People v. Minter

37 N.E.3d 238

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Marlon MINTER, Defendant–Appellant.

No. 1–12–0958.

Appellate Court of Illinois, First District, Fourth Division.

Opinion Filed June 25, 2015.

Rehearing Denied Aug. 31, 2015.

Modified Upon denial of Rehearing Sept. 3, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Kate E. Schwartz, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Kathleen Warnick, Douglas Harvath, and Carlos Vera, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice ELLIS delivered the judgment of the court, with opinion.^*

¶ 1 After a jury trial, defendant Marlon Minter was convicted of armed robbery and sentenced to 23 years' incarceration. Defendant, who was 16 years old at the time of the offense, was automatically tried as an adult pursuant to the Juvenile Court Act of 1987 because the charges alleged that he was armed with a firearm during the robbery. 705 ILCS 405/5–130(1)(a)(iv) (West 2008).

¶ 2 At his trial, defendant did not deny committing the robbery. The sole issue in contention was whether defendant's accomplice, a man known as “Breed,” was armed at the time of the robbery, which, under the law of accountability, would make defendant liable for the firearm as well. According to the victim, Markel Williams, and defendant's incriminating statements to the police, Breed was armed. Defendant's theory, supported by his own testimony, was that Breed was unarmed.

¶ 3 On appeal, defendant raises six issues. Three of those issues relate to alleged errors in defendant's trial proceedings, while the other three relate to defendant's sentence. For purposes of clarity, we first outline defendant's contentions of trial error, then outline his three challenges to his sentence.

¶ 4 Defendant first contends that the trial court violated his right to present a defense by preventing him from challenging his incriminating statement and from impeaching the State's only eyewitness. For reasons explained more fully below, we conclude that defendant was not deprived of his right to present a defense. While several of the trial court's rulings were incorrect, those errors did not significantly impact defendant's ability to challenge the State's evidence or present his case.

¶ 5 Defendant's second contention of trial error relates to evidence of his tattoos that was presented at trial. Defendant claims that the trial court's rulings regarding his tattoos deprived him of a fair trial because they created the possibility that the jury would view him negatively because of his tattoos. We disagree that the rulings regarding defendant's tattoos prejudiced defendant's right to a fair trial because defendant presented the only evidence regarding the meaning of his tattoos, and he provided an innocuous explanation for each one. Moreover, the State's cross-examination regarding the tattoos did not uncover any prejudicial images or testimony.

¶ 6 Defendant's third contention of trial error is that the trial court's improper comments and bias deprived him of his right to a fair trial. We conclude that a majority of the allegedly objectionable comments by the trial court were not improper; they were responses to defense counsel's repetitive questioning. Although we agree that the trial court's comments and rulings during closing argument were improper, defendant forfeited review of those errors because he did not raise his objection to those actions in his posttrial motion. We reject defendant's arguments that we should relax the forfeiture rule under People v. Sprinkle, 27 Ill.2d 398, 189 N.E.2d 295 (1963), and we disagree that the improper comments constituted plain error.

¶ 7 Along with defendant's three assertions of trial error, defendant also raises three challenges to his 23–year sentence. First, defendant asserts that the automatic transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5–130(1)(a) (West 2008)), which required that he be prosecuted as an adult, violated his right to due process of law, the eighth amendment of the United States Constitution (U.S. Const., amend.VIII), and the proportionate penalties clause of the Illinois Constitution (Ill. Const.1970, art. I, § 11 ). Second, defendant asserts that the 15–year firearm enhancement to his sentence was void because it had been ruled unconstitutional at the time of the offense. Finally, he asserts that the trial court improperly considered the two pending criminal charges against him as aggravating factors increasing his sentence.

¶ 8 We must reject defendant's constitutional and voidness challenges because the Illinois Supreme Court recently issued decisions rejecting identical arguments. People v. Patterson, 2014 IL 115102, 388 Ill.Dec. 834, 25 N.E.3d 526 ; People v. Blair, 2013 IL 114122, 369 Ill.Dec. 126, 986 N.E.2d 75. However, we agree that the trial court erred in considering defendant's pending charges in aggravation. We affirm defendant's conviction, vacate defendant's sentence, and remand for resentencing.

