he had sold some of his art on this trip to Chicago, but
       he did not keep track of the names of the buyers. He estimated that approximately $3,000 to
       $3,300 of the money found in his backpack came from selling his art and the rest he won in
       backgammon.
¶ 23        While the jury was deliberating, the foreperson sent a note to the trial judge stating, “We
       are deadlocked and cannot come to a decision . . . .” The trial court instructed the jury to
       continue deliberating. The jury requested a transcript of Burkes’ testimony, but since it would
       not be available until the next morning the trial court sequestered the jury for the night. The
       next morning, the jury found Gallagher guilty of residential burglary. On May 19, 2010, the
       trial court denied Gallagher’s motion for a new trial and sentenced him to four years’
       imprisonment, the minimum sentence available. Gallagher filed this timely appeal.

¶ 24                                          ANALYSIS
¶ 25        Gallagher contends that his trial counsel provided ineffective assistance because his
       strategy was to concede that Gallagher committed certain acts consistent with a lesser
       offense, but counsel failed to proffer the appropriate jury instruction for the lesser-included
       offense. To prevail on an ineffective assistance of counsel claim, Gallagher must show that
       (1) his counsel’s performance was deficient so as to fall below an objective standard of
       reasonableness; and (2) the deficient performance prejudiced him so as to deny him a fair
       trial. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Failure to satisfy either prong
       of this test defeats a claim of ineffective assistance. People v. Edwards, 195 Ill. 2d 142, 163
       (2001). To show deficient performance, Gallagher must “overcome the strong presumption
       that the challenged action or inaction may have been the product of sound trial strategy.
       [Citations.] Matters of trial strategy are generally immune from claims of ineffective
       assistance of counsel. [Citation.]” (Internal quotation marks omitted.) People v Manning, 241


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       Ill. 2d 319, 326-27 (2011). A reviewing court gives deference to trial counsel’s “exercise of
       judgment, discretion or trial tactics even where [it] would have acted differently.” People v
       Ingram, 382 Ill. App. 3d 997, 1006 (2008).
¶ 26        Gallagher argues that his trial counsel’s strategy was to concede he committed actions
       consistent with trespass and present an instruction for the lesser-included offense to give the
       jury “a less severe option for conviction.” Therefore, at the jury instructions conference, his
       counsel offered instructions for criminal trespass to real property which the trial court denied.
       Gallagher contends that his trial counsel should have offered instructions for criminal
       trespass to a residence. By offering the wrong instruction, he argues his counsel’s
       performance was deficient by Strickland standards.
¶ 27        Defense counsel in his opening statement believed that the evidence that would be
       presented at trial could support a conviction for trespass. He stated:
                “Members of the jury, the evidence will show that this is not a residential burglary,
            that’s the one charge you’ll be evaluating. This is not a residential burglary. It might be
            a trespass but it’s not a residential burglary and trespass is not before you.”
       After presentation of the State’s case, at the jury instructions conference, defense counsel
       indicated that his strategy included giving jury instructions on the lesser included offense of
       trespass. However, counsel proffered IPI Criminal 4th Nos. 16.11 and 16.11A, instructions
       for criminal trespass to real property. Counsel thought the instruction was appropriate given
       Burkes’ testimony at trial. He argued that “if you listen to Mr. Burkes’ testimony *** he went
       through all of these details that *** he made sure that the door was locked and so that there
       was an implied notice that–no one else was to come into that room.” The trial court denied
       the instruction, and then Gallagher presented his case.
¶ 28        Gallagher testified that he had stepped into Burkes’ room and upon noticing that it was
       occupied, he felt “something was not right” and he “had created a bad situation.” However,
       he maintained that he never had the intent to commit theft but merely wanted to use the
       bathroom. In closing argument, defense counsel referred to Gallagher’s trial testimony that
       “[h]e opened the door, made a mistake, oops, I want to get out of this situation, I’m
       embarrassed.” At the end of his argument, counsel stated that his client “was wrongfully
       accused, he was wrongfully charged,” and he implored the jury “not to wrongfully convict
       him based on what we believe is an honest and innocent mistake. The evidence supports his
       testimony and we ask that you find him not guilty.” The trial court never revisited the jury
       instruction issue and the jury was instructed only on the offense of residential burglary.
¶ 29        Gallagher argues that given his admission at trial that he inadvertently stepped into
       Burkes’ room and knew he “had created a bad situation,” his counsel should have requested
       that an instruction for the lesser-included offense of criminal trespass to a residence be given
       to the jury. Illinois Pattern Jury Instructions, Criminal, No. 14.17 (4th ed. 2000) (hereinafter,
       IPI Criminal 4th No. 14.17) defines criminal trespass to a residence as “when, without
       authority, [a person] knowingly enters any residence.” “Residence” is defined as “the portion
       of a multi-unit residential building or complex which is the actual dwelling place of any
       person.” We agree. The jury should have been given an instruction on a lesser-included
       offense that supported the defense evidence at trial. See People v. Serrano, 286 Ill. App. 3d


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       485, 492 (1997) (counsel’s performance was deficient because he failed to offer an
       instruction on the theory of defense argued at trial). Furthermore, Gallagher was prejudiced
       by his counsel’s performance. Counsel clearly contemplated a lesser-included offense
       instruction of trespass and should have realized after Gallagher testified that IPI Criminal 4th
       No. 14.17 was the proper instruction. Counsel “has a duty to conduct both factual and legal
       investigations on behalf of a client.” People v. Pollards, 367 Ill. App. 3d 17, 23 (2006).
       Counsel could have requested another instructions conference and, given the evidence at
       trial, IPI Criminal 4th No. 14.17 would most likely have been given to the jury. Given
       Gallagher’s testimony at trial, there is a reasonable probability that the jury would have
       convicted him on the lesser charge.
¶ 30        The State disagrees, contending that trial counsel’s decision of whether to offer a jury
       instruction on a lesser-included offense is one of trial strategy with no bearing on the
       competency of counsel. However, as in the case before us, “[w]here defense counsel argues
       a theory of defense but then fails to offer an instruction on that theory of defense, the failure
       cannot be called trial strategy and is evidence of ineffective assistance of counsel.” Serrano,
       286 Ill. App. 3d at 492. Therefore, we reverse and remand the cause for a new trial.
¶ 31        Due to our disposition of this case, we need not address the remaining issues on appeal.
       However, we must now address the double jeopardy issue arising from our reversal of
       Gallagher’s conviction. The double jeopardy clause of the United States Constitution
       prohibits the State from having another opportunity to try a case unless it has in the first trial
       presented sufficient evidence to prove the defendant guilty beyond a reasonable doubt.
       People v. Macon, 396 Ill. App. 3d 451, 458 (2009). Since the State may reindict and retry
       defendant, double jeopardy requires the appellate court to rule upon the sufficiency of the
       evidence issue. People v. Taylor, 76 Ill. 2d 289, 309 (1979). Upon careful review of the
       record in the light most favorable to the prosecution, we find the evidence sufficiently
       supports the jury’s verdict beyond a reasonable doubt. Our determination, however, is not
       binding on retrial and does not indicate this court’s decision as to Gallagher’s guilt or
       innocence.
¶ 32        For the foregoing reasons, the judgment of the circuit court is reversed and the case is
       remanded for a new trial.

¶ 33       Reversed and remanded.




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