People v. Green

No. 2--96--1291

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 96--CF--302
)
EWATHA GREEN, ) Honorable
) Harris H. Agnew,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________


JUSTICE THOMAS delivered the opinion of the court:

Following a jury trial, the defendant, Ewatha Green, was
convicted of unlawful delivery of a controlled substance (720 ILCS
570/401(d) (West 1996)). The indictment alleged that the defendant
knowingly and unlawfully delivered less than one gram of a
substance containing cocaine, a controlled substance, to James
Randall. The trial court sentenced the defendant to 14 years in
prison. The defendant appeals, contending that (1) he was denied
the effective assistance of counsel where his attorney failed to
attempt to suppress a photograph that was taken of the defendant
during a pat down search; (2) the trial court erred in denying his
motion in limine to suppress an eyewitness's identification of the
defendant; (3) he was not proven guilty beyond a reasonable doubt;
(4) the trial court improperly considered the State's race-neutral
reasons for using its peremptory challenge to exclude a juror
before allowing the defendant to establish a prima facie case of
purposeful discrimination; and (5) the prosecutor made an improper
comment during closing argument.
Prior to trial, defense counsel filed a motion to suppress
certain identification evidence, alleging that the pretrial
photographic identification procedure by which a police officer
identified the defendant as the perpetrator of the crime was
unnecessarily suggestive, resulting in a mistaken identification of
the defendant. At the hearing on the defendant's motion to
suppress, Rockford police officer James Randall testified that
around 11:30 p.m., on January 30, 1996, he was working undercover
and was assigned to purchase cocaine from drug dealers. At that
time, the defendant approached Randall's unmarked van outside the
Grand Hotel. The defendant then asked Randall if he wanted to
purchase "some dimes." The officer responded that he did. The
defendant then asked him to come inside the hotel. Officer Randall
told the defendant that his legs hurt and that the defendant should
get it and return. During their conversation, Officer Randall
focused his attention on the defendant's face and was only about
four feet away from the defendant. The officer noted that the area
was well lit and there was ample lighting to allow him to view the
defendant.
Randall further testified that after their initial
conversation the defendant left and went inside the hotel. He
returned a short time later and walked up to the driver's side
window of the officer's van. From the time the defendant exited
the hotel and until he reached the van, a space of about 10 yards,
Officer Randall maintained eye contact with the defendant. Randall
noted that there was no question that the man who approached his
van the second time was the same person he had just negotiated
with. When the defendant approached Randall's van this second
time, the defendant displayed two plastic baggies containing crack
cocaine. Officer Randall then handed the defendant two $10 bills,
and the defendant gave the officer the two plastic baggies of
cocaine. Officer Randall then identified the defendant in court as
the man who sold him the two baggies of cocaine on the night in
question.
Randall also testified that, after the defendant sold him the
cocaine, Randall drove to a location three blocks away. A short
time later, Officer Steven Johnson pulled up alongside Randall's
van and handed him a photograph, asking him if it was the man who
had just sold him drugs. Officer Randall looked at the photograph
for about two seconds and told Officer Johnson that it was
definitely him. Randall then identified the photograph in court,
marked as State's exhibit No. 2, as the photograph that Johnson
showed him on January 30, 1996, of the man who sold him cocaine on
that date. Randall explained on cross-examination that he was
shown one photograph of the defendant by Johnson, but two
photographs were actually taken of the defendant and tagged as
evidence.
Rockford police officer Steven Johnson testified at the
suppression hearing that he photographed the defendant at the Grand
Hotel because it was suspected that the defendant had sold drugs to
Officer Randall. Johnson noted that, during the transaction
between the defendant and Randall, Johnson was watching with
binoculars from a block and a half away and could also see the
defendant, although not his facial features. Johnson further
testified that Randall radioed a description of the defendant after
the transaction as being a black male, about 5 feet 10 inches tall,
weighing 165 pounds, and wearing a gray jacket and a dark stocking
cap.
