People v. Washington

2024 IL App (1st) 241403-U

Opinion

2024 IL App (1st) 241403-U

SECOND DIVISION October 15, 2024

Nos. 1-24-1403B, 1-24-1404B, 1-24-1405B and 1-24-1406B, Cons.

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. 24CR3155 ) RANDY WASHINGTON, ) Honorable ) Mary Margaret Brosnahan, Defendant-Appellant. ) and Ankur Srivastava, ) Judges Presiding. _____________________________________________________________________________

JUSTICE McBRIDE delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment.

ORDER

¶1 Held: Affirming the trial court’s order denying pretrial release, where the State sustained its burden of showing clear and convincing evidence that defendant committed a detainable offense, that he poses a safety threat, and that no condition or combination of conditions could mitigate that threat.

¶2 Defendant, Randy Washington, appeals the trial court’s order granting the State’s motion

for pretrial detention. The record shows that defendant was charged with various offenses,

including aggravated robbery and robbery, in connection with a series of robberies of the same No. 1-24-1403B

convenience store, which occurred on January 19, 2024, January 26, 2024, and January 28, 2024

(the convenience store robberies); and another robbery of a Subway restaurant, which occurred on

January 26, 2024 (the Subway robbery).

¶3 The record shows that defendant was arrested on a separate charge of domestic battery on

March 4, 2024, in DuPage County. On April 5, 2024, detectives investigating the convenience

store robberies learned that defendant was planning to plead guilty to the domestic battery offense,

in exchange for a sentence of probation. Defendant was then arrested and indicted for offenses

relating to the convenience store robberies.

¶4 The next day, on April 6, 2024, the State filed a petition for a pretrial detention hearing,

and the Honorable Ankur Srivastava held a hearing on the petition. At that hearing, the court

initially asked for information regarding defendant’s pretrial services assessment. The

representative for pretrial services responded: “New criminal activity, 6; failure to appear, 3; PSA

score coincides with supervision Level 3.”

¶5 The State then proffered that at about 1:50 a.m. on January 19, defendant approached a

clerk working alone behind a convenience store counter, lowered a face covering, and presented a

bottle of water for purchase. After the clerk opened the cash register, defendant lunged forward

and tried to take cash out of the register. When the clerk tried to run, defendant went behind the

counter and punched her twice in the face with a closed fist. Defendant took about $200 from the

register and some Newport cigarette packs. He left the store and got into a black minivan.

¶6 Thereafter, on January 26 at 12:30 a.m., defendant returned to the same store wearing a

black hoodie, with his face visible. The same clerk was working, and she recognized defendant

from the first robbery. Defendant went straight behind the counter and ordered the clerk to lay

down. Defendant put his hand in his pocket and threatened the clerk that he would shoot her if she

2 No. 1-24-1403B

did not comply. Defendant took about $200 from the cash register and Newport cigarettes. He left

the store and got into a red minivan. The minivan was captured on Police Observation Device

(POD) camera footage, and an investigation revealed that the vehicle was registered to the mother

of defendant’s girlfriend.

¶7 Subsequently, at 4:40 a.m. on January 28, defendant returned to the same store, where

again, the same clerk was working. Defendant was wearing a gray hoodie with his face visible,

and the clerk recognized him as the same offender from the other robberies. Defendant went behind

the counter, grabbed the victim by her hair, and ordered her to open the cash register. After the

clerk complied, defendant punched her about the head three times and pushed her to the ground.

He took Newport cigarettes and about $200 from the cash register. He left the store and got into

the same red minivan. The clerk viewed a photo lineup on February 3, 2024, but she did not make

any identification.

¶8 Soon after the third convenience store robbery, around 6 a.m., defendant proceeded to his

girlfriend’s house. Defendant and his girlfriend “got into a verbal altercation” and defendant pulled

the girlfriend’s hair out before fleeing from the scene in the red minivan. Defendant’s girlfriend

called the police and reported defendant for domestic violence.

¶9 Detectives then followed up on investigation into the red minivan. On or about February

24, 2024, police stopped defendant’s girlfriend, who was driving the red minivan, and she was

taken into custody. Officers brought defendant’s girlfriend to the police station and showed her

still images and video from one of the robberies, and asked her if she recognized the offender.

Defendant’s girlfriend positively identified defendant. Detectives also obtained a search warrant

for the vehicle, in which they recovered one black hoodie and one red hoodie.

3 No. 1-24-1403B

¶ 10 Thereafter, defendant was arrested on March 4, 2024, in Elmhurst, for domestic battery.

The State asserted that the offense was currently pending in DuPage County.

¶ 11 The State informed the court that defendant had two 2015 aggravated robberies for which

he was sentenced to 15 years imprisonment, and defendant had been discharged on parole in

August 2023. Defendant also had a 2010 conviction for “aggravated resisting,” for which he

received two years imprisonment; a 2009 “unlawful vehicular evasion [sic]” for which he was

sentenced to six years and six months IDOC; and a 2008 burglary conviction, for which he received

three years imprisonment. Finally, defendant had a 2015 misdemeanor conviction for criminal

trespass to a vehicle, for which he was sentenced to one year of probation.

¶ 12 Based on the above proffer, the State maintained that “defendant poses a real and present

threat to the safety of any person, persons in the community” and that no condition or combination

of conditions could mitigate that threat.

