                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Jones, 2012 IL App (1st) 100527




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROBERT JONES, Defendant-Appellant.



District & No.             First District, Fifth Division
                           Docket No. 1-10-0527


Filed                      June 8, 2012


Held                       Defendant’s convictions for two counts of armed robbery were upheld
(Note: This syllabus       over his contentions that the trial court erred in denying his motion to
constitutes no part of     suppress identification testimony based on suggestive procedures and
the opinion of the court   violated Krankel when it denied his pro se posttrial claims of ineffective
but has been prepared      assistance of counsel, since neither the photographic lineup nor the
by the Reporter of         physical lineup was impermissibly suggestive, defendant was allowed to
Decisions for the          fully argue his claims of ineffective assistance of counsel and his counsel
convenience of the         was allowed to respond to each of defendant’s allegations, and the court
reader.)
                           conducted an adequate inquiry into the allegations.


Decision Under             Appeal from the Circuit Court of Cook County, No. 04-CR-15330; the
Review                     Hon. Carol A. Kipperman, Judge, presiding.


Judgment                   Affirmed in part and vacated in part; cause remanded.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Sean Collins-Stapleton, all
Appeal                     of State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Matthew Connors, and Whitney Bond, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE HOWSE delivered the judgment of the court, with opinion.
                           Justices J. Gordon and McBride concurred in the judgment and opinion.



                                             OPINION

¶1           Defendant Robert Jones was convicted of two counts of armed robbery following a bench
        trial and was sentenced to two concurrent 45-year prison terms; 30 years for armed robbery
        plus an additional 15-year firearm enhancement. On appeal, defendant contends that: (1) the
        trial court improperly denied his motion to suppress identification testimony because the
        pretrial identification procedures were suggestive and violated due process and (2) the trial
        court failed to properly evaluate defendant’s pro se posttrial claims of ineffective assistance
        of counsel, as required under People v. Krankel, 102 Ill. 2d 181 (1984). Additionally, in his
        reply brief, defendant contends that his 15-year firearm enhancement violates the
        proportionate penalties clause of the Illinois Constitution. For the reasons that follow, we
        affirm defendant’s convictions and vacate his sentences.

¶2                                        BACKGROUND
¶3          Defendant was charged with two counts of armed robbery after two eyewitnesses
        separately identified him in a photo array and one of the witnesses identified him in a lineup
        as the gunman involved in the armed robbery of a nail salon located in Hillside, Illinois.
        Defendant filed a motion to suppress the identifications prior to trial, contending that they
        were obtained through suggestive police procedures.
¶4          At the hearing on his motion to suppress, defendant testified that he was arrested on May
        24, 2004, and placed in two lineups the following day. During the first lineup, defendant was
        number two. He stated that police told the lineup participants to individually approach the
        viewing window and turn around before returning to the line. According to defendant, when
        it was his turn, a detective called out his name, smiled, laughed, then told defendant to
        approach the window and turn around two times. Defendant stated he was the only
        participant asked to turn around more than once. Defendant further testified that during the
        second lineup, he was number four. During that lineup, although the police did not call out
        his name, he was again told to approach the window and turn around twice. Defendant stated
        that during both lineups, he was the last person to join the other participants. Defendant also

