                             2015 IL App (2d) 120717
                                  No. 2-12-0717
                           Opinion filed February 3, 2015
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 09-CF-2703
                                       )
OMARRIAN T. JONES,                     ) Honorable
                                       ) Ronald J. White,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Hutchinson and Burke concurred in the judgment and opinion.

                                           OPINION

¶1     Following a jury trial, the defendant, Omarrian T. Jones, was convicted of 12 counts of

first-degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 2008)), attempted first-degree murder

(720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)), 4 counts of home invasion (720 ILCS 5/12-11(a)(1)

(West 2008)), and residential burglary (720 ILCS 5/19-3 (West 2008)). He was sentenced to

natural life imprisonment for the murder convictions, 30 years for the attempted murder

conviction, 30 years for the home invasion convictions, and 15 years for the residential burglary

conviction. On appeal, the defendant argues that: (1) the trial court erred in denying his request

for a six-person jury; (2) he was deprived of a fair trial where the State’s reasons for

peremptorily excluding an African-American potential juror were inadequate and pretextual; (3)
2015 IL App (2d) 120717


the trial court violated his right to self-representation; and (4) under one-act, one-crime

principles, this court should vacate all but two of his convictions of murder, all but one of his

convictions of home invasion, and his conviction of residential burglary. We affirm in part and

vacate in part.

¶2                                      BACKGROUND

¶3     On August 26, 2009, the defendant was charged by indictment with 60 offenses for the

first-degree murders of Reynato and Leticia Cardino (720 ILCS 5/9-1(a)(1), (a)(3) (West 2008)),

the attempted first-degree murder of their son, Reyle Cardino (720 ILCS 5/8-4(a), 9-1(a)(1)

(West 2008)), home invasion (720 ILCS 5/12-11(a)(1) (West 2008)), and residential burglary

(720 ILCS 5/19-3 (West 2008)). The charges alleged that, on July 8, 2009, the defendant entered

into the Cardinos’ home with the intent to commit a burglary. While in the home, he killed

Reynato and Leticia with a hammer and he attempted to kill Reyle.

¶4     Three weeks before the trial started, the defendant requested to proceed pro se. The trial

court admonished the defendant that, if he waived his right to counsel, the court was “going to

proceed to trial and you won’t be able to go back in the middle of trial and ask for a lawyer.”

The trial court then continued the proceedings for a day to allow the defendant to discuss the

matter with his counsel. On the following day, the defendant decided not to waive his right to

counsel.

¶5     Shortly before jury selection, the defendant requested a six-person jury. The trial court

denied the defendant’s request, explaining that the supreme court rules required 12-person juries.

¶6     During voir dire, the first African-American venireperson to be questioned, Gwendolyn

Barnett, stated that her husband was the pastor of Christian Faith Community Church, an

“independent” church, and that she was active in the church. Barnett stated that she did not have



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2015 IL App (2d) 120717


any moral, religious, or philosophical reasons why she could not sit as a juror and that she would

not have any hesitation in signing a guilty verdict. The prosecutor then asked Barnett if her

church was of “a particular religion.” Defense counsel objected, and the trial court sustained the

objection. The State then, in open court, exercised a peremptory challenge and excused Barnett.

¶7      In chambers, defense counsel raised a challenge pursuant to Batson v. Kentucky, 476 U.S.

79 (1986), and argued that the only difference between Barnett and the other jurors whom the

State had already accepted was her race. The trial court found that the defendant (who is

African-American) had established a prima facie case of purposeful discrimination.               The

prosecution    responded     that,      because   Barnett   had   stated   that   her   church   was

“nondenominational,” it wanted to ask her about her “faith, her affiliation with other churches.”

Further, because the trial court had sustained defense counsel’s objection to the prosecutor’s

question, the prosecutor excused Barnett because she did “not know[] what her answers would

be.” Defense counsel responded that the State should go ahead and ask Barnett those questions.

The prosecution answered that, because it had already excused Barnett in open court, Barnett

would be prejudiced against the State if the prosecution withdrew its peremptory challenge and

began questioning her again. The trial court determined that there had not been a Batson

violation. The trial court explained that the State had brought out that Barnett was deeply rooted

in her religion, and “if that’s something the State wishes to exercise a challenge for that reason

and not racial, that’s their choice.”

¶8      Caitlin LaChance, a white person who sat on the jury, stated during voir dire that she

volunteered weekly at a soup kitchen and performed charity work with her church. She worked

with Habitat for Humanity, was the assistant coordinator of the after-school program at her

church, and went on “mission trips.”



