People v. Berry

• Decision Date: 29 June 1994
• Docket Number: No. 1-90-0565,1-90-0565
• Citation: 205 Ill.Dec. 190,264 Ill.App.3d 773,642 N.E.2d 1307
• Parties: , 205 Ill.Dec. 190 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick BERRY, Jr., Defendant-Appellant. First District, Third Division
• Court: United States Appellate Court of Illinois

Page 1307

642 N.E.2d 1307

264 Ill.App.3d 773, 205 Ill.Dec. 190

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick BERRY, Jr., Defendant-Appellant.

No. 1-90-0565.

Appellate Court of Illinois,

First District, Third Division.

June 29, 1994.

Michael J. Pelletier, Deputy Defender, Linda Eigner, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, William D. Carroll, Christine Cook, of Counsel), for appellee.

MODIFIED ON DENIAL OF REHEARING

Justice GREIMAN delivered the opinion of the court:

Following a jury trial, defendant Derrick Berry was convicted of armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2(a)) and sentenced [205 Ill.Dec. 193] to 10 years' imprisonment. Defendant now argues that this court should reverse his conviction on grounds that the State violated his due process rights at trial by: (1) introducing evidence of his post-arrest silence to impeach his alibi testimony; (2) improperly impeaching his alibi witnesses with evidence of their failure to come forward and notify the police of the alibi; (3) attempting to shift the burden of proof by arguing that defendant failed to produce certain witnesses to support his defense; (4) introducing evidence of a prior nonidentification lineup to bolster testimony of a subsequent identification; and (5) cumulative error; or ineffective assistance of counsel. Alternatively, defendant asks this court to reduce his sentence for an alleged abuse of discretion at the sentencing hearing.

We affirm the trial court.

On May 6, 1988, Kimberly Wescott was a co-owner of a Baskin-Robbins store where she worked with Michael Shannon and David Arnold. Between 9:30 and 10 p.m. Wescott saw a man later identified as defendant walk into the store, sit down and after a few minutes exit and stand outside the store. Wescott asked the employees if they knew defendant because it was unusual for someone to sit in the store without ordering anything, and they told her they did not.

Defendant returned 10 to 15 minutes later wielding a long-barreled gun and announced, "This is a stick up." At this time, Wescott could see defendant's face and his gun as he stood about six feet away from her and all of the store lights were illuminated. Defendant ordered Arnold to lie on the floor and Shannon to turn off the lights and then lie on the floor. Shannon, who stood approximately four to six feet away from defendant, followed this directive; however, several lights remained on including six-foot fluorescent lights in the front area and other lights in the back room.

Defendant then approached Wescott, jabbed the gun in her side and the two walked to the cash register where defendant removed $70 to $100. Defendant indicated he knew there was more money in the store and proceeded to a cashbox hidden from plain view. Wescott opened the cashbox and handed defendant its contents of rolled coins and $100 in cash while she took a long look at defendant's face, and then obeyed his order to lie on the floor.

Defendant told Shannon, who had a clear view of defendant's face, to open the back door and then return to the floor and count to 100; anyone who moved before reaching 100 would be shot. After Shannon heard defendant exit, he locked the back door and Wescott called the police.

After the police arrived, all three witnesses described the robber as a black male with a dark complexion, 6'1"' in height and weighing 160-165 pounds.

Less than a week after the robbery, Wescott viewed a physical lineup of five or six black men but failed to identify anyone as the offender. A month later, Wescott viewed another lineup and identified defendant as the robber. Wescott later testified that she recognized defendant in the second lineup as soon as she saw him.

In July the detective investigating the robbery (Detective Boylan) learned that Arnold was involved in this occurrence. When questioned, Arnold told the detective that defendant was the robber. Arnold also stated that he had informed defendant that there would be few people in the store at the day and time in question and the location of money not in the register, and that he received $15 for his involvement in the robbery. Arnold was later arrested for conspiracy to commit armed robbery, for which he plead guilty.

On July 8 Detective Boylan obtained defendant's picture and compiled a photo array of six men, from which Shannon identified defendant as the robber. Later that day Boylan went to defendant's home, spoke with his family and left them his card. Detective Boylan returned to defendant's home three times to inquire about defendant's whereabouts but was never contacted by defendant.

