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September 13, 2001

No. 2--00--0201

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Following a jury trial, defendant, Jerry Boston, Jr., wasconvicted of armed robbery (720 ILCS 5/18--2(a)(1) (West 2000)). The trial court adjudged defendant a habitual criminal andsentenced him to life imprisonment. Defendant appeals, arguingthat (1) the court erred in admitting into evidence a knife foundnear the crime scene; and (2) the mandatory life sentenceprovisions of the Habitual Criminal Act (720 ILCS 5/33B--1 et seq.(West 2000)) are unconstitutional under Apprendi v. New Jersey, 530U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We affirm.

Following is a summary of the relevant testimony. On themorning of January 24, 1998, Judy Brownfield was working alone atthe Reader's Haven bookstore in Elgin. A man came in and said hewas looking for a book about trees. Brownfield led him to thereference area. When she turned her back on him to walk toward thefront of the store, she felt something hard pressed against herback. The man grabbed her around the shoulders and then forced hisarm against her throat. Out of the corner of her eye, Brownfieldsaw a knife. The man said, "don't move or I will kill you," andthen placed the knife against Brownfield's throat. He asked wherethe money was kept, and Brownfield said that it was in the otherroom. The man led her to the front of the store.

Brownfield opened the register and then dropped to the ground. She heard the man at the register, and the man then dropped to theground and asked where the rest of the money was. Brownfieldmentioned her purse, and the man told her to take the money out. He held the knife on her while she took the money out. The maninstructed Brownfield not to move and then left the store.

Brownfield stayed on the floor for a moment and then ran tothe front door. She saw a police van parked at a stoplight. Shetold the officer in the van that she had been robbed. A shortwhile later, a squad car arrived at the store. The officers haddefendant with them, and Brownfield identified him as theperpetrator. Brownfield also identified defendant in court. According to Brownfield, approximately $80 had been taken from herpurse and between $60 and $80 had been taken from the register. Her throat, neck, and shoulder were hurt during the robbery, andshe received cuts on her hands. The knife caused the cuts.

During her testimony, Brownfield identified People's exhibitNo. 12 as the knife used in the attack. She testified that theknife appeared to be in the same condition, although part of theblade had become discolored. On cross-examination, sheacknowledged that she could not be positive that People's exhibitNo. 12 was the knife used in the attack. Brownfield alsoidentified a Post-It note with her handwriting on it as one thathad been attached to money in the cash register. This Post-It notewas recovered from defendant's pants pocket when he wasapprehended.

Alice Kramer, an animal-control officer with the Elgin policedepartment, testified that, at approximately 11:46 a.m. on January24, 1998, her van was at a stoplight in front of Reader's Haven. She observed a black male come out of the store, look in herdirection, and walk hurriedly up the street. A few seconds later,a woman ran out of the store and yelled that she had been robbed.Kramer asked her if she had been robbed by the man who had justleft the store. The woman answered "yes," and Kramer radioed theinformation to the communications center.

Shortly thereafter, an Elgin police officer brought defendantto Reader's Haven, and Kramer identified him as the person she hadseen exiting the store. Defendant's coat was different, but Kramerwas sure that defendant was the same person she had seen earlier. Kramer identified defendant in the courtroom. A tan coat was foundin a yard in the 800 block of South Liberty Street, and Krameridentified it as the one defendant had been wearing when he leftthe store. Kramer also identified People's exhibit No. 12 as aknife that was found near the crime scene.

Kenneth Miller testified that, shortly before noon on January24, 1998, he pulled his car into the parking lot of Ray'sRestaurant. He parked at the back of the lot, near Liberty Street. He found a knife in the parking lot and took it into therestaurant, thinking it might belong to the restaurant. He gavethe knife to the restaurant owner. Miller identified People'sexhibit No. 12 as the knife he found. Miller had also been atRay's the previous day at 3:30 p.m., and the knife was not in theparking lot then. Faik Adili, the owner of Ray's Restaurant,testified that the knife did not belong to the restaurant.

