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The People of the State of Illinois v. Richard Malone

September 28, 2012


Appeal from the Circuit Court of Cook County. No. 09 CR 13397 Honorable Mary Colleen Roberts, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Presiding Justice Hoffman and Justice Karnezis concurred in the judgment and opinion.


¶ 1 Following a bench trial, the trial court convicted defendant, Richard Malone, of armed robbery with a firearm and sentenced him to 21 years' imprisonment. Pursuant to section 18-2(b) of the Criminal Code of 1961 (Code), his sentence included a 15-year enhancement for using a firearm during the commission of the offense. 720 ILCS 5/18-2(b) (West 2008). On appeal, defendant contends: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) his conviction should be reduced to robbery because the State failed to prove that the weapon was a firearm; and (3) the 15-year enhancement violates the proportionate penalties clause. We affirm.

¶ 2 Defendant was charged with armed robbery for knowingly taking money from the person or presence of Betty Ross by the use of force or by threatening the imminent use of force while armed with a firearm. At trial, Ms. Ross testified she was working as a cashier at the Walgreens at 111th Street and Kedzie Avenue on March 6, 2008. At approximately 7:45 p.m. on that evening, she was working the front cash register when she saw defendant inside the store, near a display of St. Patrick's Day items. He was "wearing a hat pulled down over his face, and he was walking around the store with his hands in his pocket." The hat covered "[m]ostly his eyes."

¶ 3 Ms. Ross testified that defendant approached her cash register, at which point she was able to see his face from "the middle of his eyes all the way down." She thought he was standing too close to the cash register and so she asked if there was anything she could do for him. He responded that he was looking for a really cheap lighter. She directed him to a bowl of lighters and he reached in and took one out. Defendant paid her for the lighter, put it in his pocket, and walked to the door as if he was leaving. After another customer walked by and went out the door, defendant returned to the cash register and said he wanted another lighter. He took another lighter from the bowl, put it in his pocket, and handed Ms. Ross the money to pay. When the cash register drawer opened, defendant reached his hand in the drawer. Ms. Ross pushed his hand out of the drawer and closed the drawer with her hip.

¶ 4 Ms. Ross testified she started to walk away from the cash register toward the store office. She heard a noise "like something heavy hit the counter." She looked over her shoulder and saw defendant holding a gun in his right hand. Ms. Ross described the gun as black or black and silver. Defendant was resting the gun on the counter. He told her to open the cash register. When she did so, defendant reached in and took money out of the top of the drawer and then left the store. Ms. Ross learned that defendant had taken approximately $110.

¶ 5 Ms. Ross testified that later that evening, at 11:15 p.m., police officers showed her a group of photographs. Ms. Ross told the officers she did not recognize the offender as being any of the persons in the photographs. The officers told her that the photographs were old and that "the person could be changed." Ms. Ross told the officers that she had to actually "see the person" and that she was unable to identify him from the photographs. Then the officers asked her whether it was "possible" one of the persons in the photographs could be the offender. Ms. Ross told the officers "it could be" possible, and then she identified a photograph of a person whose chin and lips looked similar to the offender's. She signed and dated the photograph she identified. This individual was not defendant.

¶ 6 Ms. Ross testified that at approximately 5 p.m. on March 7, 2008, police again showed her a series of photographs. Ms. Ross signed her name to the photograph of a man who is not defendant and is not the individual she identified the previous evening. Ms. Ross testified:

"Q. And *** you signed that picture because the jaw line and the lips looked similar to the offender?

A. I was told it was an old picture and it was possible, so I said okay it could be possible if they were very old pictures.

Q. All right. Now, *** who told you this? They told you this again at 5 o'clock on March 7 [2008]?

A. They told me that each time they showed me pictures.

Q. Each time they said this is an old picture?

A. Old pictures, so I have to consider if the person has aged since the picture or something like that, so I tried. Though I did say both times that I didn't think it was the person they wanted me to say it was.

