People v. Braswell , 2019 IL App (1st) 172810 ( 2020 )

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Appellate Court Date: 2020.07.10
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People v. Braswell, 2019 IL App (1st) 172810Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMAL BRASWELL, Defendant-Appellant.
District & No. First District, Fourth Division
No. 1-17-2810
Filed December 26, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-05022; the
Review Hon. Ursula Walowski, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Jonathan Pilsner, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Brian A. Levitsky, and Ahmed Islam, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 Following a bench trial, defendant Jamal Braswell was found guilty of armed robbery with
a firearm and unlawful restraint, 1 then sentenced to a term of imprisonment of 21 years. On
appeal, defendant contends that the court erred in denying his motion to suppress where the
Arlington Heights police did not have probable cause to arrest him. He further asserts that the
court erred in finding that the State proved he was armed with a firearm at the time of the
offense where the witness did not sufficiently describe the firearm and the court instead relied
on her subjective belief that defendant had a firearm. Defendant maintains that his conviction
should therefore be reduced to simple robbery. For the reasons that follow, we affirm the
judgment of the circuit court of Cook County.
¶2 I. BACKGROUND
¶3 A. Motion to Suppress
¶4 Prior to trial, defendant filed a motion to quash his arrest and suppress evidence. In his
motion, defendant contended that on March 6, 2014, he was approached by two officers who
had “prior knowledge that defendant had an investigative alert for his arrest.” Defendant
asserted that the arrest was made without a warrant and his conduct prior to the arrest did not
constitute probable cause for an arrest. Defendant noted that after his unlawful arrest, he was
placed in a lineup. Defendant sought to suppress his identification in the lineup. In arguing on
defendant’s motion, defense counsel explained that two women were arrested in an Arlington
Heights Mariano’s grocery store on suspicion of passing counterfeit bills. Police also arrested
a third person inside the store who police believed was monitoring the two women passing the
counterfeit bills. Defense counsel further stated that after speaking to the three people, they
learned that they travelled to the store together in a vehicle that was parked in the parking lot.
Police discovered two other individuals in the parked vehicle, one of whom was defendant. All
five individuals were detained and transferred to the police station. The Arlington Heights
police officers later learned that there was an investigative alert from May 2013 for defendant
from the Chicago Police Department (CPD). The Arlington Heights police officers informed
the CPD that defendant was in custody. The CPD officers picked up defendant and placed him
under arrest for an armed robbery that occurred in March 2013. Defense counsel argued that
there was no probable cause to arrest defendant in connection with the passing of counterfeit
bills and there was also no probable cause for the Arlington Heights officers to hold defendant
until the CPD arrived to arrest him.
¶5 Arlington Heights investigator Eric Sloan testified that when he arrived at work on March
6, 2014, he was informed that patrol units had been dispatched to Mariano’s because there was
an “ongoing active fraudulent activity investigation.” Investigator Sloan explained that in the
days leading up to this incident, other police departments in the area were circulating
information that there was fraudulent money being passed at Mariano’s grocery stores. The
day before, the loss prevention team at the Arlington Heights Mariano’s informed the
Arlington Heights Police Department that individuals had passed counterfeit money at the
grocery store.
1
The trial court merged the aggravated unlawful restraint count into the armed robbery count.
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¶6 Investigator Sloan learned that on March 6, 2014, the loss prevention team at the Arlington
Heights Mariano’s called the Arlington Heights Police Department regarding two individuals
attempting to use counterfeit bills. Two Arlington Heights police officers responded to the call
and arrested three individuals inside the store, two attempting to pass the counterfeit bills and
one monitoring them, and two individuals, including defendant, in a vehicle parked outside.
Investigator Sloan testified that the officers who responded to the call “learned there was a
vehicle in the parking lot in which [defendant] was located” and the “five subjects in total had
come to the location in that vehicle.” Investigator Sloan testified that defendant was not in the
Mariano’s and did not attempt to use any counterfeit bills that day in Mariano’s, but he was
seated in the vehicle in which the other individuals had driven to the grocery store. At the
police station, defendant provided the officers with a fake name, but he had no identification.
