People v. Clifton

• Decision Date: 16 April 2019
• Docket Number: No. 1-15-1967,1-15-1967
• Citation: 144 N.E.3d 508,437 Ill.Dec. 396,2019 IL App (1st) 151967
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence CLIFTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 151967

144 N.E.3d 508

437 Ill.Dec. 396

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Clarence CLIFTON, Defendant-Appellant.

No. 1-15-1967

Appellate Court of Illinois, First District, Second Division.

Opinion filed April 16, 2019

JUSTICE HYMAN delivered the judgment of the court with opinion.

¶ 1 Before trial, Clarence Clifton moved to suppress three pretrial identifications on the ground that the police used unduly suggestive lineup procedures. The trial court denied the motion and, after a bench trial, convicted Clifton of armed robbery with a firearm. Clifton received a prison sentence of 35 years–20 years for the underlying offense and a mandatory 15-year add-on for the firearm. Although Clifton complained about his counsel's performance, the trial court proceeded without a preliminary inquiry into his concerns.

¶ 2 Clifton now challenges his conviction and sentence on four grounds: (i) the State failed to prove beyond a reasonable doubt that the object he brandished during the robbery met the statutory definition of "firearm," (ii) the trial court erred by denying his motion to suppress identification, (iii) the trial court improperly failed to conduct a preliminary inquiry into his posttrial claims of ineffective assistance of counsel as required by People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), and (iv) his 35-year sentence constitutes an abuse of discretion.

¶ 3 We find that the State presented sufficient evidence to prove the presence of a "firearm" beyond a reasonable doubt. We are mindful that the cross-reference in the Criminal Code of 2012 (Criminal Code) ( 720 ILCS 5/1-1 et seq. (West 2012) ) to the hyper technical definitions of "firearm" in the Firearm Owners Identification Card Act (FOID Card Act) ( 430 ILCS 65/0.01 et seq. (West 2012) ) creates tension with well-established precedent allowing proof of a firearm on a single lay witness's testimony. But, this precedent controls given the specificity of the testimony about the object. We find, however, that the lineup procedures were unduly suggestive and agree that a remand is necessary to determine whether a sufficiently independent basis exists for the identifications made by the complainants. Because we vacate the denial of Clifton's motion to suppress and remand for further proceedings, we do not address his sentencing argument. We do, however, find his Krankel claim likely to recur on remand and agree with the parties that the trial court failed to conduct a proper Krankel hearing.

¶ 4 BACKGROUND

¶ 5 About 10:45 on a night in April 2012, two men walked up to Michael Smith, Victoria Tolbert, Ashley Lee, and Ciara Reed in an alley behind Smith's home. The two men robbed them of their belongings and fled.

¶ 6 Smith was standing around a car in the alley with Tolbert, Lee, and Reed. Two men walked past them, turned around and walked up to the group. One of the men said, "you know what this is, it's a robbery" and then "pointed a gun at [them]."

¶ 7 Smith described the gun as a black "revolver." In response to defense counsel's questions on cross-examination, he estimated the revolver to be either .32 or .38 caliber. The gun was not the first gun, .32-caliber or otherwise, Smith had seen. The man pointed the gun as close as one inch from Smith's face. The man took two phones from Smith's pants pocket. The other man took items from the women. The men then got into a Jeep and left.

¶ 8 Officer Matthews soon arrived, Smith's aunt having called police. Smith described the armed offender as having "[l]ong dreads * * * a blue hoodie, all white low top Nikes, and a black Jeep." As to the second man, Smith could not describe him because he "was only focused on the guy who was in [his] face with the gun."

¶ 9 According to Tolbert, the two men walked by and then "walked back and grabbed [Smith] by the * * * collar and put the gun to his head * * * and waved the gun back and forth to him and me and told us that we know what this is approaching us to rob us." Tolbert described the gun as black but did not touch the gun or know what it was made of. While the first man held the gun on the group the whole time, the second man took Tolbert's cell phone and purse. Tolbert described the man with the gun to Officer Matthews as having "dreads" and wearing a blue or black hoodie and white shoes.

¶ 10 When the two men walked up, Lee was inside the car. Lee saw one of the men pointing a gun at Smith; she knows what a gun looks like, but could not tell what type of gun the man was holding or what it was made of. The second man told Lee to get out of the car, which she did. The man with the gun pointed it at her and told her to take off her jacket. She complied. The second man reached into the car for Lee's purse. Lee told Matthews that the man with the gun wore "[w]hite gym shoes, jogging pants," and a dark black or blue hoodie. Also, the man "had a scar or a tattoo" on his face.

