People v. Mister
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Opinion
FILED 2016 IL App (4th) 130180-B August 4, 2016 Carla Bender NO. 4-13-0180 4th District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARVINO MISTER, ) No. 12CF611 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Pope concurred in the judgment and opinion.
OPINION ¶1 In December 2012, a jury found defendant, Marvino Mister, guilty of armed
robbery (720 ILCS 5/18-2(a)(2) (West 2010)). In January 2013, the trial court sentenced him to
30 years’ imprisonment with credit for 276 days served. Defendant appealed, arguing (1) plain
error occurred where a witness’s testimony violated the silent witness theory, (2) plain error
occurred where the trial court gave incorrect jury instructions, (3) trial counsel was ineffective,
(4) the State failed to prove him guilty of armed robbery, and (5) fines imposed by the circuit
clerk are void and he is entitled to $1380 in presentence credit. In January 2015, we affirmed in
part, vacated in part, and remanded with directions. People v. Mister, 2015 IL App (4th) 130180,
27 N.E.3d 97. Defendant filed a petition for leave to appeal with the Supreme Court of Illinois.
¶2 On March 30, 2016, the supreme court denied defendant’s petition for leave to
appeal but issued a supervisory order (People v. Mister, No. 118934 (Ill. Mar. 30, 2016) (nonprecedential supervisory order)) directing this court to vacate our prior judgment and
reconsider our decision in light of People v. Thompson, 2016 IL 118667, 49 N.E.3d 393. In
accordance with the supreme court’s direction, we vacate our prior judgment and reconsider in
light of Thompson to determine whether a different result is warranted. We again affirm in part,
vacate in part, and remand with directions.
¶3 I. BACKGROUND
¶4 On April 18, 2012, the State charged defendant by information with armed
robbery (720 ILCS 5/18-2(a)(2) (West 2010)), a Class X felony. The information alleged on
April 12, 2012, defendant took money from Sean Harrigan, a student at the University of Illinois
in Champaign-Urbana, by threatening the imminent use of force while armed with a silver gun.
¶5 A. The Evidence at Trial
¶6 On December 4, 2012, defendant’s jury trial commenced. At trial, Sean Harrigan
testified that on April 11, 2012, he and his two friends, Arman Agarwal and James Ramelli,
drove in Harrigan’s car to Par-A-Dice Hotel and Casino in Peoria, Illinois. They arrived around
7:30 or 8 p.m. Harrigan played craps the entire night and into the early morning hours of April
12, 2012. Agarwal and Ramelli also played craps, but after four or five hours they left to play
poker. Harrigan ended up winning $23,000 and was paid in “two bricks” of $10,000, and the
remaining $3,000 was placed in a white envelope. At 4:29 a.m., a security guard escorted
Harrigan, Agarwal, and Ramelli to Harrigan’s car, which was parked in the casino’s parking lot.
Harrigan saw nothing suspicious while playing craps or walking to his car.
-2- ¶7 The trio left the casino, stopped at a nearby gas station, and purchased sodas for
the ride home. Agarwal and Ramelli went inside the gas station while Harrigan remained in his
car. Harrigan then drove onto Interstate 74 toward Champaign and did not make any stops along
the way; he estimates it took 1 hour and 20 minutes to drive home. Harrigan did not notice
anything suspicious at the gas station or during the ride home.
¶8 Around 6 a.m., Harrigan drove into an underground parking garage at his
apartment at 512 South Third Street in Champaign. He parked near the north end of the garage,
and Agarwal and Ramelli exited the passenger side of the vehicle. Harrigan retrieved his
winnings from the glove compartment, opened the driver’s side door, and prepared to exit the
vehicle. He had one foot out of the vehicle when he noticed a black male quickly approaching.
Harrigan put the majority of his winnings behind him and “sat on it”; he had about $2500 in a
money clip, which was in his pants pocket. The man brandished a silver revolver with a “short
barrel,” pointed it at Harrigan, and demanded the money. He also pointed it at Agarwal and
Ramelli, who were standing with their hands up next to the passenger side of the vehicle.
Harrigan testified the man kept saying, “give me the bread,” “I know you have money,” and “if
you don’t give me the money, I’m going to start shooting.” Harrigan gave the man his cell phone
and money clip containing his driver’s license, casino card, and $2500, but the man said he knew
there was more and threatened to shoot. Harrigan testified a white or gray car pulled down the
entrance ramp into the parking garage, and the robber took off running toward the car. Harrigan
assumed the robber and car were related because the robber seemed determined to get the
money, but when the car showed up, the robber looked at it and then left, heading toward the car.
Harrigan, Agarwal, and Ramelli ran upstairs to Harrigan’s apartment and called the police.
-3- ¶9 Harrigan described the offender to police as a 5-foot-10-inch, 180-pound black
male in his early twenties. The man “had a dark sweatshirt, no hood, and dark jeans.” His hair
was short and braided into “little tips” on the side and back of his head. When asked about the
man’s facial hair, Harrigan said, “[i]t was short, pretty, pretty trim, you know, light mustache,
went you know, scooped the whole chin up to the ear.”
¶ 10 Later in the afternoon, police detectives showed Harrigan a photographic array of
six possible suspects. Harrigan told the detectives he was “80 to 85 percent sure” the man in
picture two, defendant, was the offender. However, he initialed next to instruction No. 9b, which
states: “I do not recognize anyone from these photos as the suspect.” Harrigan did not make an
in-court identification of defendant.
¶ 11 Harrigan stated, prior to testifying, he viewed footage depicted on the casino’s
surveillance video and it truly and accurately depicted the images of what happened at the
casino. The State then presented a compact disc (CD), which contains five video clips, and
played the first clip for the jury. The video is taken from a camera on top of the hotel’s roof and
overlooks the casino’s parking lot. The recording is in color, has no sound, and is time-stamped
4:29:35 a.m. The picture quality is fair. At 4:30 a.m., the camera pans toward the casino and
zooms in on four individuals who are walking out of the casino toward the parking lot. Harrigan
testified the individuals are himself, Ramelli, Agarwal, and a casino security guard.
Approximately 10 seconds later, a white male wearing a blue jacket, blue jeans, white shoes, and
dark baseball hat exits the casino. Seconds later, one of Harrigan’s friends turns around and
walks back toward the casino. The white male briefly walks out of the camera’s range but
reappears when the camera zooms out. Although the camera follows Harrigan’s escort through
the parking lot, the white male appears at the top right portion of the video and enters the driver’s
-4- door of a silver four-door sedan.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED 2016 IL App (4th) 130180-B August 4, 2016 Carla Bender NO. 4-13-0180 4th District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County MARVINO MISTER, ) No. 12CF611 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Pope concurred in the judgment and opinion.
OPINION ¶1 In December 2012, a jury found defendant, Marvino Mister, guilty of armed
robbery (720 ILCS 5/18-2(a)(2) (West 2010)). In January 2013, the trial court sentenced him to
30 years’ imprisonment with credit for 276 days served. Defendant appealed, arguing (1) plain
error occurred where a witness’s testimony violated the silent witness theory, (2) plain error
occurred where the trial court gave incorrect jury instructions, (3) trial counsel was ineffective,
(4) the State failed to prove him guilty of armed robbery, and (5) fines imposed by the circuit
clerk are void and he is entitled to $1380 in presentence credit. In January 2015, we affirmed in
part, vacated in part, and remanded with directions. People v. Mister, 2015 IL App (4th) 130180,
27 N.E.3d 97. Defendant filed a petition for leave to appeal with the Supreme Court of Illinois.
¶2 On March 30, 2016, the supreme court denied defendant’s petition for leave to
appeal but issued a supervisory order (People v. Mister, No. 118934 (Ill. Mar. 30, 2016) (nonprecedential supervisory order)) directing this court to vacate our prior judgment and
reconsider our decision in light of People v. Thompson, 2016 IL 118667, 49 N.E.3d 393. In
accordance with the supreme court’s direction, we vacate our prior judgment and reconsider in
light of Thompson to determine whether a different result is warranted. We again affirm in part,
vacate in part, and remand with directions.
¶3 I. BACKGROUND
¶4 On April 18, 2012, the State charged defendant by information with armed
robbery (720 ILCS 5/18-2(a)(2) (West 2010)), a Class X felony. The information alleged on
April 12, 2012, defendant took money from Sean Harrigan, a student at the University of Illinois
in Champaign-Urbana, by threatening the imminent use of force while armed with a silver gun.
¶5 A. The Evidence at Trial
¶6 On December 4, 2012, defendant’s jury trial commenced. At trial, Sean Harrigan
testified that on April 11, 2012, he and his two friends, Arman Agarwal and James Ramelli,
drove in Harrigan’s car to Par-A-Dice Hotel and Casino in Peoria, Illinois. They arrived around
7:30 or 8 p.m. Harrigan played craps the entire night and into the early morning hours of April
12, 2012. Agarwal and Ramelli also played craps, but after four or five hours they left to play
poker. Harrigan ended up winning $23,000 and was paid in “two bricks” of $10,000, and the
remaining $3,000 was placed in a white envelope. At 4:29 a.m., a security guard escorted
Harrigan, Agarwal, and Ramelli to Harrigan’s car, which was parked in the casino’s parking lot.
Harrigan saw nothing suspicious while playing craps or walking to his car.
-2- ¶7 The trio left the casino, stopped at a nearby gas station, and purchased sodas for
the ride home. Agarwal and Ramelli went inside the gas station while Harrigan remained in his
car. Harrigan then drove onto Interstate 74 toward Champaign and did not make any stops along
the way; he estimates it took 1 hour and 20 minutes to drive home. Harrigan did not notice
anything suspicious at the gas station or during the ride home.
¶8 Around 6 a.m., Harrigan drove into an underground parking garage at his
apartment at 512 South Third Street in Champaign. He parked near the north end of the garage,
and Agarwal and Ramelli exited the passenger side of the vehicle. Harrigan retrieved his
winnings from the glove compartment, opened the driver’s side door, and prepared to exit the
vehicle. He had one foot out of the vehicle when he noticed a black male quickly approaching.
Harrigan put the majority of his winnings behind him and “sat on it”; he had about $2500 in a
money clip, which was in his pants pocket. The man brandished a silver revolver with a “short
barrel,” pointed it at Harrigan, and demanded the money. He also pointed it at Agarwal and
Ramelli, who were standing with their hands up next to the passenger side of the vehicle.
Harrigan testified the man kept saying, “give me the bread,” “I know you have money,” and “if
you don’t give me the money, I’m going to start shooting.” Harrigan gave the man his cell phone
and money clip containing his driver’s license, casino card, and $2500, but the man said he knew
there was more and threatened to shoot. Harrigan testified a white or gray car pulled down the
entrance ramp into the parking garage, and the robber took off running toward the car. Harrigan
assumed the robber and car were related because the robber seemed determined to get the
money, but when the car showed up, the robber looked at it and then left, heading toward the car.