¶ 13 In response, defense counsel argued that the State had not shown that defendant committed

the offense because they had not submitted the POD footage, there were no testifying eyewitnesses

at the hearing, and defendant had not been arrested at the scene. Defense counsel also noted that

the evidence suggested that the offender got “in a black minivan, and then it switches to a red

minivan,” and that the victim was not able to identify defendant in the photo lineup.

¶ 14 As to defendant’s dangerousness, defense counsel argued that defendant is a 33-year-old

lifelong resident of Cook County, and he has two children. He has a certificate in plumbing, was

employed, and worked with a community nonprofit. Defense counsel continued:

“he does have a place with electronic monitoring. We believe that this is a case

where if your Honor places my client on electronic monitoring or places him on

Pretrial Services Level 3 that would ensure that my client does come to court, and

4 No. 1-24-1403B

that if there’s any threat to any person or persons, that the threat would be alleviated.

We’re asking for to you deny the State’s petition.”

¶ 15 In ruling on the State’s motion, the court noted that both aggravated robbery and robbery

were eligible offenses under the Act, and concluded that the State had met its burden of showing

clear and convincing evidence that defendant had committed those offenses. The court observed

that the three robberies were “similar in nature in the way in which they were committed,” in

particular that the offender took cash from the cash register and Newport cigarettes. The court

acknowledged that the victim was unable to identify defendant, however, the court explained that

the red minivan had been captured on POD camera footage, and that the minivan was linked to

defendant’s girlfriend’s mother. Moreover, when officers searched the vehicle, they obtained two

hoodies, like the ones alleged to have been worn by the offender. Finally, the court observed that

defendant’s girlfriend identified him on still images and video from one of the robberies.

¶ 16 The court further observed:

“I'm also going to note here that in a criminal trial, we don’t consider what's

called propensity evidence. But at this stage, I do. *** [I]n addition to [the

State’s proffer], [defendant] ha[s] a pending robbery case and two

aggravated robbery convictions [in his] background already. So at this stage

of the proceeding, that makes me believe it’s more likely that [defendant]

committed [these] three robberies as well. In any event, the State’s met its

burdens on [the] first prong.”

¶ 17 As to defendant’s dangerousness, the court explained that

“These are violent crimes. The victim is battered, struck in the head, pushed

to the ground. There’s a threat to kill the victim during one of those

5 No. 1-24-1403B

robberies. There’s an indication that [defendant] put [his] hand in [his]

pocket at the time and threatened her indicating perhaps that [defendant]

had a firearm. I’m taking all that into account in the context of [defendant]

having a pending domestic battery case which is a crime of violence, a

pending robbery case which is a crime of violence, and then [his] very

significant criminal history which also contains multiple convictions for

crimes of violence.”

¶ 18 Finally, the court explained that the “last consideration” was “whether there are any

conditions I can impose to mitigate the threat [defendant] pose[s] to the community.” The court

observed that it could impose conditions “such as electronic monitoring,” however, the court did

not think that such conditions would be sufficient, because defendant would still “have access to

the community.” Additionally, the court did not believe that defendant would comply with such

release conditions, “because of how many robberies occurred” and “because of [defendant’s] other

pending cases.” The court further explained that, “frankly, you served a 15-year sentence on your

last aggravated robbery. That was not sufficient to det[e]r you from committing another one. So I

certainly don’t believe the types of conditions I can impose would be sufficient to deter you.”

¶ 19 Accordingly, the court found that the “the State has met their burden,” and ordered

defendant to be detained pretrial.

¶ 20 That same day, the trial court entered a written order, consistent with the above findings.

¶ 21 Thereafter, defendant was charged with another offense, relating to a robbery of a Subway

restaurant on January 26, 2024. The State filed another pretrial detention hearing as to that offense

on April 24, 2024. A hearing was held that same day before the Honorable Mary Margaret

Brosnahan.

6 No. 1-24-1403B

¶ 22 At that hearing the State proffered that on January 26, 2024, at 3:46 a.m., defendant entered

the Subway restaurant, waited for the last customer to leave, then ordered a sandwich and handed

the cashier a $20 bill. The cashier opened the cash register, then defendant slammed his hand on

the drawer and told the victim to “get the f*** back.” He ordered the victim to unlock the register’s

latch, and the victim complied. Defendant then ordered the cashier to lie face down on the floor.

Defendant took $450 from the register and $20 from the cashier. Defendant tried to conceal the

tattoo under his left eye by covering it with his hand. The incident was captured on restaurant

video.

¶ 23 As defendant left the Subway restaurant and cut through a parking lot, he was captured on

footage from a nearby bank. He got into a maroon Dodge Caravan, which was captured on POD

footage as he drove down Roosevelt Road, and a “plate reader.” That vehicle was the same which

was being investigated in connection with the convenience store robberies.

¶ 24 Detectives issued a seeking-to-identify bulletin based on the surveillance video, and a

detective familiar with defendant, who was investigating the other three robberies, identified

defendant. Detectives learned that the same minivan was involved in both the convenience store

robberies, and the Subway robbery.

¶ 25 The court then asked the State about the other robberies that defendant was charged with,

and the State informed the court of the nature of the convenience store robberies, consistent with

the facts proffered at the April 6, 2024, hearing.

