People v. Ramirez

2013 IL App (4th) 121153FILED
October 4, 2013
NO. 4-12-1153 Carla Bender
th
4 District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon
JESUS RAMIREZ, ) No. 11CF28
Defendant-Appellant. )
) Honorable
) Patrick W. Kelley,
) Judge Presiding.
______________________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justice Turner concurred in the judgment and opinion.
Justice Pope specially concurred in the judgment, with opinion.
OPINION
¶ 1 In September 2012, a jury convicted defendant, Jesus Ramirez, of two counts of
attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2010)), armed violence (720
ILCS 5/33A-2 (West 2010)), and possession with intent to manufacture-deliver a controlled
substance (more than 900 grams of a substance containing cocaine) (720 ILCS 570/401(a)(2)
(West 2010)). The trial court later sentenced defendant to an aggregate 90 years in prison.
¶ 2 Defendant appeals, arguing that (1) the trial court erred by not granting his
"motion to quash arrest"; (2) plain error was committed when the trial court permitted a police
officer to testify about what he saw on a video recording; and (3) the State failed to prove him
guilty beyond a reasonable doubt of attempt (first degree murder). We disagree and affirm.
¶ 3 I. BACKGROUND
¶ 4 In January 2011, the State charged defendant as earlier stated. The two attempt
(first degree murder) charges arose from defendant's pointing a loaded handgun at each of two
uniformed police officers and pulling the trigger.
¶ 5 A. Defendant's "Motion To Quash Arrest"
¶ 6 In May 2011, defendant filed a motion "pursuant to 725 ILCS 5/114-12 [(West
2010)]," requesting the trial court to "quash the defendant's arrest." That motion, in its entirety,
reads as follows:
"1. The defendant was detained and arrested by officers of
the McLean County Police Department at approximately 1:35 a.m.
on the 13th day of January, 2011.
2. The detention, arrest and seizure of the defendant were
without exigent circumstances, without a warrant, and without
consent and were, therefore, illegal.
3. At the time of his arrest and/or detention, the defendant
was not observed in the commission of a crime, nor did the police
have probable cause to believe the defendant had committed a
crime.
4. Said police officers did not have reasonable grounds to
believe that a warrant for the arrest of the defendant had been
issued in this State or in any other jurisdiction.
5. That the arrest and/or detention of the defendant violated
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the defendant's rights under the Fourth, Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I of the
1970 Constitution of the State of Illinois.
WHEREFORE, the [d]efendant *** prays this honorable
court to find that his arrest and/or detention was illegal, because of
the absence of authority or probable cause to effect it, and to allow
his Motion to Quash Arrest."
¶ 7 In June 2011, the trial court began a hearing on defendant's "motion to quash
arrest." (We note that neither the court nor the prosecutor raised any question regarding either
the appropriateness or the sufficiency of that motion.)
¶ 8 Defendant's sole witness was Officer Kent Hair of the Chenoa police department.
Hair testified that in the early morning hours of January 13, 2011, he saw a dark colored sports
utility vehicle (SUV) drive past him in the south lanes of Interstate 55 (I-55) without a rear
registration plate light. Hair followed the SUV and ultimately stopped it by turning on his
overhead lights, which also turned on the police car's dashboard-mounted video recorder. Hair
reviewed the video recording and confirmed that it accurately portrayed what happened during
the traffic stop. Based on the parties' agreement, the trial court viewed the video recording.
¶ 9 Hair testified that after he stopped the SUV, he walked to the passenger side and
spoke with the driver and passenger to tell them why he had stopped them. Hair asked for the
driver's identification and the SUV's registration. The driver identified himself as Jamaris
Torbert. The passenger, defendant, said the SUV was his, so Hair asked for his identification as
well. Hair then did a computer check and learned that (1) neither Torbert nor defendant had any
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outstanding arrest warrants and (2) Torbert had a valid driver's license.
¶ 10 Hair asked Torbert to get out of the SUV and then showed him the defective light
over the rear registration plate. Hair noticed that both Torbert and defendant were very nervous,
would not make eye contact, and were visibly shaking as he spoke to them.
¶ 11 During his conversations with Torbert and defendant, Hair asked them whether
the SUV contained drugs or anything illegal. They both answered, "No." Hair explained that
whenever he stops a car, whether for a speeding ticket or a written warning for a defective
registration light, he is always looking for narcotics. If a canine unit had been available, he
would have requested one. Instead, Hair asked Torbert to accompany him to his police car,
intending simply to write Torbert a warning ticket for the registration light and let him leave. As
he wrote the warning ticket, Hair wanted defendant to stay in the SUV's passenger seat so he
could not make any threatening moves toward Hair.
¶ 12 As Torbert sat in Hair's police car, waiting for Hair to issue the warning ticket,
defendant moved from the SUV's passenger seat to driver's seat and drove off. The video
recording showed defendant's movement as well as the ensuing chase.
¶ 13 The State and defendant filed written memoranda in support of their respective
positions regarding defendant's "motion to quash." Defendant asserted that the initial traffic stop
was not valid because, despite Hair's testimony, "the videotape of the stop clearly [showed] that
the rear registration light was illuminating the license plate." Defendant further contended, citing
People v. Sinclair, 281 Ill. App. 3d 131, 666 N.E.2d 1221 (1996), that "after the illegal stop," he
was "unlawfully detained by officer Hair." Defendant based this contention upon the fact that he
"was not free to leave the scene nor was he free to exit the vehicle" during the time that Hair was
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writing Torbert the warning ticket in the police car. We note that defendant concluded his
memorandum with the following prayer for relief: "WHEREFORE, the defendant prays this
honorable court to grant the motion to quash the arrest of the defendant."
