Opinion
No. 1-17-0601
08-23-2017
IN THE INTEREST OF CHAUNDICE T., a minor Respondent-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
16 JD 2097
The Honorable Marianne Jackson Judge, presiding.
JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶ 1 Held: The circuit court did not err in denying respondent's motion to suppress the witnesses' identifications because the State demonstrated clear and convincing evidence that the identifications were based on the witnesses' independent recollections. Further, the circuit court did not err in its sentencing determination under section 5-750 of the Juvenile Court Act of 1987 (705 ILCS 405/5-750 (West 2016)). We affirm.
¶ 2 Following an adjudication hearing, respondent Chaundice T. was found guilty of aggravated vehicular hijacking (720 ILCS 5/18-3 (West 2016)) and was committed to the Department of Juvenile Justice (DOJJ). On appeal, respondent contends that the circuit court erred in denying his motion to suppress the State's witnesses' identifications because the State
failed to prove an independent basis for the identifications. In addition, respondent contends that his case should be remanded for a new dispositional hearing because the circuit court failed to comply with the statutory requirements of section 5-750 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-750 (West 2016)) prior to sentencing respondent to the DOJJ. We affirm.
¶ 3 BACKGROUND
¶ 4 On September 13, 2016, seventeen-year-old respondent allegedly stole a 2015 Chrysler Sedan from Herbert Booth by threatening him with a firearm. The State filed a petition for adjudication of wardship, contending that respondent was a delinquent minor, and charged him with one count of aggravated vehicular hijacking, one count of vehicular hijacking, one count of aggravated robbery, one count of robbery and one count of theft. Thereafter, respondent moved to suppress two eyewitnesses' identifications, arguing that the photo array was "unduly suggestive."
¶ 5 At the pre-trial hearing, Booth testified that he was standing next to his vehicle near 227 North Hamlin Boulevard, around 8:45 p.m., when three unknown men approached. One of the men showed Booth a black semi-automatic handgun, while the other two men took Booth's keys out of his pocket and stole his vehicle. Booth then described the gunman to Chicago Police Department (CPD) responding officers as being a "light completed, young black male; [with] light brown eyes, tattoos on his face; one in particular under his eye which was in red ink." The following day, Booth gave Detective Gomez the same description, adding that the gunman wore a black hoodie. Before viewing two separate photo arrays, Detective Kladis insisted Booth sign an advisory form which reflected that: (1) the perpetrator might not be in the lineup; (2) Booth should not feel compelled to make an identification; and (3) it was important to exclude innocent
persons as to identify a perpetrator. Booth then identified respondent as the gunman in one of the photo arrays. Booth noted that he picked the photo "off recognizing him. If somebody has a gun pointed in your face, I don't think you're going to forget him."
¶ 6 Keana Bluntson testified that she witnessed Booth being carjacked and described the assailants to the responding officers. They all had on hoodies and the gunman was "tall, light-skinned, with bright eyes, and a tattoo on his face." The following day she repeated this description to Detectives Gomez and Kladis. Bluntson also signed the advisory form and identified respondent as the gunman in the photo array. Bluntson noted that she made the identification on the basis of recognizing respondent's face, not because he was the only individual with light colored eyes in the photo array.
¶ 7 Detective Gomez testified that when preparing the photo array he did not have the descriptions of respondent Booth and Bluntson provided to responding officers. Detective Gomez purposefully chose a photo of respondent where he only had tattoos on his neck, because choosing a photo with tattoos on his face "would have been a little subjective." A computer program selected the rest of the photos in the array that Detective Kladis showed to Booth and Bluntson. Detective Gomez did not personally interview either witness until each viewed the photo array.
¶ 8 Respondent then moved for the circuit court to find the photo array unduly suggestive, arguing that although no one in the CPD was purposefully negligent, the final result ended up being prejudicial to respondent. The circuit court agreed observing that "when I first saw this photo array, [respondent's] picture jumped at me right off the page." Respondent appeared to be the only individual in the photo array that was clean shaven, had a lighter skin-tone and tattoos,
and was visibly taller. The State then sought to prove that an independent basis existed for the identifications.
¶ 9 At the second pre-trial hearing, Booth identified respondent as the gunman in open court. Booth further testified that Bluntson pulled up behind Booth in her vehicle and began walking toward him. Respondent then moved in on Booth's left side and walked between Booth and Bluntson, ending up on Booth's right side. Respondent was "within an arm's reach" and had a gun in his hand. He then pointed his gun at Booth's head and said, "Let me get that." Booth responded, "Let you get what." Respondent said, "the car." Booth then attempted to walk away as respondent yelled, "Where's the key? Where's the key?" Two other men grabbed Booth, taking his keys and phone out of his pockets. Respondent and the other two men then got into Booth's vehicle and drove away. Booth used Bluntson's cell phone to call the police, who arrived ten minutes later. Booth gave the responding officers a description of respondent and the other two assailants. Although the incident lasted "no more than two or three minutes," Booth's attention was focused on respondent and his gun.
