Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Circuit No. 11-CF-122. Honorable Stephen A. Kouri, Judge, Presiding.
Michael J. Pelletier, Jacqueline L. Bullard, and Susan M. Wilham, all of State Appellate Defender's Office, of Springfield, for appellant.
Kevin P. Nolan, State's Attorney, of Tuscola (Patrick Delfino, David J. Robinson, and Perry L. Miller, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE CARTER delivered the judgment of the court, with opinion. Justices O'Brien and Schmidt concurred in the judgment and opinion.
[¶1] Defendant, Keith Clark, argues that the evidence at his trial was insufficient to prove beyond a reasonable doubt that he was armed with a firearm during the commission of a robbery. Additionally, defendant argues that the trial court erred in failing to give a jury instruction defining " firearm" and that defense counsel's failure to tender such an instruction constituted ineffective assistance of counsel. Defendant also argues that certain fines and fees were improperly assessed against him.
[¶2] We affirm defendant's conviction, as we find that: (1) the evidence at trial, when viewed in the light most favorable to the State, was sufficient to prove beyond a reasonable doubt that defendant carried a firearm; (2) the failure to give a jury instruction defining " firearm" did not constitute plain error; and (3) the failure of defense counsel to tender a jury instruction did not prejudice defendant. Pursuant to the State's confession of error, we remand the cause for proper entry of an order for fines and fees.
[¶4] Defendant was charged by indictment with armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)), alleging that defendant, while armed with a rifle, took property from the person or presence of Habib Bilfaqi by threatening the imminent use of force at a time when defendant was 15
years of age or older but under 17 years of age.
[¶5] A jury trial was held. Bilfaqi testified that he was working as a delivery driver for Bacci's, a pizzeria, on the evening of the incident. Between 2 and 3 a.m., Bilfaqi was driving his car to deliver two pizzas to a customer at an apartment complex. Pavel Chernyshev, a coworker, was riding in Bilfaqi's passenger seat. Bilfaqi called the customer three to five times because he was having trouble finding the address the customer had given him. Bilfaqi believed the customer sounded male. Bilfaqi drove to one location, and the customer told him to drive to a different one. Bilfaqi reached the second location and the customer was not there. Eventually, the customer said that he saw Bilfaqi's car and told him to stop.
[¶6] Bilfaqi got out of the car, still talking to the customer on the phone. Bilfaqi was holding the pizza bag. The customer told him to come up to the door. Bilfaqi went up to the apartment door and waited for awhile. There was another apartment door to his right, but to his left was just the corner of the building. The area was fairly dark, but there were some lights. While still on the telephone, Bilfaqi asked the customer where he was. A man holding a black rifle then approached Bilfaqi from his left. The man was approximately six feet tall, weighed 175 to 180 pounds, was African American, appeared to be in his mid-twenties, and had a " soul patch." He was wearing a black hoodie or jacket, black pants, and a black hat. Nothing was covering his face. He stopped approximately 20 to 30 feet from Bilfaqi. Bilfaqi later identified defendant as the man who robbed him.
[¶7] The man pointed the rifle directly at Bilfaqi; the rifle had a red laser pointer for tracking, which was lit up. The man told Bilfaqi to drop the pizza bag and money. Bilfaqi dropped the bag and the money he was carrying in his pockets--approximately $20 to $30--and ran to his car. The man said, " Only $20?" and made some derogatory comments. The entire incident lasted approximately five seconds.
[¶8] Chernyshev testified that he was riding in the passenger seat of Bilfaqi's car on the evening in question. Chernyshev was allowed to go home early because it had been snowing heavily earlier that night, and Bilfaqi offered to give him a ride home after he completed his last delivery. Once Chernyshev and Bilfaqi reached the apartment complex where they were to deliver the pizza, they had difficulty locating the correct apartment. The customer directed Chernyshev and Bilfaqi to three or four different apartments via cell phone.
[¶9] At the final apartment, Bilfaqi walked up to the door. Chernyshev remained in the car approximately 50 yards away from Bilfaqi. It was not snowing at that time. Chernyshev could see someone standing at the side of the building, peeking around the corner. Chernyshev could " plainly see" that the man around the corner had a gun. Chernyshev said the gun was a " rifle" and described it as " something you don't carry on the street." Chernyshev did not yell out to Bilfaqi because he was concerned it would be unsafe for Bilfaqi if he did. The apartment complex had recessed lighting. The man with the rifle walked up to Bilfaqi and pointed the rifle at him. The man was African American and was wearing a hoodie or dark sweater with a hood, a hat, and dark pants. Chernyshev stated that the hat could have been the man's hair. The man said something to Bilfaqi like " that's all you got?" and then said some derogatory
things. Bilfaqi dropped the pizza bag and ran toward the car. Chernyshev saw the man with the rifle go back around the building the same way he came.
[¶10] Detective Timothy Moore testified that a firearm was located in another neighborhood the day after the incident. However, this was ultimately not linked to the offense. No firearm was introduced into evidence at trial.
[¶11] During closing arguments, the prosecutor argued that the rifle described by Bilfaqi and Chernyshev was " an operating firearm" as opposed to " a toy or something." The prosecutor admitted that no gun was recovered that could be definitively linked to the crime, but argued that the jury could infer through circumstantial evidence that the rifle was a real gun. The prosecutor argued that if defendant did not have a real firearm and was going to use a toy, he would have picked something small and easy to conceal. The prosecutor contended that defendant used the rifle because it was the only firearm he had available. In other words, the rifle was a choice of last resort because it was large and could not be concealed within defendant's clothing. The prosecutor also argued that it would be unlikely for someone to affix a laser to a toy rifle. Additionally, the prosecutor pointed out that neither Bilfaqi nor Chernyshev hesitated in identifying the object as a rifle and neither expressed belief that the rifle could have been plastic or a fake.
[¶12] Defense counsel argued during closing arguments that there was insufficient evidence to determine whether the gun used in the robbery was real or fake. Defense counsel pointed out that if someone had a fake gun that he wanted to make look real, he might add ...