Harrigan, Agarwal, and Ramelli ran upstairs to Harrigan’s apartment and called the police.
-3- ¶9 Harrigan described the offender to police as a 5-foot-10-inch, 180-pound black
male in his early twenties. The man “had a dark sweatshirt, no hood, and dark jeans.” His hair
was short and braided into “little tips” on the side and back of his head. When asked about the
man’s facial hair, Harrigan said, “[i]t was short, pretty, pretty trim, you know, light mustache,
went you know, scooped the whole chin up to the ear.”
¶ 10 Later in the afternoon, police detectives showed Harrigan a photographic array of
six possible suspects. Harrigan told the detectives he was “80 to 85 percent sure” the man in
picture two, defendant, was the offender. However, he initialed next to instruction No. 9b, which
states: “I do not recognize anyone from these photos as the suspect.” Harrigan did not make an
in-court identification of defendant.
¶ 11 Harrigan stated, prior to testifying, he viewed footage depicted on the casino’s
surveillance video and it truly and accurately depicted the images of what happened at the
casino. The State then presented a compact disc (CD), which contains five video clips, and
played the first clip for the jury. The video is taken from a camera on top of the hotel’s roof and
overlooks the casino’s parking lot. The recording is in color, has no sound, and is time-stamped
4:29:35 a.m. The picture quality is fair. At 4:30 a.m., the camera pans toward the casino and
zooms in on four individuals who are walking out of the casino toward the parking lot. Harrigan
testified the individuals are himself, Ramelli, Agarwal, and a casino security guard.
Approximately 10 seconds later, a white male wearing a blue jacket, blue jeans, white shoes, and
dark baseball hat exits the casino. Seconds later, one of Harrigan’s friends turns around and
walks back toward the casino. The white male briefly walks out of the camera’s range but
reappears when the camera zooms out. Although the camera follows Harrigan’s escort through
the parking lot, the white male appears at the top right portion of the video and enters the driver’s
-4- door of a silver four-door sedan. The video shows Harrigan, his friend, and the security guard
approach Harrigan’s vehicle. They stand next to the vehicle, appear to have a conversation, and
after 25 seconds, the security guard walks back toward the casino. Approximately 16 seconds
later, Harrigan’s other friend left and walked toward the direction of the casino. Harrigan entered
his vehicle and waited for his two friends, who returned a few minutes later. Harrigan’s vehicle
drove away at 4:33 a.m.
¶ 12 The State introduced still photographs taken from various surveillance cameras
located inside the casino. Harrigan testified the photographs fairly and accurately depict what he
was wearing (a plaid shirt and blue jeans). One group contains seven pages of color photographs
and shows Harrigan standing at the craps table. We note each page is divided into four quadrants
showing a different area of the casino. The images are grainy and of poor quality. The craps table
is shown in the bottom right quadrant. A second group of 10 photographs shows a security guard
escorting Harrigan, Agarwal, and Ramelli through the security turnstiles. The first four
photographs show Harrigan’s security escort, and the remaining six photographs depict a white
male following 11 seconds behind Harrigan’s escort.
¶ 13 Arman Agarwal testified to a similar sequence of events as Harrigan. On April 11,
2012, Harrigan drove Agarwal and Ramelli to Par-A-Dice casino. Agarwal played craps at the
same table as Harrigan and Ramelli but stood at the opposite end of the table. He did not talk to
anyone while playing craps. After four hours, Agarwal and Ramelli left the craps table and went
to the third floor to play poker. Agarwal returned to the craps table “once or twice” and was there
when Harrigan won $23,000. When asked how the crowd was acting, Agarwal stated,
“[e]veryone was kind of happy. It was a peppy environment.” Agarwal and Ramelli
accompanied Harrigan to the cashier, and they left the casino together. Agarwal testified they
-5- stopped at a gas station, and he got out of the car to “get some drinks.” During the ride home,
they stayed awake and “talked the entire way back” to Champaign. When asked if he was
watching to see if anything suspicious was happening, Agarwal testified, “No. We were too
caught up in the moment.”
¶ 14 Upon their return to Champaign, Harrigan parked in the garage at 512 South
Third Street. Agarwal and Ramelli exited the car when a man walked up, pointed a gun at
Harrigan’s head, and said, “give me that bread.” The man also pointed the gun at Agarwal and
Ramelli, who were standing next to the passenger side of the car. Agarwal testified Harrigan
gave the man some money, but the man replied, “I know there’s more.” At this time, however,
Agarwal noticed a white or gray four-door sedan entering the parking garage. He testified the car
“took a left, same way we did. It was hovering there. And [the man] looked back, he saw the car,
and he kind of—I think he got spooked maybe.” The man fled toward the garage entrance and
Agarwal, Harrigan, and Ramelli ran upstairs and called the police. Agarwal described the man as
5 feet, 8 inches tall, African-American, with short braided hair, and wearing “a gray hoody and
pants.” He described the gun as a small revolver with a silver barrel.
¶ 15 The State called James Simmons to the stand. Simmons testified he works as a
surveillance shift supervisor for Boyd Gaming Corporation at Par-A-Dice Hotel and Casino. He
has worked in that capacity for seven years and received specialized training for the position. His
responsibilities include monitoring the casino and hotel, following money, “determin[ing] the
play of the games,” and watching “people trying to cheat the casino.”
¶ 16 Simmons testified he is familiar with the entire property comprising Par-A-Dice
Hotel and Casino. The State introduced an aerial view of the property, which is composed of
three parking lots, two buildings, and a large boat docked on Peoria Lake. Blackjack Boulevard
-6- is the main road leading through the property. Simmons explained the hotel is located in a
separate building from the casino and has its own parking lot. A second parking lot is for valet,
and the third parking lot is for the casino. The casino is located in the boat. To get to the boat,
patrons must enter the pavilion. The pavilion has a lobby, several restaurants, security turnstiles,
and two ramps leading to the boat. One ramp is for employees, the other for guests, and both
ramps are located over water. Simmons testified a Shell gas station is located across the street
from Par-A-Dice.
¶ 17 Simmons’s testimony consisted of providing foundation for the surveillance
videos. He said the casino and hotel have more than 450 cameras, which are located both inside
and outside. The casino has two digital systems and one analog system, which is video home
system (VHS) tape. The surveillance room is always staffed, and access is limited to the Illinois
Gaming Board and Boyd Gaming surveillance employees. Simmons explained how the
surveillance system operates, how recordings are preserved, and how they identify cameras that
need to be repaired or replaced. The surveillance system allows Simmons to watch live feeds,
use multiple cameras to track movement through the casino, watch and make copies of past
recordings, and take digital video snapshots (still photographs). The surveillance system also has
“quads that will record 4 shots on one tape or sequencers that record 16 cameras on one tape.”
Every month, a technician reviews the time stamps on each camera to ensure they are within 20
seconds of each other.
¶ 18 On April 12, 2012, at 9:10 a.m., Simmons was advised a casino patron was
robbed upon returning home to Champaign. Simmons reviewed the surveillance footage and
observed a white male “walking out slowly behind [Harrigan’s] group as they were escorted out
to their vehicle.” Simmons quickly identified John Williamson, the white male, as a possible
-7- suspect. When asked how he learned the white suspect’s identity, Simmons explained patrons
who appear to be 30 years old and under are asked to produce valid government-issued
identification. The surveillance system, located at the security turnstiles, takes still photographs
of the individual and their government-issued identification, and it records the date and time the
pictures were taken.
¶ 19 Simmons sent photographs of Williamson and his Illinois identification (ID) card
to the Champaign police department. Shortly thereafter, Simmons was informed a black male
carried out the robbery. In response, Simmons testified, “[w]e started looking at Williamson’s
activities in the casino and on the floor until we observed a black male who was *** with
Williamson.” Simmons identified the black male, Marvino Mister, as a possible suspect and
forwarded pictures of him and his state ID card to Champaign police.
¶ 20 The State introduced, without objection, color photographs of Williamson, Mister,
and the ID cards they presented at the security turnstiles. The images are good quality. People’s
exhibit No. 16 contains two photographs, which are time-stamped “04/11/2012 11:15:55 PM.”
The top photograph shows an Illinois ID card with the name “John K Williamson.” The bottom
photograph shows Williamson looking at the security camera. He is a white male, has buzzed
hair, and is wearing a white T-shirt and navy blue jacket with a white star on his left shoulder
and “YALE” printed across the chest. People’s exhibit No. 17 contains two photographs, which
are time-stamped “4/12/2012 12:04:59 AM.” The top photograph shows an Illinois ID card with
the name “Marvino R Mister.” The bottom photograph shows Mister looking at the security
camera. He is a black male, has braided hair, has light facial hair, and is wearing a black T-shirt
and sweater.
-8- ¶ 21 Simmons further testified he copied surveillance footage from the casino onto two
digital video discs (DVDs). Footage from the hotel’s surveillance system was copied onto a CD.
He forwarded these recordings to the Champaign police department. Simmons testified there
were no errors in the recording system, and he did not alter or delete any portions of the
recordings. Although Simmons did not personally observe the events depicted in the surveillance
recordings, he testified they fairly and accurately portray what happened from April 11, 2012, to
April 12, 2012.
¶ 22 The State introduced the DVDs and CD into evidence without objection and
published them to the jury. The recordings contain 3 hours, 49 minutes of surveillance footage
and cover a time period from 11:15 p.m., April 11, 2012, to 4:38 a.m., April 12, 2012. The video
is captured from numerous cameras, both inside and outside the casino, and has an aspect ratio of
4:3, which is comparable to an old-format television. Each portion of video is imprinted with a
time stamp, allowing the viewer to ascertain the exact time of events among multiple cameras.
Some portions of video have two time stamps, showing the time of the events depicted on the
video and the time Simmons viewed the recording. Surveillance video from inside the casino is
in color, has good picture quality, and has no sound. Some portions of video, however, are
captured from “quads,” or groups of four cameras, and the image quality is grainy and poor.
Video of the casino parking lot is black and white and has no sound, and the picture quality is
poor. Surveillance video from the hotel is in color and has no sound, and the picture quality is
fair. The State also introduced 135 pages of still photographs, made from the surveillance videos,
which were published to the jury without objection.
-9- ¶ 23 During Simmons’s testimony, the State played portions of the surveillance video
for the jury and asked him to describe the layout of the casino and what he was trying to capture
in each clip. For example, the following colloquy occurred:
“BY MS. CLARK: Mr. Simmons, I paused it at 12:00.
When we’re looking at this set of quads, which does not show the
craps table, what are we looking at in the lower right-hand corner?