Conan Fender, an Elgin patrol officer, testified that he hearda dispatch at 11:46 a.m. on January 24, 1998. He went to the areaof Reader's Haven and saw defendant duck between houses near 640Illinois Street. Fender could not catch up to defendant, but hesaw him again in the backyards of houses on Liberty Street. Fenderand defendant made eye contact, and defendant began running. Fender got out of his car and ran after defendant. Other officersarrived in the area and took defendant into custody. Fender thenfound a tan jacket in the front yard of 800 South Liberty.

Officer Dennis Hood of the Elgin police department also heardthe dispatch at 11:46. He went to the area of St. Charles andDwight Streets and eventually saw Fender chasing defendant. Hoodpulled his car over near defendant, and defendant surrendered tohim. After Hood placed defendant in his squad car, defendant keptasking what "the woman" said. Hood found $64.12 in defendant'sright pants pocket and $41 in his left pants pocket. Defendant'sleft pocket also contained a yellow Post-It note with writing onit.

Defendant denied robbing the Reader's Haven bookstore or evenbeing near it on the date in question. Defendant testified that hespent that morning looking for an apartment in Elgin. He spoke toan individual at an apartment complex near Gifford and VillaStreets. Defendant learned that an apartment might be availablelater that day. He went to 501 Arlington Street to see if his wifewas there because he wanted her to give him a ride to Chicago. Hejogged toward 501 Arlington Street. Upon arriving, he noticed thather car was not there. Defendant then jogged toward St. CharlesStreet. Shortly thereafter, the police stopped defendant andplaced him in handcuffs. When asked why he had jogged instead ofwalked, defendant replied, "That was really no hurry, I didn't seeanything wrong with jogging." He then reiterated that, because hedid not see anything wrong with jogging, he just decided to do it. He denied having a Post-It note in his pocket.

Defendant first argues that the court erred in admitting theknife. According to defendant, the State did not show thatPeople's exhibit No. 12 was the knife used in the crime or thatdefendant ever owned the knife. Defendant contends that theadmission of the knife was unduly prejudicial because it improperlysuggested to the jury that defendant possessed a knife during theoffense. Thus, "[w]ithout the knife, the only evidence of thepresence of a knife was by the victim, who was not able to observethe knife but could only testify as to feeling a sharp metalobject."

Only relevant evidence is admissible, and evidence is relevantif it tends to make a fact of consequence either more or lessprobable than it would be without the evidence. People v. Johnson,215 Ill. App. 3d 713, 731 (1991). However, evidence will beexcluded if its probative value is substantially outweighed byunfair prejudice. Johnson, 215 Ill. App. 3d at 731.

Here, the trial court clearly did not err in admittingPeople's exhibit No. 12. Brownfield identified the knife as theone defendant used in the attack. Defendant relies onmisrepresentations of the record to support his argument that hewas unfairly prejudiced. Defendant claims that the victim was notable to observe a knife. Additionally, defendant claims that hewas "never connected to [the knife] by observation or finger printevidence." These statements are simply untrue. Brownfieldtestified on both direct and redirect examination that defendantused a knife in the attack and that she saw a knife. Shespecifically testified on redirect examination that she got a goodlook at the knife. Further, she identified People's exhibit No. 12as that knife.

Defendant relies on three cases, all of which are clearlydistinguishable. In People v. Berkman, 307 Ill. 492 (1923), thedefendant was accused of shooting John Rahn. The supreme courtheld that the trial court erred in admitting a gun into evidence. The gun was found near where the defendant himself was shot a monthafter the offense. The court held that, absent evidence thatdefendant ever possessed the gun or that the gun was used in theshooting of Rahn, the admission of the gun was unduly prejudicial. Berkman, 307 Ill. at 499-500.

In People v. Johnson, 215 Ill. App. 3d 713 (1991), thedefendant was found guilty of first-degree murder. The appellatecourt held that the trial court erred in allowing evidence that thevictim had semen in her mouth because no evidence linked the semento the defendant or to the crime. Johnson, 215 Ill. App. 3d at732.

