2022 IL App (1st) 200375-U
FIRST DISTRICT, FIRST DIVISION May 23, 2022
No. 1-20-0375
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 18 CR 10031 ) STACY NORRIS, ) Honorable ) Joan Margaret O’Brien, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Hyman and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for armed habitual criminal is reversed and the case is remanded for a new trial where the trial court abused its discretion in excluding evidence of flight consistent with defendant’s innocence.
¶2 Following a jury trial, defendant Stacy Norris was convicted of armed habitual criminal
and sentenced to 8 years’ imprisonment. On appeal, defendant argues that (1) his trial counsel was
ineffective for failing to file a motion to suppress evidence recovered during a vehicle search, (2)
his trial counsel was ineffective for failing to include certain recorded hearsay statements in a
pretrial motion in limine, and (3) the trial court erred when it limited the scope of the sole defense
witness’s testimony. For the reasons that follow, we reverse and remand for a new trial. No. 1-20-0375
¶3 BACKGROUND
¶4 The evening of June 28, 2018, defendant was driving a green Toyota Camry Solara near
91st Street and South Colfax Avenue. While on patrol at about 8:20 p.m., Chicago Police Officers
David Marinez and Rafael Razo observed defendant using a cell phone while driving. When
defendant failed to make a complete stop at a stop sign, Razo activated their “lights and sirens” to
curb the vehicle. Defendant proceeded to pull over at the mouth of an alley on Colfax.
¶5 Marinez saw defendant “reaching into his side or his pockets retrieving something” but
was unable to see what he retrieved or whether he opened the center console. Marinez alerted his
partner that defendant was “making mo[v]ements from his side to the center console.” As the
officers exited their vehicle, defendant drove off down the alley.
¶6 The officers followed defendant through the alley for about 15 seconds. Defendant pulled
into a garage at 9135 South Colfax. The officers exited their vehicle and ordered him out of his
car. Defendant complied but exited holding a glass juice bottle. The officers ordered defendant to
put his hands on the hood of the SUV “for safety purposes” because they believed defendant “could
be armed *** due to everything that had happened.” Defendant did not immediately put the glass
bottle down, but eventually placed his hands on the hood of the SUV.
¶7 Razo began searching the defendant’s vehicle. After first searching the driver’s seat, he
was directed to the other side of the vehicle by Marinez, where he ultimately recovered a loaded
handgun from the center console.
¶8 This incident was recorded on video from the officers’ squad car camera and Razo’s body-
worn camera. The audio and video from both cameras was admitted into evidence without
objection and published to the jury. Although defendant’s movements are not clear in the squad
car footage, one of the officers can be heard saying “He’s reaching for something.” Marinez
explained that his elevated position in passenger seat of the SUV enabled him to look downward
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through the rear windshield of the Toyota and observe defendant appear to retrieve something from
his pockets and place it in the center console of his vehicle.
¶9 The parties stipulated to defendant’s two prior qualifying felony convictions.
¶ 10 Prior to testifying on her husband’s behalf, the trial court admonished Paris White about
the danger of self-incrimination. The judge was concerned because White did not have a Concealed
Carry License. After speaking with an Assistant Public Defender in the courtroom, White testified
that she owned the Toyota defendant was driving at the time of his arrest, but she did not allow
him to drive her car because his license was suspended. Defense counsel followed up by asking,
“Something happen to your car prior to June 28, 2018, that you wouldn’t let him drive your car
then?” The State objected to this question and a sidebar conference was held outside the presence
of the jury.
¶ 11 At the sidebar, defense counsel made an offer of proof that White was going to testify that
the last time she let defendant drive her car, it was impounded because he did not have a driver’s
license. The trial court questioned the relevance of this information since defendant was shown on
video driving the vehicle. Defense counsel responded that it was “relevant in regards to her reason
why she doesn’t allow him to drive the car.” The trial court ruled that the evidence was not relevant
“to any of the elements of the offense or to the defense that it’s her car.”
¶ 12 White subsequently testified that her father had given her the gun recovered in her car for
“protection” a few days prior to the incident. She never told defendant about the gun or that it was
in her vehicle, despite knowing that defendant was not allowed to be around firearms because he
is a convicted felon. White admitted that she did not have a Concealed Carry License but explained
that she kept the gun unloaded in the center console and the gun’s magazine in the glove
compartment.
