No. 2-09-0058 Filed: 11-30-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 07--CF--3124 ) PEDRO LI

MON, ) Honorab le ) Christopher R. Stride, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE McLA REN delive

red the o pinion of t

he court : Defend ant, Pedro Limon, was convicted afte r a jury trial

of one count of robbery

(enhanced) (720 IL CS 5/18--1(a) (West 2006)). The trial court denied defendant' s subsequent motion for a new trial or fo r j ud gm en t n ot wi th st an di ng th e v er di ct an d s en te nc ed hi m t o a te rm of 13 ye ars i n the Department

of Corre ctions. De fendant now appe als from h

is conviction, contending that the trial court erred in granting

the State's motion in limine and allowing the State to introduce evidence of defendant's possession of a gun at the time of his arrest. We reverse and remand. Defendant

and two ot

hers, Tobijohn Smith and Dwayne Ter rell, were each charg ed with one count of robbery

(enhanced) and

two count s of agg

ravate d batter

y ( 720 I LCS 5/1 2--4(b) (10) (We st 2006)) arising out of an incident occurring on A ugust 6, 2007, in which Janet Krueger, who was overNo. 2--09--0058

1 Neither Smith nor Te

rrell wa s tried wi

th defen dant. Te rrell ag reed to t estify for the St

ate and against defendant as part of a plea agreement in his own case.

-2- 60 years old, wa s injured when her purse was stolen and she fell to the g round. 1 Defendant was arrested 11 days later a

fter a foot chase by

police. As defendant tripped and fell, a handgun f ell from his pants. Defendant struggled with seve ral po lic e officers and received a n injury to his ey

e. Defendant

was subse quently

charg ed with a f

elony weapons offense in a separate case that is not at issue in thi s appeal
. Before trial, the State moved in limine to allow evidence of the circumstancesof defe ndant 's arrest, "to expla

in the ca use of de fendant's injur

y, a s well as t

o sh ow h is proximity to the location of the robbery

of Ms. Krueger, and to explain why the defendant

was a suspect in the robbery ." The trial court g

ranted t he State' s motion, a

llowing t estimony about the gun and defenda nt's str uggle with the police officers "as an explanation for why they used the for

ce that they use d." Defendant argues that he wa s denied a fair trial by the admission of the evidence regar ding his possession of the gun on the night that he was apprehended. Evidenc e is admissible if it (1) fairly tends to prove or disprove the offense charg ed; and (2) is relevant in that it tends to make th e questionof guilt more or less probabl e. Pe ople v. Wheeler , 226 Ill. 2d 92, 132 (2007). Evidence should be excluded if it is too remote in time or too speculative to shed light on a fact to befound. Wheeler , 226 Ill. 2d at

132. The admission of evidence is left to the discretion of the trial court, and this court wil l not disturb the trial court' s decision on the ad missibility

of evide nce unle ss it constitutes an abuse of discretion. People v. Scott , 401 Ill. App. 3d 585, 599 (2010). Such a ruling is an abuse

of discr etion only where it is arbitrary , fanciful, or unreasonable, or wher e no rea sonable person would take the view of the trial court. Wheeler , 226 Ill. 2d at 133.No. 2--09--0058

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At trial, Janet Krueger testified that, as she exited her car

in the alley behind her

home at 10 p.m. on August 6, 2007, she saw two men standing near the back of

her car. One man gra

bbed her purseoff of her arm and

ran away. K rueger was thrown off ba

lance and fell to the ground, injuring her nose and her ribs. She had been unable to give the police a descrip tion of the

men other

than to say that they were two black m en in their late teens or early twenties. She could not say that defendant was one o f the men

involved. Neither

Krueg er, her

husband, Terrel l, nor def endant' s girlfriend Shatobie Smith (who was arrested but not charged in exchange for her testimony ) testified to the use or existence of a weapon when Krueg er's purse was stolen. The State also presented the testimony of Sergeant Robert Beach

and Dete ctives Michael Mandro and

Mark Jacksonof the Wau kegan police de partmen t. Mandro

testifie d that he was with Beach, Jackson, and

another detective in

an unmarked squad car on an armed r obbery deta

il at about 12:30 a.m. on August 17, 2007, when they saw two men wearing dark clothing walking down the street. One of

the men, whom Mandro subsequently ide ntified as defendant, hid in some shadows when the squad car turned around. Defenda nt ran away

when Man

dro ident ified hims elf

as a police officer. Mandro chased defendant and saw him "gr ab at his waist band

area." At this point, the court interjected: "I

beg y our pardon. The evidence y ou are going to hear ladie s and gentleman [ sic ] is being offered for a limited purpose. The limited purpose is explaining the circumstances around Mr. Limon's ar

rest. You are to consider it for that purpose only ." Mandro thentestifie d that def endant tr ipped and fell and that a ha ndgun f ell out of def

