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No. 3--02--0033

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Defendant Kerwin Doss was convicted of armed robbery (720ILCS 5/18-2(a) (West 2000)) by a Will County jury. He appeals.

I. BACKGROUND

On February 2, 2001, defendant Kerwin Doss was charged in acriminal complaint with armed robbery. The complaint allegedthat on December 27, 2000, defendant took a purse from MelaniVetter while he was armed with a black handgun. An amendedcomplaint was filed on February 5, 2001, again alleging thedefendant took a purse from Melani Vetter while he was armed witha black handgun.

On February 15, 2001, a 20-count indictment was filed. Twoof the counts were directed against defendant. Count IV chargedthe defendant with armed robbery in that, on or about December27, 2000, the defendant, while armed with a toy pistol, knowinglytook a purse from the person of Melani Vetter by threatening theimminent use of force. Count XIV charged the defendant withaggravated robbery in that, on or about December 27, 2000, thedefendant, while indicating by his actions to Melani Vetter thathe had a firearm, knowingly took a purse from Vetter bythreatening the imminent use of force. Defendant was arrestedand taken into custody on March 2, 2001.

On July 2, 2001, the parties appeared in court and announcedthat they were ready for trial. Before proceeding to trial,however, the prosecutor made an oral motion to amend count IV ofthe indictment. The prosecutor requested that the word "toy" bestricken as being surplus language. Defense counsel objected. Defense counsel argued that, since the defense preparation hadbeen based upon the allegation that the defendant used a toy gun,amending the indictment on the day of trial would prejudice thedefendant dramatically. The prosecutor responded that he haddiscussed the issue with defense counsel on the previous Fridayafternoon, at which time he told counsel that the toy gun inevidence was not the gun he would allege was used in the crime. The prosecutor said he intended to argue at trial that a blackhandgun, as identified by the victim, was used by the defendant.

The trial court denied the motion. The court found that itwould be fundamentally unfair to allow the amendment requested bythe State at such a late stage. The court then went on to grantthe prosecutor's motion for a continuation, over a defenseobjection. The court noted that the State had a right to addressits charging issues if it believed it was within the speedy trialterm.

On July 12, 2001, a first superceding bill of indictment wasfiled, charging the defendant with one count of armed robbery andone count of aggravated robbery. Count I charged the defendantwith armed robbery claiming the defendant, while armed with apistol, knowingly took a purse from the victim by threatening theimminent use of force.

On September 13, 2001, the trial court, over a defenseobjection, allowed the State's motion to use as evidence a blackDetroit Tigers starter jacket the defendant was wearing on thedate he was arrested.

The defendant's cause proceeded to a jury trial on September13, 2001. Prior to jury selection, the following exchange thentook place:

"THE COURT: Now Mr. Doss, if you want to join your counsel at the counsel table, and you should remove his cuffs.

THE COURT OFFICER: Shackles off too or just the handcuffs?

THE COURT: No, just the cuffs. His legs are shackled but the tables prevent that from being viewed by the jury."

The victim testified at trial that on December 27, 2000, she arrived at home and parked in front of her house after trips to agrocery and convenience store and saw a man running in herdirection. After shutting the car door, a man put a gun to hertemple and told her to give him the money. She said the gun wasa black handgun with a cylinder that felt like a small metal gunagainst her head. She also said that the man was wearing a blackwinter cap on his head and a black sports jacket with a team logoin silver writing on the front. When the man first put the gunto her head, she thought it was a joke and turned and looked atthe man's face.

After the man saw that she had a purse, he told her to giveit to him, which she did. Next, the man told her to give him hercar keys. The man threw the keys in the middle of the street. The man then turned around and ran south on Nicholson Street.

The victim further testified that on the night of theincident, she met with Detective Bruce Larson. They madearrangements for her to go to the Joliet police department thenext morning to do a composite sketch. She met with DetectiveLarson again the next morning. He asked her questions about therobber's face and made a drawing of the robber. She identifiedPeople's Exhibit No. 3 as the drawing. She testified that afterthe detective drew it, he asked her how close the likeness was tothe person who robbed her, on a scale of "1 to 10." She said itwas an "8."

The victim stated that she met with Detective Larson againabout 31 days later. At that time, he showed her somephotographic lineups. She was able to identify a person from oneof the lineups. When she saw the picture in the lineup, she toldDetective Larson that she "knew it was him." She identified thedefendant in court as the person who robbed her. She alsoidentified People's Exhibit No. 5 as the coat the defendant waswearing that night. She further noted that a streetlight to thesouth of where she parked on the night of the robbery was workingon that date.

On cross-examination, the victim testified that it was darkout when the incident occurred because it happened close to 7p.m., two days after Christmas. When she met with DetectiveLarson on the day after the robbery to do a sketch, he asked herquestions about what the robber looked like. At that point, shewas unsure what the man's eyebrows looked like. She stated thatthe man's hair, ears, and forehead were covered by a cap whichwas just above the eyebrows. She did not observe any facialhair.

