Opinion
No. 1-01-4272
January 20, 2005.
Appeal from the Circuit Court of Cook County, Dennis J. Porter, Judge, presiding.
Defendant, Tyrone Owens was charged by indictment with aggravated robbery ( 720 ILCS 5/18-5 (West 2000)) and the aggravated personation of a police officer ( 720 ILCS 5/32-5.2 (West 2000)). Following a jury trial during which the defendant did not testify, he was found guilty of robbery ( 720 ILCS 5/18-1(a) (West 2000)) and the aggravated personation of a police officer. The trial court sentenced Owens to concurrent sentences of 16 years for the robbery and 3 years for the aggravated personation of a police officer. This is the defendant's direct appeal. For the reasons that follow, we reverse the defendant's conviction and remand for a new trial.
BACKGROUND
Glenn Foster, a resident of Suffolk County, New York, was waiting with his girlfriend, Dawn Kleinhenz, for a bus during a layover at the Greyhound bus station between 4:15 and 4:30 p.m. on August 24, 2000. Foster previously had been convicted in New York of a misdemeanor for possession of a controlled substance. Prior to the trial, the State made a motion in limine that the court bar any reference to that conviction. The trial court granted the motion over the objection of the defendant.
Foster was the sole occurrence witness to testify on behalf of the prosecution. He testified essentially as follows. While Foster and Kleinhenz waited for their bus, they were approached by Owens. According to Foster, Owens asked him to provide change for two $100 bills. Owens told him he could not use the large bills to buy food for himself and his family. Foster agreed but needed to get $10 from Kleinhenz. Once Foster had the requested amount of money, Owens told him it was a bad idea to make the exchange in clear view of everyone at the bus station. Owens suggested finding a more secluded locale. Owens and Foster left the station and walked away from the building. Owens made conversation while the two men walked to a deserted area. Foster testified that, once they reached their destination, Owens turned on him and demanded his money. Foster claimed he was scared because of Owens' size. When he hesitated, Owens reached for his waistband underneath his shirt. Foster testified that, thinking Owens was reaching for a gun, he handed Owens the money. According to Foster, Owens then grabbed him and told him "you are under arrest. I am a police officer." Owens then used a cellular telephone to pretend to be contacting his "partner." Owens and Foster eventually met up with the "partner." According to Foster, Owens then demanded an additional $300. Foster told him he would have to get the money from Kleinhenz. Owens left Foster standing where he was after telling him "Let me call my sergeant." When Foster made it back to the Greyhound station, some of the employees were pointing toward a police squad car. In the backseat, Foster saw Owens in custody.
Foster spoke with police, explaining that he had just been robbed. He told the police how much money had been taken, identifying the denominations of the bills taken. Both Foster and Kleinhenz went to the police station, where they spoke with Detective Pietryla, the detective who recovered Foster's money. Detective Pietryla testified that, at the police station, Owens was asked to remove his shirt. When he did so, a wad of money dropped from inside one of the shirt sleeves. Detective Pietryla also testified that Owens was read his Miranda rights by gang crimes Specialist Pinkowitz. Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 627-28 (1966).
Marc Miller, a supervisor in the Cook County public defender's office, testified for the defense. Miller spoke with Owens' counsel regarding Owen's case. Miller learned that Foster was from New York. Miller was going to visit New York and he agreed that he would contact Foster. Miller also testified that Foster told him the defendant had identified himself as a police officer before any money was exchanged. Foster also told Miller that Owens had a knife in his hand.
Chicago police officer Daniel Ortman also testified for the defense. He arrested Owens and also spoke to Foster. Officer Ortman testified that he did not recover a knife from the defendant. In his report, Officer Ortman noted that Foster said that Owens passed the money to the other offender. On cross-examination, Officer Ortman clarified that Foster had told him he did not know what happened to the money.
Finally, Cook County public defender's office investigator Clements testified that he investigated the Greyhound bus station and took measurements. The area of the alleged robbery was approximately 28 feet from the bus station.
At the conclusion of the defendant's case in chief, Owens unsuccessfully moved for a directed verdict. Owens then made a motion in limine for closing arguments, arguing that the State should not make statements that the two complaining witnesses were good-hearted people and they were people who were vulnerable. Owens also sought to stop the State from making general statements about people such as Owens making it dangerous for Good Samaritans. The trial court denied the motion. The State argued in closing that Owens applied even more force by grabbing Foster. The State also argued that Owens took Foster around the block because "that's where the Defendant likes to do his business, away from prying eyes."
Owens argued in closing that the distance they traveled was perfect in order for Foster to make an exchange in a secluded area. Instead of Foster handing Owens the money outside by the wall, the two men walked 30 feet north then 200 more feet before crossing another street.
