People v. Pearson
People v. Pearson
Opinion
*457 ¶ 1 Defendant, DeAnthony Pearson, appeals his conviction after a jury trial of attempted first degree murder and attempted armed robbery and his sentence to consecutive terms of 45 years' and 5 years' imprisonment. On appeal, defendant contends (1) he is entitled to a new trial where the State's expert witness stated that the fingerprint identification results were verified by a nontestifying examiner, which constitutes inadmissible hearsay; (2) his conviction for attempted first degree murder should be reduced to aggravated battery with a firearm where the State failed to prove beyond a reasonable doubt that he had an intent to kill; and (3) a new sentencing hearing is required where his aggregate sentence of 50 years' imprisonment amounts to a de facto life sentence without consideration of the unique characteristics of his youth and violates the eighth amendment and the proportionate penalties clause of the Illinois Constitution. 1 For the following reasons, we affirm.
¶ 3 The trial court sentenced defendant on August 21, 2014. That same day, he filed a notice of appeal. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ), and Illinois Supreme Court Rules 603 and 606 (eff. Feb. 6, 2013), governing appeals from a final judgment of conviction in a criminal case entered below.
¶ 4 BACKGROUND
¶ 5 Defendant, along with two codefendants who are not parties to this appeal, was charged with attempted first degree murder, aggravated battery with a firearm, and attempted armed robbery in connection with an incident that occurred on September 29, 2010. Defendant and his codefendants had separate trials with separate juries. Defendant was 15 years old at the time of the incident.
¶ 6 At defendant's trial, Amir Muhammed Azhar testified that on September 29, 2010, he was working alone at the Marathon gas station at 711 South Halsted Street in Chicago, Illinois. Around 8:15 p.m. that evening, he was at the cash register behind a bulletproof glass window that could only be opened by the cashier. Amir had wiped down both sides of the glass window with Windex, as was routine for whoever was working at the window. No one had touched or leaned on the glass prior to the incident. Beneath the glass was a drawer which Amir used to transfer money and items to customers.
¶ 7 Codefendant Willie Collins entered the store and asked for a single cigarette. Keeping the bulletproof glass window closed, Amir gave him a cigarette through the drawer beneath the glass window. Collins then asked Amir to light the cigarette for him. To do so, Amir opened the bulletproof window. As Collins conversed with Amir, Amir tried to close the window. Collins, however, "kept asking [him] about things which are behind the counter" and Amir kept the window open so he could answer his questions.
¶ 8 At this time, another person entered the store. Amir noted that he had his face covered except for his eyes, and he had a gun in his hand. Amir tried to close the bulletproof window, but the man put his hand on the window so it would not close. While they struggled, the man fired his gun at Amir from 1 to 1 ½ feet away, striking him in the chest. Amir fell and used his cell phone to call 911. He soon lost consciousness and awoke three days later in the hospital. A surveillance camera recorded the events in the store, and the video was entered into evidence.
¶ 9 The video showed a man coming into the store wearing a red bandana over his head and a black scarf around his face, a purple hooded sweatshirt with a yellow emblem, and green pants. The man also carried a handgun. He pushed Collins aside and pointed his gun at Amir. The man put his left hand on the glass partition to prevent Amir from closing the window, and after struggling with Amir, the man fired at him. Another masked man entered, wearing a navy sweatshirt with a white hood and yellow print with "1947" on the front. The man with the gun put his hand through the open window to bang on the cash register below but the register would not open. Both men fled the store.
*459 *308 ¶ 10 Keiara Boyd testified that in September 2010 she was dating and living with codefendant Armoni Allen. Collins lived across the street and would visit their house "[e]very now and then." Keiara also knew defendant. On September 29, 2010, around 8 p.m., defendant, Collins, and Allen were at Allen's residence. Keiara noticed that defendant had a gun and he was "playing with it." When she told him she "didn't play with guns," he stopped pointing it at her. Keiara and Allen then went upstairs, and while they were upstairs, Keiara heard defendant yell for Allen to "come on." Allen then left the room and he, Collins, and defendant left the house together.
