People v. Utterback
| Decision Date | 06 June 2016 |
| Docket Number | NO. 4-14-0283,4-14-0283 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD R. UTTERBACK, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Adams County
Honorable William O. Mays, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
¶ 1 Held: The appellate court affirmed in part, vacated in part, and remanded with directions, concluding (1) a witness's use of the word "gang," and admission of alleged evidence of gang violence did not deprive defendant of a fair trial, and (2) an officer's improper identification testimony did not constitute plain error. However, the appellate court vacated several fines, remanded for recalculation of those fines, and ordered the trial court to apply $345 in per diem credit to defendant's creditable fines.
¶ 2 In July 2012, the State filed a bill of indictment, charging defendant, Gerald A. Utterback, with numerous offenses stemming from a single incident in which defendant, along with several other members of his motorcycle club, allegedly robbed two members from a rival club. Prior to trial, defendant filed a motion in limine to prevent the State from referring to the motorcycle clubs as "gangs," which the trial court granted.
¶ 3 During the January 2014 trial, the trial court denied defendant's motion for mistrial after a State's witness violated the motion in limine by using the word, "gang," finding its instruction to the jury was sufficient to cure the error. In addition to other evidence, a detective identified defendant's motorcycle riding to and from the scene of the robbery after viewing a surveillance video and personally examining defendant's motorcycle.
¶ 4 Following the presentation of evidence, the jury found defendant guilty of aggravated robbery, robbery, and theft from the person. The trial court subsequently sentenced him to five years' imprisonment.
¶ 5 Defendant appeals, asserting (1) he was denied a fair trial where the State introduced gang evidence in violation of the motion in limine, (2) a detective's identification testimony improperly invaded the province of the jury, and (3) certain fines should be vacated and recalculated and a $5 per diem incarceration credit applied. We affirm in part, vacate in part, and remand for the recalculation of certain fines and application of $5 per diem incarceration credit.
¶ 8 In July 2012, the State filed a bill of indictment against defendant and three codefendants: Timothy Jackson, Zane Liggett, and Joseph Teel. The charges all stemmed from a single incident occurring in May 2012. Count I alleged defendant committed an armed robbery in that he, or one for whose conduct he was legally responsible, while carrying a firearm on his person, knowingly took Tunnel Rats motorcycle club vests from Joseph Cowman and Michael Baehr, Jr., by threatening the imminent use of force. 720 ILCS 5/18-2(a)(2) (West 2010). Count II charged defendant with aggravated robbery, alleging he, or one for whose conduct he was legally responsible, indicated verbally to Cowman and Baehr that he had a gun. 720 ILCS 5/18-5(a) (West 2010). Count III alleged defendant, or one for whose conduct he was legallyresponsible, committed a robbery by taking Cowman's motorcycle vest by threatening the imminent use of force. 720 ILCS 5/18-1 (West 2010). The State did not proceed to trial on count IV, which charged defendant with unlawful use of a weapon. 720 ILCS 5/24-1(a)(7)(ii) (West 2010).
¶ 9 In April 2013 and again in September 2013, defendant filed a motion in limine, requesting the trial court direct the parties to refer to the Midwest Percenters and the Tunnel Rats as motorcycle clubs rather than motorcycle gangs. The State confessed the motion, which the trial court thereafter granted. In September 2013, the court ordered defendants' cases severed, and defendant proceeded to trial alone.
¶ 11 Defendant's jury trial spanned four days in January 2014. Due to the extensive nature of the proceedings, we will summarize only the evidence necessary to the disposition of this appeal.