A. That is the main aisle camera for most of the second
deck of the casino towards the front of the boat. Williamson has
just started walking toward it to exit the vessel.
Q. Okay. And that’s why you recorded this particular—
A. Yes.
Q. —set?
And when we’re looking at this portion of video, which
will appear again, what are we looking at here?
A. That’s the entrance of the casino from the guest ramp at
the very front of the boat.
Q. Okay. This long ramp or hallway, those are the same
ramps that we saw on the overhead picture that would have been
white?
A. Yes.”
¶ 24 Additionally, although Simmons did not personally observe the events depicted
on the surveillance video as they occurred, the State asked him to narrate portions of the video.
For example, the following dialogue occurred:
- 10 - “BY MS. CLARK: Okay. Now I’ve stopped it at 11:18.
Where on this video is the person that you’ve identified as John
Williamson at on this video?
A. He is on the—from our angle, the far side of the corner
of the craps table.
Q. Where did you identify the victim as having played at
that night?
A. The victim is at the left end of the table, partially
blocked with a pillar that’s on the screen right now. And that’s him
kind of leaning in past the pillar.
Q. Now from 11:18 you recorded this particular view until
11:58. During this time, did John Williamson play at this craps
table?
Q. And does the victim play at this craps table?
***
Q. I’m now pausing at 12:07. Who can you identify in this
portion of the recording?
A. That’s Williamson and Mister both walking inside the
casino.
Q. Okay. Is this first time that Mister appears on your
recordings?
- 11 - A. Yes.
Q. Okay. And this hallway that he has come from, what is
at the end of it?
A. The turnstiles where security is.
Q. Okay. At 12:11 you took another recording. Who can
you identify on the video at this time?
A. Williamson is getting ready to walk off of that camera
shot towards the left side of the screen.
Q. To go back down the aisle?
A. Towards the front, yes.
Q. Okay.
A. And that’s Mister walking up to the table.
Q. Okay. Again, this is the same table that Sean Harrigan is
at at that time?
¶ 25 Throughout his testimony, the State asked Simmons how he was able to identify
the individuals depicted in the footage. Simmons testified he was able to follow the suspects
through the casino based on their clothing, gait, the way they walk, and how “it just flows to the
next camera.” Other times, Simmons could see a suspect’s face. The State also asked Simmons
how he was able to identify the individuals depicted in the black-and-white surveillance video,
which is grainy and poor quality:
- 12 - “Q. Now this particular video, the black-and-white video,
it’s hard for you to identify exactly who is there at that point based
upon the black and white?
A. It’s a little tougher, yes.
Q. Okay. Was there any way for you to distinguish?
A. The coat that Williamson had on and then the other
camera at the pavilion when they actually went inside you’ll see a
little better and be able to tell who it is.
Q. When you’re dealing with the black-and-white version,
is there a way that you were able to distinguish?
A. Other than the coat, not really.
Q. Why did you identified [sic] it this time as Williamson?
A. His white T-shirt hanging out at the bottom there and the
height.”
¶ 26 We note, throughout his testimony, Simmons referred to the two suspects by
name, which appeared on the ID cards they presented to security upon entering the casino.
Simmons’s testimony sought to establish the individuals depicted in the still photographs are the
same individuals who appear on the video recordings. Simmons’s testimony was introduced to
track Williamson’s and Mister’s movements through the casino and determine whether they left
the casino in the same car. Simmons did not make a direct in-court identification of defendant;
that is, he never testified any of the individuals depicted in either the still photographs or the
surveillance video was defendant, seated at a specific location in the courtroom.
- 13 - ¶ 27 In general, Simmons testified the surveillance videos show Williamson enter the
casino at 11:15 p.m. He plays craps at the same table as Harrigan. At 12 a.m., midnight, he
leaves the craps table and walks toward the security turnstiles. Defendant enters the casino at
12:04 a.m. At 12:07 a.m., defendant and Williamson walk into the casino and stand next to each
other as they play craps at the same table as Harrigan. At 1:55 a.m., they leave the craps table
and walk toward “the restrooms and the smoking area.” Although Williamson and defendant stop
gambling, surveillance footage shows them exit the casino and enter a silver Pontiac Bonneville,
which is parked in the casino parking lot. Simmons testified they enter and exit the silver
Bonneville “at different points throughout” the night and take turns walking through the casino
past the craps table. At 2:30 a.m., the silver Bonneville drives to the other side of the parking lot,
where it remains for some time. Williamson leaves the casino at 3:16 a.m., but this time, he
walks “to the other side of the parking lot,” where the car had moved. Around 3:40 a.m., the
silver Bonneville returns near its original parking spot. At 4:01 a.m., defendant exits the
passenger side of the vehicle and walks toward the casino but does not enter the pavilion.
Instead, he returns to the silver Bonneville and enters the passenger side door at 4:03 a.m. At
4:27 a.m., Williamson exits the driver’s side of the vehicle and enters the casino at 4:28 a.m. At
4:29 a.m., Williamson walks past Harrigan’s escort. He waits approximately 14 seconds before
turning around to follow Harrigan out of the casino. At 4:30 a.m., Williamson exits the casino 11
seconds after Harrigan, walks to the silver Bonneville, and enters the driver’s side door. At 4:32
a.m., the silver Bonneville leaves the casino parking lot and circles around the hotel parking lot.
Two minutes later, Harrigan’s car leaves the casino parking lot. Williamson’s vehicle pulls in
front of Harrigan’s and both cars drive across the street to a gas station. For about two minutes,
- 14 - the Bonneville is out of view of the cameras. Minutes later, the Bonneville returns and follows
Harrigan’s car in the direction of the highway.
¶ 28 On cross-examination, defense counsel extensively questioned Simmons
regarding the events depicted in the surveillance video. Simmons acknowledged he watched the
surveillance video “a few times.”
¶ 29 Detective Donald Shepard testified on April 12, 2012, he was assigned to
investigate an armed robbery at a parking garage at 512 Third Street. As part of the investigation,
he interviewed Harrigan, Agarwal, and Ramelli. Later that same day, he and Detective Patrick
Funkhouser returned to Harrigan’s apartment to show him a photographic array. Harrigan
identified defendant. He declined to initial next to his picture because he was only 85% certain.
Harrigan told Detective Shepard “the facial features look just like the face. It looked just like the
hair style, looked just like the facial hair style, but he just couldn’t say for sure 100 percent
because he couldn’t see the body.” The same photographic array was presented to Ramelli, but
Ramelli did not identify defendant.
¶ 30 Detective Shepard further testified he interviewed defendant. The interview took
place on the afternoon of April 19, 2012, in Champaign. Defendant denied any involvement with
the robbery and stated he had never been to Champaign. Defendant initially denied knowing
Williamson, but, when shown Williamson’s photograph, defendant said he recognized the person
as “J.K.” The last time defendant saw Williamson was “about a week ago” at the Par-A-Dice
casino. Defendant said he drove to the casino in a rental vehicle, and he was later joined by his
sister and her boyfriend, but they left in the boyfriend’s vehicle. Defendant could not recall
where he rented the vehicle from because “[h]e had somebody rent the vehicle” and “he didn’t
- 15 - know who they were.” Detective Shepard also asked defendant for his sister’s contact
information:
“I asked what her phone number was. He said, oh, it’s
disconnected. It’s out of service. And then he recited a number. He
said that he didn’t know where she lived. He doesn’t know her
birthday. I researched that through records in Peoria. He said she
lived in Peoria, but he didn’t know where. And I researched the
records in Peoria with the police department for the utilities. If you
live in Peoria and you have water or utility services, they have
your records there. They had no record of the name of the woman
that he gave me.”
Detective Shepard was unable to find defendant’s sister. Defendant also told Detective Shepard
his girlfriend’s name was Tanika Williams, but Detective Shepard found her and her name is
Tanika Fullilove. During his testimony, Detective Shepard identified defendant in court, noting,
“[h]e’s seated at the defense table with the white shirt on and with the mustache.”
¶ 31 Detective Robb Morris testified on April 12, 2012, he was assigned to investigate
an armed robbery at 512 South Third Street. As part of the investigation, detectives requested
information from gaming board agents at Par-A-Dice Casino. Agents from the casino provided
video evidence of John Williamson and defendant at the casino, including “still shots of them
and their ID’s.” The gaming board agents believed the suspects’ vehicle was a “silver sedan,
likely a Pontiac Bonneville.”
¶ 32 On April 19, 2012, Detectives Morris and Funkhouser transported defendant from
Peoria, where he was arrested, to Champaign. During the car ride, Detective Morris read
- 16 - defendant his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) and recorded an
interview with him. Defendant initially denied knowing John Williamson, but when detectives
showed him a photograph and referred to Williamson by his nickname, “J.K.,” defendant
admitted he knew him. Defendant said he last saw Williamson “about a week ago” at the Par-A-
Dice casino. Defendant’s sister and her boyfriend were also at the casino. Defendant said his
sister and her boyfriend gave him a ride home in a blue Intrepid. He left the casino “close to 4
a.m.” The State introduced the recorded interview into evidence and played it for the jury.
¶ 33 At defendant’s April 20, 2012, arraignment, Tanika Fullilove (defendant’s
girlfriend) approached Detective Morris. Morris learned Fullilove drove to the courthouse in a
silver Pontiac Bonneville, and he obtained a search warrant to search the vehicle. Defendant’s
cell phone was found inside the vehicle, but it was not the phone defendant had on the night of
the robbery. Morris testified defendant obtained a new cell phone after the robbery but before his
arrest one week later, and he transferred his old number to it. Morris testified Williamson drives
a white Cadillac Deville.
¶ 34 As part of the investigation, Detective Morris obtained cell phone records from
Williamson’s U.S. Cellular account. Detective Morris testified there were five phone calls
between defendant’s phone and Williamson’s phone between 11:48 p.m. and 12:04 a.m. No
other calls were exchanged between the two that evening. Defendant’s phone records show his
phone was turned off or out of battery at 3:12 a.m.
¶ 35 The parties stipulated the phone records included raw data, which was used to
pinpoint Williamson’s cell phone location between April 11, 2012, and April 12, 2012. Satellite
images of Williamson’s phone show movement along Interstate 74 between Peoria and
Champaign. Detective Morris testified it takes 1 1/2 hours to drive from Champaign to Peoria. At
- 17 - 5:21 a.m., Williamson’s phone was near LeRoy, Illinois, when a call was placed to Leavell
Allen. Williamson placed three more calls to Allen within the immediate vicinity of Champaign,
at 5:48 a.m., 6:06 a.m., and 6:15 a.m. The armed robbery occurred just before 5:56 a.m. At 6:48
a.m., a call was made along Interstate 74 northwest of LeRoy. At 6:57 a.m., a call was placed
around Bloomington, Illinois. Two more calls were made between Bloomington and Peoria at
7:08 a.m. and 7:16 a.m. At 7:33 a.m., defendant’s girlfriend’s phone called Williamson’s phone
near the river in Peoria. The State admitted into evidence 41 pages of satellite images from
Google Earth, pinpointing Williamson’s cell phone location, as well as 46 pages of raw data
from U.S. Cellular, and published it to the jury. During his testimony, Detective Morris
identified defendant in court, noting he is “[t]he young man in the white button down shirt
behind the chair.”