Q. You said both times you didn't think it was?

A. I don't know. I didn't believe it was, and they told me they were very old pictures, and they wanted me to check and let's see a lineup with the person in it and so I agreed to it.

Q. But you signed them anyway?

A. Yeah, I signed them.

Q. They didn't force you to sign them?

A. No, they didn't.

Q. They didn't threaten you to sign them? * * *

A. She said sign it right here, and I did.

Q. And had they pointed to a different picture would you have signed it? ***

A. I don't know."

¶ 7 Ms. Ross testified that on July 3, 2009, police showed her another group of photographs, and she identified a photograph of defendant as the "man who robbed" her. On July 10, 2009, Ms. Ross went to the police station and picked defendant out of a lineup.

¶ 8 Ms. Ross testified that on the evening of the armed robbery, March 6, 2008, the Walgreens had a store security surveillance system. Ms. Ross stated that, prior to testifying, she had viewed the footage depicted on the surveillance video and that it truly and accurately depicted the images of what happened during the armed robbery. The trial court viewed the video, a copy of which has been included in the record on appeal. The first video clip shows a man entering the Walgreens through the front door at 7:45 p.m. Ms. Ross testified that the man seen entering the front door was defendant. The video clip shows defendant wearing a jean jacket with white sleeves and a wide-brimmed camouflage hat.

¶ 9 The second video clip shows Ms. Ross standing behind the counter by the cash register at 7:47 p.m. Defendant approached, put money on the counter, and took a lighter that he placed in his left jacket pocket. Ms. Ross rang up the defendant's purchase and defendant moved to the right. Another customer passed defendant and left the store. Defendant took out some change, which he put on the counter to complete the purchase. Defendant put a glove on his right hand. The cash register drawer opened and Ms. Ross gave defendant his receipt. She closed the cash register drawer. Defendant took cash from his pockets to purchase another lighter. When Ms. Ross opened the cash register drawer again, the video shows defendant displaying an object that looks like a gun, which he held in his right hand. Defendant leaned over the counter and pointed the gun at Ms. Ross, who moved away to her right and closed the drawer. Ms. Ross then pushed buttons to try to open the cash register drawer again. When the drawer opened, defendant placed his left hand inside and grabbed money. Then he ran out of the store.

¶ 10 Ms. Ross was shown a group of still photographs from the video that she identified in court and that are included in the record on appeal. Ms. Ross stated that People's exhibit number 2 showed defendant entering the store. She identified People's exhibit number 3 as defendant almost all the way in the store, and People's exhibit number 4 as defendant standing inside the store, looking around. She identified People's exhibit number 5 as a photograph of defendant inside the store going past the front display. Ms. Ross identified People's exhibit number 6 as a photograph of defendant holding a gun in his hand and her pushing his hand out of the cash drawer. Ms. Ross took a pen and drew a circle around the gun that defendant held in his right hand.

¶ 11 Officer Michael Casey testified that on March 6, 2008, sometime after 4 p.m., he was off-duty and driving in the area of 114th Street and Spaulding Avenue. Officer Casey saw a man wearing a "blue denim varsity-type jacket with white fleece, and a camouflage *** hat" walking southbound on 114th Street. Officer Casey thought he knew the man, so he pulled over to say hello. However, when Office Casey pulled over, he realized that he had been mistaken about the person's identity and did not know him.

¶ 12 Officer Casey testified that the next day, March 7, 2008, he learned there had been a robbery at the Walgreens at 111th Street and Kedzie Avenue. Officer Casey reviewed the surveillance video footage of the robbery and noticed that the offender depicted in the video was the same person he saw walking at 114th Street and Spaulding Avenue the day before. Officer Casey knew it was the same person because he recognized his jacket, hat, his build, and the way he walked.