She described the man's lips as they were depicted in thecomposite. She believed the man's lips were small, his face wasround, and his nose was kind of pointed. She was confident theman was an African-American. She testified that the black-and-silver coat the robber was wearing was not unique and that otherpeople the same kind.

She admitted that the person she picked out of the lineupdid not look like the person in the composite sketch, except forthe eyes. She stated that the person she described in the sketchand the person she picked out of the lineup 31 days later were"not really close at all." After she gave the composite sketch,she never called the police to say that it might be wrong.

On redirect examination, the victim testified that she was100% sure that the person she pointed out in court was the personwho robbed her. On re-cross-examination, she testified that shehad not seen the defendant at all since the photographic lineupand denied having seen him before in court. She added that thecomposite sketch did not look like the defendant.

Joliet police officer Dennis McWherter testified that onMarch 2, 2001, he and Officer Tichy went to the area of "Secondand Richards." They were looking for the defendant, who waswanted on a warrant. Officer McWherter was in plainclothes in anunmarked police car. He recognized the defendant from adescription he had, so Officer Tichy pulled the car over. Officer McWherter exited the vehicle, announced his office, andtold the defendant to stop. At that point, the defendant lookedat McWherter and began running eastbound. The officer told himto stop several times, but he kept on running. Officer McWherterpursued the defendant until the defendant ran into the front ofthe vehicle of another officer who had just pulled up. Thedefendant was then handcuffed and searched. Officer McWhertertestified that the defendant was wearing a black sports jacketthat looked like People's Exhibit No. 5. He identified People'sExhibit No. 6 as the photograph of the defendant, which depictedhow the defendant looked on the day he was arrested.

On cross-examination, the officer testified that thedefendant did not have a weapon on him when he was arrested nordid the defendant have credit cards, a checkbook, or a pursebelonging to the victim.

Detective Bruce Larson testified that he had receivedtraining as a police sketch artist. He spoke with the victim onthe day of the robbery and arranged to meet with her the nextmorning. She came to his department the next day and said shecould complete a composite sketch of the robber's face. He askedher to describe the suspect's eyebrows. She said the eyebrowswere average, so he drew generic eyebrows. She ran through acatalog that contained at least five pages devoted to each facialfeature. From the catalog, she picked out the face shape, thenose, the eyes, and the mouth. Detective Larson drew the sketchwith a pencil and showed it to the victim when he finished. Shedid not say that the eyebrows should be changed, and she did notprovide any suggestion to make the sketch look more like thesuspect.

Detective Larson went on to testify that on January 29,2001, he met with the victim once more. At this time, he showedher two photographic lineups. He testified that the victim couldnot identify anyone from the first lineup but she did identifythe defendant from the second lineup. He indicated that People'sExhibit No. 4 was the photographic lineup from which the victimidentified the defendant as the suspect. She circled the numberof the picture she recognized and put her initials next to thecircled number.

After the State rested, the court allowed the State's motionto dismiss count II of the first superseding bill of indictment(aggravated robbery).

The defense evidence consisted of a stipulation entered intoby the parties. The stipulation indicated that, if ThereseHussar were called to testify, she would state that she is anofficial court reporter assigned to Will County courthouse. OnJuly 23, 2001, Ms. Hussar was assigned to courtroom 407 of theWill County courthouse. On that day, the case of People v.Kerwin Doss was called by the judge. When the case was called,the victim approached the podium. Kerwin Doss was also presentin courtroom 407 when the case was called.

In rebuttal for the State, the victim testified that duringher previous testimony in the State's case in chief, she hadstated that she had never been in court at the same time as thedefendant. She recalled being in the courtroom on July 23, butshe did not recall seeing the defendant in court that day. Fromwhere she stood in the courtroom, she avoided looking to herright because she saw handcuffed men over there and did not wantto make eye contact with anybody.

On cross-examination, she stated that she had forgottenabout being in court on July 23, 2001. On that day, sheremembered she was sitting outside when the case was called. When she was outside, she saw people in handcuffs in the jury boxbut did not look at "faces or anything."

After listening to closing arguments and retiring todeliberate, the jury found the defendant guilty of armed robbery.

The defendant's cause proceeded to sentencing on November19, 2001. Prior to sentencing the defendant, the trial courtheard and denied the defendant's motion for a new trial. Thecourt then went on to sentence the defendant to a term of 12years of imprisonment.

On December 5, 2001, the defendant filed a motion to reducesentence. That motion was heard and denied on January 3, 2002. Defendant appeals.