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¶9     At trial, Reyle testified that, on the evening of July 8, 2009, he walked into his parents’

kitchen. He saw the defendant, whom he had never seen before. The defendant told him,

“You’re dead.” He then began fighting with the defendant and tumbled down the basement

stairs. The defendant choked him, punched him, and threw objects at his face. While on the

basement floor, he saw the defendant go up the stairs to the kitchen. The defendant then came

back downstairs and pushed him over as he tried to stand up. The defendant then left the house.

Reyle then went upstairs and out the front door. He had a neighbor summon the police.

¶ 10   Police officers discovered the bodies of Reynato and Leticia in a bathtub. A forensic

pathologist determined that each had died due to multiple blunt force traumas to the head. Their

injuries were consistent with being struck by a hammer.

¶ 11   The police found rubber gloves on the kitchen floor of the victims’ home. A hammer

was found in the sink of the bathroom where the bodies were found. A ski mask, purple shirt,

and hooded sweatshirt were found in the basement. The defendant’s DNA was found on the ski

mask and the right-hand rubber glove. A bite mark on Reyle’s shoulder tested positive for the

defendant’s DNA.

¶ 12   The defendant testified that he lived a few blocks from the Cardinos and that he decided

to burglarize it. He snuck into the house while people were still there. He hid in the basement.

After everyone left the house, he went through each room of the house looking for items to steal.

While he was in the master bedroom, he heard someone coming into the house, so he went back

down into the basement. While in the basement, he heard someone attack the Cardinos. He

went up the basement stairs, peered around the corner, and saw a man beating Leticia with a

metal object. The defendant retreated to the basement. Later, he went back upstairs and was

attacked by someone who placed a chokehold on him. He lost consciousness.



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2015 IL App (2d) 120717


¶ 13    After regaining consciousness, he heard the garage door opening. Reyle came into the

house and asked him what he was doing there. The defendant responded: “They’re dead.” Reyle

grabbed a knife and swiped at him. They struggled and fell down the basement stairs. They

continued to struggle in the basement. The defendant threw an object at Reyle’s face, which

caused Reyle to fall to the ground. Thereafter, the defendant left the house. He was able to hide

from the police for several days before being arrested.

¶ 14    At the close of the trial, the jury found the defendant guilty of first-degree murder,

attempted murder, home invasion, and residential burglary. Following the denial of his posttrial

motion, the trial court sentenced the defendant to natural life imprisonment for first-degree

murder and an additional 60 years for attempted murder, home invasion, and residential burglary.

The defendant thereafter filed a timely notice of appeal.

¶ 15                                           ANALYSIS

¶ 16    The defendant’s first contention on appeal is that he was deprived of a fair trial due to the

trial court’s failure to consider his request for a six-person jury. The right to a jury trial in a

criminal case is guaranteed by both the federal and the state constitutions. U.S. Const., amend.

VI; Ill. Const. 1970, art. I, § 13; People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 80-81 (2009).

This constitutional right is codified in section 115-1 of the Code of Criminal Procedure of 1963

(the Code) (725 ILCS 5/115-1 (West 2008)). Section 115-4(b) of the Code provides that “[t]he

jury shall consist of 12 members.” 725 ILCS 5/115-4(b) (West 2008). However, because a

defendant can waive his entire right to a trial by jury, he can also waive his right to a jury

composed of 12 members and proceed with fewer than 12. Dockery, 235 Ill. 2d at 78. If the

defendant requests a jury of fewer than 12, the grant of that request lies within the sound

discretion of the trial court. Id. at 80-81.



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2015 IL App (2d) 120717


¶ 17   Where a trial court erroneously believes that it has no discretion in a matter, its failure to

exercise discretion can itself constitute an abuse of discretion. People v. Chapman, 194 Ill. 2d

186, 224 (2000). The effect of such a failure to exercise discretion must be assessed in the

context of the entire proceeding. Id. Not every error is of such magnitude that a new trial is

warranted. Id. at 224-25. In other terms, before a defendant is entitled to a new trial based on

the trial court’s failure to exercise its discretion, the defendant must “prove that prejudice

resulted from the trial court’s failure to exercise its discretion.” People v. Ware, 407 Ill. App. 3d

315, 349 (2011) (citing Chapman, 194 Ill. 2d at 223).

