People v. Lampton ( 2008 )

NO. 4-07-0208
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DAREN M. LAMPTON, ) No. 04CF814
Defendant-Appellant. )
) Honorable
) Heidi Ladd,
) Judge Presiding.
_________________________________________________________________
MODIFIED UPON DENIAL OF REHEARING
JUSTICE MYERSCOUGH delivered the opinion of the court:
In May 2004, the State charged defendant, Daren M.
Lampton, with three counts of armed robbery (720 ILCS 5/18-
2(a)(1) (West 2002)), a Class X felony. Following a November
2004 trial, a jury convicted defendant, and the trial court later
sentenced him to three concurrent terms of 35 years' imprison-
ment. Defendant appealed, alleging (1) his multiple convictions
for armed robbery violated the one-act, one-crime rule; (2) a new
sentencing hearing was required because the court relied on
multiple armed-robbery convictions in sentencing when only one
conviction was proper; and (3) he was entitled to an additional
day of sentencing credit. People v. Lampton, No. 4-05-0083
(August 8, 2006) (unpublished order under Supreme Court Rule 23).
This court affirmed defendant's convictions and sentences. In
November 2006, defendant filed a postconviction petition in which
he alleged both trial counsel and appellate counsel were ineffec-
tive and that the Department of Corrections' mandatory-
supervised-release provisions were unconstitutional. In February
2007, the trial court found defendant's petition was patently
without merit and dismissed the petition. Defendant appeals,
alleging his postconviction petition stated the gist of a consti-
tutional claim that his appellate counsel was ineffective for
failing to challenge the sufficiency of the evidence. We affirm.
I. BACKGROUND
On May 5, 2004, the State charged defendant by informa-
tion with three counts of armed robbery (720 ILCS 5/18-2(a)(1)
(West 2002)), one count for each of the three bank tellers,
stemming from a single bank robbery. Each count alleged defen-
dant "while armed with a dangerous weapon, pepper spray, know-
ingly took property, being United States currency *** by threat-
ening the imminent use of force." The trial court conducted a
jury trial on November 9 and 10, 2004.
Eric Moody testified he is a teller at Central Illinois
Bank. On May 4, 2004, while Moody was working as a teller at the
bank, defendant walked into the lobby and approached the teller
counter. Defendant jumped over the counter and ordered Moody and
two other tellers, Seth Fleener and Carrie Jackson, to empty
their drawers. Moody said he felt threatened by defendant's
conduct. Moody and the other tellers emptied their drawers and
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put the money in a black garbage bag defendant was holding.
Defendant demanded Moody take him to the cash vault. Moody's
supervisor, Amy Powell, was counting a shipment of money the bank
had received. Defendant demanded that money. After that money
was placed in the black garbage bag, defendant left the vault
area, jumped over the counter again, and left the bank. The
police apprehended defendant shortly thereafter.
On cross-examination, Moody stated he never saw defen-
dant with a gun or a knife in his hand, and in fact, he never saw
defendant with anything in his hand other than the garbage bag.
Defendant never told Moody he had any kind of weapon and never
swung his arms in an attempt to hit Moody or anybody else.
Defendant did not break any objects, throw anything, or have any
physical contact with Moody. Moreover, defendant did not
threaten Moody.
Seth Fleener, another teller at the bank, testified
similarly to Moody about the events during the robbery. Although
defendant never presented a weapon, Fleener felt threatened by
defendant's conduct. On cross-examination, Fleener stated
defendant never pulled weapons or anything out of his pockets,
did not try to hit or hurt Fleener, and did not say he had a gun.
Amy Powell was a teller supervisor at Central Illinois
Bank on May 4, 2004. Powell's testimony about the robbery was
similar to Moody's and Fleener's. Defendant never threatened
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Powell with a weapon, but she felt threatened during the robbery.
Jeff Jolley is a Champaign police officer. Jolley
responded to a report of a robbery at the bank. Jolley saw
defendant running. Jolley pursued defendant and finally appre-
hended him. When searching defendant, Jolley found a small can
of "neutralizer," containing 10% pepper spray. Jolley stated
pepper spray can cause extreme pain if a large enough dose is
sprayed in your face. The spray causes the tear ducts to swell,
tearing, involuntary closure of the eyes, swelling of the mucus
membranes, and difficulty breathing. Police departments use the
spray "to subdue someone, sort of takes the fight out of them."
