People v. Austin

• Decision Date: 25 April 2017
• Docket Number: No. 1-14-2737,1-14-2737
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus AUSTIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 142737
79 N.E.3d 312

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Marcus AUSTIN, Defendant-Appellant.

No. 1-14-2737

Appellate Court of Illinois, First District, Second Division.

Opinion filed April 25, 2017
Rehearing denied May 31, 2017

Michael J. Pelletier, Patricia Mysza, and Jonathan Krieger, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Marci Jacobs, Assistant State's Attorneys, of counsel), for the People.

Justices Pierce and Mason concurred in the judgment and opinion.

OPINION

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Defendant Marcus Austin was convicted by a jury of armed robbery, aggravated vehicular hijacking, and aggravated assault. He argues on appeal that (i) after a Batson challenge, the trial court improperly collapsed the three-step procedure; (ii) the trial court erred by refusing to instruct the jury on exclusions to the definition of "firearm"; (iii) the prosecutor's closing argument improperly commented on Austin's silence at the time of his arrest; and (iv) the evidence to sustain his conviction for armed robbery was insufficient.

¶ 2 We affirm: (i) the defense did not establish a prima facie showing of discrimination resulting from the State's peremptory challenges of two black venirepersons; (ii) the trial court's refusal of the defense's proffered instruction was not error because the jury instruction as given apprised the jury of the relevant law; (iii) taken in context and in its entirety, the prosecutor's closing was nothing more than a summation and not an improper comment on Austin's right to silence after his arrest; and (iv) the evidence proved beyond a reasonable doubt that Austin committed an armed robbery.

¶ 3 BACKGROUND

¶ 4 Jury Selection

¶ 5 During voir dire , the State used three peremptory challenges to exclude prospective jurors. Defense counsel challenged the State's peremptory removal of two black venirepersons. In addition, the State excused a third prospective juror, who was not black. Three black venirepersons were accepted to serve on the jury.

¶ 6 Without the defendant making a prima facie showing that the prosecution exercised preemptory challenges based on race, the trial court asked the State to provide race-neutral reasons for striking the two black jurors. The prosecutor pointed out that the defense had "not made a prima facie showing," to which the court replied, "I'm not sure they have either, but tell me the reason." The prosecutor then

79 N.E.3d 316

stated that one of the excluded venirepersons had a domestic battery conviction that he did not disclose (the venireperson had been arrested 19 years earlier for domestic battery and the charges were dropped). The prosecutor told the court the other black venireperson had "indicated several things that her brother [ (actually, brother-in-law) ] was a CPD police officer that was beat up by [Calumet] Park Police Officers. She says she reads the Bible. She says she is a youth minister. Those are all the reasons where the State struck her." The third juror stricken was not black but had four prior convictions. When the trial court asked defense counsel if he had anything else to argue, defense counsel responded "No, Judge."

¶ 7 The State attempted to put on the record that the defense did not make a prima facie showing, to which the trial court replied, "I'm not saying that they did. We just went a little quicker to get that out of the way" and "I'm not accusing anybody of anything. It just makes it quicker to get it done. That's all. The reasons you gave I think are more than sufficient easily." The trial court reiterated that one had a prior conviction he did not disclose and the other "the situation with the police."

¶ 8 Moments later, the trial court stated, "I wasn't giving the parties a hard time about that race-neutral stuff. There is no issue in my mind that there was a prima facie case. I just jumped it forward to save a little time. There was no issue in my mind of any discrimination whatsoever. So let's move on."

¶ 9 Trial

¶ 10 Austin and a codefendant were charged with aggravated vehicular hijacking of Takiyah Stephenson and armed robbery of Anthony Younger for taking money and a coat from Younger by threat or force while carrying a firearm. Before trial, the two defendants' cases were severed.

¶ 11 Around 11 p.m. on November 13, 2010, as Stephenson sat alone in the front passenger seat of her friend's car, a man approached and tried to open the locked driver's side door. The man asked Stephenson for a lighter and came around to the passenger side where the window was partially down. He stuck a gun through the opening, pointed it at her head, and told her to unlock the door. Stephenson grabbed the gun and "held it up." Another man (codefendant) approached on the driver's side with a gun, and demanded that Stephenson unlock the door. She got out and ran. The two men took off in Stephenson's friend's car.

