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Appeal from Circuit Court of Champaign County. No. 12CF611. Honorable Thomas J. Difanis, Judge Presiding.
On appeal from defendant's conviction for armed robbery and sentence to 30 years' imprisonment with credit for his presentence incarceration, the appellate court rejected defendant's contentions that a witness's testimony violating the silent witness theory constituted plain error, that the trial court's incorrect jury instructions resulted in plain error, that trial counsel was ineffective, and that defendant was not proved guilty of armed robbery, but the mandatory fines imposed by the circuit clerk were vacated and the cause was remanded to the trial court for the imposition of the fines, and the circuit clerk was directed to apply defendant's statutory credit against the creditable fines.
Michael J. Pelletier, Jacqueline L. Bullard, and Kelly M. Weston (argued), all of State Appellate Defender's Office, of Springfield, for appellant.
Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Allison Paige Brooks (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Turner concurred in the judgment and opinion.
[¶1] In December 2012, a jury found defendant, Marvino Mister, guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)). In January 2013, the trial court sentenced him to 30 years' imprisonment with credit for 276 days served. Defendant appeals, arguing (1) plain error occurred where a witness's testimony violated the silent witness theory; (2) plain error occurred where the trial court gave incorrect jury instructions; (3) trial counsel was ineffective; (4) the State failed to prove him guilty of armed robbery; and (5) fines imposed by the circuit clerk are void and he is entitled to $1,380 in presentence credit. We affirm in part, vacate in part, and remand with directions.
[¶2] I. BACKGROUND
[¶3] On April 18, 2012, the State charged defendant by information with armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)), a Class X felony. The information alleged on April 12, 2012, defendant took money from Sean Harrigan, a student at the University of Illinois in Champaign-Urbana, by threatening the imminent use of force while armed with a silver gun.
[¶4] A. The Evidence at Trial
[¶5] On December 4, 2012, defendant's jury trial commenced. At trial, Sean Harrigan testified on April 11, 2012, he and his two friends, Arman Agarwal and James Ramelli, drove in Harrigan's car to Par-A-Dice Hotel and Casino in Peoria, Illinois. They arrived around 7:30 or 8 p.m. Harrigan played craps the entire night and into the early morning hours of April 12, 2012. Agarwal and Ramelli also played craps, but after four or five hours they left to play poker. Harrigan ended up winning $23,000 and was paid in " two bricks" of $10,000, and the remaining $3,000 was placed in a white envelope. At 4:29 a.m., a security guard escorted Harrigan, Agarwal, and Ramelli to Harrigan's car, which was parked in the casino's parking lot. Harrigan saw nothing suspicious while playing craps or walking to his car.
[¶6] The trio left the casino, stopped at a nearby gas station, and purchased sodas for the ride home. Agarwal and Ramelli went inside the gas station while Harrigan remained in his car. Harrigan then drove onto Interstate 74 toward Champaign and did not make any stops along the way; he estimates it took 1 hour and 20 minutes to drive home. Harrigan did not notice anything suspicious at the gas station or during the ride home.
[¶7] Around 6 a.m., Harrigan drove into an underground parking garage at his apartment at 512 South Third Street in Champaign. He parked near the north end of the garage and Agarwal and Ramelli exited the passenger side of the vehicle. Harrigan retrieved his winnings from the glove compartment, opened the driver's side door, and prepared to exit the vehicle. He had one foot out of the vehicle when he noticed a black male quickly approaching. Harrigan put the majority of his winnings behind him and " sat on it" ; he had about $2,500 in a money clip, which was in his pants pocket. The man brandished a silver revolver with a " short barrel," pointed it at Harrigan, and demanded the money. He also pointed it at Agarwal and Ramelli, who were standing with their hands up next to the passenger side of the vehicle. Harrigan testified the man kept saying, " give me the bread," " I know you have money," and " if you don't give me the money, I'm going to start shooting." Harrigan gave the man his cell phone and money clip containing his driver's license, casino card, and $2,500, but the man said he knew there was more and threatened to
shoot. Harrigan testified a white or gray car pulled down the entrance ramp into the parking garage and the robber took off running toward the car. Harrigan assumed the robber and car were related because the robber seemed determined to get the money, but when the car showed up, the robber looked at it and then left, heading toward the car. Harrigan, Agarwal, and Ramelli ran upstairs to Harrigan's apartment and called the police.
