People v. Goné

No. 3--04--0938
_________________________________________________________________
Filed August 13, 2007.
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 00--CF--1008
)
FRANCISCO J. GONÉ, ) Honorable
) Richard Schoenstedt,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE CARTER delivered the opinion of the court.
_________________________________________________________________

A jury found defendant Francisco J. Goné guilty of

aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West

2000)); and, in a simultaneous bench trial, the court found him

guilty of unlawful possession of a weapon and unlawful possession

of ammunition by a felon (720 ILCS 5/24--1.1(a) (West 2000)).

Defendant was sentenced to concurrent prison terms of six years

for aggravated discharge and four years each for the unlawful

possession convictions. Defendant appeals, arguing that (1) he

was denied his right to due process when he was required to wear

a stun belt at trial without a prior "manifest necessity"

hearing; and (2) plain error resulted when the court

misinstructed the jury as to how it was to consider
identification evidence. We affirm.

BACKGROUND

Defendant was charged in six counts with offenses arising

out of a drive-by shooting committed in Lockport, Illinois, on

the evening of July 3, 2000. Prior to trial, the State nolle

prossed a charge of aggravated unlawful use of a weapon in

street-gang activity, and defendant waived his right to a jury on

counts charging unlawful possession of a weapon and ammunition by

a felon. On September 8, 2003, the cause proceeded to a bench

trial on the possession charges, and a simultaneous jury trial on

aggravated discharge of a firearm and two counts of aggravated

battery with a firearm.

At trial, witnesses for the State identified defendant as

the front-seat passenger of a maroon Chevrolet Beretta from which

gunshot was fired at a group of young men gathered outside of

Andy Cerros' house. Cerros' girlfriend, Lisa Tarnowski, had just

stepped out of the front door of the house when she saw the

Chevrolet pull up in front of the garage where the young men were

working on a car. She heard five or six shots, and then the

Beretta proceeded by the house. Tarnowski said it was still

light out. As she approached the sidewalk in front of the house,

the passenger looked directly at her. She did not know him. She

described the passenger as a male about 20 years old with short

hair. On July 11, 2000, she viewed a photographic lineup and

2
identified defendant as the man she had seen. Tarnowski also

made an in-court identification.

Cerros testified that he was having a beer with friends

after working on his friend's car when the maroon Beretta drove

up and opened fire on them. He saw the flash of gunshot from the

front passenger side of the car. He said five or six shots were

fired, and some of them struck his cousin's car. He noted that

both the passenger and the driver were male Hispanics. Later

that evening, Cerros viewed a lineup. He saw a person that

looked just like the front-seat passenger, but he did not

positively identify him. On July 11, Cerros positively

identified defendant from a photo array. Cerros also made an in-

court identification of defendant as the front-seat passenger of

the Beretta.

Cerros' cousin, George Torres, testified that he saw the

maroon Beretta approaching Cerros' house as he was getting ready

to leave. He heard five shots fired from the car and saw that

there were two persons in it. Torres jumped into his car and

pursued the Beretta. When the Beretta stopped at a stop sign,

Torres noted that the passenger wore his hair in a "shag," with a

tail in the back. The Beretta then sped off, and Torres gave up

the chase. Torres later found three bullet holes in his car.

Curtis Cooper testified that he was standing in the driveway

at Cerros' residence with Cerros and his friends in the early

3
evening of July 3, 2000, when a red Chevrolet Beretta drove up

and shots were fired from the passenger side. He said the car

was proceeding slowly by the house, and the two occupants of the

car appeared to be male Hispanic, white or light-skinned African-

American. Immediately after the shooting, Cooper noted that he

had been hit in the right index finger. He jumped into his car

to give chase; however, he saw that he was losing a lot of blood

and drove himself to the hospital instead. A bullet was removed

from his finger the following morning.

Cesar Ramirez testified that he was having a beer in the

driveway of Cerros' house the evening of July 3, 2000, after his

friends replaced the brakes on his car. When he heard gunshots,

he threw himself to the ground. He said he heard about six

shots, but he did not see where they came from. He was grazed on

the right side of his body by a bullet, and he found a large

bullet hole in the trunk of his car.