¶ 14 In the State's response, the State asserted that the traffic stop was valid based upon
Hair's testimony. The State also contended that when a vehicle is stopped due to a traffic
violation, the police have a right to detain all occupants of that vehicle, including the driver and
all passengers.
¶ 15 The trial court denied defendant's motion, explaining that the court accepted Hair's
testimony that the light on the license plate was out. The court noted that the video recording
was not inconsistent with that conclusion, "given the reflective nature of license plates and the
fact that the police car [with its lights on] was directly behind the vehicle in question at the time
of the stop."
¶ 16 Regarding defendant's claimed detention, the trial court noted that the officer
invited Torbert back to speak with him in the police car. To the extent that defendant was
detained, it was because he was a passenger in the car as the officer spoke to Torbert. (The
record shows it was a cold winter's night and the SUV was then parked on the shoulder of a rural
portion of I-55.)
¶ 17 B. Defendant's Jury Trial
¶ 18 The pertinent evidence introduced at defendant's jury trial follows.
¶ 19 Wendee Ramirez testified that she was married to defendant in January 2011, and
she owned the SUV. As of January 2011, she and defendant had been either married or living
together for approximately 10 years. During that time, she never saw defendant in possession of
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any guns.
¶ 20 Hair testified consistently with his testimony at defendant's "motion to quash
arrest" hearing, adding that he asked Torbert if he had anything illegal inside the vehicle, like
illegal narcotics or guns. Torbert responded, "No." Leaving Torbert at the rear of the SUV, Hair
walked to the passenger side and asked defendant the same question. Defendant likewise said
no. Hair also spoke to defendant about having a canine come to the location of the stop.
¶ 21 As Torbert sat in Hair's police car, defendant sped away in the SUV. Hair
followed him for approximately 25 miles, traveling around 90 miles per hour. As Hair chased
the SUV, he was in radio contact with other law enforcement agencies. The video recording
from Hair's police car was played for the jury.
¶ 22 Other police officers from various central Illinois law enforcement agencies
testified about being part of the pursuit of the SUV. Sergeant Nathan Scott of the Williamsville
police department testified that he joined in the chase on I-55 and saw the SUV make a sharp
turn onto the off-ramp at the Stevenson Drive exit into Springfield, Illinois. Scott's police car
and other police cars followed the SUV onto the off-ramp, where it lost control, went into a spin,
and ended up stopping in the snowy median between the on-ramp and the off-ramp for Stevenson
Drive.
¶ 23 Scott's vehicle stopped about a car length behind the SUV and a police vehicle.
Scott observed defendant get out of the driver's side of the SUV with a silver handgun in his
hand. He pointed the gun toward Deputy Dickason, who was getting out of his police car. As
this happened, Scott was approximately 25 feet away. Defendant ran up to Deputy Dickason as
the deputy was exiting the police car, pointed the pistol at him, and "attempted to fire the gun."
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Scott explained as follows: "[Defendant's] hand—his finger was in the trigger, on the trigger, and
when he attempted to pull the trigger, the gun malfunctioned, and I could tell he was trying to fire
the gun because he was anticipating the recoil."
¶ 24 Scott explained that he was familiar with handguns and had received training
regarding them. He was his department's range officer. Scott explained further the concept of
"anticipating a recoil," as follows: "That's when you—pretend my hand has got a gun in it, and
you go to fire, you jerk anticipating that there is going to be recoil action against your hand
(indicating), and that's anticipating the recoil."
¶ 25 Scott testified that the gun appeared to malfunction. Defendant looked down at
the gun and then ran in between Scott's police car and the back side of the deputy's vehicle. As
he did so, defendant was "racking the slide back, attempting to chamber a round." Scott
estimated the distance between defendant and the deputy at the time defendant attempted to fire
the gun as under three feet.
¶ 26 Defendant ran toward the Drury Inn hotel, with several officers in pursuit. At no
time did defendant's weapon discharge, nor did the officers ever discharge their weapons. As
Scott approached the hotel, he saw defendant standing near its entrance with his handgun pointed
to his chin. As the officers talked to defendant, he threw his handgun down and surrendered.
¶ 27 Scott testified that he had an in-car camera that recorded his involvement in the
chase of the SUV. He said his camera was operating early that morning, and the video recording
he saw accurately depicted what he observed that night. The video recording, which contained
no audio, was then played for the jury.
¶ 28 Sergeant Christopher Russell of the Springfield police department testified that he
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participated in the effort to stop the SUV by driving to the on-ramp to I-55 from Stevenson
Drive. His purpose was to keep people from entering onto I-55 southbound in front of the
pursuit.
¶ 29 Russell observed the SUV traveling southbound at a high rate of speed. The
driver tried to take the Stevenson Drive exit ramp off that highway, but the SUV started spinning
and went off the exit ramp.
¶ 30 Russell got out of his police car on the driver's side, drew his weapon, and pointed
it at the SUV. As Russell did so, the driver's door opened and the suspect got out. He "side-
stepped a little bit, and then pointed a silver or chrome handgun at [Russell]." As the suspect did
so, a county deputy's vehicle pulled up, so Russell could not discharge his firearm because the
deputy was "behind where [his] line of sight was." The driver then turned, ran directly toward
the deputy's location and pointed his gun at the deputy. Russell watched as the suspect jumped a
fence, heading toward the hotel.
¶ 31 Dickason joined Russell in chasing after the suspect, who ran up to the hotel.