In rebuttal, the State drew objections from the defense when it commented that Foster was "a nice guy" with a good heart and that Owens changed Foster's life forever. Also, the State argued that the jury should let the defendant know it is not going to tolerate the defendant taking the victim's goodwill, good nature, generosity and kindness. The objection to that argument was overruled. However, the State also asked whether Foster would help someone now. The trial court sustained an objection to that statement. The State also made arguments against the defense attorneys personally. The State argued that when the facts are against the defense attorneys' story, they argue the law, and when the law is against them, they argue the facts. The trial court overruled objection to that line of argument. When the trial court overruled the objection, the State continued that, when the facts and the law are against the defense attorneys, they argue about whatever they can. The State exhorted the jurors not to allow the defense to distract them from the real issues.
The jury then found Owens guilty of robbery and the aggravated personation of a police officer. Owens made a motion for new trial that was denied. Owens then made a motion in which he told the trial court that he wanted to take the stand and testify but was talked out of it by his trial counsel. Owens claimed he did not raise the issue during the trial because things in the trial happened so fast. Trial counsel told the trial court he did not remember Owens telling him that he wanted to testify until after the jury returned a verdict. There was a discussion before trial regarding Owens' right to testify. According to trial counsel, Owens went back and forth but did not want to testify at the time the trial started. The trial court treated Owens' motion as one for counsel other than the public defender. The trial court denied the motion because it believed the complaints were based on trial strategies and that the representation was above average. The trial court also ruled that the complaint about not being able to testify was raised too late. The trial court then gave Owens time to secure another lawyer.
Owens filed a supplemental motion for a new trial. He alleged that, prior to trial, he was unable to locate witness Jimmie Stanton but learned after trial that he was in jail. Stanton told the public defender that he was present with Owens. Stanton allegedly heard Owens discussing plans to attempt to receive money for drugs from people at the bus station. Stanton claimed to have seen Owens exchanging money for drugs with Foster. Owens argued that he would not have traveled so far from the bus station to get change for $100 bills. He also argued that Stanton's testimony would add credibility to Owens' own version of events.
The State responded that Owens could have provided the State with more than a nickname for Stanton. The trial court ruled there was nothing to show that the witness could not have been discovered with due diligence. The motion was denied.
At the sentencing hearing, Owens argued he did not impersonate a police officer. All he did, according to him, was sell fake drugs to Foster. The trial court found that, because of his criminal record, Owens was eligible to be sentenced as a Class X felon pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections ( 730 ILCS 5/5-5-3(c)(8) (West 2000)). The trial court then sentenced Owens to concurrent terms of 16 years in jail for robbery and 3 years for the aggravated false personation of a police officer. Owens was given credit for 404 days of time served in custody.
ANALYSIS Impeachment By Prior Conviction
Owens argues on appeal that the trial court improperly granted the State's motion in limine to bar evidence of the victim's misdemeanor conviction in his home state of New York. One of the victim's convictions was for possession of a controlled substance. The trial court granted the motion because the offense was not a felony, did not involve moral turpitude and could not be used to impeach the victim because the conviction did not directly go to the issue of credibility. Owens argues that the conviction should have been admissible because it would have been punishable in Illinois with over a year in prison. Owens argues that the admission of convictions as impeachment is a valid method for attacking a witness's credibility. In the case of a witness, the conviction can only be used as an attack on credibility because testimony is the only reason the witness is there. According to Owens, the danger to the witness is minimal because the prior conviction would cause momentary embarrassment to the witness, not unfair prejudice as would be the case if the prior conviction was to be used against the defendant himself. Even though the conviction in question was a misdemeanor in New York, Owens argues the rules of evidence and the Illinois criminal code should permit it to be used because any amount of a controlled substance subjects a defendant in Illinois to a Class 4 felony, punishable by not less than one year in prison. 730 ILCS 5/5-8-1(a)(7) (West 2000).
Owens argues in the alternative that the witness's prior conviction should have been admitted because the implication that Foster was a drug user was relevant to the defense theory that Owens did not rob Foster, but, rather, the situation was a drug deal gone bad. In that context, Owens argues it was ineffective assistance of counsel for Owens' lawyer to fail to argue relevancy. Owens argues the prior conviction was a motive for Foster to testify falsely. Even if this evidence is otherwise inadmissible, Owens argues it is allowed when it is relevant to prove a defense theory. In this case, the fact that Foster at one time possessed drugs makes it more likely he was involved in a drug deal on the day in question.
The State responds that the trial court was correct to prohibit the evidence of Foster's New York conviction. Initially, the State argues the defendant never presented the issue of motive at the hearing on the motion in limine. The State contends that the failure to raise the issue results in the waiver of that issue on appeal. The State cites to People v. Moore, 171 Ill. 2d 74, 114 (1996), for the principle that "[a] specific objection to the admission of evidence waives all grounds not specified." Owens argued at trial that the New York misdemeanor should have been treated as an Illinois felony because, in Illinois, the punishment would be in excess of one year. Owens also argued that Foster, who was on probation at the time of this incident, had motive to lie because the State's Attorney in Illinois could have contacted the authorities in New York. No mention of the theory now being espoused was raised below.