Angel Marcano testified that he was driving his mother's red

Beretta on the evening of July 3, 2000. Between 8 and 11:30

p.m., he was in Lockport visiting his friends, Eddie Solis and

defendant, at Solis' home. When Marcano left with defendant,

defendant suggested they drive by Cerros' house to yell gang

slogans at him if he was there. Marcano said he slowed the car

as they approached Cerros' house, and then defendant pulled out a

handgun and started firing out the passenger side window at the

4
men standing there. Marcano said he was a member of the Two-Six

street gang on the day of the shooting. He was arrested for the

offense on July 10 and subsequently pleaded guilty to aggravated

discharge of a firearm for his part in the incident.

The State's witnesses identified Marcano's vehicle as the

maroon or red Beretta from which the shots were fired. Jeremy

McElroy, another member of the Two-Six gang in July 2000,

testified that he told the police in July 2001 that defendant

fired a .380-caliber automatic during another drive-by shooting

on July 9. Forensic evidence established that spent .380-caliber

automatic projectiles recovered from the July 3 incident were

fired by the same weapon used in the July 9 shooting.

After the State rested, defendant presented an alibi

defense. Defendant's fiancée, Carissa White, testified that

defendant and his friends were at her mother's house for a

birthday party for Talesa, their two-year-old daughter, the

evening of July 3, 2000. After the party, around 10 p.m., she,

defendant and Talesa left her mother's house and drove to

defendant's mother's house, where they spent the night. Carissa

said they rented chairs for the guests from Joliet Rental, and

she thought they returned them a few days later.

Corroborating testimony was provided by defendant's mother,

Flor Martinez; Carissa's mother, Percie Jean White; Carissa's

sisters, Charlene and Kimberly Thigpen; defendant's friend, Jose

5
Ortiz; and Carissa's friends, Keisha and Kristal Weeks.

Carissa's mother testified that defendant was wearing a "shag"

hairstyle--short with a little tail--on the day of the party.

Kimberly testified that Jeremy McElroy, who also attended the

party on July 3, wore the "shag" hairstyle as well. She said it

was the trend at the time. On cross-examination, Kimberly

admitted that she was interviewed by the police on July 14, 2000,

regarding Carissa's whereabouts. She did not recall telling the

investigator that Talesa's birthday party was held on July 2.

In rebuttal, Will County sheriff's investigator Bradley

Wachtl testified that, when he interviewed Kimberly on July 14,

2000, she told him that the birthday party at her mother's house

was held on July 2, 2000. The State also introduced Malissa

Kanive, manager of the equipment rental business from which

defendant had rented the chairs for Talesa's birthday party.

Kanive testified that the company's records showed that defendant

picked up the chairs at 12:53 p.m. on July 1, 2000, and returned

them at 12:45 p.m. on July 3.

In closing arguments, the prosecutor argued that Lisa

Tarnowski clearly and unequivocally identified defendant as the

July 3, 2000, shooter. He stated,

"When you weigh the identification testimony of a

witness, you should consider all of the facts and

circumstances in evidence. That means when you look at

6
 the identification, you've got to look at everything

and not just the parts, including but not limited to

the following: the opportunity the witness had to view

the offender at the time of the offense; the witness's

degree of attention at the time of the offense; the

witness's earlier description of the offender; the

level of certainty shown by a witness when confronting

the defendant."

Following their deliberations, the jury found defendant

guilty of aggravated discharge of a firearm, and not guilty of

two counts of aggravated battery with a firearm. The court found

defendant guilty of unlawful use of a weapon and ammunition by a

felon.

Prior to sentencing, defendant moved for a new trial on the

ground that his right to due process of law was violated, because

he was forced to wear a stun belt and the court had not taken

affirmative action to consider whether there was a manifest need

for the restraint. At the hearing on the motion, defendant's

attorneys testified that the restraint around defendant's waist

created an obvious, block-like protrusion under his shirt. The

State presented security officers who testified that it was a

standard policy in the Will County courthouse to place stun belts

around defendants during felony trials. However, to the

witnesses' knowledge, no stun belt had ever been activated while

7
it was being worn by a defendant.

