People v. Ayoubi

2020 IL App (1st) 180518

163 N.E.3d 224

444 Ill.Dec. 99

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Firas AYOUBI, Defendant-Appellant.

No. 1-18-0518

Appellate Court of Illinois, First District, Second Division.

Opinion filed September 29, 2020

Rehearing denied November 18, 2020

Jodi L. Garvey, of Blegen & Garvey, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Janet C. Mahoney, and Tyler D. Michals, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Firas Ayoubi was found guilty of aggravated criminal sexual assault predicated on kidnapping and was sentenced to 28 years' imprisonment. On appeal, he challenges eyewitness identifications, the sufficiency of the evidence, the propriety of the jury instructions, the prosecutor's closing arguments, and the admission of historical cell site data. For the following reasons, we affirm the trial court's judgment.

¶ 2 I. Background

¶ 3 A. Pretrial Proceedings

¶ 4 Defendant was indicted with several charges pertaining to an assault against Y.L. shortly after 8 a.m. on December 4, 2012, at Palm Beach Tan (5653 West Touhy Avenue). One count alleged that defendant "committed the offense of aggravated criminal sexual assault in that he, knowingly committed an act of sexual penetration upon [Y.L], to wit: [defendant] placed his penis in [Y.L.'s] mouth, and the criminal sexual assault was perpetrated during the course of the commission of any other felony, to wit, kidnapping, by [defendant]." Another count alleged that defendant committed kidnapping when he "knowingly by force or threat of imminent force carried [Y.L.] from one place to another with intent secretly to confine [Y.L.] against her will." See 720 ILCS 5/10-1(a)(2) (West 2012). Before trial, defendant moved to suppress photo array and physical lineup identifications, arguing they were unduly suggestive.

¶ 5 At a hearing on the motion, Sergeant Alexopoulos testified that he met with witness Joseph Reilley in the parking lot of Palm Beach Tan shortly after the incident. Reilley described the offender as a dark-haired Caucasian or Hispanic man, with a light complexion, between 20 and 30 years of age. Reilley added that the offender, who was about 5'8? tall, wore layers of clothing under a dark-colored hoodie and wore a bandana which partially covered his thin face. Reilley said the man appeared to be dirty. Additionally, Y.L., who had gone to the hospital, returned to Palm Beach Tan and described the offender as a Hispanic man between 18 years of age and his early twenties. Y.L. told Sergeant Alexopoulos the offender was very thin and tall, had dark hair and dark eyes, and wore a green hoodie with white lettering. He also wore black pants, black cotton gloves, and a black cotton mask, which covered the bottom half of his face.

¶ 6 Sergeant Alexopoulos testified that he created a photo array that included defendant as a suspect. He chose other individuals with short, cropped hairstyles similar to the hairstyle worn in defendant's photograph, although neither witness had described the offender's hairstyle. Conversely, Sergeant Alexopoulos did not choose fillers based on their weight. The next day, he read Y.L. a preprinted form stating that she was not required to make an identification from the photo array and should not assume that the suspect was included. Y.L. signed the form and then identified defendant from the photo array based on his eyes, eyebrows, "lower hairline" and nose. Defendant was then arrested.

¶ 7 On December 6, 2012, Sergeant Alexopoulos, with assistance from other officers, constructed a physical lineup. When choosing fillers, they tried to match "the physical description of the defendant" as close as possible. Sergeant Alexopoulos also explained, however, that because defendant was physically present when the lineup was constructed, the police officers found fillers who they believed looked like defendant, rather than going off of a description. The police tried to match defendant's hairline, height, and weight as he appeared that day to the best of their ability but did not weigh defendant before the lineup. While defendant's driver's license showed he weighed 136 pounds, the lineup sheet showed three fillers were heavier and one filler weighed 185 pounds. No one in the lineup, including defendant, had a short, cropped-style haircut and one man was balding on top. All fillers had dark hair.

¶ 8 Each line up participant wore the same black shirt bearing the number of his place in the lineup. Additionally, the police gave defendant clothes and black boots so he and the other lineup participants would be similarly dressed. No one wore a mask. Furthermore, Sergeant Alexopoulos orally instructed Y.L. and Reilley that the perpetrator may not be in the lineup, and the two witnesses viewed the lineup separately before identifying defendant.

