Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 10 CR 8011. Honorable Charles P. Burns, Judge, Presiding.
For PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, Cook County, Chicago Illinois, Of Alan J. Spellberg, Tasha-Marie Kelly, Paul J. Connery, Assistant State's Attorneys.
For DEFENDANT-APPELLANT: The Law Offices of Richard Dvorak, Oakbrook Terrace, Illinois, Of Richard Dvorak.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Liu concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Samuel Lewis was convicted of armed robbery
(720 ILCS 5/18-2) (West 2010)) and unlawful vehicular invasion (720 ILCS 5/12-11.1) (West 2010)) and was sentenced to concurrent terms of 35 years' and 9 years' imprisonment. On appeal, defendant argues that the trial court erred in denying his motion to suppress identification because his sixth amendment right to counsel had attached when he was arrested in Nevada on a Cook County arrest warrant and brought before a Nevada court for extradition proceedings. Defendant also argues that he received ineffective assistance of trial counsel when trial counsel: (1) failed to object to evidence of other crimes; (2) introduced a photograph of defendant from an unrelated arrest; (3) failed to object to the State's emphasis on defendant's refusal to participate in a lineup; and (4) made an analogy in closing argument that compared reasonable doubt to a football game. For the following reasons, we affirm the judgment of the circuit court.
[¶3] On May 3, 2010, the State charged defendant with armed robbery and unlawful vehicular invasion. The State alleged that on January 20, 2010, defendant, with the help of an armed accomplice, pulled Pamela Kendall-Rijos out of her vehicle, threw her to the ground, and stole her mink coat, diamond rings and earrings, watch, purse and cell phone. The retail value of those items was over $100,000.
[¶4] Prior to trial, defendant filed a motion to quash his arrest and suppress evidence. In the motion, defendant sought to have his arrest quashed and any evidence resulting from his arrest suppressed as " the charging document used to obtain the arrest warrant" was fatally flawed. Defendant also sought to have the victim's out-of-court identification of him stemming from the lineup suppressed.
[¶5] At the hearing on the motion, Chicago police detective Mark Leavitt testified that he investigated the armed robbery and unlawful vehicular invasion of Kendall-Rijos. Detective Leavitt testified that Kendall-Rijos viewed a lineup and a photo array on February 18, 2010, neither of which included the defendant, but the witness did not identify anyone. Defendant later became a person of interest because he was identified by a pawn shop manager as the person who pawned two of the items stolen from Kendall-Rijos. Thereafter, on February 26, 2010, defendant was included in a photo lineup and Kendall-Rijos made a tentative identification of defendant. Detective Leavitt testified that 20 to 25 minutes after Kendall-Rijos tentatively identified defendant, she called him at the police station and stated that she was now positive that defendant was the offender.
[¶6] After performing a background check on defendant, Detective Leavitt issued an investigative alert for defendant and contacted law enforcement in Ohio and Las Vegas. A criminal complaint was signed by Kendall-Rijos on March 3, 2010, and an arrest warrant for defendant was issued on March 15, 2010. On April 1, 2010, defendant was arrested in Las Vegas. On April 19, 2010, Detectives Leavitt and Marszalec arrived in Las Vegas and interviewed defendant in the Clark County jail. Defendant was advised of and waived his Miranda rights.
[¶7] On April 21, 2010, Leavitt and Marszalec arrived in Chicago with defendant and told him that he was going to be placed in a physical lineup. Defendant refused to cooperate and had to be physically escorted to the lineup room with his hands cuffed behind his back. Defendant was also handcuffed to the bench in the lineup room. The other individuals in the lineup put their hands behind their backs to appear consistent with defendant. At
first, defendant would not lift his head. Detective Marszalec testified that he engaged in conversation with all of the individuals in the lineup so that defendant would lift up his head, exposing his face to the two-way mirror. When defendant looked up, Detective Leavitt brought Kendall-Rijos in front of the two-way mirror, and she identified defendant. The evidence technician photographed the lineup after Kendall-Rijos identified defendant, but defendant put his head back down in the photograph. Charges against defendant were approved a few hours later.
[¶8] Detective Marszalec also testified at the hearing. He testified that defendant was uncooperative during the lineup and had to be escorted to the room in handcuffs and had to be handcuffed to the bench once inside the room. He engaged the lineup participants in conversation so that defendant would lift his face up so he could be seen through the two-way mirror. Detective Marszalec also testified that the warrant issued for defendant on March 15, 2010, appeared to be signed by Natosha Sherman.
[¶9] The trial court denied defendant's motion, finding that neither the photo array nor the lineup was unduly suggestive, and that the detectives properly addressed any chance of suggestiveness by having the other individuals in the lineup put their hands behind their backs, and by having defendant look up at the time Kendall-Rijos viewed the lineup. The trial court also found that defendant did not have a sixth amendment right to counsel during the lineup because no formal charges had been brought, and defendant had not yet made his initial appearance in court.
