In re Keith C.

• Decision Date: 27 December 2007
• Docket Number: No. 1-06-1807.,1-06-1807.
• Parties: In re KEITH C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Keith C., Respondent-Appellant.).
• Court: United States Appellate Court of Illinois

880 N.E.2d 1157

378 Ill. App. 3d 252

In re KEITH C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Keith C., Respondent-Appellant.).

No. 1-06-1807.

Appellate Court of Illinois, First District, Fourth Division.

December 27, 2007.

Michael J. Pelletier, Deputy Defender, Michael H. Orenstein, Asst. Appellate Defender, Chicago, for Appellant.

Richard A. Devine, Cook County State's Attorney, James E. Fitzgerald, Douglas Harvath, Anastasia Nowacki Harper, Asst. State's Attorneys, of counsel, Chicago, for Appellee.

Justice MURPHY delivered the opinion of the court:

Respondent, Keith C, was adjudicated delinquent based on a finding that he had committed the offenses of armed robbery (720 ILCS 5/18-2 (West 2004)) and aggravated battery (720 ILCS 5/12-4(a), (b)(1), (b)(8) (West 2004)). Respondent was adjudged a ward of the court and sentenced to five years' probation. On appeal, respondent contends that (1) the identification evidence was insufficient, (2) the trial court erred when it refused to permit expert eyewitness identification testimony, (3) his adjudication for aggravated battery should be reversed because the victim's injuries were not "practically certain" to result from throwing a brick, (4) improper hearsay was admitted, (5) the State made factual misrepresentations in its closing argument, and (6) the compulsory extraction of his saliva and perpetual storing of his DNA profile violate his right to be free from unreasonable searches and seizures.

I. BACKGROUND

The State filed a petition for adjudication of wardship alleging that respondent committed robbery, aggravated battery, and criminal damage to property. He was tried in separate, simultaneous hearings with his two co-respondents, Aaron J. and Tony B.

Guadalupe Leon testified through an interpreter that on September 5, 2004, she left a birthday party in Berwyn at about 9 p.m. She thought it took 45 minutes to drive to her home, located at 6635 South California in Chicago. She drove into the well-lit alley behind her house and saw four young men enter the alley, two on a bicycle and two men walking next to the bicycle. Leon identified respondent and his two co-respondents in court as three of the boys.

As she drove past the boys, one of them kicked her bumper, but she was not afraid because she thought they were playing. She "barely saw" the face of the boy who kicked her car, but she recognized the boy riding the bicycle as co-respondent Tony B. She proceeded to open her garage with a remote control and pulled in. She let her husband out since he had to go to the restroom. When she pulled the car out of the garage to straighten it, she saw the boys leaning against her neighbor's garage, which adjoined hers, "all in the light." She testified that there was "plenty of light" in the alley outside the garage, and the inside of the garage was illuminated when she opened the garage door.

She was looking behind her, in the process of parking, when she heard a noise by the door. Someone opened her car door, and one of the boys grabbed her purse, with her cell phone clipped to the strap, from inside the car. He ran and dropped the purse in the middle of the garage. She attempted to get out of the car to retrieve her purse, but one of the boys went and picked it up. At that moment, a brick hit the windshield, breaking the glass, and "whatever emanated from that brick" hit her in the head. Everything became blurry, and she began bleeding from her ear. She saw the offenders from behind as they ran away. She did not see who threw the brick.

Leon braced herself against the walls of the garage as she went into the house and called her son, Ernesto. She went back to the car, where a man, who had called an ambulance, was helping her husband. She lay down in the car because she was unable to stand. By the time she was in the ambulance, she had her purse back, but the cell phone was no longer clipped to the strap.

Leon's son, Ernesto, a police officer, testified that he was on duty at about 9:30 p.m. when his mother called his cell phone in a "nervous panic." He hung up with her, called 911, and drove to his parents' house with his lights and sirens activated. He arrived in less than 15 minutes and found the garage door open and the light in the garage on. His mother's car was crashed into the neighbor's fence. The windshield was broken and there was an indentation where the roof connects to the front windshield. He saw two halves of a brick inside the garage. His mother, "kind of passed out" in the passenger seat, had blood coming out of her right ear. Leon called the police department and requested a paramedic and police.