Russell saw defendant put the gun to his head while other officers were telling him to put the gun
down. Defendant ultimately threw his gun down and gave up.
¶ 32 Russell testified that he did not see the defendant pull the trigger when defendant
pointed the gun at him, nor did he see defendant rack his weapon. Russell observed all of that
only later when he watched the video, as he also did with regard to defendant's pointing the gun
at Dickason and pulling the trigger.
¶ 33 Deputy Dickason of the Sangamon County sheriff's department testified that he
participated in the chase on I-55 of the SUV and followed that vehicle onto the Stevenson Drive
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exit ramp. Dickason parked his police vehicle to block in the SUV where it had come to a stop
in a snowy area next to the exit ramp. As Dickason started to get out of his police car, he saw
defendant come from around the back of the SUV. Dickason yelled at him to get on the ground,
but defendant continued to run toward him and raised a silver handgun as he approached.
Dickason testified that defendant "attempted to pull the trigger as he was pointing it at me." At
that point, defendant was only five to seven feet away, and Dickason was able to see defendant
pulling the trigger. Nothing happened, although Dickason testified that defendant "looked like as
he was pulling the trigger, he was bracing for the recoil."
¶ 34 After defendant pulled the trigger and nothing happened, Dickason observed that
defendant "racked it—the slide back in order to—which causes another round to come into the
chamber." Defendant was looking at the gun as he did so. Defendant then ran from the scene,
and Dickason drew his weapon and chased defendant toward the hotel. When defendant got to
the hotel, he stopped running, and with several police officers yelling at him, he ultimately gave
up and threw his gun away. Before doing so, Dickason observed defendant attempt multiple
times to shoot himself.
¶ 35 After defendant's arrest, Dickason returned to his police car, where he had a drug-
sniffing dog. He got the dog out and had it sniff around and in defendant's SUV. After the dog
"hit on the back rear seat" of the vehicle, Dickason opened the trunk area and found a box of
illegal narcotics.
¶ 36 Sergeant Tim Mazrim of the Sangamon County sheriff's department testified that
he was involved in the chase of the SUV down I-55 at speeds that occasionally reached 100 miles
per hour. Mazrim saw defendant point his silver handgun at his chest and his head. Mazrim also
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saw defendant "racking the slide or basically putting a hand on the semi-automatic and he's
racking the slide, basically putting a round into the chamber." Mazrim explained that what he
was doing appeared to be a malfunction drill on a semiautomatic weapon. "Basically, [that's
when] we take like a tap and rack, make sure the magazine is seeded, and you move the slide to
[e]nsure that the bullet is seeded and the weapon's going to go off." He explained that the
purpose of racking the slide is to chamber a round into the weapon to make it ready to fire.
¶ 37 After defendant's arrest, Mazrim noticed a live 9-millimeter bullet lying near him
that the police collected as evidence.
¶ 38 A guest who was staying at the hotel in January 2011 testified that on the evening
of January 13, he found a 9-millimeter round lying in the hotel's driveway near its main entrance.
He picked up the round and gave it to hotel personnel, who ultimately turned it over to law
enforcement authorities.
¶ 39 Deputy James Hayes of the Sangamon County sheriff's department picked up the
gun defendant threw to the ground, which he identified as a Smith and Wesson 9-millimeter.
Hayes found one live round in the chamber and nine rounds in the magazine. Hayes testified that
when he picked the gun up off the ground, the safety was on. He explained that the gun had "a
decocker lever, and that it was in the decock position." He explained that this lever is called a
"safety" by laypeople, and when it was in the decock position, the gun would not fire.
¶ 40 A forensic scientist with the Illinois State Police crime lab specializing in firearm
tool mark identification testified that she tested the gun and found that its magazine's capacity
was 15 rounds plus 1 in the chamber. She determined that some of the cartridges shown to her
had been in the gun ready to be fired. She also explained the general operation of the gun with
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the safety both on and off.
¶ 41 Another forensic scientist testified that she examined the contents of the box
retrieved from defendant's vehicle and concluded that the substance was cocaine of a high purity.
The substance weighed just under 1,000 grams.
¶ 42 Defendant was the only witness to testify on behalf of the defense. He explained
that his father and older brother taught him about guns and how to use them carefully. He was
familiar with safeties on handguns.
¶ 43 Defendant testified that he did not know Torbert before Torbert called him to be a
driver for defendant to travel back to Springfield. Torbert was a cousin of one of defendant's
friends. Defendant wanted Torbert to drive because defendant did not have a valid driver's
license.
¶ 44 When the police pulled over the defendant's SUV near Chenoa, Torbert told
defendant that Torbert had a gun. As Torbert tried to reach for his gun, he dropped it, then
picked it up, and put it in the SUV's center console.
¶ 45 Defendant did not know there were any drugs in the SUV, but he panicked when
he saw Torbert take a seat in the police car because defendant "wanted to see [his] kids." So he
moved from the passenger's seat to the driver's seat and drove away. When he reached
Springfield, the SUV came to a stop when he spun out of control. Because he panicked, he
grabbed the gun, but he made sure the safety was on because he did not want anybody to get hurt.
¶ 46 When he got out of the SUV, he pointed the gun because he "wanted the officer to
duck down so [he] could get away." When he pointed the gun, he was not trying to kill anyone,
and he did not pull the trigger. He admitted that he also pointed the gun at another officer but it
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was for the same reason—"[he] wanted him to get out of [his] way and duck." He did not pull
the trigger that time, either.
¶ 47 He admitted that he racked the gun, "but not with intent to kill anyone or shoot
anybody or hurt anybody." He explained that he racked the gun "[b]ecause I wanted them to
think that I was serious."
