People v. Little, 2-90-0505

• Citation: 223 Ill.App.3d 264,165 Ill.Dec. 752,585 N.E.2d 148
• Decision Date: 30 December 1991
• Docket Number: No. 2-90-0505,2-90-0505
• Parties: , 165 Ill.Dec. 752 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnie T. LITTLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 148

585 N.E.2d 148

223 Ill.App.3d 264, 165 Ill.Dec. 752

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronnie T. LITTLE, Defendant-Appellant.

No. 2-90-0505.

Appellate Court of Illinois Second District.

Dec. 30, 1991.

G. Joseph Weller, Deputy Defender, Beth Katz, Office of the State Appellate Defender, John R. Wimmer, Downers Grove, for Ronnie Little.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Martin P. Moltz, State's Atty. Appellate Prosecutor, Elgin, for People.

Justice UNVERZAGT delivered the opinion of the court:

Defendant, Ronnie T. Little, was charged by indictment with the offense of armed robbery (Ill.Rev.Stat.1989, ch. 38, par. 18-2(a)). After a jury trial, judgment was entered on the verdict on March 27, 1990. Defendant was sentenced to 15 years' imprisonment on April 19, 1990. His post-trial motion and his motion to reconsider the sentence were denied on April 26, 1990, and this timely appeal followed. We affirm.

On appeal, defendant contends that he was denied the effective assistance of counsel because defense counsel improperly impeached his own alibi witness by eliciting that the witness had pleaded guilty to a drug offense and because defense counsel failed to object to improper argument by the State where it sought to create an inference of guilt by commenting on defendant's post-arrest silence. Defendant also argues, alternatively, that this court should consider as plain error the allegedly improper argument of the State. For the reasons that follow, we find no basis to reverse the judgment.

The jury trial was held on March 26 and 27, 1990. On the first day of trial, defense counsel informed the court and the prosecutor that Deborah Hurley, one of defendant's alibi witnesses, had pleaded guilty to a drug offense and was awaiting sentencing. Defense counsel noted, "I did not think that was a prior conviction, and therefore could be used for impeachment." The prosecutor, wanting to avoid even the possibility of a reversal, argued initially that the guilty plea was admissible for purposes of impeachment; however, he also proposed that, if the court had any question in that regard, the prosecutor would move for a continuance until the witness' case was "finalized." The court made no ruling regarding a continuance. Defense counsel responded by stating, "I am not making a motion in limine [sic ]. I do not anticipate making an objection if that question comes up with regard to whether she has pled guilty to a felony offense."

At trial, 19-year-old Debbie Ann Shelley testified for the State. At the time of the robbery, she was employed as a cashier at Jim's Amoco in Zion, Illinois. She worked in the minimart five days a week. On January 30, 1990, she was working the 3 p.m. to 11:15 p.m. shift. The cash register was located in the center of the store, and there was one door 6 to 10 feet away for entering and exiting the store.

At approximately 10:40 p.m., Shelley was waiting on a customer when she heard the door open and saw a man whom she identified in court as defendant walk in. He walked up to the right side of her counter and pointed a gun at the register. She testified that she looked at him and she froze, still looking at him. He walked around to the front of the register, and, when he was located one or two feet away, he hit it with his left hand saying, "Open the register." When Shelley still "froze," he stated, "I said, open the mother f---ing register." Shelley did a "no sale" and the drawer opened. Defendant could not reach the cash drawer, so Shelley took it out and set it on the counter. Defendant picked up the drawer containing about $280 and left.

Shelley stated that defendant was wearing a stocking over his face, a knit cap and a long, black trench coat and tennis shoes. His hands were covered with socks. She knew defendant through his brother Frank; she had known him for about four or five years and had had conversations with him more than 10 times. She recognized his voice. When he hit the register, defendant "clicked" in her mind. Dollie Wilson hit the alarm button, and the Zion police arrived shortly thereafter.

About 20 minutes after the robbery occurred, Officer Watkins arrived. He took Shelley aside and stated that she was not to discuss with anyone what she was looking at; he showed Shelley six photographs of young black males. She picked out a photograph of defendant as the person who had committed the robbery. She again identified that photograph in open court. Shelley identified scenes of the robbery from a surveillance videotape. (We note that the monochromatic tape and enlarged photographs of frames from the tape do not have high resolution so that they only portray the figures generally. The videotape shows that the robber was wearing a light-colored hat.)