endant' s pants. Defendant

struggled while Mandro and Jackson attempted to handc uff him; defe ndant wa s "fac e first
onthe ground" with "his hand s clenched on his c hest." M andro continued to order de fendant

to place his hands b ehind his b ack, whi le defenda nt continu

ed to "clenc

h" his ha nds under his chest
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Mandro hit defe

ndant in the face

with his fist, and Jackson was a ble to handcuff

defendant. Mandro testified that, per his training, he could use "[e]very thing from verbal command up to deadly forc e" if he believed that an individual was armed. On August 17, he had no "item of police pa raphena lia [ sic ]" to use on defendant. Both Beach and Jackson testifie d to their observations during defendant' s arrest. The court gave a similar limiting instruction during each officer' s testimony. Jackson testified that he punched defendant in the ribcage twice while attempting to g et defendant's hands out from under him. He had been tau ght that , if a dea

dly weapon wer e present, he could "respond by using deadly

force." He did not have a baton, pepper spray, or a Taser w it h him that night; other than his gun, he had
no th in g t ha t h e c ou ld ha ve us ed to ta ke de fe nd an t i nt o c us to dy. The State also intro duced two stateme nts give n by defenda nt. In one state ment, defendant implicated

himself in the use of

some stolen credit cards. In the other, defendant admitted stealing a purse from "an o ld lady." Defendant

did not testify and prese

nted no defense. During its deliberations, the jury asked for defend ant's booking

photo. However, w

hile the f oundation for the photo had been laid during t he State's case in chief, the photo was never admitted into evidence. The jury found defendant guilty of the one count of robbery (enhanced) and not guilty of the two c ounts of aggravated ba tt er y.

We conclude

that the tr

ia l court abuse d its discr etion in all owing e viden ce of de fendan t's possession of

a gun. Defendant was arr ested 11 days a

fter Janet Krueger was injured and robbed. The charg es in the c ase did not include any ele

ment of the possession or use of a weapon, and there
was no evidence of the presence or use of a weapon during the incident. The probative value of the testimony regarding defe

ndant's possession of a gun 11 day s after the incident

occurr ed simply didNo. 2--09--0058

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notoutweigh the prejudice that such testimony engendered. In fact, the testimony had no probative value to the charges at all, while the pre judice was manifest. The State ar

gues tha t e vide nce of the gun was necessa ry to rebut def

endant's theory

of coerci o n, which was based on police brutality and defendant's ey

e injury. Acc ording to the State, had defendant stated that he would not pursue a theory of police coercion and

bruta lity, th e court 's ruling may

have be en diffe

rent; the court sa id that it allowed t he evide nce "to expl ain th e offi cer's
use of forc e." This

argume nt is chime

rical. Ma

ndro and Jackson bot

h testif ied th at they

hit defendant because he would not put his hands beh

ind his bac

k and allow them tohandcuff him. The fact tha t defend ant ref used to put

his hands b ehind his b ack was sufficie nt to explain the

punches
. Had Mandro or Jackson used more than minimal force ( i.e. , a baton, pepper spray , or a Taser) on defenda nt, the presence of the gun might ha ve been necessary

to explain the violent response. However, defendant's resistance alone, w ithout the presence of the gun, w as sufficie nt to explain defendant's minimal injury
. Furthermore, a defen

dant is not

require d to forg o, in adva nce, a p otential d

efense inorder to preclude the State from introducing irrelevant, prejudicial evide nce. At be st , d ef

en da nt 's in

ju ry, and, thus, the re ason that Mandro punched defendant in the ey e, would have become relevant had defendant raised the issue of coercion, either in cross-examination of the State's witnesses or in his
owncase. T

his evidence did not otherwise tend to prove or disprove the offe nses charged or make the question o f guilt more or le ss probable. See Wheeler , 226 I ll. 2d at 13 2. The pr oper re sponse to the State's motion in limine would hav e been to grant i t condition

ally ; evidence of the circumstances surro undi ng defen dant's arrest would be allowed only if defenda

nt raised the issue of being coerced into making incriminating statements by pol ice brutality. Then, evidenc e that defend ant's injury occurr ed when defend ant resisted efforts to take him into custody would beNo. 2--09--0058