Accordingly, the officers conducted a fingerprint inquiry, which revealed defendant’s identity.
¶7 The officers then conducted a computerized inquiry, which revealed that there was an
investigative alert for defendant for armed robbery in Chicago. Investigator Sloan contacted
Chicago police Detective Steven Buglio who had entered the investigative alert and notified
him that defendant was in custody. Sloan continued to investigate defendant and questioned
him and the woman who was found in the vehicle with him. The woman told Investigator Sloan
that she was defendant’s girlfriend and that defendant was the organizer of the counterfeit
money scam. Despite this information, at the conclusion of his investigation, Investigator Sloan
determined that defendant would not be charged for anything related to the counterfeit money
scheme. Investigator Sloan therefore turned defendant over to Detective Buglio, who had
arrived at the Arlington Heights police station to retrieve defendant before Investigator Sloan
had concluded his investigation.
¶8 Detective Buglio testified that on March 19, 2013, he was assigned to investigate an armed
robbery that occurred at a currency exchange on South Ashland Avenue in Chicago. When he
arrived on the scene, he spoke to Rosalva Acosta, who told him about the armed robbery.
Acosta described three offenders, one of whom was the person who had the gun. Acosta gave
Detective Buglio a physical description of the gunman, and there was a video that showed an
image of him. The gunman did not have a mask and was wearing a dark jacket with a white
stripe on it. Detective Buglio also reviewed surveillance footage from nearby police
observation device cameras. A witness also came forward and provided Detective Buglio with
information regarding the license plate for a vehicle that was parked near the currency
exchange at the time of the robbery. Detective Buglio learned that the vehicle was a Ford
Explorer with a temporary license plate from Wisconsin. Detective Buglio contacted the
Wisconsin authorities and informed them of the CPD’s interest in the vehicle.
¶9 Detective Buglio later learned that the vehicle was involved in an unrelated incident in
Wisconsin. Detective Buglio and his partners went to Wisconsin to examine the vehicle and
take photographs. Detective Buglio noted that the vehicle had some distinctive markings,
which they associated with the ABLA Homes 2 area. Detective Buglio observed the vehicle on
surveillance footage driving into the ABLA Homes complex in the early morning hours on the
day of the robbery. He then observed the occupants of the vehicle enter a nearby CVS. One of
2
ABLA Homes was a Chicago Housing Authority public housing development on the near west
side of Chicago.
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the occupants was wearing the same jacket worn by the gunman at the currency exchange
robbery.
¶ 10 Detective Buglio then went to the CVS and obtained the surveillance footage from the day
of the robbery. The footage showed the gunman wearing the jacket. One of Detective Buglio’s
partners recognized defendant from the neighborhood as the man in the jacket. Detective
Buglio generated a photograph array and showed it to Acosta who identified defendant as the
gunman. Detective Buglio then generated the investigative alert so that he would be aware if
defendant were stopped by the police. Detective Buglio testified that an investigative alert is a
notice to the police authorities that “a subject is wanted for something.” Detective Buglio later
learned that defendant’s two co-offenders in the armed robbery had been detained and had
given handwritten statements about the incident. Both statements implicated defendant in the
armed robbery.
¶ 11 In March 2014, Detective Buglio was contacted by officers from the Arlington Heights
Police Department who informed him that defendant was in their custody on an unrelated
matter. After the Arlington Heights police concluded their investigation of defendant,
Detective Buglio placed him under arrest. Afterward, defendant was placed in a lineup, and
Acosta identified him as the gunman at the robbery. Detective Buglio testified that he
conducted a lineup because when Acosta identified defendant in the photo array, she said she
needed to observe the offender in person to be sure of his identity.
¶ 12 In ruling on defendant’s motion, the trial court observed that there was no indication that
defendant was in the store passing counterfeit bills but noted that this was part of an ongoing
investigation on the part of the Arlington Heights Police Department with regard to the use of
counterfeit money in Mariano’s grocery stores. The court found the investigation of defendant
at the Arlington Heights Police Department “was not any violation of any Fourth Amendment
rights or warrant suppression.” The court noted that it was an ongoing investigation and the
three individuals in the store were in the same vehicle with defendant. With regard to the
investigative alert, the court described the process Detective Buglio undertook in order to
identify defendant as the gunman and considered the co-offender’s statements implicating
defendant in the robbery. The court found that there was probable cause for the investigative
alert. The court therefore denied defendant’s motion to suppress.
