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11/13/87 the People of the State of v. Aryules Bivens

November 13, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ARYULES BIVENS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

516 N.E.2d 738, 163 Ill. App. 3d 472, 114 Ill. Dec. 583 1987.IL.1678

Appeal from the Circuit Court of Cook County; the Hon. Robert J. Collins, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

On appeal from his murder and armed robbery convictions, after a jury trial, defendant, Aryules Bivens, contends: (1) the trial Judge erred in denying his motion to quash his arrest and suppress the evidence; (2) he was denied his constitutional right to effective assistance of counsel; (3) he was denied a fair trial because of improper prosecutorial comments during trial; (4) his natural-life imprisonment sentence for the murder was an abuse of the trial court's discretion; and (5) the 60-year consecutive, extended-term imprisonment sentence for the armed robbery was improper.

The trial evidence established the following. In the early morning of September 12, 1982, Kelvin Coleman, the 22-year-old hearing-impaired victim, was shot and killed in the presence of his mother, Ms. Clara Coleman, in front of his apartment door during the commission of an armed robbery.

On September 11, 1982, around 10 p.m. Kelvin Coleman left his apartment at 733 East Bowen in Chicago. Kelvin shared the apartment with his mother, Ms. Clara Coleman. When Kelvin left he was wearing a watch and his hearing aid. Kelvin was also carrying his wallet, which contained pictures of his nieces, a CTA bus card, a voter's registration card and his Illinois State identification card. Because of Kelvin's hearing impairment, his mother checked to be certain that he had his wallet with him before he left the apartment.

On September 12, 1982, around 1 or 1:30 a.m., Ms. Coleman awakened to loud noises. Ms. Coleman got out of bed and looked out the window, where she saw Robert Ingram, Phillip Nicks and Gerald Jones. Two of these men were engaged in a fight. Ms. Coleman watched the fight for about 15 minutes and then returned to bed, where she lay awake.

Around 4 a.m., Ms. Coleman heard a gunshot, some footsteps and a moaning sound. Ms. Coleman rushed to the front door, opened it, and saw her son Kelvin moving backwards with his hands waving in the air. Coming towards him with a black barreled gun was the defendant, Aryules Bivens. Kelvin fell, the defendant pointed the gun at Kelvin's chest and fired. Ms. Coleman exclaimed, "Why are you shooting my son?" and "What has he done to you?" The defendant stared at Ms. Coleman and then fled down the stairs. Ms. Coleman kneeled over her son. Ms. Coleman testified that at that time her son was not wearing his hearing aid or his watch.

Ms. Coleman testified that she had ample opportunity to view the defendant from a distance of three to four feet in a well-lighted hallway during the incident. Ms. Coleman also testified that she observed defendant's face when she opened her front door, when the defendant was approaching Kelvin, and when the defendant stared at her after shooting Kelvin. She stated that there were three lights on in the hallway and the lighting conditions were good.

Ms. Coleman described the defendant as wearing a greenish, short-sleeved shirt, jogging pants, a medium curly hairstyle, a slight mustache, and sideburns which went below his earlobe and were even with his upper lip.

Around 7:30 a.m., Ms. Coleman was taken to the 51st Street police station to view a lineup but she did not identify the offender. Later that evening, Ms. Coleman was shown photographs and she identified the defendant's picture as the offender. On January 5, 1983, Ms. Coleman identified the defendant from a lineup at the 51st Street police station. During trial the defendant was again identified by Ms. Coleman as the offender.

At trial, Detective Michael Pochordo testified that on September 12, 1982, he was assigned to follow up the murder investigation of Kelvin Coleman. Pochordo went to the county morgue and then to the victim's apartment. After leaving the victim's apartment, Pochordo went to the Nicks' apartment. The record reveals that the Nicks' apartment was on the floor beneath the apartment of Ms. Coleman and the deceased. The record also discloses that Ms. Coleman knew Phillip Nicks and had seen him earlier that night in front of the building engaged in a fight. Pochordo did not state the reasons he went to the Nicks' apartment. Pochordo did testify, however, that while in the Nicks' apartment he spoke with Phillip's brother, Johnny Nicks, and their mother. Pochordo left the Nicks' apartment but later returned and departed with Phillip Nicks. The record is silent as to why he did so. It appears that the Nicks brothers were then suspects in Kelvin's robbery-murder, although the record does not indicate why. Whether it was because Kelvin told his mother that the Nicks brothers were involved is not disclosed. Officer Pochordo testified that Phillip Nicks was not under arrest and that Nicks voluntarily accompanied him to the police station.