The State also responds, assuming this court does not treat the issue as having been waived, that the use of a conviction as impeachment requires that the relevant charge must be a felony in the charging jurisdiction. As a result, under the applicable case law, the State argues the trial court was correct in precluding the use of the conviction. As to the claim of ineffective assistance of counsel, the State argues the defense pursued strategically chosen theories of the case.
"The right to cross-examine a witness about his bias, prejudice, or ulterior motives is protected by the federal and Illinois Constitutions. U.S. Const., Amend. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Gonzalez, 104 Ill. 2d 332, 337, 472 N.E.2d 417 (1984). `The exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.' Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110 (1974). The widest latitude should be given the defense on cross-examination when trying to establish a witness' bias or motive. People v. Wilkerson, 87 Ill. 2d 151, 156 (1981)." People v. Chavez, 338 Ill. App. 3d 835, 842 (2003).
"The right to impeach a witness with evidence that tends to establish bias or motive is well established in this state. Gonzalez, 104 Ill. 2d at 337 (reversible error to bar cross-examination of the State's chief witness on the subject of gang membership); People v. Furby, 228 Ill. App. 3d 1, 591 N.E.2d 533 (1992) (reversible error to bar questions directed at police officer's dislike of unsolved crimes and his duty to obtain confessions, where defense claimed officer falsified an alleged statement by the defendant); People v. Gordon, 128 Ill. App. 3d 92, 470 N.E.2d 29 (1984) (reversible error to bar questions of officer aimed at showing another person at the place where drugs were found was not charged with drug possession after the officer talked to that person's mother, who was a police officer); People v. Betts, 116 Ill. App. 3d 551, 451 N.E.2d 1028 (1983) (reversible error to bar questions of two State witnesses concerning their expectations of leniency)." Chavez, 338 Ill. App. 3d at 842.
"`A trial court's determination of whether evidence is relevant and admissible will not be reversed absent a clear abuse of discretion resulting in prejudice to the defendant.'" People v. Green, 339 Ill. App. 3d 443, 454 (2003), quoting People v. Jones, 306 Ill. App. 3d 793, 799 (1999). The trial court was faced with whether to permit the impeachment of a witness based upon a prior out-of-state conviction that was not a felony in New York. The Illinois Supreme Court took up this issue in People v. Montgomery, 47 Ill. 2d 510 (1971), a case relied upon heavily by the defense. In Montgomery, the Illinois Supreme Court explained that "[o]ur statute provides that a prior conviction `may' be shown to impeach credibility." Montgomery, 47 Ill. 2d at 515. As an aid to understanding how prior convictions may be used to impeach a witness, the supreme court determined that the conviction must be "`punishable by death or imprisonment in excess of one year under the law under which he was convicted'" or "`involved dishonesty or false statement,'" but "`in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.'" (Emphasis added.) Montgomery, 47 Ill. 2d at 516, quoting 51 F.R.D. 391 (1971). In ruling on the motion in limine, the trial court here exercised its discretion and fully explained its reasoning. The trial court stated, "I think it has to be a felony in the law of the state where the crime has occurred before you could use it. * * * This offense does not involve moral turpitude like a misdemeanor or theft and it doesn't go directly to credibility so you cannot use it for impeachment under Montgomery." We disagree. The fact that, had the witness committed the crime in Illinois, he likely would have received punishment in excess of one year in prison is largely irrelevant under the very case cited by Owens. Under Montgomery, the resolution of a question of this nature is consigned to the trial court's discretion. Where the nature of the defense is that the offense is drug-related, we find the witness's prior drug conviction to be extremely probative and not unduly prejudicial. Foster is not a defendant. He is merely a complaining witness. "Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' Fed.R.Evid. 401; Spencer v. Wandolowski, 264 Ill. App. 3d 611, 617 (1994); People v. Printy, 232 Ill. App. 3d 735, 745 (1992); People v. Monroe, 66 Ill. 2d 317, 322 (1977) (adopting the Rule 401 definition of relevance as Illinois law)." People v. Green, 339 Ill. App. 3d 443, 453-54 (2003). Foster left the bus station with Owens and traveled a long way from the station before either being robbed or participating in the "drug deal gone bad," depending on whose story is to be believed. If, as Foster suggests, this was a robbery perpetrated while he was making change for Owens, why did Owens threaten to arrest him? It is a non sequitur in the context of Foster's story because the making of change is not a criminal activity. This fact lends credence to Owens' version, that the underlying encounter was a drug deal. "`Where the defendant's theory is that the prosecution's witness is unbelievable, it is error not to allow the cross examination on matters which would reasonably tend to show bias, interest, or motive to testify falsely. [Citation.] However, evidence of bias, interest or motive must not be remote or uncertain, because the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony.'" (Emphasis in original.) Green, 339 Ill. App. 3d at 455, quoting People v. Furby, 228 Ill. App. 3d 1, 4-5 (1992). "A witness may not be contradicted as to collateral, irrelevant or immaterial matters." Whiting v. Coultrip, 324 Ill. App. 3d 161, 170 (2001). The admission of the New York drug conviction was intended to attack Foster's credibility. We see the sole complaining witness' drug conviction as completely relevant and the exclusion of that fact to be a clear abuse of the trial court's discretion resulting in prejudice to this defendant.
