People v. Mister

• Decision Date: 23 January 2015
• Docket Number: No. 4–13–0180.,4–13–0180.
• Citation: 27 N.E.3d 97
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Marvino MISTER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

27 N.E.3d 97

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Marvino MISTER, Defendant–Appellant.

No. 4–13–0180.

Appellate Court of Illinois, Fourth District.

Jan. 23, 2015.

27 N.E.3d 101

Michael J. Pelletier, Jacqueline L. Bullard, and Kelly M. Weston (argued), all of State Appellate Defender's Office, Springfield, for appellant.

Julia Rietz, State's Attorney, Urbana (Patrick Delfino, David J. Robinson, and Allison Paige Brooks (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

27 N.E.3d 102

OPINION

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

¶ 1 In December 2012, a jury found defendant, Marvino Mister, guilty of armed robbery (720 ILCS 5/18–2(a)(2) (West 2010)). In January 2013, the trial court sentenced him to 30 years' imprisonment with credit for 276 days served. Defendant appeals, arguing (1) plain error occurred where a witness's testimony violated the silent witness theory; (2) plain error occurred where the trial court gave incorrect jury instructions; (3) trial counsel was ineffective; (4) the State failed to prove him guilty of armed robbery; and (5) fines imposed by the circuit clerk are void and he is entitled to $1,380 in presentence credit. We affirm in part, vacate in part, and remand with directions.

¶ 2 I. BACKGROUND

¶ 3 On April 18, 2012, the State charged defendant by information with armed robbery (720 ILCS 5/18–2(a)(2) (West 2010)), a Class X felony. The information alleged on April 12, 2012, defendant took money from Sean Harrigan, a student at the University of Illinois in Champaign–Urbana, by threatening the imminent use of force while armed with a silver gun.

¶ 4 A. The Evidence at Trial

¶ 5 On December 4, 2012, defendant's jury trial commenced. At trial, Sean Harrigan testified on April 11, 2012, he and his two friends, Arman Agarwal and James Ramelli, drove in Harrigan's car to Par–A–Dice Hotel and Casino in Peoria, Illinois. They arrived around 7:30 or 8 p.m. Harrigan played craps the entire night and into the early morning hours of April 12, 2012. Agarwal and Ramelli also played craps, but after four or five hours they left to play poker. Harrigan ended up winning $23,000 and was paid in “two bricks” of $10,000, and the remaining $3,000 was placed in a white envelope. At 4:29 a.m., a security guard escorted Harrigan, Agarwal, and Ramelli to Harrigan's car, which was parked in the casino's parking lot. Harrigan saw nothing suspicious while playing craps or walking to his car.

¶ 6 The trio left the casino, stopped at a nearby gas station, and purchased sodas for the ride home. Agarwal and Ramelli went inside the gas station while Harrigan remained in his car. Harrigan then drove onto Interstate 74 toward Champaign and did not make any stops along the way; he estimates it took 1 hour and 20 minutes to drive home. Harrigan did not notice anything suspicious at the gas station or during the ride home.

¶ 7 Around 6 a.m., Harrigan drove into an underground parking garage at his apartment at 512 South Third Street in Champaign. He parked near the north end of the garage and Agarwal and Ramelli exited the passenger side of the vehicle. Harrigan retrieved his winnings from the glove compartment, opened the driver's side door, and prepared to exit the vehicle. He had one foot out of the vehicle when he noticed a black male quickly approaching. Harrigan put the majority of his winnings behind him and “sat on it”; he had about $2,500 in a money clip, which was in his pants pocket. The man brandished a silver revolver with a “short barrel,” pointed it at Harrigan, and demanded the money. He also pointed it at Agarwal and Ramelli, who were standing with their hands up next to the passenger side of the vehicle. Harrigan testified the man kept saying, “give me the bread,” “I know you have money,” and “if you don't give me the money, I'm going to start shooting.” Harrigan gave the man his cell phone and money clip containing his driver's license, casino card, and $2,500, but the man said he knew there was more and threatened to

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shoot. Harrigan testified a white or gray car pulled down the entrance ramp into the parking garage and the robber took off running toward the car. Harrigan assumed the robber and car were related because the robber seemed determined to get the money, but when the car showed up, the robber looked at it and then left, heading toward the car. Harrigan, Agarwal, and Ramelli ran upstairs to Harrigan's apartment and called the police.

