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                                                                       Date: 2018.07.25
                              Appellate Court                          13:47:17 -05'00'




                   People v. Curry, 2018 IL App (1st) 153635



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



District & No.    First District, Second Division
                  Docket No. 1-15-3635



Filed             May 22, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 14-CR-10019; the
Review            Hon. Charles P. Burns, Judge, presiding.



Judgment          Remanded with directions.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Pamela Rubeo, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

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



Panel             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.
       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,
       “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

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       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 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 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

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       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,
       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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