People v. Goné

dressed. Plaintiffs that their motion assert to reconsider addressed the legal new issues and “unexpectedly” authorities the raised disagree. at the initial on class certification. We Plaintiffs “legal based their motion reconsideration on error.” The motion simply attempted point why to out trial court it erred in interpreting existing authorities. The did motion not introduce new change factual matter or cite to a Consequently, the law. the mo- tion, substance, was not motion for independent new class Accordingly, appeal certification. the 30-day period did not start anew. reasons, For foregoing we allow defendant’s motion dismiss plaintiffs’ petition for appeal, appellate jurisdiction. leave to for lack of dismissed. appeal

Petition for leave JOHNSON, JJ, BYRNE GILLERAN concur. ILLINOIS,

THE PEOPLE THE Plaintiff-Appellee, OF STATE OF GONE, Defendant-Appellant. FRANCISCO J.

Third District No. 3 - 04-0938

Opinion August filed McDADE,J., concurring part. part dissenting in in Office, Ottawa, ap- Stephen Omolecki, Appellate for of State Defender’s of pellant. (Lawrence Glasgow, Attorney, M. Bauer and State’s of Joliet James Office, Arado, Attorneys Appellate of

Thomas D. of State’s Prosecutor’s both counsel), People. for the the court. opinion

JUSTICE CARTER delivered of aggravated jury guilty A J. Goné of found defendant Francisco (West (720 1.2(a)(2) 2000)), and, discharge firearm ILCS of a 5/24 — trial, guilty found him of unlawful a simultaneous bench the court ammunition possession possession and unlawful of weapon of (720 (West 1.1(a) 2000)). felon ILCS Defendant was sentenced 5/24 — prison to years aggravated concurrent terms of six discharge years four each for possession the unlawful convictions. Defendant ap- (1) peals, arguing he was denied right to due when he required to wear a stun belt without “manifest (2) necessity” hearing; plain error resulted when the court misin- jury structed how it was to consider identification evidence. We affirm.

BACKGROUND charged Defendant was six counts arising with offenses out of a drive-by shooting Lockport, Illinois, committed evening on the July trial, nol-prossed Prior the State charge ag- gravated unlawful a weapon use of in street-gang activity, and right jury waived his to a charging counts pos- unlawful session weapon of a and ammunition September 8, a felon. On 2003, the proceeded cause bench trial possession charges and a simultaneous trial on aggravated of a discharge firearm and aggravated battery two counts of awith firearm.

At for the witnesses State identified defendant as the front- seat passenger a maroon gunshot Chevrolet Beretta from which group fired at a gathered men Andy outside of Cerros’ house. girlfriend, Tarnowski, just Cerros’ Lisa stepped had out of the front door of the house pull up when she saw the Chevrolet in of front the garage where the working men were on a car. She heard five or shots, six proceeded by and then the Beretta the house. Tarnowski said it light was still out. As she the approached sidewalk in front of house, passenger the directly the looked at She her. did not know him. passenger She described the as a years male about 20 old with short 11, 2000, hair. On July photographic lineup she viewed a and identi- fied defendant as the man she had seen. Tarnowski an also made in- court identification. having

Cerros testified that he was a beer with friends after work- ing on his friend’s when the up opened car maroon Beretta and drove on gunshot fire them. He the flash of from front passenger saw the fired, side of the car. He six shots of said five or and some them passenger struck his cousin’s car. He noted that both the and the Hispanics. evening, that driver were male Later Cerros a viewed lineup. person He a looked the just passenger, saw like front-seat positively July 11, but he did not him. identify positively On Cerros array. photo identified defendant from a Cerros also made an in-court passenger identification of defendant the front-seat of the Beretta. as cousin, Torres, George Cerros’ testified that he saw the maroon getting ready leave. as he was approaching Cerros’ house Beretta were two car and saw that there fired from the He heard five shots pursued the Beretta. persons jumped it. into his car in Torres pas- noted that the stop sign, at a Torres stopped the Beretta When in The Beretta “shag,” the back. his in a with tail senger wore hair later found Torres sped off, gave up the chase. then Torres three in car. bullet holes his driveway the at standing in Cooper testified that he was