[¶8] Harrigan described the offender to police as a 5-foot-10-inch, 180-pound black male in his early twenties. The man " had a dark sweatshirt, no hood, and dark jeans." His hair was short and braided into " little tips" on the side and back of his head. When asked about the man's facial hair, Harrigan said, " [i]t was short, pretty, pretty trim, you know, light mustache, went you know, scooped the whole chin up to the ear."
[¶9] Later in the afternoon, police detectives showed Harrigan a photographic array of six possible suspects. Harrigan told the detectives he was " 80 to 85 percent sure" the man in picture two, defendant, was the offender. However, he initialed next to instruction No. 9b, which states: " I do not recognize anyone from these photos as the suspect." Harrigan did not make an in-court identification of defendant.
[¶10] Harrigan stated, prior to testifying, he viewed footage depicted on the casino's surveillance video and it truly and accurately depicted the images of what happened at the casino. The State then presented a compact disc (CD), which contains five video clips, and played the first clip for the jury. The video is taken from a camera on top of the hotel's roof and overlooks the casino's parking lot. The recording is color, has no sound, and is time-stamped 4:29:35 a.m. The picture quality is fair. At 4:30 a.m., the camera pans toward the casino and zooms in on four individuals who are walking out of the casino toward the parking lot. Harrigan testified the individuals are himself, Ramelli, Agarwal, and a casino security guard. Approximately 10 seconds later, a white male wearing a blue jacket, blue jeans, white shoes, and dark baseball hat exits the casino. Seconds later, one of Harrigan's friends turns around and walks back toward the casino. The white male briefly walks out of the camera's range but reappears when the camera zooms out. Although the camera follows Harrigan's escort through the parking lot, the white male appears at the top right portion of the video and enters the driver's door of a silver four-door sedan. The video shows Harrigan, his friend, and the security guard approach Harrigan's vehicle. They stand next to the vehicle, appear to have a conversation, and after 25 seconds, the security guard walks back toward the casino. Approximately 16 seconds later, Harrigan's other friend left and walked toward the direction of the casino. Harrigan entered his vehicle and waited for his two friends, who returned a few minutes later. Harrigan's vehicle drove away at 4:33 a.m.
[¶11] The State introduced still photographs taken from various surveillance cameras located inside the casino. Harrigan testified the photographs fairly and accurately depict what he was wearing (a plaid shirt and blue jeans). One group contains seven pages of color photographs and shows Harrigan standing at the craps table. We note each page is divided into four quadrants showing a different area of the casino. The images are grainy and poor quality. The craps table is shown in the bottom right quadrant. A second group of 10 photographs shows a security guard escorting Harrigan, Agarwal, and Ramelli through the security turnstiles. The first four photographs show Harrigan's
security escort and the remaining six photographs depict a white male following 11 seconds behind Harrigan's escort.
[¶12] Arman Agarwal testified to a similar sequence of events as Harrigan. On April 11, 2012, Harrigan drove Agarwal and Ramelli to Par-A-Dice casino. Agarwal played craps at the same table as Harrigan and Ramelli but stood at the opposite end of the table. He did not talk to anyone while playing craps. After four hours, Agarwal and Ramelli left the craps table and went to the third floor to play poker. Agarwal returned to the craps table " once or twice" and was there when Harrigan won $23,000. When asked how the crowd was acting, Agarwal stated, " [e]veryone was kind of happy. It was a peppy environment." Agarwal and Ramelli accompanied Harrigan to the cashier and they left the casino together. Agarwal testified they stopped at a gas station and he got out of the car to " get some drinks." During the ride home, they stayed awake and " talked the entire way back" to Champaign. When asked if he was watching to see if anything suspicious was happening, Agarwal testified, " No. We were too caught up in the moment."
