People v. Littleton , 14 N.E.3d 555 ( 2014 )

2014 IL App (1st) 121950
FOURTH DIVISION
June 26, 2014
No. 1-12-1950
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 09 CR 2972
)
ERNEST LITTLETON, ) Honorable
) William H. Hooks,
Defendant-Appellant. ) Judge Presiding.
JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Ernest Littleton was found guilty of the robbery of
Audrey Schenck and sentenced to 25 years' imprisonment. Defendant raises several issues on
appeal: (1) the trial court erred in admitting evidence of other crimes; (2) the trial court erred in
admitting testimony that violated the rule against hearsay and the confrontation clause; (3) trial
counsel was ineffective in failing to make a speedy trial demand and failing to move to suppress
eyewitness identifications; and (4) the State failed to prove him guilty beyond a reasonable
doubt. We conclude that evidence of defendant's pattern of robbing elderly women on the
southwest side of Chicago was properly admitted to prove his modus operandi. While
inadmissible hearsay was introduced at defendant's trial, we find that the admission of that
testimony was harmless. We further find that defendant's attorney did not render ineffective
assistance in failing to make fruitless motions and that the State presented sufficient evidence to
prove defendant guilty beyond a reasonable doubt. We affirm defendant's conviction.
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¶2 BACKGROUND
¶3 Defendant was indicted in the November 17, 2008, robbery of Dorothy Jokubaitis and the
December 4, 2008, robbery of Audrey Schenck. He was first tried in the Jokubaitis robbery and
was acquitted. Defendant was then tried in the Schenck robbery. Schenck, however, had died
before trial. The trial court admitted Schenck's testimony from the Jokubaitis trial as evidence in
the Schenck trial.
¶4 Pretrial
¶5 The State moved to admit other-crimes evidence, specifically, evidence of Jokubaitis'
robbery, as well as evidence of defendant's 1994 robberies of Rosella Defenbaugh and Lucille
Zaye and 1997 robberies of Ana Mireles and Mary Moore. The State argued that the evidence
would show defendant's modus operandi, identity, and a common scheme or design. Defendant
responded that the evidence was unduly prejudicial, and not probative of the State's proffered
reasons for admitting the evidence. The trial court granted the State's motion, finding that the
evidence would not be unfairly prejudicial and would show "the absence of innocence of the
state of mind, the presence of criminal intent, modus operandi, intent, identity, and *** a
common scheme and design."
¶6 The State also filed a motion to admit prior testimony by four deceased witnesses
pursuant to section 115-10.4 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.4
(West 2010)). In particular, the State sought to introduce transcripts of Schenck's testimony in
the Jokubaitis case, as well as Defenbaugh's, Zaye's, and Moore's preliminary hearing testimony
in their respective cases. The trial court granted the State's motion with respect to Schenck's
testimony, but denied it with respect to the transcripts of Defenbaugh's, Zaye's, and Moore's
testimony.
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¶7 Trial—Robbery and Theft of Audrey Schenck
¶8 The State presented a certified copy of Schenck's death certificate before reading her
testimony from the Jokubaitis trial into the record. Schenck testified that, on the morning of
December 4, 2008, she drove to a Jewel grocery store at 6107 South Archer Avenue in Chicago,
Illinois. She returned to her apartment building at 5839 South Harlem Avenue, noticing that the
parking gate was broken and would not close. Schenck parked her car and was retrieving her
groceries from her backseat when a man grabbed her throat and snatched her purse from her left
shoulder. The man pulled her out of the car and pushed her toward the ground before fleeing.
Schenck recalled that the man wore a dark jacket with a hood and had a dark complexion, but
she remembered no other details.
¶9 Dawn Evans, an employee in Schenck's apartment complex, testified that she saw
Schenck staggering and heard her say, "[H]e's got my purse." She followed the man until he went
around a fence and into an adjacent parking lot. The robber held up the purse and said, "[Y]ou
want this," to which Evans said, "Yes." The robber then said, "[N]a," and fled in a white
minivan. Evans testified that a photograph of the rear of defendant's car resembled the car she
saw the robber enter that day. She provided police with a description of the offender, including
that he wore a brown parka. Evans identified defendant as the robber in court.
¶ 10 Officer Foley testified that, on January 4, 2009, he responded to a call regarding a
suspicious black male driving a white sport utility vehicle (SUV) near 58th Street and Neva
Avenue. Foley stopped the SUV and recorded defendant's name, address, date of birth, and
license number. He further testified that he was aware of a pattern of robberies involving a black
male in his thirties or forties, and defendant "strongly resembled" the suspect. Foley relayed this
information to his partner, Officer Prendkowski.
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¶ 11 Officer Kevin Prendkowski testified that, after speaking with Officer Foley, he spoke
with Detective Gary Wisniewski about arranging a photo array in relation to the pattern of
robberies. He later learned from Wisniewski that a positive photo array identification had been
made. On January 18, 2009, Prendkowski saw defendant driving a white Jeep in a grocery store
parking lot at 63rd Street and Narragansett Avenue. Prendkowski followed defendant, who, in
turn, was following a car driven by an elderly woman. Defendant lost track of the woman and
pounded his hands on the steering wheel. Defendant then returned to the grocery store parking
lot, where he drove in circles. Other officers arrived and arrested defendant. When defendant
exited his vehicle, he was wearing a brown puffy coat with white fur around the hood.
¶ 12 Detective Wisniewski testified that, on January 13, 2009, he showed a photo array to
Dawn Evans, who identified defendant as Schenck's robber. After defendant's arrest on January
18, 2009, Evans viewed a lineup and identified defendant as the robber.
¶ 13 Other-Crimes Evidence—2008 Robbery of Jokubaitis
¶ 14 The State presented Dorothy Jokubaitis as a witness over defendant's objection. She
testified that, on November 17, 2008, she went to the Jewel at 6107 South Archer Avenue. As
she drove home, she noticed a van following her. After she retrieved the groceries from the trunk
and backseat, she turned and saw a man in her garage standing only a foot away. The man said,
"Give me your purse." A struggle ensued. Jokubaitis yelled for help, and the man punched her in
the nose. She fell to the ground, and he fled with her purse and groceries. She was 68 years old at
the time of the offense. She described the man to police as a black male, 35 to 40 years old, 5
feet 11 inches tall, wearing a cream-colored hat and brown jacket. She subsequently identified
defendant in a lineup. She identified the defendant as the robber in court.