¶ 13 Detective William Donnelly testified he was assigned to investigate the armed robbery at the Walgreens. As part of the investigation, Detective Donnelly reviewed the surveillance video depicting the armed robbery. Then he and his partner, Detective Livingstone, canvassed the neighborhood around the Walgreens on March 7, 2008, and looked inside a dumpster in the alley of 11120 South Sawyer Avenue, which is across the street and southwest of the Walgreens. Inside the dumpster, Detective Donnelly saw the clothes which the offender had been wearing in the surveillance video. Detective Donnelly identified People's exhibit number 12 as a photograph of the clothes he found inside the dumpster. The photograph depicts a jean jacket with white sleeves and a camouflage fishing hat.

¶ 14 Detective Donnelly testified they called evidence technician Carol O'Donnell, who arrived at 11120 South Sawyer Avenue and retrieved the clothing from inside the dumpster. Ms. O'Donnell looked inside the jacket pockets and pulled out gloves, a black "doo-rag," and three lighters. Detective Donnelly requested that the items of clothing be processed at the State Police crime lab for DNA testing.

¶ 15 The parties stipulated that, if called to testify, Deborah Cott would testify she is a forensic scientist in the forensic biology DNA section of the Illinois State Police Forensic Sciences Command. She was assigned to the present case and received the pair of gloves, camouflage hat, black doo-rag, and jean jacket in a sealed condition. Ms. Cott used sterile swabs to collect possible cellular material from the cuff of each glove, the inside rim of the hat, two areas on the doo-rag and the collar area and inside cuffs of the jacket. Ms. Cott used proper protocol and procedures in collecting the swabs and preserved the swabs for future DNA analysis.

¶ 16 Lauren Schubert, a forensic chemist employed by the Illinois State Police Forensic Sciences Command, testified she performed DNA analysis on the swabs from the pair of gloves, hat, and doorag that had been collected by Deborah Cott. Ms. Schubert found a mixture of human DNA profiles on each of these items, indicating that each item contained DNA from two people. Ms. Schubert explained that the mixture was not in equal parts, but that there was a "major profile and a minor profile [on each item.] The major profile just means the majority of the DNA present came from one individual." Ms. Schubert testified that the major profile from the gloves, hat, and doo-rag indicated it came from a man; she was unable to determine whether the DNA from the minor profile came from a man or a woman.

¶ 17 Ms. Schubert also performed DNA analysis on the jacket and found "[t]he jacket was the mixture of at least two people. There's definitely a major contributor and then there are minor types present[;] however, [she] can't determine if it's only one additional contributor. There could possibly be more additional minor contributors." The major profile from the jacket came from a man.

¶ 18 Ms. Schubert testified she compared the major profile from the gloves, hat, doo-rag and jacket and she formed the opinion within a reasonable degree of scientific certainty that the major profile from those items originated from the same individual.

¶ 19 Ms. Schubert testified she entered the major profile into a DNA database and was notified when an association was made. The parties stipulated that, if called to testify, Amanda Soland, a forensic scientist in the forensic biology and DNA section of the Illinois State Police Forensic Science Center in Chicago, would testify that the major DNA profile identified in the gloves, hat, doo-rag, and jacket matched the DNA profile of defendant. Ms. Soland determined that defendant could be excluded from the minor DNA profile which was identified in the gloves, hat, and doo-rag.

¶ 20 Detective Donnelly testified he learned there was an association as a result of the DNA testing and the name he received was Richard Malone (defendant). Detective Donnelly then compiled a photo array, including a photograph of defendant, and showed the array to Ms. Ross on July 3, 2009. Ms Ross identified the photograph of defendant as the person who had robbed the Walgreens in March 2008. She showed no hesitation in identifying defendant.

ΒΆ 21 Detective Donnelly learned defendant was already in the Cook County department of corrections. Detective Donnelly obtained a writ to take defendant out of jail on July 10, 2009, and brought him to the police station to conduct a lineup. Detective Donnelly testified that when Ms. Ross viewed the lineup ...

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