Before ruling on defendant's motion, the court made note of

certain observations that it had made during defendant's trial:

defendant was charged with crimes of violence, and he had a prior

felony conviction involving a weapon; he had absented himself

from the state of Illinois for more than two years following the

shooting; he was young and appeared physically fit; the offenses

were possibly related to gang rivalry; witnesses testified in

court wearing their gang colors; and, due to a brief altercation

between witnesses waiting in the hallway, the court had had to

enter an order to keep them apart.

The court also noted that defendant had been polite and

respectful of the court during the proceedings; he sat at counsel

table between his attorneys; he stood, sat and walked without

difficulty; the stun belt was not noticeable under the loose-

fitting shirt defendant wore; he had not complained prior to or

during trial about the device; and it did not appear that he had

any difficulty communicating with his attorneys. The court

concluded that any prejudice to defendant resulting from the use

of the stun belt during the trial was outweighed by the court's

pretrial security concerns. Accordingly, the court denied

defendant's motion.

Defendant was subsequently sentenced, as aforesaid, and he

appeals.

8
 ISSUES AND ANALYSIS

1. Stun Belt

Defendant contends that the court's posttrial rejection of

his claim of a due process violation resulting from use of a stun

belt was an abuse of discretion.

In People v. Boose, 66 Ill. 2d 261, 362 N.E.2d 303 (1977),

our supreme court ruled that, before shackling is used on a

defendant at trial, the court should consider whether there is a

manifest need for restraints. Relevant factors to be considered

include: the seriousness of the charge against the defendant; his

temperament and character; his age and physical attributes; his

past record; any past escapes, attempted escapes, or plans to

escape; threats to harm others or cause a disturbance; self-

destructive tendencies; the risk of violence or attempted revenge

by others; the possibility of rescue by other offenders still at

large; the size and mood of the audience; the nature and physical

security of the courtroom; and the availability of alternative

remedies. Boose, 66 Ill. 2d 261, 362 N.E.2d 303. If the court

concludes that a defendant may try to escape, pose a threat to

the safety of courtroom occupants or disrupt the order in the

courtroom, shackling may be ordered. Boose, 66 Ill. 2d 261, 362

N.E.2d 303. The court's determination that there is a manifest

need to use shackles will not be disturbed on review absent an

abuse of discretion. Boose, 66 Ill. 2d 261, 362 N.E.2d 303;

9
People v. Buss, 187 Ill. 2d 144, 718 N.E.2d 1 (1999).

It is now well settled that requiring a defendant to wear a

stun belt without conducting a Boose hearing is a due process

violation. People v. Allen, 222 Ill. 2d 340, 856 N.E.2d 349

(2006). This court has held, however, that the failure to

conduct a pretrial Boose hearing may be remedied by a

retrospective hearing, in which the parties' arguments are

presented and the court places its reasons for requiring

restraints in the record. People v. Johnson, 356 Ill. App. 3d

208, 825 N.E.2d 765 (2005); see also Buss, 187 Ill. 2d 144, 718

N.E.2d 1 (no error found where defendant made a pretrial

objection to the use of shackles and Boose hearing was not

conducted until the issue was presented in a posttrial motion).

In this case, the record shows that the court fully heard

the parties' evidence and arguments when the issue was first

presented for the court's consideration in a posttrial motion.

Accordingly, we will apply a deferential standard of review to

the trial court's denial of defendant's motion. See Johnson, 356

Ill. App. 3d 208, 825 N.E.2d 765; Buss, 187 Ill. 2d 144, 718

N.E.2d 1. Under the abuse-of-discretion standard, a trial

court's decision will not be disturbed unless it is "fanciful,

arbitrary, or unreasonable to the degree that no reasonable

person would agree with it." People v. Ortega, 209 Ill. 2d 354,

808 N.E.2d 496 (2004).

10
 The court's decision in this case was supported by no less

than five valid considerations for requiring a defendant to be

restrained: (1) defendant was charged with serious crimes of

violence; (2) he was young and physically fit; (3) he had a prior

record of violence; (3) he presented a possible escape risk, in

that he had eluded arrest for two years following the incident

for which he was on trial; (4) because of gang involvement, a

risk of further violence or revenge was presented; and (5) the

mood of some of the witnesses attending court was volatile,

requiring court intervention. See Boose, 66 Ill. 2d 261, 362

N.E.2d 303. The court also considered that the stun belt was

worn under a loose-fitting shirt, and it was not obvious to the

jury or others that defendant was wearing it. Moreover, there

was no indication that defendant had trouble communicating with

counsel while wearing the device or that it hindered his

movement.