¶ 11 Approximately 5 to 10 minutes later, Allen returned alone but was soon joined at the house by defendant and Collins. Everyone was in the same room and defendant, who had the gun in his hands, stated that he shot someone but he did not "know where he shot the man." Allen told defendant and Collins to leave, but defendant left the gun in the room. Keiara noticed it and told Allen to tell defendant to take the gun with him. Defendant returned and took the gun with him. After defendant and Collins left the house, Allen received a call from defendant telling him to look out his back window toward the Marathon gas station and let him know what was happening there. Throughout the night, defendant called and asked Allen to look out the window and tell him what he saw.
¶ 12 Detective Stepich testified that he responded to a shooting at the Marathon gas station on 711 South Halsted on September 29, 2010, around 8:20 p.m. He recovered surveillance video and followed up on a 911 call that was made by a witness. Detective Stepich learned that Collins was the person who made the 911 call, and he was brought in for questioning. Detective Stepich testified that in viewing the footage, he saw that Collins "was in the store, he got the victim to open up the bulletproof glass window. He stuck his hand through the opening a few times, it appeared, and they got-the gentleman wasn't trying to close it, but it seemed like he was trying to keep the window open when the shooter and the other suspect came inside, and he shot, and he fell on the ground." After speaking with Collins, Detective Stepich went to Allen's house and arrested Allen. He then went to defendant's residence and was given permission to search the house. He recovered a pair of shoes that appeared to be the ones worn by one of the offenders in the video and a green cell phone that Collins appeared to be holding at the gas station store. After a search warrant was issued on Allen's house, Detective Stepich recovered a black Hi-Point 9-millimeter semiautomatic handgun and clothing that appeared to be clothes worn by the shooter when he entered the store.
¶ 13 Detective Deel processed the crime scene, taking fingerprints from the bulletproof glass window and recovering discharged cartridge casings. Detective Deel testified that with his naked eye he could see the fingers and palm impression from a left hand on the window. He saw no other prints on the window. Detective Murtagh received this evidence for processing, and Officer Estock took fingerprints of defendant, Allen, and Collins.
¶ 14 Karen Heard also testified for the State. She stated that she is a forensic scientist specializing in latent print examination, with a bachelor's and master's degree in biology. She also completed a two-year training program with the Illinois State Police in latent print examination. Heard stated that she had been previously qualified as an expert witness 43 times in various state courts as well as in federal *460 *309 court. Defense counsel did not object to the trial court's finding that Heard is "an expert in the latent print examination area."
¶ 15 Heard testified that she examined the prints taken from the window (latent impressions) and compared them to fingerprint standards taken from defendant at the police station. She discussed the characteristics she looks for in her examinations and defined the terms pores, ridges, grooves, creases, and furrows for the jury. Using "magnifiers, one over the latent impression and one over the very first finger entered on the card," Heard made comparisons in this manner with all 10 finger print standards. She compared features "such as any creases, bifurcations, where the ridges will split, ending ridges, curvature, thickness," and "saw that those things were present in the fingerprint standard" of defendant. She determined, within a reasonable degree of scientific certainty, that the fingerprints and palm print found on the bulletproof glass window matched defendant's fingerprint standards. After making her identifications, she gave the lifts and the fingerprint and palm print standards to another examiner, Holly Heitzman. When Heard was asked what she learned from Heitzman's examination, defense counsel objected "to what she learned." The court overruled counsel's objection, and Heard responded that Heitzman "concurred with the verification and the correct markings." Heitzman did not testify at trial. Heard also noted that glass is an ideal surface for lifting prints because it is flat and smooth, and fingerprint residue does not get absorbed into the surface.
¶ 16 Jeffrey Parise, an expert in the field of firearm identification, determined that both the fired cartridge case and discharged cartridge came from the recovered handgun.
¶ 17 Dr. David McElmeel treated Amir at Christ Hospital for multiple gunshot wounds. He stated that when he arrived at the hospital, Amir was not conscious or breathing on his own. A gunshot wound to Amir's upper chest area caused injuries to his right lung, bronchial arteries, and lower rib. There were five injuries to Amir's right lung and the bullet fractured one of his lower ribs. He also suffered a gunshot wound in his right arm. Dr. McElmeel testified that Amir lost a third of his blood supply due to his injuries and had to receive transfusions from an outside hospital as well as from Christ Hospital during the surgery. Dr. McElmeel stated that if Amir had not received the emergency surgery, he would have died.