Ineffective Assistance of Counsel
Owens also argues that the failure to raise the issue of Foster's motive was ineffective assistance of counsel. "The sixth and fourteenth amendments to the United States Constitution guarantee the fundamental right of a defendant in a criminal case to be effectively assisted by counsel." People v. Spann, 332 Ill. App. 3d 425, 429 (2002), citing U.S. Const., amends. VI, XIV. "Effective assistance of counsel refers to competent, not perfect, representation." Spann, 332 Ill. App. 3d at 430, citing People v. Odle, 151 Ill. 2d 168, 173 (1992). The Illinois Supreme Court has repeatedly held that "[t]o demonstrate ineffective assistance of counsel, defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that the attorney's deficient performance resulted in prejudice to the defendant." People v. Villarreal, 198 Ill. 2d 209, 228 (2001), citing People v. Williams, 181 Ill. 2d 297, 320 (1998); Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). "In order to establish an ineffective-assistance-of-counsel claim, a defendant must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" People v. Brooks, 334 Ill. App. 3d 722, 725 (2002), quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. "A reasonable probability is a probability sufficient to undermine confidence in the outcome, namely, that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Evans, 186 Ill. 2d 83, 93 (1999)[; Brooks, 334 Ill. App. 3d at 725.] There is a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065. The failure to satisfy either the deficiency prong or the prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699; 104 S. Ct. at 2069; [People v.] Wilson, 191 Ill. 2d [363, 370 (2000)]." People v. Enis, 194 Ill. 2d 361, 376-77 (2000). "In People v. Albanese, 104 Ill. 2d 504, 525-26 (1984), the Illinois Supreme Court adopted the Strickland rule that the `benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result' and that `[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Spann, 332 Ill. App. 3d at 429, quoting Strickland, 466 U.S. at 686, 694, 80 L. Ed. 2d at 692, 693, 698, 104 S. Ct. at 2064, 2068.
When the claimed error is based on trial strategy, trial counsel's decisions are generally immune from claims of ineffective assistance of counsel. People v. Reid, 179 Ill. 2d 297, 310 (1997), citing People v. Madej, 177 Ill. 2d 116, 148 (1997). The Illinois Supreme Court has carved out an exception to this general rule when the strategy chosen is "so unsound that counsel entirely fails to conduct any meaningful adversarial testing." Reid, 179 Ill. 2d at 310, citing Madej, 177 Ill. 2d at 149. "Counsel's performance is measured by an objective standard of competence under prevailing professional norms." People v. Arroyo, 339 Ill. App. 3d 137, 155 (2003), citing People v. Smith, 195 Ill. 2d 179, 188 (2000).
"[W]hen a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should first examine the factual basis for the defendant's claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then new counsel need not be appointed, and the trial court may deny the pro se motion. People v. Bull, 185 Ill. 2d 179, 210-11 (1998); People v. Kidd, 175 Ill. 2d 1, 44-45 (1996). "If the allegations show possible neglect of the case, then new counsel should be appointed. Bull, 185 Ill. 2d at 210, and Kidd, 175 Ill. 2d at 45. The appointed counsel may then independently evaluate the defendant's claim and avoid the conflict of interest that trial counsel would experience if counsel had to justify his or her actions contrary to the client's position. Bull, 185 Ill. 2d at 210 `"[T]he operative concern for the reviewing court is whether the trial court conducted an adequate inquiry into the pro se defendant's allegations of ineffective assistance of counsel." ` Bull, 185 Ill. 2d at 210, quoting People v. Johnson, 159 Ill. 2d 97, 125 (1994)." People v. Chapman, 194 Ill. 2d 186, 230 (2000).
Our review of the record reveals ineffective assistance of counsel. It was undeniably prejudicial error for counsel to have failed to raise relevancy as an additional basis for the admission of the New York conviction as impeachment of Foster until the motion for a new trial. Owens was obviously seeking to make it seem as though no one would travel so far from the bus station merely to make change. As we have seen, the New York conviction was relevant as an attack on Foster's credibility. The relevancy of this would have gone a long way to advancing Owens' theory of innocence, especially considering Owens lacked other direct evidence that Foster was trying to purchase drugs from him. In light of the fact that Owens' trial counsel argued against the State's motion in limine to exclude the New York conviction, we cannot conclude the failure to argue relevancy was trial strategy. As a result, we must reverse and remand for a new trial.
Sufficiency of the Evidence
Owens next argues that the State failed to prove him guilty beyond a reasonable doubt of the offense of aggravated personation of a police officer because the personation took place after and not during the commission of the alleged robbery.
