APPEAL from the Circuit Court of Kankakee County; the Hon.
PATRICK M. BURNS, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
After a jury found the defendant, Johnnie Junior Davis, and his co-defendant, Eugene Henley, guilty of unlawful use of weapons, the circuit court of Kankakee County sentenced Davis to a term of imprisonment of not less than one nor more than three years. On this appeal we are concerned only with the conviction of defendant Davis. Defendant's conviction rests upon the alleged possession of a weapon commonly known as a sawed-off shotgun. It is undisputed that the shotgun in question had a barrel length of less than 18 inches in violation of section 24-1(a)(7) of the Criminal Code of 1961. Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(7).
At approximately 7:30 p.m. on the evening of July 29, 1975, Officer Burkhalter of the Kankakee County sheriff's police observed a white-over-blue 1968 Ford parked and unoccupied in front of a city liquor store in Kankakee, Illinois. While not introduced into evidence at trial, it appears that the officer had the automobile under surveillance pursuant to a police radio transmission reporting the firing of a shotgun from a vehicle fitting the description of the 1968 Ford. (This evidence was objected to by defense counsel and the objection was sustained.) Shortly after spotting the parked car, the officer observed Henley and Davis entering the vehicle and drive away from in front of the liquor store. Henley was driving and Davis was riding in the right front seat. The car belonged to neither defendant and had been borrowed from its owner. After following the car for several blocks, Burkhalter activated his flashing red lights and the vehicle stopped. Only two minutes had lapsed between the time the officer first observed the vehicle to the time the vehicle stopped. The officer approached the driver's side of the vehicle and requested Henley's driver's license. When Henley failed to produce a driver's license, Burkhalter requested Henley and Davis to exit the vehicle and stand at the rear of the car. Through the window on the driver's side of the car, the officer observed one to one and one-half inches of a barrel of a shotgun protruding from underneath the driver's seat and pointing towards the accelerator pedal. The weapon was very close to the transmission hump. Defendants were then handcuffed and placed under arrest. Fingerprint tests on the shotgun conducted by Burkhalter revealed no readable prints. Henley and Davis testified that they walked from a local drug store to the liquor store. Mack Rosenthal, the owner of the car, was in the liquor store when they arrived. After Davis and Rosenthal had played several games of pool, Davis asked Rosenthal for a ride to his girlfriend's house. In response, Rosenthal gave defendant the keys to his car which was parked in front of the liquor store. Davis gave the keys to Henley and asked him to drive since Davis would not be returning. Davis testified that he had just exited the car to go to his girlfriend's house when the police arrived. Defendant did not look at the floor of the car upon entering it, nor did he know that a gun was in the car.
Rosenthal testified he was the owner of the car. His testimony corroborated defendant's testimony concerning the loan of the car and the events at the pool hall. However, Rosenthal denied ever seeing the shotgun in the car and stated he had vacuumed the car early in the day and had not noticed the weapon.
Defendant's conviction rests upon the statutory presumptions set forth in section 24-1(c) of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(c).) This section is normally available in instances where the alleged offense occurred in an automobile and the defendant is charged with possession of an article described in section 24-1(a)(7) and it provides in pertinent part:
"The presence in an automobile other than a public omnibus of any weapon, instrument or substance referred to in Subsection (a)(7) is prima facie evidence that it is in the possession of, and is being carried by, all persons occupying such automobile at the time such weapon, instrument or substance is found * * *."
An instruction embodying the foregoing language was given to the jury and the prosecutor argued to the jurors concerning the presumption.
Defendant alleges that the statutory presumption contained in section 24-1(c) is unconstitutional as applied to the facts of this case or in the alternative, assuming the validity of the statute, the defendant was not proven guilty beyond a reasonable doubt. Before discussing the issues raised by these contentions, we must first resolve a preliminary issue.
No post-trial motions were filed by defendant in this case, nor did defendant move for a directed verdict at the close of all the evidence. The only motion directed at challenging the sufficiency of the evidence was presented at the close of the State's case-in-chief, after which the defendant proceeded to present his evidence. When the defendant introduced evidence after his motion was denied, he waived his motion for a directed verdict presented following the State's case. (People v. Aarhus, 111 Ill. App.2d 167, 248 N.E.2d 820.) Hence, none of the errors now urged on appeal have been properly preserved for review and they can be considered by this court, if at all, only under the plain error doctrine embodied in Supreme Court Rule 615(a). Ill. Rev. Stat. 1975, ch. 110A, par. 615(a).
• 1, 2 While Rule 615(a) is of relatively recent vintage, it incorporates the long standing concepts that are aptly expressed in People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239, wherein the court stated in discussing the application of the waiver rule:
"[T]his is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. "The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.'" (11 Ill.2d 360, 370-71, 143 N.E.2d 239, 245.)
(Accord, People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856.) It is also appropriate to consider alleged errors, not properly preserved for review, in criminal cases where the evidence is closely balanced (People v. Bradley, 30 Ill.2d 597, 198 N.E.2d 809), or where their nature is such as to deprive the accused of his constitutional rights. People v. McKinstray, 30 Ill.2d 611, 198 N.E.2d 829; People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239.
However, the plain error rule is one of discretion and provides a means to moderate the harshness resulting from a strict application of the general waiver rule. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856.) While there are several pivotal factors which are valuable in determining whether or not the exercise of discretion is warranted in a given case (see People v. Lagardo, 82 Ill. App.2d 119, 226 N.E.2d 492, 21 A.L.R. 3d 1360), the most significant ones in the present case are the nature and magnitude of the errors alleged. In our view of the case as set forth in the following paragraphs, we believe the State has failed to prove one of the essential elements of the case, to wit, that defendant's possession of the gun was "knowing" and consequently, a review of this issue is required.
In urging the unconstitutionality of section 24-1(c), defendant argues that the presumption contained in that section fails to meet either the "reasonable doubt" standard or the "more likely than not" standard and relies on several United States Supreme Court decisions in support of his position. (See Barnes v. United States (1973), 412 U.S. 837, 37 L.Ed.2d 380, 93 S.Ct. 2357; Turner v. United States (1970), 396 U.S. 398, 24 L.Ed.2d 610, 90 S.Ct. 642; Leary v. United States (1969), 395 U.S. 6, 23 L.Ed.2d 57, 89 S.Ct. 1532.) Defendant's argument also suggests that by limiting the statutory presumption only to articles and weapons described in subsection (a)(7), the legislature has arbitrarily and unreasonably ...