[¶13] Upon their return to Champaign, Harrigan parked in the garage at 512 South Third Street. Agarwal and Ramelli exited the car when a man walked up, pointed a gun at Harrigan's head, and said, " give me that bread." The man also pointed the gun at Agarwal and Ramelli, who were standing next to the passenger side of the car. Agarwal testified Harrigan gave the man some money, but the man replied, " I know there's more." At this time, however, Agarwal noticed a white or gray four-door sedan enter the parking garage. He testified the car " took a left, same way we did. It was hovering there. And [the man] looked back, he saw the car, and he kind of--I think he got spooked maybe." The man fled toward the garage entrance and Agarwal, Harrigan, and Ramelli ran upstairs and called the police. Agarwal described the man as 5 feet, 8 inches tall, African-American, with short braided hair, and wearing " a gray hoody and pants." He described the gun as a small revolver with a silver barrel.
[¶14] The State called James Simmons to the stand. Simmons testified he works as a surveillance shift supervisor for Boyd Gaming Corporation at Par-A-Dice Hotel and Casino. He has worked in that capacity for seven years and received specialized training for the position. His responsibilities include monitoring the casino and hotel, following money, " determin[ing] the play of the games," and watching " people trying to cheat the casino."
[¶15] Simmons testified he is familiar with the entire property comprising Par-A-Dice Hotel and Casino. The State introduced an aerial view of the property, which is comprised of three parking lots, two buildings, and a large boat docked on Peoria Lake. Blackjack Boulevard is the main road leading through the property. Simmons explained the hotel is located in a separate building from the casino and has its own parking lot. A second parking lot is for valet and the third parking lot is for the casino. The casino is located in the boat. To get to the boat, patrons must enter the pavilion. The pavilion has a lobby, several restaurants, security turnstiles, and two ramps leading to the boat. One ramp is for employees, the other for guests, and both ramps are located over water. Simmons testified a Shell gas station is located across the street from Par-A-Dice.
[¶16] Simmons' testimony consisted of providing foundation for the surveillance videos. He said the casino and hotel have over 450 cameras, which are located both inside and outside. The casino has two
digital systems and one analog system, which is video home system (VHS) tape. The surveillance room is always staffed and access is limited to the Illinois Gaming Board and Boyd Gaming surveillance employees. Simmons explained how the surveillance system operates, how recordings are preserved, and how they identify cameras that need to be repaired or replaced. The surveillance system allows Simmons to watch live feeds, use multiple cameras to track movement through the casino, watch and make copies of past recordings, and take digital video snapshots (still photographs). The surveillance system also has " quads that will record 4 shots on one tape or sequencers that record 16 cameras on one tape." Every month, a technician reviews the time stamps on each camera to ensure they are within 20 seconds of each other.
[¶17] On April 12, 2012, at 9:10 a.m., Simmons was advised a casino patron was robbed upon returning home to Champaign. Simmons reviewed the surveillance footage and observed a white male " walking out slowly behind [Harrigan's] group as they were escorted out to their vehicle." Simmons quickly identified John Williamson, the white male, as a possible suspect. When asked how he learned the white suspect's identity, Simmons explained patrons who appear to be 30 years and under are asked to produce valid government-issued identification. The surveillance system, located at the security turnstiles, takes still photographs of the individual, their government-issued identification, and records the date and time the pictures were taken.
[¶18] Simmons sent photographs of Williamson and his Illinois identification (ID) card to the Champaign police department. Shortly thereafter, Simmons was informed a black male carried out the robbery. In response, Simmons testified, " [w]e started looking at Williamson's activities in the casino and on the floor until we observed a black male who was *** with Williamson." Simmons identified the black male, Marvino Mister, as a possible suspect and forwarded pictures of him and his state ID card to Champaign police.
