People v. Ramos
Decision Date | 09 June 2003 |
Docket Number | No. 2-01-1167.,2-01-1167. |
Citation | 339 Ill. App.3d 891,274 Ill.Dec. 500,791 N.E.2d 592 |
Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Angel RAMOS, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
G. Joseph Weller, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Elgin, Richard J. Dvorak (Court-appointed), Chicago, for Angel Ramos.
Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Lawrence M. Bauer, Deputy Director, Gary F. Gnidovec, State's Attorneys Appellate Prosecutor, Ottawa, for the People.
Following a bench trial, defendant, Angel Ramos, was found guilty of one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2000)) and two counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2000)). After its finding of guilty, the trial court merged the two counts of aggravated discharge of a firearm into the one count of aggravated battery with a firearm and entered a conviction and sentenced defendant on the latter count alone. Defendant appeals, arguing that (1) the trial court erred in denying his pretrial motion to suppress the out-of-court identifications of defendant by witnesses Zacharias Carpenter and Michael Miller; (2) his trial counsel provided ineffective assistance of counsel by failing to introduce certain evidence at the suppression hearing; and (3) he was not proved guilty beyond a reasonable doubt of the crimes charged. The State argues for the first time in its appellee's brief that the trial court erred in merging the two counts of aggravated discharge of a firearm into the one count of aggravated battery with a firearm. We affirm.
At about 1:30 a.m. on April 7, 2000, Isaac Bailey, Zacharias Carpenter, and Michael Miller were riding in Miller's Buick Regal in Aurora when the passenger in a car that pulled alongside them fired several shots from a handgun into the Regal. Bailey, the driver, was shot in the shoulder. He and his companions contacted the police and gave descriptions of the assailant and the car, the Neon in which he was riding. Dispatch conveyed the descriptions to officers in the area. Several minutes later and several blocks from the scene of the shooting, a sheriff's deputy identified a Neon car that matched the description given by Bailey and the others. The officer pulled over the car, which contained two "Hispanics"—defendant and Jose Ramirez. Carpenter and Miller were conveyed to the scene, where they identified defendant as the shooter. Defendant was arrested.
Defendant filed a motion to suppress the out-of-court identifications made by Carpenter and Miller. At the suppression hearing, defendant called Aurora police officers Brian Pierce and Jeffrey Talley, who arrived at the scene shortly after the shooting.
[Nonpublishable material under Supreme Court Rule 23 removed here.]
Although the trial court analyzed the identification procedure as a showup, it observed that the procedure was not a showup per se because Miller and Carpenter were shown two suspects and asked to identify whether either was the assailant. After hearing the testimony, the court concluded that defendant failed to demonstrate that the showup was unnecessarily suggestive or conducive to irreparable misidentification.
Defendant subsequently filed a motion to quash arrest and suppress evidence, which the court denied following an evidentiary hearing. At trial, the parties stipulated to the admission of the testimony given by Kane County sheriff's deputy Brian Demeter at the hearing on defendant's motion to quash arrest and suppress evidence.
The parties stipulated to the admission of Officer Pierce's testimony from the hearing on the motion to suppress identification.
[Nonpublishable material under Supreme Court Rule 23 removed here.]
After Carpenter, Miller, and Bailey testified, the parties then stipulated that police recovered three fired .32-caliber shell casings from the scene of the shooting and two spent .32-caliber bullets from the driver's door of the Regal. The parties further stipulated to Bailey's gunshot wound to the shoulder. The State introduced photographs of the Regal, which showed a shattered front driver's side window and two bullet holes in the front driver's side door.
The State then rested its case. The defense's case consisted of the following stipulated conversation between Miller and an Aurora police officer regarding Miller's identification of defendant:
The court found defendant guilty on all three counts, noting that the "crux" of the case was the identifications of defendant by Carpenter and Miller. The court entered a conviction and sentenced defendant only on the one count of aggravated battery with a firearm, finding that the two counts of aggravated discharge of a firearm were merged into the aggravated battery conviction.
Defendant filed a motion and an amended motion for a new trial, arguing that (1) the trial court erred in declining to suppress Carpenter's and Miller's identifications because the evidence at the hearing showed that they were the result of "an unduly and unnecessarily suggestive `show-up' conducive to a mistaken identification" and thus violated due process, (2) his trial counsel provided ineffective assistance of counsel by failing to introduce evidence at the hearing on the motion to suppress identification "that Defendant was wearing yellow and black clothing at the time [of his arrest], rather than yellow and white or light colored clothing as described by the alleged victims of the shooting," and (3) defendant was not proved guilty beyond a reasonable doubt of the crimes of aggravated discharge of a firearm and aggravated battery with a firearm.
At the hearing on the motion, the parties stipulated that defendant was wearing a black, long-sleeved shirt underneath a yellow T-shirt bearing a Tommy Hilfiger logo when he was arrested. Defendant testified at the hearing that he was wearing the black shirt when he was arrested and had worn it for several hours before the arrest. The trial court denied the motion for a new trial.
On appeal, defendant reiterates the arguments he brought in his motion for a new trial. He argues, first, that the trial court erred in denying his motion to suppress Miller's and Carpenter's showup identifications.
Illinois courts have long held that an immediate showup identification near the scene of the crime is proper police procedure. See, e.g., People v. Lippert, 89 Ill.2d 171, 188, 59 Ill.Dec. 819, 432 N.E.2d 605 (1982)
; People v. McKinley, 69 Ill.2d 145, 152, 13 Ill.Dec. 13, 370 N.E.2d 1040 (1977); People v. Manion, 67 Ill.2d 564, 570, 10 Ill.Dec. 547, 367 N.E.2d 1313 (1977).
People v. Hicks, 134 Ill.App.3d 1031, 1036, 90 Ill.Dec. 120, 481 N.E.2d 920 (1985).
The weight to be given identification evidence is presumptively a question for the trier of fact. People v. Moore, 266 Ill.App.3d 791, 796, 203 Ill.Dec. 883, 640 N.E.2d 1256 (1994). Only where a pretrial encounter resulting in an identification is "unnecessarily suggestive" or "impermissibly suggestive" so as to produce "a very substantial likelihood of irreparable misidentification" is evidence of that and any subsequent identifications excluded by operation of law under the due process clause of the fourteenth amendment. Moore, 266 Ill.App.3d at 796-97, 203 Ill. Dec. 883, 640 N.E.2d 1256, citing Neil v. Biggers, 409 U.S. 188, 196-97, 93 S.Ct. 375, 380-81, 34 L.Ed.2d 401, 409-10 (1972).
The due process analysis has two steps. First, the defendant must prove that the confrontation was so unnecessarily suggestive and conducive to irreparable misidentification that he was denied due process of law. If the defendant meets this burden, the burden falls to the State to establish that the identification is independently reliable. Moore, 266 Ill.App.3d at 797, 203 Ill.Dec....
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