Although the trial court acknowledged that some of the Boose

factors weighed in defendant's favor, the court reasonably

concluded that factors justifying the use of a restraining device

outweighed any prejudice to him. Based on this record, we cannot

say that the court abused its discretion in denying defendant's

posttrial challenge to the use of a stun belt. See Johnson, 356

Ill. App. 3d 208, 825 N.E.2d 765; Buss, 187 Ill. 2d 144, 718

N.E.2d 1.

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 2. Jury Instruction

Next, defendant contends that he is entitled to a new trial,

because the jury was improperly instructed on the reliability of

eyewitness identification testimony (Illinois Pattern Jury

Instructions, Criminal, No. 3.15 (4th ed. 2000)). Defendant

claims that, although he did not object to the instruction, plain

error resulted because the evidence was closely balanced.

The written jury instruction read as follows:

"When you weigh the identification testimony of a

witness, you should consider all the facts and

circumstances in evidence, including, but not limited

to, the following:

The opportunity the witness had to view the offender at

the time of the offense.

or

The witness's degree of attention at the time of

the offense.

or

The witness's earlier description of the offender.

or

The level of certainty shown by the witness when

confronting the defendant.

or

The length of time between the offense and the

12
 identification confrontation."

In People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005),

the court ruled that the use of "or" between the factors in this

instruction was ambiguous and misleading, because the jurors

might have believed that any one factor, but not all five, could

be considered in evaluating the reliability of identification

testimony. In Herron, as here, defense counsel failed to raise

the jury instruction issue error in the trial court. As a

general rule, a defendant's failure to properly preserve an issue

with a contemporaneous objection and inclusion of it in a

posttrial motion forfeits the issue for review. People v. Enoch,

122 Ill. 2d 176, 522 N.E.2d 1124 (1988). The Herron court ruled,

however, that the faulty instruction resulted in plain error,

entitling the defendant to a new trial, when he established

prejudice because the evidence was "so closely balanced that the

error alone severely threatened to tip the scales of justice

against him." Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479.

The seriousness of the risk that an instruction error

resulted in prejudice depends on the quantum of the State's

evidence of the defendant's guilt. Herron, 215 Ill. 2d 167, 830

N.E.2d 467. In this case, unlike Herron, defendant has not shown

that the evidence of his guilt was so closely balanced that

prejudice might have resulted from the erroneous jury

instruction. Three eyewitnesses positively identified defendant

13
as the passenger in the car from which shots were fired from the

passenger side on July 3, 2000: Angel Marcano, defendant's

accomplice; Andy Cerros, the intended victim of gang harassment;

and Lisa Tarnowski, who had no prior association with defendant.

The witnesses' descriptions of the passenger were generally

consistent and resulted in a positive identification of defendant

within eight days of the incident.

Tarnowski's identification testimony was particularly

certain and compelling. She was not in the line of fire, and,

among the young people at the Cerros residence, she had the best

opportunity to pay close attention to the passenger's face.

There was no indication that Tarnowski had any motive to

misidentify defendant. In addition, the State presented ample

other evidence linking defendant to the crime and impeaching the

credibility of his alibi witnesses. Our analysis of the

circumstances in this case is in conformity with the factors

listed by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 34

L. Ed. 2d 401, 93 S. Ct. 375 (1972), for assessing the

reliability of identification testimony. See also People v.

Piatkowski, No. 102087 (Ill. May 24, 2007).

On this record, we cannot say that the evidence of guilt was

close or that the jury's verdict might have been affected by the

erroneous written instruction. Therefore, we hold that defendant

is not entitled to relief under the plain error doctrine.

14
 CONCLUSION

The judgment of the circuit court of Will County is

affirmed.

Affirmed.

SCHMIDT, J. concurs.