¶ 36 At the close of the State’s evidence, defense counsel moved for a directed verdict,
which the trial court denied. Defendant did not testify or present any evidence.
¶ 37 B. Jury Instructions
¶ 38 The trial court instructed the jury on the definition of armed robbery as follows:
“A person commits the offense of armed robbery when he, while carrying on or about his person
or while otherwise armed with a dangerous weapon, knowingly takes property from the person
or presence of another by the use of force or by threatening the imminent use of force.” The trial
court also read an instruction as to the elements of armed robbery. The trial court informed the
jury the State had the burden to prove “the defendant or one for whose conduct he is legally
responsible carried on—carried on or about his person a dangerous weapon or was otherwise
- 18 - armed with a dangerous weapon at the time of the taking.” The jury received these instructions in
writing. Defendant did not object to the oral and written instructions given to the jury.
¶ 39 Following deliberations, the jury found defendant guilty of armed robbery. In
January 2013, the trial court sentenced him to 30 years’ imprisonment but did not impose any
fines. The written sentencing order, dated January 18, 2013, and signed by Judge Difanis,
required defendant to serve 30 years’ imprisonment with credit for the 276 days served, and it
ordered defendant to “pay costs of prosecution herein.”
¶ 40 This appeal followed.
¶ 41 II. ANALYSIS
¶ 42 On appeal, defendant argues the trial court committed plain error when it (1)
violated the silent witness theory by allowing Simmons to narrate the events depicted on the
surveillance video and (2) gave incorrect jury instructions, misdescribing an element of the
offense. Assuming arguendo we find no plain error, defendant asserts trial counsel provided
ineffective assistance for failing to object to Simmons’s testimony and the jury instructions.
Defendant further contends the State failed to prove him guilty of armed robbery beyond a
reasonable doubt. Finally, he maintains fines imposed by the circuit clerk are void and he is
entitled to $1380 in presentence credit.
¶ 43 A. Plain Error
¶ 44 “The plain-error doctrine is a limited and narrow exception to the general rule of
procedural default ***.” People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009).
“Under the plain-error doctrine, this court will review forfeited challenges when: (1) a clear or
- 19 - obvious error occurred and the evidence is so closely balanced that the error alone threatened to
tip the scales of justice against the defendant; or (2) a clear or obvious error occurred, and the
error is so serious that it affected the fairness of the defendant’s trial and the integrity of the
judicial process, regardless of the closeness of the evidence.” People v. Taylor, 2011 IL 110067,
¶ 30, 956 N.E.2d 431. As a matter of convention, reviewing courts typically undertake plain-
error analysis by first determining whether error occurred at all. People v. Sargent, 239 Ill. 2d
166, 189, 940 N.E.2d 1045, 1059 (2010). “If error is found, the court then proceeds to consider
whether either of the [aforementioned] two prongs of the plain-error doctrine have been
satisfied.” Id. at 189-90, 940 N.E.2d at 1059. However, when a record clearly shows that plain
error did not occur, we can reject that contention without further analysis. People v. Bowens, 407
Ill. App. 3d 1094, 1108, 943 N.E.2d 1249, 1264 (2011). We first address whether any error
occurred at all.
¶ 45 1. Silent Witness Theory
¶ 46 Under the silent witness theory, a surveillance video may be admissible as
substantive evidence in the absence of authentication by an eyewitness with personal knowledge
of the content if there is adequate proof of the reliability of the process that produced the
recording. Taylor, 2011 IL 110067, ¶ 35, 956 N.E.2d 431. Under this theory, it is not necessary
for a witness to testify to the accuracy of the images depicted in the video so long as the accuracy
of the process used to produce the evidence is established with an accurate foundation. Id. ¶ 32,
956 N.E.2d 431. This is so because the evidence is “ ‘received as a so-called silent witness or as
a witness which “speaks for itself.” ’ ” Id. (quoting Jordan S. Gruber, Foundation for
Contemporaneous Videotape Evidence, in 16 Am. Jur. Proof of Facts 3d 493, § 5, at 508 (1992)).
- 20 - ¶ 47 In this case, defendant does not challenge the admissibility of the surveillance
videos or the still photographs as substantive evidence. Rather, he contends he was denied a fair
trial because the trial court permitted Simmons, who lacked personal knowledge, to narrate the
events depicted in the surveillance videos. Defendant argues this testimony invaded the province
of the jury and, therefore, requires a new trial.
¶ 48 We previously conducted a de novo review of whether it was proper for a witness
to narrate the contents of a video without personal knowledge of the events portrayed in the
video. See People v. Sykes, 2012 IL App (4th) 111110, ¶ 30, 972 N.E.2d 1272. After addressing
the legal issue, we found, based on the circumstances presented, the trial court did not err in
admitting Simmons’s testimony. We are now charged with reconsidering our conclusions in light
of the supreme court’s decision in Thompson. Mister, No. 118934 (Ill. Mar. 30, 2016)
(nonprecedential supervisory order).
¶ 49 a. Prior Legal Analysis
¶ 50 Effective January 1, 2011, Illinois adopted rules of evidence. Generally, a witness
must testify only to facts based on personal knowledge. Ill. R. Evid. 602 (eff. Jan. 1, 2011). A
witness may give opinion testimony if it is (1) rationally based on the perception of the witness
and (2) helpful to a clear understanding of the testimony or determination of a fact in issue. Ill.
R. Evid. 701 (eff. Jan. 1, 2011). Testimony otherwise admissible in the form of an opinion or
inference is not objectionable simply because it embraces an ultimate issue the trier of fact must
decide. Ill. R. Evid. 704 (eff. Jan. 1, 2011).
¶ 51 For instance, we have held a witness acquires personal knowledge where he or
she observes an incident, at the time it occurred, through a live video feed. People v. Tomei, 2013
- 21 - IL App (1st) 112632, ¶ 41, 986 N.E.2d 158. We explained a witness’s testimony about what he
or she observed on a live video feed is no different than if he or she “had been 100 yards away
from defendant at the time of the incident but they needed a telescope to observe what was
happening. As long as the telescope was functioning properly, we see no reason why they would
not be able to testify as to what they observed.” People v. Tharpe-Williams, 286 Ill. App. 3d 605,
611, 676 N.E.2d 717, 721 (1997).
¶ 52 Moreover, Illinois has long allowed identification testimony by witnesses who did
not personally observe events depicted in a video recording. People v. Starks, 119 Ill. App. 3d
21, 25, 456 N.E.2d 262, 265 (1983). In establishing the standard for admission of such
testimony, Illinois looked to the Federal Rules of Evidence and procedures adopted by other
jurisdictions. Id.
¶ 53 In Starks, a case tried prior to Illinois’s adoption of the rules of evidence, we
found no error where the trial court admitted testimony from several correctional officers who
identified defendants involved in a prison riot after viewing a videotape of the riot. Id. The
officers were familiar with the defendants and had seen the defendants on many occasions prior
to the riot. Id. at 26, 456 N.E.2d at 265. Additionally, the defendants were in the background of
the video, making it difficult for the jurors to make the identification. Since the officers were
familiar with the defendants’ mannerisms and body movements, it was easier for them to identify
the defendants than it was for the jurors. Id. at 26, 456 N.E.2d at 266. Relying on two decisions
from California and one from Washington, we concluded identification testimony was an
appropriate aid to the trier of fact in instances where the surveillance did not render a clear
depiction. Id. at 25-26, 456 N.E.2d at 265 (citing People v. Mixon, 180 Cal. Rptr. 772 (Ct. App.
1982), People v. Perry, 131 Cal. Rptr. 629 (Ct. App. 1976), and State v. Jamison, 613 P.2d 776
- 22 - (Wash. 1980)). Based on Mixon, Perry, and Jamison, we determined the officers’ testimony
“was rationally based upon the witnesses’ personal knowledge of the defendants before the
occurrence and their perception of what they saw in the videotapes.” Id. at 26, 456 N.E.2d at
266. The officers’ testimony helped the jury resolve the issue of identification and did not invade
the province of the jury. Id.
¶ 54 Various panels of our appellate court have read Starks as establishing a two-part
test: identification testimony of a lay witness who has no personal knowledge of the events
depicted on a videotape is admissible where (1) the witness is familiar with the defendant prior to
the offense and (2) the testimony aids the trier of fact in resolving the issue of identification and
does not invade the jury’s fact-finding duties. People v. Thompson, 2014 IL App (5th) 120079,
¶ 29, 21 N.E.3d 1 (citing Starks, 119 Ill. App. 3d at 25, 456 N.E.2d at 265, Sykes, 2012 IL App
(4th) 111110, ¶ 35, 972 N.E.2d 1272, and People v. Owens, 394 Ill. App. 3d 147, 154, 914
N.E.2d 1280, 1286 (2009)). Appellate decisions have found two situations where testimony is
helpful to the trier of fact: “The first type of situation is where a defendant’s appearance has
changed between the time of the recording and date of trial. The second category is where the
video is an unclear or limited depiction.” Thompson, 2014 IL App (5th) 120079, ¶ 29, 21 N.E.3d
1.
¶ 55 For example, in Sykes, 2012 IL App (4th) 111110, ¶ 37, 972 N.E.2d 1272, a case
cited by defendant, we applied Starks to hold a loss-prevention manager’s testimony violated the
silent witness theory of admissibility. There, the manager lacked firsthand knowledge of the
events depicted on the video because he reviewed surveillance footage after the theft occurred.
Additionally, because the video was only three minutes in duration and defendant was the only
person portrayed in the video, we found the manager was in no better position to determine
- 23 - whether defendant removed money from the register, and, thus, his opinion testimony invaded
the province of the jury. Id. ¶ 42, 972 N.E.2d 1272.
¶ 56 As noted above, Illinois adopted its own rules of evidence effective January 1,
2011. The Fifth District held “Starks’ interpretation of the Federal Rules of Evidence is
consistent with the subsequently enacted Illinois rules.” Thompson, 2014 IL App (5th) 120079,
¶ 30, 21 N.E.3d 1. The Fifth District reiterated the rule in Starks as follows:
“Starks would allow witnesses to identify a defendant from a
recorded image if his appearance had changed or the image was
unclear. Starks found that in such instances, the identifications
were an aid to the jury. On the other hand, if the standards of
Starks are not met, such an opinion would serve no utility and the
province of the jury is invaded.” Id. ¶ 40, 21 N.E.3d 1 (citing
Starks, 119 Ill. App. 3d at 26, 456 N.E.2d at 266).