¶ 26 The court then asked the State about defendant’s criminal background. The State responded

that he had a 2015 aggravated robbery conviction which “was amended down from an armed

robbery,” for which he received 15 years imprisonment. The parties believed that his “out date,”

was in 2022, but they were not sure if he was “still on parole” for that conviction. In addition,

7 No. 1-24-1403B

defendant had a 2010 “aggravated resisting a peace officer” conviction, which was reduced from

aggravated battery of a corrections officer, for which he received a sentence of two years

imprisonment. That offense was “served consecutively to a 2009 unlawful vehicular invasion”

conviction, for which he received six years and six months imprisonment. Finally, the State noted

that defendant “also has a 2008 burglary” conviction, for which he received “Cook County

Department of Corrections boot camp,” which was “converted to three years in the Illinois

Department of Corrections.” Defendant also had two misdemeanor convictions, including the 2024

domestic battery, for which he received probation, and a 2015 criminal trespass to vehicle, for

which he also received probation, terminated unsatisfactorily.

¶ 27 The State argued that the proof was evident and the presumption great that defendant

committed the eligible offense of robbery, based on the evidence showing that he was “captured

on video surveillance from the Subway as well as the POD video and the video leaving that area,

going to the minivan” which was registered to “the mother of his ex-girlfriend.” The State also

argued that he posed a “real and present threat to the safety of any person or persons in the

community based on the facts of this case” and defendant’s “extensive background.” The State

noted that defendant was currently charged with four robberies in the community, and argued that

no condition or combination of conditions could mitigate the risk posed by defendant, and that if

he was allowed to be released on electronic monitoring “he’s allowed movement and he can go

out and commit these same offenses.”

¶ 28 Defense counsel responded that the “case at issue” involved the robbery of Subway, and

not “the other three cases that have already been dealt with.” Defense counsel argued that the State

had not shown that the proof was evident or presumption great that defendant had committed the

offense, because the victim “was a Subway employee who did not know” defendant, and it

8 No. 1-24-1403B

“doesn’t sound like an ID occurred in this case.”

¶ 29 Regarding defendant’s background, defense counsel argued that his prior convictions were

“remote,” where the “2015 case is nearly ten years old at this point” and the rest of his convictions

were “over ten years old.”

¶ 30 Defense counsel further stated that defendant “is 33 years old,” that he has “a four-month-

old son *** and a 15-year-old son,” and that he’s been working at “a factory job.” Defense counsel

asserted that defendant had diagnoses for “bipolar [disorder] and depression,” that he takes

medication for those diagnoses, and that, “as part of his probation, is ordered to do drug and alcohol

classes.” Defense counsel stated that the court “can order electronic monitoring without any

movement, which would mitigate the State’s main concern in that he be able to commit new

offenses.”

¶ 31 In ruling on the State’s petition, the court noted that, at a pretrial detention hearing, the

State was not required to prove defendant’s guilt beyond a reasonable doubt. Instead, the court

would consider “proffers made by the State, as well as the defense, as to what they believe the

evidence will or will not show.” Based on the proffers before the court, the court determined that

“the proof [is] evident and the presumption great that the defendant committed the offense.” The

court noted that the offense was captured on surveillance video, and that the proffers showed that

defendant had committed similar offenses on January 19, January 26 and January 28 at a different

location.

¶ 32 The court also believed, based on the evidence provided by the State, and defendant’s

“extensive criminal background” that there were “no condition[s] or combination of conditions

that the court could employ that would safeguard both the individual complaining witnesses in

these separate cases as well as the community at large.” Accordingly, the court ordered that

9 No. 1-24-1403B

defendant be detained pretrial.

¶ 33 That same day, the court entered a written order, consistent with the above findings. In

particular, the court noted that the State had met its burden of showing that defendant had

committed the Subway robbery, including ordering the victim to the floor and taking $450 from

the register, and that the offense was captured on video. The court found that defendant was a

safety threat to the “specific victims and [the] community in general” based on the nature of the

offense described above, and the fact that he was also charged with three other robberies in the

early morning hours at a convenience store. The court also explained that there was no condition

or combination of conditions that could mitigate the safety threat, based on the facts of the cases

and defendant’s extensive criminal background.

¶ 34 On June 27, 2024, defendant filed two motions for relief under the Pretrial Fairness Act,

one relating to the detention order filed by Judge Srivastava regarding the convenience store

robberies, and the other order relating to the detention order filed by Judge Brosnahan regarding

the Subway robbery. Among other arguments that will be discussed more fully below, defendant

generally asserted that in both proceedings, the State failed to meet its burden of showing that he

had committed the offenses charged, that he posed a safety threat, and that no condition or

combination of conditions could mitigate that threat.

¶ 35 The next day, on June 28, 2024, the matter appeared in front of Judge Brosnahan for

hearing. Initially, Judge Brosnahan noted that one of the rulings to detain had been made by Judge

Srivastava, and asked if the parties were in agreement that the transcript of both proceedings, and

the orders entered by both judges, should be admitted and made part of the record. The parties

agreed.

¶ 36 Regarding the proceedings before Judge Srivastava on April 6, 2024, defense counsel

10 No. 1-24-1403B

argued that the court erred in finding that the proof was evident or presumption great that defendant

committed the offense because

“[t]he complaining witness for these three robberies was unable to identify

[defendant] in a photographic lineup. *** [T]here’s no physical evidence,

DNA, fingerprints tying [defendant] to any of these robberies.

