People v. Velez
| Citation | 2012 IL App (1st) 101325,359 Ill.Dec. 703,967 N.E.2d 433 |
| Decision Date | 16 April 2012 |
| Docket Number | No. 1–10–1325.,1–10–1325. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Samuel VELEZ, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Sarah Curry, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Mary L. Boland, Tasha-Marie Kelly, Assistant State's Attorneys, of counsel), for the People.
[359 Ill.Dec. 708]¶ 1 After a jury trial, defendant Samuel Velez was convicted of child abduction and sentenced to two years' incarceration. On appeal, defendant contends: (1) he was denied his due process rights due to a permissive presumption contained in a jury instruction given to the jury; (2) the child abduction statute under which defendant was convicted is unconstitutionally vague as applied to defendant; (3) the trial court erred in denying his motion for a bill of particulars; (4) the trial court erred in precluding defense counsel from cross-examining a police officer regarding what he found when searching defendant's van; (5) the trial court erred in finding that defendant's offense of child abduction was sexually motivated where that inference was not supported by the underlying facts of the offense; and (6) he was denied his due process rights where, because there were inadequate procedural safeguards during his hearing on sexual motivation, the trial court arbitrarily found the offense to be sexually motivated. For the following reasons, we affirm.
¶ 3 Defendant was charged via indictment with one count of child abduction. Prior to trial, defendant filed a motion for a bill of particulars, requesting that the State define the “exact statement(s) or action(s)” which form the “other than a lawful purpose.” The State filed a response in which it stated that it would “rely on the statements and actions of the defendant when he confronted [J.H.] on February 20, 2008 at approximately 3:15 P.M. in the area of 9500 S. Oak Park Avenue, Oak Lawn, Illinois as summarized in the Oak Lawn Police Department reports that were previously tendered to defense counsel.” The court denied the motion.
¶ 4 The following evidence was adduced at trial. On February 20, 2008, 14–year–old J.H. was an eighth-grade student at Simmons Middle School located on 95th Street in Oak Lawn, Illinois. When school ended that day at 3 p.m., J.H. walked down 95th Street to meet her mother. J.H. was wearing a hooded winter coat and had a school bag on her shoulder.
¶ 5 J.H. normally met her mother near the Car Max on 95th Street after school. That day, however, J.H. arrived at Car Max and saw that her mother was not there. As was prearranged for occasions when her mother could not get to their meeting place on time, J.H. began walking down 95th Street, westbound to Oak Park Avenue. Per the plan, she would continue heading westward until she would meet up with her mother.
¶ 6 As J.H. walked down 95th Street, a man in a white van slowed down, looked at her, smiled, and beeped his horn. J.H. testified at trial that the man did a “double take.” J.H. tried to ignore him, put her head down and kept walking. J.H. identified defendant as this man in court.
¶ 7 J.H. continued walking, and eventually turned right onto Oak Park Avenue. When she turned, she noticed the same white van parked on Oak Park Avenue with the passenger side window rolled down and the engine still running. J.H. put the hood on her coat up and kept walking, trying to ignore the man even though her path took her right by the passenger window. As she walked past the van, the man said, “Hey baby girl, how you doing?” The man was sitting in the driver's seat, leaning toward the open window, and motioning for her to approach the van.
¶ 8 J.H. felt scared and began walking faster in an attempt to get away from defendant. Defendant asked her if she needed a ride home. J.H. continued walking quickly. Defendant began driving slowly alongside J.H. and asked her if she had just gotten out of school. J.H. did not respond. Defendant continued driving alongside J.H. and again asked her if she needed a ride home. At that point, J.H. saw her mother down the street and told defendant, “No, my mom's right there.” J.H. ran to her mother's car and defendant drove away.
¶ 9 Meanwhile, Kathleen H., J.H.'s mother, had driven to Oak Park Avenue to look for J.H. As she sat in her car, she saw J.H. walking toward her. As Kathleen H. waited, she saw a white van pull around the corner, park on the side of the road, and roll down the passenger side window. Kathleen H. then saw J.H. turn the corner and pull her hood up. She thought something did not feel right because she could see J.H. “tensing up” near the van. As she watched, she saw defendant lean over and talk to J.H., and saw J.H. walk faster in her attempt to escape defendant. Defendant kept pace with J.H. in his van.
