Court of Appeals of Illinois, First District, Second Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 11 CR 9567. Honorable James M. Obbish, Judge Presiding.
For Plaintiff-Appellee: Anita Alvarez, State's Attorney, and Alan J. Spellberg, Mary P. Needham, and Clare Wesolik Connolly, Assistant State's Attorneys, of counsel.
For Defendant-Appellant: Laura A. Weiler, DePaul Criminal Appeals Clinic, DePaul University Legal Clinic, of Chicago.
JUSTICE LIU delivered the judgment of the court, with opinion. Presiding Justice Simon and Justice Pierce concurred in the judgment and opinion.
[¶1] Following a bench trial, defendant, James Booker, was convicted of home invasion while armed with a dangerous weapon, robbery, attempted robbery, and unlawful restraint. At sentencing, the court merged defendant's unlawful restraint convictions into the home invasion counts and sentenced defendant to concurrent prison terms totaling 15 years. On appeal, defendant contends that: (1) the State failed to establish beyond a reasonable doubt that he committed the offenses because only two of the four witnesses identified him as the perpetrator; (2) the trial court erred in denying his motion to quash and suppress because the police lacked reasonable suspicion when they detained him; (3) he was denied due process when he was convicted of an uncharged offense which was not a lesser-included offense of any of the crimes with which he was charged; (4) the 15-year sentence imposed for his four home invasion convictions is excessive; (5) three of his home invasion convictions must be vacated under the one-act, one-crime doctrine; and (6) the mittimus must be corrected to reflect the proper sentence of three years for his attempted robbery conviction. We affirm in part and reverse in part.
[¶3] On June 4, 2011, Tomasz Komperda, Robert Rusnak and Tomasz Plewa were performing construction work in Tina Calvin's house at 6049 South Maplewood Avenue in Chicago. While Komperda was outside of the house looking for tools in his van, he was suddenly approached by a man who pointed a gun at him and demanded money. After taking a $1 bill and a GPS navigation system from the van, the offender forced Komperda into the house while holding the gun at his back. Once inside, the offender demanded money from the other workers and Calvin, all of whom were in or near the kitchen. Calvin eventually
ran to another room and called 9-1-1. The offender subsequently fled from the house, heading southbound in the alley.
[¶4] Police officers responded to a radio dispatch regarding a robbery at Calvin's house and immediately drove there. Within 10 to 15 minutes of getting a description of the offender from one of the witnesses, the officers observed defendant at an intersection approximately three blocks south of the house. Defendant's appearance fit the witness's description of the offender--a black male with neck tattoos and a white t-shirt. The officers handcuffed defendant and drove him to the house, where two of the four witnesses identified him in a show-up procedure. Defendant was arrested and charged with home invasion while armed with a firearm, aggravated unlawful restraint, attempted armed robbery, armed robbery and aggravated kidnapping.
[¶5] A. Motion to Quash and Suppress
[¶6] Prior to trial, defendant filed a motion to quash his arrest and suppress the show-up identification (motion to suppress). He argued that the identification evidence should be excluded because the police lacked probable cause when they " arrested" him. The State argued that defendant was properly detained because he matched the description of the offender given by a witness and that he was detained, not arrested, prior to the show-up where two of the victims positively identified him.
[¶7] During the hearing on his motion to suppress, defendant testified that on June 4, 2011, at approximately 1 p.m., he was stopped by police officers at the intersection of 64th Street and South Maplewood Avenue, near the house at 2517 West 64th Street where he resided with his mother. The officers handcuffed him, put him in an unmarked police vehicle, and drove him " down the block" to 6049 South Maplewood. When they arrived at the South Maplewood house, the officers displayed him, while handcuffed, to two white men and a white woman. According to defendant, the officer " grabbed" his right arm and said to the three witnesses, " this is the person that robbed yawl." The men and woman talked to each other for " about a minute," after which all three said, " I don't think that's him." At the time of his " arrest," defendant had tattoos on both sides of his neck and arms and one on his face.
[¶8] Officer Patrick Felker, a Chicago policeman, testified that he conducted the show-up at around 1:30 p.m. on June 4 at the house at 6049 South Maplewood Avenue. Felker stated that when he and his partner arrived at the house the first time in response to a dispatch regarding a robbery, Rusnak met them outside and described the offender as " a male black with tattoos on his face and neck and a white t-shirt." The officers were also told that the offender had fled " southbound in the alley." Felker began to " tour the area" and within " five to ten minutes," saw defendant " [a]bout three blocks south of there at 64th and Maplewood" with " at least one other guy." The other man was also a black male. Defendant was wearing a white T-shirt and had tattoos on his face and neck. When Felker saw him, he " jumped out of the car and detained [defendant] and put handcuffs on him." The officers then drove defendant to the house for the show-up identification. Felker explained that, prior to conducting the show-up, he instructed each of the four witnesses--Calvin, Rusnak, Plewa and Komperda
--to " stay apart" and after each witness " looked at [defendant] he was kept to the side." During the show-up, each witness viewed defendant separately and " was not allowed to go back [to the others] and talk about the show-up." Rusnak and Calvin identified defendant as the offender, but Plewa and Komperda were unable to identify him positively as the offender. Felker stated that Calvin is a black woman.