I'll note that looking at these three robberies together, there’s two

different vehicles that are being used. A black minivan at one point, a red

minivan at another point. And *** there is a Thompson identification ***

conducted by the complaining witness in an unrelated domestic battery.

The officers bring her to the police station and *** show her one of

the videos from January 26th and ask her, do you recognize this person?

And allegedly she says it’s [defendant]. *** I would ask the Court to treat

that as suspect because *** these are adverse parties involved in an ongoing

litigation. That it is not reliable for purposes of clear and convincing

evidence to rely on a Thompson identification committed by a potentially

interested party.”

¶ 37 Defense counsel also argued that the “most obvious” error was that the

“State failed to meet its burden by clear and convincing evidence that no

condition or a combination of conditions can mitigate the real and present

threat to the safety of any person or persons in the community. The State

has a burden to establish, aside from simply restating the alleged facts that

resulted in the charge, at a minimum some discussion, reasoning or evidence

as to why specific alternative conditions won’t work.”

11 No. 1-24-1403B

¶ 38 Counsel asserted that “[t]here was no discussion by the State of why, *** [defendant]

would not abide by a curfew, [or] abide by electronic monitoring,” and accordingly, defendant

maintained that the State had “waived” that argument.

¶ 39 Regarding the April 24, 2024, proceeding before Judge Brosnahan, defense counsel argued

that the court had erred in finding that the proof was evident and presumption great that defendant

“the complaining witness did not identify [defendant]. There was no

physical evidence tying him to these robberies. The POD video was not

admitted, and there was a Thompson identification *** completed by a

detective who,*** I assume it’s the detective who is working on the other

three matters, viewed the video pertaining to this matter and said that’s

[defendant]. And for clear and convincing evidence, Judge, my argument

today is that’s just not enough.”

¶ 40 Defense counsel also argued that the State had failed to meet its burden to show that the

safety threat posed by defendant could not be mitigated by a less restrictive condition or

combination of conditions. Counsel maintained that “the State simply stated that if he’s on

electronic monitoring, *** he’s allowed movement, and he could go out and commit these same

offenses. *** [T]here was no explanation of why in this particular case [defendant] would not

abide by the court’s orders.”

¶ 41 In response, the Assistant State’s Attorney (ASA) contended that the State had properly

shown all three prongs at the April 24, 2024, hearing before Judge Brosnahan. At the proceeding

before Judge Srivastava, however, the ASA acknowledged that the State had improperly “merged”

the argument as to “all three prongs into one generalized argument,” and that it had not made a

12 No. 1-24-1403B

specific argument as to the third prong, regarding whether any less restrictive conditions could be

imposed. The ASA asked the court to allow the State to “cure that specific defect” by making the

argument at the instant hearing.

¶ 42 The court then observed that Judge Srivastava had, in fact, made specific findings as to the

third prong in his written order. The court read from Judge Srivastava’s order:

“[l]ess restrictive conditions would not avoid a real and present threat to the

safety of any person or persons in the community, based on the articulable

facts of the case because defendant previously served a 15-year sentence for

aggravated robbery and committed another one, suggesting he’s unlikely to

be deterred by any conditions imposed by this court. Defendant also has two

other cases pending, both crimes of violence, suggesting inability to comply

with law.”

¶ 43 The ASA agreed that “the Court made the correct finding” but maintained that “the State

*** did not do the correct argument.”

¶ 44 As to the State’s request to cure a defect in its argument, defense counsel responded:

“I think the appellate courts in these decisions – and this specific issue

hasn’t been addressed, but they have been reversing cases where the State

failed to make the appropriate argument almost as a sort of waiver. I don’t

think they’ve used that specific word.

So my argument would be even though the court went through the

three findings and made findings based on those three factors, that if the

court finds that the State did not present enough evidence that they don’t

have a future opportunity to do so. That it was, in fact, a one-time

13 No. 1-24-1403B

opportunity.”

¶ 45 The court then asked,

“Is it the defense position then that if the State fails to make an argument

properly, *** [t]hat if it doesn’t come out of the State’s mouth properly,

then the judge has absolutely no discretion to go ahead and weigh it properly

based on the facts of all three cases put before them? Is that what you’re

saying, that *** a judge is bound if a State’s Attorney screwed up the

argument, *** on the detainable offense, be it a murder, armed robberies,

aggravated robberies, aggravated vehicular hijackings, whatever it might

be? That if the evidence all got in the record somehow but the State didn't

separate it properly, that the judge has no discretion to use their own

intelligence, if you will, to sift through everything presented to them and

make a finding, that a judge can’t do that? That they’re stopped from

making [findings] as Judge Srivastava did in [his written order]?”

¶ 46 Defense counsel agreed, “that is my argument, just based on the principles of waiver and

forfeiture.”

¶ 47 The State responded that waiver does not apply, because Illinois Supreme Court Rule

604(h) was recently amended to require an appellant to file a motion for relief in the trial court,

and the trial court to hold a hearing on that motion, before an appeal. The State argued that it was

illogical to require such a hearing if the court could not cure any defects that may have occurred

in the prior hearing.