Curtis evening in of early the and his friends Cerros’ residence with Cerros up drove and shots were a red Chevrolet Beretta July when slowly proceeding the car was passenger fired from the side. He said car to be male house, occupants appeared by the and the two Immediately after light-skinned African-American. Hispanic, white or right had hit in the index shooting, Cooper the noted that he been however, chase; he he jumped give into car to saw that finger. He his A hospital instead. losing a lot blood and drove himself the was of finger following morning. bullet removed from his the driveway in having Cesar beer the Ramirez testified he was replaced after his friends evening July of Cerros’ house the of gunshots, himself to on car. When he heard he threw brakes his shots, did see ground. He he heard about six but he where said body by his a bul- they grazed right came from. He was on the side of let, large in trunk his car. and he found a bullet hole driving red Ber-

Angel Marcano testified that he was his mother’s 8 and 11:30 he evening July p.m., etta 2000. Between friends, defendant, Lockport at visiting in Eddie Solis Solis’ defendant, they suggested home. When Marcano left with yell gang slogans at him if he was there. drive Cerros’ house to house, they he car approached Marcano said slowed the Cerros’ firing handgun and started out pulled then defendant out said he passenger-side standing window the men there. Marcano day shooting. gang was a member of the Two-Six street July subsequently pleaded 10 and He was arrested for the offense on firearm the incident. guilty aggravated discharge part for his the maroon identified Marcano’s vehicle as State’s witnesses McElroy, Jeremy fired. or red Beretta from which shots were -2000, July testified that gang another member of Two-Six July fired .380-caliber police told 2001 that defendant July drive-by shooting 9. Forensic during automatic another on projectiles spent .380-caliber automatic evidence established that July weapon fired the same by from the 3 incident were recovered July shooting. used the defense. rested, an alibi presented

After the State fiancée, White, Defendant’s Carissa testified that defendant and his friends at birthday Talesa, her mother’s house party for for two-year-old their daughter, evening July 3, the of 2000. After the party, p.m., she, around 10 defendant and Talesa left her mother’s house and house, drove defendant’s mother’s they spent where the night. Carissa they said rented chairs the guests Rental, from Joliet thought they and she days returned them a few later. Corroborating provided testimony by mother, defendant’s Flor Martinez; mother, White; Carissa’s Percie sisters, Jean Carissa’s and Kimberly Thigpen; friend, Ortiz; Charlene defendant’s Jose and friends, Carissa’s Keisha and Kristal Weeks. Carissa’s mother testified wearing “shag” that defendant hairstyle with a little —short day tail—on the of party. Kimberly the testified that Jeremy McElroy, party July 3, who also attended the “shag” hairstyle on wore the said well. She it was the trend at cross-examination, the time. On Kimberly admitted that police July 14, she was interviewed the by on 2000, regarding Carissa’s She telling whereabouts. did not recall the investigator birthday July that Talesa’s party was held on 2. rebuttal,

In investigator Will Bradley sheriffs Wachtl testi- that, Kimberly fied when he July interviewed on she told him the birthday party at her July 2, mother’s house was held on 2000. Kanive, The State also introduced Malissa manager equip- ment rental business from which defendant had the rented chairs for Talesa’s birthday party. Kanive testified that the company’s records showed that defendant picked up p.m. July 1, the chairs at 12:53 on p.m. July returned them 12:45 closing arguments, prosecutor argued Lisa Tarnowski clearly unequivocally identified July defendant as the shooter. He stated: you witness,

“When weigh testimony you the identification aof should consider all of the facts and circumstances in evidence.That identification, you you’ve got when means look at the to look at just everything parts, including but not limited to the following: opportunity witness had view offender at offense; the time of the degree the witness’s of attention at the offense; description offender; time of the witness’s earlier certainty confronting the level of when shown a witness defendant.” deliberations,

