People v. Lundy

• Decision Date: 04 December 2018
• Docket Number: No. 1-16-2304,1-16-2304
• Citation: 118 N.E.3d 1246,2018 IL App (1st) 162304,427 Ill.Dec. 575
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David LUNDY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 162304

118 N.E.3d 1246

427 Ill.Dec. 575

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

v.David LUNDY, Defendant-Appellant.

No. 1-16-2304

Appellate Court of Illinois, First District, Second Division.

Opinion filed on December 4, 2018.

JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, David Lundy, was convicted of armed robbery and sentenced to 10 years in prison. On appeal, defendant contends that 10 years is an excessive sentence where he was a homeless addict who stole $33 worth of underclothes. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 Defendant's conviction arose from an incident on May 17, 2015, at a dollar store in Chicago. Following his arrest, defendant was charged with one count of armed robbery.

¶ 4 At trial, Patricia Parker testified that about 11:30 a.m. on the day in question, she was working the aisles at the dollar store when she saw a man, identified in court as defendant, enter the front doors. Parker noticed defendant because of his "incognito look" on a warm day: baggy black pants, a baggy black jacket, and a hat pulled low on his face. Defendant walked toward the back of the store, and Parker lost sight of him for a few minutes because she was interrupted by a customer. When she spotted defendant again, he was moving from the clothing aisle to the underwear aisle with his back to her. Parker, who was at the other end of the aisle, saw defendant make what she described as a "gesturing motion" as though he was fiddling with something with his arms. In court, Parker mimed the gesture by moving her right arm up and toward her center.

¶ 5 Parker testified that defendant began walking toward her. She addressed him, asking whether he had anything on him, and if he did, to please give it to her and exit the store. Defendant looked confused and handed Parker a package of T-shirts. Because defendant's stomach area still looked baggy, Parker suspected he had additional items in his jacket. So, she asked defendant if he had anything else and again requested that if he did to please give her the rest of the merchandise. Defendant became upset and said he did not "have shit." Although Parker did not recall her exact words to defendant at this point, she testified that she told him something to the effect of, "I saw you stuffing something inside your clothing and I would really like for the rest of the items. It is not a big deal."

¶ 6 Defendant got upset, cursed at Parker, pulled out a red pocketknife with his right hand, and flicked it open. While extending the knife toward Parker, defendant said something like "I'm not gonna give you shit," or "get the fuck out of my face." Parker turned to move away and called out for the assistant manager, Lakesha Phillips, who was behind the cash register. Phillips came over, and Parker told her defendant had pulled a knife on her because she caught him stealing. The three of them then walked together past the cash registers to the door. When asked whether defendant was saying anything at that point, Parker answered, "Yes, he was. He actually said, ‘I don't have anything. What you gone [sic ] do. I will kill you motherfuckers with this knife. You know what I am saying?’ Just being — to me it was not that upsetting for a small woman like me." After cursing some more, defendant left the store.

¶ 7 While Parker was still at the front doors, she saw a police car in the street. She ran out of the store and toward the police car, waving and yelling that a man had pulled a knife on her. That police car did not stop, but a second police car behind it at a traffic light saw her and responded. Parker saw defendant running eastward, so she pointed the police in that direction. The police drove off in the direction Parker indicated and returned a short time later with defendant. Parker identified him as the man who had threatened her and pulled a knife on her. The police gave Parker a pack of boys' T-shirts, two packs of men's T-shirts, and a pack of men's underwear.

¶ 8 Finally, Parker identified the knife in question and viewed a series of video clips from store security cameras. She described what was depicted in each clip: (1) defendant walking into the store; (2) defendant and Parker on either ends of an aisle; (3) the "cash wrap" area of the store after Parker interacted with defendant; (4) defendant, Parker, and Phillips at the store exit; (5) defendant exiting the store with a red pocketknife in his right hand; and (6) Parker in the parking lot, waving her hands at a police car.

¶ 9 On cross-examination, Parker agreed that none of the video clips showed defendant threatening her with a knife. She said that defendant did not "point" the knife at her, but rather, pulled it out, flicked it open, and threatened her with it. She also stated that defendant was yelling and not calm when he made the threats. Parker reiterated that defendant displayed his knife to her prior to walking past the "cash wrap" area and stated that she never saw him put the knife away. Parker denied telling the police that defendant ran past the last point of purchase and displayed a knife as she chased him outside.

