State v. Owens, No. 1-01-4272 (IL 1/20/2005), No. 1-01-4272.

CourtIllinois Supreme Court
Writing for the CourtReid
PartiesTHE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE OWENS, Defendant-Appellant.
Decision Date20 January 2005
Docket NumberNo. 1-01-4272.

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THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TYRONE OWENS, Defendant-Appellant.
No. 1-01-4272.
Appellate Court of Illinois, First District, Fourth Division.
January 20, 2005.

Appeal from the Circuit Court of Cook County, Dennis J. Porter, Judge Presiding.

PRESIDING JUSTICE REID, delivered the opinion of the court:


Defendant, Tyrone Owens was charged by indictment with aggravated robbery (720 ILCS 5/18-5 (West 2000)) and the aggravated personation of a police officer (720 ILCS 5/32-5.2 (West 2000)). Following a jury trial during which the defendant did not testify, he was found guilty of robbery (720 ILCS 5//18-1(a) (West 2000)) and the aggravated personation of a police officer. The trial court sentenced Owens to concurrent sentences of 16 years for the robbery and 3 years for the aggravated personation of a police officer. This is the defendant's direct appeal. For the reasons that follow, we reverse the defendant's conviction and remand for a new trial.

BACKGROUND

Glenn Foster, a resident of Suffolk County, New York, was waiting with his girlfriend, Dawn Kleinhenz, for a bus during a layover at the Greyhound bus station between 4:15 and 4:30 p.m. on August 24, 2000. Foster previously had been convicted in New York of a misdemeanor for possession of a controlled substance. Prioto the trial, the State made a motion in limine that

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the court bar any reference to that conviction. The trial court granted the motion over the objection of the defendant.

Foster was the sole occurrence witness to testify on behalf of the prosecution. He testified essentially as follows. While Foster and Kleinhenz waited for their bus, they were approached by Owens. According to Foster, Owens asked him to provide change for two $100 bills. Owens told him he could not use the large bills to buy food for himself and his family. Foster agreed but needed to get $10 from Kleinhenz. Once Foster had the requested amount of money, Owens told him it was a bad idea to make the exchange in clear view of everyone at the bus station. Owens suggested finding a more secluded locale. Owens and Foster left the station and walked away from the building. Owens made conversation while the two men walked to a deserted area. Foster testified that, once they reached their destination, Owens turned on him and demanded his money. Foster claimed he was scared because of Owens' size. When he hesitated, Owens reached for his waistband underneath his shirt. Foster testified that, thinking Owens was reaching for a gun, he handed Owens the money. According to Foster, Owens then grabbed him and told him "you are under arrest. I am a police officer." Owens then used a cellular telephone to pretend to be contacting his "partner." Owens and Foster eventually met up with the "partner." According to Foster, Owens then demanded an additional $300. Foster told him he would have to get the money from Kleinhenz. Owens left Foster standing where he was after telling him "Let me call my sergeant." When Foster made it back to the Greyhound station, some of the employees were pointing toward a police squad car. In the backseat, Foster saw Owens in custody.

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Foster spoke with police, explaining that he had just been robbed. He told the police how much money had been taken, identifying the denominations of the bills taken. Both Foster and Kleinhenz went to the police station, where they spoke with Detective Pietryla, the detective who recovered Foster's money. Detective Pietryla testified that, at the police station, Owens was asked to remove his shirt. When he did so, a wad of money dropped from inside one of the shirt sleeves. Detective Pietryla also testified that Owens was read his Miranda rights by gang crimes Specialist Pinkowitz. Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 627-28 (1966).

Marc Miller, a supervisor in the Cook County public defender's office, testified for the defense. Miller spoke with Owens' counsel regarding Owen's case. Miller learned that Foster was from New York. Miller was going to visit New York and he agreed that he would contact Foster. Miller also testified that Foster told him the defendant had identified himself as a police officer before any money was exchanged. Foster also told Miller that Owens had a knife in his hand.

