Opinion
No. 2-14-0411
04-02-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC BERNARD, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of De Kalb County. No. 10-CF-306 Honorable Robbin Stuckert, Judge, Presiding. JUSTICE McLAREN delivered the judgment of the court.
Justices Burke and Birkett concurred in the judgment.
ORDER
¶ 1 Held: (1) Any prejudice arising from a State's witness' reference to "DOC photos" of defendant was promptly cured when the trial court sustained defendant's objection and admonished the jury to disregard the question and the response; thus, the trial court did not err in denying defendant's motion for a mistrial; (2) defendant's contentions regarding a witness' identification of defendant are forfeited for failure to make contemporaneous objections during trial; (3) defendant's contentions regarding his sentence were neither properly preserved for appeal nor supported by the trial court record. Affirmed. ¶ 2 Following a jury trial, defendant, Eric Bernard, was convicted of one count of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)) and was sentenced to 40 years in the Department of Corrections. As the jury found that he was armed with a firearm while committing the offense, the court also imposed a mandatory statutory enhancement of 15 years (see 720 ILCS 5/18-2(b) (West 2014)), resulting in a total of 55 years in the Department of Corrections. Defendant now appeals from both his conviction and his sentence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged in connection with the November 11, 2009 robbery of the Associated Bank in DeKalb, during which approximately $6000 was taken. The evidence at trial showed that two men wearing hoodies and sunglasses entered the bank at about 11:30 a.m. on November 11, 2009. One man entered the office of bank manager Daniel O'Koniewski and displayed a gun. The other man, who also appeared to be wearing a dreadlock wig and makeup, pointed an Uzi-like gun at teller Lisa Rainey and customer Jessica Olsen and demanded cash. Rainey placed approximately $6000 in a bag and placed the bag on the counter. The two offenders took the bag and ran out through the back door. The robbery lasted less than a minute. None of these witnesses identified defendant as one of the bank robbers. ¶ 5 Wallace Meyers, who lived a little more than a mile away from the bank, testified that he saw a plastic bag lying in the middle of the street. He thought the bag was garbage and picked it up to dispose of it. Upon retrieving the bag, along with a t-shirt lying near it, Myers returned to his garage. He noticed "something strange" in the bag. Feeling inside the bag, he realized the object was a gun, wrapped inside a dreadlock wig. As he started to pull the gun out of the bag, it discharged, sending a bullet through Myers' garage wall into the alley. Myers left the other items, including a Jacket type like a T-shirt" in the bag and called the police. ¶ 6 Detective Kelly Sullivan of the City of De Kalb Police Department responded to Meyers' garage and took possession of the gun and other items contained in a bag from Aldi's: the wig, a white T-shirt, a black T-shirt, black jeans, blue pants, a black jacket, brown gloves, and various items in the pockets of those items. The white T-shirt appeared to have some type of makeup, possibly cover-up or concealer, on it. Another detective found a hat in the street near Meyers' home and gave it to Sullivan. ¶ 7 Sullivan eventually met with defendant to obtain a buccal swab for DNA purposes. She noticed that defendant had dark blue tattoos on each cheek and on his forehead. ¶ 8 Sullivan viewed bank surveillance video and stills from the video and described one of the robbers as wearing a white T-shirt, a black jacket, and a dreadlock wig; those items appeared to match the items taken from Meyers' garage. She also identified the wig and the pairs of pants found in the bag as similar to those worn by the robbers in the still photos. Based on her prior contact with defendant, she testified at trial that, in her opinion, the person that she saw in one of the still photograph shown to her at trial "appeared to be consistent with Mr. Bernard's profile." She also stated that another still photo showed "the same individual," whom she believed to be "Mr. Bernard." On cross-examination, Sullivan stated that she could not tell with "100 percent certainty" that the still photos showed defendant, but she was "fairly certain" that they did. ¶ 9 The T-shirts and the wig were tested by Nicole Werkheiser, a forensic scientist at the Illinois State Police Crime Laboratory. Werkhiser had received a buccal swab containing defendant's DNA. The white T-shirt did not have enough DNA to yield a profile. The black T-shirt yielded a partial mixture of two people's DNA; this profile excluded both defendant and another man, Louis McAfee, who was a suspect in the case. A partial DNA profile obtained from a hat also excluded both men. An analysis of the dreadlock wig revealed a mixture of DNA from at least three people. The profile excluded