¶ 9 I. BACKGROUND

¶ 10 A. Trial Testimony and Evidentiary Rulings

¶ 11 Both Williams and defendant testified that, on March 24, 2009, defendant and Breed approached Williams as he was walking home from school. Williams testified that Breed pointed a gun at his chest while defendant took Williams's cell phone, driver's license, credit card, and cash from his pockets. Defendant testified that neither he nor Breed had a gun or brandished a gun. Defendant admitted to taking items from Williams's pockets, including his driver's license.

¶ 12 Both Williams and defendant testified that defendant told Williams he would “shoot * * * up” Williams's house if he called the police. After the robbery, Williams went home, told his mother what happened, and called the police. Williams did not tell his mother that Breed had a gun during the robbery.

¶ 13 During her cross-examination of Williams, defense counsel asked, “And when you told the police officer that you were robbed at gunpoint, you thought that—you told the police officer that because you thought that they would be more likely to catch the person?” Williams said, “No,” and the State then objected to the question, arguing that it “call[ed] for speculation by the police.” The trial court sustained the objection. Defense counsel then asked Williams, “Did you think the police officer would look for the person if they didn't have a gun?” The State again objected, saying that the question called for speculation. Defense counsel replied, “Judge, it goes to his state of mind.” The court sustained the objection and said, “Move on.”

¶ 14 Defense counsel also questioned Williams regarding what he told Detective Manuel Escalante at the Harvey police station. Williams denied telling Escalante that Breed pulled out the gun after he had already gone through his pockets.

¶ 15 During her direct examination of defendant, defense counsel asked defendant about the circumstances surrounding the statements he made to Detective Escalante and Assistant State's Attorney (ASA) Desiree Berg. Defendant said that, when he spoke to Escalante and Berg, he admitted to taking Williams's property but said that there was no gun involved. Defense counsel then asked whether Escalante threatened defendant:

“Q. [Defense counsel:] Now, while you were there speaking with Detective Escalante, did he make any threats to you at all?

A. [Defendant:] Yes ma'am.

Q. And what were those?

A. He was telling me to—actually, you know, to say that I did it and that there was a gun involved or he was going to put other robberies that was [sic ] occurring around Harvey, Illinois, on me.

He was showing me pictures, asking me was this me. And I wasn't never [sic ] there at the time. I didn't know nothing [sic ] about it.

Q. So Detective Escalante wanted you to say that there was a gun involved?

A. Yes, ma'am.

MR. VOLKMAN [Assistant State's Attorney]: Judge, we are going to object to this line of questioning. It is hearsay.

THE COURT: Sustained.”

The parties then held a sidebar, where defense counsel argued that Detective Escalante's statements were not being used to prove the truth of the matter asserted in those statements. The court sustained the State's hearsay objection and instructed counsel to “[m]ove on.”

¶ 16 Defendant also testified that he told ASA Berg twice that Breed was not armed, but Berg told him that there “had to be a gun involved because [he] wouldn't be * * * charged with armed robbery” if there was not. The State objected to this testimony and the court sustained that objection. The court instructed the jury to disregard that testimony.

¶ 17 Later, defense counsel asked defendant why he would sign a written statement saying that Breed was armed if it was not true. Defendant replied, “Because, like the reason I said earlier, I didn't want to get charged with any more charges that I had nothing to do with at all.” The State did not object to that answer. During her redirect examination, defense counsel again asked defendant why he signed the portion of the statement saying that Breed was armed. Defendant again responded, without objection from the State, “Because I didn't want to get charged with any more cases.”

¶ 18 Detective Manuel Escalante of the Harvey police department testified that, on March 24, 2009, he spoke with Williams at the police station about the incident. The next day, Escalante saw defendant at the intersection of 145th Street and Halsted Street. As Escalante approached defendant, defendant ran. Escalante chased defendant down and arrested him.

¶ 19 At the police station, Escalante searched defendant and found cannabis and Williams's driver's license. Escalante testified that defendant admitted to robbing Williams with Breed, who was armed with a gun. Escalante saw ASA Berg reduce defendant's statement to writing in the presence of defendant and his mother. Defendant's written statement was introduced as evidence. It...