The State responds that the evidence presented at trial was sufficient for the jury to conclude that the aggravated false personation of a police officer took place contemporaneously with the robbery. The State highlights Foster's testimony in which he indicated the defendant told him he was a police officer during the course of events. The State argues the pretense of being a police officer was continued even after the money was taken in an effort to obtain more money and to facilitate Owens' escape.
"[T]he State carries the burden of proving beyond a reasonable doubt each element of the offense and the defendant's guilt. People v. Ware, 23 Ill. 2d 59, 62 (1961). A reviewing court will not set aside a criminal conviction on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant's guilt." People v. Maggette, 195 Ill. 2d 336, 353 (2001); citing People v. Tye, 141 Ill. 2d 1, 13-14 (1990); People v. Phillips, 127 Ill. 2d 499, 509-10 (1989); People v. Collins, 106 Ill. 2d 237, 261 (1985), citing People v. Vriner, 74 Ill. 2d 329, 342 (1978). "We note that this standard of review applies in all criminal cases, whether the evidence is direct or circumstantial." Maggette, 195 Ill. 2d at 353; citing People v. Gilliam, 172 Ill. 2d 484, 515 (1996); People v. Campbell, 146 Ill. 2d 363, 374-75 (1992); People v. Manion, 67 Ill. 2d 564, 578 (1977), and People v. Bybee, 9 Ill. 2d 214, 221 (1956). "When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789, `the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' The court went on to note that, `[o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.'" (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. We find that, based on this standard, the jury's conclusions on the evidence presented before them were reasonable.
Prosecutorial Misconduct
Owens next argues that the State made numerous improper remarks in opening and closing statements, misstated the law of robbery, impugned the integrity of the defense counsel, implied that Owen routinely robbed people outside the bus station and improperly diverted the jury's attention from the elements of the crime to the plight of the victim. Owens argues that, separately or collectively, these errors denied him a fair trial. Specifically, Owens argues it was error for the State to argue that the jury could convict him of robbery based upon the force used in grabbing Foster's arm, even though Owens claims that the grabbing of the arm took place after the completion of the robbery. Owens readily admits he failed to object at trial to the error underlying the issue he now raises. As to the alleged attack on the defense counsel, Owens argues it was unfair to have said "when the facts are against the defense attorney's story, they argue the law * * * and when the law is against the defense attorneys, they argue the facts." Owens objected at the time, said objection being overruled. After the fact, the trial court suggested it believed it should have sustained the objection. Once the objection was ruled upon, the State argued that, when the facts and law are against defense attorneys, they argue about whatever they can. The State then implored the jury to focus on what Owens did to Foster and to not be distracted from the issues.
As to the State's suggestion that Owens routinely robbed people outside the bus station, likening him to a spider "spinning a web of crime," Owens argues this is the evidence of other crimes outside the record and the evidence in the case at bar. Owens contends that the State's comments imply that he committed these prior robberies and served to circumvent the prohibition against impeachment by prior convictions due to the defendant not testifying. Owens admits no objection was raised when these comments were originally made, but he urges this court to conduct a plain error review.
Owens also argues that it was wrong for the State to repeatedly refer to Foster and his girlfriend as good people or Good Samaritans with good hearts. Owens again admits no objection was raised to these comments at the time but argues that he should be held to have preserved the issue by having raised it in a motion in limine before the closing arguments began. The trial court denied that motion.
The State argues that consideration of this issue should be precluded by the procedural default. The State points to the general principle of waiver by failure to properly preserve issues below. People v. Enoch, 122 Ill. 2d 176 (1988). If this court reaches the issue as plain error, the State argues that all the complained-of statements were neither inflammatory nor flagrant, consisting of reasonable inferences based on the evidence presented during the trial. The State also urges us to view the complained-of comments in their proper perspective and not to look only at particular sections or clauses of the argument.
It is well settled that prosecutors enjoy wide latitude in closing arguments, and the scope of permissible argument rests within the sound discretion of the trial court. Absent a clear abuse of discretion, the court's determination of the propriety of the argument will stand. People v. Hester, 271 Ill. App. 3d 954, 957 (1995). Any improper comments or remarks made by a prosecutor in closing argument are not reversible error unless they are a material factor in the conviction or cause substantial prejudice to the accused. People v. Sutton, 316 Ill. App. 3d 874, 893 (2000). In reviewing allegations of prosecutorial misconduct, the court must consider the arguments of both the prosecutor and the defense in their entirety and place the allegations of improper comments in context. Sutton, 316 Ill. App. 3d at 893. To warrant a reversal, the prosecutorial remarks must result in substantial prejudice to the accused, such that the verdict would have been different had the improper comments not been made. People v. Terry, 99 Ill. 2d 508, 517 (1984).