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¶ 13 The jury found defendant guilty of armed habitual criminal and he was sentenced to a term
of 8 years’ imprisonment.
¶ 14 ANALYSIS
¶ 15 Ineffective Assistance of Counsel
¶ 16 Defendant first argues his trial counsel was ineffective for failing to file a motion to
suppress the gun and ammunition found in the vehicle and for failing to move in limine to exclude
statements captured on the videos from the squad car and body-worn cameras. The State responds
that defendant cannot meet his burden under Strickland v. Washington, 466. U.S. 668 (1984).
¶ 17 To establish ineffective assistance of counsel under Strickland, a defendant must show that
counsel’s performance was objectively unreasonable and that the deficient performance prejudiced
the defendant. People v. Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466 U.S. at 694).
A defendant’s “[f]ailure to make the requisite showing of either deficient performance or sufficient
prejudice defeats the claim.” People v. Flowers, 2015 IL App (1st) 113259, ¶ 41. To satisfy the
deficiency prong, the defendant must show that his counsel’s performance was so deficient that
counsel “was not functioning as the ‘counsel’ guaranteed by the sixth amendment.” People v.
Easley, 192 Ill. 2d 307, 317 (2000). “The defendant must overcome the strong presumption that
the challenged action or inaction might have been the product of sound trial strategy.” Id.
¶ 18 Where it is “easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, *** that course should be followed.” Strickland, 466 U.S. at 697. To demonstrate
prejudice, a defendant must show a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.” Domagala, 2013 IL 113688, ¶ 36.
A reasonable probability “is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
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¶ 19 Defendant argues that his trial counsel was objectively unreasonable in failing to file a
motion to suppress the gun and ammunition recovered in the Toyota. The decision of whether to
file a motion to suppress is a matter of trial strategy and entitled to great deference. People v. Bew,
228 Ill. 2d 122, 128 (2008). Counsel cannot be deemed ineffective if the motion would have been
futile. People v. Givens, 237 Ill. 2d 311, 331 (2010).
¶ 20 Under the fourth amendment of the United States Constitution, individuals have the right
to be secure against unreasonable searches and seizures. U.S. Const., amend. IV. Under Terry v.
Ohio, 392 U.S. 1, 27 (1968), the United States Supreme Court held that during an investigatory
stop, an officer may conduct “a reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 U.S.
at 27; see also People v. Close, 238 Ill. 2d 497, 505 (2010) (noting this Court follows the principles
set forth in Terry v. Ohio). The officer need not be “absolutely certain” the individual is armed,
and the issue is “whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.
¶ 21 In determining whether the officer acted reasonably, a reviewing court must give weight
to the specific reasonable inferences which he is entitled to draw from the facts in light of his
experience, but not to any “inchoate and unparticularized suspicion or ‘hunch.’” Id. A protective
search under Terry may extend to a search of the passenger compartment of an automobile “limited
to those areas in which a weapon may be placed or hidden.” Michigan v. Long, 463 U.S. 1032,
1049 (1983). A Terry search is permissible if the police officer reasonably believes, based on
specific and articulable facts, taken together with reasonable inferences from those facts, that the
suspect is dangerous and may gain immediate control of weapons. Id.; see also People v. Colyar,
2013 IL 111835, ¶ 38 (“Explaining its decision, the Long court noted that roadside encounters are
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‘especially hazardous,’ and a police officer may reasonably believe that he is in danger from the
possible presence of accessible weapons inside the vehicle.”).
¶ 22 In reviewing an officer’s actions, this Court applies an objective standard to decide whether
the facts available to the officer at the time of the incident would lead an individual of reasonable
caution to believe the action was appropriate. Colyar, 2013 IL 111835, ¶ 40. The court analyzes
these actions based on the totality of the surrounding circumstances. People v. Moss, 217 Ill. 2d
511, 527 (2005). “Although we must apply an objective standard, ‘the testimony of an officer as
to his subjective feelings is one of the facts which we may consider in the totality of the
circumstances known to the officer at the time of the [search].’ ” People v. Johnson, 2019 IL App
(1st) 161104, ¶ 20 (quoting People v. Galvin, 127 Ill. 2d 153, 168 (1989)).
