SECOND DIVISION
January 17, 2006
No. 1-04-0701
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
WESLEY SLAYTON, ) Honorable
) Thomas R. Sumner,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Following a bench trial, defendant Wesley Slayton was found
guilty of armed robbery and sentenced to six years' imprisonment.
On appeal, defendant contends: (1) the State failed to prove him
guilty beyond a reasonable doubt; (2) the trial court erred in
refusing to conduct an in camera inspection of the State's felony
review folder; and (3) the compulsory extraction and inclusion of
his DNA in state and national databases, pursuant to section 5-4-
3 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4-3
(West 2002)), violated his fourth amendment right to be free from
unreasonable searches and seizures. Although we find the trial
court's refusal to conduct the in camera inspection was error, we
affirm the defendant's conviction and sentence.
FACTS
On January 8, 2003, defendant was arrested and charged with
the armed robbery of Alvin Brown. Defendant filed a written
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pretrial motion for an in camera inspection of the State's felony
review folder. In it, defendant sought "any and all information"
contained in the folder "relating to evidence and/or witnesses
that may exculpate" him. The request was based on reports that
the State at first chose not to charge him with robbery following
a second interview with Brown.
The trial court denied the motion, finding defendant failed
to present sufficient facts to warrant an in camera inspection of
the felony review folder. The court reasoned that defendant had
nothing more than a suspicion about the exculpatory nature of the
evidence contained in the felony review folder and that the State
had indicated that all discoverable documents had been produced.
The evidence adduced by the State at trial showed that at
about 4 a.m. on November 15, 2001, complainant Alvin Brown was
robbed at gunpoint by a man later identified as defendant.
Brown, an electrician, parked his service vehicle in the alley
behind his house when defendant approached, armed with a handgun,
and asked Brown for what he had. Brown dropped his money,
wallet, and cellular telephone to the ground. Dissatisfied,
defendant insisted that Brown had more and patted down his
clothing. Defendant found nothing and then told Brown to leave
or he would shoot him. Brown backed away slowly, keeping his
eyes on defendant because he was afraid to turn his back to him.
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However, when defendant warned him to run or be shot, Brown
turned away and fled. Brown called the police from a nearby gas
station.
Brown saw defendant on two subsequent occasions, but he did
not call the police because, each time, defendant disappeared too
quickly. However, on January 8, 2003, Brown contacted the police
when he saw defendant walking in and out of the alley behind
Brown's house. When the police arrived, Brown said defendant was
sitting on the front porch of a building one block away. The
police arrested defendant on the roof of that building. Brown
positively identified defendant as the man who had robbed him.
On cross-examination, Brown said he gave the police a
description of the offender on the date of the robbery, but he
denied ever describing him as 5 feet 10 inches tall. Brown also
told police the offender had a thin mustache and was dark
complected, which was consistent with another description he
later gave to police. He admitted the offender was 6 feet 4
inches tall.
On further cross-examination, Brown said he had asked
neighbors if they saw anything that might be helpful, but denied
he was trying to obtain a better description of the offender.
Brown also said he had learned from someone that the person
involved was named "Wesley."
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Detective Jasica spoke with defendant at the hospital where
he was awaiting treatment for an asthma attack following his
arrest. Defendant first denied any knowledge or involvement in
the armed robbery. When Detective Jasica reminded him of the
seriousness of the charge, defendant admitted he knew Brown, who
simply did not like him, and that he had words with him before
the day of the robbery.
After defendant was released from the hospital, Detective
Jasica and Assistant State's Attorney Horner spoke with defendant
at the police station. Defendant said he was not truthful in his
earlier conversation with Detective Jasica because he was afraid
of getting into trouble. He then said Brown owed him money for
drugs he had sold to Brown on credit. Defendant said Brown
visited his home once and promised to pay him back, but he never
saw him again.
When Detective Jasica again reminded defendant of the charge
against him, defendant said something different. This time,
defendant said he and his friends went to Brown's home and
demanded his money. Defendant said he was unarmed, but that one
of his friends showed Brown a handgun and took a cellular
telephone from him.
