People v. Gordon

• Decision Date: 21 June 2016
• Docket Number: No. 1–13–4004.,1–13–4004.
• Citation: 56 N.E.3d 467,404 Ill.Dec. 483
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Sammy GORDON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

56 N.E.3d 467

404 Ill.Dec. 483

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Sammy GORDON, Defendant–Appellant.

No. 1–13–4004.

Appellate Court of Illinois, First District, Second Division.

June 21, 2016.

Michael J. Pelletier and Kristen E. Mueller, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Carol L. Gaines, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice PIERCE delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Sammy Gordon was found guilty of armed robbery. He was sentenced to 37 years' imprisonment (22 years for armed robbery and a consecutive 15–year mandatory firearm sentence enhancement) and was awarded 1,467 days of credit for time served in custody. On appeal, defendant contends he was denied effective assistance of counsel after defense counsel “promised” the jury in his opening statement that defendant would testify but failed to call him as a witness at trial. Defendant also contends his 37–year combined sentence is excessive and that he is entitled to an additional two days of credit for time spent in presentence custody. Defendant's conviction and sentence are affirmed; mittimus corrected.

¶ 2 Defendant and his two codefendants, Michael Gordon and Michael Bennett, were charged in three indictments with the armed robberies of three separate Family Dollar stores that took place in October and November 2009; defendant and codefendant Bennett were charged with a fourth armed robbery of a Family Dollar store in October 2009. The two codefendants pled guilty to all charges; defendant chose to stand trial. The State elected to proceed on an indictment charging him with the armed robbery of the Family Dollar store at 364 East 87th Street on November 13, 2009. The State nol-prossed all counts except one count of armed robbery while armed with a firearm.

¶ 3 Before jury selection began, the trial court asked defense counsel whether all witnesses who would testify for the defense were listed. Counsel replied that defendant would be the only witness “[i]f he chooses to testify.” The court asked defendant, “You understand that's your decision whether you testify or not. I mean, obviously, you can talk to your lawyers about that; but, ultimately, that's your decision. Do you understand that?” Defendant replied, “Yes.”

¶ 4 After the State delivered an opening statement to the jury, defense counsel's opening statement acknowledged the robbery at the dollar store by robbers who wore masks to hide their faces, defendant was arrested nearby after the robbery, and he signed a confession. Counsel also stated: “When the State rests you'll hear from Mr. Gordon. Mr. Gordon is going to testify in this case. Mr. Gordon is going to tell you where he was that night and what he was doing that night, and he will also tell you why he gave that confession.” Counsel did not specify what that testimony would be.

¶ 5 Immediately after defense counsel completed his opening statement, the prosecutor asked for a sidebar where he objected that the defense opening statement indicated a possible alibi defense that was not disclosed to the State during pretrial discovery. Defense counsel told the court defendant was going to testify that at the time of his arrest, “he was walking down 87th Street. I asked him exactly where, and he said Indiana or Calumet. He didn't remember. It's like two blocks. That's two blocks west of the Dollar Store.” Defendant would testify the arrest occurred “just after the robbery.” The arresting officer would testify, however, that defendant was arrested in an alley. Agreeing with the prosecutor that defendant's intended testimony would constitute an alibi, the court told defendant's counsel: “ We're going forward, but it would seem to me that you are trying now to insert an alibi defense which I consider improper and I consider sanctionable. In other words, not allowing him to testify to that. So whatever you need to do between now and the time you want to call your client, I suggest you do it.” Defense counsel explained that defendant had told counsel only the previous Friday (the day of jury selection) that he planned to testify about where he was when arrested. “[T]hat was given to me Friday when I went and spoke to him.” The State complained that it was entitled to the alibi notice before Friday. Defense counsel responded, “I didn't know it before Friday.”