McAfee; however defendant was a match to the "major profile" contained in the mix. The frequency of that DNA profile would be expected to occur in approximately 1 in 140 quadrillion black individuals and even less frequently in white or Hispanic individuals. ¶ 10 Certain portions of Werkeiser's work on this case occurred during a one-month period in which a machine that she used to develop the DNA profiles had not received its annual calibration. The machine was subsequently successfully calibrated with no issues. All the data generated during that period were reviewed by the forensic scientist and a technical leader to make sure that everything developed "was as expected and not affected by the missed calibration." No problems related to the missed calibration were found. ¶ 11 Jasmen Cunningham testified that she was also charged in relation to the bank robbery; while no promises had been made regarding her case, she said that,"[d]epending on my testimony things would be considered." Cunningham dated defendant in November 2009. In April 2010, Cunningham had told police that defendant and King had asked her to drive them to the Associated Bank a few weeks before the robbery. They sat in the car while defendant and King asked her questions about the bank, as she had been inside the bank before. She stated that, on November 10, 2009, defendant was in her dorm room putting makeup on his face to cover up his tattoos. She drove defendant and King to the bank on the morning of November 11 and drove around the neighborhood. They returned to the Northern Illinois university campus, and Cunningham went to her 11:00 a.m. class. When she returned to her dorm, defendant asked her or her friend to drive him to his home in Chicago. About a week or two after the robbery, defendant told Cunningham that he threw a T-shirt, a weapon, and a wig on the side of a road after the robbery. ¶ 12 Cunningham recanted her statement to police the very next day because she was afraid of "what was going to happen to me and my child." She changed her story again several times; she provided a video statement containing much of the same information as her courtroom testimony, but later provided affidavits in which she stated that officers threatened that she would lose her baby if she did not cooperate and that she had no knowledge of the bank robbery. Defendant had told her that she could provide those affidavits. However, at trial, she admitted that the affidavits were false and that what she had testified to was true. ¶ 13 Cunningham had testified in King's trial pursuant to an agreement regarding her own charges; however, her testimony there was not consistent with her prior statement to police, and her plea agreement was withdrawn. She lied at King's trial because she was scared and "brainwashed." She was not as afraid as she had been back then. She admitted to lying under oath in her affidavits and at King's trial and that she "took that same oath today." While she admitted that she was not present when the bank was robbed, Cunningham identified defendant in two still photos taken from the bank surveillance video. ¶ 14 Brian Fleming was employed by Associated Bank on the day of the robbery. He described both robbers as wearing dreadlocks, sunglasses, and "paint" or makeup. He told police that he thought that he recognized a potential suspect and picked a photograph out of a book of mugshots. He was "fairly certain" of his identification at the time. The photograph was not one of defendant, but Fleming stated that the person in the photograph looked "a little bit" like defendant. The man in the photo was not involved in the robbery. ¶ 15 Defendant's sister, Antoinette Harvey, testified that defendant had been with her at her house in Calumet City from November 9 for three or four days. Defendant did not leave her house anytime on November 10. They had a cookout on November 11, and defendant was present with his girlfriend and his son; 10 to 15 people came to the cookout, starting at about 11 or 12 o'clock. Defendant did not leave the house that day either, staying overnight to help with the cleanup. Harvey admitted that, even after learning that defendant had been charged, she never called the police to let them know about defendant's presence at her home. ¶ 16 After the close of evidence, the State withdrew the armed violence count. The jury returned a verdict of guilty as to armed robbery and also found proven the allegation that defendant was armed with a firearm during the commission of the offense. After a hearing, the trial court denied defendant's pro se motion alleging ineffective assistance of counsel and seeking appointment of new counsel. The court also denied defendant's motion for a new trial and sentenced defendant to an extended term of 40 years imprisonment on his conviction of armed robbery plus a statutory enhancement of 15 years for being armed with a firearm (see 720 ILCS 5/18-2(a)(2), (b) (West 2014)), for a total of 55 years. The court then denied defendant's motion to reconsider sentence, and this appeal followed.