¶ 11 Lineup Identifications

¶ 12 Two days later, Smith, Tolbert, and Lee viewed lineups at the Harvey police station. They each testified at trial, along with Detective Banks, about the lineup procedures.

¶ 13 Banks identified lineup advisory forms signed by Smith and Tolbert. Lee also signed a form, but it had been lost. Banks identified State's Exhibit 1 as two photos of the five men in the lineup ultimately viewed by the witnesses sitting in the booking area where the lineup was conducted. The order of the lineup participants differed for each witness, but Banks confirmed that Exhibit 1 "fairly and accurately show[ed] how the people in the lineup appeared at the time of the lineup." Smith, Tolbert, and Lee identified Clifton as "the person that actually removed items from them."

¶ 14 Banks acknowledged that Clifton was the only person in the lineup whose dreadlocks hit his shoulders. He also acknowledged that Clifton was the only person with a mark on his face as he could not find anyone tattooed in that way.

¶ 15 Smith testified that when he viewed the lineup, Tolbert and Lee were present. Referring to Exhibit 1, he selected the person he identified at the lineup as Clifton and confirmed Clifton had the gun during the robbery. Regarding Clifton's appearance, Smith agreed that the only person in the lineup with long dreadlocks was Clifton and that Clifton was wearing "the same hoodie he robbed us in, and the shoes." Smith also said that he did not take into consideration Clifton's clothes; he saw "who [he] knew did it for sure" and recognized his face.

¶ 16 Tolbert also described the lineup procedures. When asked to look at Exhibit 1, she identified Clifton in the photo as Smith had done and confirmed that Clifton was "[t]he one with the gun." Contrary to Smith's testimony, she had gone to the police station with the other two women and viewed the lineup alone. Like Smith, Tolbert agreed that of the men in the lineup, only Clifton had long dreadlocks and a mark on his face. Tolbert testified that the men in Exhibit 1 appeared in a different order during her lineup but that the photo showed the participants "the way they were in the lineup that [she] saw."

¶ 17 Lee could not recall whether she had been given any of the admonishments on the form but said nobody told her one of the robbers was in the lineup or urged her to pick any particular person. Lee, like Tolbert, testified that she was alone with just one other officer at the time of the lineup. Lee identified Clifton and, like Smith and Tolbert, said he "robbed [her]" and was "[t]he person who had the gun." Lee could not remember if she had seen other people in the lineup with tattoos but agreed that she could not see any on the other faces in Exhibit 1. Like Tolbert, Lee testified that the men in the photo in Exhibit 1 appeared in a different order for her lineup but that the photo showed "the way the lineup looked when [she] saw it."

¶ 18 Motion to Suppress the Lineups

¶ 19 Before trial, Clifton moved to suppress the lineup identifications as unduly suggestive. The motion referred specifically to Clifton's long dreadlocks and tattoo and alleged that, as the only one with those features, the lineup's composition was suggestive. The court heard no testimony at the hearing; instead, the parties stipulated that there had been a prior description given of "Suspect Number 1, male black, 5'9? in height, dark complexion, long dreadlocks, no clothing description or age group available, armed with a black handgun." Counsels' argument, like the written motion, focused on Clifton being singled out by virtue of his long dreadlocks and a face tattoo.

¶ 20 The trial court, after viewing photographs of the lineup participants, found Clifton's dreadlocks were "not distinguishably longer than the other two" participants with dreadlocks. And that all the participants had their dreadlocks pulled back and that everything else, including height, complexion, and clothing appeared to be similar. The trial court could not see any mark on Clifton's face other than in the close-up booking photo. The court concluded that "[t]he police are not mandated to put people in a lineup that look exactly like the defendant," and denied the motion to suppress.

¶ 21 After the close of trial evidence, defense counsel renewed her motion to suppress identification. She reiterated concerns about Clifton's hair and tattoo, adding:

"[A]s the testimony went on, it appeared that there were other factors, a dark hoodie, some white shoes that were supposedly told to the officers, but that even Miss Tolbert indicated when she looked at the pictures, oh, he has on the same thing he had on during the ‘robbery.’

And I think, Judge, that now we can also put in the fact that not only was he the only one that had long dreads and a mark on his face, but he also was the only one who had a dark hoodie and white shoes in that lineup.

And we are asking this Court to reconsider the decision made in the initial motion to suppress the identification

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