II. ANALYSIS

Defendant raises three issues on appeal. First, he contends that he was denied his right to a speedy trial. He also posits that the State failed to prove him guilty beyond a reasonable doubt. Finally, he claims it was an abuse of the trial court's discretion to require him to remain shackled during the trial.

A. Defendant's Speedy Trial Claim

Section 103--5(a) of the Code of Criminal Procedure of 1963(Code) states:

"Every person in custody in this Statefor an alleged offense shall be tried by thecourt having jurisdiction within 120 daysfrom the date he was taken into custodyunless delay is occasioned by the defendant." 725 ILCS 5/103--5(a) (West 2000).

On February 15, 2001, the defendant was charged byindictment with armed robbery. The indictment accused thedefendant of committing this armed robbery with a "toy pistol."The defendant was taken into custody on March 2, 2001. A firstsuperceding bill of indictment was filed on July 12, 2001,charging the defendant with armed robbery with a "pistol." Theword "toy" had been removed. Defendant ultimately proceeded totrial on September 13, 2001, which was 165 days after his arrest. During the course of his confinement, 71 days of delay wereattributable to the defendant. Defendant contends that becausethe State filed a first superceding bill of indictment upon whichhe was ultimately tried, the State does not get the benefit ofthese 71 days of delay attributable to him for speedy trialpurposes. As such, he claims he was tried more than 120 daysfrom the date taken into custody and his conviction shouldtherefore be vacated and the charge against him dismissed.

"Where new and additional charges arise from the same factsas did the original charges and the State had knowledge of thesefacts at the commencement of the prosecution, the time withinwhich trial is to begin on the new and additional charges issubject to the same statutory limitation that is applied to theoriginal charges. Continuances obtained in connection with thetrial of the original charges cannot be attributed to defendantswith respect to the new and additional charges because these newand additional charges were not before the court when thosecontinuances were obtained." People v. Williams, 94 Ill. App. 3d241, 248-49, 418 N.E.2d 840, 846 (1981).

The parties agree that if the first superceding bill ofindictment merely cured a "formal" defect in the originalindictment, then speedy trial provisions are not implicated andthe 71 days of delay attributable to the defendant apply to thesecond indictment. See People v. Milton, 309 Ill. App. 3d 863,723 N.E.2d 798 (1999). However, if the second indictmentcontained substantive changes that altered the nature andelements of the offense charged, then the new indictment issubject to the same speedy trial limitations applicable to theoriginal indictment. Milton, 309 Ill. App. 3d at 866. Anamendment is substantive if it materially alters the charge andit cannot be determined whether the grand jury intended thealteration. Milton, 309 Ill. App. 3d at 866. See People v.Flores, 250 Ill. App. 3d 399, 62 N.E.2d 142 (1993). Whenapplying this reasoning to the case at bar, we conclude that theamendment of the indictment from "toy pistol" to "pistol" was notsubstantive. The indictment signed by the grand jury accused thedefendant of taking the victim's property while armed with "adangerous weapon, a toy pistol," in violation of section 18--2(a)of the Criminal Code of 1961. 720 ILCS 5/18--2(a) (West 2000). Toy guns can be dangerous weapons under this section. See Peoplev. Skelton, 83 Ill. 2d 58, 414 N.E.2d 455 (1980); People v.Bayless, 99 Ill. App. 3d 532, 425 N.E.2d 1192 (1981).

The State needed to put forth evidence that the defendantwas armed with a dangerous weapon in order to convict thedefendant of violating section 18--2. Changing the exactdangerous weapon listed in the original indictment does not alterthe nature of the offense. Furthermore, the State did not add anew or additional charge merely by amending the exact dangerousweapon used during the armed robbery. In the original indictmentthe defendant was charged with armed robbery. In the firstsuperceding bill of indictment, the defendant was charged witharmed robbery. Clearly, the nature of the offense stayed thesame and no new or additional charges were added by thesuperceding bill of indictment.

We agree with defense counsel that such a change can alterthe defense theory, but it does not change the elements of thecrime or the nature of the offense. A change in an indictmentfrom a black pistol to a chrome pistol might also alter defensetheory somewhat if a victim was on record as stating she had seenone or the other. However, such a change would clearly beformalistic and would not add a new or additional charge. Therefore, speedy trial considerations would not be implicated.

Defendant believes the trial court's denial of the State'soral motion to amend the indictment and strike the word "toy"made pursuant to section 111--5 of the Code of Criminal Procedureof 1963 (725 ILCS 5/111--5 (West 2000)) evinces a finding by thetrial court that the amendment was substantive and not formal. We disagree. The trial court made no specific finding as towhether it believed such an amendment was substantive or formal.

The trial court noted during the oral motion that thedefendant "prepared this case envisioning that you would bepresenting this as a toy gun case." On the day of trial, thecourt went on to state that it was "too late" to make such anamendment "at this late date." The court then remarked that ifthe State was within speedy trial demands, it could reindict thedefendant. That is exactly what the State did. The defendantcites no authority, and we could find none, that holds a denialof a motion under section 111--5 is an automatic finding that thechange sought by the State is substantive.