¶ 48 The court then allowed the State to make an argument as to the third prong. The ASA stated

that electronic monitoring allows “two movement days,” during which defendant could commit

14 No. 1-24-1403B

crime. The ASA stated that the record showed that defendant did not just commit a crime once

because he was “desperate” or “need[ed] money.” Instead, “[h]e’s committing robberies over and

over and over again, twice [sic] at the same place, with the same victim. He’s shown that he does

not have the wherewithal to show self-control and to follow court orders.”

¶ 49 In ruling on defendant’s motion for relief as to her own order, Judge Brosnahan extensively

set out the proffered facts from all four offenses, and stated:

“Respectfully, Counsel, the motion for pretrial release is going to be denied.

The court’s order of April 24th of 2024 is going to stand and that order was

to detain the defendant. I continue to find, despite the arguments addressed

to the court, that the State did show by clear and convincing evidence that

the defendant committed a robbery on [January 26, 2024], at the Subway

store at 1232 South Canal. He ordered the victim to the floor and took $450

from the register. It’s clearly an offense that qualifies as listed in the statute

that was purportedly on video.”

¶ 50 The court also found that defendant was a danger to the community generally, and to people

who are “in convenience stores in the early morning hours.” In particular, defendant was a danger

to the clerk victim in three of the robberies, who was “obviously a pivotal witness in three of the

cases.”

¶ 51 Finally, the court explained that, although the court “start[s] with the supposition in each

and every case that the defendant is entitled to pretrial release,” in this case, the court “would have

absolutely no faith at all if [it] released [defendant] that he would not be out making other people

victims.” The court believed that electronic monitoring or other conditions would be “much, much,

much too big of a risk in this case,” and that such conditions “would do nothing to deter the

15 No. 1-24-1403B

defendant.”

¶ 52 Finally, the court addressed the defense’s argument that “because the State did not

specifically break up and articulate the three different prongs, as case law now suggests should be

done, that a judge is estopped from making a ruling based upon what they heard at the hearing.”

The court disagreed with the defense, finding that such an interpretation would “tie the hands of a

judge, who would be at the mercy of whoever was articulating the facts for a prosecutor.” The

court agreed, that “obviously, information has to be presented to the judge with respect to all three

prongs,” but the court did not believe that “if the State doesn’t argue it exactly point-by-point, a

judge has absolutely no ability to take those same facts that came out of the State’s mouth and

make a ruling on their own based on their training, their experience of what they heard.”

¶ 53 Instead, the court found that the “pivotal” issue was whether “the court ma[d]e the correct

findings, did the court do the three separate prongs point-by-point in a ruling *** based on what

was presented to the court.” The court found that Judge Srivastava “clearly delineated that there

was no condition or combination of conditions *** that can mitigate the threat of safety [posed by

defendant]” and that the record “very clearly and sufficiently” included “more than enough”

evidence “for him to make th[at] finding.”

¶ 54 In so finding, the court declined to address whether the State was permitted to cure an

alleged deficiency at the hearing on a defendant’s motion for relief. Even if the State was not

permitted to do so, “there was more than enough in the record for Judge Srivastava to properly

make the findings that he made in his order.” Accordingly, the court also denied defendant’s

motion for relief as to the order entered by Judge Srivastava.

¶ 55 Defendant filed a notice of appeal from that order on July 2, 2024, and on August 22, 2024,

defendant filed a “notice in lieu of Rule 604(h) memorandum.” In that notice, defendant elected to

16 No. 1-24-1403B

stand on the motions for relief, and not file a Rule 604(h) memorandum. Accordingly, defendant’s

motions for relief shall serve as his argument in this appeal. See Ill. S. Ct. R. 604(h)(7) (eff. Apr.

15, 2024) (“ “The motion for relief will serve as the argument of the appellant on appeal. ***

Issues raised in the motion for relief are before the appellate court regardless of whether the

optional memorandum is filed.”).

¶ 56 Pretrial release is governed by article 110 of the Code of Criminal Procedure of 1963

(Code) (725 ILCS 5/art. 110 (West 2024)). Upon the filing of a petition requesting an order

denying a defendant’s pretrial release, it is the State’s burden to prove by clear and convincing

evidence that (1) the presumption is great or the proof evident that the defendant committed a

detainable offense, (2) the defendant poses a real and present threat to the safety of any person(s)

or the community, based on the specific and articulable facts of the case, and (3) no condition or

combination of conditions can mitigate the threat the defendant poses, or prevent the defendant’s

willful flight from prosecution. Id. § 110-6.1(e)(1)-(3). The standard “requires proof greater than

a preponderance, but not quite approaching the criminal standard of beyond a reasonable doubt.”

In re D.T., 212 Ill. 2d 347, 362 (2004). Although the applicable standard of review in a pretrial

detention appeal has been the source of considerable disagreement in the Illinois appellate court

(see People v. Miller, 2024 IL App (1st) 240588, ¶ 27), we need not resolve which standard of

review applies in this case, as the result would be the same under any standard. We note, however,

that the supreme court recently heard oral arguments in a case regarding the standard of review

(People v. Morgan, 2024 IL App (4th) 240103, appeal allowed, 475 Ill.Dec. 462 (2024)), and we

eagerly await guidance on the issue.

¶ 57 We first address defendant’s arguments as to the first prong, regarding whether the State

met its burden of proving by clear and convincing evidence that the presumption is great or the

17 No. 1-24-1403B

proof evident that the defendant committed a detainable offense.