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     testified that prior to the first lineup, he was told he had a phone call, which he thought was
     from one of his relatives. When defendant took the phone, however, it was not one of his
     relatives. Defendant testified that he thought “maybe they got a victim or somebody” on the
     phone in order to hear his voice before the lineup and that the police “[fell] out laughing”
     when he picked up the phone.
¶5       Hillside police detective Carlo Viscioni was called briefly as a witness by the defense.
     He testified that on April 29, 2004, he separately showed a five-person photo array to victims
     Valeria Peeples and Kemia Green. Detective Viscioni first showed the photos individually
     and then as a group. He further testified that he was involved in physical lineups which
     included defendant on May 25, 2004. The witnesses viewed the lineups separately and they
     identified defendant. Viscioni testified that defendant was not treated any differently than the
     other lineup participants.
¶6       On cross-examination, Viscioni testified that the Bellwood police department composed
     the physical lineups. He did not remember who was in the room with the lineup participants,
     but he was standing behind the glass with another detective and the witnesses. He did not
     hear anyone say defendant’s name during the lineups or laugh at defendant. Viscioni further
     stated that he separately showed the photo array to Peeples and Green on April 29, 2004, and
     they were not allowed to view the backs of the photos, which contained identification
     information.
¶7       On redirect, Detective Viscioni explained that defendant’s picture was included in the
     photo array because he had received information from a codefendant that implicated
     defendant in the armed robbery.
¶8       After hearing argument from defendant and the State, the trial court found that Detective
     Viscioni was more credible than defendant and that there was no improper police conduct
     in conducting the lineups. Regarding defendant’s argument that the lineups were suggestive
     merely because he was wearing a red shirt, the court noted that in the first lineup, everyone
     was approximately the same height, one person was slightly darker, which made him stand
     out, and that number one was wearing a green shirt, which also stood out. In the second
     lineup, the court noted that number two was taller than everyone else, that everyone appeared
     to be approximately the same age and the same race. The court concluded that there was
     nothing so different about defendant that would lead the witnesses to pick defendant from
     the group. Defendant’s motion to suppress was denied, and the matter proceeded to trial.
¶9       At trial, Detective Viscioni testified that at approximately 6:45 p.m. on April 23, 2004,
     he and his partner responded to an armed robbery call at a nail salon in Hillside, Illinois. He
     spoke with witnesses on the scene and later at the police station, including Valeria Peeples,
     Kemia Green, Har Pham, Kim Pham and a juvenile, Alesha Washington. At the salon,
     Viscioni sat down with the victims, obtained suspect information and completed a composite
     photo of the offender. The victims identified the gunman as an African-American male
     having short hair, and in his mid-20s. After subsequently speaking with a suspect in another
     robbery at a Chicago police station, Viscioni began to search for defendant in connection
     with the salon robbery. He obtained arrest photos of defendant and placed them in a photo
     array to be viewed by witnesses and victims. Viscioni was subsequently in contact with


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       defendant at the Bellwood police station on May 25, 2004. On cross-examination, Viscioni
       stated that the composite photo was based on descriptions from Peeples and Green.
¶ 10        Kemia Green testified that she and Peeples stopped at the nail salon on April 23, 2004,
       and were waiting for service when two African-American men entered the salon. At the time,
       Green was sitting with her feet in a pedicure bowl, facing the door. The gunman was closest
       to the door, but he was the one doing most of the talking. The gunman ordered everyone to
       lie down on the floor and everyone complied. Green was able to see the gunman’s face when
       he entered the salon and after she lay on the floor. The men then told them to remove their
       jewelry, and give them their money and anything that they had. Green indicated that she tilted
       her head to look at the gunman’s face every time he spoke before turning back toward the
       floor. According to Green, the gunman pointed the gun at everyone in the salon, and she
       identified defendant in court as the gunman. Green gave her necklace, ring, cellular phone
       and cash to the second man. The second man told Green and Peeples to roll over onto their
       backs and Green was able to again see defendant’s face clearly as he stood near the door.
       Green testified that the entire incident took approximately five minutes. After the men left,
       the salon owners called the police. Green spoke with police and gave a general description
       of the gunman. She was subsequently called to the Bellwood police station to view a photo
       array, which she identified in court. She viewed the photos alone and stated that she
       identified defendant from one of the photos as the gunman from the salon, and again
       identified defendant in court as the gunman. On redirect examination, Green stated that
       although the photo of defendant that she picked from the photo array did not have hair, she
       was able to identify defendant because of his nose.
¶ 11        Valeria Peeples’ testimony was substantially similar to Green’s regarding the events
       surrounding the robbery at the nail salon, except that her back was facing the door as she was
       seated at a manicure station. She and Green were talking when two men entered the salon
       and said “it’s a stick up.” Peeples turned around when she heard those words, and then
       defendant, whom she identified in court, ordered everyone to get on the floor and take out
       their money and take off their jewelry. She also saw that defendant had a gun. Peeples was
       able to see defendant from head to toe several times during the incident, and she heard
       defendant say “if you don’t take off everything you have, you try to hide anything, I’ll pop
       you.” Peeples surrendered her jewelry and her purse along with its contents. When the police
       arrived, she gave a description of the gunman as an African-American male with a low fade
       haircut. A few days later, she was asked to go to the Bellwood police station, where she
       viewed a photo array alone. Peeples identified a person in one of the photos as the gunman,
       whom she again identified in court as defendant. Peeples further testified that on May 25,
       2004, she was asked to go to the Bellwood police station again to view a lineup. Peeples
       viewed the lineup alone and she recognized defendant as the gunman. She then again
       identified defendant in court as the gunman. On cross examination, when questioned as to
       whether she was looking for an individual with a low fade haircut during the photo and
       physical lineups, Peeples indicated that she was not only looking at the hair. On redirect
       examination, Peeples stated that although the hair was different during the lineups, she could
       identify defendant because she “got a good look at him several times, and the first thing
       [she’s] always remembered, *** he’s a nice-looking guy, why is he doing this. That stayed