¶ 13 Baehr testified, in May 2012, he was a member of the Tunnel Rats motorcycle club. On May 20, 2012, he attended a meeting at the Tunnel Rats' clubhouse. Among those in attendance were Cowman and his wife, Elizabeth. Both Baehr and Cowman were wearing leather vests depicting the Tunnel Rats emblem. After the meeting, at approximately 2 p.m., Baehr, Cowman, and Elizabeth decided to ride their motorcycles to Baehr's house. Baehr rode alone, while Elizabeth rode on the back of Cowman's motorcycle. Baehr admitted his recollection of the time they left the meeting was not always consistent, but watching a surveillance video refreshed his memory that he left the meeting around 2 p.m.¶ 14 En route to Baehr's house, the group rode past Kelly's Restaurant on Broadway Street, where a motorcycle show was ongoing. They then turned from Broadway onto 12th Street. While stopped at a stoplight at 12th and Hampshire Streets, Baehr testified he heard motorcycles approaching. He then saw 8 to 14 motorcycles approaching from behind. At that point, four motorcyclists, whom he recognized as members of the Midwest Percenters motorcycle club, pulled around Baehr's and Cowman's motorcycles. According to Baehr, Jackson pulled in front of Cowman, while defendant parked behind Cowman. Liggett stopped in front of Baehr, and Teel pulled in behind Baehr. Baehr said he recognized all four individuals due to his prior association with the Midwest Percenters from August 2008 through November 2010, at which time he was voted out of the group.
¶ 15 Baehr testified Jackson demanded he and Cowman remove their vests, saying, "This isn't a fucking game, boys." Teel then said, "Give them the vests or I'll blow your fucking heads off." Baehr could not see whether Teel had anything in his hands at the time. Cowman and Baehr subsequently handed their vests to Jackson. Throughout the exchange, defendant said nothing. However, Baehr recalled defendant getting off his motorcycle and standing next to it during the exchange. After receiving the vests, the Midwest Percenters rode away together. Baehr did not see where Jackson placed the vests before riding away. The entire confrontation lasted approximately 30 seconds.
¶ 16 Baehr and Cowman immediately returned to the clubhouse, where the police were called. Baehr also realized his cellular phone and house keys had been inside the vest he handed over to Jackson. Later that day, Baehr participated in a showup where he identified all four codefendants as those who participated in the robbery.
¶ 18 Like Baehr, Cowman testified when he and Baehr stopped at a stoplight on 12th and Hampshire, four motorcyclists wearing Midwest Percenters vests stopped around them. In all, he noticed eight to nine motorcycles nearby.
¶ 19 Cowman testified Jackson stopped in front of him and he identified defendant in open court as the person who stopped behind him. Liggett stopped in front of Baehr, and Teel was behind Baehr, wielding a snub-nosed revolver. He thought another Midwest Percenter had been positioned between Jackson and Liggett, and he acknowledged he previously stated defendant was located behind Baehr. According to Cowman, Jackson demanded their vests, saying, Teel added, "Give 'em up or I'll blow your fucking head off." Baehr and Cowman subsequently handed their vests to Jackson. The Midwest Percenters then rode away together. According to Cowman, defendant did not say or do anything during the encounter.
¶ 20 Cowman testified, at a showup conducted later that day, he identified Liggett, Teel, and defendant as those responsible for taking his vest. However, in a prior proceeding he testified he had been unable to identify Jackson and defendant at that showup.
¶ 22 Elizabeth testified she noticed the motorcycles approaching when Cowman's back tensed at the stoplight at 12th and Hampshire. She ducked her head as four motorcycles encircled them. Elizabeth identified Jackson as the person who demanded the vests, as she recognized him from a prior meeting. She could not identify the other individuals; however, she noted the person standing behind Baehr, later identified to be Teel, held a shiny object that appeared to be a gun. After Jackson and the others took the vests and rode away, she, Cowman, and Baehr returned to the clubhouse. Because she was distraught, a friend took her home.
¶ 24 Liggett testified he was a member of the Midwest Percenters in May 2012. On May 20, 2012, he was at Kelly's for a motorcycle show when he saw either Jackson or defendant signal for the Midwest Percenters to gather and follow. The group exchanged no verbal communication. Liggett then joined several others, including defendant, as they rode after two members of the Tunnel Rats motorcycle club. The Midwest Percenters, with Liggett in the lead, followed the Tunnel Rats and stopped around them at the corner of 12th and Broadway. Jackson pulled to the front left side of the Tunnel Rats, and Liggett pulled to the front right. Defendant then stopped behind Liggett, while Teel stopped behind both Cowman and Baehr. The remainder of the Midwest Percenters stopped behind the group.
¶ 25 Jackson demanded Baehr and Cowman hand over their motorcycle vests, saying, "We can do this the easy way or the hard way." Liggett then overheard Teel make a statement, of which he only understood part, including, "do it now," and the word, "head." Baehr and Cowman subsequently handed over their vests. Liggett recalled defendant...
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