¶ 18   Here, the defendant does not make any argument as to how he was prejudiced by the trial

court’s failure to consider his request for a six-person jury. Indeed, since it is readily apparent

that it would be more difficult for a group of 12 people to reach a unanimous verdict than it

would for a group of 6 to reach such a verdict, the defendant’s ability to establish such prejudice

would be dubious at best. 1 Instead, relying on People v. Partee, 268 Ill. App. 3d 857, 869

(1994), the defendant argues that he does not have to establish prejudice at all. However, as



       1
           In a recent Chicago Tribune editorial, the newspaper editors commented on the benefits

of a 12-person jury in comparison to a 6-person jury. The editors opined:

                “Larger juries are more diverse, which means they’re more likely to reflect the

       views of the broader community. The quality of their deliberations is higher—they have

       better collective recall of the testimony, and the debate is more rigorous. With more

       voices, it’s less likely that a single juror will dominate the discussion and more likely that

       a dissenting juror will have an ally.” Editorial, Payday for Lawyers, Chi. Trib., Dec. 15,

       2014, § 1, at 16.



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2015 IL App (2d) 120717


Partee precedes our supreme court’s decision in Chapman by six years, we find that Partee is

not an accurate reflection of the current state of the law.

¶ 19   Alternatively, the defendant argues that prejudice should be presumed. The defendant

contends that this case is analogous to People v. Matthews, 304 Ill. App. 3d 415 (1999). In

Matthews, the court held: “[p]rejudice may be presumed where defendant was unaware of his

right to a 12-person jury and neither agreed to nor acquiesced in a decision to waive the full

number of jurors.” Id. at 419-20. The defendant’s argument is unpersuasive. The right to a 12-

person jury is a fundamental right that will be afforded a criminal defendant unless he

specifically waives that right. There is no similar fundamental right to a six-person jury. If there

were such a fundamental right, the trial court could never deny the defendant his request for a

smaller jury. However, the trial court clearly has that ability. Dockery, 235 Ill. 2d at 78.

Accordingly, as set forth above, the defendant must establish prejudice in order to be entitled to

reversal. As he does not, his argument as to this issue is without merit.

¶ 20   We next consider the defendant’s argument that he was deprived of a fair trial because

the State’s reasons for peremptorily excluding the only African-American venireperson were

inadequate and pretextual.

¶ 21   In Batson, 476 U.S. at 89-96, the United States Supreme Court held that the State violates

the equal protection clause of the United States Constitution when it uses peremptory challenges

to exclude members of a venire from jury service based upon their race. The Court set forth a

three-part test to determine whether the State had committed such a violation. Id. at 96-98.

“First, the defendant must make a prima facie showing that the prosecutor has exercised

peremptory challenges on the basis of race.” People v. Easley, 192 Ill. 2d 307, 323 (2000).

“Second, if the defendant has made a prima facie showing, the burden then shifts to the State to



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2015 IL App (2d) 120717


provide a race-neutral explanation for excluding each venireperson in question.” Id. at 323-24.

During the second step, “the trial court focuses on the facial validity of the prosecutor’s

explanation. The explanation need not be persuasive, or even plausible.” (Emphasis in original.)

Id. at 324. The defense may then rebut the prosecutor’s reasons as being pretextual. Id. “Third,

the trial court *** weighs the evidence in light of the prima facie case, the prosecutor’s reasons

for challenging the venireperson, and any rebuttal by defense counsel” to “determine whether the

defendant has met his or her burden of proving purposeful discrimination.” Id.

¶ 22   The exclusion of even one prospective juror based on race is unconstitutional and

requires reversal of a conviction. People v. Britt, 265 Ill. App. 3d 129, 133 (1994). A reviewing

court should not overturn a trial court’s finding on the issue of discriminatory intent in the

prosecution’s use of peremptory challenges unless it is convinced that the trial court’s

determination was clearly erroneous. People v. Champs, 273 Ill. App. 3d 502, 506 (1995).

Because discriminatory intent is a matter of fact and a question of credibility, the trial court’s

findings are afforded great deference on review. People v. Martinez, 297 Ill. App. 3d 328, 339

(1998). However, reviewing courts must attempt to make a meaningful assessment of the State’s

reasons for challenging venirepersons if Batson is to be followed in practice and not just in

theory. Id.