JUSTICE McDADE, concurring in part, dissenting in part:

The majority has affirmed the judgment of the Will County

Circuit Court convicting the defendant, Francisco Goné of

aggravated discharge of a firearm. In affirming, they rejected

Goné’s claims that (1) he was denied due process when he was

required to wear a stun belt without a prior "manifest necessity"

hearing, and (2) plain error resulted from the court’s erroneous

instruction to the jury, and his request for a new trial.

On the issue of the jury instruction, the majority agrees

that the instruction given by the court was, in fact, erroneous,

but, relying on the supreme court’s reasoning in People v.

Herron, 215 Ill. 2d 167, 830 N.E. 2d 467 (2005), finds that there

was not plain error because the evidence was not so closely

balanced that the mistake "severely threatened to tip the scales

of justice against him." Herron, 215 Ill. 2d at 187, 830 N.E. 2d

at 479. Because I believe that the evidence against the

defendant is not closely balanced and that the pertinent supreme

court decisions compel our rejection of this claim by defendant,

I concur.

15
 I do not, however, believe People v. Allen, 222 Ill. 2d 340,

856 N.E. 2d 349 (2006), compels our rejection of the stun belt

claim. For that reason, I dissent on that issue.

In Allen, the supreme court placed a significant element of

the burden of ensuring a fair trial not on the court and the

attorneys -- where, in my opinion, it clearly belongs -- but on

the defendant, and has thereby created a trap for the unwary and

the procedurally ignorant. Thus, if the defendant or his

attorney is not savvy enough to buck the "policy" of putting stun

belts on all felony defendants by raising a specific objection in

court, he has "waived" what the supreme court has recognized as a

clear constitutional due process violation. Despite that aspect

of its holding in Allen, the court has also told us that a

defendant who is shackled during trial without justification has

not only been deprived of due process, he has also been denied a

fair trial.

The trial judges of this district have long known that due

process requires a Boose hearing before a prisoner can be

shackled (or otherwise restrained) for his trial because the

supreme court told them so 30 years ago. People v. Boose, 66

Ill. 2d 261, 362 N.E. 2d 303 (1977). Despite this knowledge, we

get case after case where trial courts reject the supreme court

directive in favor of acceding to the internal policy of some

sheriffs to put stun belts (or other restraints) on all felony

16
defendants. Our responses to what I believe to be a clear

dereliction on their parts has been to reward them with tortured,

internally-inconsistent decisions that exculpate their wrongful

conduct. This court has found -- and continues to find -- that a

retrospective hearing is sufficient to vindicate a wrong that has

already happened, knowing full well that a court that has

deliberately violated Boose will find some way to justify its

failure to actually evaluate, before trial, the need for the

defendant to be shackled. To do otherwise necessitates the

expenditure of the time, effort, and money to ensure the

defendant will receive a fair and constitutionally sufficient

trial.

This case is a perfect example. The trial court found --

post trial and post due process deprivation -- that because the

defendant was charged with a serious offense (although he was

still presumed innocent of that offense when the trial began),

because he was young and physically fit, because witnesses

outside the courtroom (of whom the defendant was not one) were

volatile, because he had eluded capture for two years; it was

reasonable to believe that he would try to escape or would

endanger persons in the courtroom during the trial. He,

therefore, needed to wear a stun belt.

In point of fact, the defendant was, as the trial judge

expressly acknowledged, "polite and respectful of the court

17
during proceedings; he sat at counsel table between his

attorneys...". (Slip op. at 7.) It makes no difference that "he

stood, sat and walked without difficulty, the stun belt was not

noticeable under the loose-fitting shirt [he] wore... and it did

not appear that he had any difficulty communicating with his

attorneys." (Slip op. at 7-8.) It is still the law of Illinois

as articulated by our supreme court that if a defendant is

shackled during trial without justification, his right to a fair

trial has been denied (People v. Allen, 222 Ill. 2d 340,346, 856

N.E.2d 349, 353 (2006); People v. Herron, 215 Ill. 2d 167, 830

N.E. 2d 467 (2005); In re Staley, 67 Ill. 2d 33, 37, 364 N.E. 2d

72 (1977), and he must be re-tried. There is nothing in

defendant’s trial conduct to suggest that the stun belt was ever

necessary and that he was not restrained without justification.