¶ 23 Defendant does not dispute that “a vehicle stop based on an officer’s observation of a traffic
violation is valid at its inception.” Moss, 217 Ill. 2d at 527 (citing People v. Gonzalez, 204 Ill. 2d
220, 228-29 (2003)). Rather, defendant challenges the subsequent search of his car, premised on
the officers’ belief that he had a firearm. He argues that the only reason the officers had to believe
he was armed and dangerous was Marinez’s observation of defendant’s alleged furtive movements
in the car, which this Court has held to be insufficient to justify the search of a vehicle. See People
v. Smith, 2015 IL App (1st) 131307, ¶ 36.
¶ 24 We find that Razo had a sufficient basis to search defendant’s car based on the totality of
the circumstances. “[M]ovements taken alone are insufficient to constitute probable cause to
search since they may be innocent.” (Emphasis added.) People v. Creagh, 214 Ill. App 3d 744,
747-48 (1991). However, furtive movements “may be considered justification for performing a
warrantless search when coupled with other circumstances tending to show probable cause.”
Smith, 2015 IL App (1st) 131307, ¶ 29. Here, the evidence shows that the officers relied on more
than furtive movements as a basis to search defendant’s car.
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¶ 25 Marinez testified that during the initial stop of defendant’s vehicle, he was able to see
defendant reach to the right side of his body, retrieve something, and “appear to be placing it in
the center console of his vehicle.” As the officers were exiting their vehicle, defendant drove off
down the alley. Marinez testified that “based on [his] experience, when a car takes off on you ***
it elevates your high risk” that the driver is hiding something. After defendant pulled into a garage,
he was ordered to get out of his car and place his hands on the hood of the police SUV for “safety
purposes.” In response, defendant exited the vehicle holding a glass bottle which he did not
immediately place on the ground, despite being ordered to do so. Given these circumstances, we
find the officers’ observations were sufficient to justify searching the vehicle.
¶ 26 Relying on Arizona v. Gant, 556 U.S. 332 (2009), defendant argues that, because he was
out of reach of the vehicle at the time of the search, there was no safety reason to search the vehicle
for the weapon. He urges review as a search incident to arrest. We find Gant inapposite. In Gant,
the police searched the passenger compartment of a vehicle pursuant to the lawful, custodial arrest
of the driver. Gant, 556 U.S. at 336. The Court held that the search was not justified under the
search-incident-to-arrest doctrine where the driver was handcuffed and secured in a squad car
before the search. Id. at 343-44. However, the Court observed that other established exceptions to
the warrant requirement authorize a vehicle search “under additional circumstances when safety
or evidentiary concerns demand.” Id. at 346 (citing Long, 463 U.S. at 1049).
¶ 27 In Long, the Court extended Terry to include “the search of the passenger compartment of
an automobile” and “those areas in which a weapon may be placed or hidden.” Long, 463 U.S. at
1049. The safety concerns supporting this type of search are not dissipated simply because an
individual is temporarily detained outside the vehicle. As the Court observed in Long, an officer
does not act unreasonably in taking “preventive measures” to ensure that there are no weapons
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within the detained individual’s “immediate grasp before permitting him to reenter his
automobile.” Id. at 1051.
¶ 28 In this case, the totality of the circumstances known to the officers at the time of the search
led them to reasonably believe that defendant “could be armed.” Although defendant was detained
outside of his vehicle during the search, he was not handcuffed or secured inside a police vehicle.
We cannot say that Officer Razo acted unreasonably in taking preventative measures to ensure that
defendant did not have a weapon in his immediate control by searching the front seats and center
console of the vehicle.
¶ 29 Because it is not reasonably probable that a motion to suppress would have been granted,
counsel was not ineffective for failing to file such a motion. It follows that defendant cannot
establish a reasonable probability that, but for defense counsel’s alleged unprofessional error, the
result of the proceeding would have been different. Thus, his ineffective assistance of counsel
claim fails. See Strickland, 466 U.S. at 694.