¶ 8 Harrigan described the offender to police as a 5–foot–10–inch, 180–pound black male in his early twenties. The man “had a dark sweatshirt, no hood, and dark jeans.” His hair was short and braided into “little tips” on the side and back of his head. When asked about the man's facial hair, Harrigan said, “[i]t was short, pretty, pretty trim, you know, light mustache, went you know, scooped the whole chin up to the ear.”

¶ 9 Later in the afternoon, police detectives showed Harrigan a photographic array of six possible suspects. Harrigan told the detectives he was “80 to 85 percent sure” the man in picture two, defendant, was the offender. However, he initialed next to instruction No. 9b, which states: “I do not recognize anyone from these photos as the suspect.” Harrigan did not make an in-court identification of defendant.

¶ 10 Harrigan stated, prior to testifying, he viewed footage depicted on the casino's surveillance video and it truly and accurately depicted the images of what happened at the casino. The State then presented a compact disc (CD), which contains five video clips, and played the first clip for the jury. The video is taken from a camera on top of the hotel's roof and overlooks the casino's parking lot. The recording is color, has no sound, and is time-stamped 4:29:35 a.m. The picture quality is fair. At 4:30 a.m., the camera pans toward the casino and zooms in on four individuals who are walking out of the casino toward the parking lot. Harrigan testified the individuals are himself, Ramelli, Agarwal, and a casino security guard. Approximately 10 seconds later, a white male wearing a blue jacket, blue jeans, white shoes, and dark baseball hat exits the casino. Seconds later, one of Harrigan's friends turns around and walks back toward the casino. The white male briefly walks out of the camera's range but reappears when the camera zooms out. Although the camera follows Harrigan's escort through the parking lot, the white male appears at the top right portion of the video and enters the driver's door of a silver four-door sedan. The video shows Harrigan, his friend, and the security guard approach Harrigan's vehicle. They stand next to the vehicle, appear to have a conversation, and after 25 seconds, the security guard walks back toward the casino. Approximately 16 seconds later, Harrigan's other friend left and walked toward the direction of the casino. Harrigan entered his vehicle and waited for his two friends, who returned a few minutes later. Harrigan's vehicle drove away at 4:33 a.m.

¶ 11 The State introduced still photographs taken from various surveillance cameras located inside the casino. Harrigan testified the photographs fairly and accurately depict what he was wearing (a plaid shirt and blue jeans). One group contains seven pages of color photographs and shows Harrigan standing at the craps table. We note each page is divided into four quadrants showing a different area of the casino. The images are grainy and poor quality. The craps table is shown in the bottom right quadrant. A second group of 10 photographs shows a security guard escorting Harrigan, Agarwal, and Ramelli through the security turnstiles. The first four photographs show Harrigan's

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security escort and the remaining six photographs depict a white male following 11 seconds behind Harrigan's escort.

¶ 12 Arman Agarwal testified to a similar sequence of events as Harrigan. On April 11, 2012, Harrigan drove Agarwal and Ramelli to Par–A–Dice casino. Agarwal played craps at the same table as Harrigan and Ramelli but stood at the opposite end of the table. He did not talk to anyone while playing craps. After four hours, Agarwal and Ramelli left the craps table and went to the third floor to play poker. Agarwal returned to the craps table “once or twice” and was there when Harrigan won $23,000. When asked how the crowd was acting, Agarwal stated, “[e]veryone was kind of happy. It was a peppy environment.” Agarwal and Ramelli accompanied Harrigan to the cashier and they left the casino together. Agarwal testified they stopped at a gas station and he got out of the car to “get some drinks.” During the ride home, they stayed awake and “talked the entire way back” to Champaign. When asked if he was watching to see if anything suspicious was happening, Agarwal testified, “No. We were too caught up in the moment.”

¶ 13 Upon their return to Champaign, Harrigan parked in the garage at 512 South Third Street. Agarwal and Ramelli exited the car when a man walked up, pointed a gun at Harrigan's head, and said, “give me that bread.” The man also pointed the gun at Agarwal and Ramelli, who were standing next to the passenger side of the car. Agarwal...