It is, I think, a fair inference that the trial court did

not even consider, prior to trial, whether the defendant was

being properly restrained. It simply did what the supreme court

forbade in Boose and permitted defendant to be restrained at

trial without a prior determination that such restraint was

necessary. It also did what we forbade in People v. Martinez,

347 Ill. App. 3d 1001, 808 N.E. 2d 1089 (2004), and blindly

complied with the "standard policy" of the Will County sheriff to

place stun belts on defendants in felony trials, thereby allowing

someone other than the judge to dictate the constitutional

18
propriety of defendant’s trial. It is also wholly irrelevant,

based on the supreme court’s analysis in Allen, that "no stun

belt had ever been activated while it was being worn by a

defendant." (Slip op. at 7,) The "evil" to be avoided is

standing unnecessarily restrained at trial in violation of due

process and of the presumption of innocence, not merely receiving

a shock -- unpleasant and potentially lethal as that may be. I

believe that the supreme court’s analysis in Allen authorizes

reversal of defendant’s conviction under the particular facts of

this case.

Having said all of this, I would also suggest that the root

of this problem that we confront time and time again is the

current "standard policy." I believe the procedural aspects of

all these cases could be eliminated with a simple policy change -

- a change that is consistent not only with Allen, 222 Ill. 2d

340, 856 N.E. 2d 349, but also with Boose, 66 Ill. 2d 261, 362

N.E. 2d 303, Herron, 215 Ill. 2d 167, 830 N.E. 2d 467, and

Staley, 67 Ill. 2d 33, 364 N.E. 2d 72, and our decision in

Martinez, 347 Ill. App. 3d 1001, 808 N.E. 2d 1089. The policy I

propose enforcing is that every defendant steps into the

courtroom without restraints unless the sheriff or the State

specifically requests leave of court to restrain him or her. The

required response to this request should be a Boose hearing at

which the State bears the burden of proving to the satisfaction

19
of the court that the defendant poses a danger that warrants his

being restrained. That procedure is both inherent in and

explicitly articulated and implicitly mandated by the cases cited

above.

Such a policy is fully compliant with the federal and state

constitutions and prior validated supreme court precedent,

comports with general notions of fairness in the courts, and does

not violate Allen. It also has the benefit of obviating the need

for highly suspect retrospective hearings on the propriety of

having already denied defendant due process and the potential

need for expensive and inconvenient retrials.

This court should direct the circuit court of Will County

(and all of the courts of this district) to change whatever

current policy is being followed that requires a defendant to be

restrained at trial without a Boose hearing. We should not,

however, need to do this since the supreme court has, in fact,

already mandated such a policy. In Allen, the court stated:

"Here, as in Martinez, the trial court never made a

Boose analysis; it simply deferred to the judgment of

the sheriff. We agree with the Martinez court that

this abdication of the trial court’s responsibility is

not acceptable. ‘The court must rigorously control its

own courtroom procedures and, consistent with the

mandates of due process, protect the rights of the

20
 parties and the public.’ Martinez, 347 Ill. App. 3d at

1004. Indeed, the type of policy adopted by the Will

County sheriff, requiring all custodial felony

defendants to wear stun belts while in court, was

frowned upon by this court almost 30 years ago in

Boose.

‘"*** [T]he trial judge must make the

decision to use physical restraints on a

case-by-case basis. The court cannot adopt a

general policy of imposing such restraints

*** unless there is a showing of necessity on

the record. *** (Emphasis in the original.)

Boose, 66 Ill. 2d at 268, quoting People v.

Duran, 16 Cal. 3d 282, 293 545 P.2d 1322,

1329 *** (1976)’"

(Emphasis added.) Allen, 222 Ill. 2d at 348-49, 856 N.E.2d

at 354.

It seems abundantly clear to me that the supreme court has

forbidden the exact policy on which the Will County court has

relied to justify its failure to hold a Boose hearing for the

purpose of making a determination of the need for restraint of

defendant Francisco Goné. I believe it is our job to enforce

that mandate by highlighting its existence to the circuit courts

and sanctioning its violation.

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