Ernesto attempted to talk to his mother to keep her conscious while they waited for the ambulance. After the ambulance arrived, he heard children at the front of the building calling out to someone in the building. He went to the front of the building and saw a boy and a girl. The girl was holding a black purse, which Leon determined was his mother's. His mother's cell phone was missing from the purse and he did not find it in her car. He went with his mother to the hospital, where she received four staples above her right ear.

Detective Kampenga of the Chicago police department testified that on September 15, 2004, he showed Leon an array of 18 photos. He did not tell her that she had to Tick someone out, nor did he tell her that there was a suspect in the array. She did not identify anyone from this array. Neither respondent nor his co-respondents were pictured in the array.

Kampenga testified that Ernesto Leon provided him with the records for the stolen cellular phone to determine whether any calls were made with it after it was stolen. Kampenga investigated two phone numbers that were dialed from Leon's stolen phone. He then spoke to respondent and his mother. Based on this information, he searched the Chicago police department's CLEAR database for Aaron J. and obtained a photo of him, which he included in a second photo array. On September 28, 2004, Kampenga showed Leon the array of five photos. He did not tell her there was a suspect in the array, nor did he tell her she needed to pick someone out. Leon identified co-respondent Aaron J. as one of the perpetrators.

Kampenga then went to Aaron J.'s home and spoke to Anthony B., the father of Keith's two co-respondents, Tony and Aaron. Anthony B. gave Kampenga a cellular phone, which Leon later identified as hers. Tony and Aaron arrived home soon thereafter with respondent. Kampenga brought the three boys to the police station and conducted a six-person lineup composed of Keith, Tony, and Aaron, and three additional people. Leon identified respondent and co-respondents.

Kampenga interviewed Keith, who stated that he was with his friends Aaron and Tony when he found the cell phone in the middle of the alley on the night of September 5, 2004. He could not remember what time this occurred, but it was dark out.

At the close of the State's case, respondent moved to allow testimony from Dr. Gerald Loftus, a psychologist. Respondent argued that Loftus would have explained the "transference effect," i.e., how someone could mistakenly remember a person from one time and place when the sighting was in a different context. He also would have described how an officer can unconsciously influence a lineup. The trial court noted that the proposed expert had not spoken to Leon or the police detectives involved. The court questioned the relevance and helpfulness of Loftus's proposed testimony because "I don't know, as I'm sitting here right now, whether or not the police might have done something suggestive that they, maybe unconsciously, didn't know." It also noted that the proposed testimony would be a "scholarly recitation about something that has everyday impacts" and found that it was well aware of general issues as they relate to eyewitness identification. Therefore, it barred the testimony.

Respondent then called Chicago police officer Shawn Monroe, who mentored respondent. Monroe testified that after respondent's arrest, he talked to someone from the neighborhood, who said that a man named Donte had done additional robberies, and burglaries. He informed a police detective and asked him to do a new lineup, but the detective refused "because it would kind of mess the case up." Monroe testified that he did not file a report against the detective for official misconduct, nor did he create any supplemental police reports or general progress reports based on this information.

Respondent's mother testified that on September 5, 2004, she and respondent arrived home from her parents' house at 9:45 or 10 p.m. Respondent went to his room for a second and then went outside. She thought respondent was on the porch with co-respondents for a few minutes, but she was not sure. Before she went to bed, at about 10 p.m., she saw respondent on her neighbor's porch. She fell asleep but heard him come in and go to his room.

Respondent's neighbor, Lorraine Stokes, testified that on September 5, 2004, she was at home from 7:30 to 10:30 p.m. Tony and Aaron were on her porch from 7:30 to 9 p.m. She testified that at 9, they moved to a neighbor's porch, but admitted that she did not see them leave. Respondent arrived later; she saw him at 10 p.m. but did not see him arrive. Tony and Aaron's mother called at 10:30, but when she looked out the window, the boys were gone.

Stokes testified that the three boys did not have a "reputation" in the community. They were close friends who played together, often at Marquette Park, which is at 67th and California. When they walked to Marquette Park to play basketball, they would walk south on Fairfield from the 65th Street block to 66th and Fairfield. She did not see their route past her block.

Finally, respondent testified on his own behalf. He stated that on September 5, 2004, he left the home of his grandmother, who lives two to five...