At trial Wescott, Shannon and Arnold positively identified defendant as the offender. Arnold's testimony suggested defendant's premeditation in committing the crime. Specifically, Arnold testified that he knew defendant from high school and that about one week before the robbery defendant approached him on a basketball court and asked if he would turn defendant in if defendant robbed the Baskin-Robbins store. Arnold also testified that defendant gave him "a little cash" sometime after the robbery.

Defendant testified that in May of 1988 he was 20 years old, approximately 6' 1"' in height and weighing about 180 pounds. Defendant also stated that on the night of the robbery he was at a party with Felicia Jones, his girl friend and the mother of his child. Specifically, Jones picked him up at the car wash where he worked and drove him to a birthday party for a friend of three years, Robin Wyms, held at the home of Jones' cousin, Brenda Crawford. Defendant stated that he and Jones arrived at Crawford's home at 8:30 p.m. and stayed until 10 or 10:15 p.m. when they left for a nearby motel where they would spend the night.

Defendant also testified that before he was placed in the lineup Detective Boylan's partner told him, "I don't think you did it because David Arnold's brother looks just like you."

Felicia Jones and four other people attending Brenda Crawford's party testified for the defense. Jones, Crawford, Crawford's sister Edwina Johnson and her cousin Robin Wyms and their friend Denise Barnes all testified that defendant and Jones arrived at Crawford's party before 9 p.m. and left between 10 and 11 p.m. However, these women gave conflicting accounts of the day of the party and failed to recognize that the party occurred during a holiday weekend (Mother's Day). The women also testified that they knew defendant before the party for various lengths of time ranging from three to six years.

Defendant was convicted of armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2(a)) and eligible to serve a term of six to 30 years' imprisonment. (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-1(a)(3).) The State requested a 10-year sentence, defendant requested a six-year sentence, and the trial court determined that a 10-year sentence was appropriate.

Defendant first contends that the State violated his due process rights by impeaching his alibi testimony with his post-arrest silence in violation of Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. Doyle stands for the proposition that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused choose to invoke that right. Doyle, 426 U.S. at 617-18, 96 S.Ct. at 2244-45, 49 L.Ed.2d at 97-98.

The State argues that defendant has waived this issue on appeal by failing to make a timely objection at trial and by failing to raise the alleged violations in his post-trial motion.

In reply, defendant asserts that we should review the improper comments under Supreme Court Rule 615(a) (134 Ill.2d R. 615(a)) which provides a "limited exception to the doctrine of waiver" to allow a reviewing court to consider plain errors affecting substantial rights not properly preserved for review. (People v. Herrett (1990), 137 Ill.2d 195, 209, 148 Ill.Dec. 695, 561 N.E.2d 1.) In Herrett, where the prosecution improperly commented upon defendant's failure to testify, the Illinois Supreme Court stated that alleged errors would be reviewed under the plain error doctrine if (1) the evidence was "closely balanced" to preclude the possibility that an innocent person may have been wrongly convicted as a result of the error, or (2) "the error is so fundamental and of such magnitude that the accused was denied a fair trial (emphasis added)." (Herrett, 137 Ill.2d at 209-10, 148 Ill.Dec. 695, 561 N.E.2d 1.) The Herrett court stated that the second prong of the plain error doctrine will only be invoked in exceptional circumstances when "the error is so fundamental to the integrity of the judicial process and so prejudicial to the defendant that the trial court could not cure the error by sustaining an objection or instructing the jury to disregard the error." Herrett, 137 Ill.2d at 214-15, 148 Ill.Dec. 695, 561 N.E.2d 1.

Applying the first prong of the plain error doctrine to the facts of this case, we believe that the evidence cannot reasonably be regarded as closely balanced. The State presented testimony of three eyewitnesses who identified defendant as the offender. Kimberly Wescott and Michael Shannon testified that they had a clear view of defendant's face during the armed robbery and subsequently identified him in a lineup and at trial. Moreover, defendant's co-conspirator (David Arnold) testified that defendant told him of his plans to rob the store and that defendant did in fact rob the store, and that he received some money for participating in the scheme. Although defendant presented five witnesses to support his alibi, the State discredited their testimony by emphasizing their conflicting accounts of the party defendant allegedly attended and their close ties to defendant either as friends or relatives of Felicia Jones.

Recognizing that the "or" separating...