                                       2018 IL App (1st) 153635

                                             No. 1-15-3635

                                       Opinion filed May 22, 2018 

                                                                                       Second Division


                                                  IN THE


                                   APPELLATE COURT OF ILLINOIS


                                            FIRST DISTRICT



                                                            )
                                                                 Appeal from the Circuit Court
                                                            )
     THE PEOPLE OF THE STATE OF ILLINOIS,                        of Cook County.
                                                            )
                                                            )
            Plaintiff-Appellee,
                                                            )
                                                                 No. 14 CR 10019
                                                            )
     v.
                                                            )
                                                            )
     DEONTAE CURRY,                                              The Honorable
                                                            )
                                                                 Charles P. Burns,
                                                            )
            Defendant-Appellant.                                 Judge, presiding.
                                                            )
                                                            )


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

            Presiding Justice Neville and Justice Mason concurred in the judgment and opinion. 


                                                  OPINION

¶1          Deontae Curry acted as the getaway driver, while some of his associates robbed a video

     game store and used pepper spray to incapacitate the store clerk. Curry was convicted of armed

     robbery (on an accountability theory) and sentenced to 12 years of imprisonment.

¶2          At a posttrial hearing, Curry’s counsel told the trial court that Curry alleged that counsel

     was ineffective for failing to move to suppress Curry’s statement to police based on Miranda v.

     Arizona, 384 U.S. 436 (1966). The trial court did not ask any further questions of Curry or his

     counsel to discern the claim’s factual basis, so we remand for an adequate preliminary inquiry.
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     We reject, however, Curry’s request for a new sentencing hearing on the grounds that he was

     guilty of robbery, but not armed robbery, because we find that the pepper spray used on the store

     clerk was a “dangerous weapon.”

¶3                                              Background

¶4          As Alonzo Mitchell worked behind the counter at a Game Stop store, three men entered

     wearing hooded sweatshirts. One man approached the counter and sprayed Mitchell with pepper

     spray, another man went behind the counter and tackled Mitchell, and the first man sprayed

     Mitchell again. The men took Mitchell’s store keys and stole several video game systems.

¶5          Meanwhile, a coworker who had been hiding in the store’s break room called police. A

     nearby police officer heard the radio call and saw individuals come out of the store and get into a

     silver Pontiac. The officer pursued the Pontiac, which was later found unoccupied and parked on

     a residential street. The backseat and trunk of the Pontiac contained several video game systems,

     as well as Mitchell’s store keys. On the sidewalk nearby lay a hooded sweatshirt and a can of

     pepper spray. The car’s registration revealed that a woman owned the car; she gave police the

     name of a potential suspect, Terry Johnson.

¶6          Johnson told police that he and some friends robbed the Game Stop store while Deontae

     Curry acted as getaway driver in the silver Pontiac. Curry told police that his friends had planned

     only to shoplift while he waited in the car.

¶7          The trial court found Curry guilty (under an accountability theory) of armed robbery,

     with the pepper spray being a “dangerous weapon.” Curry’s counsel then filed a motion for a

     new trial. During argument, counsel mentioned that Curry wanted to raise a claim of ineffective

     assistance of counsel: “There was not a motion to suppress and my client wishes to state that it

     was an error for—to fail to file a motion with respect to that statement.” The trial court asked,


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       “Based on what?” Counsel responded, “Based on Miranda versus Arizona.” The trial court asked

       no other questions about the issue, either to Curry or his counsel; found credible the police

       officer’s testimony that Curry had been advised of his rights before making a statement; and

       stated that it would not have ruled differently if a motion had been filed. Curry received a prison

       sentence of 12 years.

¶8                                                ANALYSIS

¶9                                        Inadequate Krankel Inquiry

¶ 10          Curry argues that the trial court erred in its inquiry into his posttrial claim of ineffective

       assistance under People v. Krankel, 102 Ill. 2d 181 (1984). When a defendant makes a claim of

       ineffective assistance of counsel, either orally or in writing, the trial court must address the claim

       so as to potentially limit the issues on appeal. People v. Willis, 2016 IL App (1st) 142346, ¶ 17.

       The trial court’s first step involves an inquiry into the factual basis underlying the claim. People

       v. Ayres, 2017 IL 120071, ¶ 11 (quoting People v. Moore, 207 Ill. 2d 68, 79 (2003)). To

       accomplish this, the trial court may ask trial counsel about the facts underlying the claim; discuss

       the claim with the defendant; or base its evaluation on its own knowledge of counsel’s trial

       performance. People v. Jolly, 2014 IL 117142, ¶ 30. Whether the trial court conducted an

       adequate preliminary inquiry presents a question of law we review de novo. Id. ¶ 28.

¶ 11          Curry’s counsel offered an elementary description of the alleged ineffectiveness: failure

       to move to suppress his statement. The trial court asked just one question as to the basis of the

       claim, and Curry’s counsel named Miranda without elaboration. The trial court did not ask any

       questions underlying the claim before immediately ruling. This falls far short of “ ‘determin[ing]

       the factual basis of the claim.’ ” Ayres, 2017 IL 120071, ¶ 11 (quoting People v. Banks, 237 Ill.