¶ 10 Bluntson also identified respondent as the gunman in open court and testified that when respondent walked in between her and Booth, Bluntson's attention was drawn to respondent because he had a gun in his right hand. Bluntson noted that she focused on respondent's face "because he was the one that had a weapon; and [she] didn't know what he was going to do." Bluntson did not recall telling detectives the black handgun was blue. The circuit court then denied respondent's motion to suppress the identification.
¶ 11 At trial, the evidence established in the pre-trial hearings was reiterated by both Booth and Bluntson, who again identified respondent as the gunman in open court. In addition, Booth
noted that he recognized respondent today "because I can't forget his face. He had a gun to my face. I was in fear of my life." Further, although respondent was wearing a black hoodie, nothing was covering his face and it was "still kind of light outside." Booth also recalled that respondent drove the vehicle, while the other two assailants got into the passenger seats. Booth admitted that even though he only saw respondent's gun, he told the operator that all three assailants had a gun.
¶ 12 After hearing arguments, the circuit court found respondent delinquent of aggravated vehicular hijacking. 720 ILCS 5/18-3 (West 2016). The court noted that, although there were "some discrepancies," Booth and Bluntson told "essentially the same story." The circuit court then sentenced respondent to an indeterminate sentence in the DOJJ with a credit for 150 days served. Subsequently, respondent filed this timely appeal.
¶ 13 ANALYSIS
¶ 14 On appeal, respondent contends that the circuit court erred in denying his motion to suppress the State's witnesses' identifications because the State failed to prove an independent basis for the identifications. When reviewing a circuit court's ruling on a motion to suppress, we accord great deference to the circuit court's factual findings and will not disturb those findings unless they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). We review the ultimate legal challenge de novo. Id.
¶ 15 Respondent bears the burden of proving that a pretrial identification was impermissibly suggestive. People v. Brooks, 187 Ill. 2d 91, 126 (1999). Even where a respondent meets this burden, the State may show by clear and convincing evidence that the identification was based on the witness's independent recollection. People v. Daniel, 2014 IL App (1st) 12171, ¶ 12. In
reviewing a circuit court's ruling on a motion to suppress, we may consider evidence presented at the hearing on the motion to suppress, as well as evidence presented at trial. Id. To decide whether the witness' identification is reliable, the court must look to such factors as: (1) the opportunity the witness had to view the offender at the time of the crime; (2) the degree of attention given by the witness; (3) the accuracy of the witness' prior description of the offender; (4) the level of certainty the witness demonstrated when identifying the perpetrator in person; and (5) the amount of time that lapsed between the crime and the in-person identification. People v. Enis, 163 Ill. 2d 367, 398 (1994); citing Neil v. Biggers, 409 U.S. 188, 93 (1972).
¶ 16 Here, while the photo array was unduly suggestive, the record demonstrates that there was strong evidence that both Booth and Bluntson identified respondent based on their own independent recollection. See People v. McTush, 81 Ill. 2d 513, 520 (1980) ("[w]hile it is the [respondent's] burden to establish that the pretrial confrontation was impermissibly suggestive [citation], once accomplished, the State may nevertheless overcome that obstacle, by a clear and convincing showing, based on the totality of the surrounding circumstances, that 'the witness is identifying the [respondent] solely on the basis of his memory of events at the time of the crime.' [Citation.]"). For starters, Booth and Bluntson both had the opportunity to view respondent up close at the time of the crime. Booth testified that it was still fairly light outside and respondent was "within an arm's reach." Although he was wearing a black hoodie, it wasn't covering his face. Booth further noted that respondent's face was imprinted in his mind as respondent had a gun and Booth was in fear for his life. Bluntson corroborated Booth's testimony and observed that when respondent walked in between her and Booth she was focused on his face. See People v. Herrett, 137 Ill. 2d 195, 204 (1990) (where our supreme court found that the witness had
ample opportunity to view and identify the assailant when the witness observed the assailant's face for several seconds when the assailant was several feet away and reached down to cover the witness's eyes with duct tape); People v. Slim, 127 Ill. 2d 302, 307 (1989) (even a single witness's identification of the defendant is sufficient to support a conviction if the witness viewed the defendant under circumstances permitting a positive identification). In addition, both witnesses gave a detailed, identical description of the incident at the pre-trial hearing and trial. For instance, Booth recalled that respondent walked between Booth and Bluntson, ending up on Booth's right side, a detail that Bluntson corroborated. Booth also recalled the exact dialogue that transpired between him and respondent, as well as the actions of the other two assailants. Even the circuit court observed that, although there were "some discrepancies," Booth and Bluntson told "essentially the same story." See People v. Baugh, 358 Ill. App. 3d 718, 736 (2005) (it is the function of the trier of fact to determine the inferences to be drawn from the evidence, assess the credibility of the witnesses, decide the weight to be given their testimony, and resolve any evidentiary conflicts).