¶ 13 B. Trial
¶ 14 At trial, Acosta testified that in March 2013, she was employed at a currency exchange on
21st Street and Ashland Avenue. She arrived for work shortly before 8 a.m. that day and
noticed three black males coming toward her as she was entering the building. After she entered
the currency exchange, she noticed that one of the three black males had entered the store
behind her. She informed him that the currency exchange was not open yet, but he told her that
they were “here for the money.” Defendant then came into the store with a gun “[a]nd he
cocked it at that point.” Defendant was standing “inches” away from her. Acosta asked them
to not hurt her, but defendant told her that they were not “playing” and they wanted the money.
The two men directed Acosta to the back room of the currency exchange, which contained the
vault where the money was kept. Defendant followed her and kept the gun to her back.
¶ 15 Acosta opened the vault, and defendant started taking money from the vault and putting it
into a bag. At one point, defendant stood up and went to speak with the first man who had
entered the currency exchange. Once defendant walked out of the back room, Acosta closed
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the door behind him and locked it. A third black male then entered the currency exchange, they
“exchanged words,” and then all three men fled out of the building. Acosta pushed the silent
alarm button, informed security about the robbery, and then called the police. When the police
arrived, Acosta described the offenders to them. Acosta was able to identify defendant because
he was the only one not wearing a mask, although he had a hood on over his head. Acosta
testified that there was enough lighting in the currency exchange to clearly observe defendant’s
face. Acosta observed his “face features” and noticed that he was wearing a black jacket with
white stripes on the arms and had dreadlocks.
¶ 16 Detective Buglio contacted Acosta about three weeks later and showed her a series of
photographs of different individuals. Acosta identified defendant in the photograph array as
the second black male who entered the currency exchange with a gun. Acosta also identified
defendant in photographs from the currency exchange’s surveillance camera system. A year
later, Detective Buglio contacted Acosta again and asked her to meet with him at the police
station. There, she viewed a physical lineup and identified defendant as the individual involved
in the robbery in March 2013.
¶ 17 Heriberto Tafolla testified that at around 7:40 a.m. on March 19, 2013, he was sweeping
the sidewalk on the 1500 block of West Cullerton Street when he noticed a black truck carrying
three black males. Tafolla thought the vehicle was suspicious so he went inside and wrote
down the license plate number. A few days later, the CPD contacted Tafolla and he provided
the officers with the license plate number and a description of the vehicle.
¶ 18 Detective Buglio testified consistently with his testimony at the hearing on defendant’s
motion to suppress. He further testified that when he showed Acosta the photo array, she said
she would have to observe the individual in person to be positive that it was defendant. He
testified that “she didn’t want to judge it just on the photo” but noted that her identification of
defendant in the photo array was not tentative. Chicago police Sergeant John Considine
testified that he recognized defendant in the video surveillance footage. He testified that he had
“contact with [defendant] on different occasions” during his time with the CPD.
¶ 19 Following closing argument, the court found that the State had proved defendant guilty of
robbery beyond a reasonable doubt but deferred its ruling on whether the State had proven the
use of a firearm for the charge of armed robbery beyond a reasonable doubt. At a subsequent
court date, the court found that the State met its burden. The court noted that Acosta was
convinced that defendant had a firearm and made statements to the defendant about not hurting
her. The court concluded that Acosta obviously believed that defendant had a firearm. The
court also noted that Acosta testified that she was very close to the firearm and referred to
defendant “cocking” the firearm. Accordingly, the court found that the State had proved
defendant guilty of armed robbery with a firearm and aggravated unlawful restraint beyond a
reasonable doubt. The court subsequently sentenced defendant to a term of imprisonment of
21 years, the minimum allowable by statute.