¶ 18 The State rested, and defendant moved for a directed verdict, which the trial court denied. Testifying for the defense, defendant's grandfather, Michael Pearson, stated that he met with Heard and asked her to explain the procedures and techniques she used in her identifications. She told him that she found two points of comparisons with defendant's prints, but she could not point out the comparisons on the copy of the prints she showed him. On cross-examination, Pearson stated that the print looked like a photocopy and the picture was blurry.
¶ 19 Leisha Allen, codefendant Allen's mother, testified that she and Keiara visited Allen's lawyer on October 3, 2010. The lawyer asked Keiara what she knew about the incident at the Marathon gas station, and she replied that she did not know anything nor had she heard or seen anything about the incident.
¶ 20 The defense rested. During deliberations, the jury sent back three questions: (1) was there blood splatter on defendant, (2) was there gun residue on defendant, and (3) where is the bullet from Amir Muhammad's body. The court responded *461 *310 that the jury had all the information it needed and to keep deliberating. A few minutes later, the jury returned a verdict of guilty on all counts. Defendant filed a motion for a new trial which the trial court denied.
¶ 21 At the sentencing hearing, defense counsel reminded the court that defendant was 15 years old when the shooting occurred. Defendant's presentence investigation report (PSI) noted that his father worked in the family business and his mother was a caregiver in a nursing home. Defendant lived with his parents and three younger siblings and did not drink. He was not a member of a gang, and he attended his grandfather's church. He also participated in a boxing club sponsored by a ministry group. Defendant's mother "warmly expressed her extreme concern and love and support for her son."
¶ 22 In aggravation, the State presented the testimony of Arturo Robles that Allen gave a handwritten statement about his participation with defendant in the shooting incident. Allen stated that it was defendant's idea to rob the Marathon gas station. Defendant needed a second person to hold open the door for him. The plan was for one person to hold the door open and for the other to put the gun in the clerk's face to rob him. Allen put a wood block in the door to hold it open, and defendant pointed a gun at the clerk. Defendant ordered the clerk to open the cash register and the safe. They netted $150 and some cartons of cigarettes in the robbery. The State also played a videotape of Collins describing the conversations he had with defendant in which defendant admitted to robbing the gas station and receiving money and cigarettes. Robert Lee, a management analyst for the Cook County Juvenile Temporary Detention Center, testified that defendant had 13 violations on his major rule violation report between October 21, 2010, and December 2, 2011. Three violations were in the most serious, "extraordinary circumstances" category, and two of them involved blind-sided attacks. The hearing officers found defendant guilty of the allegations. Lee acknowledged that he did not witness any of these violations.
¶ 23 Before sentencing defendant, the trial court stated that it heard the evidence and must balance the aggravating and mitigating factors under the statute. It noted the mitigating factors as expressed by defendant's family. The court found that from the letters, "defendant comes from a very loving family and a very caring family" and hoped that once he completes his sentence "that love will carry on to him." It also noted defendant's "very minor" criminal history, in which he was "placed on supervision and completed that satisfactory [ sic ]." In aggravation, defendant caused serious bodily harm to a person when he shot Amir in the chest. The court stated that Amir "[a]lmost lost his life" and endured a long period of rehabilitation. The court also noted defendant's conduct while in custody which showed that he "has a problem with authority." It hoped that the sentence would deter others because then, "the sentence will be successful in preventing harm to another individual." The court sentenced defendant to 20 years' imprisonment for attempted first degree murder, and with the mandatory firearm enhancement, defendant's sentence totaled 45 years, which "must be served at 85 percent." For attempted armed robbery, the trial court sentenced defendant to a consecutive 5 year term to "be served at 50 percent." Defendant filed this timely appeal.
