People v. Petty

2017 IL App (1st) 150641

80 N.E.3d 626

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

v.Ronald PETTY, Defendant-Appellant.

No. 1-15-0641

Appellate Court of Illinois, First District, Second Division.

Opinion filed May 30, 2017

Michael J. Pelletier, Patricia Mysza, and Jessica Ware, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Clare Wesolik Connolly, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Defendant Ronald Petty was convicted by a jury of retail theft ( 720 ILCS 5/16A-3(b) (West 2010)) and sentenced to two years' incarceration. Petty argues that the trial court should have granted his motion to quash arrest and suppress uniform product code (UPC) labels seized from his car. We hold that the plain-view doctrine applies and the trial court properly denied his motion. Petty also asserts the prosecutor argued facts not in evidence to the jury in closing; shifted the burden of proof to the defense; and commented on his post-arrest silence, failure to testify, and failure to present evidence in his defense. We find no errors requiring reversal.

¶ 2 BACKGROUND

¶ 3 I. Pretrial Motions

¶ 4 A. Motion to Quash Arrest and Suppress Evidence

¶ 5 Police seized UPC labels in plain view on the floorboard of Petty's lawfully stopped car. Petty moved to quash his arrest and suppress this evidence. The trial court denied the motion. At the hearing, Officer Bruni testified that on March 22, 2011, he and his partner talked to Nicholas Runkle, the assistant manager at Best Buy, about thefts at area Best Buy stores. Runkle told them Best Buy had issued a storewide alert for an individual placing UPC labels for $42 Sony DVD players on $400 BluRay players and purchasing the more expensive players at the lower price.

¶ 6 According to Bruni, Runkle had discovered that two BluRay players were missing during a routine inventory. After checking purchase receipts, Runkle came across a receipt for the sale of two DVD players on February 17. The name on the receipt was "Ronald Petty." Runkle checked the surveillance video for February 17 and spotted the customer and transaction. Bruni and his partner viewed the videotape. It showed a man with his arm in a sling pushing a cart with two BluRay player boxes to the cashier and checking out. Runkle gave Bruni the receipt and the surveillance video.

¶ 7 Some two hours after Bruni and his partner left, Petty appeared at the store. Runkle called Bruni, and he and his partner returned and waited in the parking lot. Petty left without purchasing anything. Petty matched the physical description provided by Runkle, and Bruni recognized Petty as the same person in the surveillance video. Bruni and his partner saw Petty get into a car and drive away. The officers ran the plates, which identified the car as belonging to Ronald Petty, whose license had been suspended. The officers stopped Petty and arrested him for driving on a suspended license. As Petty was being taken out of his car, Bruni's partner saw some UPC labels on a clipboard on the front passenger-side floorboard. When searched, Petty had a credit card in his name that ended with the same four numbers on the Best Buy receipt.

¶ 8 The trial court, which viewed the surveillance video, denied the motion to quash. While noting that without the recovery of the UPC labels Petty would have been charged only with driving on a suspended license ( 625 ILCS 5/6-303(a) (West 2012)) and not retail theft, the trial court held that the active investigation for retail theft involving UPC labels justified the seizure.

¶ 9 II. Trial Testimony

¶ 10 In opening statements, the State described its theory of the case as the "ol' switche[ ]roo]." The evidence adduced at trial expanded the facts established at the motion to suppress. Runkle, the store manager, testified that the BluRay players came in larger boxes than the DVD players and both products had Sony bar codes printed on the outside of the box. Each item's bar code was associated with one product "making it impossible to ring up a $399 product for $41.99." Best Buy store personnel were trained in "processing transactions" (scanning barcodes and ringing up sales), though not on recognizing specific products and their value. The only way a product would scan for the lower price would be either a manager's override authorizing this type of price reduction or someone placing a barcode with the wrong price on the box.

¶ 11 Runkle's inventory revealed two extra DVD players and two missing BluRay players. Runkle then looked for transactions by reviewing the purchase receipts for both items. He located a receipt for two DVD players with the date, time, and register location stamped at the top. Using this information, Runkle pulled the surveillance video for that day. At one point there was a man in the "home theater" section who later can be seen checking out with two BluRay players in his cart. As the man passed through the "sensor alarms," a "protection specialist" approached to check the receipt. "Protection specialists" check customers for a receipt before leaving the store but do not verify whether the receipt matches the product. Since the product was scanned at checkout, it is "assumed" that "what was scanned is on the receipt."

