Appeal from the Circuit Court OF ILLINOIS, of Lake County. No. 07--CF--3124 Honorable Christopher R. Stride, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the opinion of the court: Defendant, Pedro Limon, was convicted after a jury trial of one count of robbery (enhanced) (720 ILCS 5/18--1(a) (West 2006)). The trial court denied defendant's subsequent motion for a new trial or for judgment notwithstanding the verdict and sentenced him to a term of 13 years in the Department of Corrections. Defendant now appeals from his conviction, contending that the trial court erred in granting the State's motion in limine and allowing the State to introduce evidence of defendant's possession of a gun at the time of his arrest. We reverse and remand.
Defendant and two others, Tobijohn Smith and Dwayne Terrell, were each charged with one count of robbery (enhanced) and two counts of aggravated battery (720 ILCS 5/12--4(b)(10) (West 2006)) arising out of an incident occurring on August 6, 2007, in which Janet Krueger, who was over 60 years old, was injured when her purse was stolen and she fell to the ground.*fn1 Defendant was arrested 11 days later after a foot chase by police. As defendant tripped and fell, a handgun fell from his pants. Defendant struggled with several police officers and received an injury to his eye. Defendant was subsequently charged with a felony weapons offense in a separate case that is not at issue in this appeal.
Before trial, the State moved in limine to allow evidence of the circumstances of defendant's arrest, "to explain the cause of defendant's injury, as well as to show his proximity to the location of the robbery of Ms. Krueger, and to explain why the defendant was a suspect in the robbery." The trial court granted the State's motion, allowing testimony about the gun and defendant's struggle with the police officers "as an explanation for why they used the force that they used."
Defendant argues that he was denied a fair trial by the admission of the evidence regarding his possession of the gun on the night that he was apprehended. Evidence is admissible if it (1) fairly tends to prove or disprove the offense charged; and (2) is relevant in that it tends to make the question of guilt more or less probable. People v. Wheeler, 226 Ill. 2d 92, 132 (2007). Evidence should be excluded if it is too remote in time or too speculative to shed light on a fact to be found. Wheeler, 226 Ill. 2d at 132. The admission of evidence is left to the discretion of the trial court, and this court will not disturb the trial court's decision on the admissibility of evidence unless it constitutes an abuse of discretion. People v. Scott, 401 Ill. App. 3d 585, 599 (2010). Such a ruling is an abuse of discretion only where it is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view of the trial court. Wheeler, 226 Ill. 2d at 133.
At trial, Janet Krueger testified that, as she exited her car in the alley behind her home at 10 p.m. on August 6, 2007, she saw two men standing near the back of her car. One man grabbed her purse off of her arm and ran away. Krueger was thrown off balance and fell to the ground, injuring her nose and her ribs. She had been unable to give the police a description of the men other than to say that they were two black men in their late teens or early twenties. She could not say that defendant was one of the men involved. Neither Krueger, her husband, Terrell, nor defendant's girlfriend Shatobie Smith (who was arrested but not charged in exchange for her testimony) testified to the use or existence of a weapon when Krueger's purse was stolen.
The State also presented the testimony of Sergeant Robert Beach and Detectives Michael Mandro and Mark Jackson of the Waukegan police department. Mandro testified that he was with Beach, Jackson, and another detective in an unmarked squad car on an armed robbery detail at about 12:30 a.m. on August 17, 2007, when they saw two men wearing dark clothing walking down the street. One of the men, whom Mandro subsequently identified as defendant, hid in some shadows when the squad car turned around. Defendant ran away when Mandro identified himself as a police officer. Mandro chased defendant and saw him "grab at his waist band area." At this point, the court interjected:
"I beg your pardon. The evidence you are going to hear ladies and gentleman [sic] is being offered for a limited purpose. The limited purpose is explaining the circumstances around Mr. Limon's arrest. You are to consider it for that purpose only."
Mandro then testified that defendant tripped and fell and that a handgun fell out of defendant's pants. Defendant struggled while Mandro and Jackson attempted to handcuff him; defendant was "face first on the ground" with "his hands clenched on his chest." Mandro continued to order defendant to place his hands behind his back, while defendant continued to "clench" his hands under his chest.
Mandro hit defendant in the face with his fist, and Jackson was able to handcuff defendant. Mandro testified that, per his training, he could use "[e]verything from verbal command up to deadly force" if he believed that an individual was armed. On August 17, he had no "item of police paraphenalia [sic]" to use on defendant.
Both Beach and Jackson testified to their observations during defendant's arrest. The court gave a similar limiting instruction during each officer's testimony. Jackson testified that he punched defendant in the ribcage twice while attempting to get defendant's hands out from under him. He had been taught that, if a deadly weapon were present, he could "respond by using deadly force." He did not have a baton, pepper spray, or a Taser with him that night; other than his gun, he had nothing that he could have used to take defendant into custody.
The State also introduced two statements given by defendant. In one statement, defendant implicated himself in the use of some stolen credit cards. In the other, defendant admitted stealing a purse from "an old lady."
Defendant did not testify and presented no defense. During its deliberations, the jury asked for defendant's booking photo. However, while the foundation for the photo had been laid during the State's case in chief, the photo was never admitted into evidence. The jury found defendant guilty of the one count of robbery (enhanced) and not guilty of the two counts of aggravated battery.
We conclude that the trial court abused its discretion in allowing evidence of defendant's possession of a gun. Defendant was arrested 11 days after Janet Krueger was injured and robbed. The charges in the case did not include any element of the possession or use of a weapon, and there was no evidence of the presence or use of a weapon during the incident. The probative value of the testimony regarding defendant's possession of a gun 11 days after the incident occurred simply did not outweigh the prejudice ...