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relevant and allowed. In no instance, however, would evidence of the gun bec ome relevant or admissible. Proceeding as it did, the trial cou rt allow ed the Sta

te to pre sent to the

jury irrelevant, prejudicial evidence based on t he hypothetical possibility that defendant would claim coercion based
onpolice brutality. The evidence of the gun impeac hed defendant before he eve r opened his mouth. The record shows that the trial court did ex ercis e disc retio n in m aking i ts rul ing. The court prohibited

the State from presenting testimony regar ding sta tements de fendant

made re lated to possession of the gun or from presenting a ph oto of the gun. The court sugg ested to the assistant Stat e's Attorney

that he tell the police witnesses that if "they mention anything

beyond what I

have allowed themto mention on the gun, it is going to be an immediate mistrial," and it warned him that he was not " to dwell on

it. *** You ar

e going to get it in and move along." The cour t also gave the limiting instruction to the jury duri ng the testimony of e ach police witness. Clearly , the court understood

the extreme prejudice to defendant from the evidence of the gun. While these measures did reduc e the pre

judice, t hey were, in the view o f this cou

rt, insuff icient to overcome

it. The State argues that "there wa s a wealth of evidenceagainst the defendant, all of it showing that defendant's confession, that he robbed Janet Krueger, was the truth." We first note that the jury appare ntly did not find the evid

ence ov erwhelm

ing; defendant was found not guilty of the aggravate d battery charges that arose from the very same

act as the robbe

ry charg e--gr

abbing Krueg er's pu

rse and pu llin g it awa y. Further more, an erro r duri ng a criminal trial that impinges upon the in tegrity of the judicial system require s reversal regardless of the we ight of the other evidence. People v. Collins , 333 Ill. App. 3d 20, 27 (2002); Peoplev. Lambert , 288 Ill. App. 3d 450, 462 (1997). Had defendant failed to properl y pr eserve this issue, this cour

t could stil l review

it under the plain-error rule if "the evidence is closely balanced or

the error is so fundamental and of such magnitude that the accused was denied a right to a f air trial." (Emphasis added.) People v. Heinz , 391 Ill. App. 3dNo. 2--09--0058

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854, 859 (2009 ). We are

no less able review such an error her e, where defendant properly preserved the issue. For these reasons, the judg ment of t he circuit court of La ke County is reverse d, and the cause is remande d for a ne

w trial. Reversed and remanded. HUTCHI NSON, J., concurs. JUS TICE JO RGENS EN, di ssent ing: Iagree with the majority that the trial court abused its discret ion in gran ting t he St ate's motion in limine . Howeve r, I r espectf ully dissent be cause I

agree with the Sta

te that the error was harmless
. Pretrial motions present additional challenges for a trial judge when the nature and extent of the defense

is unknown. Here, if

defenda nt had ra ised an is sue conc erning

the circ umstance s of his arrest- -spe ci fi ca ll y, that he was injured by the arresting officers or that such a lleged injury

caused him to con fess- -I would have fo und no error w ith t he tri al cou rt's ruling. The presence of the gun would have been relevant to support the action taken by the arresting

office rs. However, defendant
never raised this issue. Thus, the relevance of the presence of the gun never came to fruition and allowing testimony about def endant's possession of the gun at the time of his arre st was error. Unl ike the majority, however, I agre e with the State that the error is harmless because the evidence against defendant was overwhelming. Although Krueger, who wa s over 60 yea rs old, was unable to identif y he r assaila nts, she di d testify

that her purseand cre dit card s were ta ken. Ter rell,
a codefendant, put

himself at the scene of the robbery with defendant, Tay

lor, and Tobijohn Smith. Terrel l testifie d that he a

nd Smith were lookouts while

defendant and Tay

lor approached Kruege

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and took her purse. He also stated that they divided the proce eds of the robbery and that defendant took some o f the cr

edit car ds. Shatobie Smith, defendant's girlfriend and Tobijohn's sister, testified that defendant left the house for 45 mi nu te s, co ns is te nt wi th th e t im e o f t he ro bb er y, and returned with Tobijohn. When they returne d, they had cr edit cards. Shatobie, Tobijohn, and defendant went to Walmart to make
a purchase with a credit card. As the ca rd was in a wo man's name, Shatobie attempted to use the card. However, du e to the purchase amount, the cashier asked for ide ntification. Shatobie was unable to produce identification and, so, they left the store. Shatobie, Tobijohn, and defendant were videotaped by a

Walmart security ca

mera. Defend ant's own words were compelling evi dence against him. I n his first statemen t to police, defendant wrote that, when he was conf ronted by offic ers who informed him that they were investigatingrobberies in the area, he stated that he "didn't rob no old lady ." I n his second stateme

nt, defendant confessed to using Krueger 's credit card wi th Shatobie a nd Tobijoh

n, consist ent with Shatobi e 's testimony. Further, de fendant confessed to robbing Krueger and stated that Tay lor, Terrel l, and Tobijohn participated in the crime. Defend ant's c onfes sion is con sist ent wi th Ter rell's st at em en t a nd hi s t ri al te st im on y. The majority

points to the finding of not guilty of aggravated ba

ttery to support its position that the error was not harmless. I do not believe that a split verdict necessarily means that the jury was torn over the evidence. In sum, I would affirm the conviction.