¶ 23   Here, we cannot say that the trial court’s determination that the State did not commit a

Batson violation was clearly erroneous. After the trial court found that the defendant had

presented a prima facie case that the State had exercised a peremptory challenge on the basis of

race, the trial court directed the State to respond. The State explained that it wanted to question

Barnett about her “faith.” However, after the trial court sustained defense counsel’s objection to

its question regarding whether Barnett’s church was of a “particular religion,” it did not believe



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2015 IL App (2d) 120717


that it could ask that question. The State therefore decided to exercise a peremptory challenge

because it did not know what Barnett’s answer would be. The trial court accepted the State’s

explanation that its reason for wanting to exclude Barnett was not based on racial grounds, and

therefore there had not been a Batson violation.

¶ 24    The defendant argues that the trial court’s decision was clearly erroneous because it was

based on error that the State introduced into the proceedings.       Specifically, the defendant

contends that the trial court never precluded the State from asking whether Barnett was affiliated

with any particular religious group. The defendant also points out that the State was the party

that chose to excuse Barnett in open court. He concludes that it therefore should not be allowed

to complain that Barnett would have been prejudiced against the State because the State chose to

excuse her in open court. Cf. People v. Coleman, 307 Ill. App. 3d 930, 936 (1999) (law

generally does not allow a person to take advantage of his own wrong).

¶ 25    It is clear that the State made a mistake in its questioning of Barnett. The State could

have questioned Barnett in a way that would have elicited whether she was affiliated with any

particular religious group, but it did not. The State also compounded its mistake by immediately

excusing Barnett from the jury pool before discussing the matter with the trial court in chambers.

However, Batson does not require that the State be perfect in its conducting of voir dire. Rather,

Batson requires that the trial court assess whether any mistake that the State made was accidental

or was intentionally committed to mask a discriminatory motive. Martinez, 297 Ill. App. 3d at

339.   Such a determination necessarily requires that the trial court assess the prosecutor’s

credibility.   Id.   Here, the trial court implicitly found that the prosecutor’s mistakes were

accidental and thus not a Batson violation. We cannot say that the trial court’s determination was

clearly erroneous.



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¶ 26   We also reject the defendant’s argument that the State’s treatment of Barnett was clearly

pretextual in light of the way it questioned a white prospective juror on the level of her religious

involvement. Although that juror, LaChance, testified that she was active in her church and did

missionary work, the State made no inquiry as to her church’s denominations or affiliations.

Since the State claimed that it was vitally important that it ask Barnett about her religious

affiliations, but it did not even attempt to question LaChance about such things, the defendant

insists that the State’s reason for rejecting Barnett was pretextual.

¶ 27   In rejecting a similar argument, our supreme court stated:

       “The State’s purposeful discrimination is not automatically established by the mere

       coincidence that an excluded juror shared a characteristic with a juror who was not

       challenged. The excluded juror may possess an additional trait that caused the State to

       find him unacceptable, while the juror who was not challenged may possess an additional

       characteristic that prompted the State to find him acceptable to serve as a juror.

       [Citation.] ‘A peremptory challenge is based on a combination of traits, and a juror

       possessing an unfavorable trait may be accepted while another juror possessing that same

       negative trait, but also possessing other negative traits, may be challenged.’ [Citation.]”

       People v. Wiley, 165 Ill. 2d 259, 282-83 (1995).

¶ 28   Here, the State argues that the difference in its questioning of Barnett and LaChance was

that it was able to ask LaChance all the questions that it wanted to, while the trial court curtailed

its questioning of Barnett. As noted above, the State erred in determining that the trial court’s

sustaining of an objection pertaining to Barnett’s church prevented it from asking Barnett about

her religious affiliations. However, the trial court essentially found that the State made an

innocent mistake when it determined that it could not ask Barnett any further related questions.



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2015 IL App (2d) 120717


Thus, the trial court could determine that the State’s basis for exercising a peremptory challenge

against Barnett was not an improper pretext. This is all that Batson requires. Batson does not

mandate that every potential juror be questioned identically. Wiley, 165 Ill. 2d at 282-83.

¶ 29   We also reject the defendant’s argument that the trial court improperly advocated on

behalf of the State in determining whether the State had committed a Batson violation. The

defendant points out that the trial court explained to the parties that the State was excusing

Barnett because she was deeply religious and could not be fair “because of those religious

issues.” The defendant complains that the State never actually made that argument.             The

defendant therefore insists that the trial court, by advancing an argument that the prosecution

never made, abandoned its role as a neutral arbiter and deprived him of a fair trial. See People v.

Jackson, 409 Ill. App. 3d 631, 647 (2011) (trial court abuses its discretion when it adopts the role

of advocate for one of the parties).