On cross-examination, Detective Jasica admitted he had
indicated in his general case report there was a problem with
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Brown's identification of defendant. He explained, however, that
the discrepancy involved the height of the offender, which he
viewed as a minor matter. Defense counsel then asked Detective
Jasica whether felony charges were initially rejected based on
Brown's identification of defendant, and the trial court
sustained the State's objection based on relevancy because
"[defendant] is here, so apparently they did."
The defense first called Chicago police officer Percy
Alexander as a witness. Officer Alexander said he went to the
scene of the incident and filled out a general offense case
report based on his conversation with Brown. He indicated in his
report that the offender was 5 feet 10 inches tall and dark
complected with brown eyes; there was no mention of a mustache or
the body size of the offender.
Detective Valerie Ford said she spoke with Brown on November
28, 2001. Brown told her the offender was named "Wesley," that
he was 6 feet 4 inches tall, and had a dark complexion.
Following closing arguments, the court found defendant
guilty of armed robbery. In doing so, the court noted the minor
discrepancy in the height description given to police by Brown
and also observed Brown did not mention a mustache or estimate
body size. The court found Brown's testimony was credible. In
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doing so, the court noted Brown "had ample time to view his
assailant at the time that the event took place."
DECISION
Defendant first contends that the State failed to prove his
identity as the offender beyond a reasonable doubt. When a
defendant challenges the sufficiency of the evidence, the
relevant question on review is whether, after considering the
evidence in the light most favorable to the State, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. People v. Schott, 145 Ill. 2d
188, 203, 582 N.E.2d 690 (1991). A criminal conviction will not
be set aside on review unless the evidence is so unlikely or
inadequate that a reasonable doubt of defendant's guilt remains.
People v. Jimerson, 127 Ill. 2d 12, 43, 535 N.E.2d 889 (1989).
We do not find this to be such a case.
The identification of defendant by a single witness is
sufficient to sustain a conviction despite testimony to the
contrary, provided the witness is credible and observed defendant
under circumstances that would permit a positive identification
to be made. People v. Sutton, 252 Ill. App. 3d 172, 180, 624
N.E.2d 1189 (1993). Discrepancies in features such as height are
not dispositive because few persons are capable of making
accurate estimations of such characteristics. People v. Slim,
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127 Ill. 2d 302, 311-12, 537 N.E. 2d 317 (1989), citing People v.
Brown, 110 Ill. App. 3d 1125, 1128, 443 N.E.2d 665 (1982) (7 inch
discrepancy did not lead to "substantial likelihood of
misidentification"); People v. Calhoun, 132 Ill. App. 2d 665,
668, 270 N.E.2d 450 (1971) (5 2 to 6 2 inch variation did not
destroy eyewitness credibility). Here, the evidence showed that
Brown backed away slowly from defendant after he was robbed, and
closely focused on the defendant before turning and running away.
This testimony supports the conclusion that the victim had a
good enough opportunity to view the offender under conditions
that would permit subsequent recognition. People v. Thomas, 72
Ill. App. 3d 186, 195-96, 389 N.E.2d 1330 (1979).
Defendant contends, nevertheless, that the lapse of more
than one year between the event and the victim's identification
of him, the difference between his height and Brown's estimates
of his height, and the fact Brown learned his name based on
conversations with neighbors combine to raise a reasonable doubt
of his guilt. We disagree. See People v. Rodgers, 53 Ill. 2d
207, 214, 290 N.E.2d 251 (1972). The lapse of time goes only to
the weight of the testimony, a question for the trier of fact.
It does not destroy the witness's credibility. Rodgers, 53 Ill.
2d at 214. That Brown saw defendant on two subsequent occasions
and failed to contact police is not as significant as defendant
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suggests; Brown explained that, each time, he only caught a
glimpse of defendant before he disappeared.
We find the identification testimony, combined with the
defendant's various statements, considered in the light most
favorable to the State, sufficient to support the trial court's
finding that defendant was the man who robbed Brown at gunpoint.
Slim, 127 Ill. 2d at 307.
Defendant next contends the trial court erred in refusing to
conduct an in camera inspection of the State's felony review
folder. He asserts that "there is a possibility in this case
that the *** felony review folder contains substantially verbatim
accounts of the interviews with Mr. Brown," and that the trial
court should have conducted an in camera review of the folder to
determine whether it contained any discoverable material.
