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People v. Delk

OPINION FILED MAY 26, 1981.

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

v.

RICHARD DELK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES SCHREIER, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant, Richard Delk, was charged by indictment with unlawfully carrying a shotgun concealed on his person in violation of section 24-1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(4)). Count II of the indictment charged that the alleged unlawful use of weapons occurred within five years of defendant's release from the penitentiary, thus raising the class of the offense charged from a misdemeanor to a Class 3 felony under section 24-1(b) of the Criminal Code. (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(b).) Following a bench trial, defendant was found guilty on the felony count of the indictment and was sentenced to serve a term of 3 1/2 years in the Department of Corrections. From that judgment defendant appeals, presenting the following issues for review: (1) whether the trial court erred in denying defendant's motion to quash the arrest and suppress evidence; (2) whether the existence of an anonymous informant was adequately shown; (3) whether the trial court conducted an improper examination of the witnesses; and (4) whether there was evidence that the weapon was broken down in a nonfunctioning state and therefore exempt from the proscriptions of the unlawful-use-of-weapons statute. For the reasons hereinafter set forth, we affirm the judgment finding defendant guilty of felony unlawful use of weapons.

Prior to trial, defendant moved to quash his arrest and suppress all evidence obtained from the search following his arrest. At defendant's request, the trial court considered this motion simultaneously with the trial of the offense. The State's sole witness was Chicago police officer Gary Hardt.

Hardt testified that on May 25, 1979, he and his partner Michael Brazel were assigned to patrol duty in the 13th District. At approximately 1:10 a.m. their marked squad car was flagged down by a woman near the intersection of North Avenue, Damen and Milwaukee. The woman, who did not identify herself and was not one of Officer Hardt's paid informants, told Hardt that in front of the J & L Lounge, at 2007 West North Avenue, there was a male black standing in the doorway with a shotgun underneath his army coat. The lounge is located some 60 feet from where the woman stopped the officers. Hardt proceeded northbound on Damen until he reached North Avenue. There he observed a male black in front of the J and L Lounge, wearing a full length army style overcoat. In court Hardt identified defendant as the man he saw standing at the entrance to the lounge. Only 20 to 30 seconds elapsed from the time the woman gave her information to the police until Hardt first spotted defendant.

As Hardt pulled in front of the establishment, defendant turned and entered the lounge. Hardt exited his vehicle and motioned for an unmarked squad car in the area to pull behind him. He then walked into the narrow corridor leading to the lounge and saw defendant attempting to take a shotgun from under his coat and hide it behind a cigarette machine at the end of the bar. This was about 10 seconds after defendant entered the tavern. When Hardt approached him, defendant stood up and started walking towards the officer. Hardt announced his office and ordered defendant to take his hands out of his coat pockets. Defendant complied with this order. While other officers grabbed defendant's hands, Hardt reached inside defendant's coat and retrieved a weapon that was held to defendant's left shoulder by rubber tubing.

Hardt described the weapon as a 16-gauge, blue steel pump shotgun with a sawed-off stock. Immediately after seizing the shotgun, Hardt pumped it to see if it was loaded. It was not loaded, and Hardt then pulled the trigger. The weapon was inventoried but when Hardt went to the evidence and recovered property section to obtain it for trial, he was advised that the weapon had been destroyed at Inland Steel.

On cross-examination Hardt testified that the unidentified woman did not explain how she knew that the man at the lounge had a gun under his coat. And Hardt admitted that his police report mentioned neither the woman informant nor defendant's effort to conceal the weapon behind the cigarette machine. Hardt characterized the condition of the weapon as rusty and "tight." The officer was able to pump the gun only with some difficulty and "had to struggle with it a little bit" to operate it. On redirect examination Hardt testified that the police report was merely a summary of the facts and not a detailed report. He testified further that he personally had operated the weapon.

At the conclusion of Hardt's testimony, the parties stipulated that on December 17, 1972, defendant was sentenced to serve one to 10 years in the Indiana State Penitentiary for the offense of theft by threat. Defendant was paroled on December 10, 1975, having served approximately three years of his sentence. The State rested and defendant's motion for a directed finding was denied.

Sharon Roudez, defendant's former girlfriend, testified that she was with defendant at the time of his arrest. Roudez stated that the police searched both defendant and herself, emptying the contents of her purse onto the floor of the tavern. Before the police searched defendant, Roudez had not seen defendant in possession of any weapon. She never saw defendant trying to secrete a weapon behind the cigarette machine. On cross-examination Roudez stated that at the time of his arrest defendant was wearing a green army jacket.

The trial court then examined the witness and asked her to describe more precisely the physical layout of the lounge and the relative positions of the persons present on the scene. Roudez told the court that when the police arrived, one of them asked defendant where he was going. Defendant answered, "We are leaving. We are going out," whereupon the officers searched both defendant and Roudez. It was at that point that Roudez saw a weapon which she described as a shotgun on defendant's person. Shortly after the court completed its questioning, the defense rested.

The trial court recalled Officer Hardt to the stand. Reminding the officer that he was still under oath and had sworn to tell the truth, the court asked Hardt where in the lounge he had recovered the gun. After Hardt answered, the court asked if the gun was recovered in the presence of Roudez. Hardt responded affirmatively. The court then questioned Hardt as follows:

"Q. Are you saying under your oath to God that a woman, unknown woman told you that there was a person with a —

A. Long green army coat, standing outside the tavern in front of the J and L Lounge, 2007 West North Avenue. I have never seen the woman before.

Q. What did she say about that person?

A. That he had a gun under his coat and that he was by the J and L Lounge. `You can't miss him,' or words to that effect.

Q. You did not get her name?

A. No sir, I did.

Q. Did you send out anything over the air with respect to what the ...


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