Following guilty their found defendant aggravated discharge and not guilty ag- of a firearm two counts of gravated battery guilty with a firearm. The court found defendant weapon unlawful use of a a felon. ammunition sentencing, ground Prior to defendant moved for a new trial on the violated, forced he was because process his to due of law was right that action to affirmative had not taken and the court to wear a stun belt At the the restraint. manifest need for there was a consider whether that motion, attorneys testified hearing defendant’s obvious, block-like created an defendant’s waist restraint around security officers who presented State protrusion under his shirt. The courthouse to in the policy it a Will that was standard testified However, to during felony trials. defendants place stun belts around while had been activated no stun belt ever knowledge, the witnesses’ by defendant. being it worn a was motion, note of the court made on defendant’s ruling

Before during trial: defendant’s that it had made certain observations violence, and he had charged with crimes of defendant was involving a he absented himself from felony weapon; had conviction he following shooting; years the state of Illinois for more than two fit; possibly appeared physically and the offenses gang rivalry; wearing gang testified in court their related to witnesses colors; and, waiting in the due to a brief altercation between witnesses apart. had them hallway, keep the court had enter an order to polite respectful that had court also noted been during sat proceedings; of the court he at counsel table between stood, attorneys; difficulty; his sat and walked without the stun wore; loose-fitting not under the shirt defendant belt was noticeable device; complained prior during he had not to or trial about the difficulty communicating at- appear any did not that he had with his resulting torneys. to defendant any prejudice The court concluded that during outweighed from the use of the stun belt the trial security Accordingly, concerns. the court denied pretrial court’s defendant’s motion. aforesaid, sentenced, ap- subsequently

Defendant was and he peals.

ISSUES AND ANALYSIS

1. Stun Belt posttrial rejection his claim Defendant contends the court’s resulting of a due violation from use of a stun belt was an abuse discretion. Boose, 261, (1977), 66 Ill. 2d 362 N.E.2d 303 our that, shackling

supreme court ruled before is used on defendant need for the court should consider whether there a manifest restraints. Relevant factors to be considered include: seriousness defendant; character; charge against temperament of the his attributes; record; escapes, at- age physical past any past his tempted escapes, plans escape; or threats to harm others or cause disturbance; tendencies; self-destructive risk of violence or at tempted others; revenge by possibility other rescue offenders still at large; the size and audience; mood of the the nature and physi security courtroom; cal and the availability of alternative Boose, remedies. 66 Ill. 2d 362 N.E.2d If the court concludes try defendant may escape, pose a threat safety to the occupants courtroom or disrupt courtroom, the order shackling Boose, bemay ordered. Ill. 2d N.E.2d 303. The court’s determination that there is manifest need to use shackles will be disturbed on review absent an abuse of discretion. 66 Ill. 2d 303; People Buss, N.E.2d 718 N.E.2d 1 (1999).

It requiring is now well settled that a defendant to awear stun belt a conducting hearing without Boose is due process a violation. (2006). Allen, 340, People v. 222 Ill. 2d 856 N.E.2d 349 This court held, however, pretrial hearing that the failure may to conduct Boose be remedied retrospective hearing, parties’ argu which the ments presented places are and the court its reasons for requiring Johnson, restraints in People 208, the record. Ill. App. 356 3d 825 (no (2005); Buss, 144, N.E.2d 765 see also 187 Ill. 2d 718 N.E.2d 1 er ror found objection where defendant made a pretrial to the use of shackles and Boose not was conducted until the issue was motion). presented posttrial in a case,

In this the record fully shows that the court heard the parties’ arguments evidence and first presented when issue was for the court’s in a posttrial Accordingly, consideration motion. we will apply a deferential standard of review to the trial court’s denial of Johnson, defendant’s motion. See Ill. App. 356 3d 825 N.E.2d 765; Buss, 187 Ill. 2d 718 1. N.E.2d Under the abuse-of-discretion standard, court’s decision will not be it disturbed unless “fanciful, or arbitrary, degree unreasonable to the that no reasonable person agree Ortega, would it.” (2004). N.E.2d 496