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¶ 15 Other-Crimes Evidence—1997 Robberies of Moore and Mireles
¶ 16 Officer Guy Habiak testified regarding two 1997 robberies to which defendant pled
guilty. He stated that, on February 2, 1997, he was assigned to the robberies of Mary Moore and
Ana Mireles. Habiak spoke to Officers Sneathan and Deheer that day, who told him that, after
responding to a robbery at 5132 South Kenneth Avenue in Chicago, Illinois, and receiving a
description of a male black in a grey coat with a large black purse, they found and arrested
defendant. Defendant had a purse, $44, a grey, hooded jacket, and a $7,500 "advertisement
check" made payable to Ana Mireles in his possession.
¶ 17 Habiak spoke to Moore, who said that a black male wearing a grey jacket grabbed her on
the way home from a bakery, knocked her down, and took her purse. Moore could not see the
offender's face. Moore's niece, Jennifer Krikvana, told Habiak that she observed the robbery
through her front window. Krikvana later identified defendant as the robber at a police station.
¶ 18 Habiak also spoke with 79-year-old Ana Mireles, who said that, as she was returning
from the grocery store, a man knocked her down from behind and took her purse, which
contained a $7,500 advertisement check. Mireles never saw the man's face.
¶ 19 Later that day, Habiak spoke with defendant, who, after being read his Miranda rights,
admitted to robbing a woman of her purse at 5132 South Kenneth Avenue. Defendant admitted
that the $7,500 check was from a robbery he had committed several days earlier, in which he
knocked a woman down from behind and took her purse.
¶ 20 Other-Crimes Evidence—1994 Robberies of Defenbaugh and Zaye
¶ 21 Officer Howard Hatton testified regarding two 1994 robberies to which defendant pled
guilty. Hatton spoke with Officer Contrarez, who stated that he curbed a light blue Oldsmobile
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that matched descriptions of a robber's car. Defendant stopped the car and fled on foot, but was
eventually apprehended and found to have three sets of car keys.
¶ 22 Hatton spoke with 80-year-old Rosella Defenbaugh, who told him that, on August 10,
1994, she returned to her home from a trip to Edmar Foods, a grocery store, and parked in her
garage. A black male exited a light blue car, entered her garage, knocked her to the ground, took
her purse from inside her car, and fled. She subsequently identified defendant in a lineup.
¶ 23 Hatton also spoke with 77-year-old Lucille Zaye, who told him that, on August 12, 1994,
she drove to the Edmar Foods parking lot, where a man knocked her to the ground, took her
purse, and fled. She did not see the offender's face. Priscilla Pulido told Hatton that she
witnessed the offense. She saw a black male in a light blue car pull into an alley behind the store,
push Zaye to the ground, take her purse, and flee in his car. Pulido identified defendant in a
photo array and lineup. Upon his arrest, defendant possessed keys belonging to both Zaye and
Defenbaugh.
¶ 24 Defense Evidence
¶ 25 Berton Downing testified that, on December 4, 2008, defendant worked at the barbershop
Downing owned. Downing recalled that defendant took a lunch break sometime between 11 a.m.
and 1 p.m. that day. A receipt showed that defendant worked that day, but defendant's name did
not appear on the receipt until 5:37 p.m.
¶ 26 Verdict and Sentence
¶ 27 The trial court found defendant guilty of theft and robbery of a victim over the age of 60.
The court sentenced him to 25 years' imprisonment.
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No. 1-12-1950
¶ 28 ANALYSIS
¶ 29 Defendant raises other-crimes evidence, hearsay, confrontation clause, ineffective
assistance of counsel, and reasonable doubt claims on appeal. We first address the State's claim
that defendant improperly included the Jokubaitis transcripts in the record on appeal.
¶ 30 The Record on Appeal
¶ 31 The State argues that the transcripts from the Jokubaitis trial were not before the trial
court and are irrelevant to this appeal. The State is incorrect. The trial court stated that the
Jokubaitis transcripts should be included in the record. After the State presented transcripts of
Schenck's testimony in that case, the court responded, that "this matter will be taken up probably
eventually on appeal." The court therefore asked the State to "refile it with the complete
transcript, not just the relevant portions." The State responded, "You want the entire transcript,
the trial transcript?" The court responded, "Yes, because when these things get prepared for
appeal I would prefer that if they do go on appeal I would prefer [sic] that the whole transcript is
provided." Thus, the trial court intended for the Jokubaitis transcripts to be included.
¶ 32 Additionally, given that the State used Jokubaitis' testimony as its primary other-crimes
evidence, we believe that the inclusion of the transcripts from defendant's first trial is proper. See
Ill. S. Ct. R. 323(a) (eff. Dec. 13, 2005) ("A report of proceedings may include evidence, oral
rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and
any other proceedings that the party submitting it desires to have incorporated in the record on
appeal. The report of proceedings shall include all the evidence pertinent to the issues on
appeal."). We now turn to defendant's contentions of error.
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¶ 33 Other-Crimes Evidence
¶ 34 Defendant argues that the trial court erred in admitting other-crimes evidence, including
testimony regarding the robbery of Jokubaitis, the 1994 and 1997 robberies, and an uncharged
act that occurred immediately before his arrest. There was not, defendant argues, such a high
degree of identity between Schenck's robbery and the others to support admission of this
evidence as modus operandi. We find that there was a high degree of identity between the instant
offense and the other crimes—specifically, a distinctive combination of location, victim, timing,
method, and flight—and hold that the trial court did not abuse its discretion in admitting
evidence of other crimes.
¶ 35 Other-crimes evidence is inadmissible if it is used to show a defendant's propensity to
commit crimes. People v. Heard, 187 Ill. 2d 36, 58 (1999). It may be admitted for other
purposes, such as proving a defendant's modus operandi, intent, motive, or absence of mistake.