¶ 20 II. ANALYSIS
¶ 21 On appeal, defendant contends that the court erred in denying his motion to suppress
because the Arlington Heights police did not have probable cause to arrest him. Defendant
asserts that there was no evidence presented showing that defendant had been in the store
passing counterfeit currency and the State failed to present evidence showing probable cause
for his arrest. Defendant also contends that the evidence presented was insufficient to prove
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that he was armed with a firearm when he committed the currency exchange robbery.
Defendant asserts that there was no firearm introduced at trial and that the court improperly
relied on Acosta’s subjective belief that defendant had a firearm. Defendant contends that his
conviction should therefore be reduced to simple robbery and that we should remand the cause
for resentencing.
¶ 22 A. Motion to Suppress
¶ 23 Defendant first contends that the court erred in denying his motion to suppress. Defendant
asserts that the only testimony about the Arlington Heights arrest came from Investigator
Sloan, who never explained defendant’s connection to the people inside the Mariano’s passing
the counterfeit currency. Defendant maintains that he therefore established a prima facie case
that his arrest was illegal and the burden then shifted to the State to prove that the arrest was
supported by probable cause. Rather than focusing on this burden, defendant asserts that the
State instead focused on the currency exchange robbery that resulted in the investigative alert.
Defendant contends that because the Arlington Heights officers did not have probable cause to
seize him at Mariano’s, the later discovery of the investigative alert could not cure that illegal
seizure. Defendant maintains that without the illegal seizure, he never would have been turned
over to Detective Buglio and Acosta never would have identified him in the lineup. Defendant
contends that the court therefore erred in denying his motion to suppress and should have
suppressed his identification by Acosta at the lineup.
¶ 24 1. Standard of Review
¶ 25 Our review of the trial court’s ruling on defendant’s motion to quash arrest and suppress
evidence presents questions of both fact and law. See People v. Luedemann, 222 Ill. 2d 530,
542-43 (2006). The trial court’s factual findings are given great deference and will not be
disturbed on review unless they are against the manifest weight of the evidence. People v.
Burns, 2016 IL 118973, ¶ 15. However, the court’s ultimate ruling on the motion is a question
of law, which we review de novo. Id. ¶ 16. At a hearing on a motion to quash and suppress, the
trial court is responsible for determining the credibility of the witnesses, weighing the
evidence, and drawing reasonable inferences therefrom. People v. Ballard, 206 Ill. 2d 151, 162
(2002).
¶ 26 2. Probable Cause
¶ 27 Probable cause for an arrest exists “when the totality of the facts and circumstances known
to the officer is such that a reasonably prudent person would believe that the suspect is
committing or has committed a crime.” (Internal quotation marks omitted.) People v.
Rodriguez-Chavez, 405 Ill. App. 3d 872, 875 (2010). Here, the facts known to the law
enforcement officers at the time showed that there was a counterfeit money scheme being
conducted at Mariano’s grocery stores. Inspector Sloan testified that three individuals were
inside the store and defendant and a woman were in a vehicle in the parking lot. Inspector
Sloan testified that the “five subjects in total had come to the location in that vehicle.” Under
these circumstances, the facts known to the officers were sufficient to lead a reasonably prudent
person to believe that defendant had committed a crime.
¶ 28 Defendant contends, however, that defendant’s connection to the three individuals inside
the store was never explained and in his reply brief directly challenges the State’s contention
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that there was evidence in the record that the five individuals arrived to the Mariano’s in the
same vehicle. Defendant asserts that Inspector Sloan did not testify that the other three
individuals travelled to the Mariano’s in the same vehicle and, in fact, such a contention
appears nowhere in the record. Despite defendant’s protestations, Investigator Sloan did, in
fact, testify that the “five subjects in total had come to the location in that vehicle.” In addition,
in arguing on the motion to suppress, defense counsel stated that “Arlington Heights police
officer’s [sic] spoke to the two ladies and the man detained inside the store and learned that
they travelled together in a car. That car was parked in the parking lot. And that there were two
other individual’s [sic] in the car in the parking lot. One of the individual’s [sic] seated in the
car in the parking lot was [defendant.]” Thus, not only did Investigator Sloan testify that all
five individuals arrived at the Mariano’s together in the same vehicle, defense counsel
acknowledged as much in her argument.