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       in [her] head.” Peeples further stated that she remembered his nose and recognized his face
       even though the hair was different.
¶ 12       Detective Viscioni was again called to testify for the State, stating that after defendant
       was named as a possible suspect, he obtained a photograph and put it within a photo lineup
       which was shown separately to Peeples and Green on April 29, 2004. Both victims signed
       lineup photo spread advisory forms prior to viewing the photographs, and defendant’s name
       was added to the forms after both victims identified him. Viscioni identified defendant in
       court as the same individual that both Peeples and Green identified from the photos.
       According to Viscioni, neither victim had any difficulty identifying defendant from the
       photos and both did so rather quickly, even though it was admittedly an old photo of
       defendant. Viscioni further testified that the investigation continued and on May 25, 2004,
       a physical lineup was conducted and viewed by Peeples and she identified defendant as the
       gunman. Once defendant was identified from the lineup, he was arrested and charged with
       armed robbery.
¶ 13       On cross-examination, Viscioni admitted that defendant was the only person in the lineup
       who was also in the photo array. He further stated that the composite sketch was not used to
       put together the photo array and that the victims were always kept separate during the lineup
       process.
¶ 14       Both sides rested after the admission of exhibits. The trial court began by noting that the
       main issue in the case was identification. Regarding the identification testimony of Green and
       Peeples, the court noted that they both had a three- to four-minute period to view defendant
       and both witnesses testified that every time he spoke, they turned to look at him. The court
       specifically found that the witnesses gave more than adequate attention to defendant during
       the robbery before turning to the lineup procedures. The trial court noted that neither witness
       had a problem picking defendant from the seven-year-old photo in the photo array and the
       lineup, even though he had no hair. The court further noted that the only thing that had not
       changed based on the photo array and the photo of the physical lineup was defendant’s face,
       and the witnesses identified him. Regarding the composite sketch, the court noted that it was
       not a good likeness of defendant and that neither witness adopted it as a complete description
       of defendant. The court concluded that the identification of defendant from the photo array
       and the lineup was clear and found defendant guilty of both counts of armed robbery.
¶ 15       Prior to the sentencing hearing, defendant’s counsel presented a motion for new trial.
       Additionally, defendant filed a pro se motion for ineffective assistance of counsel. The court
       denied the motion for new trial and proceeded to defendant’s pro se motion.
¶ 16       On his own behalf, defendant stated that he wanted his parole officer and family
       members called as witnesses, which was not done. Additionally, defendant complained that
       he was never able to review the records for his case and that his various attorneys did not
       visit or consult with him during the case. He also questioned why his attorney did not
       subpoena the owners of the salon because their testimony before the grand jury contradicted
       that of the witnesses at trial, and he kept referring to the witnesses’ testimony that he had a
       “Mohawk” when he has never had hair. Defendant further remarked about the use of
       codefendant’s statements at trial and stated that he did not have a fair trial.