Because we disagree with Owens' theory that the aggravated personation of a police officer came before and not during the robbery, we are disinclined to ignore the procedural default Owens committed by failing to object to the argument at trial. We feel, as the trial court obviously felt, that the charges against this defendant were part of one continuous criminal enterprise. In light of the procedural default, we need not discuss that matter further. The remaining subissues involve improper statements in opening and closing arguments that did not draw objections from the defense. We turn to whether those comments, individually or collectively, contributed to deprive Owens of a fair trial. We disagree with Owens that the trial court should have sustained the objection when the State suggested that the defense was attempting to distract the jury from the facts of the case. It implied that the defense was attempting, through trickery or other nefarious means, to free Owens. We cannot agree, beyond the obvious fact that a defense attorney has a duty to try to free his or her client. According to People v. Abadia, 328 Ill. App. 3d 669, 679 (2001), the implication that the defense was using trickery or nefarious means is wrong when it serves no purpose other than to prejudice the jury. As with all arguments, we consider them in context of not only the entire argument but in context of all evidence in the entire record. We are mindful that, when a defendant fails to object to comments, he or she does not afford the trial court the opportunity to correct the alleged error or limit the impact of the statements.
We now turn to the comments by the State suggesting that Owens routinely robbed his victims as he "spun his web of crime." "Generally, evidence of other crimes is not admissible for the purpose of showing defendant's disposition or propensity to commit crime ( People v. Illgen, 145 Ill. 2d 353, 364-65, 583 N.E.2d 575 (1991)), but it is admissible to prove modus operandi, intent, identity, motive or absence of mistake. People v. McKibbins, 96 Ill. 2d 176, 182, 449 N.E.2d 821 (1983)." People v. Colin, 344 Ill. App. 3d 119, 126-27 (2003); People v. Lindgren, 79 Ill. 2d 129, 137 (1980). "`Other-crimes' evidence does not pertain solely to prior convictions; the term encompasses prior bad acts ( Illgen, 145 Ill. 2d at 365) as well as subsequent acts ( People v. Bartall, 98 Ill. 2d 294, 312-13, 456 N.E.2d 59 (1983)), where the standard for admissibility of such evidence is more than mere suspicion, but less than beyond a reasonable doubt." Colin, 344 Ill. App. 3d at 126 n. 2, citing Wernowsky v. Economy Fire Casualty Co., 106 Ill. 2d 49, 55 (1985), and Huddleston v. United States, 485 U.S. 681, 689, 99 L. Ed. 2d 771, 782, 108 S. Ct. 1496, 1501 (1988). " Modus operandi, or `method of working,' refers to a pattern of criminal behavior so distinct that separate crimes are recognized as the work of the same person. People v. Kimbrough, 138 Ill. App. 3d 481, 486-87, 485 N.E.2d 1292 (1985). If evidence of other crimes is offered to prove modus operandi, there must be some clear connection which creates a logical inference that if defendant committed the former crime, he may have committed the crime charged. Kimbrough, 138 Ill. App. 3d at 486." Colin, 344 Ill. App. 3d at 127.
"`Even where the State has good reason to introduce other-crimes evidence, we acknowledge that an inference of criminal propensity will necessarily accompany its use and will require the trial judge to weigh the probative value of such evidence against its potential for producing an improper prejudicial effect, before deciding whether to allow for its admission." People v. Lenley, 345 Ill. App. 3d 399, 405-06 (2003), citing People v. Hale, 326 Ill. App. 3d 455, 462 (2001), citing People v. Heard, 187 Ill. 2d 36, 58 (1999). "We will not disturb a conviction, based upon the admission of other-crimes evidence, unless the trial judge's admission of that evidence constitutes a clear abuse of discretion." Lenley, 345 Ill. App. 3d at 406, citing People v. Thingvold, 145 Ill. 2d 441, 452-53 (1991). If any actual evidence of these other crimes is not generally proper, then the suggestion of such other crimes based on theory and conjecture without any basis in the evidence surely cannot be proper. "Parties in closing argument may not go beyond the scope of the evidence presented and inferences therefrom, misstate the law, or express their personal opinions on the evidence." People v. Billups, 318 Ill. App. 3d 948, 960 (2001), citing People v. Woolley, 178 Ill. 2d 175, 210 (1997). Despite those general principles, we decline to hold the State's comments improper. The implication that the State must have been suggesting that the defendant committed other crimes is not the only conclusion one could reach from a review of these comments. Another reasonable construction is that the "web of crime" was limited to this crime. We will not attribute improper motive to the State for its choice of language when there is an innocent construction.
We now turn to the State's argument that its spider-related comments were invited because the defense employed a "bug in a chocolate bar" analogy. The defense chose to liken the State's case to finding an impurity, such as a bug, in a chocolate bar. We agree with the defense that it is ridiculous to assume because the comments of each of the respective sides were insect-related, that the one would serve as a justification for the other. Like all arguments of counsel, we view them in their entirety with an eye to the context. We decline to apply the invited-error doctrine to these comments. Because we find no harm in the "web of crime" language, we need not comment further on the "bug in the chocolate bar."
