People v. Cherry
| Decision Date | 31 March 2020 |
| Docket Number | Appeal No. 3-17-0622 |
| Citation | 443 Ill.Dec. 330,161 N.E.3d 982,2020 IL App (3d) 170622 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tremayne CHERRY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 1 Defendant, Tremayne Cherry, appeals following his conviction for unlawful use of a weapon by a felon. He argues that the circuit court erred in denying his motion to suppress evidence. He also contends that the court committed structural error in denying his right to proceed as a self-represented litigant. We affirm.
¶ 3 The State charged defendant with unlawful use of a weapon by a felon ( 720 ILCS 5/24-1.1(a) (West 2014)) and possession of a firearm without the requisite Firearm Owner's Identification Card ( 430 ILCS 65/2(a)(1), 14(c)(3) (West 2014)). Defendant filed a motion to suppress evidence.
¶ 4 At the hearing on defendant's motion, Officer James Kilgore testified that he and Officer Jeff Haiduke were dispatched to the vicinity of Illinois and Morgan Streets at approximately 6 p.m. on September 25, 2014. Kilgore learned from dispatch that a tip had been made to the Joliet Police Department, referencing, in Kilgore's words, "a vehicle that was occupied by * * * one or two male blacks * * * holding a large firearm out of a window pointing [it] at people." Kilgore testified that he did not know whether the tip was anonymous, stating: "I'm not sure if the caller gave her name or not but I just know we were dispatched to it." The tip also provided a description of the vehicle, including the license plate number.
¶ 5 Kilgore and Haiduke proceeded to the area in question and were able to locate the vehicle, a white Corsica. The vehicle was unoccupied. Kilgore testified that he and Haiduke parked their unmarked squad car 50 to 75 yards away and began surveillance. During that time, Kilgore ran the license plate number through a computer system and was able to retrieve a photograph of the registered owner of the vehicle.
¶ 6 Kilgore testified that, after approximately 15 minutes of surveillance, he observed "two or three males" walking toward the parked vehicle. Defense counsel then asked if it could possibly have been more than three people. Kilgore responded: "I believe so." Kilgore recognized a "taller male black individual" as the owner of the vehicle. He identified that person as defendant. Kilgore testified that defendant After refreshing his memory with his report, however, Kilgore testified that two or three of the men "entered the vehicle."
¶ 7 Kilgore did not observe anyone remove anything from the vehicle. The group of men then began walking southbound on Illinois Street. Kilgore observed defendant holding his waistband with one hand while he walked. Kilgore could not recall if defendant was wearing baggy pants, but conceded it was possible defendant was holding his pants up. Defendant had not been holding his waistband before entering the vehicle. Noting that they were in a "high crime area," Kilgore testified that he decided to stop the group on the belief that defendant might be carrying a firearm.
¶ 8 Kilgore activated the emergency lights on the squad car and pulled up to the group. He and Haiduke exited the vehicle and ordered the men to stop. Kilgore testified that he intended to perform a Terry stop1 and pat defendant down for weapons. He did not remove his gun from his holster. Kilgore testified: "When I attempted to pat down the defendant, he took off running southbound." Kilgore tackled defendant soon thereafter and placed him into custody. Kilgore estimated that defendant ran 10 feet before being tackled. Kilgore felt a gun in defendant's waistband when he tackled him. Kilgore was able to retrieve the firearm, which he described a black .45-caliber handgun.
¶ 9 Through a series of recross- and redirect examinations, Kilgore described in great detail the precise sequence of events leading up to defendant's flight. He testified that, before running, defendant took two steps backwards while continuously looking to his left and right. On recross-examination, the prosecutor asked: "After you asked the defendant to stop and he said yes, you moved to engage with him, he ran from you?" Kilgore responded: "Yes, that's correct." Kilgore next clarified that defendant ran after Kilgore had exited the squad car and begun approaching defendant. Defendant took two steps backward before Kilgore even began approaching him. He testified that the group of men stopped at some point before defendant ran.
¶ 10 The circuit court found that there had been reasonable, articulable suspicion to stop the group of men coming from the vehicle. Accordingly, the court denied defendant's motion.
