People v. Smith

1

2024 IL App (1st) 221645-U

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. SHAWN SMITH, Petitioner-Appellant.

No. 1-22-1645

Court of Appeals of Illinois, First District, First Division

August 5, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 10 CR 1469301 Honorable Erica Reddick, Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.

ORDER

FITZGERALD SMITH, PRESIDING JUSTICE

¶ 1 Held: The circuit court's denial of the petition for a certificate of innocence is affirmed, where the petitioner failed to establish by a preponderance of the evidence that he was innocent of the offenses charged in the indictment. See 735 ILCS 5/2-702(g)(3) (West 2018).

¶ 2 Following a 2014 jury trial in the circuit court of Cook County, the petitioner, Shawn Smith, was convicted of armed robbery and aggravated battery with a firearm and sentenced to consecutive terms of 26 and 20 years in prison. On appeal the petitioner's conviction was reversed on the basis that his trial counsel was ineffective because, at the motion to suppress hearing, he failed to challenge the lack of expert testimony to lay a foundation for the clandestine and unauthorized surveillance technology used by the Chicago Police Department to achieve the petitioner's arrest without a warrant or probable cause. People v. Smith, 2017 IL App (1st) 141814-U (Smith I). In accordance with our supreme court's supervisory order (People v. Smith, 89 N. E. 3d 762 (Sept. 27, 2017)), we vacated the reversal of the petitioner's conviction but remanded the matter for appointment of new defense counsel and the filing of an amended motion to quash arrest and suppress evidence before a different judge. People v. Smith, 2017 IL App (1st) 141814-UB (Smith II). On remand, the State chose not to challenge the new motion, and the circuit court entered an agreed order suppressing the evidence obtained as a result of the petitioner's arrest, vacating the petitioner's two convictions, and dismissing the remainder of the nolle prosequi counts in his original indictment.

¶ 3 The petitioner subsequently filed a petition for a certificate of innocence pursuant to section 2-702 of the Code of Civil Procedure (Code) (735 ILCS 5/2-702 (West 2018)). After a hearing, the circuit court denied that petition, finding that the petitioner had failed to establish by a preponderance of the evidence that he was innocent of the offenses charged in the indictment. The petitioner now appeals contending that this finding was erroneous. For the following reasons, we affirm.

¶ 4 I. BACKGROUND

¶ 5 Because the facts of this case are fully set forth in our order remanding the matter for a new suppression hearing (Smith II, 2017 IL App (1st) 141814-UB), we set forth only those facts relevant to the resolution of the issues raised here.

¶ 6 In 2010, the petitioner was charged by indictment with attempt first degree murder, armed robbery with a firearm and aggravated battery with a firearm for his alleged involvement in the July 8, 2010, robbing and shooting of the victim, Carl Morrison, at 310 North Long Avenue in Chicago.^[1]

¶ 7 Prior to trial, the petitioner filed a motion to quash arrest and suppress evidence. Relevant to this appeal, at the hearing on this motion, the petitioner testified that he was arrested, and that his cell phone was confiscated, while he was on his way to work after leaving school at about 2 p.m. on July 22, 2010. The petitioner acknowledged that he bought the cell phone only a couple of days prior to being stopped by the police. He averred that he purchased the phone "in the street" on July 18, 2010, from James Williams, an individual he knew from high school. The petitioner stated that the cell phone did not work at first and that he had to "get the bill paid" and register the telephone in his own name before he could use it. The petitioner stated that a female friend paid that bill for him and that he registered the cell phone in his own name a day after he purchased it at a U.S. Cellular store on "19th and North Avenue[s]." The petitioner also claimed that the phone had been turned off and was inside his pocket since about 1 p.m. and until he was stopped and arrested by the police that afternoon.