Dale Rawdin is a detective for the Champaign police
department. Rawdin interviewed defendant at the police station.
Defendant indicated he was homeless and down on his luck so he
decided to rob a bank. On cross-examination, defense counsel
asked Rawdin: "He told you that in his own words he did not have
a weapon when he went in, he told you that right?" Rawdin
responded, "That's correct." Rawdin also indicated defendant had
told him he did not want to hurt anybody during the robbery.
Keith Johnston, a detective with the Champaign police
department, assisted Rawdin in the interview of defendant.
Johnston took defendant to the hospital after the interview.
While at the hospital, defendant told Johnston he "had a can of
Mace with him" and that he was going to use it on the tellers if
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any of them tried anything.
The State rested its case, and defendant moved for a
directed verdict. The trial court denied defendant's motion.
Defendant testified he was living at a homeless shelter
and had been given the pepper spray by a fellow resident for his
protection. Defendant acknowledged he robbed the bank but denied
taking the pepper spray into the bank and stated he never threat-
ened anybody. Instead, he said he left the pepper spray next to
the Dumpster in an alley near the bank where he had changed into
his disguise and retrieved the spray after leaving the bank. He
testified he never told Johnston he brought the spray to use in
case the tellers acted up.
Defendant rested and renewed his motion for directed
verdict. The trial court denied the motion.
The jury convicted defendant of all three counts of
armed robbery. On November 15, 2004, defendant filed a motion
for acquittal or other relief. Defendant argued pepper spray is
not a dangerous weapon and insufficient evidence showed defendant
used the threat of force to take the money. On December 20,
2004, the trial court denied the motion and sentenced defendant
as stated. On January 6, 2005, defendant filed a motion to
reconsider sentence that the trial court also denied.
This court affirmed defendant's convictions and sen-
tences in his direct appeal, in which he alleged (1) his multiple
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convictions for armed robbery violated the one-act, one-crime
rule; (2) a new sentencing hearing was required because the court
may have relied on multiple armed-robbery convictions in sentenc-
ing when only one conviction was proper; and (3) he was entitled
to an additional day of sentencing credit. People v. Lampton,
No. 4-05-0083 (August 8, 2006) (unpublished order under Supreme
Court Rule 23).
On November 29, 2006, defendant filed a pro se
postconviction petition. Defendant made several claims trial
counsel and appellate counsel were ineffective. Defendant also
alleged the Department of Corrections' mandatory-supervised-
release provisions were unconstitutional. On February 23, 2007,
the trial court dismissed defendant's petition as frivolous and
patently without merit.
This appeal followed.
II. ANALYSIS
On appeal, defendant contends his postconviction
petition alleged the gist of a constitutional claim his appellate
counsel was ineffective for failing to challenge the sufficiency
of the evidence on the ground the State did not prove defendant
committed the offense while possessing a "dangerous weapon," an
essential element of the crime of armed robbery.
"When a defendant challenges the sufficiency
of the evidence, the relevant inquiry is
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whether, after viewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt." People v. Woods, 214 Ill.
2d 455, 470, 828 N.E.2d 247, 257 (2005).
A. To Survive First-Stage Dismissal of a Postconviction Petition
Defendant Must Allege the Gist of a Constitutional Claim
In this case, the trial court dismissed defendant's
postconviction petition at the first stage. At the first stage,
the trial court examines the postconviction petition to determine
whether it is frivolous or patently without merit. People v.
Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001). If
the court determines the petition is frivolous or patently
without merit, the court must dismiss the petition. Edwards, 197
Ill. 2d at 244, 757 N.E.2d at 445. "To withstand dismissal at
the first stage of postconviction proceedings, a pro se petition
for postconviction relief need only contain a simple statement
that presents the 'gist of a claim for relief' when nothing in
the trial record contradicts that claim." People v. Patton, 315
Ill. App. 3d 968, 972, 735 N.E.2d 185, 189 (2000). "The 'gist'
standard is 'a low threshold.'" Edwards, 197 Ill. 2d at 244, 757
N.E.2d at 445, quoting People v. Gaultney, 174 Ill. 2d 410, 418,
675 N.E.2d 102, 106 (1996). To set forth the "gist" of a
constitutional claim, the postconviction petition "'need only
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present a limited amount of detail'" and need not set forth the
claim in its entirety. Edwards, 197 Ill. 2d at 244, 757 N.E.2d
at 445, quoting Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.
We review the first-stage dismissal of a postconviction petition
de novo. People v. Little, 335 Ill. App. 3d 1046, 1051, 782
N.E.2d 957, 962 (2003).
B. To Demonstrate Ineffective Assistance of Appellate Counsel,
Defendant Must Show Both That Counsel's Performance Was Deficient
and Prejudice Resulted From the Deficiency
Defendant's sole contention on appeal is that he did
not receive the effective assistance of appellate counsel because
counsel failed to argue the State failed to prove an essential
element of the offense of armed robbery beyond a reasonable
doubt, i.e., that defendant possessed a "dangerous weapon." A
defendant who argues he received ineffective assistance of
counsel must demonstrate both a deficiency in counsel's perfor-
mance and that prejudice resulted from the deficiency. People v.
Edwards, 195 Ill. 2d 142, 162, 745 N.E.2d 1212, 1223 (2001),
citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d
674, 693, 104 S. Ct. 2052, 2064 (1984). Claims of ineffective
assistance of appellate counsel are measured against the same
standard. People v. Makiel, 358 Ill. App. 3d 102, 105, 830
N.E.2d 731, 737 (2005).
"A defendant who claims that appellate coun-
sel was ineffective for failing to raise an
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issue on appeal must allege facts demonstrat-
ing that such failure was objectively unrea-
sonable and that counsel's decision preju-
diced defendant. If the underlying issue is
not meritorious, then defendant has suffered
no prejudice." People v. Enis, 194 Ill. 2d
361, 377, 743 N.E.2d 1, 11 (2000).
C. The State Proved Defendant Possessed a Dangerous Weapon for
Purposes of the Armed-Robbery Statute
As stated, defendant contends he did not possess a
"dangerous weapon," within the meaning of the armed-robbery
statute, while committing the robbery. Section 18-1(a) of the
Criminal Code of 1961 (Criminal Code) states, "A person commits
robbery when he or she takes property *** from the person or
presence of another by the use of force or by threatening the
imminent use of force." 720 ILCS 5/18-1(a) (West 2002). The
section of the armed-robbery statute under which the State
charged defendant states, "A person commits armed robbery when he
or she violates [s]ection 18-1; and (1) he or she carries on or
about his or her person or is otherwise armed with a dangerous
weapon other than a firearm." 720 ILCS 5/18-2(a)(1) (West 2002).
"The purpose of the armed[-]robbery statute is to treat
more severely a person who commits a robbery while possessing a
weapon actually capable of causing serious injury than a person
who commits a robbery without possessing such a weapon." People
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v. Lindsay, 263 Ill. App. 3d 523, 527-28, 635 N.E.2d 551, 555
(1994). The presence of a dangerous weapon is the extra ingredi-
ent that changes a robbery into an armed robbery and must be
proved beyond a reasonable doubt. People v. Dunivant, 96 Ill.
App. 3d 62, 64, 420 N.E.2d 1110, 1112 (1981). This can be
inferred from circumstantial evidence. Dunivant, 96 Ill. App. 3d
at 64, 420 N.E.2d at 1112. "[A] conviction for armed robbery may
be sustained even though the weapon itself was neither seen nor
accurately described by the victim." People v. Coleman, 128 Ill.
App. 3d 538, 545, 470 N.E.2d 1277, 1282 (1984).
