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People v. Strompolis

NOVEMBER 12, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES STROMPOLIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. SULSKI, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT ON REHEARING:

After a bench trial defendant was found guilty of the offense of unlawful use of weapons. *fn1 He was placed on probation for one year, the first six months of which were to be spent in the House of Correction. On appeal defendant contends:

(1) that his conduct was exempt from prosecution;

(2) that he was not properly informed, nor did he understandingly waive his right to a trial by jury; and

(3) that he was deprived of his right to effective counsel.

Police Officer Farrar, the sole witness for the State, testified on direct examination, that he recovered a sawed-off shotgun from the inside panel of the door on the driver's side of a car which was in the parking lot of a police station. On cross-examination the witness testified that the weapon fell out of the door panel as defendant opened the door to get out of the car. The door panel had been unscrewed to allow its removal. At the time of recovery the weapon, though unloaded, was fully assembled and in a case.

Defendant, the only defense witness, testified that his sister asked him to dispose of the weapon. He took the gun, with the bolt removed, to a police station where he intended to surrender it to a friend of his who was a police officer. Near the police station parking lot he approached some police officers in an attempt to determine the whereabouts of his friend. On being informed that his friend was not on duty, defendant told the officers that he had a gun which he wished to dispose of. After parking his car, as instructed by the officers, he turned the gun over to them. Defendant was then ordered into the police station.

Opinion

• 1 (1) Defendant concedes that the testimony of the State's witness shows that the weapon was concealed in a motor vehicle within the meaning of Ill. Rev. Stat. 1969, ch. 38, par. 24-1(a) (4). He contends, however, that this did not constitute a violation since the weapon was not immediately accessible and therefore within the exception created by statute. *fn2 We cannot agree with defendant in this regard. Before the weapon fell to the ground it was housed behind the inside left front door panel of the vehicle driven by defendant. The weapon was therefore only inches from defendant's left hand. The screws which held the panel in place had been removed thereby enabling defendant to easily gain access to the weapon. Defendant contends the door had to be opened before the weapon could be removed. That contention however is not supported by the record. The fact that the weapon fell out when the door was opened does not mean that the weapon could not be removed with the door closed. Even if the door had to be opened and defendant had to reach down to the base of the door to remove the weapon such movement on defendant's part is not materially different than that found in People v. McKnight (1968), 39 Ill.2d 577, cert. den. 394 U.S. 993 where defendant had to reach beneath the seat to obtain a pistol.

• 2, 3 Defendant also contends that the fact that the weapon was found in a case rendered it "not immediately accessible" and therefor within the exceptions to the statute as set out in footnote 2. This contention is without merit in light of the little effort required to open a gun case. (See People v. Foster (1961), 32 Ill. App.2d 462.) The fact that the weapon was found unloaded is also of no moment. The carrying of certain firearms is prohibited by the statute without regard to the question of whether or not the firearm is loaded. The firearm is not on that account to be considered "broken down in non-functioning state."

• 4, 5 Defendant testified that the bolt was removed from the gun. If this testimony was believed by the trier of facts defendant would not have been convicted because the weapon would have been "broken down in a non-functioning state" and therefor within the exception set out in footnote 2. The trier of fact chose, however, not to believe the testimony of defendant but to believe the police officer's testimony that the weapon was fully assembled. The function of determining the credibility of witnesses and the weight to be accorded their testimony is assigned to the trial court and this court will not substitute its judgment when the evidence is merely conflicting. (People v. Scott (1966), 34 Ill.2d 41, 45.) We, therefore, hold that defendant's conduct did not come within the exception set out in footnote 2, and the evidence was sufficient to support defendant's conviction.

(2) Defendant next urges that the trial judge erred in failing to inform defendant of his right to trial by jury and also in failing to ascertain whether defendant's waiver of a jury trial was understandingly made. His contention arises out of the following colloquy:

"THE CLERK: James Strompolis.

MR. KARAVIDAS [Assistant State's Attorney]: State is ready to go to trial.

THE COURT: May I see the file?

Mr. Public Defender. We'll pass it. Let me know when you're ready. (Whereupon, the case was passed and recalled.)

THE CLERK: James Strompolis.

MR. DRDA [Assistant Public Defender]: The plea will be not ...


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