People v. Pikes, 2013 IL 115171, ¶ 11. Even where used for a permissible purpose, other-crimes
evidence should not be admitted if its prejudicial effect outweighs its probative value. Id. The
danger of other-crimes evidence is that, because of its persuasiveness, it may convince a jury to
convict the defendant simply because he is a bad person. People v. Thingvold, 145 Ill. 2d 441,
452 (1991). "In a bench trial, this fear is assuaged; it is presumed that the trial court considered
the other-crimes evidence only for the limited purpose for which it was introduced." People v.
Nash, 2013 IL App (1st) 113366, ¶ 24.
¶ 36 In most cases, general areas of similarity will suffice for other-crimes evidence to be
admitted for a purpose other than propensity. People v. Wilson, 214 Ill. 2d 127, 141 (2005).
Where the prosecution offers other-crimes evidence to establish modus operandi, however, a
higher degree of similarity between the facts of the charged offense and other offenses is
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required. Id. at 140. Specifically, to establish modus operandi, the State must show a "'high
degree of identity'" between the facts of the crime charged and the other offense. People v. Cruz,
162 Ill. 2d 314, 349 (1994) (quoting People v. Illgen, 145 Ill. 2d 353, 373 (1991)). The offenses
"must share such distinctive common features as to earmark both acts as the handiwork of the
same person." Illgen, 145 Ill. 2d at 373. Modus operandi denotes a pattern of criminality "so
distinctive that separate crimes are recognized as the handiwork of the same wrongdoer." Cruz,
162 Ill. 2d at 349. Even where other-crimes evidence is offered to prove modus operandi,
however, some dissimilarity between the crimes will always exist. People v. Taylor, 101 Ill. 2d
508, 521 (1984).
¶ 37 The admissibility of evidence rests within the trial court's discretion. People v. Becker,
239 Ill. 2d 215, 234 (2010). The trial court's decision will not be disturbed absent an abuse of
discretion. Id.
¶ 38 Here, the trial court set forth its reasoning for admitting other-crimes evidence in a
written order:
"This Court *** considered proof of other-crimes evidence. *** This evidence
was considered by this court strictly for the purpose of modus operandi and not for any
other purpose. Specifically, this court noted that the defendant had previously targeted
victims who: (1) were elderly women; (2) lived on the southwest side of Chicago in a
fairly narrow geographical area; (3) had recently left a grocery store or bakery; (4) were
traveling in late morning to early afternoon; and, (5) had their purses forcefully taken
from them. This court also noted that defendant had worn a brown Parka in the two most
recent alleged robberies. Additionally, this court made a finding that the probative value
of the admission of the other-crimes evidence outweighed any prejudice."
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¶ 39 The trial court did not abuse its discretion in holding that other-crimes evidence could be
admitted to establish modus operandi. Schenck, Jokubaitis, Moore, Mireles, Defenbaugh, and
Zaye were all women, traveling alone, and in their late sixties, seventies, or early eighties. In
each case, defendant's target traveled to a grocery store on Chicago's southwest side or nearby
suburbs, often Edmar Foods or the Jewel located at 6107 South Archer Avenue. In each case,
defendant approached the woman at her home, often while she unloaded groceries from her car.
In each case, defendant knocked the woman to the ground, took her purse, and fled.
¶ 40 To be sure, each offense varied slightly from the others. Some of the victims returned
home on foot, others in a car. One of the victims was returning from a bakery, not a full-service
grocery store. In some cases defendant fled in a light blue car, in others, apparently on foot.
Although there was evidence that defendant wore a brown coat in the more recent robberies,
such evidence did not exist for the older robberies. Some dissimilarity will always exist,
however. Taylor, 101 Ill. 2d at 521. Here, a pattern is unmistakable: defendant found elderly
women traveling alone from one of a few geographically proximate grocery stores, knocked
them down, took their purses, and fled.
¶ 41 Defendant compares this case to People v. Howard, 303 Ill. App. 3d 726 (1999). There,
the State introduced evidence of another robbery. Id. at 727-28. In both cases, an offender
approached a white male college professor from behind near the University of Illinois—Chicago
campus at Van Buren Street. Id. at 731. A divided appellate court held that the trial court had
erred in admitting this evidence, noting that that there was no evidence that the offender knew
both men were college professors and there was nothing unique about a robber approaching a
person from behind. Id. Further, Van Buren is a busy thoroughfare. Id. The court concluded that
"[t]his is not a unique earmark but rather describes the prototypical armed robbery." Id.
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¶ 42 The State contends that this case is similar to People v. Jones, 328 Ill. App. 3d 233
(2002). There, the trial court allowed the state to present evidence regarding two other robberies.
Id. at 235. The defendant robbed all three people within a four-hour window in the same
geographical area. Id. at 240. In two of the cases, the defendant covered his gun with a " 'dirty
old yellow' kitchen towel." Id. at 241. Each person identified the defendant in a lineup. Id. at 240.
In Jones, we held that the cases presented a sufficiently high degree of similarity to admit other-
crimes evidence under the modus operandi exception. Id. at 241. We noted that, "[w]hile ***
differences in the uncharged other crimes and the charged offenses exist[,] *** the similarities of
these crimes, when viewed together, are sufficiently distinctive to support the inference the
defendant was the robber in each case." Id.
¶ 43 We agree with the State that this case is more like Jones than Howard. Here, unlike in
Howard, the State presented evidence of not one additional case, but five. In each case,
defendant found a 68- to 82-year-old woman traveling alone to one of only a few southwest side
grocery stores, approached the woman on her way home, knocked her down, took her purse, and
fled. Together, these cases form a distinct pattern of criminality. See People v. Hansen, 313 Ill.
App. 3d 491, 506 (2000) ("In the absence of any one particular distinctive feature *** Illinois
courts have found that a sufficient number of common features can form a distinctive
combination sufficient to establish the existence of a modus operandi."). Defendant's choice of
location, victim, and timing, establishes a high degree of identity between the offenses,
indicating that they were the handiwork of the same offender. In each case, defendant
immobilized the victim and quickly fled. As we did in Jones, we recognize that the differences
among the crimes exist. However, "these crimes, when viewed together, are sufficiently
distinctive to support the inference the defendant was the robber in each case," and thus we
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cannot say that the trial court abused its discretion in admitting evidence of them. Jones, 328 Ill.