¶ 11 After the hearing on defendant's motion but prior to his trial, defendant filed a "motion to withdraw counsel and for leave to proceed pro se ." In the motion, defendant expressed unhappiness with the representation he had received from his assistant public defender. Appearing in court on that motion, defendant explained: "As of right now, * * * me and my family is looking at other options, but I told my mother that I would be going pro se right now but we are looking at other options." He clarified that his family was attempting to find money to hire a new lawyer, that defendant was unsure whether those attempts would be successful, and that he wished to proceed pro se at least for the time being.
¶ 12 The court questioned defendant concerning his education and legal experience, and it explained the serious nature of the felony charges against him. The court then conducted the following inquiry:
The court expressed skepticism concerning defendant's choice to proceed pro se and explained that it would not be able to assist him at a trial. It urged him to not accept advice from people in the jail.
¶ 13 The court concluded: The court set a date for four days later, explaining that it would provide defendant an opportunity to consult with his family and defense counsel further.
¶ 14 At the next court date, defense counsel indicated that defendant wished to withdraw his motion to proceed pro se . Defendant confirmed that representation.
¶ 15 Following a stipulated bench trial, the court found defendant guilty on both counts. The court sentenced defendant to 4½ years' imprisonment for unlawful possession of a weapon by a felon, entering only one sentence pursuant to the one-act one-crime doctrine.
¶ 17 On appeal, defendant argues that the circuit court erred in denying his motion to suppress evidence. He also argues that the court "committed structural error in denying defendant the right to proceed pro se ." We address each argument in turn.
¶ 19 The fourth amendment to the United States Constitution and article I, section 6, of the Illinois Constitution protect individuals from unreasonable searches and seizures. U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6. As a general matter, a search or seizure is reasonable where it is conducted pursuant to a warrant supported by probable cause. People v. Jones , 215 Ill. 2d 261, 269, 294 Ill.Dec. 129, 830 N.E.2d 541 (2005). Warrantless searches or seizures are considered unreasonable and in contravention of the federal and state constitutions unless they fall under one of a few well-defined exceptions to the general rule. People v. Colyar , 2013 IL 111835, ¶ 85, 374 Ill.Dec. 880, 996 N.E.2d 575.
¶ 20 One recognized exception to the warrant requirement was first set forth in Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry , the United States Supreme Court held that a police officer may conduct a brief, investigative stop of a person when the officer has reasonable, articulable suspicion that the person had committed or is about to commit a crime. Id. at 21-22, 88 S.Ct. 1868 ; People v. Timmsen , 2016 IL 118181, ¶ 9, 401 Ill.Dec. 610, 50 N.E.3d 1092. "Although ‘reasonable, articulable suspicion’ is a less demanding standard than probable cause, an officer's suspicion must amount to more than an ‘inchoate and unparticularized suspicion or "hunch" ’ of criminal activity." Timmsen , 2016 IL 118181, ¶ 9, 401 Ill.Dec. 610, 50 N.E.3d 1092 (quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868 ).
¶ 21 When reviewing the circuit court's ruling on a motion to suppress evidence, we apply a two-part standard of review. People v. Luedemann , 222 Ill. 2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006). Findings of fact made by the circuit court are reviewed for clear error and only reversed if they are against the manifest weight of the evidence. Id. However, the ultimate decision of whether suppression is warranted is a question of law that is reviewed de novo . People v. Harris , 228 Ill. 2d 222, 230, 319 Ill.Dec. 823, 886 N.E.2d 947 (2008). As there is no dispute between the parties regarding the underlying facts in the present case, our analysis may proceed de novo .
¶ 23 Defendant contends that Kilgore did not have the reasonable, articulable suspicion required to conduct a Terry stop at the time Kilgore ordered defendant and his associates to stop. He argues that Kilgore's command to the group of men was just that—a command, rather than a request—and that the encounter must therefore be considered a Terry stop for fourth amendment purposes. He points out that Kilgore testified that it was his intent to effectuate a Terr...
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People v. Carter
..., 529 U.S. at 272, 120 S.Ct. 1375 (finding that the likelihood of criminal activity is central in anonymous tip cases); People v. Cherry , 2020 IL App (3d) 170622, ¶ 24, 443 Ill.Dec. 330, 161 N.E.3d 982 (determining that the corroboration of wholly innocent activity does not lend any credib......