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¶ 17       In response to defendant’s allegations, one of defendant’s attorneys responded that
       defendant was previously represented by two prior attorneys, one of whom retired and one
       who became ill. One of the current attorneys, who was then chief of the division, agreed to
       cocounsel the case and subsequently found a new cocounsel, and they jointly represented
       defendant at trial. Counsel stated that she did not subpoena the salon owners because their
       testimony would not have helped defendant and noted that they were not the complaining
       witnesses. Regarding the posttrial motion, counsel indicated that she filed it because of her
       belief that the court made an error in the denial of the motion to suppress and further noted
       that she cross-examined both witnesses about the gunman’s nose. Defense counsel corrected
       defendant’s allegations that the witnesses testified that the gunman had a “Mohawk,” and
       that codefendant’s statement came in, noting that there was a motion in limine. Defense
       counsel further noted that defendant has consistently expressed a lack of understanding as
       to how the police could get probable cause based on codefendant’s statement. Counsel also
       stated that she and cocounsel had visited defendant several times in jail and stated that he
       was not entitled to his file, although he was allowed to go through each page of each file.
       When asked by the trial court why the parole officer was not subpoenaed, counsel replied
       that there are photos of defendant with hair, the officer was not an expert, and she further
       stated that she could not subpoena information that did not exist.
¶ 18       The trial court subsequently denied defendant’s pro se motion for ineffective assistance
       and the matter proceeded to sentencing.
¶ 19       After hearing evidence in aggravation and mitigation, defendant was sentenced to
       concurrent 30-year terms for armed robbery plus 15-year sentence enhancements based on
       his use of a firearm. This timely appeal followed.

¶ 20                                       ANALYSIS
¶ 21       On appeal, defendant contends that: (1) the trial court improperly denied his motion to
       suppress identification testimony because the pretrial identification procedures used for the
       photo and physical lineups were suggestive and violated due process; and (2) the trial court
       failed to properly evaluate defendant’s pro se posttrial claims of ineffective assistance of
       counsel, as required under People v. Krankel, 102 Ill. 2d 181 (1984). Additionally, in his
       reply brief, defendant contends that his 15-year firearm enhancement violates the
       proportionate penalties clause of the Illinois Constitution.

¶ 22                                      Motion to Suppress
¶ 23        Defendant first contends that suggestive identification procedures violated his due
       process rights. Specifically he claims that the trial court erred denying his motion to suppress
       the identification testimony by the State’s witnesses because it was unreliable due to the
       suggestive police procedures used.
¶ 24        On a motion to suppress, the defendant bears the burden of establishing that, within the
       totality of the circumstances, the pretrial identification was so unnecessarily suggestive that
       it gave rise to a substantial likelihood of an unreliable identification. People v. Denton, 329
       Ill. App. 3d 246, 250 (2002). Individuals selected for a lineup need not be physically