App. 3d at 241.
¶ 44 Defendant also argues that the other-crimes evidence should have been excluded, because
its prejudicial effect outweighed its probative value. Specifically, this evidence "unfairly
bolstered Schenck's credibility where she could not identify the robber and was not subject to
further examination because she was deceased."1 As defendant acknowledges, identity was the
primary issue at his trial. Modus operandi acts as circumstantial evidence of identity on the
theory that crimes committed in a similar manner indicate that they were committed by the same
offender. People v. Quintero, 394 Ill. App. 3d 716, 726-27 (2009); see also People v. Tipton, 207
Ill. App. 3d 688, 696 (1990) (modus operandi may be probative of the offender's identity);
People v. Howard, 303 Ill. App. 3d 726, 730 (1999) ("The use of modus operandi evidence is
especially proper when the defendant's identity is a central issue in the case."). The other-crimes
evidence here did not unfairly bolster Evans' testimony. It was proper circumstantial evidence of
defendant's identity as the offender that strongly corroborated Evans' identification. The
evidence's probative value outweighed its prejudicial effect.
¶ 45 Defendant argues that, even if the evidence was relevant to prove modus operandi, the
trial court failed to properly limit the scope of the other-crimes evidence. In particular, defendant
claims that the State was allowed to elicit great detail about defendant's 1994 and 1997 arrests,
including an attempt to flee custody and testimony that he kicked an officer. We recognize that a
trial court must limit other-crimes evidence to the purpose for which it is admitted. People v.
1
It is difficult to appreciate how this evidence could impact Schenck's credibility where the issue
at trial was the identity of the offender. Schenck never identified defendant as the robber. The
evidence could, however, enhance the credibility of Evans, who identified defendant.
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Bennett, 281 Ill. App. 3d 814, 827 (1996). Although some of these details were extraneous, they
were relatively brief in comparison with the other testimony concerning the defendant's prior
robberies. We must presume that the trial judge, acting as the trier of fact in this case, did not
consider this irrelevant testimony. People v. Robinson, 368 Ill. App. 3d 963, 976 (2006). The
trial judge's written findings, wherein he expressly stated that he considered the evidence solely
for modus operandi purposes, also show that these extraneous details did not factor into its
decision.
¶ 46 Defendant further contends that the trial court erred in allowing Officer Prendkowski to
testify regarding defendant's pre-arrest behavior, as it was irrelevant and not admissible to show
the circumstances of defendant's arrest or to show modus operandi. Prendkowski saw defendant
follow an elderly woman from a grocery store parking lot before he lost sight of her and pounded
the steering wheel with his hands. Prendkowski's description was relevant to the circumstances
of defendant's arrest. See, e.g., People v. McKibbins, 96 Ill. 2d 176, 183 (1983) (description of
robbery in progress was necessary to describe circumstances of defendant's arrest); see also
People v. Aguilar, 396 Ill. App. 3d 43, 55 (2009) ("evidence of other crimes is admissible *** to
show the circumstances surrounding defendant's arrest"). Nor did the testimony's prejudicial
effect outweigh its probative value. Evidence of defendant's other acts was therefore admissible.
¶ 47 Hearsay
¶ 48 Defendant argues that "[t]he testimony elicited from the retired police officers [Habiak
and Hatton] should have been excluded as inadmissible hearsay that violated [his] right of
confrontation." The confrontation clause and the rule against hearsay, while related, are not
identical and should not be conflated. See Crawford v. Washington, 541 U.S. 36, 68 (2004); Lilly
v. Virginia, 527 U.S. 116, 140-43 (1999) (Breyer, J., concurring). The confrontation clause
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provides a federal constitutional guarantee concerned only with the admission of testimonial
hearsay, whereas hearsay rules are evidentiary rules developed in each state. Crawford, 541 U.S.
at 68. We first address defendant's hearsay claim.
¶ 49 Evidentiary rulings are within the sound discretion of the trial court and will not be
reversed absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). Illinois courts
apply an abuse-of-discretion standard when reviewing a trial court's decision regarding the
admission of hearsay. E.g., id.; People v. West, 158 Ill. 2d 155, 164-65 (1994). An abuse of
discretion will be found only where the trial court's ruling is arbitrary, fanciful, or unreasonable,
or where no reasonable person would take the view adopted by the trial court. People v. Patrick,
233 Ill. 2d 62, 68 (2009).
¶ 50 The testimony at issue related to the robberies defendant pled guilty to in 1994 and 1997.
As discussed above, the State used this testimony to prove defendant's modus operandi. The
State introduced evidence of the 1997 robberies through Officer Habiak. Habiak testified to the
statements he received from five people: Moore, Krikvana, Mireles, Officer Sneathan, and
Officer Deheer. Habiak testified that Moore told him that a black man in a gray jacket knocked
her down and took her purse, and that Krikvana identified defendant as that man. Habiak
testified that Mireles told him that a man knocked her down and took her purse, which contained
a $7,500 check. Habiak testified that Officers Sneathan and Deheer told him that they arrested
defendant in response to Moore's robbery complaint and that he was in possession of a purse,
$44, and a $7,500 check made out to Mireles. Habiak did not witness any of these events.
¶ 51 The State introduced evidence of the 1994 robberies through Officer Hatton. Hatton
testified to the statements he received from four people: Defenbaugh, Zaye, Pulido, and Officer
Contrarez. Hatton testified that Defenbaugh told him that defendant entered her garage, knocked
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her down, and took her purse. Hatton testified that Zaye told him that a man knocked her down
in the parking lot of a grocery store and took her purse, and that Pulido told him that defendant
was the man who robbed Zaye. Hatton testified that Officer Contrarez stopped defendant driving
a car matching a description of the robber's car and that defendant fled. Hatton did not witness
these events.
¶ 52 Defendant argues that Habiak's and Hatton's testimony recounting statements from these
nine people constituted inadmissible hearsay. Hearsay is an out-of-court statement offered in
court to prove the truth of the matter asserted in the statement. Caffey, 205 Ill. 2d at 88.
Conversely, "testimony about an out-of-court statement which is used for a purpose other than to
prove the truth of the matter asserted in the statement is not hearsay." People v. Banks, 237 Ill.