Johnson stated that after Randall drove away he waited for
about 10 minutes for the defendant to come out of the hotel. When
the defendant did not come out, Johnson drove past the doorway of
the hotel and looked inside through a large glass window and saw
what looked to be the same person standing inside the foyer of the
hotel. Johnson then parked his car and went into the hotel. At
that time, other officers were already with the defendant. Johnson
then took a photograph of the defendant. About five minutes later,
he showed the photograph to Officer Randall, who identified the man
in the picture without any hesitancy as the person who had just
sold him drugs.
At the conclusion of the hearing, the trial court denied the
defendant's motion to suppress finding that the photographic
procedure was not so impermissibly suggestive as to give rise to a
substantial likelihood of irreparable misidentification and that
Officer Randall had an independent basis for viewing the defendant.
Thereafter, the cause proceeded to a trial before a jury.
Officers Randall and Johnson testified to the same general facts as
presented at the hearing on the defendant's motion to suppress.
Additionally, Randall testified at trial that two black males came
near his window on the night in question but it was only the
defendant who actually approached the window. Randall acknowledged
that he did not mention the other black male in his police report.
Randall further testified that the black male who actually
approached his van asked Randall if he wanted some dimes. Randall
explained that a "dime" is a street term for $10 worth of crack
cocaine. Randall acknowledged that he had testified before the
grand jury that he told the defendant that he was looking for
dimes. He clarified, however, that his police report was more
accurate and stated that it was the defendant that actually came up
to the window and asked Randall if the officer wanted some dimes.
Randall described the man who sold him cocaine on the night in
question as wearing a gray coat and black hat. Randall also noted
that the man had facial hair and a thin mustache or something like
scruff on the top of his lip.
Johnson testified that when the defendant was searched on the
night in question, no weapons or contraband were found. Johnson
noted that he did not want to arrest the defendant at that time for
the prior delivery to Officer Randall to avoid disclosing Randall's
undercover status as a police officer at that location. Thus, he
would have arrested the defendant at that time only if contraband
was discovered on his person. At the hotel Johnson took two
photographs of the defendant, which were marked as State's exhibits
Nos. 2 and 3 and admitted into evidence. The defendant stipulated
at trial that State's exhibit No. 1, the two baggies sold to
Officer Randall on the night in question, contained cocaine.
Rockford police officer David Cone testified that he was
working with Randall in connection with the undercover narcotics
operation on the night in question. Cone stated that his role was
to hide in the back of Randall's van for security purposes in case
trouble ensued with a drug transaction. He specifically noted that
the possibility a suspect would be armed with a gun was a concern
in any drug sale.
At the defendant's sentencing hearing, the defendant presented
three letters that he wrote to the trial court. Those letters are
part of the record on appeal. One of the letters states that the
two Polaroid photographs taken of him at the hotel on the night in
question were taken "at the same time" he was being searched.
On appeal, the defendant first argues that his trial counsel
was ineffective in failing to argue that his photograph was
illegally obtained after a fruitless search and should have been
suppressed. He further argues that his counsel should have
questioned the officers on cross-examination about the grounds for
the stop and that counsel should have called the defendant to
testify with respect to the details of his detention and search in
the hotel lobby.
A defendant alleging a violation of his sixth amendment right
to effective assistance of counsel must generally meet the two-
pronged test established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and recognized by the Illinois Supreme Court in
People v. Albanese, 104 Ill. 2d 504 (1984). Under Strickland, the
defendant must (1) show that his counsel's performance fell below
the objective standard of reasonableness; and (2) demonstrate that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 688, 694, 80 L. Ed 2d at 693,
698, 104 S. Ct. at 2064, 2068. A court need not determine whether
counsel's performance was deficient before examining the prejudice
suffered if it is easier to dispose of an ineffective assistance
claim on the ground of lack of sufficient prejudice. Strickland,
466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
Here, we find that the defendant has not shown, under the
second prong of the Strickland analysis, that there is a reasonable
likelihood that, but for counsel's inaction, the result of the
suppression hearing would have been different. An officer may make
a valid investigatory stop absent probable cause to arrest,
provided the officer's decision is based on specific and
articulable facts and reasonable inferences therefrom that warrant
the investigative intrusion. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). This rule has been codified by
section 107--14 of the Code of Criminal Procedure of 1963, which
provides in part:
"A peace officer, after having identified himself as a
peace officer, may stop any person in a public place for a
reasonable period of time when the officer reasonably infers
from the circumstances that the person is committing, is about
to commit or has committed an offense ***." 725 ILCS 5/107--
14 (West 1996).