¶ 9 The trial court denied defendant's motion to suppress, finding that all participants but one appeared to be of a similar weight. Additionally, all participants appeared to be of a similar age and had similar hair and complexions. The photo array was "very fair." As for the physical lineup, the men were similarly dressed, and all fillers were good except one. Two were "remarkably good." The court found the lineup was fair as a whole and stated, "you can't get clones for the defendant."¹

¶ 10 B. Trial

¶ 11 At trial, Y.L. testified that after opening Palm Beach Tan at 8 a.m. on the day in question, she went to the back of the salon to apply makeup and fold towels. Upon hearing the door chime, she saw the back of someone entering the conference room. Because a meeting was scheduled for 11 a.m., she believed it was the district manager and continued to fold towels. She then saw defendant quickly approaching with his hand "ready to grab [her]." Despite his face being covered from the bridge of his nose down, Y.L. could see defendant's eyes, eyebrows, hairline, bridge of his nose and some of his ears. He wore a light grass-green hoodie with white lettering; a pair of black, fleece-like pants; and thin black cotton gloves. His hood was pulled over his head, and he was approximately 5'10? tall.

¶ 12 Defendant grabbed Y.L. by her hair and forced her into the laundry room at the back of the salon, shutting the door behind him. With one hand on her hair and one arm across her chest, he walked her toward the laundry machine. He turned her around so that they were face to face. Y.L. focused on defendant's facial features to ascertain his intentions and to remember his appearance. According to Y.L., she observed slightly large eyes that were "low and droopy" and ears that were slightly pointy. His hair was dark brown and cut straight across. Additionally, his eyebrows were dark but faint at the ends and the bridge of his nose was "not too big." Y.L. later acknowledged on cross-examination that she had been looking at defendant when describing his eyes in court.

¶ 13 Y.L. testified that defendant pushed her head down and forced her to her knees. He lowered his pants and boxers, revealing a condom on his erect penis, and kept one hand in his pocket, leading Y.L. to believe he had a weapon. Defendant put his penis in Y.L.'s mouth for "[a] couple of very long seconds, maybe in the tens, twenties," but then pulled up his pants. He walked Y.L. down the hallway, with one arm across her chest and the other holding her hair.

¶ 14 Upon observing that a customer had entered the salon, defendant said, "oh shit." While telling the customer to go into a side room, defendant let go of Y.L. The customer responded, "Fuck you." Y.L. then ran next door to Jewel-Osco, where someone called 911. Through the Jewel-Osco's window, she observed defendant leave the salon and walk toward the parking lot. She lost sight of him, however. She did not recall seeing him drive a black SUV or enter a black minivan. After Y.L.'s rape kit was completed at the hospital, a police officer returned her to Palm Beach Tan, where she spoke to detectives. She described the offender as a very skinny Hispanic man, between 18 and 20 years old, with black hair and dark eyes. She also described his hairline and ears. She told police that she had pleaded in Spanish, but the offender did not respond.

¶ 15 The next day, detectives showed Y.L. a photo array. Before doing so, they read her a form stating that the suspect may or may not appear in the photo array and that she was not required to identify anyone. Y.L. signed this form. When Y.L. looked at the photo array, she was "1,000%" sure that defendant was the offender. She recognized him in the photo array because of his "low droopy eyes," although she did not recall whether she had told detectives that the offender's eyes were droopy. Additionally, she covered the lower half of his face when looking at his photo but did not feel the need to cover the lower half of any other filler's face. At the lineup the following day, the police told Y.L. that the suspect may or may not be present and that she did not need to make an identification. Notwithstanding this admonishment, she identified defendant. During her testimony, she also identified photographs of the pants and boxers defendant wore during the assault.

¶ 16 The parties essentially stipulated that no semen was found on Y.L.'s clothes, that fingernail scrapings and oral swabs did not contain sufficient male DNA for analysis, and that defendant's fingerprints were not found at Palm Beach Tan. Furthermore, forensic scientist Wendy Gruhl testified that she found no semen or male DNA on the oral swabs taken from Y.L.

¶ 17 Reilley testified that when he parked outside Palm Beach Tan on the day in question, he saw a small passenger car and a black SUV in the parking lot. He went inside at about 8 a.m. and saw a tall thin man, who Reilley identified in court as defendant,...