¶ 10 Lakesha Phillips testified that about 11:30 a.m. on the day in question, she was working at a cash register when Parker, who was on the sales floor, called out to her, said someone was shoplifting, and indicated it was defendant, whom Phillips identified in court. Phillips ran out from behind the counter. Defendant was being "loud" toward Parker and told Phillips, "I will kick your fucking ass." Phillips, Parker, and defendant exited the store. Phillips saw Parker flag down the police. The police pursued defendant and then returned with him a short time later. They gave Phillips a package of boys' T-shirts, two packages of men's T-shirts, and one package of underwear. Phillips scanned the items and created a receipt showing the subtotal for all four items was $33.25.

¶ 11 On cross-examination, Phillips acknowledged that she did not see defendant threatening Parker with a knife. She also did not see him carrying a knife in the store aisles or as he exited the store, but explained, "I didn't actually look at his hands and stuff." Phillips agreed that she told the police she never saw a knife. She also admitted that she filled out a store incident report but, since the date of the incident, had been unable to locate it.

¶ 12 Chicago police officer Brian Sherman testified that about 11:40 a.m. on the date in question, he and his partner, Officer Sandoval, were driving a marked police vehicle when they were flagged down by a dollar store employee who informed them a man had just taken merchandise from the store and displayed a knife. She pointed out a man who was running eastbound, and the officers gave chase. Eventually, Sherman got out of the vehicle and caught up to the man, identified in court as defendant, in a post office. Defendant was standing behind a pallet or a skid, and there were three packages of T-shirts and a package of underwear on the floor. Sherman detained defendant and recovered the items from the floor. When he performed a protective pat-down on defendant, Sherman found a red box cutter knife in his pants pocket. Sherman and his partner brought defendant back to the dollar store, where Parker identified him as the man who displayed a knife to her and took items from the store. The officers also brought the packages of T-shirts and underwear to the store, and they were identified by store employees as having been taken from the store.

¶ 13 On cross-examination, Sherman acknowledged that the original case incident report, which he did not prepare, indicated in its narrative section that Parker related she chased defendant out of the store, and he then displayed a knife.

¶ 14 Defendant made a motion for a directed finding, which the trial court denied. Following closing arguments, the trial court found defendant guilty of armed robbery. In the course of doing so, the trial court described the box cutter/knife for the record, stating that it was made of a "very heavy metal" by a company called Husky, was 4 ½ inches long when folded, 6 inches long when the switch was activated to release the blade, and very easy to open. The court also noted that it seemed to be the policy of the store not to arrest shoplifters, but rather, "just to get the merchandise back and let him go and not even involve the police."

¶ 15 Defendant filed a motion for a new trial. At the conclusion of the hearing on that motion, the trial court again addressed the store's apparent policy with respect to shoplifters, stating that it was reasonable to infer from Parker's testimony that the store was not going to call the police, but that once defendant produced the box cutter, he escalated the situation and "things went the way they did." The trial court denied defendant's posttrial motion.

¶ 16 At sentencing, the State argued in aggravation that there were many people in the store when defendant robbed it, and that those people could have been injured by defendant and his weapon. The State also emphasized that defendant had 10 prior felony convictions, all reflected in the presentence investigation (PSI) report: a 2012 conviction for Class 4 possession of a controlled substance, a 2009 conviction for Class 3 theft, a 2005 conviction for Class 3 theft, a 2004 conviction for Class 4 retail theft, a 2000 conviction for a Class 2 drug offense, a 1992 conviction for Class 2 robbery, a 1992 conviction for aggravated battery/great bodily harm, a 1989 conviction of Class 2 robbery, a 1988 conviction of Class 2 robbery, and a 1988 conviction of Class 2 robbery. Based on this criminal history, the State observed that defendant would have to receive a Class X sentence even if he had been found guilty of robbery, as opposed to armed robbery. The State argued that based on defendant's extensive background and the nature of the offense,...