¶ 24 ANALYSIS
¶ 25 I. Heard's Hearsay Testimony
¶ 26 Defendant contends he was denied a fair trial when the trial court
*462
*311
admitted Heard's testimony that her fingerprint identification results were verified by Heitzman, who did not testify. Defendant argues that this testimony was hearsay and also violated his right to confront witnesses against him because he was unable to cross-examine Heitzman. Defendant concedes that he did not include this error in a posttrial motion but requests that this court consider the issue as plain error. Under the plain error doctrine, a reviewing court can consider unpreserved error when a clear or obvious error occurred and (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant or (2) the error is so serious that it affected the fairness of defendant's trial and challenged the integrity of the judicial process.
People v. Piatkowski
,
¶ 27 After Heard concluded that the latent prints taken from the window matched the fingerprint and palm print standards of defendant, she testified that she gave the lifts and standards to another examiner, Holly Heitzman, who "concurred with the verification and the correct markings." Heitzman did not testify at defendant's trial. Therefore, this statement was hearsay in that Heitzman's verification was an out-of-court statement and it was offered to prove the truth of the matter asserted. See
People v. Smith
,
¶ 28 Our inquiry does not end here, however. The errors alleged by defendant-the improper admission of hearsay testimony and a confrontation clause violation-are not of such a serious character that they challenge the integrity of the judicial process. See
People v. Prince
,
¶ 29 Here, even if the trial court had excluded Heard's hearsay testimony, her testimony about the identification process and her own analysis and conclusions was properly admitted. Heard testified as to her education and training and her extensive experience in latent print examination. Defense counsel did not object to her as "an expert in the latent print examination area." Furthermore, Heard provided a sufficient foundation for admitting her testimony by explaining how she reached her conclusions in a manner that allowed for scrutiny of her analysis on cross-examination. See
People v. Mitchell
,
¶ 30 Defendant disagrees, arguing that he was prejudiced by the hearsay testimony because "Heard's identification was incomplete and inadequate without Heitzman's findings," and the remaining evidence against him was weak. Specifically, he points out that no forensics evidence tied him to the clothing found by police or to the gun, and Keiara's testimony that she saw defendant with a gun immediately before and after the shooting and heard him make incriminating statements contradicted her statement to codefendant Allen's lawyer that she did not know anything.
¶ 31 However, although no forensics evidence linked defendant to the clothing of the shooter or gun, the surveillance video showed that the shooter put his left hand on the glass window to keep it open before shooting Amir. Heard's admissible testimony established that the latent prints taken from the window matched defendant's print standards. Even if Heard's identification was not verified by a second examiner in accordance with routine procedure, "[i]ssues concerning the quality of the testing process itself, such as laboratory protocol and the manner in which it was followed, [and] quality control measures * * * are matters that go to the weight of the evidence, not its admissibility."
People v. Johnson
,
¶ 32 II. Intent to Kill
¶ 33 Defendant next contends that his conviction of attempted first degree murder should be reduced to aggravated battery with a firearm where the State failed to prove his intent to kill. "It is well established that, to obtain a conviction for attempt, the State must prove that the defendant intended to commit a specific offense."
People v. Terrell
,
¶ 34 At trial, the State presented evidence that Amir was working behind the glass window when Collins entered the store. He purchased a cigarette and Amir gave it to him through the drawer beneath the glass window. Amir opened the window when Collins asked him to light the cigarette. Defendant then entered the store with his face covered except for his eyes, and he pointed a gun at Amir. Amir tried to close the bulletproof window, but defendant put his left hand on the window so it would not close. They struggled and then defendant fired his gun at Amir from one to one and a half feet away, striking Amir in the chest. Video from a surveillance camera also showed this sequence of events. From this evidence, a reasonable jury could infer that defendant intended to shoot Amir at close range in his effort to keep the window open and gain access to the cash register, " 'the direct and natural tendency of which [was] to destroy another's life.' " See
¶ 35 Defendant, however, argues that the evidence does not support a specific intent to kill because he could have killed Amir if he had so desired. He cites to
People v. Mitchell
,
¶ 36 In
Mitchell
, the defendant had beaten her 16-month-old daughter over the course of two days because she was angry and frustrated with her partner after an argument and because the child was " 'not minding and was getting into cupboards.' "
Mitchell
,
¶ 37 In
Henry
, the defendant acknowledged that he shot his gun but claimed that he shot in the air and not at the police car.