We hold the defendant was not denied his right to a speedytrial. The change in the indictment was merely formalistic anddid not alter the nature of the offense charged.

B. Reasonable Doubt

Defendant avers that the evidence introduced at trial wasinsufficient to prove him guilty beyond a reasonable doubt. Whenconsidering such a claim, it is not our function to retry thedefendant but, rather, to examine the evidence in the light mostfavorable to the prosecution and determine whether any rationaltrier of fact could have found the essential elements of thecrime proven beyond a reasonable doubt. People v. McDonald, 168Ill. 2d 420, 660 N.E.2d 832 (1995).

The victim testified at trial and identified the defendantas the one who robbed her. She testified that she looked at thedefendant "just enough" before he turned her head away with theweapon. On cross-examination, when asked if this "brief look"lasted "a couple of seconds," she responded affirmatively. Shestated she was 100% certain that the defendant was the one whorobbed her.

A single witness's identification of a defendant issufficient to sustain a conviction if the witness viewed thedefendant under circumstances permitting a positiveidentification. People v. Lewis, 165 Ill. 2d 305, 651 N.E.2d 72(1995), citing People v. Slim, 127 Ill. 2d 302, 537 N.E.2d 317(1989). While it was dark outside during the attack, a properlyworking streetlight was located at the scene. Moreover, thevictim stated when she arrived home the night of the attack, shesaw a man who was approximately 15 feet away running in herdirection. She said hello to the man. This was the same man whoput a gun to her head. We find the circumstances under which the victim viewed herassailant were sufficient to permit a positive identification, even considering the discrepancies between the composite sketchand defendant's appearance. When examining the evidence in thelight most favorable to the prosecution, we hold that a rationaltrier of fact could find the essential elements of armed robbery.

C. Shackling of Defendant

Defendant next contends that it was an abuse of the court'sdiscretion to force him to remain in leg shackles during histrial, and that he is, therefore, entitled to a new trial. Weagree.

We review the circuit court's decision to keep the defendantshackled during trial under an abuse of discretion standard. People v. Boose, 66 Ill. 2d 261, 267, 362 N.E.2d 303, 306 (1977). The State argues the defendant waived this issue as he didnot object at trial to being shackled. Defendant asks us toreview this matter under the plain error doctrine.

A reviewing court will review an issue under the plain errordoctrine if the evidence is closely balanced or if the allegederror was so serious that it deprived the defendant of a fairtrial. People v. Blackwell, 164 Ill. 2d 67, 646 N.E.2d 610(1995). Therefore, we must determine whether the judge's refusalto remove defendant's shackles deprived him of a fair trial andwas therefore plain error.

The presumption of innocence is central to ouradministration of justice. In re Staley, 67 Ill. 2d 33, 364N.E.2d 72 (1977). In the absence of exceptional circumstances,an accused has the right to stand trial with the appearance,dignity and self-respect of an innocent and free person. Staley,67 Ill. 2d at 37.

In People v. Boose, 66 Ill. 2d 261, 362 N.E.2d 303 (1977),our supreme court stated that shackling should be avoided, ifpossible, because "(1) it tends to prejudice the jury against theaccused; (2) it restricts his ability to assist his counselduring trial; and (3) it offends the dignity of the judicialprocess." Boose, 66 Ill. 2d at 265. When there is reason tobelieve a defendant may try to escape, may pose a threat to thesafety of people in the courtroom or when it is necessary tomaintain order during trial, shackling is allowed. Boose, 66Ill. 2d at 265-66.

The Boose court went on to state:

"The trial judge should state for the recordhis reasons for allowing the defendant toremain shackled, and he should give thedefendant's attorney an opportunity topresent reasons why the defendant should notbe shackled. These proceedings should takeplace outside the presence of the jury." Boose, 66 Ill. 2d at 266.

We hold the judge's refusal to remove defendant's shackleswas plain error as it deprived him of a fair trial. A merestatement on the record that the judge believed the jurors couldnot see the shackles, as their view was obstructed by a table, isinsufficient under Boose. The defendant had a right to apresumption of innocence and to stand trial with the appearanceof an innocent and free person. While always of paramount importance, this right becomes even more significant in casessuch as this where the defense theory is one of mistaken orinaccurate identity.

We therefore find that it was an abuse of discretion for thetrial court to keep the defendant in shackles during the trialwithout stating on the record compelling reasons for so doing.

CONCLUSION

For the foregoing reasons, the judgment of conviction isreversed and this cause is remanded for further proceedingsconsistent with this opinion.

Reversed and remanded.

LYTTON and O'BRIEN, JJ. concur.