¶ 30   We believe that the defendant’s argument misstates the record. In explaining why it was

exercising a peremptory challenge against Barnett, the State explained:

               “For the record, our concerns were not of her race anyway whatsoever. It was

       with regards to her religious convictions, which, quite frankly, we were not allowed to go

       into. And we did not want to risk what some of those religious convictions might lead

       her to do in this particular situation.”

The State additionally stated:

       “We wanted to inquire of her regarding her faith, her affiliation with other churches. We

       do know that some individuals have certain religious convictions that have to be fleshed

       out to determine whether or not they will in fact, deliberate and be able to sign a guilty

       verdict. And that was the line of questioning that we were prohibited from going into.



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2015 IL App (2d) 120717


        Therefore, not knowing what her answers would be, we exercised a peremptory challenge

        to this juror.”

The State later expounded:

                  “Judge, there were things that [Barnett] said. She said several things. She said in

        my spare time I like to read the Bible. She said a lot of things that *** we weren’t able to

        go further. Her husband is a minister. She’s very involved in the church. That certainly

        gave us reason to go into that area.”

¶ 31    The State’s comments demonstrate that, because it believed that it could not fully delve

into Barnett’s religious convictions, it was concerned that those convictions would prevent her

from being a fair and impartial juror. The trial court’s characterization of the State’s objection to

Barnett as being based on “religious issues” was therefore accurate.            As the trial court’s

comments reflect arguments actually made by the State, the trial court’s comments do not

indicate that it was in any way advocating for the State.

¶ 32    We next address the defendant’s argument that he was deprived of his right to self-

representation. Specifically, the defendant argues that the trial court improperly admonished him

that if he waived his right to counsel he would not be able to request the reappointment of

counsel during trial. The defendant contends that the trial court’s improper admonishment

intimidated him into forgoing his constitutional right to represent himself, and thus he is entitled

to a new trial.

¶ 33    A defendant has a constitutional right to represent himself. Faretta v. California, 422

U.S. 806, 813-14 (1975); People v. Burton, 184 Ill. 2d 1, 21 (1998). In order to represent

himself, a defendant must knowingly and intelligently relinquish his right to counsel. Faretta,

422 U.S. at 835; Burton, 184 Ill. 2d at 21. It is “well settled” that a waiver of counsel must be



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clear and unequivocal, not ambiguous. People v. Baez, 241 Ill. 2d 44, 116 (2011). A defendant

waives his right to self-representation unless he articulately and unmistakably demands to

proceed pro se. Id. The purposes of requiring that a defendant make an unequivocal request to

waive counsel are to: “(1) prevent the defendant from appealing the denial of his right to self-

representation or the denial of his right to counsel, and (2) prevent the defendant from

manipulating or abusing the system by going back and forth between his request for counsel and

his wish to proceed pro se.” People v. Mayo, 198 Ill. 2d 530, 538 (2002).

¶ 34   In determining whether a defendant’s statement is clear and unequivocal, a court must

determine whether the defendant truly desires to represent himself and has definitively invoked

his right of self-representation. Burton, 184 Ill. 2d at 22. Courts must “indulge in every

reasonable presumption against waiver” of the right to counsel. Brewer v. Williams, 430 U.S.

387, 404 (1977); Burton, 184 Ill. 2d at 23. The determination of whether there has been a

knowing and intelligent waiver of the right to counsel must depend, in each case, upon the

particular facts and circumstances of that case, including the background, experience, and

conduct of the accused. People v. Lego, 168 Ill. 2d 561, 565 (1995). We review a trial court’s

determination for an abuse of discretion. Baez, 241 Ill. 2d at 116.

¶ 35   Although a court may consider a defendant’s decision to represent himself unwise, if his

decision is freely, knowingly, and intelligently made, it must be accepted.      Id. However,

“[a]lthough a defendant need not possess the skill and experience of a lawyer in order to choose

self-representation competently and intelligently, he should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that he knows what he is

doing and his choice is made with eyes open.” (Internal quotation marks omitted.) Lego, 168 Ill.

2d at 564 (quoting Faretta, 422 U.S. at 835, quoting Adams v. United States ex rel. McCann, 317



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2015 IL App (2d) 120717


U.S. 269, 279 (1942)). The requirement of a knowing and intelligent choice calls for nothing

less than a full awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it. Baez, 241 Ill. 2d at 117. Even if a defendant gives some indication

that he wants to proceed pro se, he may later acquiesce in representation by counsel. Id.