¶ 58 In the motion for relief directed at the order entered by Judge Srivastava regarding the

convenience store robberies, defendant alleged that the State failed to meet that burden because

the complaining witness was unable to identify him in a photo lineup, there was “no physical

evidence, such as DNA or fingerprints,” and the “Thompson identification” by a “[c]omplaining

[w]itness in a pending domestic violence case [wa]s not a reliable source for a positive

identification.” And similarly, in the second motion for relief, as to the pretrial detention order

entered by Judge Brosnahan as to the Subway robbery, defendant alleged that the State failed to

meet its burden because the complaining witness did not identify him, there was no physical

evidence, and the State “did not admit the POD video.” Defendant also alleged that the “Thompson

identification” of him by “an unknown Chicago Police Department detective [wa]s not a reliable

source for a positive identification.”

¶ 59 Here, the State’s proffers established that defendant committed four robberies—three at a

convenience store, and one at a Subway restaurant—within the course of nine days in the late night

and early morning hours. The three convenience store robberies involved the same clerk victim,

and during those offenses defendant took about $200 in cash and Newport cigarettes and fled in a

minivan. During two of the robberies, defendant punched the clerk in the face, and during the other

robbery, defendant ordered the clerk to the ground, put his hand in his pocket to suggest he had a

gun, and threatened to shoot the clerk. At least one of the convenience store robberies was captured

on video, and defendant’s escape in a red minivan was captured on POD camera footage. Although

the clerk was not able to identify defendant in a photo lineup, defendant’s girlfriend was shown

video footage and still photographs from one of the robberies, and she identified defendant as the

perpetrator.

18 No. 1-24-1403B

¶ 60 In the Subway robbery, defendant entered the restaurant, waited for the last customer to

leave, then ordered a sandwich and handed the cashier a $20 bill. The cashier opened the cash

register, then defendant told the victim to get back, and ordered the victim to unlock the register’s

latch and lie face down on the floor. Defendant took $450 from the register and $20 from the

cashier. Defendant tried to conceal the tattoo under his left eye by covering it with his hand. The

incident was captured on restaurant video. As defendant left the Subway restaurant, he was

captured on video from surveillance by a nearby bank. Defendant’s escape in a maroon Dodge

Caravan minivan was also captured on POD footage and by a “plate reader.” That same minivan

was used in at least two of the convenience store robberies, and police investigation revealed that

the minivan was registered to defendant’s girlfriend’s mother. After searching that minivan,

officers recovered hoodies similar to the ones worn by the offender during the offenses.

¶ 61 Based on the facts presented here, we agree with the trial court’s conclusion that the

evidence was sufficient to sustain the State’s burden of showing clear and convincing evidence

that defendant committed the offense charged. At this stage, the State does not need to prove

defendant’s guilt beyond a reasonable doubt. People v. Stock, 2023 IL App (1st) 231753, ¶ 13.

Instead, the State need only show that the proof is evident or the presumption great that the

defendant has committed a qualifying offense “by clear and convincing evidence.” 725 ILCS

5/110-6.1(e)(1) (West 2022).

¶ 62 Defendant contends that the State did not meet its burden because there was no DNA or

fingerprint evidence, and because it did not introduce the POD video at the hearing. Such evidence,

however, would not be required, even under the more rigorous standard of proof beyond a

reasonable doubt. See People v. Williams, 182 Ill. 2d 171, 192 (1998) (“Proof of physical evidence

connecting a defendant to a crime has never been required to establish guilt.”). And the Act

19 No. 1-24-1403B

provides that the State need not actually introduce the underlying evidence at the hearing, and may

satisfy its burden of persuasion by presenting evidence “at the hearing by way of proffer based on

reliable information.” 725 ILCS 5/110-6.1(f)(2) (West 2022).

¶ 63 Defendant also contends that Judge Srivastava erred in finding that the minivan, which was

owned by defendant’s girlfriend’s mother, “linked” him to the offense, because “[s]imple

proximity to someone who owns the offending vehicle does not ‘link’ someone to a crime.’ ” The

trial court’s determination that the vehicle “linked” him to the offense was not based on his “simple

proximity” to the owner of the vehicle. Instead, defendant’s escape in the minivan was captured

on POD camera footage, and hoodies, similar to the ones defendant wore in the offenses, were

found inside that vehicle.

¶ 64 We also note defendant characterizes the identifications by his girlfriend and by a detective

as “Thompson identifications”—presumably referencing the supreme court’s opinion People v.

Thompson, 2016 IL 118667—to contend that they are “not *** reliable source[s]” of identification,

In Thompson, the supreme court considered the admissibility of lay opinion identification

testimony, in the context of an identification of a defendant from a surveillance recording and

photographs. The supreme court held that such “opinion identification testimony is admissible

under Rule of Evidence 701 if (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. The court also expressly held that there “is no per se

rule against admission of a law enforcement officer’s identification testimony,” and that when “the

State seeks “to introduce lay opinion identification testimony from a law enforcement officer, the

circuit court should afford the defendant an opportunity to examine the officer outside the presence

of the jury *** to explore the level of the witness’s familiarity as well as any bias or prejudice.”

20 No. 1-24-1403B

Id., ¶¶ 56, 59.

