No. 06-12551 Appeal from the Circuit Court of Cook County. Honorable John J. Scotillo, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hall
PRESIDING JUSTICE HALL delivered the judgment of the court, with opinion.
Justices Lampkin and Rochford concurred in the judgment and opinion.
Following a bench trial, the defendant, Samuel Span, was found guilty of attempted armed robbery and aggravated battery. The trial court denied the defendant's motion for a new trial and imposed concurrent prison sentences of 25 years on the attempted armed robbery conviction and 5 years on the aggravated battery conviction. After the court denied his motion for reconsideration of his sentences, the defendant filed this appeal.
The following issues are raised on appeal: (1) whether the identification evidence was sufficient to prove beyond a reasonable doubt that the defendant was the assailant seen in the surveillance video; (2) whether the defendant was denied his right to self-representation; (3) whether the trial court erred in admitting the Lays potato chip bag into evidence; (4) whether the defendant's 25-year sentence for attempted armed robbery violated the Illinois Constitution's proportionate penalties clause; (5) whether the case should be remanded for a hearing pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984); (6) whether the defendant's conviction for aggravated battery must be vacated; and (7) whether certain fees and fines should be vacated.
The defendant was charged by indictment with one count of attempted murder, two counts of attempted armed robbery, two counts of robbery and four counts of aggravated battery. The following is a summary of the pertinent trial evidence.
Through an interpreter, Valmik Gandhi testified that, on April 19, 2006, he worked as a cashier during the 10 p.m. to 8 a.m. shift at the 7-Eleven store located at 957 Summit Avenue in Elgin. At approximately 11:55 p.m. on that date, he was working alone when a man entered the 7-Eleven. The man told Mr. Gandhi that he wanted liquor. Mr. Gandhi walked over to the liquor area and stood with his back to the man. Mr. Gandhi then felt a blow to the back of his head, which caused him to fall to the floor. When he tried to get up, he was struck on the face. While Mr. Gandhi was uncertain of what was used to strike him, he testified that it could have been the man's hand. Despite the second blow, he was able to reach up and push the emergency button under the counter. After an unsuccessful attempt to open the cash register, the assailant struck Mr. Gandhi again and left the store. Mr. Gandhi did not see the assailant take anything. He was unable to provide a description of the assailant to the police.
Mr. Gandhi explained that there were two store surveillance cameras working on April 19, 2006; one camera showed the entrance to the 7-Eleven, and the other showed the counter area.
Prior to trial, Mr. Gandhi viewed the surveillance video. He testified that he recognized himself on the video and that the video recording was a true and accurate showing of the events in the 7-Eleven on April 19, 2006. The surveillance video was admitted into evidence and viewed by the trial court. In the video, the assailant was seen leaning over in front of the counter. Mr. Gandhi confirmed that the potato chip rack was located in front of the counter.
Mr. Gandhi testified further that he was treated at the scene by paramedics and then taken to Sherman Hospital, where he remained for 10 days. He was then transferred to Alexian Brothers Hospital, where he remained for 1 1/2 months.
Elgin police officer Darren Monforti, an evidence technician, testified that at 2 a.m. on April 20, 2006, he arrived at the 7-Eleven to collect evidence. Several police officers were already at the scene when he arrived, including another evidence technician, Officer Ken Herman. Upon entering the 7-Eleven, Officer Monforti observed footprints leading from the store entrance to behind the counter where the cash register was located, a footprint on the glass front door, and blood on the floor and the counter. He also noticed a potato chip bag on the floor behind the counter. Several detectives were viewing the surveillance video. After watching the video, Officer Monforti determined that the potato chip bag had evidentiary value.
Officer Monforti also participated in the May 5, 2006, execution of a search warrant for the premises at 320 North Liberty in Elgin. The search located a pair of size 12, white Nike Air gym shoes.
Officer Monforti identified several photographs, two of which depicted the potato chip bag. In both photographs, a yellow Lays potato chip bag can be seen on top of a box located on the low shelf behind the counter. According to the officer, the photographs truly and accurately depicted the scene at the 7-Eleven as he viewed it on April 20, 2006. Officer Monforti identified envelopes and letters addressed to the defendant at the 320 North Liberty address.
On cross-examination, Officer Monforti was questioned as follows:
"Q. And it's your testimony that at some point after you arrived, you noticed laying [sic] on the floor a Lay's [sic] potato chip bag, correct?
A. No. I was advised about it.
Q. Okay. Who advised you of this?
A. I don't remember who advised me, but it was learned through watching the video that the potato chip bag was dropped.
Q. The potato chip bag itself was laying [sic] on the floor at the time?
Officer Monforti explained that Officer Herman took the photographs of the potato chip bag. Officer Montfori was not present when the potato chip bag was collected as evidence.
On redirect examination, Officer Monforti testified that the other officers pointed out the potato chip bag to him. They informed him that the bag had been found in that exact location and had not been handled prior to his arrival.
Sergeant Daniel O'Shea testified that he participated in the investigation of the April 19, 2006, incident at the 7-Eleven. While at the 7-Eleven, the sergeant and other officers watched the store surveillance video. While viewing the surveillance video, Sergeant O'Shea believed he recognized the assailant to be the defendant, whom he knew from prior police contacts. The sergeant made an in-court identification of the defendant as the assailant on the surveillance video.
Sergeant O'Shea described his observations from the surveillance video that aided in the investigation of this case. The assailant stood in front of a potato chip vending display. He picked up what appeared to be a yellow and white bag of potato chips and then proceeded to take what appeared to be a pipe wrench from his right front pocket. It appeared that the potato chip bag was dropped as the assailant ran behind the counter to where the clerk (Mr. Gandhi) was standing.