¶ 29 Defendant nonetheless asserts that the officers lacked probable cause to arrest him because
there was no suggestion that he was inside the Mariano’s or attempted to pass counterfeit
money. Probable cause to arrest can exist, however, where defendant was accountable for the
criminal conduct of others. See, e.g., People v. Smith, 258 Ill. App. 3d 1003, 1017-18 (1994).
Because the police had established defendant’s connection to the individuals inside the grocery
store using the counterfeit bills, they had sufficient facts that would lead a reasonable person
to believe that defendant had participated and was responsible or accountable for the
commission of a crime. Id. at 1018.
¶ 30 We find the circumstances in this case readily distinguishable from People v. Carnivale,
61 Ill. 2d 57 (1975), cited by defendant. In Carnivale, three defendants were arrested, but
Chicago police officers only possessed search warrants for two of the defendants. Id. at 57-58.
The two defendants were arrested in a hotel lobby. Id. at 58. The third defendant was also in
the hotel lobby, but the police did not have a warrant for his arrest or a warrant to search him.
Id. The three defendants were charged with various gambling offenses. Id. The circuit court
granted the third defendant’s motion to quash arrest and suppress evidence finding that there
was no probable cause to arrest him. Id. The supreme court affirmed that ruling, finding that
the third defendant’s “mere presence in the same hotel lobby with the other two defendants
whom the police suspected of gambling activities did not justify his arrest.” Id.¶ 31 Defendant asserts that the same result is warranted here where defendant’s “mere presence”
in the vehicle did not justify his arrest. Although defendant is correct that a suspect’s presence
near a crime scene, standing alone, is insufficient to establish probable cause, the defendant’s
location both before and after the commission of a crime “may properly be considered as
factors in determining” whether the police had probable cause to arrest defendant. People v.
Sims, 192 Ill. 2d 592, 617 (2000). Here, defendant was not merely in a vehicle parked in the
grocery store’s parking lot that happened to be near where the offenders were passing
counterfeit bills. Rather, he was in the same vehicle that the three offenders used to travel to
the grocery store and the vehicle the offenders were presumably going to use to leave the store
after committing the crime. Although his mere presence in a vehicle in the parking lot, standing
alone, was insufficient to justify his arrest, his location may properly be considered a factor in
determining whether probable cause existed and the other factors presented, as outlined above,
were such that a reasonable person could believe that defendant had participated and was
responsible or accountable for the commission of a crime. Accordingly, we find that the circuit
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court did not err in denying defendant’s motion to suppress.
¶ 32 3. Harmless Error
¶ 33 Even assuming the court erred in denying defendant’s motion, we would find any such
error harmless. An error is harmless where the result of the trial would have been the same
absent the error. People v. Melton, 2013 IL App (1st) 060039, ¶ 49. Defendant asserts that the
error was not harmless because Acosta testified that when she identified defendant in the photo
array, she was not sure if he was the offender and needed to observe him in person to be sure.
Defendant asserts that her identification was the “key evidence” that convicted defendant. We
do not find this argument persuasive.
¶ 34 Initially, we observe that Acosta did not testify that she was unsure of defendant’s identity
when she observed the photo array. Rather, in response to defense counsel’s questioning, she
testified that she did not recall any such uncertainty. In fact, it was Detective Buglio who
testified that he conducted a lineup because when Acosta identified defendant in the photo
array, she said she needed to observe the offender in person to be sure of his identity. The trial
court also tangentially addressed this issue in its ruling, finding that Acosta clearly identified
defendant in court. “[S]he looked right at the defendant and she identified him in court.” The
court also noted that defendant was “inches” away from Acosta during the robbery and her
attention was focused on defendant because he had a firearm and she asked him to not hurt her.
The lineup identification was thus not the “key evidence” in defendant’s conviction. Acosta
identified defendant in the photo array and identified him in court as the offender. Sergeant
Considine also testified that he recognized defendant in the video surveillance footage because
he had “contact with [defendant] on different occasions” during his time with the CPD.