¶ 12 Stephenson testified the gun was steel but she could not describe the gun's make or whether it was automatic or semiautomatic. She knew it was a gun because her father was in the military and she had fired guns. On cross-examination Stephenson admitted she could not tell the difference between a pellet gun and other guns.

¶ 13 Both Stephenson and the car's owner testified that a white jacket recovered from the car was not there before it was stolen.

¶ 14 About one-half hour later, Anthony Younger was robbed of money and a Pelle leather jacket. The day after the robbery, Younger described his jacket as a "cream-colored leather Pelle jacket." Younger testified that the jacket recovered from the car later was not his. Younger described the robber as black, in his twenties and looking similar to Younger. He testified the robber had a gun; on cross-examination, he stated he did not know if the gun was real or a pellet gun, and could have been a toy. Although Younger signed a lineup advisory form, he claimed he had not read it. After signing the form, Younger viewed a lineup but stated he did not

79 N.E.3d 317

pick anyone out. Younger did not identify Austin in court. The State impeached Younger with a prior conviction for a drug offense.

¶ 15 Chicago police detective Donald Hill testified that he interviewed Younger the morning after the robbery. Younger described his stolen jacket as a Pelle "white leather coat with studs on it." Hill explained the lineup advisory form to Younger; both Hill and Younger signed the form, and Younger identified Austin in the lineup.

¶ 16 Chicago police officer Thomas Raines was on patrol on November 13, driving a marked squad car with Chicago police officer Matthew Gozdal as passenger. Just before midnight, they saw a car matching the description of the stolen car and followed it. The car soon stopped and two men got out and ran. Austin was on the passenger's side holding a black gun in his right hand, which looked to Raines like his own gun. Raines chased Austin, telling him to stop. While running, Austin pointed a gun at Raines. Raines fired at Austin eight times. Raines lost sight of him but 30 to 60 seconds later saw Austin in front of a nearby building. Raines identified Austin on the scene as the same man who had pointed a gun at him.

¶ 17 Gozdal, Raines's partner, testified he saw a black handgun in Austin's right hand as Austin ran. Gozdal pursued the driver, and heard three gunshots.

¶ 18 Around 11 p.m., Chicago police office Jose Pedraza and his partner received a "flash message" about a carjacking, including a description of the car and the license plate number. They pursued the car, which lost control and hit a curb. Two men jumped out and ran. Pedraza joined Raines and Godzal who were chasing Austin. Pedraza saw a "blue steel handgun, semiautomatic pistol" in Austin's right hand. Austin turned and pointed the gun at Raines before Raines fired at Austin. At this point, Pedraza fell and lost sight of Austin.

¶ 19 Officer Brian Lohse arrived after the other officers had started to run after the car's occupants. Lohse encountered Austin who put his hands in the air, saying, "I'm the guy you're looking for." Lohse handcuffed Austin and turned him over to Pedraza. No gun was found.

¶ 20 The defense presented no witnesses.

¶ 21 Closing Argument

¶ 22 During closing arguments, defense counsel argued that one of the elements of both offenses was that Austin had a firearm and then raised the possibility that the weapon seen by witnesses was a BB gun. Defense counsel argued that Stephenson admitted that she did not know the "differences of a gun" and had never shot a pellet gun. Defense counsel then theorized: "Where is the gun? What type of gun was it? Was it a real gun? Was it a BB gun[?] Those questions remain." Further, "I asked [Younger], can you describe the gun, can you tell me what kind it was, how big was it? He said he didn't know. Could it have been a toy gun? Yes, it could have been a toy gun."

¶ 23 In rebuttal, the State argued: "Now he wants you to believe that maybe that was a BB gun. If that was the case, wouldn't you want the officer to know, hey, it was just a gun, a BB gun, a toy, whatever, a starter pistol?" The trial court overruled defense counsel's objection. The prosecutor continued: "Wouldn't he want the officers to know that? But no. He hides it because he knows it's a real gun. He knows what the consequences are."

¶ 24 After arguments, defense counsel's motion for a mistrial was denied.

79 N.E.3d 318

¶ 25 Jury Instructions

¶ 26 At the jury instruction conference, defense counsel requested Illinois Pattern Jury Instructions, Criminal, No. 18.35G (4th ed. 2000) (IPI Criminal 4th No. 18.35G), defining "Firearm":

"The word 'firearm' means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas, or escape of gas. [The term does not

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