Trial Court Error
Owens next argues that the trial court erred when it declined to appoint counsel and to conduct an evidentiary hearing on the pro se motion for ineffective assistance of counsel. The motion was based on Owens' claim that he had been denied his right to testify. Owens argues the trial counsel disputed his claim that, before the end of trial, he changed his mind about not testifying. According to Owens, the trial court treated his motion for ineffective assistance of counsel as a motion for the appointment of counsel other than the public defender. At the hearing on the pro se motion, Owens indicated that he originally went along with his attorney's advice not to testify but changed his mind. Owens claims that he did not get a chance to tell the trial court because his trial counsel quickly rested the case. Trial counsel indicated that Owens had gone back and forth on the question of whether to testify, but ultimately decided not to testify. Trial counsel did not remember being told that Owens wanted to testify until the jury reached a verdict. The trial court denied the motion, finding in part that the claim of the inability to testify was raised too late.
The State responds that the trial court properly inquired into the basis for the pro se motion for ineffective assistance of counsel and determined that it was without merit and that new counsel need not be appointed. The trial court heard from both Owens and his trial counsel. The trial court indicated to Owens that "[t]here is not a hint of evidence in this case that the [trial counsel] did not adequately represent [Owens], and in fact, he probably went beyond what's average in representation of a criminal defendant." In short, the trial court found that Owens' complaints were based upon trial strategy.
"Defendant's posttrial allegations of ineffective assistance of counsel do not automatically require the appointment of new counsel." People v. Cordevant, 297 Ill. App. 3d 193, 197 (1998), citing People v. Williams, 147 Ill. 2d 173, 251 (1991). "If in the sound discretion of the trial court the allegation lacks merit or involves matters of trial strategy, the appointment of new counsel is not required and the pro se motion may be denied. People v. Robinson, 157 Ill. 2d 68 (1993). New counsel should be appointed only if the defendant's allegation of the ineffective assistance of counsel shows the possible neglect of the case. Robinson, 157 Ill. 2d at 86. In People v. Woodson, 220 Ill. App. 3d 865, 877 (1991), the court explained: "[I]t is not necessary to appoint new where a trial judge finds the claim to be spurious, and such a finding will not be overturned on appeal unless the finding is manifestly erroneous." Cordevant, 297 Ill. App. 3d at 199.
"Ultimately, the decision whether to testify belongs to the defendant. People v. Enis, 194 Ill. 2d 361, 399 (2000). It is generally recognized that a defendant's prerogative to testify is a fundamental right, which only the defendant may waive; whether to exercise that right is not one of those matters that is considered a strategic or tactical decision best left to trial counsel. Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312 (1983)." People v. Brown, 336 Ill. App. 3d 711, 719 (2002). "If after examining the factual matters, the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then new counsel does not need to be appointed and the pro se motion can be denied. If, however, the allegations show possible neglect of the case, new counsel should be appointed." People v. Robinson, 157 Ill. 2d 68, 86 (1993), citing People v. Williams, 147 Ill. 2d 173, 251 (1991). Our review of the record shows that the trial court gave due consideration to arguments of both sides in the motion. The decision not to hold an evidentiary hearing was based on the trial court's conclusion that Owens decided not to testify during the trial then changed his mind after the adverse verdict came in. As for the claims based on trial strategy, we can find no basis to overturn the trial court's determination.
Supplemental Motion for New Trial
Owens next argues that the trial court failed to conduct an evidentiary hearing on his supplemental motion for a new trial. That motion was based on newly discovered evidence that there was an occurrence witness who could have testified that the encounter between Owens and Foster involved a drug transaction. Owens argues he needed an evidentiary hearing to determine if the new evidence would have changed the outcome. The supplemental motion alleged that, prior to trial, Owens was unable to locate Jimmie Stanton. After trial, Owens learned that Stanton was in jail. On September 27, 2001, Stanton allegedly told the public defender that he had been with Owens and heard him talking about his plans to receive money for drugs from the people at the bus station. Owens argued that the testimony of Stanton would have bolstered his theory that it was a drug deal gone bad. At the hearing on the motion, defense counsel informed the trial court that Stanton could not be found prior to trial because all that was known about him was his nickname. In denying the motion, the trial court ruled that there was nothing to show that the witness could not have been discovered with due diligence.
The State responds that Owens is only now claiming the witness would have supported the defense theory that the victim sought to purchase drugs from Owens. This theory was not presented at trial. The State also responds that, because the issue Stanton would have addressed is peripheral, it cannot be used as a basis for a new trial. The trial court made it clear that this witness could have been discovered with a diligent search. Stanton was incarcerated at the time of the trial. The State argues that a simple jail check would have been sufficient to locate him for trial. Because Owens did not exercise due diligence, the State argues a new trial is not warranted. The State argues the trial court did not abuse its discretion in denying the motion.
"The Supreme Court has recognized that, in the interests of fundamental fairness, the doctrine of res judicata may be relaxed if the defendant presents substantial new evidence." People v. Deloney, 341 Ill. App. 3d 621, 627 (2003), citing People v. Patterson, 192 Ill. 2d 93, 139 (2000). "To merit a new trial, the evidence must be of such conclusive character that it will probably change the result upon retrial; material and not merely cumulative; discovered since the trial; and of such character that it could not have been discovered prior to trial by the exercise of due diligence." Deloney, 341 Ill. App. 3d at 627, citing Patterson, 192 Ill. 2d at 139.
