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People v. Doss

March 31, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KERWIN D. DOSS, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 01--CF--207 Honorable Gerald Kinney, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Schmidt

[8]  Defendant Kerwin Doss was convicted of armed robbery (720 ILCS 5/ 18-2(a) (West 2000)) by a Will County jury. He appeals.

[9]  I. BACKGROUND

[10]   On February 2, 2001, defendant Kerwin Doss was charged in a criminal complaint with armed robbery. The complaint alleged that on December 27, 2000, defendant took a purse from Melani Vetter while he was armed with a black handgun. An amended complaint was filed on February 5, 2001, again alleging the defendant took a purse from Melani Vetter while he was armed with a black handgun.

[11]   On February 15, 2001, a 20-count indictment was filed. Two of the counts were directed against defendant. Count IV charged the defendant with armed robbery in that, on or about December 27, 2000, the defendant, while armed with a toy pistol, knowingly took a purse from the person of Melani Vetter by threatening the imminent use of force. Count XIV charged the defendant with aggravated robbery in that, on or about December 27, 2000, the defendant, while indicating by his actions to Melani Vetter that he had a firearm, knowingly took a purse from Vetter by threatening the imminent use of force. Defendant was arrested and taken into custody on March 2, 2001.

[12]   On July 2, 2001, the parties appeared in court and announced that they were ready for trial. Before proceeding to trial, however, the prosecutor made an oral motion to amend count IV of the indictment. The prosecutor requested that the word "toy" be stricken as being surplus language. Defense counsel objected. Defense counsel argued that, since the defense preparation had been based upon the allegation that the defendant used a toy gun, amending the indictment on the day of trial would prejudice the defendant dramatically. The prosecutor responded that he had discussed the issue with defense counsel on the previous Friday afternoon, at which time he told counsel that the toy gun in evidence was not the gun he would allege was used in the crime. The prosecutor said he intended to argue at trial that a black handgun, as identified by the victim, was used by the defendant.

[13]   The trial court denied the motion. The court found that it would be fundamentally unfair to allow the amendment requested by the State at such a late stage. The court then went on to grant the prosecutor's motion for a continuation, over a defense objection. The court noted that the State had a right to address its charging issues if it believed it was within the speedy trial term.

[14]   On July 12, 2001, a first superceding bill of indictment was filed, charging the defendant with one count of armed robbery and one count of aggravated robbery. Count I charged the defendant with armed robbery claiming the defendant, while armed with a pistol, knowingly took a purse from the victim by threatening the imminent use of force.

[15]   On September 13, 2001, the trial court, over a defense objection, allowed the State's motion to use as evidence a black Detroit Tigers starter jacket the defendant was wearing on the date he was arrested.

[16]   The defendant's cause proceeded to a jury trial on September 13, 2001. Prior to jury selection, the following exchange then took place:

[17]   "THE COURT: Now Mr. Doss, if you want to join your counsel at the counsel table, and you should remove his cuffs.

[18]   THE COURT OFFICER: Shackles off too or just the handcuffs?

[19]   THE COURT: No, just the cuffs. His legs are shackled but the tables prevent that from being viewed by the jury."

[20]   The victim testified at trial that on December 27, 2000, she arrived at home and parked in front of her house after trips to a grocery and convenience store and saw a man running in her direction. After shutting the car door, a man put a gun to her temple and told her to give him the money. She said the gun was a black handgun with a cylinder that felt like a small metal gun against her head. She also said that the man was wearing a black winter cap on his head and a black sports jacket with a team logo in silver writing on the front. When the man first put the gun to her head, she thought it was a joke and turned and looked at the man's face.

[21]   After the man saw that she had a purse, he told her to give it to him, which she did. Next, the man told her to give him her car keys. The man threw the keys in the middle of the street. The man then turned around and ran south on Nicholson Street.

[22]   The victim further testified that on the night of the incident, she met with Detective Bruce Larson. They made arrangements for her to go to the Joliet police department the next morning to do a composite sketch. She met with Detective Larson again the next morning. He asked her questions about the robber's face and made a drawing of the robber. She identified People's Exhibit No. 3 as the drawing. She testified that after the detective drew it, he asked her how close the likeness was to the person who robbed her, on a scale of "1 to 10." She said it was an "8."

[23]   The victim stated that she met with Detective Larson again about 31 days later. At that time, he showed her some photographic lineups. She was able to identify a person from one of the lineups. When she saw the picture in the lineup, she told Detective Larson that she "knew it was him." She identified the defendant in court as the person who robbed her. She also identified People's Exhibit No. 5 as the coat the defendant was wearing that night. She further noted that a streetlight to the south of where she parked on the night of the robbery was working on that date.

[24]   On cross-examination, the victim testified that it was dark out when the incident occurred because it happened close to 7 p.m., two days after Christmas. When she met with Detective Larson on the day after the robbery to do a sketch, he asked her questions about what the robber looked like. At that point, she was unsure what the man's eyebrows looked like. She stated that the man's hair, ears, and forehead were covered by a cap which was just above the eyebrows. She did not observe any facial hair.

[25]   She described the man's lips as they were depicted in the composite. She believed the man's lips were small, his face was round, and his nose was kind of pointed. She was confident the man was an African-American. She testified that the black-and-silver coat the ...


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