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People v. Allen

December 10, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK S. ALLEN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 00CF141 Honorable Steven H. Nardulli, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

In February 2000, the State charged defendant, Mark S. Allen, with aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2000)) and aggravated kidnaping (720 ILCS 5/10-2(a)(5) (West 2000)). After a July 2000 trial, the jury found defendant guilty of both charges. At a joint hearing in September 2001, the trial court denied defendant's posttrial motion and sentenced him as a habitual criminal under section 33B-1 of the Criminal Code of 1961 (Code) (720 ILCS 5/33B-1 (West 2000)) on the aggravated kidnaping conviction to life in prison without the possibility of parole.

Defendant appeals, arguing (1) he was denied a fair trial because the State improperly used other-crimes evidence to show propensity to commit crimes, (2) the prosecutor made improper statements in his closing argument, and (3) his enhanced sentence based on his habitual criminal status is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

I. BACKGROUND

The victim in this case, Kristi L., a 14-year-old Lanphier High School student, gave the following testimony as to the events that occurred on January 18, 2000. School ended at 3:12 p.m., and Kristi talked with a friend for about 15 to 20 minutes after school. On cross-examination, she testified she then spent an additional 5 to 10 minutes trying to get a ride home with a friend. After talking with the friend, she left the school and began walking home. As she walked, she noticed a purple truck in the basketball-hoops parking lot.

The truck eventually left the lot and pulled up alongside her. A man inside the truck asked if she knew of a street, and she replied no. The man then asked if she needed a ride home. Kristi said no and kept walking. The truck then pulled into a driveway and appeared to be leaving.

As Kristi continued to walk, she heard the truck stop behind her and then someone asked her to come here. She again said no and kept walking. Then the man came up behind her, put a knife to her throat, and asked her if she wanted this. The knife was about five to six inches long. She said no, and the man told her to get into the truck. He put his arm around her with the knife to her throat and walked her to his truck. The man put her in the passenger side of the truck and then got in the driver's side. She asked him not to hurt her, and he told her not to worry because he would not hurt her.

The man then drove around the area for about 15 to 20 minutes without saying a word. He eventually asked her where she lived, and she replied 17th Street. He then went to a wrong portion of 17th Street, and when she informed him her home was near Fairview Park, he took her directly to 17th Street and Griffith Street in Springfield, Illinois, which was near her home. He slowed down the truck, and when she heard the door unlock, she jumped out and ran home.

Her sister, Lindsey Lanham, was at home when she arrived. Kristi called her mother, Linda Campbell, at work and told her what happened. Kristi's stepfather, Jody Campbell, arrived home, and upon hearing what happened, called the police.

Kristi went to the police station several times after the January 18, 2000, incident. On one occasion, she looked at several mug shot books but found no photograph of the man who had assaulted her. Defendant's photograph was not among the mug shots in the books. On February 4, 2000, Detective Stephen Pellegrini presented Kristi with a photographic lineup with six men. Kristi picked out the picture of defendant but stated she was unsure and would like to see him in a lineup. On February 8, 2000, Kristi again went to the police station to view a lineup. She identified defendant in the lineup as the man in the truck. The next day, she identified defendant's truck. At trial, Kristi identified defendant as the man who forced her into his truck.

The State charged defendant as stated. On April 21, 2000, defendant filed a motion in limine, seeking to prohibit introduction of the nature of the aggravated criminal sexual assault conviction (People v. Allen, No. 90-CF-627 (Cir. Ct. Sangamon Co.)) for which he was on an electronic monitoring device on January 18, 2000.

The trial court held a hearing on defendant's motion in limine at which voir dire of Victoria (Vicki) T., the victim of the 1990 crime, was allowed. Vicki testified that on September 8, 1990, she was employed at Scampi's, which was located at Second Street and North Grand Avenue in Springfield, Illinois. At the time, Vicki was 19 years old. She got off work at 3 p.m. and began walking to her boyfriend's home at 2335 North Fourth Street. As she was walking in a parking lot, she noticed a maroon and silver Chevy Caprice Classic slowed down behind her. A man stopped the car alongside her and stepped out of it. The man was carrying a knife about six to eight inches in length. The man put the knife to her throat and told her to get into the car. The man drove the car, holding Vicki close to him with the knife to her throat. While driving, the man told her was not going to hurt her, just rob her. Vicki noticed what "appeared to be a plastic silver pistol" on the passenger side floor. After about five minutes of driving, they went to a wooded area. The man made her take off her clothes, and then he sexually assaulted her. After he assaulted her, he first told her she could just leave but then told her to get back in the car. He then drove around the woods until she was lost. Vicki identified defendant as the man who assaulted her.

After comparing Vicki's testimony with Kristi's January 18, 2000, statement to the police, the trial court found the evidence of the prior crime admissible except for the sexual assault portion of the crime. The court noted the testimony went to modus operandi, and it was applying a less-stringent degree-of-identity standard between the two crimes because the evidence went to state of mind and not identity. At trial after the State's evidence, the trial court outside the presence of the jury noted it had reevaluated its ruling on the motion, applied the more stringent standard, and found the evidence still admissible.