Defendant’s identity was thus adequately established even without the lineup identification
that defendant sought to suppress and the result at trial would have been the same absent any
alleged error. We thus find that there was no error in the trial court and that any claimed error
on the part of the trial court in denying defendant’s motion to suppress would have been
harmless.
¶ 35 4. Investigative Alerts
¶ 36 Finally, we must address this court’s recent jurisprudence concerning investigative alerts.
As noted, Detective Buglio issued an investigative alert for defendant after voluminous
evidence indicated defendant’s involvement in the currency exchange robbery. Arlington
Heights police discovered that investigative alert after defendant’s arrest, which led to
defendant being turned over to Detective Buglio and his subsequent identification by Acosta
at the lineup. Defendant did not contest the propriety of the investigative alert in his motion to
suppress or in his opening brief before this court. However, defendant raised the issue
regarding the constitutionality of investigative alerts in his reply brief after a divided panel of
this court issued its opinion in People v. Bass, 2019 IL App (1st) 160640. The majority in Bass
concluded that an arrest is unconstitutional when it is based solely on an investigative alert,
even where the investigative alert is supported by probable cause. Id. ¶ 43. In reaching that
conclusion, the majority found that the Illinois Constitution required a warrant, based on
probable cause, to issue before an arrest could be made and that an investigative alert,
validating an arrest without the issuance of a warrant, violated the Illinois Constitution. Id.
¶ 62.
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¶ 37 Defendant contends that Bass controls in this case and terms it a “full-bore judicial
rejection” of investigative alerts. We decline to follow the reasoning or precedent of Bass and
find that Bass was incorrectly decided. Rather, we choose to adopt the view outlined by Justice
Mason’s partial dissent in that case. Setting aside issues raised by the dissents in Bass regarding
the majority’s decision to sua sponte address the constitutionality of investigative alerts (id.
¶ 110 (Mason, J., concurring in part and dissenting in part); id. ¶ 126 (Coghlan, J.,
dissenting)), 3 we disagree with the majority’s finding that investigative alerts are contrary to
the mandates of the Illinois or United States Constitutions.
¶ 38 In Bass, the majority based its decision on the notion that the CPD improperly utilized
investigative alerts in an effort to circumvent the process of obtaining a warrant and arrest
individuals without establishing probable cause to do so. Id. ¶ 62 (majority opinion). The
majority emphasized that its holding rested on the “structure of the investigative alert system.”
Id. ¶ 68. It is unclear, however, what the majority relied on in determining the “structure of the
investigative alert system.” There was no citation to authority or testimony as to how the
investigative alert came into being in Bass. Without any documentary or evidentiary support,
the Bass majority noted that the investigative alert system “parallels the warrant system,” and
allows law enforcement to obtain “warrant-like documents” but without the “safeguard that
the framers of the Illinois Constitution found most important—an affidavit presented to a
neutral magistrate.” Id.
¶ 39 The flaw in the majority’s reasoning was correctly identified by the two dissenting opinions
in that case. That is, that arrests must be based on probable cause, not warrants as the majority
in Bass suggests. For example, section 107-2 of the Code of Criminal Procedure of 1963
permits a police officer to arrest a person when “[h]e has a warrant commanding that such
person be arrested” or “[h]e has reasonable grounds to believe that the person is committing
or has committed an offense.” (Emphasis added.) 725 ILCS 5/107-2(1)(a), (c) (West 2014).
Thus, a police officer may arrest an individual without a warrant where the officer reasonably
believes that the person is committing or has committed an offense. In other words, when they
have probable cause to do so. Rodriguez-Chavez, 405 Ill. App. 3d at 875. The majority in Bass
suggests, however, that even where a police officer has probable cause to arrest an individual,
such arrest is unconstitutional if any police agency has issued an investigative alert. This
creates the somewhat paradoxical situation where police may arrest an individual without a
warrant and without an investigative alert if they have probable cause to do so, but that same
arrest becomes unconstitutional if police issue an investigative alert based on the same facts
that gave rise to the probable cause. In other words, the investigative alert must have a proper
basis to show probable cause. This inconsistency was identified by Justice Mason in her dissent
in Bass, 2019 IL App (1st) 160640, ¶ 120 (Mason, J., concurring in part and dissenting in part)
(“And I can perceive no principled basis on which to hold that police may arrest an individual
without a warrant and without an investigative alert as long as they have probable cause, but if
they issue an investigative alert based on the same facts giving rise to probable cause, they
have run afoul of the Illinois Constitution.”), but not acknowledged by the majority in its
3
Justice Mason filed an opinion dissenting in part and concurring in part with the majority’s
judgment. Following Justice Mason’s retirement, Justice Coghlan replaced Justice Mason on the panel.