¶ 57 In our initial disposition, we found it significant the Fifth District reached its
conclusion without looking to federal law for guidance, noting, while federal law is only
persuasive authority, the language employed in Illinois Rules 701 and 704 is identical to Federal
Rules 701 and 704(a). Moreover, we found Thompson’s narrow reading of Starks’s so-called
“two-part” test goes beyond the precedential scope of the decision (see People v. Flatt, 82 Ill. 2d
250, 261, 412 N.E.2d 509, 515 (1980) (“It is well settled that the precedential scope of a decision
is limited to the facts before the court.”); in any case, we were not required to follow the
decisions of sister districts or, for that matter, our own prior decisions. O’Casek v. Children’s
Home & Aid Society of Illinois, 229 Ill. 2d 421, 440, 892 N.E.2d 994, 1006-07 (2008). We
further noted Starks relied on appellate decisions from California and Washington to support its
- 24 - holding. We declined to follow the Fifth District’s holding in Thompson because the analysis
ignored how cases interpreting the federal rules of evidence changed during the past 30 years.
¶ 58 Because Illinois Rules of Evidence 701 and 704 (eff. Jan. 1, 2011) are identical to
Federal Rules of Evidence 701 and 704(a) (eff. Dec. 1, 2011), we turned to federal jurisdictions
for guidance.
¶ 59 A significant majority of jurisdictions that have addressed lay opinion testimony
have held a lay witness may testify regarding the identity of a person depicted in a surveillance
video if there is some basis for concluding the witness is more likely to correctly identify the
defendant from the videotape than the jury. See, e.g., United States v. Jackman, 48 F.3d 1 (1st
Cir. 1995); United States v. Henderson, 68 F.3d 323 (9th Cir. 1995); United States v. Stormer,
938 F.2d 759 (7th Cir. 1991); United States v. Allen, 787 F.2d 933 (4th Cir. 1986), judgment
vacated on other grounds, Allen v. United States, 479 U.S. 1077 (1987); United States v.
Farnsworth, 729 F.2d 1158 (8th Cir. 1984); United States v. Borrelli, 621 F.2d 1092 (10th Cir.
1980); United States v. Pierce, 136 F.3d 770 (11th Cir. 1998). A small minority of jurisdictions
have disfavored the admission of lay opinion testimony regarding the identity of a person
depicted in surveillance video. United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976); see also
United States v. Robinson, 544 F.2d 110, 113 n.4 (2d Cir. 1976) (stating “it is not improper to
exclude the testimony of lay witnesses asked to render an opinion whether the individual in a
bank photograph is the defendant”). However, even the minority of jurisdictions have not
adopted a per se rule excluding such lay opinion testimony.
¶ 60 Among the courts in the majority, a few have based the admission of lay opinion
testimony on whether defendant’s appearance in the videotape was different from his appearance
at trial. Farnsworth, 729 F.2d at 1160; Borrelli, 621 F.2d at 1095. However, other courts have
- 25 - explicitly rejected a change in the defendant’s appearance as a requirement for admitting lay
opinion testimony. Stormer, 938 F.2d at 761; Allen, 787 F.2d at 936. Those courts that do not
require a change in the defendant’s appearance have reasoned the evidentiary rule only requires
lay opinion testimony be “helpful” to the jury, and such testimony is helpful even when the
defendant’s appearance has not changed. Stormer, 938 F.2d at 761; Allen, 787 F.2d at 936-37.
These courts also note an unclear image may make a lay witness’s opinion testimony particularly
helpful in identifying the person in the surveillance videotape.
¶ 61 Various jurisdictions among the majority have further differed on the level of
familiarity the witness must have with the defendant. In United States v. Jackson, 688 F.2d 1121,
1125 (7th Cir. 1982), the Seventh Circuit Court of Appeals held a lay witness’s opinion as to the
identity of the defendant in a surveillance photograph was proper even though the witness had
only met the defendant once at a Christmas party. See also United States v. Axselle, 604 F.2d
1330, 1338 (10th Cir. 1979) (a single telephone call, combined with hearing a voice in court, is
sufficient for voice identification testimony to go to the jury); United States v. Zepeda-Lopez,
478 F.3d 1213, 1220, 1222 (10th Cir. 2007) (Federal Bureau of Investigation agent’s testimony
was helpful to the jury where he looked at the video “many times” in forming his opinion that
defendant was depicted in the video); United States v. Kornegay, 410 F.3d 89, 95 (1st Cir. 2005)
(contact with the defendant six times within a few months was sufficient for the detective to
identify defendant in surveillance pictures); United States v. Beck, 418 F.3d 1008, 1015 (9th Cir.
2005) (witness sufficiently familiar with defendant to offer identification testimony of defendant
in surveillance video where he had met with him four times). In Henderson, 68 F.3d at 326, the
Ninth Circuit Court of Appeals held: “Instead of any particular amount of sustained contact, we
require a lay witness to have sufficient contact with the defendant to achieve a level of
- 26 - familiarity that renders the lay opinion helpful.” However, the Ninth Circuit excluded lay witness
testimony in United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993), holding the lay
witness did not have sufficient contact with the defendant where the witness had never seen the
defendant in person and was familiar with his appearance only through other photographs and
witness’s descriptions.
¶ 62 In general, “courts have been liberal in determining the extent of perception
required to satisfy the first requirement of Rule 701.” United States v. Bush, 405 F.3d 909, 916
(10th Cir. 2005). All courts among the majority agree a lay witness who has sufficient familiarity
with the defendant may properly testify as to the identity of the defendant in a surveillance
videotape. Moreover, several jurisdictions agree that whether a lay witness’s prior contacts with
the defendant are extensive enough to permit a proper identification is a matter of weight for the
jury, not admissibility. United States v. Wright, 904 F.2d 403, 405 (8th Cir. 1990); Allen, 787
F.2d at 936; Jackson, 688 F.2d at 1125.
¶ 63 In United States v. Begay, 42 F.3d 486, 502 (9th Cir. 1994), a case cited by the
State, an officer provided narrative testimony regarding a video of a demonstration involving
approximately 200 demonstrators that resulted in violence. The officer reviewed the video more
than 100 times, copied portions of the video in slow motion, magnified and enhanced its quality
to help identify the individuals depicted, and assessed more than 800 photographs taken during
the incident. He then added circles and arrows to help the jury follow the defendants’
movements. Id. Although the officer was not present when the actual events took place, his
testimony consisted of narrating portions of the video. The defendant appealed, arguing the
officer’s testimony was not admissible under Rule 701 because his testimony was not based on
his own perceptions. The United States Court of Appeals for the Ninth Circuit disagreed. The
- 27 - court held the officer’s perceptions did not need to be based on the “live” events of the crime
because he was not providing an eyewitness account. Id. Rather, the officer was testifying only
with respect to the scenes depicted in the videotape; therefore, he needed only to have perceived
the video. Id. Thus, the Ninth Circuit rejected the defendant’s argument that the officer’s
testimony was cumulative and invaded the province of the jury. The court further reasoned the
officer’s testimony likely helped the jury evaluate the video. The court explained:
“Moreover, we agree with the District Court that [the
officer’s] testimony *** was likely to have been helpful to the jury
in evaluating [the videotape]. Although the jury viewed [the
videotape] in its entirety, it is reasonable to assume that one
viewing a videotape of a demonstration involving over 200 people
would likely not see certain details, given the tremendous array of
events all occurring simultaneously. [The officer] spent over 100
hours viewing [the videotape]. To have the jury do likewise would
be an extremely inefficient use of the jury’s and the court’s time.
Therefore, [the officer’s] testimony concerning which persons
were engaged in what conduct at any given moment could help the
jury discern correctly and efficiently the events depicted in the
videotape.” Id. at 503.
¶ 64 Similarly, courts have departed from the rule requiring the witness to have
“previously acquired familiarity” or “personal knowledge” of the defendant’s appearance before
or at the time of the event.
- 28 - ¶ 65 In People v. Larkins, 131 Cal. Rptr. 3d 911, 917-18 (Ct. App. 2011), the
California Appellate Court distinguished Mixon and Perry—cases we relied on in Starks—to
hold a loss-prevention manager’s testimony was admissible where he observed defendant in
surveillance recordings. There, a loss-prevention manager testified the defendant, who was not a
member of the chain of gyms, was the person depicted in the surveillance video. The manager
said he was able to recognize the defendant because he had seen him in 20 to 30 surveillance
videos. The appellate court rejected the defendant’s contention the manager’s testimony was
inadmissible under Mixon and Perry because he had no “previously acquired familiarity” or
“personal knowledge” of the defendant’s appearance. The court reasoned:
“It is thus clear that Perry’s, and, therefore, Mixon’s
insistence on the lay witness being familiar with the defendant
prior to or at the time the picture was taken (which was during the
crime) is because in each case, the defendant had altered his
appearance between the crime and trial. No such alteration
occurred here. *** The second thing to remember about Perry and
Mixon is that they involved still photos. It is one thing to see a
single photo of a person and attempt to identify that person based
on it. But, here, the manager saw 20 to 30 videos of defendant,
during which time he could observe such distinguishing
characteristics as defendant’s posture, gait and body movements.
Thus, whatever the holdings of Perry and Mixon, they are logically
inapplicable to videos. Finally, Perry and Mixon correctly point
out that the degree of knowledge of the subject by the identifier is
- 29 - a matter of weight, not admissibility. At some point, which the
record does not disclose, the manager saw defendant’s driver’s
license and his booking photo and, therefore knew the name of the
person he was seeing in the videos.” Id.
The court concluded, “[i]t does not matter at what point in his viewing of the videos—either
before, during or after—that he saw what were indisputably photos of the defendant, and then
could put a name to the images he saw.” Id. at 918. The court further reasoned:
“The manager looking at two photographs of defendant is no
different than the police officers in Perry and Mixon seeing the
defendant during prior contacts with them. One can be sufficiently
familiar with a person by seeing photos of him to later identify him
in the same or another medium. We do not doubt that a starstruck
young lady who has seen pictures of Justin Bieber in magazines
could easily identify him were she to see him on a video, on
television or in person.” Id.
The court in Larkins therefore held the manager “ ‘acquir[ed] knowledge “through one’s senses”
by personal observation,’ ” as required by Mixon and Perry. Id.