¶ 65 At no point in this court, or in the trial court, did defendant explain Thompson’s relevance,

or why he argues that the identifications by defendant’s girlfriend and the detective would not be

reliable under that case. And nevertheless, even if defendant intends to rely on Thompson at trial

to argue that the identifications should be excluded, the “rules concerning the admissibility of

evidence in criminal trials do not apply to the presentation and consideration of information” at a

pretrial detention hearing. 725 ILCS 5/110-6.1(f)(5) (West 2022).

¶ 66 Defendant also alleged that the court’s finding that he committed the offenses was based

on incorrect “reasoning that ‘the robberies are similar in nature’ ” and that there was a “ ‘similar

MO,’ ” or modus operandi, between the robberies. Defendant alleges that the only “indicators of

a modus operandi were simply the hallmarks of robberies, generally,” and that there were multiple

differences in the robberies, including “multiple vehicles,” “a face covering being used in one

[robbery],” and the “threat of a weapon in [another].”

¶ 67 The record shows, however, that the offenses occurred within a timespan of a little over a

week, and they all occurred in the early morning hours, between 12:30 and 4:40 a.m. Three of the

offenses occurred at the same convenience store, and involved the same clerk. Defendant stole

approximately $200 on each occasion, as well as a specific brand of cigarettes. The robbery at

Subway was also similar to the convenience store robberies. Like in the first convenience store

robbery, defendant initially acted as if he intended to make a purchase, inducing the cashier to

open the cash register. And like the convenience store robbery which occurred that same night,

defendant ordered the victim to the floor, as he took money from the cash register. Based on the

proffered facts before the court, we find no error in the trial court’s comment that the evidence of

the robberies showed a “similar MO.”

21 No. 1-24-1403B

¶ 68 Finally, defendant alleged that Judge Srivastava erred in considering that he has a

“propensity” to commit crime to conclude that it was more likely that he committed the offenses

here. Defendant’s argument is based on the comment by the court that it was “also going to note”

that, although propensity evidence is not considered at trial, the court could consider it at the

pretrial hearing. Defendant argues that there is no “caselaw or statutory exception to Illinois Rule

of Evidence 404 permitting the court to consider propensity evidence,” and that it would not make

“logical sense for the court to consider propensity evidence for purposes of a pretrial release

hearing” because “then the court could always conclude that the proof is evident or presumption

is great simply because the defendant has a propensity to commit crime generally, so long as the

defendant has a criminal record.” The State responds that the court could properly consider

evidence of propensity, because “[t]he rules concerning the admissibility of evidence in criminal

trials do not apply to the presentation and consideration of information at the hearing.” 725 ILCS

5/110-6.1(f)(5) (West 2022).

¶ 69 This court has found no cases analyzing whether a trial court is permitted to consider

propensity evidence during a pretrial hearing. However, we need not resolve this issue because

even if the court’s comments were erroneous, those comments made it clear that it had already

found that the State had met its burden as to the first prong, and that its comments on propensity

were superfluous to, and not the basis for, that finding. Based on the strong evidence in the State’s

proffer, we conclude that the State satisfied its burden of showing by clear and convincing evidence

that defendant committed a detainable offense, and the trial court’s finding in that regard was not

erroneous.

¶ 70 Defendant next alleges that the State failed to meet its burden of showing by clear and

convincing evidence that he is a safety threat. Defendant’s only arguments on this point, however,

22 No. 1-24-1403B

are that in the hearing before Judge Srivastava, the State “solely presented arguments regarding

the danger of robberies generally,” and at the hearing before Judge Brosnahan, the court “failed to

make a finding during its oral ruling that [defendant] posed a threat to a specific person or the

community based on the articulable facts.”

¶ 71 Pursuant to 725 ILCS 5/110-6.1(g), the circuit court may consider various factors in

determining whether a defendant poses a real and present threat to the safety of any person or

persons or the community. Those factors include the “nature and circumstances of any offense

charged, including whether the offense is a crime of violence, [or] involv[ed] a weapon”; the

“history and characteristics of the defendant” including prior criminal history; and “[a]ny other

factors *** deemed by the court to have a reasonable bearing upon the defendant's propensity or

reputation for violent, abusive, or assaultive behavior, or lack of such behavior.”

¶ 72 We disagree that the evidence before Judge Srivastava was limited to “the danger of

robberies generally.” Rather, the evidence before the court showed that defendant committed a

series of very violent offenses, including punching the victim in the face during two of the

robberies, and intimating that he had a firearm and threatening to shoot her during the other. The

facts before the court also showed that defendant had an altercation with his girlfriend after one of

the robberies, that he had pulled her hair out, and that he was arrested and charged with domestic

battery. Moreover, defendant has an extensive criminal history, including two aggravated

robberies for which he was sentenced to 15 years imprisonment. In these circumstances, and based

on an analysis of the statutory factors, we agree with the trial court’s conclusion that defendant

poses a real and present safety threat.

¶ 73 Additionally, although Judge Brosnahan did not make a specific oral finding regarding

defendant’s dangerousness, the written order entered immediately following that hearing makes

23 No. 1-24-1403B

clear that she found defendant to be a safety threat to the “specific victims and community in

general” based on the violent nature of the offense, and the fact that he was also charged with the

three convenience store robberies. Moreover, Judge Brosnahan reiterated that finding at the

hearing on defendant’s motion for relief.

