People v. Brackett

No. 2--95--0524

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
) No. 94--CF--1370
v. )
)
JACQUELINE BRACKETT, ) Honorable
) Ronald B. Mehling,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Jacqueline Brackett, appeals her conviction of
aggravated robbery (720 ILCS 5/18--5 (West 1994)). Defendant
contends that (1) the aggravated robbery statute is
unconstitutionally vague and (2) she was not proved guilty beyond
a reasonable doubt. We affirm.
Suzanne Cooke was working at a McDonald's on 75th Street on
June 25, 1994. At about 11:20 p.m., she heard the tone for the
drive-through window, but no order was placed. As Cook opened the
window she saw a black female wearing sunglasses and driving an
older, maroon car. The woman in the car had a coat draped over her
arm. Underneath the coat "she had her finger pointed like there
was a gun." The woman announced a robbery.
Cooke took money from the register and attempted to hand it to
the robber "in a messy pile." However, the woman instructed her to
put the money in a bag. Cooke found a souvenir hat from a World
Cup soccer promotion, put the money inside, and placed the hat in
a clear plastic bag. As the car left McDonald's and turned right
onto 75th Street, Cooke noticed that its license plate number began
with either "KIF" or "KIP." Cooke reported the robbery to her
manager. After taking about five minutes to close the restaurant,
the manager called the police.
Cooke described the robber as wearing a purple shirt and
having short hair pulled back. She had a gap in her teeth. The
coat wrapped over the woman's arm was inside-out and had a white
quilted lining.
Raymond Moeller, a Woodridge police officer, saw a car make an
illegal left turn across two lanes of traffic onto 75th Street,
near the McDonald's, at 11:23 p.m. He stopped the car, a maroon
Buick with license plate number KIP 536. He recognized the driver,
a black female wearing a purple shirt, as someone he had stopped
two days before. After a brief conversation, Moeller decided
against issuing any tickets.
Four or five minutes later, Moeller received a dispatch about
a robbery at the McDonald's. The description of the car matched
that of the one he had just stopped. At about 1:30 a.m., he went
to defendant's address and asked her to accompany him to the police
station.
Officer Chris Marema responded to the report of the robbery.
He learned that Officer Themos had located, at a nearby apartment
complex, a car similar to that used in the robbery. Its license
plate number was KEP 536. Marema went there and found the car next
to a dumpster. The police brought Cooke to the complex, where she
identified the car as the one used in the robbery.
Several officers kept the car under surveillance. At about
1:20 a.m., a black woman approached the car. She said that the car
belonged to a friend of hers and provided the officers with an
address in Bolingbrook. Marema, Moeller, and Detective Bohm went
to the Bolingbrook address and spoke to a woman. She identified
herself as the mother of the person for whom they were looking.
She summoned defendant, who agreed to accompany the officers to the
police station. Moeller recognized defendant as the woman he had
stopped earlier that night.
The officers took Cooke to the Woodridge police station to
help prepare a computer sketch of the suspect. After it was
completed, the police informed her that they had someone in
custody. Cooke thereafter saw defendant behind a window from about
two feet away. Cooke "pretty much recognized her," but could not
make a positive identification. Later, the officers had the
suspect read some words from a paper. Cooke then noticed the gap
in her teeth and positively identified defendant as the robber.
After Cooke identified defendant in the second showup, Marema
told defendant that she had been identified. Defendant denied
being involved. She said that the car had been having mechanical
problems, and she had left it at the Woodridge apartment complex to
have some work done on it. Her brother had been driving the car
recently, but no one had driven it on the night in question.
Marema recovered $90 from defendant's purse. Defendant signed
a consent-to-search form for the car and accompanied the officers
back to the apartment complex, where she gave Marema keys for the
car. Inside the car, he found a pair of sunglasses similar to the
ones Cooke had described and a note with words to the effect of
"give me your money or I'll blow your head off."
According to Marema, a dumpster was right next to the driver's
door. He looked in the dumpster and found a McDonald's promotional
soccer cap inside a plastic bag, and a white quilted jacket.
Marema returned to the police station, where Cooke identified the
cap, bag, and jacket as the ones connected with the robbery. No
fingerprints were taken from the recovered items.