Michael King was also charged and, after a separate trial, was convicted of armed robbery (720 ILCS 5/18-2(a)(2) (West 2010)) and armed violence (720 ILCS 5/33A-2(a) (West 2010)). King was subsequently sentenced to concurrent terms of 23 years in prison. See People v. King, 2013 IL App (2d) 111236-U. --------
¶ 17 II. ANALYSIS
¶ 18 Defendant first contends that the trial court erred in denying his motion for mistrial. In general, a mistrial should be granted where an error of such gravity has occurred and has infected the fundamental fairness of the trial such that continuation of the proceeding would defeat the ends of justice. People v. Bishop, 218 Ill. 2d 232, 251 (2006). A trial court's denial of a defendant's motion for a mistrial will not be disturbed unless the denial was a clear abuse of discretion. Id. ¶ 19 During defendant's cross-examination of Detective Sullivan, the following colloquy took place:
"Q. [Defense counsel]: So approximately a year and a half had passed between the time of the bank robbery and the time you first met with Mr. Bernard?Shortly thereafter, defendant asked that Sullivan's testimony be stricken and asked for a mistrial, as "the only reason or way that his prior criminal record can be shown to the jury is if he decides to get on the stand and as of right now they've been made aware that there are DOC pictures and he obviously has been incarcerated." The trial court denied the motion, noting that the court had "correctly admonished and sustained the objection indicating that they should disregard, again, the initials 'DOC.' " Further, the trial court found that it would be "speculation" to "understand that everybody there understood that he was in DOC and for what purposes and that he had been convicted of some other offense." The trial court also admonished the State to "please explain the importance of making sure that other witnesses are informed that they should not be giving a location of pictures or where they were taken as well unless the door is opened by the defense." ¶ 20 Defendant argues that Sullivan's reference to "DOC photos" was improper evidence of other crimes and that Sullivan's statement "gravely affected the trial." We agree that the reference to "DOC" was improper and, further, seems gratuitous, especially coming from a seasoned detective with 13 years' experience as a police officer, with 8 of those years as a detective. However, the sustaining of an objection to testimony and an admonition to the jury to disregard the improper testimony is generally sufficient to cure any prejudice resulting from improper testimony. People v. Mabry, 223 Ill. App. 3d 193 (1991); People v. Sledge, 183 Ill. App. 3d 1035, 1047 (1989). The trial court here took such curative action immediately. Further, the trial court did not draw attention to the improper reference to DOC, instructing the jury to "disregard the question and response" without singling out the DOC reference. Thus, while the testimony was erroneous, the trial court's action promptly cured any prejudice arising from it such that the fundamental fairness of the trial was not overcome and continuation of the trial did not defeat the ends of justice Therefore, we find no abuse of discretion in the trial court's denial of defendant's motion for a mistrial. ¶ 21 Defendant next raises two contentions involving Sullivan's testimony regarding still photos from the scene of the bank robbery. Sullivan was allowed to identify defendant as one of the bank robbers shown in the bank surveillance video and still photos captured from the video. However, defendant claims that Sullivan had only one meeting with defendant and her viewing of the DOC photographs upon which to base this identification. According to defendant, this was an inadequate foundation for Sullivan's identification. Defendant further argues that this testimony invaded the province of the jury as trier of fact, as the jury also had the opportunity to observe the video and the photos. ¶ 22 While defendant raised these issues in his post-trial motion, he failed to make contemporaneous objections during trial. The failure to both object to an alleged error at trial and raise the issue in a posttrial motion results in forfeiture of the issue on appeal. People v. Kitch, 239 Ill. 2d 452, 461 (2011). Defendant argues in his reply brief that his trial attorney's failure to object at trial was error under Strickland v. Washington, 466 U.S. 668 (1984) such that we can review the error as ineffective assistance of counsel. However, points not argued in the appellant's brief "are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing." Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017). "Our supreme court 'has repeatedly held an appellant's failure to argue a point in the opening brief results in forfeiture under Supreme Court Rule 341(h)(7).' " People v. Polk, 2014 IL App (1st) 122017, ¶ 49, quoting BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 23. This applies to claims of ineffective assistance of counsel raised for the first time in a reply brief. See People v. English, 2011 IL App (3d) 100764, ¶¶ 21-23. As these issues were not properly preserved at trial and were not properly raised on appeal, defendant has forfeited consideration of them, and we will not consider them. ¶ 23 Defendant next contends that the trial court erred in the imposition of sentence. Defendant was sentenced to an extended term of 40 years imprisonment on his conviction of armed robbery plus a statutory enhancement of 15 years for being armed with a firearm (see 720 ILCS 5/2-18(a)(2), (b) (West 2014)). Defendant's co-defendant, Michael King, was convicted of both armed robbery and armed violence after a bench trial before the same court and was subsequently sentenced to concurrent terms of 23 years imprisonment, with the 15 year enhancement included in the 23 years. See King, 2013 IL App (2d) 111236-U, ¶ 2. Thus, according to defendant, his sentence was so disparate from that of King that the trial court erred in imposing that sentence on him. Defendant asks this court to either (1) remand the case to the trial court for reconsideration and imposition of "a reduced sentence after making a better record justifying any disparity" between defendant's and King's sentences; or (2) reduce his sentence "to one more commensurate with" King's sentence. ¶ 24 A trial court has broad discretionary powers in imposing sentence, and a sentencing decision is entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A reviewing court may not alter a defendant's sentence absent the trial court's abuse of its discretion. Id. ¶ 25 Our review of the record reveals that defendant made two references to King's sentence during the sentencing hearing. First, counsel stated:
A. [Sullivan]: In person, yes, but I had seen several DOC photos if you will—
[Defense counsel]: Objection.