¶ 17 Moreover, both Booth and Bluntson accurately described respondent to responding officers at the scene immediately following the incident. Detective Gomez further testified that he did not have these prior descriptions when preparing the photo array. Booth and Bluntson also positively identified respondent in open court without hesitation at both the pre-trial hearing and trial. Finally, less than 24 hours lapsed between the incident and when Booth and Bluntson went to give statements to detectives and viewed the photo array. See People v. Malone, 2012 IL App (1st) 110517, ¶ 36 (held that an identification made a year and four months later was sufficient to sustain the defendant's conviction). Accordingly, weighing all of the Biggers factors
as a whole, the circuit court did not err in denying respondent's motion to suppress the witnesses' identifications.
¶ 18 Respondent also contends that his case should be remanded for a new dispositional hearing because the circuit court failed to comply with the statutory requirements of section 5-750 of the Act (705 ILCS 405/5-750 (West 2016)). Specifically, respondent argues that the circuit court failed to consider mitigating factors, such his educational background, evidence of mental and emotional health, as well as less restrictive alternatives. While a circuit court's decision to send a minor to the DOJJ is reviewed for an abuse of discretion, the question of whether the court complied with statutory requirements is a question of law we review de novo. In re Raheem M., 2013 IL App (4th) 130585, ¶ 45. We initially observe that since respondent failed to raise this issue below in a post-trial motion, he has forfeited this issue on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988) ([b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during the trial). Therefore, we review the matter under the plain error doctrine. See People v. Herron, 215 Ill. 2d 167, 175 (2005).
¶ 19 We may consider unpreserved error pursuant to the plain error doctrine where the evidence was so closely balanced that the error alone threatened to tip the scales of justice against the respondent; or (2) the error was so serious that it affected the fairness of the respondent's trial and challenged the integrity of the judicial process. People v. Walker, 232 Ill. 2d 113, 124 (2009). The respondent has the burden of persuasion under both prongs of the plain error doctrine, and if he fails to meet the burden of persuasion, then the court must honor the forfeiture. People v. Naylor, 229 Ill. 2d 584, 593 (2008). Before applying either prong of the
plain error doctrine, we must first determine whether a clear and obvious error occurred. People v. Hillier, 237 Ill. 2d 539, 545 (2010).
¶ 20 Under section 5-750 of the Act, when any delinquent has been adjudged a ward of the court, the court may commit him to the DOJJ if it finds that:
"(a) his or her parents, guardian or legal custodian are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the best interests of the minor and the public will not be served by placement *** or it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent; and (b) commitment to the [DOJJ] is the least restrictive alternative based on evidence that efforts were made to locate less restrictive alternatives to secure confinement and the reasons why efforts were unsuccessful in locating a less restrictive alternative to secure confinement. Before the court commits a minor to the [DOJJ], it shall make a finding that secure confinement is necessary, following a review of the following individualized factors:
(A) Age of the minor.
(B) Criminal background of the minor.
(C) Review of results of any assessments of the minor, including child centered assessments such as the CANS.
(D) Educational background of the minor, indicating whether the minor has ever been assessed for a learning disability, and if so what services were provided as well as any disciplinary incidents at school.
(E) Physical, mental and emotional health of the minor, indicating whether the minor has ever been diagnosed with a health issue and if so what services were provided and whether the minor was compliant with services.
(F) Community based services that have been provided to the minor, and whether the minor was compliant with the services, and the reason the services were unsuccessful.
(G) Services within the [DOJJ] that will meet the individualized needs of the minor."
705 ILCS 405/5-750 (West 2016).
¶ 21 In the case sub judice, the record demonstrates that the circuit court did in fact consider the required factors. The court noted that "[i]t is in the best interest of the minor and the public that the minor be removed from his home for his protection as well as the protection of the community." In addition, the court observed that:
"[r]easonable efforts have been made. This minor has been on probation. *** Regular probation and intensive probation, MST. The minor has been sent to counseling, outpatient drug treatment. There are no other services available. The Court finds that the services provided at the [DOJJ] is the best hope for this minor in terms of being able to turn his life around. The Court has taken consideration of his age, his criminal background, his educational background, his physical, mental and emotional health."
Thus, the circuit court did consider all of the enumerated factors and initially tried several avenues to keep respondent in the community. The record clearly establishes that as the circuit court exhausted all less restrictive alternatives, its only recourse was to commit respondent to the DOJJ with the hope of turning his life around. See In re Ashley C., 2014 IL App (4th) 131014, ¶¶ 27-28 (incarnation was affirmed when the record reflected that the circuit court exhausted all
alternative resources and was well-versed on the minor's criminal and social history, multiple and diverse evaluations, and the community-based services that had been provided); Cf. In re Raheem M., 2013 IL App (4th) 130585 at ¶¶ 49-55 (the reviewing court remanded for a new dispositional hearing where the circuit court failed to explain why an alternative to incarceration was not acceptable when the minor had never been charged previously with a criminal offense and had never been evaluated in any manner to determine whether community-based services could eliminate the need for incarceration). Consequently, we find no error in the circuit court's sentencing determination.
¶ 22 CONCLUSION
¶ 23 Based on the foregoing, we affirm the decision of the Circuit Court.
¶ 24 Affirmed.