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People v. Petty

Court of Appeals of Illinois, First District, Second Division

May 30, 2017

RONALD PETTY, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 11-CR-06736 The Honorable Luciano Panici, Judge, presiding.

          PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.



         ¶ 1 Defendant Ronald Petty was convicted by a jury of retail theft (720 ILCS 5/16A-3(b) (West 2010)) and sentenced to two years' incarceration. Petty argues that the trial court should have granted his motion to quash arrest and suppress uniform product code (UPC) labels seized from his car. We hold that the plain-view doctrine applies and the trial court properly denied his motion. Petty also asserts the prosecutor argued facts not in evidence to the jury in closing; shifted the burden of proof to the defense; and commented on his post-arrest silence, failure to testify, and failure to present evidence in his defense. We find no errors requiring reversal.

         ¶ 2 BACKGROUND

         ¶ 3 I. Pretrial Motions

         ¶ 4 A. Motion to Quash Arrest and Suppress Evidence

         ¶ 5 Police seized UPC labels in plain view on the floorboard of Petty's lawfully stopped car. Petty moved to quash his arrest and suppress this evidence. The trial court denied the motion. At the hearing, Officer Bruni testified that on March 22, 2011, he and his partner talked to Nicholas Runkle, the assistant manager at Best Buy, about thefts at area Best Buy stores. Runkle told them Best Buy had issued a storewide alert for an individual placing UPC labels for $42 Sony DVD players on $400 BluRay players and purchasing the more expensive players at the lower price.

         ¶ 6 According to Bruni, Runkle had discovered that two BluRay players were missing during a routine inventory. After checking purchase receipts, Runkle came across a receipt for the sale of two DVD players on February 17. The name on the receipt was "Ronald Petty." Runkle checked the surveillance video for February 17 and spotted the customer and transaction. Bruni and his partner viewed the videotape. It showed a man with his arm in a sling pushing a cart with two BluRay player boxes to the cashier and checking out. Runkle gave Bruni the receipt and the surveillance video.

         ¶ 7 Some two hours after Bruni and his partner left, Petty appeared at the store. Runkle called Bruni, and he and his partner returned and waited in the parking lot. Petty left without purchasing anything. Petty matched the physical description provided by Runkle, and Bruni recognized Petty as the same person in the surveillance video. Bruni and his partner saw Petty get into a car and drive away. The officers ran the plates, which identified the car as belonging to Ronald Petty, whose license had been suspended. The officers stopped Petty and arrested him for driving on a suspended license. As Petty was being taken out of his car, Bruni's partner saw some UPC labels on a clipboard on the front passenger-side floorboard. When searched, Petty had a credit card in his name that ended with the same four numbers on the Best Buy receipt.

         ¶ 8 The trial court, which viewed the surveillance video, denied the motion to quash. While noting that without the recovery of the UPC labels Petty would have been charged only with driving on a suspended license (625 ILCS 5/6-303(a) (West 2012)) and not retail theft, the trial court held that the active investigation for retail theft involving UPC labels justified the seizure.

         ¶ 9 II. Trial Testimony

         ¶ 10 In opening statements, the State described its theory of the case as the "ol' switche[]roo]." The evidence adduced at trial expanded the facts established at the motion to suppress. Runkle, the store manager, testified that the BluRay players came in larger boxes than the DVD players and both products had Sony bar codes printed on the outside of the box. Each item's bar code was associated with one product "making it impossible to ring up a $399 product for $41.99." Best Buy store personnel were trained in "processing transactions" (scanning barcodes and ringing up sales), though not on recognizing specific products and their value. The only way a product would scan for the lower price would be either a manager's override authorizing this type of price reduction or someone placing a barcode with the wrong price on the box.

         ¶ 11 Runkle's inventory revealed two extra DVD players and two missing BluRay players. Runkle then looked for transactions by reviewing the purchase receipts for both items. He located a receipt for two DVD players with the date, time, and register location stamped at the top. Using this information, Runkle pulled the surveillance video for that day. At one point there was a man in the "home theater" section who later can be seen checking out with two BluRay players in his cart. As the man passed through the "sensor alarms, " a "protection specialist" approached to check the receipt. "Protection specialists" check customers for a receipt before leaving the store but do not verify whether the receipt matches the product. Since the product was scanned at checkout, it is "assumed" that "what was scanned is on the receipt."

         ¶ 12 The receipt belonged to a credit card transaction for a "Ronald Petty." Runkle called Officer Bruni and his partner to report the theft. Runkle knew the officers from previous contacts. When the officers arrived, Runkle explained what ...

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