After being added to the panel, Justice Coghlan adopted Justice Mason’s dissent and also dissented
from the majority’s supplemental opinion on denial of rehearing.
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response to her dissent (id. ¶¶ 86-95 (majority opinion)). Accordingly, we disagree with the
majority in Bass and find that the law enforcement officers’ use of an investigative alert in this
case did not run afoul of the Illinois Constitution.
¶ 40 B. Sufficiency of Firearm Evidence
¶ 41 Defendant next contends that the evidence presented at trial was insufficient to prove
beyond a reasonable doubt that defendant was armed with a firearm during the robbery.
Defendant points out that the only evidence regarding the firearm came from Acosta, who did
not offer any details about the firearm, such as the type of firearm, the color, or the shape.
Defendant asserts that the trial court erred in giving too much deference to Acosta’s subjective
belief that defendant had a firearm, rather than the objective evidence presented. Defendant
contends that we should reduce his conviction to simple robbery and remand for resentencing.
¶ 42 At trial, Acosta testified that after the first offender came into the currency exchange,
defendant entered with a gun. Defendant then “cocked” the gun, and Acosta asked them to not
hurt her. Defendant was standing “inches” away from her. During closing argument, defense
counsel argued that the State had failed to prove defendant’s use of a firearm beyond a
reasonable doubt. Prior to issuing its ruling, the court addressed defense counsel’s contention
stating that it found Acosta to be a credible witness. Observing a person cocking a gun is not
a subjective manifestation of one’s thought process; it is an objective event viewed by the
observer.
¶ 43 After the trial court entered its ruling, defendant filed a motion for a new trial, again
contending that the State failed to prove that defendant used a firearm during the commission
of the robbery beyond a reasonable doubt. In denying that motion, the trial court noted that
Illinois precedent did not require the State to prove that the alleged firearm is an actual firearm.
The court acknowledged that there were no specific facts about the firearm presented in this
case but found that Acosta’s testimony was credible and reasonable. The court observed that
Acosta was “clear that what she saw the defendant point at her was a weapon and I found that
she had—was credibility [sic] as to her opportunity to observe everything and describe what
happened to her.” Thus, the trial court found that the State had sufficiently proven the use of a
gun beyond a reasonable doubt based on Acosta’s credible testimony. It is axiomatic that, in a
bench trial, the credibility of the witnesses and the weight to be given their testimony is a
matter for the trial court. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). A reviewing court
must allow all reasonable inferences from the record in favor of the prosecution and will not
overturn the decision of the trier of fact unless the evidence is so unreasonable, improbable, or
unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Beauchamp, 241
Ill. 2d 1, 8 (2011); People v. Smith, 185 Ill. 2d 532, 542 (1999). Here, we find that Acosta’s
testimony regarding the firearm was not so unreasonable, improbable, or unsatisfactory that it
raised a reasonable doubt that defendant used a firearm during the robbery.
¶ 44 Defendant contends, however, that this contention is not an attack on Acosta’s credibility
but rather a contention that the court erred in placing too much emphasis on Acosta’s subjective
belief that defendant was using a firearm. In support of that argument, defendant relies on
People v. Ross, 229 Ill. 2d 255 (2008). In Ross, the defendant was convicted of armed robbery.