¶ 8 In response, the State offered the testimony of several Chicago police officers. Detective Anthony Reyes first testified that in June 2010 he was assigned to investigate a string of armed robberies that had occurred on June 1, June 11, July 7 and July 8, of that year. According to the detective, those four armed robberies had two things in common: a telephone number and the description of the offender. With respect to the telephone number, all four offenses involved an offender telephoning a restaurant to order food, from telephone number: 773-981-5292. Once the food was delivered, the delivery driver was robbed at gunpoint for food and money, with the last robbery escalating as a result of a struggle and the victim, Morrison, being shot in the stomach. With respect to the offender, the descriptions given were of a male African American somewhere between 5' 5" and 5' 8" tall, and "approximately 17 to early 20s, 23 years old."

¶ 9 Detective Reyes testified that as part of his investigation he obtained a court order which permitted the Organized Crime Division of the Chicago Police Department to follow up with a "pinging system" that allowed them to "track this phone."

¶ 10 Chicago Police Sergeant Brian Roney, who was a technician in the Organized Crime Division, next testified that after receiving the aforementioned court order, as part of his investigation into the string of armed robberies, on July 22, 2010, he operated a "pen register" surveillance device from an SUV in downtown Chicago, which allowed him to monitor and track telephone number 773-981-5259. Sergeant Roney stated that he was aware that the offender, was a male African American, "late teens, early 20s and about 5'6", 5'7" something like that," and that he observed an individual of that description put a hand-held device to his head on Wabash Avenue, while he was monitoring the "pen register" surveillance device. This ultimately led to the petitioner's arrest, upon which the cell phone associated with the number used in the armed robberies was recovered.

¶ 11 At present, it is undisputed that while Sergeant Rooney testified that he was operating an authorized "pen register" to track the cell phone number, the device actually used was a "cell site simulator" also known as "triggerfish" or "Stingray," which permitted the police to track a suspect simply by aiming the device into a crowd of people and obtaining information from that cell phone, and which no court had ever authorized the police to use in this case.

¶ 12 After the circuit court denied the petitioner's motion to quash arrest and suppress evidence, the petitioner unsuccessfully filed several motions in limine. Relevant to this appeal, the petitioner unsuccessfully sought the admission of evidence regarding an alternate suspect, namely Williams. In addition to testimony that Williams sold him the cell phone a few days prior to his arrest, the petitioner sought to testify that in April 2010, he had observed Williams committing a robbery of a food delivery driver near 219 North Long Avenue, which was in close proximity to where the instant crime had occurred. In addition, the petitioner wanted to introduce evidence that on October 26, 2010, the police executed a search warrant at that address, with Williams as the target, and recovered a .22 caliber revolver that matched the description of the gun used in the instant robbery. Finally, the petitioner maintained that Williams, who was subsequently arrested on January 30, 2012, closely matched the description of the instant offender. The circuit court, however, denied the petitioner's motion in limine.

¶ 13 In December 2013, the petitioner proceeded with a jury trial at which the following relevant evidence was adduced.

¶ 14 The victim, Morrison, who was both a retired United States Marine and a three-time former convicted felon^[2], testified that at about 5:20 p.m. on July 8, 2010, he was working as a delivery driver for Barney's Pizza, and was assigned to deliver a pizza to 310 North Long Avenue. The telephone number used to place the order was recorded as 773-981-5292. Once at the address, Morrison called the telephone number, which was listed on the order receipt, and spoke to a "young man" who was inside the house, and who indicated that he would be coming out. Morrison, who had exited his car to get the order ready, observed the "young man" he was speaking to through an open window in the building. At trial, he identified that "young man" as the petitioner.

¶ 15 According to Morrison, the petitioner then came out of the house and asked, "How much is it?" Morison walked to the rear passenger door of his car to check the price on the receipt, but when he turned around, the petitioner was "up on [him]" and pointed a small black revolver at his chest. Morrison pushed the gun down, and "it went off in [his] stomach." Morrison asked the petitioner why he shot him, but the petitioner instructed him not to move, then pushed him back into the car, reached into his pocket, and took about $20, before walking away. While Morrison conceded that the entire encounter from when he turned around to when he was shot lasted a few seconds, he stated that it "seemed like slow motion."

¶ 16 Morrison drove himself to the hospital where he spoke to police officers....