The testimony Stanton could have presented would have gone a long way to explain why the two men left the bus station in the first place. It also would have been material and not merely cumulative because it supports Owens' version of the events and attacks the State's theory that Owens was guilty of robbery. "A person commits robbery when he or she takes property * * * from the person or presence of another by the use of force or by threatening the imminent use of force." 720 ILCS 5/18-1(a) (West 2000). In the context of a drug deal, the jury may have questioned whether there had indeed been a robbery at all. Though the involvement of drugs in the equation may have painted the victim in an unflattering light, depending on the story to be told by Stanton and his credibility as a witness, it could have become central to the issue of Owens' guilt. However, in light of our decision to reverse and remand on the other issues, we need not reach the issue of whether it was an abuse of discretion not to conduct an evidentiary hearing based on these facts.
Excessive Sentence
Owens next argues that his sentence is excessive. Owens argues that the imposition of Class X punishment on these facts violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Under Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63, " [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Emphasis added). Owens argues that the use of prior convictions to enhance a sentence entitles him to be re-sentenced without the enhancement.
This court, in People v. Hill, 345 Ill. App. 3d 620, 634-35 (2003), discussed the issue of the constitutionality of section 5-5-3(c)(8) of the Unified Code of Corrections. That case instructs as follows:
"Based on its analysis of Apprendi and Almendarez-Torres [v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998)], this court has repeatedly held that section 5-5-3(c)(8) is constitutional. See, e.g., People v. Burks, 343 Ill. App. 3d 765 (2003); [People v.] Rucker, [No. 1-01-3617] slip op. at 30 [August 19, 2003)]; People v. Bell, 343 Ill. App. 3d 110, 118, 796 N.E.2d 1114, 1121 (2003); People v. Smith, 338 Ill. App. 3d 555, 561, 788 N.E.2d 1204, 1209 (2003); People v. Lundy, 334 Ill. App. 3d 819, 834, 779 N.E.2d 404, 417 (2002); People v. Young, 334 Ill. App. 3d 785, 794, 779 N.E.2d 293, 300-01 (2002); People v. Wallace, 331 Ill. App. 3d 822, 838, 772 N.E.2d 785, 800 (2002); [People v. ]Dixon, 319 Ill. App. 3d [881,] 884-85, 147 N.E.2d [1,] 3-4 [(2001)]; People v. Givens, 319 Ill. App. 3d 910, 914, 747 N.E.2d 436, 439 (2001); People v. Roberts, 318 Ill. App. 3d 719, 723-24, 743 N.E.2d 1025, 1033 (2000); People v. Lathon, 317 Ill. App. 3d 573, 587, 740 N.E.2d 377, 387 (2000). In Lathon, this court rejected the exact argument made by defendant here, that because Apprendi calls into question whether Almendarez-Torres was correctly decided, we should conclude that Apprendi holds that enhanced sentencing under section 5-5-3(c)(8) violates a defendant's right to trial by jury and due process. Lathon, 317 Ill. App. 3d at 584, 740 N.E.2d at 384. See also Smith, 338 Ill. App. 3d at 558-61, 788 N.E.2d at 1206-09. Lathon looked at Apprendi's review of Almendarez-Torres and determined that the Apprendi Court not only endorsed the recidivism exception, but articulated reasons for such an exception, including the fact that procedural safeguards enhance the validity of any prior conviction, recidivism is not an essential element of the underlying criminal offense and recidivism does not relate to the commission of the underlying offense. Lathon, 317 Ill. App. 3d at 585-86, 740 N.E.2d at 385. Lathon found that the same reasons supported applying the recidivism exception to section 5-5-3(c)(8). Lathon, 317 Ill. App. 3d at 585-86, 740 N.E.2d at 385. We agree with the analysis in Lathon and Smith and find section 5-5-3(c)(8) constitutional." Hill, 345 Ill. App. 3d at 634-35.
We will not disturb Owens' sentence because Apprendi, by its very terms, does not apply to recidivism.
Mittimus
Owens final argument is that his mittimus must be corrected to grant him the correct amount of credit for time served. The trial court gave Owens 404 days of credit. The State agrees that an error in computation was made and that the total credit due is 414 days. As the State correctly points out, this court has the authority to correct such a computational order without unduly burdening the trial court with a needless remand. People v. McCray, 273 Ill. App. 3d 396, 403 (1995); People v. Brown, 255 Ill. App. 3d 425, 438-39 (1993). We need not exercise that authority because Owens will receive a new trial. Undoubtedly, care will be taken to make sure that, should he again be convicted of a crime, he will receive all the credit to which he is due.
CONCLUSION
In light of the foregoing, it is hereby ordered that the conviction is reversed and the cause remanded for a new trial.
Reversed and remanded.
Campbell, J. and Neville, J., concur.