¶ 36    Once a defendant is granted the right to proceed pro se, he does not have an unequivocal

right to revoke his pro se status. See People v. Pratt, 391 Ill. App. 3d 45, 56-57 (2009). Rather,

this is a matter resting in the trial court’s discretion. Id. at 57. Particularly, the trial court is not

obligated to allow the defendant to revoke his pro se status if it believes that the defendant is

trying to do so to delay the trial proceedings. Id.

¶ 37    We do not believe that the trial court improperly admonished the defendant that, if he

waived his right to counsel, he would not be able to have counsel reappointed in the middle of

trial. The trial court’s admonishment essentially informed the defendant that, if he opted to

proceed pro se, the trial court would not allow him to switch during the trial and be represented

by an attorney and thereby delay the trial proceedings. Such a warning was not improper. See

id.

¶ 38    Moreover, even if the trial court’s admonishment was improper, we do not believe that it

intimidated the defendant into forgoing his right to self-representation. On April 2, 2012,

defense counsel informed the trial court that, while he was standing there reporting on

preliminary matters, the defendant had stated that he wished to proceed pro se. The following

colloquy then occurred between the trial court and the defendant:

                “THE COURT: Is this something that just came up in your mind, and do you

        think you need more time to talk with [your attorneys] regarding your representation of

        yourself?



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               THE DEFENDANT: You’re a wise man. What would you suggest, Your Honor?

               THE COURT: I can’t suggest anything, Omarrian.          You have to make that

       decision.    You have a right under the United States Constitution and the Illinois

       Constitution to represent yourself if you wish. If after asking you a number of questions

       and after going over the nature of the charges and the possible penalties and what’s

       involved here, if you wish and I enter a finding that you knowingly and intelligently

       waive a right to an attorney, and I believe you have an educational background and the

       knowledge to proceed on your own behalf, I would allow you to represent yourself. This

       is serious. You’re looking at natural life. Do you understand that?

               THE DEFENDANT: Your Honor, yes.

               THE COURT: Do you think you need a short period of time to speak [with your

       attorneys] to see if you can get this issue resolved before you ask this Court for me to

       order that you can represent yourself? Because once I order if I do find that you’re

       competent to represent yourself and that you knowingly and intelligently have waived

       your right to an attorney, then at that point there—

               THE DEFENDANT: I may do that?

               THE COURT: —we’re going to proceed to trial and you won’t be able to go back

       in the middle of trial and ask for a lawyer. Do you understand that?

               THE DEFENDANT: I understand your stipulation.”

¶ 39   Thereafter, the trial court continued the proceeding to allow the defendant to confer with

his attorneys as to whether to proceed pro se. On the following day, the defendant informed the

trial court that he did not wish to proceed pro se.




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¶ 40     The above portion of the record demonstrates that the defendant did not express a clear

and unequivocal desire to proceed pro se. Rather, the record indicates that the defendant had

only recently considered proceeding pro se and had not even discussed the matter with his

counsel. The trial court therefore properly allowed the defendant additional time to confer with

his attorneys. Cf. People v. Johnson, 262 Ill. App. 3d 781, 795 (1994) (trial court did not

improperly persuade witness not to testify where he gave witness additional time to decide

whether to testify as well as to consult with counsel). As such, the record does not support the

defendant’s contention that the trial court intimidated him into forgoing his right to represent

himself.

¶ 41     The defendant’s final contention on appeal is that, under one-act, one-crime principles,

this court should vacate all but two of his convictions of murder, all but one of his convictions of

home invasion, and his conviction of residential burglary. The State confesses error on this

point.

¶ 42     We agree that the trial court erred when it convicted and sentenced the defendant for 12

counts of first-degree murder. Because two individuals were murdered, the defendant can be

convicted of only two murders. People v. McLaurin, 184 Ill. 2d 58, 104 (1998). We therefore

vacate all of the defendant’s murder convictions except count XVII (intentional murder of

Reynato) and count XIX (intentional murder of Leticia). Further, because the counts of home

invasion were all based on the defendant’s single entry into the Cardinos’ home, only one

conviction of home invasion can stand. People v. Cole, 172 Ill. 2d 85, 102 (1996). We therefore

vacate all of the defendant’s convictions of home invasion except for count LIII. Finally,

because the defendant’s convictions of residential burglary and home invasion were based on the




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same conduct, we must vacate the conviction of residential burglary. McLaurin, 184 Ill. 2d at

106.

¶ 43                                    CONCLUSION

¶ 44   For the foregoing reasons, the judgment of the circuit court of Winnebago County is

affirmed in part and vacated in part.

¶ 45   Affirmed in part and vacated in part.




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