[¶11] At trial, Shawn Farley testified that in January 2010 he owned the buildings at 1343 North Wells Street, 1345 North Wells Street and 1352 North LaSalle Street. The parties stipulated that the buildings Farley owned at 1343 North Wells Street and 1352 North LaSalle Street were equipped with video surveillance cameras that reliably and properly recorded the north-south alley east of Wells and west of LaSalle, and that the cameras were linked to a system that had a date and time stamp that was accurate and functioning properly. The parties also stipulated that Farley would testify that People's exhibit No. 1 was a true and accurate DVD recording of the images caught by the security cameras in the alley on January 20, 2010, that were turned over to the Chicago police department. The video was played for the jury.
[¶12] Kendall-Rijos testified that she was pulling into her garage home at 1342 N. LaSalle on January 20, 2010, at 5:40 p.m., when she noticed " a green blur" in her rearview mirror. When she reached for her garage door remote inside of her car, she was suddenly pulled out of the car and thrown to the ground. Kendall-Rijos testified that there were two offenders; one who pulled her out of her car, and another with a gun. Kendall-Rijos identified defendant as the offender who pulled her out of her car. Kendall-Rijos testified that she saw a van being driven past her garage in the alley and that she screamed " at the top of her lungs." Both defendant and codefendant swore at her, repeatedly threatened to kill her, and took various items, including a mink coat worth $30,000, Tiffany earrings worth $20,000, a Cartier watch worth $30,000, three diamond rings worth $60,000, a cell phone worth $400, her keys, and the garage door remote. Defendant also ripped a silver necklace with her intitals " P.S.K" off of her neck but did not take it. Kendall-Rijos testified that defendant then pushed her to the ground, told her to crawl to the front of the garage
without making noise, and told her they were going to come back to kill her.
[¶13] When defendant and codefendant left, Kendall-Rijos ran into the house and yelled for her mother to call the police. When officers arrived, Kendall-Rijos described the offenders and the items that were taken from her. During her testimony, Kendall-Rijos viewed the previously published video, showing two men running out of her garage, one of the men carrying her mink coat, and getting into a Lexus sport utility vehicle (SUV). Kendall-Rijos testified that the Lexus SUV was the " green blur" in her rearview mirror, but the video did not display color. On February 18, 2010, Kendall-Rijos viewed a lineup and photo array, neither of which included defendant. Kendall-Rijos did not identify anyone. Eight days later, Kendall-Rijos identified defendant in a photo array of six individuals. On April 21, 2010, Kendall-Rijos identified defendant in a lineup with four other individuals. Kendall-Rijos testified that she was " 100 percent" sure that defendant was the offender and that she did not know that anyone in the lineup was handcuffed.
[¶14] Austin Novotney testified that on January 20, 2010, at 6 p.m., he was driving his white van through the alley where Kendall-Rijos' garage is located, and he noticed a " grayish champagne color" Lexus SUV making a three-point turn in his parking space and that he had to wait for the SUV to move. Novotney testified that the driver was a " masculine looking" African American male who was looking in the rear view mirror. Novotney testified that he parked and went inside his office, unaware of what happened to Kendall-Rijos.
[¶15] Randy Cohen testified that he and his brother Wayne Cohen own Royal Jewelry and Loans and Royal Pawn at 428 South Clark Street. Randy testified that he sold his good friend John Rijos, Kendall-Rijos' ex-husband, the diamond that was stolen from Kendall-Rijos. The diamond was unique because of a flaw and its color. Randy Cohen also testified that his store was equipped with video surveillance and that he assisted police in retrieving a video from January 26, 2010.
[¶16] Wayne Cohen, Randy's brother, testified that on January 26, 2010, defendant and an older male came into the store and showed him a diamond, which he recognized as Kendall-Rijos' diamond by its flaw and color, because he assisted the Rijos' in purchasing that diamond. Wayne called Randy to verify that it was the same diamond, then walked outside and saw defendant and the older male get into a " light greenish" Lexus and drive away. The video footage of the interaction between Wayne, defendant, and the older male was retrieved by police and played in court.
[¶17] Jim Rosenwasser, vice president of New York Jewelers, testified that on January 21, 2010, defendant came into the store and attempted to sell a Cartier watch, but they could not agree on the price. Steven Rubenstein testified that on the next day, he was working at the store as the general manager when defendant again came into the store trying to sell the watch. Rubenstein knew defendant from approximately 5 to 10 other interactions in the store, 4 to 6 included defendant offering to sell jewelry. Defendant eventually sold the watch for $7,000 and filled out a purchase form, listing an address in Cincinnati. Defendant requested to be paid in cash. On January 26, 2010, defendant returned to the store and wanted to sell a diamond engagement ring that was very bright and had a very big flaw. Rubenstein made defendant an offer of $7,000. Defendant said he was going to shop around but later returned and sold Rubenstein the diamond
for $7,000. Defendant wanted to retain the mounting and wanted ...