2d 154, 180 (2010). Our supreme court has illustrated the distinction with the following example:
"[W]itness A testif[ies] that 'B told me that event X occurred'. If A's testimony is offered
for the purpose of establishing that B said this, it is clearly admissible—if offered to
prove that event X occurred, it is clearly inadmissible ***. " People v. Carpenter, 28 Ill.
2d 116, 121 (1963).
Hearsay statements are generally excluded because of the lack of opportunity to cross-examine
the declarant. People v. Peoples, 377 Ill. App. 3d 978, 983 (2007). In this case, if the State used
the out-of-court statements regarding the 1997 and 1994 robberies to prove that those robberies
actually occurred, those statements were hearsay.
¶ 53 The State contends it did not use the statements to prove the truth of the matter asserted.
Rather, the State argues, it used them to prove defendant's modus operandi. As we explained
above, modus operandi is an exception to the rule that other-crimes evidence is inadmissible.
Pikes, 2013 IL 115171, ¶ 11. Even if other-crimes evidence is otherwise admissible, however, it
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may still "be excluded because it is offered in the form of a hearsay statement that does not meet
a recognized exception to the hearsay rule." People v. Dabbs, 239 Ill. 2d 277, 289 (2010); see
also People v. Patterson, 2013 IL App (4th) 120287, ¶ 59 ("other-crimes evidence may also be
excluded if *** offered in the form of a hearsay statement not meeting an exception to the
hearsay rule"); People v. Kinnett, 287 Ill. App. 3d 709, 715 (1997) (testimony admitted under an
exception to the bar on other-crimes evidence may still be barred as hearsay).
¶ 54 The State relies on People v. Moss, 205 Ill. 2d 139 (2001), and People v. Lovejoy, 235 Ill.
2d 97 (2009), in support of its contention that it did not use the statements regarding the 1994
and 1997 robberies to prove the truth of the matter asserted. In Moss, the defendant was
convicted of the murder of his ex-girlfriend and her daughter while he awaited trial on charges
that he sexually assaulted his ex-girlfriend's daughter. Moss, 205 Ill. 2d at 144. The State's
evidence showed that the defendant instructed his mother and aunt to kill his ex-girlfriend and
her daughter so that they could not testify against him in the sexual assault trial. Id. at 145-46.
The State presented evidence of statements the daughter had made to her mother, to the police,
and to a doctor describing the defendant's sexual assault. Id. at 154-56. Defendant averred that
the evidence of these statements describing the sexual assault was inadmissible hearsay. Id. at
158-59.
¶ 55 The Moss court found that these statements were not used to prove the truth of the matter
asserted, i.e., that defendant had sexually assaulted his ex-girlfriend's daughter. Id. at 159-60.
The court noted that the State's theory was that the defendant had ordered his mother and aunt to
kill his ex-girlfriend and her daughter so that they would not testify against him regarding the
sexual assault. Id. at 160. In other words, his motive to kill them was to prevent them from
testifying. Id. The Moss court found, therefore, that the out-of-court accusations "were not
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offered to prove that the sexual assault actually occurred; they were offered to prove defendant's
motive." Id.
¶ 56 In Lovejoy, the defendant was convicted of murdering his stepdaughter. Lovejoy, 235 Ill.
2d at 103. At the defendant's murder trial, the State introduced evidence of statements made by
defendant's stepdaughter to her mother, her neighbor, medical personnel, and the police accusing
the defendant of sexually assaulting her. Id. at 132-35.
¶ 57 The Lovejoy court found that the defendant's stepdaughter's statements were not hearsay.
Id. at 138-39. The defendant conceded that his stepdaughter's statements were used to prove that
he had a motive to murder her. Id. at 132. The court noted that the statements were not used for
the truth of the matter asserted, i.e., that the defendant had sexually assaulted his stepdaughter.
Id. Rather, the State simply used the statements to prove that the defendant had a motive to kill
her and silence her accusations. Id. at 139. The court concluded that the statements were not
hearsay. Id. at 138-39.
¶ 58 In both Moss and Lovejoy, the State used evidence of the victims' out-of-court statements
accusing the defendants of sexual assault to prove the defendants' motives to kill the victims. In
both cases, the State's theory was that the defendants killed their victims to avoid the
consequences resulting from their victims' accusations. Regardless of the truth or falsity of the
out-of-court accusations, the mere fact that the victims made them gave the defendants reason to
fear that they would be punished for sexual assault. Even if the victims had been lying about the
assaults, the defendants would have had a motive to kill them and prevent them from testifying.
The relevance of the out-of-court statements of the victims did not hinge upon the truth of the
victims' allegations; the relevance of those statements stemmed from the mere fact that the
victims made the accusations. See Michael H. Graham, Graham's Handbook of Illinois Evidence
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§ 800.2 (10th ed. 2010) ("[T]o the extent that an out-of-court statement is relevant simply
because of the fact it was said, the statement is not [hearsay].").
¶ 59 In this case, however, the trial court considered the out-of-court statements as evidence of
defendant's modus operandi, not defendant's motive. That fact distinguishes this case from Moss
and Lovejoy. Evidence of a defendant's modus operandi serves to prove a defendant's identity.
See People v. Dupree, 339 Ill. App. 3d 512, 520 (2003) ("[M]odus operandi evidence is not
proper where identity is not at issue."); Howard, 303 Ill. App. 3d at 730 ("The use of modus
operandi evidence is especially proper when the defendant's identity is a central issue in the
case."). The reason is that, if one crime is committed in a unique way, it is more likely that a
subsequent crime committed in the same way was done by the same person. Illgen, 145 Ill. 2d at
373. In order for testimony to be relevant to prove a defendant's modus operandi, the facts
described by that testimony must have been true. If the facts were not true—if there was no
unique pattern of crimes—then no modus operandi existed, and there is no support for the
contention that this evidence suggests that defendant was the offender. Evidence proving a
modus operandi, unlike evidence proving a motive, must be true to be relevant.
