People v. Short
| Decision Date | 24 January 2020 |
| Docket Number | No. 1-16-2168,1-16-2168 |
| Citation | 2020 IL App (1st) 162168,159 N.E.3d 425,442 Ill.Dec. 246 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Victor SHORT, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Patricia Mysza, and Manuela Hernandez, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Tasha-Marie Kelly and Koula A. Fournier, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Following a jury trial, defendant Victor Short was convicted of armed robbery with a firearm and aggravated kidnapping and sentenced to concurrent prison terms of 21 and 8 years. Defendant contends on appeal that the evidence was insufficient to convict him beyond a reasonable doubt, that the trial court erred in denying his pretrial motion to suppress identification, and that the State made improper remarks or arguments. He also contends that he was deprived of a fair trial when the State was allowed to elicit testimony implying that a nontestifying codefendant had implicated defendant, which constituted hearsay and violated defendant's right to confront witnesses against him. He contends that trial counsel rendered ineffective assistance. Lastly, he contends that the State failed to prove him guilty of aggravated kidnapping beyond a reasonable doubt when the asportation of the victim was incidental to the armed robbery. For the reasons stated below, we reverse defendant's aggravated kidnapping conviction and otherwise affirm.
¶ 3 On December 7, 2015, a jury found defendant guilty of armed robbery with a firearm and aggravated kidnapping. The court sentenced defendant to concurrent prison terms of 21 years and 8 years on February 24, 2016. This court granted defendant leave to file a late notice of appeal on August 25, 2016, and defendant filed his notice of appeal the next day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606(c) (eff. July 1, 2017) governing appeals from a final judgment of conviction in a criminal case.
¶ 4 Specifically, defendant filed a pro se motion for leave to file a late notice of appeal in August 2016, explaining why he did not file a notice of appeal earlier. He therefore complied with Rule 606(c), allowing this court to grant such leave upon a motion "filed in the reviewing court within six months of the expiration of the time for filing the notice of appeal," showing "that the failure to file a notice of appeal on time was not due to appellant's culpable negligence." Ill. S. Ct. R. 606(c) (eff. July 1, 2017).
¶ 6 Defendant and codefendants, Christopher Calvin and Courtney Thomas, were charged in relevant part with armed robbery with a firearm and aggravated kidnapping, allegedly committed against O.J. Yarbor on or about February 20, 2014. The aggravated kidnapping charge alleged that defendants carried Yarbor from one place to another with the intent to secretly confine him against his will and that they committed aggravated battery against Yarbor.
¶ 8 Defendant filed a motion to suppress pretrial identification, arguing that Yarbor described one of the offenders as having long dreadlocked hair but the array of five photographs shown to Yarbor included only two men who "even had dreadlocks at all" so that the array was unduly suggestive. Defendant also argued that the State did not disclose the circumstances surrounding the array identification, including who was present when Yarbor was shown the array. At the motion hearing, defendant's opening argument was that the array and subsequent lineup were both unduly suggestive.
¶ 9 Police detective Joseph Gentile testified that he investigated the robbery of Yarbor, during which he conducted a lineup. In conducting lineups, he would "offer the subject the opportunity to pick which position he or she would like to be placed in the lineup." Fillers in the lineup are supposed to be of similar appearance to the subject and are selected from arrested persons at the police station where the lineup is occurring and nearby police stations or "very seldom" from persons on the street. The description of the offenders here was of two young adult men, one with short hair and the other with dreadlocks. Gentile "tried" to find fillers with dreadlocks but only three of the five participants had dreadlocked hair. However, to make the lineup "even or fair," the lineup participants all wore white caps.
¶ 10 Two days after the alleged offenses, and before defendant was arrested, Detective Gentile conducted two photographic arrays, one of which included defendant. The fillers in defendant's array were not the same as the fillers in the lineup. Gentile identified the array he created and showed to Yarbor that included defendant; it depicts two men with long dreadlocks, two with shorter dreadlock-like hair, and one with short-cropped hair. Gentile testified that only he and Yarbor were present for the showing of the array.
¶ 11 On cross-examination, Detective Gentile testified that he received a description of the offenders from Yarbor, and other witnesses corroborated his description. Gentile selected the fillers for the array using a computer program that searches police records for persons with similar demographics to the subject. Before showing Yarbor the array, he had Yarbor sign a waiver disclosing that the suspect may or may not be in the array, advising Yarbor not to presume that the person conducting the lineup knew who the suspect was, and notifying Yarbor that he was not required to make an identification. After Yarbor selected defendant's photograph without "any difficulty," defendant was arrested and placed in a lineup on the same day. Gentile selected the lineup fillers from among persons in police custody at various police stations. Gentile took into consideration defendant's dreadlocks, and he placed all participants in white caps because not all the fillers were dreadlocked. All participants were men of the same race and skin complexion. Defendant was able to choose where he stood in the lineup. During the lineup, Gentile was with the participants and another detective was with Yarbor. Immediately after the lineup, that detective told Gentile that Yarbor selected defendant and Calvin from the lineup.
¶ 12 On redirect examination, Detective Gentile testified that the braids of two of the lineup participants, including defendant, were visible despite the white caps.
¶ 13 Following arguments, the court denied the motion to suppress. The court found that multiple fillers in the array had dreadlocks or similar hairstyles. Noting that the lineup participants all wore caps and that defendant had the longest dreadlocks in the lineup, the court found that "I don't see what else the police could have done."
¶ 15 Calvin filed, and defendant joined, a motion in limine seeking in relevant part to bar the State from eliciting testimony regarding any statements by Thomas, arguing that such evidence would constitute hearsay and violate their confrontation right. In arguments on the motion, the State told the court that it did not plan to elicit the substance of Thomas's statements but would elicit that the police interviewed Thomas about the Yarbor robbery and the next step in the police investigation was to pursue defendant and Calvin. The court denied the motion in limine , finding that it was not hearsay for the State to elicit that Thomas was interviewed and the police then sought defendant and Calvin so long as the content of Thomas's statements was not elicited.
¶ 17 Defendant and Calvin were tried by the same jury, and Thomas was not tried with them.
¶ 18 In the State's opening statement, a prosecutor set forth at length the State's version of events during and after the alleged offenses. In relevant part, she said that Thomas went to the police station with his grandmother after the robbery. that was then shown to Yarbor. Neither defense counsel objected.
¶ 20 Yarbor testified that he owned a tax preparation firm and was working there at about 2 p.m. on February 20, 2014, when a man with dreadlocked hair came in and asked "if this was a tax office." When one of Yarbor's clients said that it was, the man replied that he would be back, and he left. There were about 10 people in the office at the time. About a half-hour later, most of them had left the office, though two clients—Vanessa Brown (Vanessa) and Brittany Cousins—and a toddler were still there. Yarbor was seated at his desk when two men entered the office brandishing pistols. One man was the dreadlocked man who had briefly entered the office at about 2 p.m., and the other had short hair. The former had a semiautomatic 9-millimeter pistol, and the latter had a chrome .38-caliber revolver. Yarbor was familiar with guns, including owning guns himself, and the firearms held by the two men appeared to be metal rather than plastic. Yarbor had never seen either man before that day.
¶ 21 The short-haired man ordered Yarbor at gunpoint to tell him where the safe was located. Yarbor at first refused to stand, but the man forced Yarbor to take him to a back room where the safe was located.1 The man then ordered Yarbor to open the safe. When Yarbor did not open the safe quickly enough for the man's taste, the man struck Yarbor on the head with his gun. The blow was extremely painful because the metal gun was heavy, which reinforced Yarbor's belief...
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