Because defendant has admitted he in fact robbed the
bank, we need only determine whether he did so with a "dangerous
weapon." To determine whether there was sufficient evidence
defendant committed armed robbery, we must first decide whether
sufficient evidence suggested that defendant possessed a weapon
during the robbery. Although no victim testified he or she saw a
weapon during the robbery, circumstantial evidence suggested
defendant possessed the pepper spray while robbing the bank. As
stated, defendant's possession of a weapon can be inferred from
circumstantial evidence. In this case, Detective Johnston stated
defendant told him he took the pepper spray with him into the
bank in case he needed to use the spray on the tellers. Defen-
dant denied saying this and maintained he did not take the pepper
spray into the bank. "It is the trier of fact's responsibility
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to determine the witnesses' credibility and the weight given to
their testimony, to resolve conflicts in the evidence, and to
draw reasonable inferences from the evidence; we will not substi-
tute our judgment for that of the trier of fact on these mat-
ters." People v. Brooks, 187 Ill. 2d 91, 132, 718 N.E.2d 88, 111
(1999). Obviously, the jury believed Johnston's testimony over
defendant's. Moreover, the can of pepper spray was found on
defendant's person when he was apprehended shortly after the
robbery, raising the inference he had it on him during the
robbery. Viewing this evidence in the light most favorable to
the prosecution, the evidence was sufficient to show defendant
possessed the pepper spray during the robbery.
Since we have determined the trier of fact was entitled
to conclude defendant possessed the pepper spray during the
robbery, we must now determine whether the pepper spray was a
"dangerous weapon" within the meaning of the armed-robbery
statute (720 ILCS 5/18-2 (West 2002)). While section 18-2 of the
Criminal Code does not define the term "dangerous weapon,"
Illinois courts have defined the term by dividing objects alleged
to be "dangerous weapons" into four categories. Lindsay, 263
Ill. App. 3d at 528, 635 N.E.2d at 555. This court recognized
these four categories in People v. Elliott, 299 Ill. App. 3d 766,
702 N.E.2d 643 (1998), the only case addressing pepper spray
being used as a "dangerous weapon" within the meaning of Illi-
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nois' armed-robbery statute.
"The first category contains objects that are
dangerous per se, such as knives and loaded
guns. People v. Neither, 166 Ill. App. 3d
896, 900, 520 N.E.2d 1247, 1249 (1988). The
second category contains objects that are
never dangerous weapons. People v. Skelton,
83 Ill. 2d 58, 66-67, 414 N.E.2d 455, 458
(1980) (four-inch plastic toy gun as a matter
of law not considered dangerous weapon). The
third category contains objects that are not
necessarily dangerous weapons but can be used
as such. People v. Flores, 245 Ill. App. 3d
149, 158, 613 N.E.2d 1372, 1379 (1993) (un-
loaded guns or toy guns made of heavy mate-
rial fall into this category since they are
incapable of shooting bullets but can be used
as bludgeons); People v. Robinson, 73 Ill. 2d
192, 201-02, 383 N.E.2d 164, 169-70 (1978)
(fingernail clippers with a sharpened file).
Whether an object in the third category is a
dangerous weapon is a question of fact to be
resolved by the trier of fact. Flores, 245
Ill. App. 3d at 158, 613 N.E.2d at 1379. The
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fourth category contains objects that could
normally fall into the third category, but
which were actually used in a dangerous man-
ner in the course of the robbery. See, e.g.,
People v. de la Fuente, 92 Ill. App. 3d 525,
535-36, 414 N.E.2d 1355, 1363-64 (1981) (de-
fendants bludgeoned victim with unloaded
gun)." Elliott, 299 Ill. App. 3d at 772, 702
N.E.2d at 647.
However, our supreme court recently recognized Illinois
Appellate Court cases have refined the common-law definition of
dangerous objects into these categories but stated "[t]his effort
at categorization is nothing more than a recognition of the
proper role for the trier of fact." People v. Ross, 229 Ill. 2d
255, 275, 891 N.E.2d 865, 878 (2008). The court went on to state
that "Illinois cases do not create a mandatory presumption that
any gun is a dangerous weapon. Instead, our cases conclude the
trier of fact may make an inference of dangerousness based upon
the evidence." Ross, 229 Ill. 2d at 275-76, 891 N.E.2d at 878.