The court’s decision in case supported this was no less than (1) valid requiring five considerations for a defendant to be restrained: (2) charged violence; defendant was with serious crimes of he was (3) (3) fit; violence; and physically he had a record of he presented possible risk, in escape that he had eluded arrest two (4) years following trial; the incident for which he was on because of involvement, gang revenge presented; a risk of further violence or was (5) volatile, attending the mood of some was witnesses court requiring Ill. 2d court intervention. See 362 N.E.2d 303. a loose- worn under that the stun belt was The also considered jury that defendant shirt, to the or others fitting and it was not obvious defendant had Moreover, there was no indication wearing it. wearing device or that communicating with counsel while trouble movement. hindered the Boose fac acknowledged that some of Although the trial court favor, reasonably concluded the court weighed tors in defendant’s any restraining outweighed device the use of a justifying factors that the court record, say cannot to him. Based on this we prejudice challenge to the defendant’s denying posttrial its discretion in abused 765; 208, 825 N.E.2d Johnson, App. 356 Ill. 3d use of a stun belt. See Buss, 1. Ill. 2d N.E.2d Instruction Jury

Next, to a new contends that he is entitled reliability eyewit improperly instructed jury because the (Illinois Instructions, testimony Jury ness identification Pattern (4th 2000)). that, although Criminal, ed. claims No. 3.15 Defendant instruction, object plain did error resulted because the closely balanced. evidence was

The written instruction read as follows: witness, you you testimony weigh “When identification evidence, consider all the includ- should facts circumstances to, ing, following: but not limited the time opportunity the witness had to view the offender at

of the offense.

or degree The witness’s of attention at the time of the offense.

or description The witness’s earlier of the offender.

or certainty confronting The the level of shown witness when the defendant.

or length The of time between the offense the identification confrontation.” (2005), Herron, 167, 215 2d 467 the People u. Ill. 830 N.E.2d “or” the factors in this instruction

court ruled that the use of between jurors might the believed ambiguous misleading, because have five, evaluating in factor, any one but not all could be considered Herron, here, reliability testimony. In as defense of identification in the trial jury failed instruction issue error counsel to raise rule, preserve to an general properly court. As a a defendant’s failure post- contemporaneous objection and inclusion of issue with 394 Enoch,

trial motion forfeits the issue for People review. 122 Ill. 2d (1988). 176, ruled, however, 522 N.E.2d 1124 The Herron court error, faulty instruction in plain entitling resulted the defendant prejudice to new when he established because the evidence was closely “so balanced that the error alone severely tip threatened to against justice Herron, scales of him.” Ill. 2d at N.E.2d at The seriousness risk that an instruction error resulted in prejudice depends quantum of the State’s of the evidence guilt. Herron, defendant’s case, 830 N.E.2d 467. In this Herron, unlike defendant shown that the evidence of guilt closely was so prejudice balanced that might have resulted from the eyewitnesses erroneous instruction. positively Three identified defendant the passenger in the car from which shots were fired passenger July 3, Angel Marcano, from the side on 2000: defendant’s accomplice; Cerros, Andy harassment; gang the intended victim of Tarnowski, Lisa who had no association with defendant. The descriptions passenger witnesses’ generally consistent and resulted in a positive identification of eight days defendant within the incident.

Tarnowski’s identification testimony particularly certain and compelling. fire, and, She was not in the line of among the young people residence, at the Cerros she had the opportunity pay best close attention passenger’s to the face. There was no indication that any Tarnowski had addition, motive to misidentify defendant. In presented ample State linking other evidence the crime impeaching credibility analysis of his alibi witnesses. Our the circumstances in this is conformity case factors listed by the Supreme Biggers, Court Neil v. U.S. L. Ed. 2d (1972), 93 Ct. assessing reliability S. of identification (2007). Piatkowski, testimony. See also 225 Ill. 2d 551 record, say On this we guilt cannot that the evidence of was close or that the jury’s might verdict have been affected the erroneous Therefore, written instruction. we hold that defendant is not entitled relief plain under the error doctrine.