On cross-examination, Shelley acknowledged that she was scared at the time of the incident and saw the robber for less than a minute. She had described to Watkins a person who was a black male, about 5 feet 5 inches tall with a muscular build. She had told Watkins that the robber wore a hat that was possibly dark in color and he had a stocking stretched tight over his face. She denied that she told Watkins that the robber was wearing a waist-length jacket. She told Officer Watkins that she made eye contact with the robber and that he had dark eyes, but she could not tell whether they were black or brown. She also told Officer Brooks, who was first on the scene before Watkins arrived, that she thought that defendant was the robber. On redirect examination, Shelley stated that she recognized defendant as soon as he walked into the store.

Dollie Wilson testified that she was also employed at Jim's Amoco at the time of the robbery. When the robber, a black man, walked into the store, she was located right behind and to the left of Shelley. He was wearing a "black stocking, black coat, hat, and was carrying what seemed to be a gun." She was about five or six feet away when she also heard him say, "Open the mother f---ing register." When Officer Watkins arrived, she identified a picture of defendant as the one who committed the robbery. She did not know defendant, but told the officer that she was "70 to 80 percent sure" that the photograph was that of the robber. When asked why she said that, she explained that she did not see his full face through the stocking; she could see his eyes, and she was going on the build of his body, his neck and what she could see through the stocking. After identifying defendant in open court, Wilson stated that she was still "70 to 80 percent sure."

On cross-examination, Wilson acknowledged that she was shocked and a little scared when the robber came into the store. She had told Watkins that the robber was about 5 feet 5 or 6 inches tall and that he was wearing a dark-colored baseball cap. The stocking slightly distorted his face.

Officer Clyde Watkins testified that he presented a group of six pictures to Shelley and Wilson. He included a picture of defendant because Officer Brooks had indicated that, during his preliminary investigation, defendant's name came up as a possible suspect. Watkins separated the witnesses and requested that they not discuss the case among themselves. Without hesitation, Shelley picked out the photograph of defendant. On cross-examination, Watkins acknowledged that his report indicated that Shelley said the robber wore a black, waist-length jacket with a large collar.

Bernina Mata, an employee at Jim's Amoco, was called as a defense witness. During the robbery, she was standing behind Dollie Wilson about 8 to 10 feet from the robber. He was wearing a black stocking or hat, a long trench coat and a baseball cap. She could not see his face or tell whether he was white or black, but, because she heard him talk, she believed he sounded like a black man. She was unable to identify the robber from the same group of photographs shown to Shelley and Wilson. She could not identify the robber because she was not in a position to see his face.

W.C. Matthews testified that he was at the minimart at the time of the robbery. While he was at the counter paying for some merchandise, he noticed a strange look on the cashier's face. He looked back and saw a person standing two feet behind him with a gun pointed at him who said, "Get back." The robber had "a mask, black scarf of some kind around his face," and Matthews could not see his face. The robber wore a hat, a long trench coat and gloves. Matthews assumed that he had a gun, but it was covered up. He could not tell if the robber was white or black nor could he describe any facial features. He believed that the robber was 5 feet 3 inches tall.

Frank Little, defendant's 21-year-old brother, testified that, on January 30, 1990, the date in question, he lived at 2419 Hebron with Deborah Hurley, Bonita Bowers, and defendant. It was Hurley's apartment. Defendant came home about 9 or 9:15 p.m. while Frank was watching television downstairs with Hurley and Bowers. After defendant came in, he answered a telephone call which resulted in a brief argument between defendant and Hurley. Defendant went upstairs to take a shower. Frank left the house for 10 or 15 minutes. When he got back, defendant was still there. Sometime between 11 and 11:30 p.m., defendant went upstairs with Hurley and went to bed.

On cross-examination, Frank testified that he had been living at 4209 Birch for about five years. He lived at 2419 Hebron for about three or four months prior to January 30. He moved in with defendant and Hurley, defendant's girlfriend. He said that defendant had been living there since May or June 1989. Frank said that when he moved in Hurley's children were not living there and never did live there. On further questioning, Frank did not remember if Hurley's children lived there. When Frank stepped out of the house on the night in question,...