¶ 66 Indeed, other states have allowed witnesses to testify concerning information they
viewed on videotape. See, e.g., Vinson v. State, 735 N.E.2d 828, 835 (Ind. Ct. App. 2000) (trial
court properly allowed the police officer to testify with regard to his opinion that Vinson was the
person depicted in the surveillance video, where the officer had the opportunity to view the video
15 to 20 times), disapproved of on other grounds in Long v. State, 743 N.E.2d 253 (Ind. 2001);
Domingo v. Boeing Employees’ Credit Union, 98 P.3d 1222, 1226 (Wash. Ct. App. 2004)
- 30 - (witness’s statements as to what the videotapes contained were based on personal knowledge
where witness had viewed the videotapes herself but was not physically present at the events
depicted in the videotape); People v. Fomby, 831 N.W.2d 887, 890 (Mich. Ct. App. 2013);
Robinson v. People, 927 P.2d 381, 384 (Colo. 1996); Moreland v. State, 53 A.3d 449, 455 (Md.
Ct. Spec. App. 2012); People v. Hardy, 981 N.Y.S.2d 722 (App. Div. 2014); State v. Ely, 690
N.W.2d 698 (Iowa Ct. App. 2004) (table); State v. Hardy, 884 P.2d 8 (Wash. Ct. App. 1994);
Nooner v. State, 907 S.W.2d 677 (Ark. 1995); State v. Morrill, 681 A.2d 369 (Conn. App. Ct.
1996).
¶ 67 Following our review, we adopted the majority view and held (1) a lay witness
may testify regarding the identity of a person depicted in a surveillance video if there is some
basis for concluding the witness is more likely to correctly identify the individual from the
videotape than is the jury; (2) the lay witness’s familiarity with the person goes to the weight to
be given to the witness’s testimony, not the admissibility of such testimony; and (3) the person’s
appearance need not have changed from the time of the videotape to the time of trial, so long as
the lay opinion testimony is helpful to the jury. Thus, we held, although the witness must be in a
better position than the jurors to identify the individuals captured by the camera, this does not
require the witness to have prior knowledge of those individuals; nor does it require those
individuals to have changed their appearance. In accordance with the supreme court’s directive,
we turn to Thompson to determine if these legal findings were in error. Mister, No. 118934 (Ill.
Mar. 30, 2016) (supervisory order).
- 31 - ¶ 68 b. Thompson
¶ 69 In Thompson, 2016 IL 118667, 49 N.E.3d 393, the supreme court addressed the
admissibility of lay opinion identification testimony under Illinois Rule of Evidence 701 (eff.
Jan. 1, 2011). As Rule 701 was modeled after its federal counterpart (Fed. R. Evid. 701), the
court looked to federal law, as well as state decisions interpreting similar rules for guidance.
Thompson, 2016 IL 118667, ¶¶ 40-49, 49 N.E.3d 393.
¶ 70 The supreme court declined to adhere to the two-part test of Starks that the
appellate court relied upon, finding it to be at odds with the great weight of authority. Id. ¶ 52.
Specifically, the court (1) found a witness need not have familiarity with the defendant before or
at the time of the recording to testify and (2) rejected Starks to the extent it limited identification
testimony solely to those instances where either the defendant’s appearance had changed
between the time of the recording and trial or where the recording lacked clarity to render such
testimony admissible. Id.
¶ 71 The supreme court held lay opinion identification testimony is admissible where
“(a) the testimony is rationally based on the perception of the witness and (b) the testimony is
helpful to a clear understanding of the witness’s testimony or a determination of a fact in issue.”
Id. ¶ 50. As it related to an identification from a surveillance recording, the court found such
testimony helpful where “there is some basis for concluding the witness is more likely to
correctly identify the defendant from the surveillance recording than the jury.” Id.
¶ 72 To determine whether a basis exists by which a witness is more likely to correctly
identify the defendant, the court found: “A showing of sustained contact, intimate familiarity, or
special knowledge of the defendant is not required. Rather, the witness must only have had
contact with the defendant, that the jury would not possess, to achieve a level of familiarity that
- 32 - renders the opinion helpful.” Id. The court adopted a totality of the circumstances approach that
considers the following factors:
“the witness’s general familiarity with the defendant; the
witness[’s] familiarity with the defendant at the time the recording
was made or where the witness observed the defendant dressed in a
manner similar to the individual depicted in the recording; whether
the defendant was disguised in the recording or changed his/her
appearance between the time of the recording and trial; and the
clarity of the recording and extent to which the individual is
depicted.” Id. ¶ 51.
The court noted “the absence of any particular factor does not render the testimony
inadmissible.” Id. In addition, the court found “the extent of a witness’s opportunity to observe
the defendant goes to the weight of the testimony, not its admissibility.” Id. ¶ 53. Finally, even if
admissible, the court noted lay opinion identification testimony may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. Id. ¶ 54 (quoting Illinois
Rule of Evidence 403 (eff. Jan. 1, 2011)).
¶ 73 The supreme court concluded: “If such testimony is admitted under the above
standards, it would not invade the province of the jury because the jury is free to reject or
disregard such testimony and reach its own conclusion regarding who is depicted in the
surveillance recording.” Id. The court further indicated a trial court’s decision to admit lay
opinion identification testimony should be reviewed for an abuse of discretion. Id. ¶ 53.
¶ 74 After review, we conclude our previous legal findings are consistent with those of
Thompson. With the additional guidance of Thompson, we turn to the specific facts of the case
- 33 - presented to determine whether a different result is warranted. We review the trial court’s
decision to admit Simmons’s lay opinion testimony for an abuse of discretion.
¶ 75 c. Simmons’s Lay Opinion Testimony
¶ 76 We find Simmons’s testimony was rationally based on his perception of the
video. We recognize Simmons was not present and did not observe anything at the casino while
the events took place, but we find, when analyzing the perception of the witness under Illinois
Rule of Evidence 701 (eff. Jan. 1, 2011), the focus is properly placed on Simmons’s perception
of the video. See People v. Gharrett, 2016 IL App (4th) 140315, ¶¶ 72-73, 53 N.E.3d 332. Just
like Begay and Larkins, Simmons watched surveillance footage from numerous cameras placed
throughout the casino’s property to track defendant’s movement during the entire five-hour
period he was at the casino. He produced short clips and isolated certain frames to create still
images—including color photographs of defendant and defendant’s driver’s license. On the basis
of his close scrutiny of the surveillance footage and the 135 pages of still photographs he created,
Simmons’s opinions were ultimately derived from his repeated viewings of the video, which he
highly scrutinized. Simmons had the benefit of reviewing the video numerous times, giving him
the opportunity to comprehend the events transpiring on the video and to determine the identity
of the participants.
¶ 77 We also find Simmons’s testimony helpful to the trier of fact. His testimony
linked individuals depicted in the surveillance video as being the same individuals depicted in
the still photographs. Here, the ultimate issue was whether defendant carried out the armed
robbery in Champaign. The purpose of Simmons’s testimony was to determine whether the black
suspect left the casino in the same car as the white suspect, which followed the victim’s car
- 34 - toward Interstate 74. Although Simmons referred to the suspects by name (as stated on their state
ID cards), he did not testify any of the individuals depicted in either the still photographs or
surveillance video was defendant. See, e.g., Larkins, 131 Cal. Rptr. 3d at 917-18. His opinions
were intended to provide a clearer understanding about whether defendant and Williamson were
at the casino, left the casino in same vehicle, and followed Harrigan home. Just like Begay, the
video contains nearly four hours of footage, lacks clarity, is difficult to assess, and involves fluid
scenes and numerous individuals and vehicles. One would likely miss certain details considering
the wide array of events captured by surveillance cameras located throughout the casino and
parking lots. Simmons acknowledged he had to view the videotape a “few times” before
indentifying a black male as a possible suspect. To have the jury do likewise would be an
extremely inefficient use of the jury’s and the court’s time. As a result, Simmons’s testimony
was helpful to the jury.
¶ 78 Finally, the weight to be given to Simmons’s lay opinion testimony is for the trier
of fact to assess. This rule assumes the adversarial system will generally lead to an acceptable
result, because any inadequacies in the admitted testimony can be highlighted through cross-
examination. Bush, 405 F.3d at 916 (citing Fed. R. Evid. 701, Advisory Committee Notes on
Proposed Rules). Here, defendant’s counsel extensively cross-examined Simmons and had the
opportunity to highlight any deficiencies in his testimony regarding his familiarity with
defendant or the clarity of the videotape. Because the jury had the benefit of any cross-
examination testimony in determining the weight to place on Simmons’s identification, the
province of the jury was not compromised.
¶ 79 Because Simmons’s testimony was (1) rationally based his own perception of the
video and (2) helpful for the jury to determine whether the two individuals played craps at Par-
- 35 - A-Dice casino earlier in the evening, Simmons’s testimony was admissible under Illinois Rule of
Evidence 701 (eff. Jan. 1, 2011). Defendant has further failed to demonstrate the testimony was
overly prejudicial. Since we find the trial court did not err by allowing Simmons to narrate the
surveillance video, we need not proceed further through the plain-error analysis.
¶ 80 2. Jury Instructions
¶ 81 Defendant next asserts we must reverse his conviction of armed robbery because
the jury was not correctly instructed as to the elements of the offense. The State charged
defendant with armed robbery while armed with a firearm. At the jury instruction conference, the
State tendered various instructions, without objection, to the trial court. In turn, the trial court
instructed the jury defendant allegedly committed the offense while armed with a dangerous
weapon. According to defendant, since the jury was never instructed being armed with a firearm
was an element of the offense, it did not find defendant guilty of every element of the offense.
Alternatively, defendant argues the armed robbery statute under which he was indicted explicitly
excludes a firearm as a dangerous weapon and thus the jury found him guilty of a nonexistent
offense, which renders his conviction void.
¶ 82 Defendant concedes he forfeited the issue because he neither objected to the jury
instructions offered by the State nor raised the issue in a posttrial motion. People v. Enoch, 122
Ill. 2d 176, 186, 522 N.E.2d 1124, 1129 (1988). Defendant argues we may address his argument
under the plain-error doctrine. We therefore turn to the first step of plain-error review and
determine whether an error occurred.
¶ 83 Jury instructions are intended to guide the jury and assist in its deliberations and
in reaching a proper verdict. People v. Parker, 223 Ill. 2d 494, 501, 861 N.E.2d 936, 939 (2006).
- 36 - “The task of a reviewing court is to determine whether the instructions, considered together, fully
and fairly announce the law applicable to the theories of the State and the defense.” People v.
Mohr, 228 Ill. 2d 53, 65, 885 N.E.2d 1019, 1026 (2008). We review de novo whether jury
instructions accurately convey the law. People v. Watt, 2013 IL App (2d) 120183, ¶ 30, 1 N.E.3d
1145 (citing Parker, 223 Ill. 2d at 501, 861 N.E.2d at 939).