[¶19] The State introduced, without objection, color photographs of Williamson, Mister, and the ID cards they presented at the security turnstiles. The images are good quality. People's exhibit No. 16 contains two photographs, which are time-stamped " 04/11/2012 11:15:55 PM." The top photograph shows an Illinois ID card with the name " John K Williamson." The bottom photograph shows Williamson looking at the security camera. He is a white male, has buzzed hair, and is wearing a white T-shirt and navy blue jacket with a white star on his left shoulder and " YALE" printed across the chest. People's exhibit No. 17 contains two photographs, which are time-stamped " 4/12/2012 12:04:59 AM." The top photograph shows an Illinois ID card with the name " Marvino R Mister." The bottom photograph shows Mister looking at the security camera. He is a black male, has braided hair, light facial hair, and is wearing a black T-shirt and sweater.
[¶20] Simmons further testified he copied surveillance footage from the casino onto two digital video discs (DVDs). Footage from the hotel's surveillance system was copied onto a CD. He forwarded these recordings to the Champaign police department. Simmons testified there were no errors in the recording system, and he did not alter or delete any portions of the recordings. Although Simmons did not personally observe the events depicted in the surveillance recordings, he testified they fairly and accurately portray what happened from April 11, 2012, to April 12, 2012.
[¶21] The State introduced the DVDs and CD into evidence without objection and published them to the jury. The recordings contain 3 hours, 49 minutes of surveillance footage and cover a time period from 11:15 p.m., April 11, 2012, to 4:38 a.m., April 12, 2012. The video is captured from numerous cameras, both inside and outside the casino, and has an aspect ratio of 4:3, which is comparable to an old-format television. Each portion of video is imprinted with a time stamp, allowing the viewer to ascertain the exact time of events among multiple cameras. Some portions of video have two time stamps, showing the time of the events depicted on the video and the time Simmons viewed the recording. Surveillance video from inside the casino is in color, has good picture quality, and no sound. Some portions of video, however, are captured from " quads," or groups of four cameras, and the image quality is grainy and poor. Video of the casino parking lot is black and white, has no sound, and the picture quality is poor. Surveillance video from the hotel is in color, has no sound, and the picture quality is fair. The State also introduced 135 pages of still photographs, made from the surveillance videos, which were published to the jury without objection.
[¶22] During Simmons' testimony, the State played portions of the surveillance video for the jury and asked him to describe the layout of the casino and what he was trying to capture in each clip. For example, the following colloquy occurred:
" BY MS. CLARK: Mr. Simmons, I paused it at 12:00. When we're looking at this set of quads, which does not show the craps table, what are we looking at in the lower right-hand corner?
A. That is the main aisle camera for most of the second deck of the casino towards the front of the boat. Williamson has just started walking toward it to exit the vessel.
Q. Okay. And that's why you recorded this particular--
And when we're looking at this portion of video, which will appear again, what are we looking at here?
A. That's the entrance of the casino from the guest ramp at the very front of the boat.
Q. Okay. This long ramp or hallway, those are the same ramps that we saw on the overhead picture that would have been white?
[¶23] Additionally, although Simmons did not personally observe the events depicted on the surveillance video as they occurred, the State asked him to narrate portions of the video. For example, the following dialogue occurred:
" BY MS. CLARK: Okay. Now I've stopped it at 11:18. Where on this video is the person that you've identified as John Williamson at on this video?
A. He is on the--from our angle, the far side of the corner of the craps table.
Q. Where did you identify the victim as having played at that night?
A. The victim is at the left end of the table, partially blocked with a pillar that's on the screen right now. And that's him kind of leaning in past the pillar.
Q. Now from 11:18 you recorded this particular view until 11:58. During this time, did John Williamson play at this craps table?
Q. And does the victim play at this craps table?
* * *
Q. I'm now pausing at 12:07. Who can you identify in this portion ...