Sergeant O'Shea testified further that a potato chip bag was found in the location of the store where it appeared from the surveillance video to have been thrown by the assailant. The potato chip bag was photographed and collected as evidence. Fingerprints were lifted from the potato chip bag and sent to the State Police lab for analysis, along with a copy of the defendant's fingerprints that were already on file. Based on the report from the lab, Sergeant O'Shea obtained a warrant for the defendant's arrest. The defendant's fingerprints from his arrest in the present case were also sent to the lab for comparison.
On cross-examination, Sergeant O'Shea testified that, after viewing the surveillance video, Detective St. John and he located the potato chip bag where, from the video, it appeared to have been dropped. The sergeant instructed Officer Herman to photograph and collect the potato chip bag as evidence.
The parties stipulated that, if called as a witness, Patrick Powers, a specialist in fingerprint and footwear identification, would testify that he compared two latent prints on the Lays potato chip bag and the earlier set of defendant's fingerprints. He determined that one of the latent prints on the potato chip bag belonged to the defendant. He would further testify that a comparison between the two latent prints and the defendant's fingerprints taken after his arrest in this case revealed that both latent prints on the potato chip bag belonged to the defendant. Finally, Mr. Powers would testify that the footwear impressions taken from the 7-Eleven displayed a similar "outsole" pattern, size and design as the Nike Air shoes taken from the defendant's residence. However, he was unable to make a positive identification or elimination of shoe print evidence. After the admission of the State's exhibits into evidence, the State rested.
The defendant moved for a directed finding. The trial court granted the motion as to the attempted murder charge but denied it as to the other charges. After the defendant informed the court that he did not wish to testify, the defense rested its case.
The trial court found the defendant guilty of attempted armed robbery and aggravated battery. In explaining its ruling, the court noted that it gave little weight to the footprint evidence, citing the lack of evidence as to the size of the shoe recovered and the size of the footprint from the 7-Eleven. As to the other charges, the court noted Officer O'Shea's recognition of the defendant on the surveillance video, the officers' testimony as to the discovery of the potato chip bag and that testing revealed the presence of the defendant's fingerprints on the potato chip bag.
The court rejected the defendant's contention that the assailant had nothing in his hand when he beat Mr. Gandhi. The court was uncertain as to the actual object with which the assailant struck Mr. Gandhi. The video showed clearly that it was a bludgeon of some kind and not a fist.
The court found that Sergeant O'Shea's testimony and the surveillance video together established that the defendant was the assailant.
The defendant's motion for a new trial was denied. Based on his previous felony convictions, the defendant was eligible for extended-term sentencing. The trial court imposed a 25-year sentence on the attempted armed robbery conviction and a 5-year sentence on the aggravated battery conviction, the sentences to run currently. Following the denial of his motion to reconsider sentence, the defendant filed a timely notice of appeal.
I. Sufficiency of the Identification Evidence
The defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he was the assailant seen in the surveillance video. He maintains that the police officers' testimony exaggerated what the video showed.
The fact that the surveillance video shown at trial is available for this court to view raises a question as to the proper standard of review. The defendant reasons that less deference should be given to the trial court's findings because this court is in the same position to review the surveillance video as the trial court. See People v. Rivera, 409 Ill. App. 3d 122, 139 (2011) (where the evidence does not involve credibility determinations or observations of demeanor, the deference afforded the trier of fact is logically less).
Our supreme court has held that where the evidence before the trial court consists solely of documentary evidence, a reviewing court is not bound by the trial court's findings and may review the evidence de novo. Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453, 905 N.E.2d 747 (2009). Where, as here, live testimony had a role in resolving a disputed issue of fact, the rule in Addison Insurance Co. does not apply. People v. Valle, 405 Ill. App. 3d 46, 58, 939 N.E.2d 10 (2010). Therefore, the proper standard of review is the well-settled one applicable to the issue of whether the evidence was sufficient for a finding of guilty beyond a reasonable doubt.
"When a court is faced with a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Moore, 375 Ill. App. 3d 234, 238, 873 N.E.2d 381 (2007). We apply this standard regardless of whether the evidence is direct or circumstantial. Moore, 375 Ill. App. 3d at 238. "The reviewing court will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt." Moore, 375 Ill. App. 3d at 238.
The defendant argues that the surveillance video failed to establish that the assailant left his fingerprints on the potato chip bag. After viewing the surveillance video, we disagree with the defendant.
As seen on the surveillance video, the assailant stopped in front of a display, which Mr. Gandhi testified was the potato chip display. The assailant then grabbed something in his righthand. While the defendant concedes that the assailant looked down as though he were holding something in his hand, he argues that all that could be seen was a light-colored blur near the assailant's right hand. The object did appear to be yellow, the same color as the Lays potato chip bag. The assailant then ran around the counter. While the video did not show the assailant discarding the potato chip bag, according to the testimony, the potato chip bag was found in the area behind the counter.
The defendant points out that the surveillance video showed the area behind the counter, but no potato chip bag was seen in that area. The defendant also points out that both Sergeant O'Shea and Officer Monforti testified that the potato chip bag was on the floor behind the counter, not on the shelf as seen in the photographs. The defendant surmises that, between the time of the offense and the time the potato chip bag was collected for evidence, an unknown person moved the potato chip bag from another location in the 7-Eleven to the low shelf on the wall behind the counter.
According to Sergeant O'Shea, he located the potato chip bag where it appeared on the surveillance video to have been discarded by the assailant. He then instructed Officer Herman to photograph and collect the potato chip bag as evidence. Officer Herman was not called to testify as to the location of the potato chip bag when he was asked to photograph it. In the absence of Officer Herman's testimony, it is ...