A. (Continuing)—prior to that.
THE COURT: Sustained. You have to disregard the question and response.
Q. So several years had passed between the time of the robbery and the time you first met Mr. Bernard?
A. In person, yes."
"Therefore, he was not alone when he allegedly committed this offense and I would ask you to take into account the sentence that was handed down on one of his co-defendants who has previously been convicted, and that is of Michael King who I believe received 22 years in the Department of Corrections."Later, in reference to the State's recommendation of the maximum 75 year sentence, counsel argued:
"Judge, I would ask that the minimum sentence be imposed and that is 21 years, again because it's a long time to serve in the Department of Corrections. Your Honor, you sentenced co-defendant Mr. King to 23 years. I think if you sentenced Mr. Bernard to 75 years and his co-defendant got 23 years, the discrepancy in sentence would be so severe that upon review might be subject to an issue on appeal."After receiving his 40 year sentence plus the 15 year enhancement, defendant filed a motion to reconsider and reduce sentence raising eight separate issues but failing to raise this disparate-sentence issue. ¶ 26 "A defendant's challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be made by a written motion filed with the circuit court clerk within 30 days following the imposition of sentence." 730 ILCS 5/5-4.5-50(d) (West 2014)). The purpose of a motion to reconsider sentence is to bring to the circuit court's attention changes in the law, errors in the court's previous application of existing law, and newly discovered evidence that was not available at the time of the hearing. People v. Burnett, 237 Ill. 2d 381, 387 (2010). The requirement that any challenge to an aspect of sentencing be included in a written post-sentencing motion will allow the trial court the opportunity to review a defendant's contention of sentencing error and save the delay and expense inherent in appeal if it is meritorious. People v. Reed, 177 Ill. 2d 389, 394 (1997). In addition, such a motion focuses the trial court's attention on a defendant's allegations of error and gives the appellate court the benefit of the trial court's reasoned judgment on those issues. Id. Our supreme court has found "a clear legislative intent to make a post-sentencing motion the functional equivalent of a post-trial motion for purposes of preserving issues for appeal." See id. Thus, sentencing issues not raised in a motion to reconsider sentence are generally forfeited. In re Angelique E., 389 Ill. App. 3d 430, 432 (2009). Defendant's failure to include this issue in his motion to reconsider denied the trial court the opportunity to reconsider defendant's sentence in light of King's sentence and denies this court the benefit of the trial court's reasoning on the issue, thereby frustrating the purpose of such a motion. ¶ 27 In any event, defendant has failed to provide a record sufficient to support his argument on appeal. "In an appeal, the purpose of review is to evaluate the record of the trial court, and, in general, the review will be limited to what appears in the record." People v. Benford, 31 Ill. App. 3d 892, 894 (1975). While the record here contains testimony regarding defendant's personal life and written evidence of his 12 prior felony convictions, it is devoid of any evidence relating to King; the only reference to King was defense counsel's (inconsistent) references to his sentence in argument. We cannot merely compare these sentences in a vacuum. Defendant asks this court to take judicial notice of the record in King's appeal currently before this court, including the presentence investigation report and the transcript of his sentencing hearing. We decline this request. Fulfilling this request would require this court to take judicial notice of material never entered into evidence and never brought to the trial court's attention, either at sentencing or in the hearing on the motion to reconsider. Defendant already had the opportunity to ask the trial court to make "a better record justifying any disparity" between the sentences; he failed to take advantage of this when he failed to include this issue in his motion to reconsider. We will not transform this appeal from a review of the trial court record into a new sentencing hearing. In light of our review of the trial court record in this case, we can find no error here.
¶ 28 III. CONCLUSION
¶ 29 For these reasons, the judgment of the circuit court of De Kalb County is affirmed. ¶ 30 Affirmed.