Detective Jean Romic, another investigating officer in the case, testified that on the evening of September 12, 1983, she was assigned the follow-up investigation of the Coleman murder. Among the photographs shown Ms. Coleman by Detective Romic, Ms. Coleman identified the defendant's picture as that of the offender. Romic then spoke with Phillip Nicks. Phillip Nicks directed the officers to a location one-half block from the murder scene. At this location, the following evidence was recovered: the victim's CTA special pass, voter's registration card and photographs of the victim's nieces. The victim's Illinois State identification card was discovered in a nearby dumpster. Romic testified that the crime laboratory and Detectives Regan and Glynn were then called.

Detective Regan testified that after being called to the scene of the recovered evidence, he and his partner left with Phillip Nicks. Phillip Nicks voluntarily directed the officers to a prairie located three to four blocks from the murder scene. At this location the murder weapon, a .38 caliber revolver, was recovered.

On September 13, 1982, Johnny Nicks voluntarily went to the Area One Violent Crimes office and in the presence of Assistant State's Attorney Rick Mottweiler gave a court-reported statement. A warrant was then issued for defendant's arrest.

On January 5, 1983, defendant was arrested for a traffic violation. He was transported to the Area One Violent Crimes office. Officer Pochordo testified that after giving defendant his Miranda warnings, the defendant stated he was with the Nicks brothers, Johnny Nicks and Phillip Nicks, on the night of the armed robbery and murder. The defendant stated that as he and the Nicks brothers were walking down the street, Phillip Nicks pointed to the victim and stated, "There is a boy you can rob." Johnny Nicks followed the victim home. Defendant and Phillip Nicks waited 5 to 10 minutes and then followed. As they approached the building defendant observed the victim and Johnny Nicks. The victim was against the wall and Johnny Nicks pressed the black barreled gun against the back of the victim's head. Defendant observed Johnny Nicks patting down the victim's pockets. As defendant stepped back to observe if there were any witnesses, he heard a shot. Defendant stated that Johnny Nicks ran down the stairs exclaiming, "I just shot a stud." Defendant took the gun from Johnny Nicks and reminded him of the hazards of leaving witnesses. Defendant returned the gun to Johnny Nicks. Johnny Nicks went back upstairs and the defendant stated he heard several shots and a scream. When Johnny Nicks returned, defendant took the gun and a CTA pass. Defendant later threw the gun in the grass and the CTA pass into the garbage.

Pochordo testified that defendant later gave the same statement in the presence of Assistant State's Attorney Dean Morask.

Assistant State's Attorney Dean Morask testified that he was present in the interview room when defendant was advised of his Miranda rights and indicated that he understood them. The defendant then repeated the statement he had previously made to Officer Pochordo. The statement was reduced to writing and signed by the defendant.

On behalf of the defense Margaret Bivens, defendant's sister, testified that on September 12, 1982, it was Johnny Nicks who wore a greenish T-shirt and not the defendant. Ms. Bivens testified that defendant was wearing a bluish-gray T-shirt. Ms. Bivens further testified that she never observed defendant with a mustache or sideburns.

Charlotte White, also defendant's sister, testified that on September 12, 1982, defendant was wearing a blue and gray sweat shirt with a T-shirt underneath it. Contrary to her sister, Ms. White testified that defendant had no mustache on that date; however, prior to that date defendant did wear a mustache. Ms. White further testified that prior to September 12, 1982, defendant's sideburns were smaller.

The jury found defendant guilty of murder and armed robbery.

On September 9, 1983, defendant's sentencing hearing was held. In aggravation, the State presented defendant's criminal background and the testimony of Ms. Annie Taylor and Officer Everett Johnson.

Defendant's criminal history dated back to January 21, 1980, when he was convicted of burglary and sentenced to two years' probation, with 10 days' imprisonment and a restitution payment of $375. On May 19, 1980, he was convicted for the commission of a robbery committed on March 17, 1980, and was sentenced to three years in the Illinois Department of Corrections, from which sentence he received his mandatory release on October 14, 1981.

Ms. Annie Taylor testified that on January 4, 1983, about 9 p.m., she was abducted and robbed at gunpoint by the defendant while returning home from work. Ms. Taylor observed defendant as she stepped out of her 1979 Ford Grenada car. The defendant pointed a gun at her, ordered her back into the car, entered the car himself, and sat in the driver's seat. There he took Ms. Taylor's purse, wallet, money, and her automobile identification papers. The defendant drove down an alley with Ms. Taylor in the car. Ms. Taylor jumped out of the car, ran home and called to report the robbery to the police. Later, during the early hours of the following morning, the police went to her home and took her to a police station on the south side of Chicago, where she identified the defendant in a lineup as the person who had robbed her.

Chicago police officer Everett Johnson testified at the sentencing hearing that he arrested the defendant, who was driving Ms. Taylor's automobile, after a high speed chase which culminated in the defendant's colliding with another car. In Ms. Taylor's car with the defendant were Ms. Taylor's purse, personal and automobile identification documents. Officer Johnson further testified that he seized a snubnose, nickel-plated toy gun, incapable of shooting, from the defendant's person.

