People v. Span

• Decision Date: 30 June 2011
• Docket Number: No. 1–08–3037.,1–08–3037.
• Citation: 352 Ill.Dec. 924,955 N.E.2d 100,2011 IL App (1st) 083037
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Samuel SPAN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 083037

955 N.E.2d 100

352 Ill.Dec. 924

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

v.Samuel SPAN, Defendant–Appellant.

No. 1–08–3037.

Appellate Court of Illinois, First District, First Division.

June 30, 2011.

Michael J. Pelletier, Alan D. Goldberg, Jonathan Yeasting, State Appellate Defender's Office, Chicago, for appellant.Anita M. Alvarez, State's Attorney (Alan J. Spellberg, Miles J. Keleher, Tracey Annen, Assistant State Attorneys, of counsel), for the People.

OPINION

Presiding Justice HALL delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, the defendant, Samuel Span, was found guilty of attempted armed robbery and aggravated battery. The trial court denied the defendant's motion for a new trial and imposed concurrent prison sentences of 25 years on the attempted armed robbery conviction and 5 years on the aggravated battery conviction. After the court denied his motion for reconsideration of his sentences, the defendant filed this appeal.

¶ 2 The following issues are raised on appeal: (1) whether the identification evidence was sufficient to prove beyond a reasonable doubt that the defendant was the assailant seen in the surveillance video; (2) whether the defendant was denied his right to self-representation; (3) whether the trial court erred in admitting the Lays potato chip bag into evidence; (4) whether the defendant's 25–year sentence for attempted armed robbery violated the Illinois Constitution's proportionate penalties clause; (5) whether the case should be remanded for a hearing pursuant to People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984); (6) whether the defendant's conviction for aggravated battery must be vacated; and (7) whether certain fees and fines should be vacated.

¶ 3 The defendant was charged by indictment with one count of attempted murder, two counts of attempted armed robbery, two counts of robbery and four counts of aggravated battery. The following is a summary of the pertinent trial evidence.

¶ 4 Through an interpreter, Valmik Gandhi testified that, on April 19, 2006, he worked as a cashier during the 10 p.m. to 8 a.m. shift at the 7–Eleven store located at 957 Summit Avenue in Elgin. At approximately 11:55 p.m. on that date, he was working alone when a man entered the 7–Eleven. The man told Mr. Gandhi that he wanted liquor. Mr. Gandhi walked over to the liquor area and stood with his back to the man. Mr. Gandhi then felt a blow to the back of his head, which caused him to fall to the floor. When he tried to get up, he was struck on the face. While Mr. Gandhi was uncertain of what was used to strike him, he testified that it could have been the man's hand. Despite the second blow, he was able to reach up and push the emergency button under the counter. After an unsuccessful attempt to open the cash register, the assailant struck Mr. Gandhi again and left the store. Mr. Gandhi did not see the assailant take anything. He was unable to provide a description of the assailant to the police.

¶ 5 Mr. Gandhi explained that there were two store surveillance cameras working on April 19, 2006; one camera showed the entrance to the 7–Eleven, and the other showed the counter area. Prior to trial, Mr. Gandhi viewed the surveillance video. He testified that he recognized himself on the video and that the video recording was a true and accurate showing of the events in the 7–Eleven on April 19, 2006. The surveillance video was admitted into evidence and viewed by the trial court. In the video, the assailant was seen leaning over in front of the counter. Mr. Gandhi confirmed that the potato chip rack was located in front of the counter.

¶ 6 Mr. Gandhi testified further that he was treated at the scene by paramedics and then taken to Sherman Hospital, where he remained for 10 days. He was then transferred to Alexian Brothers Hospital, where he remained for 1 1/2 months.

¶ 7 Elgin police officer Darren Monforti, an evidence technician, testified that at 2 a.m. on April 20, 2006, he arrived at the 7–Eleven to collect evidence. Several police officers were already at the scene when he arrived, including another evidence technician, Officer Ken Herman. Upon entering the 7–Eleven, Officer Monforti observed footprints leading from the store entrance to behind the counter where the cash register was located, a footprint on the glass front door, and blood on the floor and the counter. He also noticed a potato chip bag on the floor behind the counter. Several detectives were viewing the surveillance video. After watching the video, Officer Monforti determined that the potato chip bag had evidentiary value.