¶ 48 When he got to the front of the hotel, the gun's safety was still on. Defendant
knew the safety was on from the moment he got out of the car, and he never took it off. He
admitted pointing the gun at himself at the hotel but could not explain why. He testified that he
was not trying to kill himself.
¶ 49 On this evidence, the jury convicted defendant as stated. The trial court sentenced
defendant to 70 years in prison on each conviction of attempt (first degree murder) and 30 years
in prison on the conviction of possession with intent to manufacture-deliver a controlled
substance. The court ordered those sentences to run concurrently with each other. The court also
sentenced defendant to 20 years in prison on his conviction of armed violence and ordered that
sentence to run consecutively to the other three sentences, for an aggregate sentence of 90 years
in prison.
¶ 50 This appeal followed.
¶ 51 II. ANALYSIS
¶ 52 Defendant argues that (1) the trial court erred by not granting his "motion to quash
arrest"; (2) plain error was committed when the court permitted a police officer to testify about
what he saw on a video recording; and (3) the State failed to prove him guilty beyond a
reasonable doubt of attempt (first degree murder). We address defendant's arguments in turn.
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¶ 53 A. Defendant's "Motion To Quash Arrest"
¶ 54 Defendant contends that his arrest was illegal because the car in which he was a
passenger was stopped for a traffic arrest and he was not free to leave. Thus, he argues that his
"motion to quash arrest" should have been granted.
¶ 55 1. "Motions To Quash Arrest" Generally
¶ 56 Throughout this opinion, we have advisedly put the term "motion to quash arrest"
in quotation marks so as to avoid giving any legitimacy to such a motion. In fact, such motions
possess none. "Motions to quash arrest" are nowhere recognized in the Code of Criminal
Procedure of 1963 (Code) (see 725 ILCS 5/100-1 through 122-7 (West 2010)). Defendant's
"motion to quash arrest" stated that it was being made pursuant to section 114-12 of the Code
(725 ILCS 5/114-12 (West 2010)), but that is clearly wrong. That section, which is entitled
"Motion to Suppress Evidence Illegally Seized," sets forth the procedure to be used when a
defendant, who is "aggrieved by an unlawful search and seizure," seeks to suppress the evidence
that the police obtained as the result thereof. 725 ILCS 5/114-12(a) (West 2010). That section
contains no reference to "quashing arrests."
¶ 57 This court recently had occasion to discuss why the filing of a "motion to quash
arrest" makes no sense. In People v. Hansen, 2012 IL App (4th) 110603, ¶¶ 62-63, 968 N.E.2d
164, we wrote the following:
"[D]efendant entitled his motion a motion to 'quash arrest.' The
proper title for such a motion is 'motion to suppress evidence.'
*** Defendant was not asserting, nor should the court have found,
that his arrest was void. See Black's Law Dictionary 1278 (8th ed.
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2004) (to quash means '[t]o annul or make void'). Instead, what
defendant was asserting *** was that the arresting officer
improperly stopped defendant's vehicle because he did not have
reasonable suspicion to do so. When an improper traffic stop
occurs, the appropriate remedy is to suppress the evidence obtained
as a result on the ground that use of such evidence is a violation of
the defendant's constitutional rights.
Suppressing the evidence obtained by the police as a result
of an improper stop is the entirety of the relief to which a defendant
is entitled. That is also the only relief provided for in section 114-
12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/114-12 (West 2010)), which is entitled, 'Motion to Suppress
Evidence Illegally Seized.' Nothing in that section refers to or
deals with purported 'motions to quash arrest.' Because such
motions (1) are unnecessary to achieve a defendant's goal of
suppressing evidence, (2) add nothing to an analysis of whether a
motion to suppress based upon an allegedly illegal search or
stopping (as here) should be granted, and (3) can only add
confusion to such an analysis (after all, if a 'motion to quash arrest'
is granted, what relief does a defendant obtain beyond the
suppression of the evidence in question due to the grant (as in this
case) of defendant's motion to suppress?), defendants should stop
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filing such motions and should instead file only motions to
suppress evidence."
¶ 58 Apparently, as in Hansen, what defendant in the present case intended was a
motion to suppress based upon his allegedly illegal detention. However, because defendant's
motion was deficient (aside even from its inappropriate title), we will point out what such
motions should contain.
¶ 59 Motions to suppress filed pursuant to section 114-12 of the Code must clearly set
forth at a minimum the following:
(1) The title of the motion should be motion to suppress
evidence. That title will put both the State and the court on notice
of the motion's purpose.
(2) The motion to suppress must clearly identify the
evidence sought to be suppressed. Although this requirement is
not set forth explicitly in section 114-12 of the Code, its presence
is clearly evident. Before conducting a hearing on the motion, the
parties and the court must know what evidence is at issue. (As
Professor LaFave has written, "[t]he motion, which in many
jurisdictions must be made in writing, must of course identify the
items which the defendant seeks to suppress." 6 Wayne R. LaFave,
Search and Seizure § 11.2(a), at 42 (5th ed. 2012).) Experience
shows that when the admissibility of a particular piece of evidence
is challenged in a motion to suppress, the State will occasionally
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concede the motion by indicating that to avoid a problem, the State
will not offer that evidence in its case in chief. In any event, both
parties and the court need to know the evidence that is the focus of
the motion if for no other reason than to determine the relevancy of
the evidence offered at the hearing on the motion.
(3) The motion must state facts showing wherein the
search and seizure were unlawful. 725 ILCS 5/114-12(b) (West
2010).