¶ 84 Here, defendant was charged with committing armed robbery while carrying a
“firearm,” but the definitional instruction given to the jury discussed being armed with a
“dangerous weapon.” See Illinois Pattern Jury Instructions, Criminal, No. 14.05 (4th ed. 2000)
(hereinafter, IPI Criminal 4th No. 14.05) (noting that a “person commits the offense of armed
robbery when he, while carrying on or about his person, or while otherwise armed with a
dangerous weapon” takes property with force or threat of force). Similarly, the instruction listing
the elements for armed robbery mentioned a dangerous weapon, rather than a firearm. See
Illinois Pattern Jury Instructions, Criminal, No. 14.06 (4th ed. 2000) (hereinafter, IPI Criminal
4th No. 14.06) (“To sustain the charge of armed robbery, the State must prove *** [t]hat the
defendant *** carried on or about his person a dangerous weapon ***.”).
¶ 85 These instructions do not accurately state the law. The armed robbery statute was
amended effective January 1, 2000, and the amendment created substantively distinct offenses
based on whether the offense was committed with a “firearm” or a dangerous weapon “other
than a firearm.” (Internal quotation marks omitted.) People v. Washington, 2012 IL 107993, ¶ 6,
969 N.E.2d 349; compare 720 ILCS 5/18-2(a)(2) (West 2010) with 720 ILCS 5/18-2(a)(1) (West
2010). By referring to a “dangerous weapon,” the jury instructions did not reflect the substantive
change in the law. We hold it was error for the trial court to give jury instruction No. 14.05 (IPI
Criminal 4th No. 14.05) and jury instruction No. 14.06 (IPI Criminal 4th No. 14.06). See Watt,
- 37 - 2013 IL App (2d) 120183, ¶ 39, 1 N.E.3d 1145; People v. Ware, 2014 IL App (1st) 120485, ¶ 18,
7 N.E.3d 796 (reaching the same result).
¶ 86 Having found the jury instruction incorrectly referenced a “dangerous weapon,”
we must now determine whether this error rises to the level of plain error. Defendant argues the
error in the jury instructions is serious enough it satisfies the plain-error analysis under the
second prong. We disagree.
¶ 87 Our supreme court held a jury-instruction error rises to the level of plain error
only when it “creates a serious risk that the jurors incorrectly convicted the defendant because
they did not understand the applicable law, so as to severely threaten the fairness of the trial.”
People v. Hopp, 209 Ill. 2d 1, 8, 805 N.E.2d 1190, 1194 (2004). Illinois courts have narrowed the
second prong to structural errors, “i.e., ‘a systemic error which serves to “erode the integrity of
the judicial process and undermine the fairness of the defendant’s trial.” ’ ” Watt, 2013 IL App
(2d) 120183, ¶ 38, 1 N.E.3d 1145 (quoting People v. Glasper, 234 Ill. 2d 173, 197-98, 917
N.E.2d 401, 416 (2009), quoting People v. Herron, 215 Ill. 2d 167, 186, 830 N.E.2d 467, 479
(2005)).
¶ 88 In Watt, 2013 IL App (2d) 120183, ¶ 39, 1 N.E.3d 1145, the court held any error
in the jury instructions regarding a “dangerous weapon” rather than a “firearm” did not rise to the
level of plain error. The court explained, “when the instructions referred to a ‘dangerous weapon’
rather than a ‘firearm,’ they misdescribed an element” and “a firearm is still a class of dangerous
weapon.” Id. The court held:
“Because an error in an instruction that either omits an element or
misdescribes an element is not a structural error [citation],
automatic reversal is not required. Moreover, the jury’s verdict of
- 38 - guilty of armed robbery in the present case was based on evidence
that defendant was armed with a firearm. It follows that, in finding
that defendant was armed with a ‘dangerous weapon,’ the jury
implicitly found that defendant was armed with a firearm. The
error did not create a serious risk that the jurors incorrectly
convicted defendant because they did not understand the applicable
law, so as to severely threaten the fairness of the trial. [Citation.]”
Id.
See also Ware, 2014 IL App (1st) 120485, ¶ 21, 7 N.E.3d 796 (jury instruction referring to a
“dangerous weapon” did not affect the jury’s understanding of the applicable law or the offense
committed).
¶ 89 Similarly, here, despite the fact the jury instructions were based on an earlier
version of the armed robbery statute and thus misstated the law, such an error does not fall within
the class of structural errors that rise to the level of plain error. The error did not create a serious
risk that the jurors incorrectly convicted defendant because they did not understand the
applicable law, so as to severely threaten the fairness of the trial. Indeed, “ ‘Illinois case law
indicates that a gun is a dangerous weapon per se ***.’ ” People v. Ross, 229 Ill. 2d 255, 273,
891 N.E.2d 865, 877 (2008) (quoting People v. Greer, 53 Ill. App. 3d 675, 681, 368 N.E.2d 996,
1001 (1977)). Therefore, like the courts in Watt and Ware, we conclude the jury was fully
advised on the relevant legal principles, and defendant cannot prevail under a plain-error
analysis.
¶ 90 Defendant asserts his due process rights were violated because the armed robbery
statute explicitly excludes a firearm as a dangerous weapon, so the jury found him guilty of a
- 39 - nonexistent offense. We decline defendant’s invitation to adopt Chief Justice Kilbride’s dissent
in Washington, 2012 IL 107993, ¶ 54, 969 N.E.2d 349 (Kilbride, C.J., dissenting, joined by
Theis, J.), where he reasoned a firearm is not included in the category of dangerous weapons.
The legislature simply distinguished firearms from other types of dangerous weapons by using
the language “dangerous weapon other than a firearm.” The legislature could have expressly
excluded firearms from the genus of dangerous weapons but did not do so. Because the jury
found defendant was armed with a “dangerous weapon,” it implicitly found he was armed with a
firearm. Consequently, defendant’s reasonable-doubt argument fails. Watt, 2013 IL App (2d)
120183, ¶ 39 n.3, 1 N.E.3d 1145.
¶ 91 B. Ineffective Assistance of Counsel
¶ 92 Defendant’s ineffective-assistance argument remains. To show ineffective
assistance of counsel, a defendant must show (1) defense counsel’s performance was so deficient
it “fell below an objective standard of reasonableness” and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
¶ 93 1. Silent Witness Theory
¶ 94 Defendant asserts his trial counsel’s failure to object to Simmons’s lay opinion
testimony constitutes ineffective assistance of counsel. The decision to object to the admission of
evidence is a strategic one and generally may not form the basis of a claim of ineffective
assistance of counsel. People v. Perry, 224 Ill. 2d 312, 344, 864 N.E.2d 196, 216 (2007). More
importantly, “counsel cannot be ineffective for failing to object if there was no error to object
- 40 - to.” People v. Sanders, 2012 IL App (1st) 102040, ¶ 24, 965 N.E.2d 1275; cf. People v. McGhee,
2012 IL App (1st) 093404, ¶¶ 45-50, 964 N.E.2d 715.
¶ 95 As discussed above, the trial court did not err when it allowed Simmons to narrate
the events depicted on the surveillance video. Any objection to his testimony on the grounds it
violated the silent witness theory would be futile. “Defense counsel is not required to make futile
motions or objections in order to provide effective assistance.” (Internal quotation marks
omitted.) People v. Smith, 2014 IL App (1st) 103436, ¶ 64, 16 N.E.3d 129. By objecting to
Simmons’s testimony, defense counsel would run the risk of appearing obstructionist to the jury,
especially here, where the surveillance video was going to be admitted. Defense counsel was not
objectively unreasonable for refraining to object to Simmons’s testimony. Moreover, defense
counsel thoroughly cross-examined Simmons regarding the video’s lack of clarity and
challenged his observations. In an attempt to establish his defense that he never went to
Champaign with Williamson, he relied in part on some narration of the video by Simmons, and
defense counsel himself made observations concerning the video, which he claimed supported
defendant’s case. Throughout his closing argument, defense counsel repeatedly referenced
Simmons’s testimony to support his argument someone else committed the armed robbery.
¶ 96 2. Jury Instructions
¶ 97 Next, defendant maintains relief is warranted because trial counsel provided
ineffective assistance when he failed to object to the jury instructions. It is well settled in Illinois
that counsel’s choice of jury instructions, and the decision to rely on one theory of defense to the
exclusion of others, is a matter of trial strategy. People v. Douglas, 362 Ill. App. 3d 65, 75, 839
N.E.2d 1039, 1048 (2005). Accordingly, counsel’s decision as to which jury instruction to tender
- 41 - can support a claim of ineffective assistance of counsel only if that choice is objectively
unreasonable. Id. When the evidence against a defendant is overwhelming, the lack of a
particular jury instruction is harmless in light of the other instructions, arguments of counsel, and
a generally fair trial. People v. Barker, 298 Ill. App. 3d 751, 764-65, 699 N.E.2d 1039, 1048
(1998).
¶ 98 Here, overwhelming evidence a firearm was used during the commission of the
offense was presented at trial. Harrigan and Agarwal both testified defendant brandished a short-
barreled, silver or chrome revolver. Defense counsel did not dispute an armed robbery occurred.
Indeed, during closing arguments, defense counsel stated: “obviously we’re not here to argue
about whether or not an armed robbery took place, that much is not in dispute.” Instead, defense
counsel attacked the State’s evidence regarding the identification of defendant as a perpetrator of
the crime. Given the overwhelming evidence an armed robbery occurred, we find the failure to
tender a jury instruction on whether defendant was armed with a firearm as opposed to a
dangerous weapon, a fact not in dispute, did not prejudice defendant in any way. In our opinion,
tendering such an instruction would not have changed the outcome of this trial, and defendant
cannot satisfy the second prong of the Strickland test.
¶ 99 C. Sufficiency of the Evidence
¶ 100 Defendant asserts the State failed to produce sufficient evidence to sustain his
conviction for armed robbery. Specifically, defendant argues (1) no evidence showed defendant
was in the car with Williamson, (2) the evidence supports defendant’s theory someone else
committed the robbery, and (3) no eyewitness identified defendant as the offender. The State
responds the evidence is sufficient to sustain his conviction.
- 42 - ¶ 101 Considering the evidence in the light most favorable to the State, we must
determine whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Ross, 229 Ill. 2d at 272, 891 N.E.2d at 876. We will not substitute
our judgment for that of the jury with regard to the credibility of witnesses, the weight to be
given to each witness’s testimony, or the reasonable inferences to be drawn from the evidence.