The defendant made an impassioned plea in his own behalf at his sentencing hearing.

The defendant was sentenced to imprisonment for his natural life without parole on the murder guilty finding and to a consecutive extended 60-year imprisonment term for the armed robbery. I

Prior to trial, the defendant filed a motion to quash his arrest and suppress evidence. An evidentiary hearing was held and the trial court denied the motion. Defendant in his pro se brief before this court contends that the trial court erred in so ruling. He urges that his arresting officer lacked probable cause to arrest him. We disagree.

At the hearing of the defendant's suppression motion the defendant called Chicago police officer Everett Johnson as a witness. Johnson testified that during the early morning hours of January 5, 1983, he saw defendant driving a vehicle with a broken taillight. When Johnson attempted to curb defendant for this traffic violation, defendant suddenly accelerated the speed of his car and a high speed chase ensued which resulted in defendant's colliding into a parked car several blocks away. Johnson testified that he then stopped his vehicle, exited, and asked defendant to produce a driver's license, which defendant was unable to do. Officer Johnson then placed defendant under arrest.

It is our view that the evidence supports the finding that the stop of the defendant and his subsequent arrest were legal. When an officer has reason to believe an ordinance has been violated, a resulting stop is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Ramsey (1979), 77 Ill. App. 3d 294, 395 N.E.2d 973.

In the case at bar, Johnson, having observed defendant driving with a broken taillight, was justified in his belief that an ordinance was violated. Section 12-201(b) of the Motor Vehicle Code provided, "Every motor vehicle, trailer or semi-trailer shall also exhibit at least 2 lighted lamps, commonly known as tail lamps, which shall be mounted on the left rear and right rear of the vehicle so as to throw a red light . . .." (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 12-201(b).) Johnson testified that defendant's broken taillight was emitting a white light and not a red light in accordance with the statute. When Officer Johnson attempted to curb the defendant for the violation, defendant accelerated. A chase ensued. Defendant was speeding, which was another traffic violation. The chase resulted with defendant's colliding into a parked car. Furthermore, when defendant was asked to produce a driver's license, he was unable to do so, which too was yet another traffic violation. The car that the defendant was driving was the 1979 Ford Grenada, which the defendant had taken from Ms. Annie Taylor at gunpoint only a few hours previously.

We are of the opinion that Officer Johnson was presented with articulable facts which certainly justified him in chasing and arresting the defendant. The trial Judge therefore did not err in overruling the defendant's motion to quash his arrest and suppress the evidence. II

In his pro se brief, defendant further asserts that he was denied his constitutional right to the effective assistance of counsel.

We are of the opinion that defendant has failed to demonstrate that his counsel's performance and assistance were ineffective or incompetent.

To succeed on a sixth amendment claim of ineffective assistance of counsel, defendant must show that there is a "reasonable probability," which is a probability sufficient to undermine confidence in the outcome, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) An error by counsel, even if professionally unreasonable, does not warrant setting aside a judgment in a criminal proceeding if the error had no effect on the judgment. (Strickland v. Washington (1984), 466 U.S. 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In the instant case there is no "reasonable probability" that had defendant's counsel resorted to the trial tactics to which defendant now suggests his counsel should have resorted the proceeding would have been different.

The evidence established that defendant committed the robbery-murder in complicity with Phillip and Johnny Nicks. The evidence of the defendant's guilt was tremendously overwhelming. By reason thereof and based on the testimony of the eyewitness, the victim's mother, the testimony of the police officers and the assistant State's Attorney, the defendant's admission of his participation in the offenses and the evidence as a whole, we are firmly and unalterably convinced that the defendant's counsel staunchly advocated the defendant's cause and that he loyally and with unflagging fidelity represented the defendant, as he was required to do by the sixth amendment to the United States Constitution and article I, section 8, of the Illinois Constitution. Defendant's contention to the contrary does not merit further Discussion. III

Defendant contends that he was denied a fair trial due to unwarranted and improper prejudicial prosecutorial comments made during the trial. Prior to the sentencing hearing, the defendant orally moved for a new trial based on the prosecutor's alleged improper prejudicial comments. Further, defense counsel objected during trial to the prosecutor's alleged prejudicial comments. Therefore we find that the defendant properly preserved the issue for our review.

The comments made during opening statement were objected to by defense counsel and the objection was sustained by the trial court:

"[Assistant State's Attorney]: Ladies and gentlemen, you will soon hear the evidence in this case. It's very tragic, a very sad event. You will hear about the last moments in the life of Kelvin Coleman. Good young man in his early 20's.

[Defense Counsel]: Objection.

THE COURT: Mr. State's Attorney, I'll sustain ...


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