¶ 60 In support of the above discussion of section 114-12 of the Code, we agree with
the following analysis:
"A motion to suppress is, in effect, a pleading to the extent
that it frames the issues to be determined in a pretrial hearing on
the motion. The fundamental role of a pleading is to give an
opposing party notice of the pleader's position concerning the facts
and law so that the opposing party can begin to prepare his defense.
A pleading thus both defines and limits the areas of consideration
at a trial or other evidentiary hearing ***, by enabling the court to
determine the relevance of offered evidence." State v. Johnson,
519 P. 2d 1053, 1057 (Or. Ct. App. 1974).
¶ 61 Last, regarding the subject of "motions to quash arrest" generally, we note that the
use of such motions has apparently not come to the attention of Professor LaFave despite his
more than 50 years on the faculty of the University of Illinois College of Law and his authorship
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of the nation's definitive treatise on the subject of search and seizure. That treatise is comprised
of six volumes containing thousands of pages and is universally recognized as the nation's
definitive work on search and seizure law. Indeed, it is frequently cited by the United States
Supreme Court whenever that Court is dealing with search and seizure cases. Yet, despite the
overall comprehensiveness of Professor LaFave's work, its thousands of pages, and his
professorship in the State of Illinois, his treatise on search and seizure law contains no mention
whatsoever of "motions to quash arrest." We conclude this absence is no oversight.
¶ 62 2. The "Motion To Quash Arrest" in This Case
¶ 63 The "motion to quash arrest" in this case failed to serve as a motion to suppress
evidence under section 114-12 of the Code. 725 ILCS 5/114-12 (West 2010). Its primary failure
was that it never identified the evidence it sought to suppress. Instead, the motion's prayer for
relief merely asked the court to find that defendant's "arrest and/or detention was illegal," and
therefore his "motion to quash arrest" should be granted, whatever that was supposed to mean.
¶ 64 That this omission was not an oversight is shown by the memorandum defendant
filed in support of his "motion to quash arrest." That memorandum similarly concludes with a
request that the court grant "the motion to quash the arrest" of defendant. It says nothing about
suppressing any evidence, nor does it identify what evidence the trial court should suppress.
¶ 65 Defendant's "motion to quash arrest" in this case is the "poster boy" for all that is
wrong with such motions when a defendant is actually seeking to suppress evidence (as we
suppose is the case here). After all, the motion (1) does not correctly state its purpose, (2)
identifies no evidence that the trial court should suppress if the court were to find that an
unlawful search or seizure occurred, and (3) fails to show wherein the search and seizure of that
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evidence (whatever it may be) was unlawful.
¶ 66 We earlier pointed out that defendant's "motion to quash arrest," assuming it was
really intended to be a motion to suppress evidence, fails to identify the evidence sought to be
suppressed. This glaring deficiency is not merely an academic concern. Instead, in this very
case, this court is left to wonder exactly what evidence was the object of defendant's motion. In
other words, assuming for the moment that defendant's "detention" in the SUV was unlawful as
Hair sat with Torbert in Hair's police car writing out the warning ticket, exactly what evidence
did the State derive from that unlawful detention that defendant sought to bar from being
admitted at trial? Surely that allegedly unlawful detention would not amount to a "get-out-of-jail
free card" for defendant when he later pointed his gun at Sergeant Russell and Deputy Dickason
and tried to fire it. Nor do we see how any allegedly unlawful detention of defendant in Chenoa
could possibly affect the later search by the police of his SUV in Springfield after he fled that
vehicle and tried to shoot the police officers. Perhaps if the trial court (even sua sponte) or the
State had challenged defendant to identify what evidence he was seeking to suppress by filing his
"motion to quash arrest," defense counsel's inability to do so might have been apparent even to
counsel himself, thus avoiding the waste of everyone's time that resulted from the hearing that
the court conducted in this case.
¶ 67 Assuming for the purpose of argument that (1) the object of defendant's motion to
quash arrest was the almost-kilogram of cocaine found later in his SUV and (2) his detention in
that SUV while the warning ticket was being written was unlawful, then serious questions would
still have arisen whether that evidence should have been suppressed at trial. For instance, in
Brown v. Illinois, 422 U.S. 590, 602-04 (1975), the United States Supreme Court noted that
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intervening circumstances may be relevant to purging the taint of an illegal arrest. Additionally,
the Supreme Court of Illinois recently held that the intervening flight from police can interrupt
the causal connection between an unlawful seizure and the subsequent discovery of evidence.
People v. Henderson, 2013 IL 114040, ¶¶ 44-47, 989 N.E.2d 192. In that case, the supreme court
ultimately held as follows:
"We conclude that defendant has failed to demonstrate that the gun
was the fruit of the poisonous tree. Defendant's flight interrupted
the causal connection between the officers' misconduct, which was
not flagrant, and the discovery of the gun. *** To conclude
otherwise *** is not only contrary to fourth amendment juris-
prudence, but is contrary to public policy. Permitting defendants to
flee from police under the circumstances of this case, and yet claim
the protections of the fourth amendment, would foster a lack of
cooperation with law enforcement officers, putting the police and
the public at risk." Id. ¶ 50, 989 N.E.2d 192.
¶ 68 Of course, at this point we could simply reject defendant's "motion to quash
arrest" for all the reasons previously stated and agree with the trial court's denial of that motion.