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       identical. Denton, 329 Ill. App. 3d at 250. “Differences in their appearance go to the weight
       of the identification, not to its admissibility.” Denton, 329 Ill. App. 3d at 250. Factors
       relevant to determining the reliability of a lineup include: (1) the witness’s opportunity to
       view the suspect at the time of the crime; (2) the witness’s degree of attention; (3) the
       accuracy of the witness’s prior description of the suspect; (4) the level of certainty
       demonstrated by the witness at the time of the lineup; (5) the length of time between the
       crime and the lineup; and (6) any acquaintance the witness had with the suspect prior to the
       crime. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). These factors are to be weighed
       against the alleged corrupting circumstances of the identification procedure. Denton, 329 Ill.
       App. 3d at 250. The trial court’s ruling on a motion to suppress will not be overturned on
       review unless it is manifestly erroneous. People v. Melock, 149 Ill. 2d 423, 432 (1992).
¶ 25       Based on our careful review of the record, we reject defendant’s contention that the photo
       lineup and physical lineup were impermissibly suggestive. Detective Viscioni testified that
       defendant’s photo was added to a photo lineup after he was implicated as a suspect in the
       robbery. As the court noted in ruling on the motion, there was nothing so different about
       defendant during any of the lineups that would lead the witnesses to pick him out. The court
       specifically noted that others in the lineups had more outstanding characteristics than
       defendant. With regard to defendant’s red shirt worn during the physical lineup, which could
       be considered suggestive, we consider the reliability factors as set forth above and note the
       following: both witnesses gave physical descriptions of the gunman to the police
       immediately following the robbery as they both had the opportunity to view him during the
       robbery; both gave similar physical descriptions of the gunman; both identified defendant as
       the gunman from the photo lineup without hesitation even though the photo used was seven
       years old; and the physical lineup was conducted just over a month after the robbery and
       neither witness knew defendant prior to the robbery. We further note that another lineup
       participant wore a green shirt, which makes the fact that defendant wore a red shirt during
       the lineup even less significant. Weighing defendant’s allegation of the suggestiveness of his
       red shirt against the other reliability factors of the lineup, we find that the identification made
       from the physical lineup was not tainted. We reach the same result regarding the photo
       lineup. We conclude that the trial court’s denial of defendant’s motion to suppress lineup
       identifications was not manifestly erroneous.

¶ 26                       Posttrial Allegations of Ineffective Assistance
¶ 27       Defendant next contends the trial court failed to adequately review his pro se posttrial
       allegations of ineffective assistance of trial counsel, which requires a remand for further
       proceedings pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). He specifically claims that
       the trial court never determined whether his trial counsel explored his defense as to whether
       he was bald on the date of the robbery, which would have undermined the witnesses’
       identification testimony, as they both stated the gunman had hair.
¶ 28       In Krankel, 102 Ill. 2d at 187, the defendant’s trial counsel did not contact an alibi
       witness or present an affirmative alibi defense at trial, and defendant raised a pro se
       challenge to his attorney’s competence at trial. Our supreme court held that the trial court


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       should have appointed alternate counsel to represent defendant at the posttrial hearing
       regarding his claim of ineffective assistance. Krankel, 102 Ill. 2d at 189. In People v. Nitz,
       143 Ill. 2d 82, 134-35 (1991), the Illinois Supreme Court further interpreted Krankel, stating:
            “If the trial court conducts a preliminary investigation of the defendant’s allegations and
            determines them to be spurious or pertaining only to trial tactics, no new counsel should
            be appointed to represent the defendant. If, however, the defendant’s allegations of
            incompetence indicate that trial counsel neglected the defendant’s case, the court should
            appoint new counsel to argue defendant’s claims of ineffective assistance of counsel.”
¶ 29        In People v. Moore, 207 Ill. 2d 68 (2003), the Illinois Supreme Court further explained
       the procedures that trial courts should use to resolve these posttrial pro se claims of
       ineffective assistance of counsel. Specifically, the court stated that the trial court is not
       required to automatically appoint new counsel in every case, rather, the trial court should
       evaluate the factual basis of the defendant’s claim. Moore, 207 Ill. 2d at 77-78. In order to
       do that, the trial court can simply ask trial counsel about the circumstances surrounding the
       claim or ask defendant questions about his claim. Moore, 207 Ill. 2d at 78. In the alternative,
       the trial court can base its determination on its personal knowledge of counsel’s performance
       at trial or on the facial insufficiency of defendant’s allegations. Moore, 207 Ill. 2d at 79. If
       a defendant’s claim lacks merit or relates only to matters of trial strategy, the trial court may
       deny the motion without appointing new counsel. Moore, 207 Ill. 2d at 78.
¶ 30        Here, defendant’s trial counsel prepared and presented a motion for new trial. At the
       posttrial hearing, defendant presented a pro se motion for ineffective assistance of counsel.
       Defendant was allowed to fully argue his motion and counsel was allowed time to respond
       to each of defendant’s allegations. The trial court inquired as to why the parole officer was
       not called as a witness to which counsel responded that photos existed showing defendant
       with hair and that the parole officer was not an expert. We find that the trial court conducted
       an adequate inquiry into defendant’s allegations of ineffective assistance of counsel,
       consistent with the principles stated by the supreme court in Moore. The trial court did not
       abuse or fail to exercise its discretion and we decline defendant’s invitation to remand for
       a new hearing on his posttrial motion for ineffective assistance of counsel.