Defendant's argument is based on Supreme Court Rule 412(a)(i)
(188 Ill. 2d R. 412(a)(I)) and Brady v. Maryland, 373 U.S. 83, 10
L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
An in camera inspection of documents is required if the
State refuses disclosure when defendant has made a specific
demand for the document and has made a preliminary showing of the
document's relevancy to a witness's trial testimony. People v.
Szabo, 94 Ill. 2d 327, 345, 447 N.E.2d 193 (1983). Defense
counsel's written motion triggers the Rule 412 (a)(i) requirement
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that the trial court examine in camera any memorandum that
reports or summarizes an oral statement. If the memorandum is
found to be a substantially verbatim report of an oral statement
by a potential witness it has to be disclosed to defense counsel.
Here, the trial court said it found no reason for an in camera
inspection because defendant had presented nothing more than
suspicion and failed to present enough facts to warrant the
inspection.
Defense counsel made a specific demand for an in camera
inspection of the felony review folder. He based his demand on
the unchallenged assertion that an assistant state's attorney,
after interviewing Brown, recommended that no robbery charge be
filed. Since the defense lawyer had not been allowed to see the
folder, we do not see what else he could have done to persuade
the trial judge to examine it.
When we first examined the briefs in this case the folder
was not part of the record. We ordered the State to deliver the
folder to the trial judge for an in camera inspection. It was
delivered and it was inspected. The trial judge found nothing in
the folder that would have been helpful to the defense. The
folder was resealed and delivered to this court.
We have examined and resealed the folder. We, too, find
nothing in it that would be of assistance to the defense. At the
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same time, we are puzzled by the State's unwillingness to allow
the in camera inspection at trial. The inside two pages of the
folder contain oral statements made by the defendant and the
victim, Brown. The outside of the folder and one small portion
of the inside arguably contain work product, but that is a
decision that should be made by the judge, not the State.
The trial court erred when it refused to examine the folder.
See People v. Norris, 8 Ill. App. 3d 931, 291 N.E.2d 184 (1972).
The error turns out to be harmless, although it caused
unnecessary delay and expenditure of time and effort by the
attorneys, by this court, and by the Illinois Supreme Court,
which was asked to reverse our order for production and
examination of the folder. We believe it is the trial court's
obligation to ensure confidence in the outcome of a criminal
trial. Refusing to examine possibly relevant documents does not
further that goal. Investing 10 minutes or less in an in camera
inspection would have made this a nonissue. The folder will
remain sealed, but now is part of the record in this case.
Lastly, defendant contends the compulsory extraction and
inclusion of his DNA in state and national databases, pursuant to
section 5-4-3 of the Unified Code of Corrections (Code) (730 ILCS
5/5-4-3 (West 2002)), violates his fourth amendment right to be
free from unreasonable searches and seizures because the purpose
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of taking his blood serves no special need beyond general law
enforcement.
This court has consistently rejected constitutional
challenges to section 5-4-3 of the Code such as the one raised by
defendant in this case. See People v. Hall, 352 Ill. App. 3d
537, 816 N.E.2d 703 (2004); People v. Ramos, 353 Ill. App. 3d
133, 817 N.E.2d 1110 (2004); People v. Peppers, 352 Ill. App. 3d
1002, 817 N.E.2d 1152 (2004); People v. Smythe, 352 Ill. App. 3d
1056, 817 N.E.2d 1100 (2004); People v. Edwards, 353 Ill. App. 3d
475, 818 N.E.2d 814 (2004); People v. Butler, 354 Ill. App. 3d
57, 819 N.E.2d 1133 (2004); People v. Foster, 354 Ill. App. 3d
564, 821 N.E.2d 733 (2004); People v. Garvin, 349 Ill. App. 3d
845, 812 N.E.2d 773 (2004), appeal allowed, 212 Ill. 2d 541, 824
N.E.2d 287 (2004); and People v. Redmond, 357 Ill. App. 3d 256,
828 N.E.2d 1206 (2005). We continue to adhere to the holding
that section 5-4-3 is constitutional and we reject defendant's
arguments in this case.
Accordingly, we affirm the judgment of the circuit court of
Cook County.
Affirmed.
GARCIA, P.J., and SOUTH, J., concurring.
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