Defendant's mother, Ernestine Brackett, testified that defend-
ant arrived home about 15 minutes before the police arrived. She
did not know who dropped defendant off, but stated that defendant
does own a maroon Buick.
Charles Brackett, defendant's brother, testified that he was
at home with his girlfriend, Marla Cosey, on June 25, 1994.
Defendant arrived at 11:29 p.m. She did not appear nervous.
Marla Cosey stated that she had been with defendant earlier in
the day of June 25. Defendant cashed two checks at Dominick's for
$50 each. Defendant arrived at the apartment at 11:28 or 11:29, at
the end of "All in the Family."
Defendant testified that on June 25, 1994, she was driving
east on 75th Street, having left the Taco Bell. She made an
illegal left turn because the car was "running rough." When
Officer Moeller stopped her, she said that she was trying to get to
her brother's house. She said that the sunglasses previously
identified were not hers and that she had cashed two checks earlier
in the day for $50 each. She did not rob the McDonald's, was not
missing any teeth, and the jacket found in the dumpster was not
hers.
The trial court found defendant guilty and sentenced her to
five years' imprisonment. Defendant filed a timely notice of
appeal.
Defendant's first contention on appeal is that the aggravated
robbery statute is unconstitutionally vague because it contains
insufficiently clear standards for those who enforce the statute
and therefore may lead to arbitrary or discriminatory enforcement.
The statute in question provides:
"(a) A person commits aggravated robbery when he or she
takes property from the person or presence of another by the
use of force or by threatening the imminent use of force while
indicating verbally or by his or her actions to the victim
that he or she is presently armed with a firearm. This
offense shall be applicable even though it is later determined
that he or she had no firearm in his or her possession when he
or she committed the robbery." 720 ILCS 5/18--5(a) (West
1994).
Defendant contends that enforcement of the statute turns
solely on the arresting officer's interpretation of the word
"indicating." She argues that "[a]ggravated robbery charges may be
brought when there is simply a suspicion that a person acted in
such a way that one person might believe the actor had a gun but
another person may view the act as innocent conduct."
According to defendant, the police thus have virtually
unfettered discretion in determining what is an "indication" that
the suspect may have been armed with a gun. She equates the
statute in question with the ordinances found to be invalid in
Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855
(1983), and Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972).
Statutes are presumed constitutional. Therefore, the party
challenging the statute has the burden of clearly establishing its
constitutional infirmity. People v. Hickman, 163 Ill. 2d 250, 257
(1994). A court has the duty to construe a statute so that it is
constitutional if it can reasonably be done. People v. Bales, 108 Ill. 2d 182, 188 (1985).
Due process requires that a statute must provide sufficiently
definite standards for law enforcement officers and fact finders so
that its application does not depend merely on their private
conceptions. Hickman, 163 Ill. 2d at 256; People v. Fabing, 143 Ill. 2d 48, 53 (1991).
The aggravated robbery statute provides sufficiently definite
standards to guide officers and fact finders and to minimize the
danger of arbitrary enforcement. It is not similar to the statute
and ordinance the supreme court found to be constitutionally infirm
in Kolender and Papachristou.
In Kolender, the court declared invalid a California statute
that penalized anyone "[w]ho loiters or wanders upon the streets or
from place to place without apparent reason or business and who
refuses to identify himself and to account for his presence when
requested by any peace officer so to do." Kolender, 461 U.S. at
353 n.1, 75 L. Ed. 2d at 906 n.1, 103 S. Ct. at 1856 n.1, quoting
Cal. Penal Code Ann. 647(e) (West 1970). The court found that the
statute gave the police "virtually complete discretion *** to
determine whether the suspect has satisfied the statute."
Kolender, 461 U.S. at 358, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858.