¶ 30 Defendant also contends that his trial counsel was ineffective for failing to move to exclude
statements captured on the videos from the squad car and body-worn cameras. The State responds
that the statements at issue were either admissible as an excited utterance or strategically
unchallenged by defense counsel.
¶ 31 At issue are eight statements made by Marinez and depicted on video from the squad car
camera and body-worn camera, including: (1) “He’s reaching for something,” (2) “Hey Razo, on
the other side he reached for something,” (3) “What’s in your car? I saw you,” (4) “I saw you
dropping something,” (5) “Ok, what were you putting—?” and (6) “I saw you leaning again.”
¶ 32 The parties dispute what Marinez said in the final two recorded statements. Defendant
hears “What were you putting in the side? I saw you reaching,” and “Remember I told you as we
stopped he leaned.” The State hears Marinez say “What were you putting on the side? I saw you
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leaning,” and “Remember, I told you as we stopped he’s…he’s putting…he’s leaning?”
respectively.
¶ 33 Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff.
Oct. 15, 2015); People v. Collins, 2020 IL App (1st) 181746, ¶ 23. Such statements are generally
inadmissible unless an exception applies. Ill. R. Evid. 802 (eff. Jan. 1, 2011); Ill. R. Evid. 803 (eff.
Sept. 28, 2018).
¶ 34 The State asserts that one of the statements, “He’s reaching for something,” was admissible
under the excited utterance exception to the rule against hearsay. The State concedes that the other
statements are hearsay, but argues that defendant’s trial counsel made the strategic decision not to
challenge their admission. We find it unnecessary to make either determination since defendant
cannot demonstrate prejudice from his counsel’s inaction.
¶ 35 All of the information being challenged was also established through the live testimony of
Marinez and Razo. See People v. Abram, 2016 IL App (1st) 132785, ¶ 76 (Finding that the
defendant suffered no prejudice because there was no information contained in the disputed
statements that was not also established by live testimony); see also People v. Songer, 229 Ill. App.
3d 901, 906 (1992) (“Reversal for improperly admitted hearsay evidence is not warranted where
properly admitted evidence proves the same matter.”). Based on the evidence properly presented
at trial, there is not a reasonable probability that the outcome would have been different absent
admission of these statements. People v. Davis, 2017 IL 142263, ¶ 57. Therefore, defendant cannot
meet his burden under Strickland to show that he was prejudiced by counsel’s failure to file a
motion to exclude these statements.
¶ 36 Right to Present a Defense
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¶ 37 Finally, defendant argues that he “was denied his constitutional right to present a defense”
where the trial court barred Paris White from testifying that her car had been impounded the last
time defendant used it. According to defendant, this evidence explained why defendant was not
allowed to drive his wife’s car, was “directly relevant to an element of the charge and [his] theory
of the defense,” and “would have offered the jury an alternative, innocent explanation for why [he]
drove away” at the first traffic stop, i.e., that he left so his wife’s car would not get towed again,
not because he was attempting to hide a gun.
¶ 38 The State maintains that defendant has forfeited this claim by failing to adequately
articulate that White’s testimony was relevant “to support an inference that the reason defendant
fled was because the car had been previously impounded when defendant was driving it.” At trial,
defendant asserted that the barred evidence was relevant because the “last time [White] let him
drive the vehicle, it was impounded because he didn’t have a license.” In his posttrial motion,
defendant again alleged, “The circuit court erred when it sustained the prosecutions [sic] objection
to the defense question of Paris White as to if she did not allow the Defendant to drive her vehicle
because her car had been towed 2 months prior to the defendant’s arrest when Defendant was
arrested for driving on a suspended license.” Nothing more was required in order to preserve this
issue for our review People v. Minter, 2015 IL App (1st) 120958, ¶ 43.
¶ 39 A criminal defendant is constitutionally guaranteed a meaningful opportunity to present a
complete defense. People v. Ramirez, 2012 IL App (1st) 093504, ¶ 43. This includes the right of
the defendant to present witnesses in his own defense. People v. Lerma, 2016 IL 118496, ¶ 23. A
defendant also has the right “to show, by any competent evidence, facts which tend to prove that
he did not leave the scene of the crime from a consciousness of guilt.” People v. Autman, 393 Ill.