Henry
,
*465
*314
Id.
at 238,
¶ 38
Mitchell
and
Henry
are inapposite. Unlike the circumstances in
Mitchell
, Amir was shot with a gun, not beaten. The act of firing a gun at a person supports a finding that defendant acted with an intent to kill.
Ephraim
,
¶ 39 Defendant also argues that the shooting was an impulsive act resulting from his young age and poor judgment, and notes that neither of his codefendants were found accountable on the attempted murder charge. Defendant provides no analysis, nor does he cite to any authority, to support his implication that he can be found guilty of attempted murder only if his codefendants were found guilty of that offense on a theory of accountability. See Illinois Supreme Court Rule 341(h)(7) (eff. May 25, 2018) (requiring appellant's brief to put forth his contentions, "and the reasons therefor, with citation of the authorities and the pages of the record relied on"). Nonetheless, the fact that different juries at separate trials found his codefendants not guilty of the attempted murder charge does not necessarily indicate that the evidence supporting defendant's conviction of attempted murder was insufficient. See
People v. Sims
,
¶ 40 As for defendant's argument that the shooting resulted from his impulsiveness and poor judgment, rather than an intent to kill, we note that the jury was aware of defendant's young age when he committed the offense. It is the jury's responsibility to weigh the evidence and draw reasonable inferences therefrom.
People v. Jackson
,
*466 *315 ¶ 41 III. Sentencing
¶ 42 Defendant's final contention is that his aggregate sentence of 50 years' imprisonment violates the eighth amendment and the proportionate penalties clause of the Illinois Constitution.
2
Defendant argues that his sentence violates the eighth amendment because it is a
de facto
life sentence and was imposed without consideration of the unique characteristics of his youth as required by
Miller v. Alabama
,
¶ 43 This issue arises as a result of those recent decisions by the United States Supreme Court regarding the constitutionality of mandatory life sentences imposed upon juvenile defendants. In
Miller
, the Supreme Court determined that "children are constitutionally different from adults for purposes of sentencing" due to their "diminished culpability and greater prospects for reform."
Miller
,
¶ 44
Miller
and
Montgomery
, however, left important issues for courts to address. For example, our supreme court has determined that a sentence of aggregate terms of imprisonment can be considered the same as a mandatory life sentence; therefore, the constitutional limitations placed on juvenile sentencing in
Miller
and
Montgomery
can apply to such terms of imprisonment as well. See
People v. Reyes
,
¶ 45 From this determination stems the thornier issue of what term-of-years sentence can be considered a
de facto
life sentence, the question before us here. Understandably, courts are generally reluctant to make a legal determination of a juvenile's likely lifespan, which would include considerations of societal factors and policy that are best addressed by the legislature. See
People v. Jackson
,
¶ 46 This determination is straight-forward where the sentence is so lengthy that no one can question its survivability. See
Reyes
,
¶ 47 Although our supreme court has not determined a precise age of release that would constitute a
de facto
life sentence, it has recently provided some guidance in
Reyes
, where the court applied
Miller
to a "mandatory term-of-years sentence that cannot be served in one lifetime."
Reyes
,
*468 *317 ¶ 48 The State conceded, and the court agreed, "that defendant will most certainly not live long enough to ever become eligible for release." Id. ¶ 10. Our supreme court reasoned that such a sentence "has the same practical effect on a juvenile defendant's life as would an actual mandatory sentence of life without parole-in either situation, the juvenile will die in prison." Id. ¶ 9. The court held that to sentence a juvenile defendant to a mandatory term "that is the functional equivalent of life without the possibility of parole," without consideration of the mitigating factors of youth set forth in Miller , "constitutes cruel and unusual punishment in violation of the eighth amendment." Id.
¶ 49 In
People v. Hoy
,
¶ 50 Defendant, however, argues that his sentence is a
de facto
life sentence because even if he survives the term, he would be deprived of a meaningful opportunity to demonstrate his maturity or rehabilitation upon reentering society. He asks this court to follow
Buffer
, which found that a 50-year sentence imposed on a 16-year-old defendant convicted of first degree murder was a
de facto
life sentence.