An officer may frisk a suspect pursuant to Terry if he has reason
to believe that he is dealing with an armed individual and that the
safety of the officer or others is in danger. People v. Spann, 237
Ill. App. 3d 705, 709 (1992). The justification for the frisk is
to protect the officer or others nearby. Spann, 237 Ill. App. 3d
at 709.
In the present case, the record clearly shows that the
detention of the defendant for purposes of a Terry stop and frisk
was proper. The defendant acknowledges on appeal that the evidence
presented showed that a crime had been committed in the immediate
vicinity of the hotel, the defendant matched the description of the
suspect, and the defendant was apprehended in the same hotel lobby
where the suspect had been previously observed entering and
exiting. Moreover, there was testimony that guns were of special
concern at this location in dealing with suspected drug dealers.
Thus, the police officers could reasonably infer that the defendant
was armed and dangerous and that a Terry frisk was necessary to
ensure their safety and the safety of others. The defendant has
not shown any way that he might have been prejudiced by defense
counsel's decision not to further cross-examine Officers Randall
and Johnson about the grounds for the stop. Likewise, the
defendant does not show how he was prejudiced by not testifying at
the hearing on the motion to suppress. Additionally, we note that
these matters could be characterized as legitimate trial strategy
and would not amount to ineffective assistance of counsel.
Having determined that the defendant has not offered anything
on appeal to suggest that the stop and frisk were improper, we turn
to the question of whether defense counsel was ineffective for
failing to argue that the defendant's photograph was illegally
obtained. We find that defense counsel was not ineffective for
failing to argue that point because it is without merit and would
not have affected the outcome of the suppression hearing.
Generally, police surveillance involving the use of
photography to memorialize what has been seen by the naked eye does
not constitute a search if the observation itself was not a search.
1 W. LaFave, Search and Seizure 2.2(c) at 344-45 (2nd Ed. 1987).
Moreover, even if the taking of the defendant's photograph by
Officer Johnson could be considered a search or seizure for fourth
amendment purposes, we would nonetheless find that it was proper
under the plain view doctrine.
In Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990), the Supreme Court held that for the plain view
doctrine to operate an officer must not violate the fourth
amendment in arriving at the place from which the evidence could be
plainly viewed, the evidence must be in plain view, and its
incriminating character must be readily apparent. Horton, 496 U.S.
at 136, 110 L. Ed. 2d at 123, 110 S. Ct. at 2308. In so holding,
the Horton court rejected an additional requirement previously set
forth in the plurality opinion of Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed 2d 564, 91 S. Ct. 2022 (1971), that the
discovery of the evidence in plain view must be inadvertent.
Horton, 496 U.S. at 136, 110 L. Ed 2d at 123, 110 S. Ct. at 2307.
Here, Officer Johnson took the photographs of the defendant in
a public place where it was lawful for him to be. The defendant
admitted in a letter presented to the trial judge at sentencing
that the photographs were taken at the same time as the search.
The defendant was in plain view of the officer and the
incriminating nature of the photographs was readily apparent to the
officer. Under the circumstances, we find no violation of the
fourth amendment where Officer Johnson simply memorialized in a
photograph what he was entitled to view in a public place, and
that, even if the taking of the photos amounted to a seizure, it
was allowable under the plain view doctrine. Accordingly, we find
that the defendant cannot satisfy the prejudice prong of the
Strickland test, and his claim of ineffective assistance of counsel
must fail.
The defendant next argues that the trial court erred in
failing to suppress the identification evidence. He contends that
the identification procedure was unnecessarily suggestive and that
Officer Randall's identification of the defendant lacked
reliability.
In People v. Miller, 254 Ill. App. 3d 997 (1993), the court
discussed the admissibility of identification evidence as follows:
"For identification evidence to be inadmissible, a defendant
must meet the burden of proving that the identification
procedures were 'so unnecessarily suggestive and conducive to
irreparable mistaken identification that he was denied due
process of law.' [Citation.] Whether due process has been
violated in a particular case depends on the totality of the
circumstances surrounding the identification. [Citation.]