Id. at 258. The victim testified at trial that he was walking home when he encountered
defendant, who demanded his wallet and pointed “ ‘a black, very portable gun’ ” at him. Id.The victim added that the gun was “ ‘small’ ” and “ ‘something you can conceal.’ ” Id. Based
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on the additional evidence presented, the gun turned out to be a pellet gun. Id. Nonetheless, the
trial court found that the State had proved beyond a reasonable doubt that the gun was a
dangerous weapon because the victim clearly believed it was a dangerous weapon. Id. at 258-
59. On appeal, this court found that the State failed to prove beyond a reasonable doubt that
the pellet gun was a dangerous weapon, as required by the armed robbery statute (720 ILCS
5/18-2(a) (West 1998)) in effect at the time of the offense. Ross, 229 Ill. 2d at 260. The supreme
court affirmed, noting that the State never presented the gun or photographs of the gun into
evidence. Id. at 277. The supreme court stated that the “trial court incorrectly based its ruling
on the subjective feelings of the victim, rather than the objective nature of the gun.” Id. The
supreme court therefore found that the State had failed to prove that the gun was a dangerous
weapon beyond a reasonable doubt. Id.¶ 45 Defendant asserts that the reasoning in Ross is applicable here because the trial court
incorrectly based its ruling that defendant used a firearm on the subjective feelings of Acosta.
However, we find that the situation in this case is distinguishable from Ross. In that case, the
question presented was whether the weapon used by the defendant was a “dangerous weapon.”
Id. at 274. The supreme court found that it was not a dangerous weapon because the State did
not present evidence that the gun was loaded and operable or that the gun was capable of being
used as a club or bludgeon. Id. at 276. The evidence presented showed that the “gun” was
actually a small BB gun with a three-inch barrel. Id. at 276-77. Thus, the evidence presented
“actually precluded a finding that the ‘gun’ used by the defendant was a dangerous weapon.”
People v. Washington, 2012 IL 107993, ¶ 34. There was no such preclusive evidence presented
in this case. Rather, we find that the circumstances in this case more closely resemble those
present in Washington.
¶ 46 In Washington, the victim testified that the defendant pointed a gun at him but, as here, did
not provide any details regarding the gun. Id. ¶¶ 10, 18, 35. Similarly, no gun was entered into
evidence, and no gun was ever recovered. Id. ¶ 24. The Washington court distinguished Ross,
noting the evidence presented in Ross precluded a finding that the gun used by the defendant
was a dangerous weapon. Id. ¶ 34. In Washington, however, the supreme court observed that
the victim was abducted in broad daylight and testified that defendant pointed the gun at him,
which established that the victim had an “unobstructed view of the weapon defendant had in
his possession during the commission of the crimes. [The victim] testified that it was a gun.”
Id. ¶ 35. As such, the court found that given the victim’s unequivocal testimony and the
circumstances under which he was able to view the gun, the trier of fact could have reasonably
inferred that defendant possessed a real gun. Id. ¶ 36. The supreme court reaffirmed its finding
in Washington in People v. Wright, 2017 IL 119561, ¶ 76, finding that a court could rely on
the testimony of a single eyewitness in finding that the State had sufficiently met its burden of
proof.
¶ 47 Here, too, Acosta unequivocally testified that defendant had a gun. She testified that there
was sufficient lighting in the currency exchange at the time of the robbery and that defendant
was standing “inches” away from her while he held the gun. As the trial court noted, Acosta’s
attention was particularly focused on defendant because she asked him to not hurt her. As in
Washington, Acosta thus had an unobstructed view of the weapon defendant had in his
possession and testified that it was a gun. Acosta also testified that defendant “cocked” the gun
and held it to her back as she led him to the vault. Although Acosta did not provide further
details about the gun and no gun was ever recovered or entered into evidence, given Acosta’s
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unequivocal testimony, which the trial court found credible, a trier of fact reasonably could
have inferred that defendant possessed a real gun. Washington, 2012 IL 107993, ¶ 36; Wright,
2017 IL 119561, ¶ 77. Accordingly, we find that the court did not err in finding that defendant
used a firearm in the commission of the robbery and thus the State proved defendant guilty of
armed robbery with a firearm beyond a reasonable doubt.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the judgment of the circuit court of Cook County.
¶ 50 Affirmed.
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