¶ 60 In this case, the trial court admitted the out-of-court statements of Moore, Mireles,
Krikvana, Defenbaugh, Zaye, Pulido, Sneathan, Deheer, and Contrarez to prove that defendant
had a modus operandi of robbing older women as they came home from the grocery store. The
State used this evidence to prove that it was defendant who robbed Schenck. If the out-of-court
statements describing the unique facts of the prior robberies were untrue, then defendant did not
have the claimed modus operandi. If defendant did not have a modus operandi, evidence of the
prior robberies would make it no more likely that defendant robbed Schenck. In sum, the truth of
the matter asserted in the out-of-court statements—that defendant robbed Moore, Mireles,
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Defenbaugh, and Zaye—was essential to their being used to prove defendant's modus operandi.
We find the State's reliance on Moss and Lovejoy to be misplaced.
¶ 61 Our supreme court's decision in People v. Cloutier, 178 Ill. 2d 141 (1997), bolsters our
conclusion. In Cloutier, the defendant was convicted of first-degree murder. Id. at 147. At the
defendant's capital sentencing hearing, the State presented the testimony of a police detective
who recounted conversations he had with two women who reported being attacked by the
defendant. Id. at 149-50. Both of these women told the detective that the defendant forced them
into his car, tore their clothes off, and showed them the body of his murder victim. Id. On appeal,
the defendant argued that this testimony was inadmissible hearsay. Id. at 154. The State argued
that it used the testimony to prove defendant's state of mind—"that [the] defendant displayed the
victim's body *** in an effort to force them to 'submit to his wishes'"—not for the truth of the
matter asserted. Id. at 155.
¶ 62 The Cloutier court found that the detective's testimony about his conversations with the
two women was hearsay. Id. The court stated, "Unless the out-of-court statements by [the two
women] were true, they could have no bearing on [the] defendant's mental state." Id. The court
noted that, in order to prove that the defendant displayed the victim's body to compel the two
women to comply with him, defendant actually had to have shown them the body. Id. Thus, the
women's statements "necessarily depended on the truth of the matter asserted." Id.
¶ 63 In this case, like Cloutier, the statements at issue only bore on defendant's modus
operandi insofar as they were true. Defendant would have had no modus operandi unless he had
actually engaged in a series of robberies of older women as they returned home from the store.
Habiak and Hatton's testimony about their conversations with Moore, Mireles, Krikvana,
Defenbaugh, Zaye, Pulido, Sneathan, Deheer, and Contrarez would have had no bearing on
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defendant's modus operandi unless their statements describing the robberies were true. Yet,
because this evidence was from police officers who did not witness the crimes, defendant could
not test the truth of those statements through cross-examination at his trial. We find that the out-
of-court statements of Moore, Mireles, Krikvana, Defenbaugh, Zaye, Pulido, Sneathan, Deheer,
and Contrarez constituted hearsay.
¶ 64 Even if a statement is hearsay, it may be admissible if an exception to the rule against
hearsay applies. Ill. R. Evid. 803, 804 (eff. Jan. 1, 2011); Caffey, 205 Ill. 2d at 88-89. The State
does not argue that any established hearsay exception applies; it maintains only that the
statements were not used to prove the truth of the matter asserted. The State cites no cases—nor
have we found any—in which an Illinois court recognized modus operandi as an exception to the
hearsay rule. For the reasons stated above, we decline to create an exception to the hearsay rule
for evidence of a defendant's modus operandi.
¶ 65 We must still determine whether the erroneous admission of the hearsay evidence was
harmless. The remedy for the erroneous admission of hearsay is reversal, unless the record
clearly shows that the error was harmless. People v. Miles, 351 Ill. App. 3d 857, 867 (2004).
"The admission of hearsay evidence is harmless error where there is no reasonable probability
that the [trier of fact] would have acquitted the defendant absent the hearsay testimony." People
v. Nevitt, 135 Ill. 2d 423, 447 (1990). The erroneous admission of hearsay evidence is harmless
error "when it is merely cumulative or is supported by a positive identification and other
corroborative circumstances." People v. Prince, 362 Ill. App. 3d 762, 776 (2005).
¶ 66 Courts consider three factors in determining whether an error was harmless: (1) whether
the error contributed to the conviction; (2) whether the other evidence in the case
overwhelmingly supported the conviction; and (3) whether the improperly admitted evidence
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was cumulative or duplicative of the properly admitted evidence. People v. Patterson, 217 Ill. 2d
407, 428 (2005). We consider each of these factors in turn.
¶ 67 With respect to the first factor, the admission of the hearsay evidence did not
significantly contribute to defendant's conviction. The trial court's findings show that it
"considered proof of other crimes" in making its decision. Yet the trial court discussed the
properly admitted testimony of Evans, Jokubaitis, and Officer Foley in detail. The trial court did
not discuss the individual testimony of the out-of-court declarants as probative of defendant's
guilt. Instead, it simply referred to the "proof of other crimes" as a whole. Some of that "proof of
other crimes"—Jokubaitis' prior testimony and defendant's admissions to Officer Habiak—was
admissible. While the improper evidence may have contributed to defendant's conviction, its
relative impact on the trier of fact appears slight.
¶ 68 As to the second factor, the other evidence in this case overwhelmingly supported
defendant's conviction. Evans positively identified defendant as the robber after observing him
for several minutes in broad daylight. At one point, Evans stood a few feet away from defendant
and spoke to him face-to-face as he taunted her. Evans saw the robber get into a white car that
resembled the rear of defendant's car. Evans identified defendant in a photo array, in a lineup,
and in open court. One month after Schenck was robbed, Officer Foley saw defendant driving a
white SUV in the same area, wearing a brown jacket similar to the one worn by Schenck's
robber. Officer Prendkowski testified that, about one month after Schenck's robbery, he saw
defendant follow an elderly woman from a grocery store, lose sight of her, then return to the
grocery store parking lot.
¶ 69 The admissible evidence of defendant's modus operandi bolstered Evans' identification.
Jokubaitis identified defendant as the man who punched her and took her purse when she arrived
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No. 1-12-1950
home from the grocery store. Although defendant had been acquitted of Jokubaitis' robbery, that
fact did not preclude the court from taking her identification into account. See Dowling v. United
States, 493 U.S. 342, 347-50 (1990) (evidence of prior offense, of which defendant was
acquitted, could be considered to prove defendant's identity in a subsequent trial). Officer Habiak
also testified that, when he questioned defendant, defendant confessed to robbing Moore and
Mireles. That testimony was not hearsay. Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011) (statement by
party-opponent is not hearsay). Although defendant's confession to the 1997 robberies could not
be used to prove his propensity to commit crimes generally, because the content of his statement
established factual similarities to the instant offense, it served as additional evidence of his
modus operandi, which corroborated Evans' identification.