Nonetheless, despite that motion's manifest deficiencies, we choose to note that, on the merits,
we agree with the trial court's conclusion that Hair properly stopped the SUV and no improper
detention of defendant occurred. The evidence before the trial court showed that the traffic stop
occurred in the early morning hours on a cold winter's night on a rural portion of I-55. Having
the driver of the SUV sit in the police car as the officer wrote him a warning ticket did not
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amount to an unlawful detention of the passenger who stayed behind in the SUV. The sole case
defendant cites in support of his argument otherwise, which is People v. Sinclair, 281 Ill. App.
3d 131, 666 N.E.2d 1221 (1996), is entirely inapposite.
¶ 69 B. Defendant's Contention That Plain Error Was Committed When
the Trial Court Permitted a Police Officer To Testify About
What He Saw on a Video Recording
¶ 70 Defendant argues that plain error was committed when the trial court permitted a
police officer to testify about what he saw on a video recording. Specifically, Sergeant Russell
testified that when defendant exited his own vehicle, Russell saw defendant point the gun at him.
However, Russell did not see defendant pull the trigger. Russell also testified that after watching
a video of the event, he did see defendant appear to pull the trigger. Defendant cites People v.
Sykes, 2012 IL App (4th) 111110, 972 N.E.2d 1272, as holding that a court commits error when
it permits a witness to testify after having viewed a video regarding what the video recording
shows.
¶ 71 When Russell testified as described above regarding what he saw on the video
recording, defendant did not object. Accordingly, for this court to reverse his conviction
regarding the attempt (first degree murder) count involving Russell, we would have to conclude
that the admission of this testimony constituted plain error. Defendant appears aware of the need
to raise plain error regarding this testimony because he writes in his brief as follows: "It was
plain error to allow this testimony." That sentence constitutes the entirety of his plain error
"analysis."
¶ 72 Interestingly, Sykes also involved application of the plain-error doctrine, but
defendant has overlooked or disregarded the plain-error discussion in that case. In Sykes, we
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wrote the following:
" 'Under the plain-error doctrine, this court will
review forfeited challenges when: (1) a clear or
obvious error occurred and the evidence is so
closely balanced that the error alone threatened to
tip the scales of justice against the defendant; or (2)
a clear or obvious error occurred, and the error is so
serious that it affected the fairness of the defendant's
trial and the integrity of the judicial process,
regardless of the closeness of the evidence.' People
v. Taylor, 2011 IL 110067, ¶ 30, 956 N.E.2d 431.
The defendant has the burden of persuasion under both prongs of
the plain-error analysis. People v. Lewis, 234 Ill. 2d 32, 43, 912
N.E.2d 1220, 1227 (2009). Prior to determining whether plain
error occurred, however, we first determine whether error occurred
at all. Id. If error did occur, we then consider whether either prong
of the plain-error doctrine has been satisfied. People v. Sargent,
239 Ill. 2d 166, 189-90, 940 N.E.2d 1045, 1059 (2010)." Sykes,
2012 IL App (4th) 111110 ¶ 31, 972 N.E.2d 1272.
¶ 73 What this court wrote in Sykes is hardly new or novel. As the Supreme Court of
Illinois has reiterated at least 27 times over the past decade, a defendant bears the burden of
establishing plain error. Indeed, over the past four years alone, the supreme court has reminded
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defendants of this burden 16 times. See People v. Wilmington, 2013 IL 112938, ¶ 43, 938
N.E.2d 1025 ("The defendant bears the burden of persuasion under both prongs of the plain-error
analysis."); People v. Leach, 2012 IL 111534, ¶ 61, 980 N.E.2d 580-81 (defendant bears burden
of establishing plain error); People v. Adams, 2012 IL 111168, ¶ 21, 962 N.E.2d 415 (quoting
People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 480 (2005) (under plain-error analysis,
the defendant bears the burden of persuasion under both prongs)); People v. Kitch, 239 Ill. 2d
452, 461, 942 N.E.2d 1235, 1241 (2011) ("The defendant bears the burden of establishing plain
error."); People v. Sargent, 239 Ill. 2d 166, 189-90, 940 N.E.2d 1059 (2010) (under both prongs
of the plain-error analysis, the burden of persuasion rests with the defendant); People v.
Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010) ("In plain-error review, the burden
of persuasion rests with the defendant."); People v. Johnson, 238 Ill. 2d 478, 485, 939 N.E.2d
475, 480 (2010) ("A defendant seeking plain-error review has the burden of persuasion to show
the underlying forfeiture should be excused."); People v. Hillier, 237 Ill. 2d 539, 545, 931 N.E.2d
1184, 1188 (2010) ("Defendant has failed to meet his burden of establishing plain error.");
People v. Givens, 237 Ill. 2d 311, 329 n. 2, 934 N.E.2d 470, 481 n.2 (2010) ("In a plain-error
case, the defendant has the burden of persuasion before the appellate court on the threshold
question of whether plain, obvious error occurred."); People v. McLaurin, 235 Ill. 2d 478, 495,
922 N.E.2d 344, 355 (2009) ("In a plain-error review, the burden of persuasion remains on the
defendant."); People v. Lovejoy, 235 Ill. 2d 97, 148, 919 N.E.2d 843, 871 (2009) (defendant
bears the burden of persuasion under a claim of plain error); In re Samantha V., 234 Ill. 2d 359,
368, 917 N.E.2d 487, 494 (2009) ("Under both prongs of the plain-error test, the burden of
persuasion remains with respondent."); People v. Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220,
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1227 (2009) ("The burden of persuasion remains with the defendant under both prongs of the
plain-error test."); People v. Davis, 233 Ill. 2d 244, 274, 909 N.E.2d 766, 782 (2009) ("Under
plain-error review *** the defendant has the burden to persuade the court that the error was
prejudicial ***."); People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009) ("Under
both prongs of the plain-error doctrine, the burden of persuasion remains with defendant."); In re
M.W., 232 Ill. 2d 408, 431, 905 N.E.2d 757, 773 (2009) ("The defendant has the burden of
persuasion on both the threshold question of plain error and the question whether she is entitled
to relief as a result of the unpreserved error.").
