People v. Daniel

• Decision Date: 22 May 2014
• Docket Number: No. 1–12–1171.,1–12–1171.
• Citation: 12 N.E.3d 715
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Ashton DANIEL, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

12 N.E.3d 715

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Ashton DANIEL, Defendant–Appellant.

No. 1–12–1171.

Appellate Court of Illinois, First District, Fourth Division.

May 22, 2014.

Michael J. Pelletier, Alan D. Goldberg, Lindsey J. Anderson, and S. Emily Hartman, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Kathleen Warnick, and Susanna Bucaro, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice EPSTEIN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Ashton Daniel was convicted of armed robbery and aggravated unlawful restraint and sentenced to concurrent 34—and 5–year prison terms. His convictions stem from the May 28, 2010, robbery of Ayoob Shafi's store. Defendant raises eight issues on appeal: (1) the photo array and lineup identification procedures were unduly suggestive; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the State made improper and prejudicial comments during opening statement and closing argument; (4) his sentence is excessive; (5) his aggravated unlawful restraint conviction violates the one-act, one-crime doctrine; (6) the jury was not properly instructed regarding armed robbery with a firearm; (7) the jury did not make the requisite finding to support a 15–year firearm enhancement; and (8) he was improperly assessed a $200 DNA indexing fee. We vacate defendant's aggravated unlawful restraint conviction, because it was carved from the same physical acts as his armed robbery conviction. We also vacate his $200 DNA indexing fee under People v. Marshall, 242 Ill.2d 285, 351 Ill.Dec. 172, 950 N.E.2d 668 (2011), because defendant's DNA was previously obtained and indexed. We otherwise affirm defendant's conviction and sentence.

¶ 2 BACKGROUND

¶ 3 Shafi and Naveed Khan were working in the rear office of Shafi's South Side Health Food Store at 8609 South Cottage Grove Avenue in Chicago, Illinois. At approximately 3:20 p.m., Shafi met a customer at the front counter and agreed to check his Link card balance.¹ After Shafi swiped the card, the man drew a gun and demanded money. Shafi removed money from his cash register, but the man ordered Shafi to lie on the ground, threatened to shoot him, and removed additional money from the register. At this point, a second offender entered the store. The first man ordered Shafi to crawl to the back of the store and kicked and beat him along the way. He demanded more money, and Shafi relinquished his wallet. The man placed his gun in Shafi's mouth and said that he would shoot if Shafi talked. The offenders then broke down the door to the rear office and discovered Khan. While they threatened Khan, Shafi quickly exited through the front door. The two men briefly chased Shafi, but soon fled the scene, absconding with between $450 and $500. The offender left his Link card in Shafi's store.

¶ 4 Shafi described the offender to police as a 5–foot–7–inch, 200—or 210–pound, dark-skinned black male between 20 and 25 years old and told Detective Mark Pacelli that he had previously seen the man in his store. Pacelli also learned that the Link card belonged to defendant and had been used on May 12, 2010—nearly two weeks before the offense. He also learned defendant had reported the Link card stolen on June 10, 2010—nearly two weeks after the offense. Shafi provided Pacelli with surveillance footage from both May 12 and May 28, 2010.

¶ 5 On June 16, 2010, Shafi identified defendant in a photo array, stating that “the gentleman in picture number 2 looked like the offender, but he could not be a hundred percent certain from the photograph” and “would need to see the individual in person to make the identification.” On August 22, 2010, following defendant's arrest for an unrelated offense, Shafi identified defendant in a five-person lineup. Khan did not view the lineup, because it was a religious holiday.

¶ 6 Prior to trial, defendant moved to suppress Shafi's identification. At the hearing on the motion, the parties stipulated that Shafi described the offender as a black male, 5 feet 8 inches to 5 feet 10 inches tall, 200 to 210 pounds, and between 20 and 25 years old. The parties further stipulated that Shafi viewed a photo array on June 16, 2010, and identified defendant, but stated that “he could not be certain from the picture” and “would need to see the offender in person.” Shafi subsequently viewed a lineup and identified defendant. Defendant argued that the identification procedure was unduly suggestive, where he was the only person in both the photo array and the lineup. The trial court denied defendant's motion, and the case proceeded to trial.