Similarly, in Papachristou, the court struck down a
Jacksonville city ordinance providing that "[r]ogues and vagabonds,
*** persons wandering or strolling around from place to place
without any lawful purpose or object, habitual loafers, disorderly
persons, *** shall be deemed vagrants ***." Papachristou, 405 U.S.
at 156 n.1, 31 L. Ed. 2d at 112 n.1, 92 S. Ct. at 840 n.1. The
court noted that the ordinance furnished "a convenient tool for
'harsh and discriminatory enforcement by local prosecuting
officials, against particular groups deemed to merit their
displeasure.' " Papachristou, 405 U.S. at 170, 31 L. Ed. 2d at
120, 92 S. Ct. at 847.
The problem with the vagrancy statutes at issue in Kolender,
Papachristou, and similar cases was that they defined inherently
innocuous conduct and gave the police virtually unlimited
discretion to determine whether to arrest someone for a violation.
The potential for arbitrary and discriminatory enforcement against
"particular groups" was apparent.
The statute at issue here, by contrast, defines conduct that
is inherently criminal: "tak[ing] property from the person or
presence of another by the use of force or by threatening the
imminent use of force" (720 ILCS 5/18--5 (West 1994)). The statute
does not give the police inordinate discretion in determining
whether to make an arrest. It permits charging the more serious
offense based on the impression the conduct made upon the victim,
not the police officer.
In this respect, the statute is like many others that define
criminal conduct in terms of the acts' effects upon the victim's
state of mind. For example, the assault statute defines the
offense as "conduct which places another in reasonable apprehension
of receiving a battery." 720 ILCS 5/12--1 (West 1994). Obviously,
what constitutes a reasonable apprehension of receiving a battery
is not capable of precise definition. Although the application of
this standard on a case-by-case basis is not without difficulty
(see generally Soldal v. County of Cook, 923 F.2d 1241, 1250 (7th
Cir. 1991); 2 W. LaFave & A. Scott, Substantive Criminal Law 7.16,
at 316-17 (1986) (hereafter LaFave & Scott)), the statute's
constitutionality has never been seriously challenged. In People
v. Cavanaugh, 13 Ill. 2d 491, 492 (1958), the supreme court
rejected without comment an argument that the aggravated assault
statute was unconstitutionally vague.
As two commentators have stated:
"The criminal law is full of instances in which the
legislature has passed on to the administrators some
responsibility for determining the actual boundaries of the
law, as with the frequent occasions when a jury is asked to
determine whether the defendant acted 'reasonably' in some
respect." 1 LaFave & Scott, 2.3(c), at 133.
Here, the statute is no more vague than necessary to define
the offense. What constitutes "indicating verbally or by his or
her actions to the victim that he or she is presently armed with a
firearm" is not capable of precise definition and is a question
properly left to be determined by the fact finder on a case-by-case
basis. We are confident that the danger of arbitrary enforcement
against innocuous conduct has been minimized.
Moreover, defendant's conduct clearly falls within the
statutory proscription. When a statute is challenged on grounds
not involving first amendment concerns, it must be examined in
light of the facts of the case at hand. People v. Ryan, 117 Ill. 2d 28, 34 (1987). Here, Cooke testified clearly that defendant had
her arm covered with a jacket and held her finger in such a way as
to give the impression that she had a gun under the jacket.
Defendant's argument that the victim did not mention the
suspected presence of a gun until trial and therefore may have been
coached by the police or prosecutors to tailor her testimony to
bring defendant's conduct within the more serious offense is pure
speculation unsupported by the record. Cooke testified that she
told her manager "exactly what happened," and, after the police
arrived, "went into more detail with them." Moreover, the computer
sketch of the suspect generated by the police sketch artist
contains the legend, "Offender's left arm was covered by a jacket,
possibly hiding a weapon. No weapon was mentioned but was inferred
by the concealment." Thus, there is no evidence in the record that
Cooke changed her testimony merely to convict defendant of the more
serious offense.
Defendant next contends that the evidence was insufficient to
establish her guilt beyond a reasonable doubt. She maintains that
Cooke's identification of her as the robber was tainted because the
two one-person showups were unduly suggestive. In addition, she
contends that numerous other inconsistencies in and omissions from
the evidence created a reasonable doubt of her guilt.
Where the sufficiency of the evidence is challenged on
appeal, the relevant question is whether, after viewing all the
evidence in a light most favorable to the prosecution, any rational
trier of fact could have found all the elements of the offense
beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261
(1985). A criminal conviction will not be set aside unless the
evidence is so improbable or unsatisfactory that it creates a
reasonable doubt of defendant's guilt. People v. Clemons, 277 Ill.