Suggestive confrontations are disfavored because they
increase the likelihood of misidentification. [Citation.]
Where there is 'a very substantial likelihood of irreparable
misidentification,' admission of identification evidence
violates due process. [Citation.] Thus the determination as
to whether due process has been violated is two-part. 'This
two part test involves an examination into, first, the
suggestiveness of the identification, and second, in the wake
of a suggestive out-of-court identification, the reliability
of the out-of-court identification and later in-court
identification.' [Citation.]
The reliability factors to be considered in determining
the likelihood of misidentification include:
'the opportunity of the witness to view the criminal at
the time of the crime, the witness' degree of attention,
the accuracy of the witness' prior description of the
criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time
between the crime and the confrontation.' " People v.
Miller, 254 Ill. App. 3d at 1003-04.
Here, assuming arguendo that the procedure utilized was
unnecessarily suggestive, which consisted of showing Officer
Randall a single photograph to determine the identity of the
offender, we must examine the reliability factors to determine
whether the procedure employed was so impermissibly suggestive as
to give rise to a very substantial likelihood of misidentification.
Turning to the reliability factors, we note that Officer Randall
had an excellent opportunity to view the defendant at the time he
committed the crime. The officer observed the defendant from as
close as four feet away and maintained constant eye contact. The
lighting in the area was more than adequate to allow the officer to
observe the defendant's facial features, and nothing obstructed the
officer's view of the defendant. Furthermore, Officer Randall's
degree of attention was high because he knew that he would have to
identify the offender at a later date. The officer's description
of the offender matched the defendant in such important respects as
describing accurately the defendant's race, facial hair, and
articles of clothing. The officer demonstrated a high level of
certainty in his subsequent identification of the defendant.
Finally, a very short amount of time elapsed from the officer's
encounter with the defendant during the drug transaction until he
positively identified the defendant's photograph. Under the
circumstances, we find that the identification was reliable and
based on an independent recollection of the defendant.
Accordingly, we find that the trial court's decision to deny the
defendant's motion to suppress was not against the manifest weight
of the evidence.
The defendant next argues that he was not proved guilty beyond
a reasonable doubt.
It is well settled that upon judicial review the relevant
question is whether, reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime charged beyond a
reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985).
A single witness's identification of the accused is sufficient to
sustain a conviction if the witness viewed the accused under
circumstances permitting a positive identification. People v.
Carini, 254 Ill. App. 3d 1, 9 (1993). Minor inconsistencies and
discrepancies in the testimony of a witness do not render the
testimony unworthy of belief and affect only the weight to be given
the testimony. People v. Kosyla, 129 Ill. App. 3d 685, 701 (1984).
It is the jury's prerogative to weigh testimony in light of the
discrepancies and conflicts, to accept or reject as little of the
witness's testimony as it pleases, and to draw reasonable
inferences from that testimony. Kosyla, 129 Ill. App. 3d at 701.
As previously noted, the evidence showed that Officer Randall
viewed the defendant in a well-lit area, while conversing with him
from about four feet away with nothing obstructing his view. The
officer was attentive to the defendant's appearance, knowing that
he would later have to identify him. He then clearly identified
the defendant both out of court and in court. The fact that no
money or contraband was found on the defendant during the search
did not create a reasonable doubt of guilt in light of Randall's
unequivocal identification and the fact that the defendant would
have had an opportunity to dispose of any contraband items between
the time of the drug sale and the search. Under the circumstances,
we find that a rational trier of fact could have found that the
State proved the defendant guilty of the charged offense beyond a
reasonable doubt.
The defendant next argues that the trial court improperly
considered the State's race-neutral reasons for exercising its
peremptory challenge before allowing the defendant to establish a
prima facie case of purposeful discrimination. In support of his
position, the defendant relies on People v. Bohanan, 243 Ill. App.
3d 348 (1993).
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court outlined a three-
step process for evaluating claims that a prosecutor has used
peremptory challenges in a manner violating the equal protection
clause. The analysis set forth in Batson permits prompt rulings on
objections to peremptory challenges without substantial disruption
of the jury selection process. Hernandez v. New York, 500 U.S. 352, 358, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1865-66 (1991).
