Appeal from the Circuit Court of Lake County. No. 00-CF-2638 Honorable Donald H. Geiger, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
The State charged defendant, Colleen Ryan, via an information, with one count of enhanced retail theft (720 ILCS 5/16A-3(a)(West 2000)) and one count of retail theft (720 ILCS 5/16A-3(a)(West 2000)). The State subsequently nol-prossed the felony charge of enhanced retail theft and proceeded to trial on the misdemeanor count of retail theft. A jury found defendant guilty, and the trial court sentenced her to 180 days in jail. On appeal, defendant argues that (1) she is entitled to a dismissal or a new trial because the State failed to disclose that, when shown a photographic lineup, the State's witness initially identified someone other than defendant and (2) the trial court abused its discretion during sentencing by considering a statutory mitigating factor as an aggravating factor. For the following reasons, we affirm.
Defendant moved to suppress in-court and out-of-court identification evidence. During the hearing on the motion, the State informed the court that the original photographs used in the lineup were not available and that the police officer who conducted the lineup left the department and could not be located. All the State had was a poor-quality photocopy of the lineup. As a result, the State informed the trial court that it had "no objection to striking the photo lineup from any further use." Accordingly, the trial court ruled that the State could not introduce any evidence of the out-of-court identification.
During the trial, the State's only witness was John Mehus. At about 2:15 p.m. on August 16, 2000, Mehus was working as the manager of a Walgreen's store in Round Lake Beach. Business was relatively slow. Mehus testified that, while he was on the sales floor, he saw a woman carrying a shopping basket full of merchandise. About two or three minutes later, Mehus saw the woman in another part of the store and noticed that there were only two or three items in the basket. About one or two minutes later, Mehus saw the woman exit the store without paying for anything.
Mehus followed the woman out of the store. She no longer was carrying the basket but had a large purse. Mehus saw two cartons of cream cheese and a quart of milk at the top of the purse and recognized the items as goods sold in his store. Mehus called to the woman and told her that he would call the police unless she paid for the items. The woman began to follow Mehus back into the store. Mehus said that he had changed his mind and was going to call the police anyway. The woman became very upset, went to her car, and drove away.
Mehus described the car as a "blue SUV-type Blazer, Explorer." He wrote down the license plate number and called the police. During the trial, Mehus could not remember the license plate number. Mehus testified that he did not know the woman and had never seen her before the incident. In court, Mehus identified defendant as the offender.
During cross-examination, Mehus testified that each time he observed the woman in the store, he looked at her for only a few seconds. The woman walked very fast as she exited the store. Immediately after the woman drove away, Mehus went back inside and called the police, who arrived 30 to 60 minutes later. Curiously, over the State's objection, the defense elicited testimony from Mehus that on August 18, 2000, two police officers showed him a photographic lineup. The display included six photographs. Mehus looked at them for about three seconds and picked out one photo, which was not of defendant.
Defense counsel Michael Conway immediately requested a side-bar conference. He told the court that the State never informed him that Mehus initially identified someone else. Conway claimed that he was prejudiced because, had he known, he could have investigated the other person to find out whether she could have been the offender. Assistant State's Attorney Bolling Haxall replied that Mehus had just informed him that morning about the initial identification. Haxall believed that, because the pretrial identification was not going to be an issue during the trial, it was not necessary to inform Conway.
During continued cross-examination, Mehus testified that, after he picked out the first photo, one of the officers asked him if he was sure about the identification. Mehus took more time and selected defendant's photo. Neither of the officers suggested to Mehus who they believed the suspect to be. Mehus testified that, about two months before the trial, he was in court in connection with this cause and saw defendant. He also saw defendant in court the day before the trial.
After the State rested, the court held another conference. The State argued that defendant was not prejudiced because she had the opportunity to cross-examine Mehus about the photo lineup. The State, however, was amenable to a short continuance. Defendant doubted whether a short continuance would give her enough time to investigate. The court stated:
"I am sitting here, my mind is not coming up with a resolution. I hate to bring in a jury and then say, okay, now take a four-hour lunch, come back.
Well, I don't like it, but I am going to--okay. Here's what we need to do to get this in the proper perspective. There was a problem with discovery. The ball is in your court. Tell me exactly what you're doing, what you want. Do you have a motion?"
Conway replied, "I would make a motion to dismiss based upon the fact that here I am in the middle of a trial learning of this information, and its something that I could have obviously investigated earlier, and we're obviously prejudiced." Conway asserted that the only remedy was a dismissal.
The trial court denied defendant's motion but offered a continuance to obtain the photograph of the other person. Defendant moved for a directed verdict, and the trial court denied the motion. Defendant ...