CONCLUSION judgment the circuit court of Will affirmed. Affirmed.

SCHMIDT, J. concurs.

395 dissenting part: in concurring part in McDADE, JUSTICE circuit the judgment of Will majority have affirmed Goné, aggravated defendant, Francisco convicting the court that rejected Goné’s claims affirming, they In of a firearm. discharge a (1) to wear stun required when he was process he denied due (2) error hearing, plain necessity” a “manifest belt without and his jury, to the instruction from the court’s erroneous resulted request a trial. for new agree that the instruction, majority

On the issue but, fact, erroneous, relying on was, by court in given instruction Herron, Ill. 2d 830 215 supreme reasoning People v. court’s (2005), because the plain there not error N.E.2d 467 find that “severely closely that the mistake was not so balanced evidence Herron, 215 Ill. 2d justice against him.” tip threatened to the scales against I that the evidence N.E.2d at 479. Because believe supreme closely pertinent and that the defendant is not balanced defendant, I claim compel rejection our of this court decisions concur. Allen, not, however,

I believe do (2006), rejection of the stun belt claim. For compels N.E.2d 349 our reason, I that dissent on issue. Allen, element of the supreme placed significant a attorneys— ensuring a fair not the court and the burden of trial defendant, where, my opinion, clearly belongs —but thereby trap unwary procedurally has and the created a for the enough Thus, attorney savvy ignorant. if the defendant or his not felony on all defendants “policy” putting buck the stun belts court, supreme raising objection in what the specific “waived” due process violation. recognized court has clear constitutional Alien, holding court has also told us Despite aspect of its justification has during that a is shackled trial without defendant who he has also denied fair only deprived process, been of due been trial. known that due judges long of this district have

The trial (or can shackled requires prisoner be Boose before restrained) supreme court told for his trial because otherwise 2d years ago. People 66 Ill. N.E.2d them so 30 (1977). after case Despite knowledge, get this we case where acceding to the supreme in favor of reject courts court directive (or restraints) put other policy of some sheriffs to stun belts internal I a clear felony responses Our believe to be on all defendants. what tortured, to reward them parts dereliction on their has been wrongful exculpate their conduct. decisions that internally inconsistent This court has found —and continues to find—that a retrospective hearing is a wrong sufficient vindicate already happened, that has knowing full that a that deliberately well court violated Boose will way justify actually find some to evaluate, trial, its failure to before for the need defendant to be shackled. To otherwise do neces- expenditure time, effort, sitates the money of the and ensure to constitutionally defendant will a fair and receive sufficient trial. This case is a perfect example. The trial court post trial found— process post deprivation and due because the defendant was —that charged (although with serious presumed offense he was in- still nocent of that offense began), when the trial because he was (of fit, physically and because witnesses outside the courtroom whom one) volatile, the defendant was not he had because eluded capture years, for two to try was reasonable believe that he would to escape persons or endanger during would in the courtroom the trial. He, therefore, to needed wear a stun belt. fact, was,

In point defendant as the trial judge expressly acknowledged, “polite and respectful during proceed ings; he sat at counsel his attorneys.” App. table between 375 Ill. 3d at 391. It stood, makes no difference that “he sat and walked without difficulty; the stun belt was not noticeable loose-fitting under the shirt *** wore; any [he] and it did not had appear difficulty that he com municating attorneys.” App. with his 375 Ill. 3d at 391. It still the law of as supreme Illinois articulated our court that if a defendant during justification, right is shackled trial without a fair trial to 340, 346, (People Mien, 349, has been denied v. 222 Ill. 2d 856 N.E.2d (2006); Herron, 167, (2005); 353 Ill. 215 2d 830 N.E.2d 467 Staley, re 67 Ill. 2d (1977)), 364 N.E.2d 72 and he must be is nothing retried. There in defendant’s trial suggest conduct to that the stun necessary belt was ever was not restrained justification. without is, think, I