First, the defendant must make a prima facie showing that the
prosecutor has exercised peremptory challenges on the basis of
race. Second, if the requisite showing has been made, the burden
shifts to the prosecutor to articulate a race-neutral explanation
for striking the jurors in question. Finally, the trial court must
determine whether the defendant has carried his burden of proving
purposeful discrimination. Hernandez, 500 U.S. at 358-59, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.
In Hernandez, the defendant raised a Batson objection, but the
prosecutor did not wait for a ruling on whether the defendant had
established a prima facie case of racial discrimination. Instead,
the prosecutor volunteered his reasons for striking the jurors in
question. As a result, the trial court had no occasion to rule
that the defendant had or had not made a prima facie showing of
intentional discrimination. Nevertheless, the Supreme Court in
Hernandez did not find this procedure improper, stating:
"This departure from the normal course of proceeding need not
concern us. *** Once a prosecutor has offered a race-neutral
explanation for the peremptory challenges and the trial court
has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant
had made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359, 114 L. Ed. 2d at 405, 111 S. Ct. at 1866.
In Bohanan, the case relied upon by the defendant, defense
counsel made a Batson motion based on the State's exclusion of
three minorities. The trial court asked the State for "some cogent
reasons." Bohanan, 243 Ill. App. 3d at 348. The State responded
that two of the potential jurors were divorced and lived on the
south side. The trial court rejected the residence argument but
never articulated a specific ruling as to the sufficiency of
divorce as a race-neutral reason for exclusion, and the two were
excluded from sitting on the jury. The appellate court in Bohanan
remanded the cause, finding that the trial court failed to allow
the defendant to establish a prima facie case of discrimination
before ruling on the State's race-neutral reasons for the
exclusions and then never ruled on the ultimate issue of purposeful
discrimination.
Bohanan is distinguishable from the present case. Here,
defense counsel never did make a Batson motion. Instead, it was
the trial judge that called the prosecutor and defense counsel into
his chambers to make a record concerning the excusal of the
potential juror in question, noting that he was an African-
American. The State offered race-neutral reasons for the
peremptory challenge, indicating that the male juror had a
nonconservative appearance. The State noted that he was wearing two
large gold earrings and disheveled clothing, and his body language
indicated he was not interested in being a juror. The State
further noted that it had reason to believe the potential juror had
a criminal record. The State also noted that defense counsel would
not be able to make a prima facie showing because the State had
kept on the jury the only other African-American among the
potential jurors. Defense counsel, however, was allowed to make
all of his arguments regarding a prima facie case and to address
the State's race-neutral reasons. At the conclusion of the
arguments presented by defense counsel and the prosecutor, the
trial court found that the State had not engaged in a pattern of
excluding African-American jurors and that there were valid race-
neutral reasons for the exclusion of this particular juror. At the
request of defense counsel, the trial court stated that the factors
it found in support of the validity of the State's race-neutral
reasons were the potential juror's manner of dress, body language,
and earrings. Defense counsel did not raise any objection with
respect to the process leading to the court's ruling.
The present case differs from Bohanan in that here the trial
court ruled against the defendant on the prima facie showing,
finding that there was no pattern of exclusion. The court also
ruled in favor of the State on its race-neutral reasons and
therefore found that there was no purposeful discrimination. Thus,
Hernandez is controlling here, and the preliminary question of
whether the defendant had made a prima facie showing becomes moot.
See Hernandez, 500 U.S. at 359, 114 L. Ed 2d at 405, 111 S. Ct. at
1866.
Lastly, the defendant argues that the trial court improperly
commented during closing argument that the defendant could have
made the drug sale to "a child of this community."
Improper remarks generally do not constitute reversible error
unless they result in substantial prejudice to the accused. People
v. Caballero, 126 Ill. 2d 248, 273 (1989). Under the circumstances
presented here, we do not find that the defendant suffered
prejudice from the comment or that it amounted to reversible error.
The comment was so limited and brief that it could not have led the
jury to convict the defendant in light of the evidence presented
against him.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
BOWMAN and HUTCHINSON, JJ., concur.