Id. “A criminal conviction will not be set aside unless the evidence is so improbable or
unsatisfactory as to create a reasonable doubt of the defendant’s guilt.” People v. Siguenza-Brito,
235 Ill. 2d 213, 225, 920 N.E.2d 233, 240-41 (2009).
¶ 102 Armed robbery occurs when a defendant knowingly takes property from the
person or presence of another by use of force or by threatening the imminent use of force, and, in
doing so, carries on or about his or her person or is otherwise armed with a firearm. 720 ILCS
5/18-2(a)(2) (West 2010).
¶ 103 On appeal, defendant does not appear to question the commission of these crimes,
but he challenges the sufficiency of the evidence to establish he was the perpetrator. When
viewed in the light most favorable to the State (Siguenza-Brito, 235 Ill. 2d at 224, 920 N.E.2d at
240), we find the evidence was sufficient to prove the elements of the offenses beyond a
reasonable doubt. The evidence shows the perpetrator pointed a silver revolver at Harrigan while
he was sitting in his car and took his cell phone, $2500, driver’s license, and casino card from his
person.
¶ 104 Proof of an offense, however, requires proof not only the crime occurred, but also
that it was committed by the person charged. People v. Slim, 127 Ill. 2d 302, 307, 537 N.E.2d
317, 319 (1989) (the State bears the burden of proving beyond a reasonable doubt the identity of
the person who committed a crime). The testimony of a single witness, if it is positive and the
- 43 - witness credible, is sufficient to convict a defendant. People v. Smith, 185 Ill. 2d 532, 541, 708
N.E.2d 365, 369 (1999). In assessing the reliability of a witness identification, the well-
established factors to consider are (1) the witness’s opportunity to view the defendant during the
offense, (2) the witness’s degree of attention at the time of the offense, (3) the accuracy of the
witness’s prior description of the defendant, (4) the witness’s level of certainty at the subsequent
identification, and (5) the length of time between the crime and the identification. Slim, 127 Ill.
2d at 307-08, 537 N.E.2d at 319 (citing Neil v. Biggers, 409 U.S. 188 (1972)). “The conditions
need not be perfect and the observation need not be prolonged.” People v. Benson, 266 Ill. App.
3d 994, 1005, 641 N.E.2d 617, 626 (1994).
¶ 105 Defendant argues neither Harrigan nor Agarwal identified him in a photographic
lineup, and thus no “positive and credible” identification was made. We disagree. With respect to
the first Slim-Biggers factor, Harrigan had a good opportunity to view defendant at the time of
the crime, as defendant approached the vehicle and stood a short distance away, directly in front
of them. Defendant’s hood was down, and he was not wearing anything to cover his face.
¶ 106 As to the second factor, Harrigan’s degree of attention was high, as he testified
that his attention was directed to defendant when he quickly approached him, pointed a gun in
his face, and demanded “the bread.” Harrigan’s high degree of attention also was demonstrated
by his detailed recollection of what defendant did from the moment he approached Harrigan’s
vehicle until he brandished the gun, took his money, and fled.
¶ 107 Regarding the third factor, Harrigan provided accurate descriptions to police
detectives. He described defendant as an African-American male in his early twenties who was 5
feet, 10 inches tall and 180 pounds. Harrigan said defendant was wearing a dark sweater with no
hood and dark jeans. Harrigan described defendant’s hair as short and braided around the side
- 44 - and back of his head. Defendant had a light mustache and trim facial hair, which “scooped the
whole chin up to the ear.”
¶ 108 With respect to the fourth factor, the level of certainty in the identification,
Detective Shepard testified when he showed Harrigan the photographic array containing
defendant’s photograph, he correctly identified him as the offender. Detective Shepard also
testified Harrigan said he was 80% to 85% certain.
¶ 109 Regarding the fifth factor, the length of time between the crime and Harrigan’s
identification of defendant was a few hours. The armed robbery occurred around 6 a.m., and
Detective Shepard testified he returned to Harrigan’s apartment in the afternoon to present the
photographic array. Thus, the period of time is relatively short. See, e.g., People v. Rodgers, 53
Ill. 2d 207, 213-14, 290 N.E.2d 251, 255 (1972) (identification upheld where it was made two
years later).
¶ 110 In sum, weighing all of the Slim-Biggers factors and viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found Harrigan
viewed defendant under circumstances permitting a positive identification despite the fact he did
not identify him in the courtroom. Notably, the jury was shown still photographs taken from the
casino’s surveillance cameras, which clearly recorded defendant’s picture and state ID card. The
jury was thus able to compare Harrigan’s and Agarwal’s descriptions of defendant with
defendant’s appearance in the surveillance videos. People v. Span, 2011 IL App (1st) 083037,
¶¶ 24-28, 955 N.E.2d 100 (a reviewing court should not substitute its judgment for that of the
jury when findings of fact regarding identity are made, in part, from surveillance footage). To the
extent Harrigan described defendant as “five ten” and Agarwal described him as “five eight,”
such discrepancies do not, in and of themselves, generate a reasonable doubt as long as a positive
- 45 - identification has been made. Slim, 127 Ill. 2d at 309, 537 N.E.2d at 320 (Any discrepancies and
omissions as to facial and other physical characteristics are not fatal but merely affect the weight
to be given the identification testimony.). As discussed, any rational trier of fact could have
found Harrigan’s identification testimony supported by the surveillance video and still
photographs taken of defendant hours before the armed robbery occurred.
¶ 111 We further note, a conviction can be sustained upon circumstantial evidence, and
the jury is not required to disregard inferences that flow normally from the evidence before it.
People v. Patterson, 217 Ill. 2d 407, 435, 841 N.E.2d 889, 905 (2005).
¶ 112 In this case, the evidence shows defendant and Williamson were at Par-A-Dice
Casino on April 12, 2012, and they played craps at the same table as Harrigan. Although
defendant and Williamson stopped gambling at 1:50 a.m., the surveillance videos show they
remained at the casino, evidently waiting for Harrigan to leave. Surveillance videos show
defendant and Williamson enter and exit the same vehicle, a silver Bonneville, throughout the
night. At 4:03 a.m., defendant entered the passenger side door and remained in the vehicle. At
4:30 a.m., Williamson followed Harrigan out of the casino, entered the driver’s side door of the
silver Bonneville, and followed Harrigan across the street to a gas station and then toward
Interstate 74. In addition, the phone call from defendant’s girlfriend’s phone to Williamson’s
phone at 7:33 a.m. lends credence to his being with Williamson at that time—i.e., since she
could not reach defendant on his phone, which was off, she tried contacting him through
Williamson, whom she knows he was with. Also, Detective Morris testified defendant’s
girlfriend drove a silver Bonneville to defendant’s arraignment and defendant’s cell phone was
found inside the vehicle. Thus, the jury could reasonably conclude the silver Bonneville was
used by defendant and he was inside this vehicle with Williamson.
- 46 - ¶ 113 Moreover, a critical aspect of the State’s theory was defendant and Williamson
left the casino in the same car around 4:35 a.m. and defendant committed the armed robbery just
before 5:56 a.m. Thus, defendant’s whereabouts during this period were a critical aspect of the
State’s case. However, defendant never gave a consistent explanation on this point. In his first
statement to the police, around noon on April 19, 2012, he said his sister gave him a ride home in
a blue Intrepid. But in his interview later that afternoon, defendant stated he left the casino in a
rental car and did not know the make, model, where it was rented, or who rented it for him.
Defendant also lied about his girlfriend’s last name and provided false or misleading information
about his sister. In both his noon and afternoon interviews, defendant told the detectives he did
not know Williamson, but he recanted that statement both times when shown Williamson’s
picture. These deviations deal with defendant’s alibi, and “a false alibi can be a factor in
establishing guilt beyond a reasonable doubt.” People v. Milka, 211 Ill. 2d 150, 182, 810 N.E.2d
33, 51 (2004). Moreover, defendant’s lies are evidence of his consciousness of guilt. See id. at
181, 810 N.E.2d at 51 (false exculpatory statements are probative of a defendant’s consciousness
of guilt).
¶ 114 Finally, defendant argues Leavell Allen committed the armed robbery because he
was in Champaign and Williamson placed several phone calls to him around the time of the
robbery. However, this argument was presented to and rejected by the jury. Additionally, mere
possibilities or speculation are insufficient to raise a reasonable doubt of guilt (People v. Phillips,
215 Ill. 2d 554, 574, 831 N.E.2d 574, 586 (2005)), and it is not our function to speculate why
Williamson called Allen or to what the substance of their conversation pertained. The jury was
not obliged to accept any proffered explanation compatible with defendant’s innocence. People
v. Evans, 209 Ill. 2d 194, 212, 808 N.E.2d 939, 949 (2004).
- 47 - ¶ 115 In sum, viewing the evidence presented in the light most favorable to the State
(Siguenza-Brito, 235 Ill. 2d at 224, 920 N.E.2d at 240), we conclude the State presented
sufficient evidence to allow the jury to find defendant was the person who pointed a gun at
Harrigan as he sat in his car and threatened to start shooting, then took his cell phone, money
clip, and contents thereof, and the jury properly found him guilty of armed robbery.
¶ 116 D. Fines
¶ 117 Finally, we now turn to defendant’s claim the circuit clerk improperly imposed
fines—specifically, a $50 court finance fine; $5 drug court fine, $10 State Police operations fine;
$30 juvenile expungement fine; $10 arrestee’s medical fine; $12 and $100 Violent Crime
Victims Assistance Act (725 ILCS 240 (West 2010)) fines; and $30 traffic/criminal surcharge
fine. The State concedes the clerk improperly imposed the above fines. We accept the State’s
concession, vacate the fines, and remand for the trial court to reimpose these fines. See People v.
Warren, 2016 IL App (4th) 120721-B, ¶ 89; People v. Castleberry, 2015 IL 116916, ¶¶ 20-24,
43 N.E.3d 932. We leave intact the $2 State’s Attorney automation fee and $10 fee for probation
and court services department operations.
¶ 118 Finally, defendant is entitled to $1380 in presentence credit for the 276 days of
time served. He may use the credit to offset creditable fines imposed on remand. We remand for
the trial court to apply the monetary credit to eligible fines.
¶ 119 III. CONCLUSION
¶ 120 We affirm defendant’s conviction for armed robbery and vacate the mandatory
fines imposed by the circuit clerk. We remand for the trial court, and not the circuit clerk, to
- 48 - reimpose the mandatory fines vacated herein and apply defendant’s statutory credit against
creditable fines. We direct the parties to provide copies of their briefs on appeal to the trial court
and the circuit clerk on remand. We further direct our clerk to provide an extra copy of our
disposition directly to the attention of the clerk of the circuit court. As part of our judgment, we
award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS
5/4-2002 (West 2012).
¶ 121 Affirmed in part and vacated in part; cause remanded with directions.
- 49 -
Related
Cite This Page — Counsel Stack
2016 IL App (4th) 130180-B, 58 N.E.3d 1242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mister-illappct-2016.