Appeal from the Circuit Court of Cook County. No. 04 CR 15330 DD Honorable Carol A. Kipperman, Judge Presiding.
The opinion of the court was delivered by: Justice Howse
JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Joseph Gordon and McBride concurred in the judgment, and opinion.
¶ 1 Defendant Robert Jones was convicted of two counts of armed robbery following a bench trial and was sentenced to two concurrent 45-year prison terms; 30 years for armed robbery plus an additional 15-year firearm enhancement. On appeal, defendant contends that: (1) the trial court improperly denied his motion to suppress identification testimony because the pretrial identification procedures were suggestive and violated due process and (2) the trial court failed to properly evaluate defendant's pro se posttrial claims of ineffective assistance of counsel, as required under People v. Krankel, 102 Ill. 2d 181 (1984). Additionally, in his reply brief, defendant contends that his 15-year firearm enhancement violates the proportionate penalties clause of the Illinois Constitution. For the reasons that follow, we affirm defendant's convictions and vacate his sentences.
¶ 3 Defendant was charged with two counts of armed robbery after two eyewitnesses separately identified him in a photo array and one of the witnesses identified him in a lineup as the gunman involved in the armed robbery of a nail salon located in Hillside, Illinois. Defendant filed a motion to suppress the identifications prior to trial, contending that they were obtained through suggestive police procedures.
¶ 4 At the hearing on his motion to suppress, defendant testified that he was arrested on May 24, 2004, and placed in two lineups the following day. During the first lineup, defendant was number two. He stated that police told the lineup participants to individually approach the viewing window and turn around before returning to the line. According to defendant, when it was his turn, a detective called out his name, smiled, laughed, then told defendant to approach the window and turn around two times. Defendant stated he was the only participant asked to turn around more than once. Defendant further testified that during the second lineup, he was number four. During that lineup, although the police did not call out his name, he was again told to approach the window and turn around twice. Defendant stated that during both lineups, he was the last person to join the other participants. Defendant also testified that prior to the first lineup, he was told he had a phone call, which he thought was from one of his relatives. When defendant took the phone, however, it was not one of his relatives. Defendant testified that he thought "maybe they got a victim or somebody" on the phone in order to hear his voice before the lineup and that the police "[fell] out laughing" when he picked up the phone.
¶ 5 Hillside police detective Carlo Viscioni was called briefly as a witness by the defense. He testified that on April 29, 2004, he separately showed a five-person photo array to victims Valeria Peeples and Kemia Green. Detective Viscioni first showed the photos individually and then as a group. He further testified that he was involved in physical lineups which included defendant on May 25, 2004. The witnesses viewed the lineups separately and they identified defendant. Viscioni testified that defendant was not treated any differently than the other lineup participants.
¶ 6 On cross-examination, Viscioni testified that the Bellwood police department composed the physical lineups. He did not remember who was in the room with the lineup participants, but he was standing behind the glass with another detective and the witnesses. He did not hear anyone say defendant's name during the lineups or laugh at defendant. Viscioni further stated that he separately showed the photo array to Peeples and Green on April 29, 2004, and they were not allowed to view the backs of the photos, which contained identification information.
¶ 7 On redirect, Detective Viscioni explained that defendant's picture was included in the photo array because he had received information from a co-defendant that implicated defendant in the armed robbery.
¶ 8 After hearing argument from defendant and the State, the trial court found that Detective Viscioni was more credible than defendant and that there was no improper police conduct in conducting the lineups. Regarding defendant's argument that the lineups were suggestive merely because he was wearing a red shirt, the court noted that in the first lineup, everyone was approximately the same height, one person was slightly darker, which made him stand out, and that number one was wearing a green shirt, which also stood out. In the second lineup, the court noted that number two was taller than everyone else, that everyone appeared to be approximately the same age and the same race. The court concluded that there was nothing so different about defendant that would lead the witnesses to pick defendant from the group. Defendant's motion to suppress was denied, and the matter proceeded to trial.
¶ 9 At trial, Detective Viscioni testified that at approximately 6:45 p.m. on April 23, 2004, he and his partner responded to an armed robbery call at a nail salon in Hillside, Illinois. He spoke with witnesses on the scene and later at the police station, including Valeria Peeples, Kemia Green, Har Pham, Kim Pham and a juvenile, Alesha Washington. At the salon, Viscioni sat down with the victims, obtained suspect information and completed a composite photo of the offender. The victims identified the gunman as an African-American male having short hair, and in his mid-20s. After subsequently speaking with a suspect in another robbery at a Chicago police station, Viscioni began to search for defendant in connection with the salon robbery. He obtained arrest photos of defendant and placed them in a photo array to be viewed by witnesses and victims. Viscioni was subsequently in contact with defendant at the Bellwood police station on May 25, 2004. On cross-examination, Viscioni stated that the composite photo was based on descriptions from Peeples and Green.
¶ 10 Kemia Green testified that she and Peeples stopped at the nail salon on April 23, 2004, and were waiting for service when two African-American men entered the salon. At the time, Green was sitting with her feet in a pedicure bowl, facing the door. The gunman was closest to the door, but he was the one doing most of the talking. The gunman ordered everyone to lie down on the floor and everyone complied. Green was able to see the gunman's face when he entered the salon and after she lay on the floor. The men then told them to remove their jewelry, and give them their money and anything that they had. Green indicated that she tilted her head to look at the gunman's face every time he spoke before turning back toward the floor. According to Green, the gunman pointed the gun at everyone in the salon, and she identified defendant in court as the gunman. Green gave her necklace, ring, cellular phone and cash to the second man. The second man told Green and Peeples to roll over onto their backs and Green was able to again see defendant's face clearly as he stood near the door. Green testified that the entire incident took approximately five minutes. After the men left, the salon owners called the police. Green spoke with police and gave a general description of the gunman. She was subsequently called to the Bellwood police station to view a photo array, which she identified in court. She ...