At the July 2000 trial, the State first called Lindsey. Lindsey testified that on January 18, 2000, she was talking on the phone when her sister came in crying at about 4:25 p.m. Kristi told her to get off the phone and lock all the doors. Lindsey did as requested, and Kristi called their mother. Lindsey and Kristi's stepfather arrived home shortly thereafter.

Linda next testified that in January 2000, she was at work when a co-worker told her that her daughter was on the phone crying and something was wrong. The call was at approximately 4:25 p.m. Linda had a difficult time understanding Kristi because of the crying but understood someone had picked Kristi up after school at knifepoint and put her in a truck. Linda left worked immediately and arrived home 10 to 15 minutes later. Kristi told her mother again someone had put her in a truck at knifepoint on her way home from school. Kristi stated the truck had a Christmas tree in the back. The police then arrived and asked Kristi questions about the incident. Linda testified Kristi gave the police a description of the man, including the fact he was wearing a brown coat.

Jody then testified he generally worked 8:30 a.m. to 4:30 p.m. When he arrived home on January 18, 2000, at his normal time, he began unloading his truck, and Kristi came to the door crying hysterically and told him to come in because she had something to tell him. Jody went in the house, and Kristi told him a man had forced her in a truck at knifepoint on the way home. Jody told her to calm down, sit on the couch, and try to remember everything she could. Jody then called the police. Jody then asked Kristi what she remembered. She said the truck was purple and the last two letters of the license plate were "SU." Kristi described the man as in his fifties and short. Jody testified the police arrived about 45 minutes after his phone call.

Springfield police officer April Smiddy next testified that on January 18, 2000, at a little before 5 p.m., she received a call regarding a kidnaping. She responded to the call and ascertained the victim was Kristi. She then discussed with Kristi what had happened. Kristi described how she was forced into a truck at knifepoint on her way home from school. Kristi described the knife as a pocketknife. Kristi also stated she had been driven around by the man for 25 to 30 minutes and that the offense occurred between 3:30 p.m. and 4:15 p.m. Kristi described the man as in his midfifties with medium-length gray hair, approximately five feet five inches, and medium build. The man also had glasses with a sunglasses clip on them. She described the truck as an unusual purple color; with a stick shift, bucket seats, an air freshener with an Indian head on it hanging from the rearview mirror, and a Christmas tree in the back; and the last letters of the license plate were "SU."

Matthew Lukow testified he had seen defendant drive a purple Ford Ranger on several occasions. On January 15, 2000, Lukow had seen defendant's truck parked in front of his home with pine branches sticking up about two feet from the truck bed.

Detective Pellegrini testified he was assigned to investigate the kidnaping case. On January 21, 2000, he interviewed Kristi and had her examine mug shot books. Kristi did not identify anyone in the books. On February 1, 2000, Detective Pellegrini went to defendant's place of employment and noticed a pickup meeting the description given by Kristi. On February 4, 2000, he conducted a photographic lineup of six men. After looking at the pictures for several minutes, Kristi selected defendant but requested to see him in a physical lineup. On February 8, 2000, Detective Pellegrini conducted a physical lineup. Kristi looked at all the individuals and immediately identified defendant as the man who kidnaped her at knifepoint.

Defendant's truck was confiscated. The truck's bed contained pine needles. The truck's license plate was "8175SU." Kristi identified the truck.

Vicki then gave testimony similar to that the hearing on the motion except the sexual assault was not mentioned. She identified defendant as the man who forced her into the car.

Defendant first presented the testimony of Marvin Knapp, defendant's supervisor at Owens and Miner. Knapp explained the company's time clock. Knapp testified the payroll sheet indicated that on January 18, 2000, defendant clocked in at 7:17 a.m. and clocked out at 3:49 p.m. After 4 p.m., he saw Randy Frederick and Charles "Tom" Stewart talking in the parking lot but did not see defendant.

Charles Dick, Jr., a worker at Owens and Miner, testified he worked from 7:30 a.m. to 4 p.m. on January 18, 2000. On that day, defendant was training him. Dick did not recall seeing defendant leave.

Stewart testified that on January 18, 2000, he talked with defendant and Frederick in the parking lot at Owens and Miner from 3:50 p.m. to 4 p.m. Defendant was in his truck during the conversation. Stewart stated defendant had clocked out at 3:49 p.m., he followed defendant out, and then went back in at 4 p.m. to clock out. As he was leaving, he saw defendant heading west on Sangamon Avenue. Stewart further testified defendant did not have a Christmas tree in the back of his truck. He also testified defendant was wearing jeans and a flannel shirt with a liner.

Frederick gave similar testimony that defendant clocked out at 3:49 p.m. while he and Tom clocked out at 4 p.m. He stated the three had started their vehicles and then walked back to the door where they talked until 4 p.m. Frederick stated the last time he saw defendant on January 18, 2000, was when defendant was getting on Interstate 55 off Sangamon Avenue. According to Frederick, he and Tom had tried to get defendant to go to a bar after work, but defendant had declined, stating he had to be home by 5 p.m. because his stepdaughter had school. Frederick also testified defendant ...


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