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                              Appellate Court                            Date: 2017.08.16
                                                                         13:55:01 -05'00'




                   People v. Petty, 2017 IL App (1st) 150641



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



District & No.    First District, Second Division
                  Docket No. 1-15-0641



Filed             May 30, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CR-06736; the
Review            Hon. Luciano Panici, Judge, presiding.



Judgment          Affirmed as modified.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Jessica Ware, of State
Appeal            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.



Panel             PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                  with opinion.
                  Justices Neville and Mason concurred in the judgment and opinion.
                                             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.



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¶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


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               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 (2006) (citing Ornelas v. United States, 517 U.S.
       690, 699 (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. 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 (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. There can be no dispute that the officers were following Petty as the next
       step in their investigation.
¶ 26       Petty relies on People v. Bridgewater, 235 Ill. 2d 85 (2009). There, the trial court
       suppressed a gun and an ammunition clip found inside the defendant’s car after his arrest for
       refusing to respond to a police officer. The defendant was handcuffed and placed in a squad car
       before the police recovered ammunition in the console and a gun under a seat. The offense was
       based entirely on defendant’s failure to obey the police officer’s commands. Our supreme
       court concluded that the police officers could not have reasonably believed evidence of
       obstructing a peace officer could have been found inside the car. Id. at 95. By analogy, Petty


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       claims his arrest was based entirely on driving on a suspended license. Not so. As noted, the
       police officers were investigating Petty for possible retail theft, but they soon discovered he
       was driving without a valid license and initiated the traffic stop as a result. The officers had
       reason to believe that a more serious crime had occurred. There need be only sufficient
       evidence to justify the reasonable belief that the defendant has committed or is committing a
       crime. People v. Jones, 215 Ill. 2d 261, 273-74 (2005).

¶ 27                                         B. Probable Cause
¶ 28        The plain-view doctrine allows the police to seize property without a warrant. Id. at 271.
       The doctrine requires that (i) the officer was lawfully in a position from which he observed the
       property, (ii) the incriminating character of the property was immediately apparent, and
       (iii) the officer had a lawful right of access to the property. Id. at 271-72. The seizure of
       property in plain view involves no invasion of privacy and is presumptively reasonable,
       assuming that there is probable cause to associate the property with criminal activity. Id. at 272
       (citing Texas v. Brown, 460 U.S. 730, 741-42 (1983)).
¶ 29        Petty argues that the plain-view exception to the warrant requirement does not justify the
       seizure of the UPC labels, as the incriminating nature of the UPC labels was not immediately
       apparent. People v. Bunch, 327 Ill. App. 3d 979, 983-84 (2002) (“Suspicions, no matter how
       reasonable, do not amount to probable cause ***.”). Petty also complains that the trial court
       erroneously relied on the UPC labels “matching” the DVD players sold at Best Buy and
       referred to them as “the very same stickers” on the BluRay players. Petty is correct that at the
       time the officers saw the UPC labels they did not know as a certainty whether any of them
       pertained to Sony DVD players sold at Best Buy. But that is not meaningful because probable
       cause does not require proof beyond a reasonable doubt. See People v. Humphrey, 361 Ill.
       App. 3d 947, 951 (2005) (“immediately apparent” or “probable cause” element does not
       require officer to “know” item he or she sees is contraband or evidence of crime).
¶ 30        In People v. Adams, 131 Ill. 2d 387, 398 (1989), cited by Petty, our supreme court
       addressed the standard for making a probable cause determination for a warrantless seizure of
       evidence. Review of the trial court’s determination “cannot be tainted by hindsight which may
       luckily seem to be supported by the fruit of some criminality; rather, the review must center on
       the information available to the officers preceding the search or arrest.” Id. In other words,
       “[w]ould a reasonable person in that officer’s position believe that a crime was being or had
       been committed?” Id. (citing People v. Tisler, 103 Ill. 2d 226, 237 (1984)).
¶ 31        A mere hunch is insufficient to support the seizure, but a police officer views the facts
       “through the lens of his police experience and expertise” and “may draw inferences based on
       his own experience in deciding whether probable cause exists.” Ornelas, 517 U.S. at 699-700.
       Bruni and his partner were experienced police officers on the tactical team investigating retail
       crimes. They had just interviewed the Best Buy store manager and viewed the surveillance
       video. The police officers could draw an inference from the totality of the information
       available to them that the UPC labels were related to the recent theft. The officers knew the
       credit card transaction was in Petty’s name and recognized Petty from the surveillance video in
       terms of his physical characteristics, his jacket, and the sling supporting his left arm. Also, the
       store manager had told the officers that storewide thefts had occurred involving falsified bar
       codes. UPC barcodes were the modus operandi in accomplishing the theft. So otherwise