Chicago police officer Daniel Ortman also testified for the defense. He arrested Owens and also spoke to Foster. Officer Ortman testified that he did not recover a knife from the defendant. In his report, Officer Ortman noted that Foster said that Owens passed the money to the other offender. On cross-examination, Officer Ortman clarified that Foster had told him he did not know what happened to the money.

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Finally, Cook County public defender's office investigator Clements testified that he investigated the Greyhound bus station and took measurements. The area of the alleged robbery was approximately 28 feet from the bus station.

At the conclusion of the defendant's case in chief, Owens unsuccessfully moved for a directed verdict. Owens then made a motion in limine for closing arguments, arguing that the State should not make statements that the two complaining witnesses were good-hearted people and they were people who were vulnerable. Owens also sought to stop the State from making general statements about people such as Owens making it dangerous for Good Samaritans. The trial court denied the motion. The State argued in closing that Owens applied even more force by grabbing Foster. The State also argued that Owens took Foster around the block because "that's where the Defendant likes to do his business, away from prying eyes."

Owens argued in closing that the distance they traveled was perfect in order for Foster to make an exchange in a secluded area. Instead of Foster handing Owens the money outside by the wall, the two men walked 30 feet north then 200 more feet before crossing another street.

In rebuttal, the State drew objections from the defense when it commented that Foster was "a nice guy" with a good heart and that Owens changed Foster's life forever. Also, the State argued that the jury should let the defendant know it is not going to tolerate the defendant taking the victim's goodwill, good nature, generosity and kindness. The objection to that argument was overruled. However, the State also asked whether Foster would help someone now. The trial court sustained an objection to that statement. The State also made arguments against the defense attorneys personally. The State argued that when the facts are against the defense

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attorneys' story, they argue the law, and when the law is against them, they argue the facts. The trial court overruled objection to that line of argument. When the trial court overruled the objection, the State continued that, when the facts and the law are against the defense attorneys, they argue about whatever they can. The State exhorted the jurors not to allow the defense to distract them from the real issues.

The jury then found Owens guilty of robbery and the aggravated personation of a police officer. Owens made a motion for new trial that was denied. Owens then made a motion in which he told the trial court that he wanted to take the stand and testify but was talked out of it by his trial counsel. Owens claimed he did not raise the issue during the trial because things in the trial happened so fast. Trial counsel told the trial court he did not remember Owens telling him that he wanted to testify until after the jury returned a verdict. There was a discussion before trial regarding Owens' right to testify. According to trial counsel, Owens went back and forth but did not want to testify at the time the trial started. The trial court treated Owens' motion as one for counsel other than the public defender. The trial court denied the motion because it believed the complaints were based on trial strategies and that the representation was above average. The trial court also ruled that the complaint about not being able to testify was raised too late. The trial court then gave Owens time to secure another lawyer.

Owens filed a supplemental motion for a new trial. He alleged that, prior to trial, he was unable to locate witness Jimmie Stanton but learned after trial that he was in jail. Stanton told the public defender that he was present with Owens. Stanton allegedly heard Owens discussing plans to attempt to receive money for drugs from people at the bus station. Stanton claimed to have

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seen Owens exchanging money for drugs with Foster. Owens argued that he would not have traveled so far from the bus station to get change for $100 bills. He also argued that Stanton's testimony would add credibility to Owens' own version of events.

The State responded that Owens could have provided the State with more than a nickname for Stanton. The trial court ruled there was nothing to show that the witness could not have been discovered with due diligence. The motion was denied.

At the sentencing hearing, Owens argued he did not impersonate a police officer. All he did, according to him, was sell fake drugs to Foster. The trial court found that, because of his criminal record, Owens was eligible to be sentenced as a Class X felon pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2000)). The trial court then sentenced Owens to concurrent terms of 16 years in jail for robbery and 3 years for the aggravated false personation of a police officer. Owens was given credit for 404 days of time served in custody.

ANALYSIS
Impeachment By Prior Conviction

Owens argues on appeal that the trial court improperly granted the State's motion in limine to bar evidence of the victim's misdemeanor conviction in his home state of New York. One of the victim's convictions was for possession of a controlled substance. The trial court granted the motion...

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