[¶9] Felker admitted that he had not been given a description regarding the offender's age, height, weight, hairstyle, or eye color before he encountered defendant. Additionally, Felker acknowledged that in his case report, he noted that the witness had reported neck tattoos on the suspect but there was no reference to any facial tattoos. Felker stated that defendant was detained, but not arrested, prior to the show-up.
[¶10] The trial court denied the motion to suppress after finding the detention " reasonable under the circumstances." The court noted that the officers observed defendant " within 10 to 15 minutes of the offense," three blocks from the scene of the crime, and that his appearance matched the description of the offender, who " had fled southbound into the alley" --a " male black wearing a white t-shirt with tattoos on his neck." The court concluded that the detention, handcuffing and transportation of defendant to the crime scene was " appropriate" under the circumstances because " [t]he law does allow a brief detention of individuals if appropriate to try to make a quick determination as to whether or not that individual is in fact an offender or not."
[¶11] While defendant does not challenge the propriety of the show-up identification, it is worth noting that the court found that the police officers " took some significant steps to try to avoid the procedure becoming anymore suggestive than a show-up apparently is." In addressing defendant's argument that alternative identification methods could have been used, the court observed that: (1) there was " no information whatsoever that the police had Mr. Booker's photo" and (2) a lineup identification " would have not only taken hours to perform," but would have involved possibly keeping an innocent person in custody at the police station.
[¶12] B. The Bench Trial
[¶13] At trial, there was no dispute among the State's witnesses that the offender was a black male with neck tattoos wearing a white T-shirt, that he entered the house between noon and 1 p.m., and that he held a gun at Komperda while yelling at everyone to give him money. Furthermore, none of the witnesses recalled that the offender had any speech impediment.
[¶14] 1. Robert Rusnak's Testimony
[¶15] Rusnak identified defendant in open court as the man who entered the house on June 11 while Rusnak was working in the kitchen. He testified that defendant was pointing a small, dark, brown revolver at Komperda's back and yelling at everyone to give him money. Rusnak noticed that defendant was also holding a $1 bill and had a GPS navigation device in his pocket. Calvin, the owner of the house, was " peeking out" from a nearby room " on the threshold" of the kitchen. When defendant demanded money from her, she said she had no money and " hid back into the room." Defendant then threatened to shoot everyone if they did not give him money. At one point, defendant attempted " to pat [Rusnak] down" in order " to see if [Rusnak] had anything in [his] pockets." Komperda then freed himself from defendant and ran to the front of the house, while " Plewa found shelter in one corner of the kitchen" and Rusnak ran to another
corner. Rusnak then " heard [a] loud noise," which he believed was defendant " fleeing the scene," and immediately closed the door of the house.
[¶16] Shortly afterwards, when the police officers arrived at the house, Rusnak told them that the offender was a black man with hair just above his shoulders who was " slightly taller" than Rusnak and " wearing a white t-shirt just like almost everybody else." Rusnak acknowledged that he did not mention any tattoos on the offender in his initial description to the police because Rusnak thought that " it's a common thing for every black guy to have a tattoo so [he] didn't pay any attention to any tattoos." During the show-up, Rusnak recognized defendant as " the person that came over with the gun in his hand, the person that held us up."
[¶17] On cross-examination, Rusnak testified that he did not recall if the offender had a tattoo on his face. He further admitted that his view of the offender was limited to the extent that Komperda was standing between him and the offender, but stated that his view of defendant was " [n]ot completely" obstructed. When the offender tried to pat him down for money, he was standing " slightly to the side" and " [w]ithin arm's reach" of Rusnak.
[¶18] 2. Tina Calvin's Testimony
[¶19] Calvin identified defendant during the trial as the offender who was in her house on June 4, 2011. She testified that she was in a room next to the kitchen when she heard a voice " saying money, money, money" and saw a " young black man" holding a gun at the back of Komperda's head. She described the gun as a " very, very small" black revolver and recalled that defendant's hand had " encompassed most of the gun." After she told the offender that she had no money, she ran into her room and called 9-1-1. She described the offender to the 9-1-1 operator as a " young black man with a white t-shirt and neck tattoos."
[¶20] According to Calvin, the police later brought defendant to her house and told her that " they had someone and they wanted [her] to look at him." Despite having seen the offender for " less than two minutes" during the incident, she recognized the suspect that the police brought with them as the offender because she " had gotten a good look at his face" and recognized his neck tattoos and a mark on his right cheek. Calvin stated that she had noticed a mark on the offender's cheek at the time of the incident, but did not know then that it was as a tattoo.
[¶21] Calvin admitted, during cross-examination, that she did not tell the 9-1-1 operator about the mark on defendant's face when she was reporting the incident and that she did not mention any facial tattoos or marks when she spoke with two detectives about the robbery later that day.
[¶22] 3. Tomasz Komperda's Testimony
[¶23] Komperda testified that he was in the back of his van outside of Calvin's house when a man approached him " with a gun in his hand" and demanded money. According to Komperda, the man was a slender black male, approximately 175 centimeters tall, with a tattoo on his neck, and he was holding " a small revolver" that was " dark, kind of brown" and " five to six" inches long. The offender pointed the gun at Komperda's head and told him to find some money. He later took a dollar bill and a GPS navigation system from the van. He then directed Komperda into the house while holding a gun at his back. When they entered the kitchen, the offender also pointed the gun at the other ...