¶ 74 We decline to provide the analysis that appellant should have provided. " '[A]
reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is
not simply a depository in which the appealing party may dump the burden of argument and
research.' " In re Marriage of Baumgartner, 237 Ill. 2d 468, 474-75, 930 N.E.2d 1024, 1027
(2010) (quoting Pecora v. Szabo, 109 Ill. App. 3d 824, 825-26, 441 N.E.2d 360, 361 (1982)).
Because defendant's brief is bereft of argument as to why the plain-error doctrine should apply to
this case, we deem that contention forfeited.
¶ 75 We could here conclude our discussion of defendant's plain-error contention, such
as it is, but we wish to point out three other matters.
¶ 76 First, the lawyer on appeal raising the contention that the trial court committed
plain error by permitting Russell to testify as he did is the same lawyer who represented
defendant at trial, standing by and saying nothing when this allegedly improper testimony was
given. Such a situation has probably happened before, but we do not recall any.
¶ 77 Second, not only did defense counsel fail to object to Russell's testimony, he
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elicited more of it on cross-examination, thus having Russell repeat it. The following is defense
counsel's cross-examination of Sergeant Russell pertaining to the issue of his viewing of the
video recording:
"Q. And as that gun is pointed at you twenty feet away, as
you just stated, officer's safety foremost in your mind, you never
saw him pull that trigger, did you?
A. No, I couldn't see that.
Q. And in fact, you have told the ladies and gentlemen of
the jury that you only saw that later when you looked at the video;
isn't that correct?
A. That is correct.
Q. Yet once you looked at that video, you never made
another supplement report saying that you recognized him to pull
the trigger, did you?
A. No.
Q. You never made to this date another report laying
out—you, as a supervisor who is trained in how to write reports,
and you actually train patrolmen that they should write reports, you
never made a supplemental report?
A. No. There was no need to because it was captured on
video.
Q. And you never stated you saw that and changed your
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opinion as to whether or not that trigger was pulled, did you?
A. No, because my opinion was based on that night, not
the review of the video.
Q. And you never changed with a supplemental—strike
that. I will ask you this way.
Anywhere in writing—other than today, have you ever said
in writing that you saw the [d]efendant on video or in person pull
the trigger in writing?
A. No, there was no need to.
Q. In fact, now that you say you saw the video, when he
first points the gun at you tell us how many times you see in that
video him pull the trigger.
A. In the video that was played here, I did not see it.
Q. There is another video?
A. No, as it was played today I could not see it.
Q. You saw it back in the station?
A. I saw it at the county building.
Q. At the county building, yes, sir, and you were able to
see it then?
A. I was able to see him rack the gun.
Q. Well, with all due deference I'm not asking about
racking. You testified a moment ago that you saw in the video him
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pull the trigger; is that correct?
A. What I saw was him rack the gun and anticipate the
recoil on the gun.
Q. So it is fair to say that you have never seen, either in
person or in a video, [defendant] ever pull the trigger?
A. From my point of view I couldn't see the trigger."
¶ 78 The above cross-examination reveals that defendant actively used the very
testimony the admission of which he now contends constituted plain error. Defendant's doing so
at the trial level places the evidence at issue under the doctrine of invited error. That is, a
defendant may not proceed in one manner and then later contend on appeal that the course of
action was in error. People v. Lucas, 231 Ill. 2d 169, 174, 897 N.E.2d 778, 781 (2008); see also
In re Marriage of Saheb, 377 Ill. App. 3d 615, 629, 880 N.E.2d 537, 548 (2007) ("To permit a
party to use, as a vehicle for reversal, the exact action which it procured in the trial court would
offend all notions of fair play and encourage duplicity by litigants." (Internal quotation marks
omitted.)); People v. Heard, 396 Ill. 215, 219-20, 71 N.E.2d 321, 323 (1947) ("an accused may
not ask the court to proceed in a given manner and then assign as error in a court of review the
ruling or action which he procured" (citing cases)).
¶ 79 Third, a consequence of this court's deeming the testimony at issue invited error is
that invited errors are not subject to plain-error review. People v. Sanders, 2012 IL App (1st)
102040, ¶ 30, 965 N.E.2d 1275; see also People v. Harding, 2012 IL App (2d) 101011, ¶ 17, 966
N.E.2d 437 (plain-error review is forfeited when the defendant invites the error; a defendant's
invitation or agreement to the procedure later challenged on appeal goes beyond mere forfeiture).
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¶ 80 C. Defendant's Claim That the State Failed To Prove Him
Guilty Beyond a Reasonable Doubt of Attempt (First Degree Murder)
¶ 81 Last, defendant contends that the evidence at trial did not prove him guilty beyond
a reasonable doubt of attempt (first degree murder). In making this argument, defendant
concedes that he pointed his gun at two police officers but he claims he did not do so with the
intent to kill, as is required to prove the offense of attempt (first degree murder). He contends
that at trial he explained his conduct by testifying that he just wanted the officers to duck and get
out of the way and that he never intended to kill them. We disagree.