It a fair inference that the trial court did not even consider, prior being properly whether defendant was simply It did supreme restrained. what the court forbade in Boose and permitted be defendant restrained at trial without a necessary. determination that such restraint was It also did what we Martinez, App. 1001, forbade in Ill. People 347 3d 808 N.E.2d 1089 (2004), blindly complied policy” with the “standard of the Will place felony trials, sheriff to stun belts defendants allowing thereby judge someone other than the to dictate the propriety constitutional It ir wholly of defendant’s trial. is also relevant, Allen, supreme analysis based on the court’s that “no being stun belt had ever been activated it was worn while avoided is stand at The be App. Ill. 3d “evil” defendant.” 375 and of of due at trial in violation ing unnecessarily restrained innocence, unpleas merely receiving not presumption of shock— supreme that the may be. I believe potentially ant and lethal defendant’s conviction reversal of analysis in Allen authorizes court’s particular facts of this case. under the this this, suggest I that the root of

Having all of also said would again is the “standard time time current problem that we confront all these cases could be procedural aspects I policy.” believe is consistent simple change change that policy eliminated awith —a 349, 340, with Allen, 222 Ill. 2d but also only N.E.2d Herron, 167, 303, 2d N.E.2d 66 Ill. 72, and our decision Staley, Ill. 2d 364 N.E.2d N.E.2d I policy The Martinez, App. 347 Ill. 3d 808 N.E.2d 1089. enforcing steps into the courtroom propose every is that requests specifically or the State without restraints unless sheriff to this required response leave to restrain him or her. of court request the burden should be a Boose which the State bears proving poses of the court that the defendant satisfaction of danger procedure That is both being that warrants his restrained. explicitly implicitly inherent articulated and mandated cases cited above. fully compliant

Such a is with the federal and state constitu- policy supreme comports tions and validated court precedent, courts, general notions of fairness in the and does not violate Allen. It retrospec- obviating highly suspect also has the benefit of the need for having already denied defendant due hearings propriety tive of retrials. potential expensive and the need for and inconvenient (and County Will all of This court should direct the circuit court of district) change being current policy the courts of this whatever requires at trial without a followed that a defendant to be restrained not, however, hearing. should need to do this since the Boose We has, fact, Allen, supreme already policy. mandated such a court the court stated:

“Here, Martinez, the trial court never made a Boose agree analysis; simply judgment of sheriff. deferred to the We trial with the Martinez court that this abdication of the court’s rigorously control responsibility acceptable. is not ‘The court must and, the mandates of procedures its courtroom consistent with own rights public.’ and the Mar process, protect parties due tinez, Indeed, App. type policy adopted 347 Ill. 3d at 1004. of County sheriff, felony requiring all custodial Will defendants court, upon by this court wear stun belts while in frowned years ago in almost 30 Boose. <«*** [pjfoe judge physical must make the decision to use a case-by-case restraints on adopt basis. court cannot *** general of policy imposing such restraints unless there is a ’ ***” added.) showing necessity on (Emphasis the record. 268, quoting People Duran, 66 Ill. 2d at 16 Cal. 3d (1976).” 545 E2d Rptr. 127 Cal. added.) Allen, (Emphasis 348-49, 222 Ill. 2d at 856 N.E.2d at 354. abundantly

It seems supreme clear to me that court has forbidden policy the exact which the Will justify relied to its failure to hold a Boose for the purpose making a determina- tion the need for restraint defendant Francisco Goné. I believe it job is our to enforce by highlighting that mandate its existence to the circuit courts and its sanctioning violation. ILLINOIS,

THE Plaintiff-Appellee, PEOPLE OF THE STATE OF HARRIS, Defendant-Appellant. MARTEZ Third District No. 3 - 05-0724

Opinion August 15, filed

Case Details

Case Name: People v. Goné

Court Name: Appellate Court of Illinois

Date Published: Aug 13, 2007

Citation: 873 N.E.2d 575

Docket Number: 3-04-0938 Rel

Court Abbreviation: Ill. App. Ct.