¶ 7 Shafi and Khan identified defendant at trial. In addition to presenting the testimony of Shafi, Khan, and several police officers, the State admitted photographs of the scene and Shafi's injuries; surveillance footage from May 28, 2010; still photographs taken from the May 12 and May 28, 2010, surveillance videos; a copy of the June 16, 2010, photo array; and a photograph of the August 22, 2010 lineup. Defendant presented no evidence. The jury found defendant guilty of armed robbery and aggravated unlawful restraint. Defendant was sentenced to concurrent terms of 34 and 5 years' imprisonment. He timely appealed.

¶ 8 ANALYSIS

¶ 9 Identification Procedures

¶ 10 Defendant argues that Shafi's pretrial and in-court identifications were tainted by improper identification procedures and must be suppressed. According to defendant, Shafi's identification three months after the offense was based not on his independent recollection, but on the May 12, 2010, surveillance footage that police improperly encouraged Shafi to view. Defendant further argues that he was dissimilar to the other subjects in the photo array, and he was the only subject in common between the photo array and lineup. The State responds that the identification procedures were proper, and Shafi identified defendant because he had seen defendant in his store on previous occasions and had ample opportunity to observe him during the offense. We hold that the identification procedures here were not impermissibly suggestive.

¶ 11 When reviewing a trial court's ruling on a motion to suppress, we accord great deference to the trial court's factual findings and will not disturb those findings unless they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill.2d 425, 431, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001). We review the ultimate legal challenge de novo. Id.

¶ 12 “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Thus, Illinois mandates that photo array suspects “not appear to be substantially different from ‘fillers' or ‘distracters' in the * * * photo spread, based on the eyewitness' previous description of the perpetrator, or based on other factors that would draw attention to the suspect.” 725 ILCS 5/107A–5 (West 2010). On appeal, however, defendant bears the burden of proving that a pretrial identification was impermissibly suggestive. People v. Brooks, 187 Ill.2d 91, 126, 240 Ill.Dec. 607, 718 N.E.2d 88 (1999). Even where a defendant meets this burden, the State may show by clear and convincing evidence that the identification was based on the witness's independent recollection. Id. In reviewing a trial court's ruling on a motion to suppress, we may consider evidence presented at the hearing on the motion to suppress, as well as evidence presented at trial. Id. at 127–28, 240 Ill.Dec. 607, 718 N.E.2d 88.

¶ 13 Here, at the hearing on defendant's motion to suppress, the parties stipulated that Shafi described the primary offender as a black male, 5 feet 8 inches to 5 feet 10 inches tall, 200 to 210 pounds, and between 20 and 25 years old. Upon viewing a photo array on June 16, 2010, Shafi identified defendant, but stated that “he could not be certain from the picture” and “would need to see the offender in person.” Shafi later viewed a lineup and identified defendant, the only person present in both the photo array and lineup. The trial court denied defendant's motion to suppress, reasoning that suspects are often the only persons present in both the photo array and lineup of a given case. Shafi and Khan both identified defendant at trial.

¶ 14 Defendant raises several arguments on appeal. The State responds that defendant forfeited many of these arguments by failing to raise them in his motion to suppress. However, the issue raised on appeal need not be identical that raised below. People v. Lovejoy, 235 Ill.2d 97, 148, 335 Ill.Dec. 818, 919 N.E.2d 843 (2009). Rather, a claim is preserved if the trial court had an opportunity to address the essential claim. Id. Here, because the trial court had an opportunity to address defendant's essential claim, we reject the State's forfeiture argument and address this claim on its merits.

¶ 15 Defendant first argues that the photo array was unduly suggestive, because he was the only subject who fit Shafi's description to police. On the date of the offense, Shafi described the offender as a 5 feet 7 inches, 200—or 210–pound, dark-skinned black male between 20 and 25 years old. Each of the six persons represented in the photo array was a “dark-skinned black male” and, with one exception, appears to fall within the 20–to–25–year age range. Defendant complains that he appears shorter than the other photo array participants and was the only subject without facial hair. This claim fails, as the photo array displayed only headshots and contained no references to height. As to facial hair, each of the photo array subjects—including defendant—appears to have a thin mustache or goatee. None wore a full beard. Defendant does not stand out in this...