¶ 31                                    Sentence Enhancement
¶ 32       Finally, defendant contended in his reply brief that the 15-year sentence enhancement for
       armed robbery with a firearm is unconstitutional and void as it violates the proportionate
       penalties clause under People v. Hauschild, 226 Ill. 2d 63 (2007). Although issues raised for
       the first time in a reply brief are normally not considered (People v. English, 2011 IL App
       (3d) 100764, ¶ 22), the constitutionality of a statutory penalty may be raised at any time
       (People v. Christy, 139 Ill. 2d 172, 176 (1990)).
¶ 33       Our supreme court has recently revisited the holding in Hauschild in People v. Clemons,
       2012 IL 107821. In Clemons, the court considered whether Hauschild should be overruled.
       Clemons, 2012 IL 107821, ¶ 1. The court noted that in Hauschild, it held that the sentence
       for armed robbery while armed with a firearm violated the proportionate penalties clause
       “ ‘because the penalty for that offense is more severe than the penalty for the identical

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       offense of armed violence predicated on robbery with a category I or category II weapon.’ ”
       Clemons, 2012 IL 107821, ¶ 12 (quoting Hauschild, 226 Ill. 2d at 87). The court rejected the
       State’s conclusion that a subsequent legislative amendment to the armed violence statute
       “ ‘[corrected]’ Hauschild and ‘clarif[ied]’ what the legislature considered to be the statute’s
       meaning all along, i.e., that robbery may not serve as a predicate felony for armed violence
       because armed robbery is an ‘enhanced’ version of robbery with ‘possession or use of
       dangerous weapon’ as an element.” Clemons, 2012 IL 107821, ¶ 16. In doing so, the court
       noted that amendment to the armed violence statute was adopted after its interpretation of
       that statute in Hauschild and that its interpretation was part of the armed violence statute at
       the time the legislative amendment was enacted. Clemons, 2012 IL 107821, ¶ 18. The court
       further noted that while the General Assembly can pass legislation to prospectively change
       the judicial construction of a statute if it believes that the judicial construction is opposite of
       the legislative intent, it cannot change that construction by a later declaration of what it
       originally intended. Clemons, 2012 IL 107821, ¶ 18. As such, the court concluded that
       Hauschild remains the law as to the meaning of the armed violence statute prior to its
       amendment by Public Act 95-688. Clemons, 2012 IL 107821, ¶ 19.
¶ 34       We note that the State conceded to defendant’s argument during oral arguments.
¶ 35       As stated by our supreme court in Clemons during its discussion of Hauschild, “ ‘when
       an amended sentencing statute has been found to violate the proportionate penalties clause,
       the proper remedy is to remand for resentencing in accordance with the statute as it existed
       prior to the amendment.’ ” Clemons, 2012 IL 107821, ¶ 56 (quoting Hauschild, 226 Ill. 2d
       at 88). Accordingly, we vacate defendant’s sentences and remand to the trial court for
       resentencing.

¶ 36                                        CONCLUSION
¶ 37       For the foregoing reasons, we affirm the judgments of the trial court that denied
       defendant’s motion to suppress identification testimony and denied defendant’s pro
       se posttrial motion for ineffective assistance of counsel. We vacate defendant’s sentences and
       remand for resentencing.

¶ 38       Affirmed in part and vacated in part; cause remanded.




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