262, 266-67 (1946). Defendant claims that, although a judge’s ruling on evidentiary matters is
ordinarily reviewed for an abuse of discretion, the question of whether a defendant’s right to
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present a defense was violated is a purely legal issue and should be reviewed de novo. We disagree.
Where, as here, “a party claims he was denied his constitutional right to present a complete defense
due to improper evidentiary rulings, the standard of review is abuse of discretion.” People v.
Burgess, 2015 IL App (1st) 130657, ¶ 133.
¶ 40 The evidence showed that defendant stopped at the mouth of the alley when the police
officers activated their lights and sirens but drove off as the officers were approaching his vehicle.
Defendant drove down the alley and pulled into a garage. Officer Razo acknowledged that
defendant was not speeding and only drove a short distance. The trial court’s ruling prevented
defendant from explaining to the jury why he fled from the police. Without this crucial testimony,
defendant was unable to counter the State’s theory that he fled because “he knew he couldn’t have
the gun. He knew it was illegal.” While it is plausible that defendant’s flight from the initial stop
showed consciousness of guilt, it is equally plausible that defendant was simply driving home to
avoid a repeat towing of his wife’s car. See People v. Davis, 193 Ill. 2d 127, 131 (1963) (“[F]light
is not always dictated by an impulse or purpose to escape the consequences of acts done and, in
some instances, is equally or more consistent with some other hypothesis.”). Under these
circumstances, we find that the trial court abused its discretion in limiting the testimony of Paris
White.
¶ 41 We next consider whether limiting White’s testimony was harmless error. See People v.
Thompson, 238 Ill. 2d 598, 611 (2010) (“Harmless-error analysis is conducted when a defendant
has preserved an issue for review.”). An error may be deemed harmless beyond a reasonable doubt
if other evidence against the defendant is so overwhelming that there is no doubt of the defendant’s
guilt. People v. Wilkerson, 87 Ill. 2d 151, 157 (1981). In this case, the other evidence of defendant’s
guilt was not overwhelming.
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¶ 42 To prove defendant guilty of armed habitual criminal as charged in this case, the State was
required to show that he possessed the gun. See 720 ILCS 5/24-1.7(a) (West 2018). The gun was
not recovered from defendant’s actual possession, so to show constructive possession the State
was required to demonstrate that defendant: (1) knew of the weapon’s presence and (2) exercised
control over the area where the weapon was found. People v. Hunter, 2013 IL 114100, ¶ 19. The
State relied primarily on defendant’s flight to establish these elements. In his opening statement,
the prosecutor told the jury the evidence would show that defendant “fled from the police because
he’s a convicted felon who had a handgun in the vehicle he was driving.” In his closing argument,
the prosecutor told the jurors the evidence had shown, as follows:
“[T]here is a good reason why this defendant, a two-time convicted felon, fled from
the scene of that initial traffic stop. He knew he couldn’t have the gun. He knew it was
illegal. He knew he needed to make some distance between the gun and him. So he took it
out of his pocket, tried to hide it in the console, took off speeding up the alley hoping to
get to his garage before the officers could catch up with him and find the gun.
He did that because he knew he was guilty. It’s called consciousness of guilt. That’s
evidence that you should consider in this case.”
¶ 43 Without White’s testimony about the previous towing of her vehicle, defendant was unable
to explain his flight, which undermined his entire defense. We find that there is a reasonable
probability that White’s testimony would have altered the trial’s outcome. Therefore, we reverse
and remand for a new trial.
¶ 44 Retrial raises double jeopardy concerns, and we are therefore required to assess the
sufficiency of the evidence against defendant. People v. Lopez, 229 Ill. 2d 322, 367 (2008). After
viewing the evidence presented at trial in the light most favorable to the State, we find that a
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rational trier of fact could have found defendant guilty beyond a reasonable doubt. Id. Accordingly,
there is no double jeopardy impediment to retrial.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we reverse defendant’s conviction for armed habitual criminal
and remand the cause to the circuit court for a new trial.
¶ 47 Reversed and remanded.
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