¶ 10 J.H. reached Kathleen's car and told her mother what had happened. Kathleen called the police and began following defendant's van. She provided the police with a description of the van and the license plate number. The police instructed her to stop following the van and to meet them in a nearby parking lot. At the parking lot, Kathleen and J.H. spoke with various officers, including Chicago police officer Brian Williams. J.H. told Officer Williams that the man who had been following her had a goatee.
¶ 11 After speaking with Kathleen and J.H., Officer Williams and his field training officer Thomas Culhane returned to the Oak Lawn police station to continue their investigation. They had the license plate number as well as information that the van had the word “Integra” written on the side. They contacted Integra Healthcare Systems, a medical equipment delivery service. Officer Williams spoke with Barbara Anderson, the director of operations, and informed her of the situation.
¶ 12 Anderson contacted her driver supervisor, Michael Volarevic, and asked him to look up the vehicle plate number to see which driver was assigned to that van. Volarevic did so and saw that it was assigned to defendant. He then called defendant on his cell phone and was unable to reach him. About 20 minutes later, defendant called Volarevic. Defendant was scheduled to be at 119th Street and Halsted, but he informed Volarevic that he was in Oak Lawn having lunch. Volarevic instructed defendant to go to the Oak Lawn police station, explaining that the police had gotten a complaint. He asked defendant what had happened. Volarevic testified that defendant then told him he did not know what he was talking about. He explained he had just eaten lunch, jumped in his van, and Volarevic also noted that, when he saw defendant the morning of February 20, 2008, defendant had a “very short clean-cut goatee.”
¶ 13 On cross-examination, Volarevic denied having spoken to police in February 2008. He testified that he first talked with the police a year and a half after the incident.
¶ 14 Anderson informed the police that defendant was the driver of the van in question. Around 6 p.m., defendant arrived at the police station, and Officer Williams noticed that he looked as though he had recently shaved with a dry razor. He did not have a goatee. After being informed of his Miranda rights, defendant agreed to talk with the police.
¶ 15 Defendant told the officers that he had been in the area of 95th and Natoma at 3 p.m. that day placing a to-go order at the Lucky Burrito restaurant. Defendant said he then proceeded to the 9400 block of Oak Park Avenue, parked his van, and ate his burrito. Defendant said he was parked there for about 10 minutes and, during that time, he did not speak to anybody or see anybody.
¶ 16 Officer Williams testified that he then went to the Lucky Burrito and verified that defendant had placed a to-go order that afternoon. The restaurant's video surveillance recording showed defendant entering the restaurant and placing his order, and also showed the van with “Integra” written on it parked outside.
¶ 17 Later that evening, J.H. and Kathleen identified defendant in a photo array at the police station. They also identified defendant's van in the parking lot as the one they saw earlier.
¶ 18 On February 21, J.H. and her parents returned to the police station to speak with Cook County Assistant State's Attorney (ASA) Nicholle Hempel. ASA Hempel testified at trial that J.H. seemed to be a “typical grammar age school student” who “looked young.” J.H. and Kathleen identified defendant in a lineup.
¶ 19 ASA Hempel then spoke with defendant, who again waived his Miranda rights. ASA Hempel testified that defendant gave her an account of the day similar to that he had previously given Officer Williams. Specifically, defendant said he was working on February 20, and that, around 3:00 p.m., he purchased a burrito at the Lucky Burrito and parked at 95th Street and Oak Park to eat in his van. Defendant claimed that he remained in his van and did not talk to or see anybody else. Defendant told ASA Hempel that he had worn a goatee in the past, but that he shaved it off two or three days prior.
¶ 20 The jury found defendant guilty of child abduction. Defendant filed a motion for a new trial, which was denied. The court sentenced defendant to two years' incarceration. It also found that the offense in this case was sexually motivated, explaining that it could think of situations where an individual attempts to lure a child into a vehicle where it might not be sexually motivated, such as where the individual holds the child for ransom....
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