       2d 154, 213 (2010)); cf. Willis, 2016 IL App (1st) 142346, ¶ 20 (trial court’s inquiry was


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       1-15-3635



       adequate where it discussed claim with defendant and evaluated claim based on its knowledge of

       defense counsel’s performance and facial insufficiency of claim). The trial court did not ask

       counsel or Curry whether he was alleging that he had not been given Miranda warnings at all,

       whether the warnings were inadequate, whether he did not understand them, or whether he

       initially waived but later decided to assert his rights. As perhaps the most well-known case in the

       history of American criminal jurisprudence, the word “Miranda” is totemic to a layman criminal

       defendant, and its use, without detail, does not yield enough to inform a trial court as to the

       claim’s factual basis. This mystery could have been solved within a few minutes simply by

       asking counsel or Curry to elaborate. The trial court would then have been able to pursue or

       reject the claim based on its knowledge of the trial. Moore, 207 Ill. 2d at 78 (following adequate

       preliminary inquiry, pro se motion may be denied where claim lacks merit or pertains only to

       matter of trial strategy).

¶ 12           Under Krankel and its progeny, the trial court had a duty to ascertain the bare facts

       underlying the claim. Ayres, 2017 IL 120071, ¶ 11 (trial court must conduct “ ‘adequate inquiry

       *** sufficient to determine the factual basis of the claim’ ” (quoting Banks, 237 Ill. 2d at 213));

       People v. Mourning, 2016 IL App (4th) 140270, ¶ 23 (remanding for Krankel inquiry where trial

       court “did not engage in any questioning to uncover the underlying factual basis of that claim”).

       The trial court did not do so, and so the case must be remanded for an adequate preliminary

       inquiry.

¶ 13                                Is Pepper Spray a “Dangerous Weapon”?

¶ 14           Curry also argues that he should have been found guilty of robbery, rather than armed

       robbery, because the pepper spray used on Mitchell was not a “dangerous weapon” within the

       meaning of the armed robbery statute. See 720 ILCS 5/18-2(a)(1) (West 2014) (person commits


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       armed robbery if he or she commits a robbery and carries, or is otherwise armed with, “a

       dangerous weapon other than a firearm”).

¶ 15          The term is not defined in the armed robbery statute, but is derived from common law.

       People v. Hernandez, 2016 IL 118672, ¶ 12. Curry suggests that we should look to the armed

       violence statute for a definition of “dangerous weapon,” but our supreme court has already

       rejected that strategy. Id. ¶ 16. Contrary to Curry’s contention, what constitutes a “dangerous

       weapon” presents a question of fact, not law. People v. Ligon, 2016 IL 118023, ¶ 21. So we will

       review the claim under the familiar sufficiency of the evidence standard. See People v. Wheeler,

       226 Ill. 2d 92, 114 (2007) (when reviewing sufficiency of evidence, court considers whether,

       viewing evidence in light most favorable to State, any rational trier of fact could have found

       essential elements of crime beyond reasonable doubt).

¶ 16          “Dangerous weapon” includes “any object sufficiently susceptible to use in a manner

       likely to cause serious injury.” Ligon, 2016 IL 118023, ¶ 21 (citing People v. Skelton, 83 Ill. 2d

       58, 66 (1980)). This comprises not just objects that are per se dangerous, but objects that can be

       used in a dangerous manner. Hernandez, 2016 IL 118672, ¶ 12; see also People v. Dwyer, 324

       Ill. 363, 365 (1927) (distinguishing between objects “made for the purpose of destroying life”

       with “the question depends upon the manner of its use”).

¶ 17          Pepper spray would not qualify as “per se dangerous,” as a loaded handgun would.

       Rather, pepper spray falls into the category of objects that can be used in a dangerous manner, so

       it is for the trier of fact to determine whether the pepper spray actually was used that way on

       Alonzo Mitchell. See People v. Ross, 229 Ill. 2d 255, 276 (2008) (reviewing cases and

       concluding that “the trier of fact may make an inference of dangerousness based upon the

       evidence”). The trial court determined that the pepper spray was used in a dangerous manner,


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       noting that the robbers used it to immobilize Mitchell from the beginning of the robbery. This

       determination is consistent with precedent finding that the effects of pepper spray are “disabling”

       and “temporarily incapacitate[ ]” its victims. (Internal quotation marks omitted.) People v.

       Lampton, 385 Ill. App. 3d 507, 514-15 (2008); see also People v. Elliott, 299 Ill. App. 3d 766

       (1998). That Mitchell did not suffer a long-term injury from the pepper spray is of no moment.

       See People v. Brown, 87 Ill. App. 3d 368, 370-71 (1980) (effects of incapacitating, unidentified

       spray were temporary, but whether weapon was “dangerous” for resolution by trier of fact). We

       must defer to the trier of fact on this issue.

¶ 18           We remand this case to the trial court to conduct an adequate preliminary inquiry into

       Curry’s ineffective-assistance claim.

¶ 19           Remanded with directions.




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