App. 3d 911, 923 (1996). A reviewing court is not permitted to
substitute its judgment for that of the trier of fact on questions
involving the weight of the evidence, the credibility of the
witnesses, or the resolution of conflicting testimony. People v.
Campbell, 146 Ill. 2d 363, 375 (1992).
As part of her reasonable doubt argument, defendant contends
that the one-person showups conducted at the Woodridge police
station were unnecessarily suggestive and tainted the subsequent
identification. Defendant argues that no exigent circumstances
existed that prevented the police from putting together a lineup.
The State contends that defendant has waived any issue
regarding the identification procedures because she neither filed
a pretrial motion to suppress the identification nor raised the
issue in her post-trial motion. Generally, the failure to raise an
issue in a post-trial motion results in the waiver of that issue.
People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, to the
extent that the identification of defendant by the only eyewitness
to the crime relates to the sufficiency of the evidence, we will
consider the merits of this issue.
Although showup procedures such as those used here are not
favored (see, e.g., Stovall v. Denno 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972 (1967)), courts have approved
them under certain circumstances, such as when a witness had an
excellent opportunity to observe the offender during the offense,
or where prompt identification is necessary for the police to
determine whether to continue their investigation. People v.
Manion, 67 Ill. 2d 564, 569-70 (1977); People v. Hughes, 259 Ill.
App. 3d 172, 176 (1994).
The admission of evidence of a showup without more does not
violate due process. Manson v. Brathwaite, 432 U.S. 98, 106, 53 L. Ed. 2d 140, 148-49, 97 S. Ct. 2243, 2249 (1977); Neil v. Biggers,
409 U.S. 188, 198, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382
(1972). The critical question is whether, under the totality of
the circumstances, the identification is reliable. See Manson, 432 U.S. at 114, 53 L. Ed. 2d at 154, 97 S. Ct. at 2253. The factors
to be considered include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of
attention, the accuracy of his or her prior description of the
suspect, the level of certainty demonstrated at the confrontation,
and the time between the crime and the confrontation. Neil, 409 U.S. at 199-200, 34 L. Ed. 2d at 411, 93 S. Ct. at 382.
Applying these factors to the present case, we conclude that
the identification was sufficiently reliable. Cooke had an
opportunity to observe the robber for a fairly long time while a
conversation took place and Cooke searched for a bag in which to
place the money. She testified that she was only two to three feet
away from the robber and that she did not take her eyes off the
suspect during that time.
Moreover, defendant closely matched Cooke's original
description of the suspect. Cooke was almost certain of her
identification after the initial showup and was completely certain
following the second observation during which she observed the gap
in defendant's teeth. Finally, the identification procedures
occurred approximately two hours after the offense. The totality
of the circumstances demonstrates that Cooke's identification was
reliable.
Defendant points to several other discrepancies in the
evidence that she claims create a reasonable doubt of her guilt.
For example, she notes that the witnesses gave several different
versions of the license number of the car involved in the robbery
and of defendant's car and that Cooke failed to notice a sunroof or
a bumper sticker on defendant's car. Also, defendant contends that
it is contrary to human experience to have closed the store prior
to calling the police to report the robbery, which is what Cooke
testified was done.
In light of the overwhelming evidence of defendant's guilt,
these minor discrepancies simply do not create a reasonable doubt.
Cooke clearly and consistently identified defendant as the robber.
Her car matched Cooke's description of the car involved. Officer
Moeller testified that he stopped defendant near the scene of the
robbery within minutes after it occurred. Sunglasses identified as
having been worn by the robber were found in defendant's car. A
hat and plastic bag taken in the robbery, and a jacket worn by the
robber, were found in a dumpster right next to where defendant's
car was parked. Any inconsistencies or improbabilities in the
testimony were for the consideration of the trial court as the
finder of fact. Taken as a whole, the evidence was sufficient to
establish defendant's guilt beyond a reasonable doubt.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
DOYLE and THOMAS, JJ., concur.