¶ 70 Defendant's alibi evidence failed to contradict the State's evidence. Berton Downing
testified that defendant was with him on the day of the robbery, but that defendant took a lunch
break sometime between 11 a.m. and 1 p.m. Schenck's robbery occurred in the early afternoon.
In sum, the evidence overwhelmingly established that defendant took Schenck's purse.
¶ 71 As to the third factor, the improper evidence of defendant's 1994 and 1997 robberies was
largely cumulative of the properly admitted other-crimes evidence at trial. Jokubaitis testified
that defendant robbed her while she returned from the same grocery store defendant followed
Schenck home from. Officer Habiak's testimony that defendant admitted to robbing both Moore
and Mireles in 1997 was admissible as additional evidence of defendant's modus operandi, as it
was neither hearsay nor used to prove defendant's propensity for criminality. The trial court used
this evidence as proof of defendant's modus operandi, the same reason that the testimonial
hearsay was used. Although the improperly admitted hearsay offered additional proof of
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No. 1-12-1950
defendant's modus operandi, it served the same purpose as the properly admitted evidence from
Jokubaitis and Officer Habiak.
¶ 72 We need not reach defendant's claim that the admission of Habiak and Hatton's testimony
violated his rights under the confrontation clause because, even if it did, we would likewise
conclude that the error was harmless. See In re E.H., 224 Ill. 2d 172, 180 (2006) ("[T]he
appellate court *** must first consider whether it is necessary to consider [a] constitutional
question [if] the court ha[s] already ruled admission of the evidence harmless."). We are mindful
that "there is a somewhat higher bar for constitutional error than other trial error to be deemed
harmless." Id; see People v. Mullins, 242 Ill. 2d 1, 23 (2011) ("Because a defendant's interest are
heightened where constitutional error is at issue [citation], the burden of proof is on the State to
show beyond a reasonable doubt that the constitutional error did not affect the outcome of the
proceeding [citation]." (Internal quotation marks omitted.)). For the reasons stated above,
however, we find that the erroneous admission of the hearsay evidence in this case was harmless
under either standard.
¶ 73 Ineffective Assistance of Counsel
¶ 74 Defendant next contends that he was denied the effective assistance of counsel, where his
attorney (1) failed to make a speedy trial demand, and (2) failed to move to suppress eyewitness
identifications. The State responds that defendant was tried within the 120-day statutory period,
and a motion to suppress would have been futile.
¶ 75 The right to counsel guaranteed by the United States and Illinois Constitutions includes
the right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,
§ 8; Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance
of counsel claim, “[a] defendant must show that counsel's performance fell below an objective
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No. 1-12-1950
standard of reasonableness and that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” People v.
Manning, 241 Ill. 2d 319, 326 (2011) (citing Strickland, 466 U.S. at 688). Under the first
Strickland prong, a defendant must show that his trial attorney's performance was deficient.
People v. Enis, 194 Ill. 2d 361, 376 (2000). Under the second, a defendant must show that
counsel's deficient performance undermined confidence in the trial's outcome. Id. We turn first to
defendant's speedy trial claim.
¶ 76 Defendant argues that his attorney was ineffective, where she failed to make a speedy
trial demand. Defendant raises both constitutional and statutory speedy trial concerns. Both the
United States and Illinois Constitutions guarantee the right to a speedy trial. U.S. Const., amend.
VI ("[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial"); Ill. Const. 1970, art. I, § 8 ("In criminal prosecutions, the accused shall have the right ***
to have a speedy public trial by an impartial jury ***."). To assess a constitutional speedy-trial
claim, we must look to the record in its totality to determine whether the defendant has enjoyed
his constitutional right. People v. Crane, 195 Ill. 2d 42, 48 (2001). In part, we must examine four
factors: the length of delay, reasons for delay, prejudice (if any), and defendant's assertion of his
right. Id.
¶ 77 The statutory right to a speedy trial is not precisely equivalent to the constitutional right.
People v. Staten, 159 Ill. 2d 419, 426 (1994). In Illinois, "[e]very person in custody *** for an
alleged offense shall be tried by the court having jurisdiction within 120 days from the date he
[or she] was taken into custody unless delay is occasioned by the defendant ***. Delay shall be
considered to be agreed to by the defendant unless he or she objects to the delay by making a
written demand for trial or an oral demand for trial on the record." 725 ILCS 5/103-5(a) (West
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No. 1-12-1950
2010). Where, however, a person is in custody for more than one charge, he must be tried on the
first charge within 120 days and on the second or subsequent charges within 160 days from the
date of judgment in the first case. 725 ILCS 5/103-5(e) (West 2010). To succeed in a statutory
speedy trial claim, a defendant must show that he was not tried within the statutory period, and
he did not cause or contribute to the delay. Staten, 159 Ill. 2d at 426. When the parties agree, on
the record, to a continuance, the delay is attributable to the defendant. People v. Burchette, 257
Ill. App. 3d 641, 657 (1993).
¶ 78 Defendant was arrested on January 18, 2009, for both the Jokubaitis and Schenck
robberies. His trial in the Schenck case did not begin until August 31, 2011. In the interim,
defendant was tried in the Jokubaitis case and also agreed to many continuances. According to
the State, after accounting for the Jokubaitis trial and agreed continuances, 46 days of the speedy
trial period passed before defendant was tried in this case. According to defendant's calculation,
52 days had passed. Under either calculation, defendant was tried within the statutory period.
Defense counsel's performance cannot be adjudged deficient for her failure to make a futile
speedy trial demand. People v. Cordell, 223 Ill. 2d 380, 392-93 (2006).