In People v. Malkiewicz, 86 Ill. App. 3d 417 (1980), thedefendant was convicted of rape, deviate sexual assault, and armedviolence. During the trial, the State presented evidence ofseveral works of literature recovered from defendant's car duringan inventory search. The State limited the evidence to the titlesof the books--"Death List," "Trapped and Tied Babysitters,""Tempting Teenagers," and "The Curious Nurse." This court heldthat the trial court erred in allowing this evidence, absent ashowing that the books belonged to defendant, that defendant hadread the books, or that their content was somehow relevant to thedefendant's state of mind or to the crime charged. Malkiewicz, 86Ill. App. 3d at 422.

The evidence in the above cases was excluded because the Statedid not connect it to the crime or to the defendant. Here, theknife was connected to both. Brownfield testified that defendantused a knife during the attack and that People's exhibit No. 12 wasthe knife. Defendant's argument is utterly without merit, and wehold that the court properly admitted the evidence.

Defendant's other contention is that his life sentence isunconstitutional under Apprendi. In Apprendi, the Supreme Courtheld that, where factors other than prior convictions are used toincrease the maximum sentence authorized for a crime, the Statemust submit those factors to the jury and prove them beyond areasonable doubt.

Here, defendant committed a Class X felony, for which themaximum prison sentence is 30 years. See 730 ILCS 5/5--8--1(a)(3)(West 2000). He was sentenced to life imprisonment, however,because the court adjudicated him a habitual criminal. See 720ILCS 5/33B--1(a), (e) (West 2000). Section 33B--1 of the HabitualCriminal Act (720 ILCS 5/33B--1 (West 2000)) provides as follows:

"(a) Every person who has been twice convicted in anystate or federal court of an offense that contains the sameelements as an offense now classified in Illinois as a ClassX felony, criminal sexual assault, aggravated kidnapping orfirst degree murder, and is thereafter convicted of a Class Xfelony, criminal sexual assault or first degree murder,committed after the 2 prior convictions, shall be adjudged anhabitual criminal.

(b) The 2 prior convictions need not have been for thesame offense.

(c) Any convictions which result from or are connectedwith the same transaction, or result from offenses committedat the same time, shall be counted for the purposes of thisSection as one conviction.

(d) This Article shall not apply unless each of thefollowing requirements are satisfied:

(1) the third offense was committed after the effectivedate of this Act;

(2) the third offense was committed within 20 years ofthe date that judgment was entered on the first conviction,provided, however, that time spent in custody shall not becounted;

(3) the third offense was committed after conviction onthe second offense;

(4) the second offense was committed after conviction onthe first offense.

(e) Except when the death penalty is imposed, anyoneadjudged an habitual criminal shall be sentenced to lifeimprisonment."

As we noted, Apprendi requires the submission to the factfinder and proof beyond a reasonable doubt of factors other thanprior convictions that increase the maximum sentence for anoffense. Pursuant to the Habitual Criminal Act, defendant'ssentence was increased beyond the statutory maximum. The factorsthat required the increase, however, were merely prior convictions. Accordingly, Apprendi does not apply.

Although we have held that Apprendi does not apply torecidivist statutes (see People v. Watson, 322 Ill. App. 3d 164(2001)), we have not specifically addressed whether sentencingunder the Habitual Criminal Act violates Apprendi. However, theAppellate Court, Fifth District, recently addressed this issue inPeople v. Pickens, 323 Ill. App. 3d 429 (2001). Pickens wasconvicted of armed robbery and sentenced to life imprisonment basedon the court's finding that his prior armed robbery and aggravatedbattery convictions rendered him a habitual criminal. The FifthDistrict rejected defendant's Apprendi challenge to his sentence,noting that the sentence was enhanced only because of priorconvictions. Pickens, 323 Ill. App. 3d at 435.

We agree with the Fifth District. Defendant was eligible forlife imprisonment based on his prior Class X convictions, andApprendi does not require the fact of those convictions to besubmitted to a fact finder and proved beyond a reasonable doubt.

We affirm the judgment of the circuit court of Kane County.

Affirmed.

McLAREN and O'MALLEY, JJ., concur.