Buffer
,
¶ 51 We respectfully decline defendant's invitation. Even if we were to apply Buffer 's determination that a prisoner's life expectancy is 64 years, it has no relevance here where defendant will be 55 years old upon his release. Defendant argues, however, that we should adopt Buffer 's reasoning that "lesser sentences than life without parole" may also "trigger Miller -type protections." (Internal quotation marks omitted.) Id. We note that Miller and Montgomery involved mandatory life sentences, *469 *318 and the Supreme Court did not have occasion to consider whether "lesser sentences than life without parole" can also trigger constitutional protections for juvenile defendants. In neither case did the Court refer to the defendant's quality of life after release as a factor courts must consider. Our supreme court in Reyes , equating a de facto life sentence with a mandatory, unsurvivable prison term, also did not address whether a juvenile defendant must have an opportunity for a meaningful life after imprisonment. That being said, we do not disagree that this factor could be relevant in determining what constitutes an appropriate juvenile sentence in light of the unique attributes of youth outlined in Miller . As we discussed above, these issues are best resolved by the legislature after taking into account societal and policy considerations.
¶ 52 Defendant also argues that his sentence violates the proportionate penalties clause of the Illinois Constitution. To succeed on this claim, defendant must show that his sentence is degrading, cruel, "or so wholly disproportionate to the offense that it shocks the moral sense of the community."
People v. Klepper
,
¶ 53 The 15-year-old defendant in
Gipson
was convicted of attempted murder and other offenses and received a cumulative sentence of 52 years' imprisonment.
Gipson
,
¶ 54 Like the defendant in Gipson , defendant here was 15 years old at the time of the offense and he was also convicted of attempted murder. However, the similarity ends there. Defendant here did not have a documented history of serious mental health issues that resulted in rash decision making. The evidence here also indicated that defendant and his codefendants planned the armed robbery. Unlike Gipson , defendant's intentional shooting of Amir caused him to suffer near-fatal injuries. The physician who treated Amir testified that he would have died had he not received emergency treatment. In sentencing defendant, the trial court noted the mitigating factors expressed by letters from his family and his activities. However, *470 *319 the trial court also looked at the fact that defendant caused serious bodily harm to Amir by shooting him in the chest. While in custody, defendant had 13 major infractions, which showed he has a problem with authority. The trial court stated that it wanted to deter others because if "the sentence does in fact deter at least one other person, the sentence will be successful in preventing harm to another individual." We find that defendant's sentence does not violate the proportionate penalties clause.
¶ 55 Defendant, however, argues that the court failed to take into account the heightened rehabilitative potential of his youth, citing
People v. Miller
,
¶ 56
Leon Miller
does not apply here for several reasons. First, the facts of
Leon Miller
are completely distinct from this case, aside from the young ages of the defendants. Second, defendant did not receive a natural-life sentence resulting from the convergence of statutes that did not allow for consideration of his culpability, youth, and rehabilitative potential. Finally, the trial court at sentencing was aware of defendant's age, considered his culpability, and in terms of rehabilitative potential expressed hope that the love and support of defendant's family would "carry on to him" after he completes his sentence. The trial court stated that it considered the mitigating and aggravating factors, and it is not required to give defendant's rehabilitative potential greater weight than the seriousness of the offense.
People v. Sharpe
,
¶ 57 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 58 Affirmed.
Justices Pierce and Griffin concurred in the judgment and opinion.
Defendant also alleged that he is entitled to a discretionary transfer hearing in juvenile court because, during the pendency of his appeal, the legislature raised the age at which a juvenile who commits aggravated battery with a firearm can be transferred to the circuit court from 15 to 16 years old. However, he concedes that
People v. Hunter
,
Defendant notes that "[i]n light of the 85% service requirement for attempt murder, he is not eligible for parole until November 19, 2048, one month before his 54th birthday." The State also states in its brief that defendant will be eligible for release at age 53. Our calculations, however, indicate that defendant will be 55 years old when he is eligible for release, after taking into account defendant's consecutive sentence of five years' imprisonment for attempted armed robbery to be served at 50%. Whether he will be 53 or 55 years old does not affect our determination. Thus, we consider this issue based on defendant being 55 years old when he is eligible for release.
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. DeAnthony PEARSON, Defendant-Appellant.
- Cited By
- 5 cases
- Status
- Unpublished