¶ 74 Finally, defendant asserted that the State failed to meet its burden of proving by clear and

convincing evidence that no condition or combination of conditions could mitigate that safety

threat, arguing that, in the hearings before both judges, the State did not explain why there were

no other conditions of release that could mitigate any risk to the community, and, accordingly, the

State “waived any such argument.” Based on the evidence in the record, we agree with the trial

court’s conclusion that no condition or combination of conditions could mitigate the safety threat

posed by defendant, and that pretrial detention was necessary.

¶ 75 Although the third prong, concerning which conditions if any would mitigate the

defendant’s dangerousness, is separate from the second prong regarding defendant’s

dangerousness, both prongs necessarily entail the consideration of many of the same or similar

factors. See People v. Brown, 2024 IL App (5th) 240236-U, ¶ 33. In determining which conditions

of pretrial release, if any, would reasonably ensure the appearance of the defendant, the safety of

persons and the community, and the likelihood of defendant’s compliance with terms of pretrial

release, the statute provides factors for the trial court’s consideration. See 725 ILCS 5/110-5(a)

(West 2022). These include, among other things, (1) the nature and circumstances of the offense

charged, (2) the weight of the evidence against defendant, (3) the history and characteristics of the

defendant, and (4) the nature and seriousness of the real and present threat to the safety of any

person or persons or the community based on the articulable facts of the case that would be posed

by the defendant’s release. Id.

24 No. 1-24-1403B

¶ 76 Here, the record shows that, as set forth above, defendant committed a series of very violent

offenses, and that he has an extensive criminal history including aggravated robberies for which

he was sentenced to 15 years imprisonment. Defendant, however, was not dissuaded by his lengthy

prior incarceration, committing a series of robberies in a short time period, including three offenses

against the same victim, and committing a domestic battery against his girlfriend. In these

circumstances, we find no error in the trial court’s decision that there were no conditions short of

detention that could mitigate the safety threat posed by defendant.

¶ 77 In arguing that the State’s failure to make a specific argument as to the third prong amounts

to a waiver, defendant relies on People v. White, 2024 IL App (1st) 232245, ¶ 27. We find no

authority in White for such a proposition, and find that case distinguishable in any event. In White,

the appellate court reversed the trial court’s order for pretrial detention where the State “effectively

ignored the third statutory factor for denial of pretrial release,” and presented “no evidence relevant

to this third factor.” Id., ¶¶ 25, 27. In particular, the appellate court noted that the court ignored

that defendant, who was charged with reckless homicide in connection with an automobile

accident, had no previous criminal convictions, that he had been cooperating with a weekslong

investigation into the offense, and that Pretrial Services recommended that he be released with

pretrial monitoring while awaiting trial. Id., ¶ 27.

¶ 78 Here unlike in White, defendant has an extensive criminal history, and in the instant

offenses, he is accused of committing four robberies in the course of nine days. Additionally, Judge

Srivastava was provided with defendant’s pretrial services scores, which were described as: “New

criminal activity, 6; failure to appear, 3; PSA score coincides with supervision Level 3.” Although

copies of the pretrial assessment report do not appear in the record on appeal, this court notes that

in such assessments, “new criminal activity” and “failure to appear” are scaled out of a total of six,

25 No. 1-24-1403B

and supervision level 3 corresponds with a recommendation of “maximum conditions.” By

contrast, the defendant in White’s PSA scores “were two of six, and Pretrial Services recommended

release with pretrial monitoring, not detention.” Id., ¶ 8. And most importantly, here, even if the

State failed to specifically articulate an argument on the third prong, it did present evidence

relevant to that prong, and the circuit court detailed reasons as to why it found that less restrictive

means would be insufficient to mitigate the threat defendant poses. Accordingly, we find no error

in the court’s finding that the State met its burden to show no condition or combination of

conditions could mitigate the real and present threat he posed was reasonable and based on the

evidence presented.

¶ 79 Finally, defendant contends that Judge Srivastiva made an erroneous written finding in his

order that defendant had a “pending” domestic battery, and that he had “two other cases pending,”

when his domestic violence offense had been resolved and he had been placed on probation.

Although it does not appear in the record on appeal, a review of the website for the 18th judicial

circuit court clerk indicates that on April 5, 2024, one day before the hearing before Judge

Srivastiva, defendant entered a guilty plea on a domestic battery charge, and was sentenced to

probation. See People v. Spencer, 408 Ill. App. 3d 1, 10 (2011) (“A reviewing court may take

judicial notice of factual evidence when the facts are capable of immediate and accurate

demonstration by resort to easily accessible sources of indisputable accuracy”); Edward Sims Jr.

Trust v. Henry County Board of Review, 2020 IL App (3d) 190397, ¶ 26, n.6 (“It is generally

accepted that a court may take judicial notice of the information on a government website.”).

Although defendant apparently pleaded guilty the previous day, the record before Judge Srivastiva

indicates that the State referred to the domestic battery charge as pending, and defense counsel did

not correct that understanding. Nonetheless, defendant has made no argument, and we find no

26 No. 1-24-1403B

basis to conclude, that the change in status from defendant’s domestic battery case from being

pending to resolved based on his guilty plea would have had any effect on the trial court’s

judgment.

¶ 80 For the foregoing reasons, we find no error in the trial court’s decision to grant the State’s

petition for pretrial detention, and we affirm the judgment of the circuit court of Cook County.

¶ 81 Affirmed.