¶ 12 The receipt belonged to a credit card transaction for a "Ronald Petty." Runkle called Officer Bruni and his partner to report the theft. Runkle knew the officers from previous contacts. When the officers arrived, Runkle explained what happened and gave them the purchase receipt and the surveillance video.

¶ 13 About two hours after the officers departed, Runkle saw the man in the surveillance video walk into the store. Runkle recognized him because he was wearing the same jacket, had the same build and hairstyle, and had his arm in a sling. Runkle called the officers and explained the situation. Twenty minutes after the man left the store, the officers returned with some UPC labels. Runkle scanned them—two of the bar codes were for DVD players from Best Buy, and one was for a different product carried by Best Buy.

¶ 14 Officer Bruni testified to the same facts as at the pretrial hearing. The defense presented no witnesses.

¶ 15 III. Closing Argument

¶ 16 In the closing argument, the prosecutor argued that Petty failed to explain why he had the UPC labels in his car. Defense counsel did not object to the following:

"The circumstantial evidence [is] this defendant has these stickers in his car. You see he wasn't expecting to get pulled over on March 22nd. He didn't know enough to hide these. These are the stickers that he has no reasonable explanation for."

¶ 17 The prosecutor argued further that the videotape showed Petty standing in front of the boxes in the electronics department for 90 seconds. The prosecutor said:

"That was enough time for [Petty] to take a sticker just like this one and place it on the box and take it up to the register. And, take his chances with the cashier [who Runkle testified] is trained to run the register and ring up purchases. They are not trained to be experts in merchandise. They are not trained to recognize this package is $400 and this package is $40. In your personal experience with a cashier in a place like that it often is young teenager. Someone in their early twenties. They are ringing up. They are taking the credit card like they are in a zombie zone. Just doing their job. It's not their job to know the difference between those two packages."

¶ 18 Petty was convicted of felony retail theft ( 720 ILCS 5/16A-3(b) (West 2010)) and sentenced to two years in prison.

¶ 19 ANALYSIS

¶ 20 I. Motion to Quash Arrest and Suppress Evidence

¶ 21 A trial court's ruling on a motion to suppress presents mixed questions of law and fact. People v. Luedemann , 222 Ill.2d 530, 542, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006) (citing Ornelas v. United States , 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ). We defer to the trial court's factual findings and will reverse only if those findings are against the manifest weight of the evidence. Id . But in deciding what relief should be granted, we assess the facts in relation to the issues and may draw our own conclusions. Id . We may consider testimony presented at trial, as well as that provided at the suppression hearing. People v. Rhinehart , 2011 IL App (1st) 100683, ¶ 9, 356 Ill.Dec. 544, 961 N.E.2d 933. We review de novo the trial court's ultimate legal ruling. Id .

¶ 22 The trial court found Bruni's testimony credible, and we defer to this finding. We turn to whether the search and seizure was unreasonable or unlawful.

¶ 23 A. Search Incident to Arrest

¶ 24 A warrantless search of an arrestee's car may be conducted only when the arrestee is unsecured and within reach of the passenger compartment or there is a likelihood of discovering offense-related evidence. Arizona v. Gant , 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Petty maintains that the search of his car and seizure of the UPC labels was not justified as a search incident to an arrest as (i) the labels were unrelated to the traffic stop for driving on a suspended license, his only offense, and (ii) he was not within reach of his car at the time of the search. Bruni testified Petty was "in custody" and not within reach of his car. So Petty asserts that the State cannot prevail on the latter basis. We reach the same conclusion as the trial court—Petty was stopped while under investigation for the retail theft as well as for driving on a suspended license.

¶ 25 Officer Bruni and his partner were experienced police officers on the tactical team investigating retail crimes. Bruni testified about the methodical steps taken in the investigation of the retail theft—the discovery of the inventory discrepancy, the transaction receipts, and the surveillance video....