¶ 82 As the court explained in People v. Teague, 2013 IL App (1st) 110349, ¶ 23, 986
N.E.2d 149, another attempt (first degree murder) case, when a defendant challenges the
sufficiency of the evidence, the appellate court's "standard of review is whether, when viewing
the evidence in the light most favorable to the State, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt." The Teague court further
explained that because intent to kill is a state of mind, it is usually difficult to establish by direct
evidence and is typically inferred from the surrounding circumstances. Id. ¶ 24, 986 N.E.2d 149.
We also note that a reviewing court "must allow all reasonable inferences from the record in
favor of the prosecution." People v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d 304, 308
(2004). Last, we note that the jury was not required to believe defendant's testimony regarding
either why he behaved as he did or what his intent was. People v. Comage, 303 Ill. App. 3d 269,
275, 709 N.E.2d 244, 249 (1999).
¶ 83 When the trial court denied defendant's motion for directed verdict at the close of
the State's case, the court commented upon the evidence regarding the attempt (first degree
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murder) charge concerning Russell, as follows:
"[T]here is circumstantial evidence showing that he did [pull the
trigger], from which a reasonable jury could infer that he pulled the
trigger with respect to Officer Russell, one, by virtue of [the] fact
that the [d]efendant did rack the slide, as indicated in the tape we
just viewed, immediately after pointing it at Officer Russell, and
typically that would happen, and I believe the evidence is that
would happen when somebody wanted to clear the weapon after a
misfire, racking the gun because it didn't fire for whatever reason,
hoping to fire the gun again shortly thereafter, so there would have
been no reason to clear the gun had an attempt to fire it not been
mad[e]. [A]t least that's an inference that can be drawn, reasonably,
from all the circumstances in the case."
¶ 84 We agree with the trial court that defendant's racking the slide constitutes strong
circumstantial evidence that he believed the gun had malfunctioned once he unsuccessfully
attempted to discharge it at the police. We also agree with the State's contention that defendant's
anticipating the recoil is strong circumstantial evidence that defendant was attempting to
discharge the handgun.
¶ 85 We note another similarity of this case with Teague in that the defendant in
Teague argued that no rational trier of fact could have found that he intended to kill the officers
because although he fired his rifle from a distance of only 40 feet, his shots hit neither the
officers nor their vehicle. The Teague defendant claimed that the only possible explanation "for
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his poor marksmanship [was] that he had no intent to hit the officers, and that he was only trying
to keep them at bay while he attempted to escape." Teague, 2013 IL App (1st) 110349, ¶ 25, 986
N.E.2d 149. The court in Teague rejected this argument, concluding as follows: "Poor
marksmanship is not a defense to attempted murder, and it is a question of fact for the jury to
determine whether defendant lacked the intent to kill or whether defendant was simply unskilled
with his weapon and missed his targets." Teague, 2013 IL App (1st) 110349, ¶ 27, 986 N.E.2d
149.
¶ 86 Like the court in Teague, we conclude that it was a question of fact for the jury in
this case to determine whether defendant was aware that the handgun he pointed at the police
officers had the safety on or whether defendant was simply unskilled with his weapon or got
confused in the excitement of the police confrontation. The jury resolved these issues against
defendant, and we see no reason whatsoever to second-guess its judgment.
¶ 87 III. CONCLUSION
¶ 88 For the reasons stated, we affirm the trial court's judgment. As part of our
judgment, we award the State its $50 statutory assessment as costs of this appeal.
¶ 89 Affirmed.
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¶ 90 JUSTICE POPE, specially concurring.
¶ 91 I agree with the majority defendant's conviction should be affirmed. I also agree
defendant's "Motion to Quash Arrest" was grossly deficient for failing to request the suppression
of any evidence. However, the entire discussion of motions to quash generally is unnecessary to
a resolution of the issues in this case. Thus, I part ways with the majority based upon its
sweeping dicta regarding motions to quash arrest and suppress evidence because no party has
raised or briefed this issue. Our court has not had the benefit of argument on this issue, and
consequently I believe we should refrain from wide-ranging generalizations concerning an
obviously entrenched practice among the criminal defense bar.
¶ 92 Without addressing the merits of the majority's discussion, I would note a cursory
Westlaw search "motion /p quash /p arrest" turns up 2,171 cases. Our supreme court has
established a standard of review for denials of motions to quash arrest. See People v. Redd, 135
Ill. 2d 252, 268, 553 N.E.2d 316, 322 (1990) ("[a] reviewing court will not disturb a circuit
court's ruling on a motion to quash arrest unless that finding is manifestly erroneous"); see also
People v. Gacho, 122 Ill. 2d 221, 234, 522 N.E.2d 1146, 1152 (1988); People v. Cabrera, 116 Ill.
2d 474, 485-86, 508 N.E.2d 708, 712 (1987).
¶ 93 While the majority cites to an absence of a mention of motions to quash arrest by
Professor LaFave in his noted treatise, others have recognized the practice as legitimate when
combined with a motion to suppress. "Criminal practice does not recognize a Motion to Quash
Arrest standing alone; rather, it only recognizes a Motion to Quash Arrest and to Suppress
Evidence." Timothy P. O'Neill, Criminal Defense Lawyers Need Broad Knowledge, Chicago
Daily Law Bulletin, Oct. 8, 2010, at 5.
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¶ 94 Last, by titling a motion as a motion to quash arrest and suppress evidence,
counsel alerts the trial court to the nature of the issue, i.e., an illegal arrest that may result in the
suppression of evidence. Where a court finds an arrest to have been unlawful, there may be
benefits that flow to the wronged citizen. Because the issue was not raised, briefed, or argued,
we have no idea what those benefits may be; thus, I would limit our discussion to the particular
motion filed in this case.
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