¶ 8 Officer Monforti also participated in the May 5, 2006, execution of a search warrant for the premises at 320 North Liberty in Elgin. The search located a pair of size 12, white Nike Air gym shoes.

¶ 9 Officer Monforti identified several photographs, two of which depicted the potato chip bag. In both photographs, a yellow Lays potato chip bag can be seen on top of a box located on the low shelf behind the counter. According to the officer, the photographs truly and accurately depicted the scene at the 7–Eleven as he viewed it on April 20, 2006. Officer Monforti identified envelopes and letters addressed to the defendant at the 320 North Liberty address.

¶ 10 On cross-examination, Officer Monforti was questioned as follows:

“Q. And it's your testimony that at some point after you arrived, you noticed laying [ sic ] on the floor a Lay's [ sic ] potato chip bag, correct?

A. No. I was advised about it.

Q. Okay. Who advised you of this?

A. I don't remember who advised me, but it was learned through watching the video that the potato chip bag was dropped.

* * *

Q. The potato chip bag itself was laying [ sic ] on the floor at the time?

A. I believe so, yes.”

¶ 11 Officer Monforti explained that Officer Herman took the photographs of the potato chip bag. Officer Monforti was not present when the potato chip bag was collected as evidence.

¶ 12 On redirect examination, Officer Monforti testified that the other officers pointed out the potato chip bag to him. They informed him that the bag had been found in that exact location and had not been handled prior to his arrival.

¶ 13 Sergeant Daniel O'Shea testified that he participated in the investigation of the April 19, 2006, incident at the 7–Eleven. While at the 7–Eleven, the sergeant and other officers watched the store surveillance video. While viewing the surveillance video, Sergeant O'Shea believed he recognized the assailant to be the defendant, whom he knew from prior police contacts. The sergeant made an in-court identification of the defendant as the assailant on the surveillance video.

¶ 14 Sergeant O'Shea described his observations from the surveillance video that aided in the investigation of this case. The assailant stood in front of a potato chip vending display. He picked up what appeared to be a yellow and white bag of potato chips and then proceeded to take what appeared to be a pipe wrench from his right front pocket. It appeared that the potato chip bag was dropped as the assailant ran behind the counter to where the clerk (Mr. Gandhi) was standing.

¶ 15 Sergeant O'Shea testified further that a potato chip bag was found in the location of the store where it appeared from the surveillance video to have been thrown by the assailant. The potato chip bag was photographed and collected as evidence. Fingerprints were lifted from the potato chip bag and sent to the State Police lab for analysis, along with a copy of the defendant's fingerprints that were already on file. Based on the report from the lab, Sergeant O'Shea obtained a warrant for the defendant's arrest. The defendant's fingerprints from his arrest in the present case were also sent to the lab for comparison.

¶ 16 On cross-examination, Sergeant O'Shea testified that, after viewing the surveillance video, Detective St. John and he located the potato chip bag where, from the video, it appeared to have been dropped. The sergeant instructed Officer Herman to photograph and collect the potato chip bag as evidence.

¶ 17 The parties stipulated that, if called as a witness, Patrick Powers, a specialist in fingerprint and footwear identification, would testify that he compared two latent prints on the Lays potato chip bag and the earlier set of defendant's fingerprints. He determined that one of the latent prints on the potato chip bag belonged to the defendant. He would further testify that a comparison between the two latent prints and the defendant's fingerprints taken after his arrest in this case revealed that both latent prints on the potato chip bag belonged to the defendant. Finally, Mr. Powers would testify that the footwear impressions taken from the 7–Eleven displayed a similar “outsole” pattern, size and design as the Nike Air shoes taken from the defendant's residence. However, he was unable to make a positive identification or elimination of shoe print evidence. After the admission of the State's exhibits into evidence, the State rested.

¶ 18 The defendant moved for a directed finding. The trial court granted the motion as to the attempted murder charge but denied it as to the other charges. After the defendant informed the court that he did not wish to testify, the defense rested its case.

¶ 19 The trial court found the defendant guilty of attempted armed robbery and aggravated battery. In explaining its ruling, the court noted that it gave little weight to the footprint evidence, citing the lack of evidence as to the size of the shoe recovered and the size of the footprint from the 7–Eleven. As to the other charges, the court noted Officer O'Shea's recognition of the defendant on the surveillance video, the officers' testimony as to the discovery of the potato chip bag and that testing revealed the presence of the defendant's fingerprints on the potato chip bag. [352...