¶ 6 Jerome Frazier, a former police officer, testified that on November 13, 2009, at about 7:30 p.m., he was in his home at 86th Street and King Drive, across the street from a Family Dollar Store, when his attention was drawn to a car “driving down the side alley kind of slow.” The car, a Cadillac, was not displaying license plates. It drove across King Drive, past the Family Dollar parking lot, down the alley, made a right turn and parked behind a garage. Frazier called the police because he thought the occupants of the car were going to break into the garage. Frazier entered his SUV, a GMC Yukon. As he pulled out of his driveway, he saw three men walking east through the alley, toward the Family Dollar parking lot. Frazier drove slowly past the three men. He saw them walking toward the Family Dollar store. Two of them hopped a wrought iron fence. The third man continued walking along the fence toward the store. Frazier noticed that the man had a surgical mask down around his neck. At trial, Frazier made an in-court identification of defendant as the man he had seen with the surgical mask. Frazier was 15 to 20 feet away from defendant when he first saw him.

¶ 7 Frazier drove around the block and went past the front of the store. He looked inside and saw defendant pointing and waving a handgun. Frazier again called the police on his cell phone and reported that the Family Dollar store was being robbed by gunmen. Frazier hailed a police car that was coming out of the alley and told the officers the store was being robbed at gunpoint. The officers pulled in front of the store, blocking the front door. Initially Frazier pulled behind the officers, but then he drove to the back of the store and tried to block its back door with his SUV. Then he walked to the wrought iron fence to get out of the way. He saw three men exit the back door of the store, hop over his SUV, and climb over the fence. He alerted the police. Later, after the police had arrested three suspects, he viewed a showup in the dollar store parking lot and identified defendant and the other two men as the robbers.

¶ 8 Four Family Dollar store employees were working in the store at the time of the robbery: Tiyanna Mays, Leequiter Smith, James Randle, and store manager Linda Johnson.¹ Two shoppers were also in the store during the robbery: Natasha Curry, who was accompanied by her two-year-old daughter, and Mattie Graves. At trial, during the testimony of Tiyanna, Leequiter, and very briefly during the testimony of James, the prosecutor played portions of the store security camera video that had recorded the armed robbery.² The witnesses described for the jury what was portrayed in the video, which contained no audio component.

¶ 9 Tiyanna Mays testified that she and Leequiter Smith were working as cashiers in the “bullpen,” the cash register area where the money was kept. At around 7:30 that evening, as Tiyanna was ringing up a sale, a man came through the door, yelling. He was wearing a white surgical-type mask and was holding a gun with his arm extended fully outward. He was in his early twenties and wore a black jacket, a hat, black-and-white dirty shoes, and jeans. A second man came through the door; he also had a gun. A third robber wearing a bandanna on his face came into the store and locked the door.

¶ 10 Tiyanna made an in-court identification of defendant as the first person who entered the store wearing the surgical mask. The surveillance video was played, and Tiyanna identified defendant as the robber shown in the video pointing his gun at Tiyanna. She was frightened because defendant was yelling and coming toward her with the gun. Tiyanna testified that, despite the mask and the bandannas worn by the robbers, their faces were partially visible; she could see their eyes, foreheads, and complexions. Defendant told Tiyanna to open the cash register but she could not open it without ringing up a sale, so another employee swiped an item and opened the register.

¶ 11 The video was played again, and Tiyanna described store manager Linda Johnson coming to the cash area. Another robber, off-camera, had ordered that the safe be opened and Linda was the only employee who knew the codes to open the safe. As the video continued to play intermittently, Tiyanna described herself sitting on the floor after being ordered to do so. The video showed Linda and one of the robbers attempting to open the safe. Another robber was getting everyone to come away from the windows where they might be seen and ordering them to sit in a line in the aisle. Defendant was seen making motions with his arms.

¶ 12 The video showed James Randle with his arms raised as he was told to come toward the front of the store. Then the video showed the employees and shoppers sitting on the floor waiting for the safe to open. Tiyanna explained that there was a delay getting the safe open; it was on a timer. After the manager entered a code, there was a 10–minute wait, and then the safe's timer triggered a beeping signal indicating a code had to be entered again for the safe to be opened. The video was played showing Linda going back to the safe to enter the second code. A robber was seen taking money from the safe while defendant stood over those sitting in the aisle, yelling at them. Defendant stayed mainly in front of the store during the robbery. After another robber took the money from the safe, defendant announced that the police were...