¶ 79 Although defendant was in custody for a significant amount of time prior to his trial in
the instant case, that time was largely filled with discovery, pretrial motions, and trial in the
Jokubaitis case. Nothing in the record shows that counsel was unreasonable in agreeing to these
continuances or that the outcome of defendant's trial would have been different had counsel
objected to them. Defendant has thus failed to show that his trial attorney was ineffective for
failing to demand a speedy trial. People v. Phyfiher, 361 Ill. App. 3d 881, 887 (2005).
¶ 80 Defendant also claims that his trial counsel was ineffective for failing to move to
suppress Evans' identification of him. The State responds that counsel's performance was not
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No. 1-12-1950
deficient, because a motion to suppress would not have been successful and defendant did not
suffer prejudice. We agree that counsel was not ineffective because a motion to suppress
defendant's identification would not have succeeded.
¶ 81 "The vagaries of eyewitness identification are well-known; the annals of criminal law are
rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228 (1967).
Illinois mandates that photo array suspects "not appear to be substantially different from 'fillers'
or 'distracters' in the *** photo spread, based on the eyewitness' previous description of the
perpetrator, or based on other factors that would draw attention to the suspect." 725 ILCS
5/107A-5 (West 2010). Defendant bears the burden of proving that a pretrial identification was
impermissibly suggestive. People v. Brooks, 187 Ill. 2d 91, 126 (1999). Even where a defendant
meets this burden, the State may show by clear and convincing evidence that the identification
was based on the witness' independent recollection. Id. Where, as here, an ineffectiveness claim
is based on trial counsel's failure to file a motion to suppress, a defendant must establish that the
unargued motion is meritorious and that a reasonable probability exists that the trial outcome
would have been different had the evidence been suppressed. People v. Henderson, 2013 IL
114040, ¶ 15.
¶ 82 Here, defendant argues that both the photo array and the lineup were unduly suggestive.
As to the photo array, he complains that his photograph alone included the words "sentencing
information" at the bottom, and he appears to be wearing an Illinois Department of Corrections
light blue jumpsuit. We disagree. Two words appear at the bottom of defendant's photograph.
Although they appear to state, "sentencing information," those words are cut in half horizontally
and barely legible. More importantly, given their placement, the words do not clearly correspond
to defendant's photograph. The photographs also do not support defendant's contention that he
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No. 1-12-1950
"appeared to be wearing" an Illinois Department of Corrections jumpsuit; defendant's photograph
only depicts his head down to the top of his shoulders. In all, the six photographs in the photo
array are quite similar, each representing a black male with nearly the same build and slight
facial hair. The photo array provided little grounds for a motion to suppress.
¶ 83 The lineup is more problematic. Physically, the four lineup participants are fairly
similar—all black males of roughly the same build, hair, facial hair, and clothing. However,
defendant wore a brown parka, while the other three participants wore black jackets. The State
presented evidence that the offender in both the Jokubaitis and Schenck cases wore a brown
jacket. At trial, Evans testified that she identified defendant based in part on his jacket:
"Q. [W]hat did you recognize about the person you identified?
A. All his face, because I did see his face, and then also he was wearing the very same
jacket he wore on that day.
Q. This brown parka he has in the picture, that is the same coat he had on the day he
robbed Mrs. Schenck?
A. Yes."
Defendant argues that this unduly suggestive lineup placed a spotlight on defendant.
¶ 84 Even though the lineup procedures may have been suggestive, there was strong evidence
in this case that Evans identified defendant based on her own independent recollection. See
People v. McTush, 81 Ill. 2d 513, 520 (1980) ("While it is the defendant's burden to establish that
the pretrial confrontation was impermissibly suggestive [citation], once accomplished, the State
may nevertheless overcome that obstacle, by a clear and convincing showing, based on the
totality of the surrounding circumstances, that the witness is identifying the defendant solely on
the basis of his memory of events at the time of the crime." (Internal quotation marks omitted.)).
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No. 1-12-1950
When evaluating identifications, Illinois courts look to (1) the opportunity the victim had to view
the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the
witness's prior description of the criminal; (4) the level of certainty demonstrated by the victim
upon identification; and (5) the length of time between the crime and the identification. People v.
Slim, 127 Ill. 2d 302, 307-08 (1989) (citing Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
¶ 85 Here, Evans had ample opportunity to observe defendant, even speaking to him before he
fled. At one time, Evans stood face-to-face with defendant, only 7 or 10 feet away. She later
identified defendant in the nonsuggestive photo array before identifying him in the lineup. In
commenting on the lineup procedures, Evans stated that she first recognized defendant's face.
Given Evans' prior observation and identification of defendant, we cannot say that there is a
reasonable probability that the trial outcome would have been different had the suggestive lineup
identification been suppressed. Henderson, 2013 IL 114040, ¶ 15. Accordingly, we reject
defendant's ineffective assistance of counsel claims.
¶ 86 Reasonable Doubt
¶ 87 Defendant contends that the State failed to prove him guilty beyond a reasonable doubt.
The State must prove each element of an offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 358, 361-64 (1970). Where a defendant
alleges on appeal that the State failed to meet this burden, a reviewing court, considering the
evidence in the light most favorable to the prosecution, must determine whether any rational trier
of fact could have found beyond a reasonable doubt the essential elements of the crime. Jackson,
443 U.S. at 318-19. We must carefully examine the evidence, while considering that the trier of
fact saw and heard the witnesses. People v. Smith, 185 Ill. 2d 532, 541 (1999).
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No. 1-12-1950
¶ 88 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt
because its case relied on unduly suggestive identifications and inadmissible other-crimes
evidence. Defendant's argument merely reframes the issues we addressed above. Viewed through
the lens of reasonable doubt, the result here is the same. Considering the evidence in the light
most favorable to the prosecution, we believe a rational trier of fact could have found defendant
guilty beyond a reasonable doubt. As we stated above, there was strong evidence in this case that
Evans identified defendant based on her own independent recollection. As we have found Evans'
identification of defendant to be reliable, that evidence is alone sufficient to sustain defendant's
conviction. Slim, 127 Ill. 2d at 307. The properly admitted modus operandi evidence in this case
bolstered Evans' identification of defendant. We find that sufficient evidence was presented to
affirm defendant's conviction.
¶ 89 CONCLUSION
¶ 90 Based on the foregoing, we affirm defendant's conviction and sentence.
¶ 91 Affirmed.
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