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       innocuous UPC labels were incriminating because the thefts that had occurred involved the
       scanning of UPC labels on checkout, establishing more than a mere suspicion.
¶ 32       We find support in Brown, 460 U.S. at 741, where the United States Supreme Court
       discussed the concept of an object’s “immediately apparent” criminality, calling the phrase
       “very likely an unhappy choice of words.” Rather, “probable cause is a flexible,
       common-sense standard. It merely requires that the facts available to the officer would
       ‘warrant a man of reasonable caution in the belief,’ [citation], that certain items may be
       contraband or stolen property or useful as evidence of a crime; it does not demand any showing
       that such a belief be correct or more likely true than false. A ‘practical, nontechnical’
       probability that incriminating evidence is involved is all that is required.” Id. at 742 (citing
       Brinegar v. United States, 338 U.S. 160, 176 (1949)).

¶ 33                                   II. Improper Closing Argument
¶ 34        Petty also argues that the prosecutor made multiple improper remarks in closing, the
       cumulative effect of which prejudiced him. Specifically, Petty claims that the prosecutor’s
       argument shifted the burden of proof, commented on Petty’s post-arrest silence and his failure
       to testify, and argued facts not in evidence. Petty acknowledges that he did not properly
       preserve the issue of prosecutorial misconduct during argument. But he urges us to review this
       issue under the plain error doctrine. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). The plain
       error doctrine allows a reviewing court to remedy a “clear or obvious error” when (i) the
       evidence is so closely balanced that a jury’s verdict may have resulted from the error and not
       the evidence or (ii) the error is so serious that the defendant was denied a substantial right.
       People v. Herron, 215 Ill. 2d 167, 178-79 (2005). “[T]he first step in [our] plain error review is
       to determine whether any error occurred.” People v. Simpson, 2015 IL App (1st) 130303, ¶ 34
       (citing People v. Lewis, 234 Ill. 2d 32, 43 (2009)).
¶ 35        The standard of review for error in closing arguments remains unclear. People v. Sandifer,
       2016 IL App (1st) 133397, ¶ 55; People v. Kelley, 2015 IL App (1st) 132782, ¶ 74. Our
       supreme court has employed both a de novo standard of review (People v. Wheeler, 226 Ill. 2d
       92, 121 (2007)) and an abuse-of-discretion standard (People v. Blue, 189 Ill. 2d 99, 128
       (2000)). Either standard leads to the same result here (Sandifer, 2016 IL App (1st) 133397,
       ¶ 55; Kelley, 2015 IL App (1st) 132782, ¶ 76), and we need not resolve this inconsistency.
¶ 36        In general, the prosecution is given “wide latitude” in making its closing argument. People
       v. Nicholas, 218 Ill. 2d 104, 121 (2005). Additionally, where a jury is properly instructed
       regarding the role of arguments and informed that arguments are not evidence and not to be
       considered as evidence, we presume the jury will follow the admonition. People v. Sutton, 353
       Ill. App. 3d 487, 501 (2004). In reviewing comments made at closing argument, the question is
       whether the comments engender prejudice against the defendant so substantial that a fair trial
       is impossible. Wheeler, 226 Ill. 2d at 123; see People v. Easley, 148 Ill. 2d 281, 332 (1992)
       (“The remarks by the prosecutor, while improper, do not amount to substantial prejudice.”).
¶ 37        The State referred to the UPC labels as “the stickers that [Petty] has no reasonable
       explanation for.” Petty asserts this remark impermissibly comments on his failure to testify. In
       deciding whether an improper comment has been made about a defendant’s exercise of his
       right not to testify, courts consider whether the reference was intended or calculated to direct
       the attention of the jury to the defendant’s waiver of his or her right to testify. People v. Arman,
       131 Ill. 2d 115, 126 (1989) (State may not make direct or indirect comment on defendant’s