To prove a gun is a dangerous weapon, the State may present
evidence the gun was loaded and operable or by presenting evi-
dence the gun was used or capable of being used as a club or
bludgeon. Ross, 229 Ill. 2d at 276, 891 N.E.2d at 878.
In Elliott, the defendant argued that, as a matter of
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law, pepper spray is not a dangerous weapon under the armed-
robbery statute. Elliott, 299 Ill. App. 3d at 771, 702 N.E.2d at
647. The defendant pointed out he did not spray directly in the
victims' faces. Elliott, 299 Ill. App. 3d at 773, 702 N.E.2d at
647-48. This court stated the following in rejecting the defen-
dant's argument:
"Since the victims were lying on the floor at
defendant's order, they were not in any posi-
tion to attack him. It is obvious that de-
fendant used the pepper spray to disable the
victims while defendant and his cohorts made
their getaway. His argument that he was
using the spray in a defensive manner is
without merit. In any event, it is irrele-
vant what defendant's intent was when he used
the spray. The statute requires only that he
be armed with a dangerous weapon, not that it
actually be used.
Pepper spray falls within the fourth
category of objects that are actually used in
a dangerous manner. Therefore, the question
of whether the pepper spray constituted a
dangerous weapon in defendant's case was
properly one for the trier of fact to deter-
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mine. In addition, we do not find any error
in the trial court's factual determination
that pepper spray is a dangerous weapon.
Although there was testimony that the effects
of pepper spray are normally temporary, there
is no question that its effects are
disabling. Both victims testified that after
the spray was used, they had difficulty
breathing and their eyes burned. One of the
victims stated that the spray made her feel
nauseated. They were both temporarily inca-
pacitated by the effects of the spray. These
effects did not wear off completely until
several hours after the robbery. The victims
suffered injury and the fact that the inju-
ries were not permanent does not change our
conclusion." (Emphasis added.) Elliott, 299
Ill. App. 3d at 773, 702 N.E.2d at 648.
While Ross seems to eliminate the categorization
utilized in Elliott and other appellate court cases addressing
what is a dangerous weapon under the armed-robbery statute, this
court's decision in Elliott is still instructive on the ultimate
issue, whether pepper spray is a dangerous weapon under the
armed-robbery statute. The fact defendant in the case sub judice
did not actually use the pepper spray is of no moment. While the
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defendant in Elliott used the pepper spray on his victim, the
Elliott court went on to state "[t]he statute requires only that
he be armed with a dangerous weapon, not that it actually be
used." Elliott, 299 Ill. App. 3d at 773, 702 N.E.2d at 648.
Moreover, as stated, a conviction for armed robbery can be
sustained even if the victim never (1) saw the weapon during the
robbery or (2) accurately described the weapon. Coleman, 128
Ill. App. 3d at 545, 470 N.E.2d at 1282. Here, defendant was
armed with pepper spray, a weapon which the police testified is
extremely painful if sprayed on the face, causing tearing,
swelling, and difficulty breathing. The Elliott court also
recognized pepper spray's effects as "disabling." Elliott, 299
Ill. App. 3d at 773, 702 N.E.2d at 648. Here, it can be inferred
defendant knew the can of pepper spray actually contained pepper
spray from the fact defendant confessed to Detective Johnston he
intended to use it to spray in the tellers' faces to debilitate
them if necessary. This differentiates this case from cases such
as People v. Thorne, 352 Ill. App. 3d 1062, 1073, 817 N.E.2d
1163, 1173 (2004), where the court reduced the defendant's armed-
robbery conviction to simple robbery because there was no evi-
dence the BB gun used in the robbery was loaded, capable of being
used as a bludgeon, or used in a dangerous manner. Accordingly,
we conclude the pepper spray was a "dangerous weapon" under the
armed-robbery statute.
Because the defendant's underlying claim that the State
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did not prove he committed the robbery while possessing a "dan-
gerous weapon" is without merit, appellate counsel was not
ineffective on this basis and the trial court properly dismissed
defendant's postconviction petition at the first stage.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment as costs of this appeal.
Affirmed.
APPLETON, P.J., and COOK, J., concur.
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