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       basic due process right not to testify). The reviewing court examines the challenged comments
       in the context of the entire record. Id.
¶ 38       The “no reasonable explanation” remark was made in the context of the evidence
       establishing that the product bar codes scanned by the cashier were not the proper bar codes for
       the BluRay players. The question of fact for the jury to decide was how the falsified bar code
       ended up on the BluRay player boxes. The State argued the inferences that could be drawn
       from the evidence presented—the receipt, the surveillance video, and the UPC labels found in
       Petty’s car.
¶ 39       The prosecutor argued further that cashiers are not experts in merchandise and are not
       trained to recognize the relative value of different items. We do not condone calling the
       cashiers “zombies,” but the remark appears in Runkle’s testimony about Best Buy’s training
       for clerks and “protection specialists.” The prosecutor urged the jurors to rely on their personal
       experience and argued the store cashiers are trained to “run the register and ring up purchases.
       They are not trained to be experts in merchandise.”
¶ 40       The trial court instructed the jury to “consider all the evidence in the light of your own
       observations and experience in life.” The unfortunate addition of “zombie” to characterize the
       actions of store cashiers is not particularly helpful. The prosecutor merely commented on
       Runkle’s testimony on store personnel.
¶ 41       Petty cites People v. Abadia, 328 Ill. App. 3d 669, 678-79 (2001), granting a new trial
       because the cumulative effect of multiple instances of prosecutorial misconduct cast doubt on
       the integrity of the verdict. In Abadia, this court quoted 22 excerpts of objectionable statements
       made by the prosecutor during the rebuttal argument that focused on the defendant’s
       purportedly fabricated defense. The cumulative effect of multiple objectionable statements in
       Abadia was undeniable and a far cry from the situation here.
¶ 42       Nor do we consider the evidence closely balanced. The State presented evidence that
       established the steps taken in the investigation from the discovery of the inventory discrepancy
       through Petty’s arrest. The evidence, while circumstantial, was more than sufficient to connect
       Petty with the purchase and to infer intent to “alter, transfer, or remove [a] label, price tag,
       marking, indicia of value or any other markings which aid in determining value affixed to any
       merchandise displayed, held, stored or offered for sale” as defined by the retail theft statute in
       effect at that time. See 720 ILCS 5/16A-3(b) (West 2010). “When it is clear that the alleged
       error would not have affected the outcome of the case, a court of review need not engage in the
       meaningless endeavor of determining whether error occurred.” People v. White, 2011 IL
       109689, ¶ 148.
¶ 43       The prosecutor’s closing remarks did not constitute reversible error, and they certainly did
       not rise to the level of plain error. While instructing the jury that arguments are not evidence
       will not, in every instance, constitute a cure, the State’s remarks were not inflammatory or
       emotional, nor did they demonstrate “a pervasive pattern of unfair prejudice.” Blue, 189 Ill. 2d
       at 139.

¶ 44                                  III. Ineffectiveness of Counsel
¶ 45      Finally, Petty asserts his defense counsel was ineffective for failing to object to the “acts of
       misconduct.” Having found the prosecutor’s comments in closing argument were not
       improper, it follows that the issue would have been similarly meritless if defense counsel


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       objected. Counsel was not ineffective for failing to make a meritless objection. People v.
       Easley, 192 Ill. 2d 307, 329 (2000) (“[I]t is not incompetence of counsel to refrain from raising
       issues which, in his or her judgment, are without merit, unless counsel’s appraisal of the merits
       is patently wrong.”). We find no ineffective assistance of counsel because there was no error
       (People v. Ivory, 217 Ill. App. 3d 619, 625 (1991)) and Petty suffered no prejudice.

¶ 46                                             IV. Fees
¶ 47       Finally, defendant contends, and the State agrees, that the $5 electronic citation fee was
       erroneously imposed and should be vacated. Section 27.3e of the Clerk of Courts Act specifies
       that this fee applies only to a defendant who is involved in “any traffic, misdemeanor,
       municipal ordinance or conservation case.” 705 ILCS 105/27.3e (West 2012). Petty was
       convicted of retail theft. Additionally, for each day of incarceration before sentencing, a
       defendant is entitled to a credit of $5 toward the monetary assessments levied against him as
       part of his conviction. 725 ILCS 5/110-14(a) (West 2012). Petty served 36 days in presentence
       custody and had accumulated $180 of credit toward his eligible fines and fees. Finally, the
       State agrees Petty deserves a presentence incarceration credit for the $15 state police
       operations fee (705 ILCS 105/27.3a(1.5) (West 2010)) and a presentence incarceration credit
       toward the $50 court system fee levied under section 5-1101(c) of the Counties Code (55 ILCS
       5/5-1101(c) (West 2010)). We vacate the $5 electronic citation fee, and we modify Petty’s
       fines to reflect the $15 credit for the state police operations fee and the $50 court system
       charge. The judgment of the trial court is affirmed in all other respects.

¶ 48      Affirmed as modified.




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