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04/28/88 the People of the State of v. David D. Govan

April 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID D. GOVAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 581, 169 Ill. App. 3d 329, 119 Ill. Dec. 825 1988.IL.620

Appeal from the Circuit Court of Livingston County; the Hon. Charles E. Glennon, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On June 23, 1987, in the circuit court of Livingston County, defendant David Govan was found guilty by a jury of the offense of unlawful use of weapons by a felon in violation of section 24-1.1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). On August 31, 1987, defendant was sentenced to six years' imprisonment in the Illinois Department of Corrections, with said sentence to be served consecutively with his current sentence. Defendant appeals alleging (1) the court erred by refusing to instruct the jury on the defense of necessity; (2) the court erred on two evidentiary rulings; (3) defendant received ineffective assistance of counsel; and (4) the court abused its discretion in sentencing defendant.

On April 29, 1986, defendant was charged with the offense of unlawful use of weapons by a felon in violation of section 24-1.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1). This section provides that possession of a weapon by a convicted felon is a Class 3 felony, but, if the possession occurs while the person is confined in a penal institution, it is a Class 1 felony. The indictment alleged that on February 19, 1986, defendant possessed a dagger-like weapon after defendant had been convicted of a felony and while he was confined in a penal institution. The jury trial commenced on June 22, 1987.

The State's first witness Joseph Kuntz who, on February 19, 1986, was employed as a lieutenant by the Department of Corrections at the Pontiac Correctional Center (Pontiac). Around 9:30 p.m. on that date, he and Lieutenant Thomas Moyer proceeded to shakedown defendant's cell, looking for a calculator. Kuntz patted down defendant and discovered a "shank" hidden in his sock. This shank was a round rod approximately three-eighths of an inch in diameter and 10 to 14 inches long. A further search of the cell uncovered another shank found in the bunk. This shank was a flat piece of metal 1 inch in diameter and 10 to 14 inches long with a sharpened end. Kuntz estimated that over the six-year period he worked at Pontiac, he saw several hundred weapons like this.

Thomas Moyer has worked as a lieutenant at Pontiac since 1983. He testified he was with Kuntz at the time of the search and observed him find the shank on defendant. He was also present when the other shank was found. The State then introduced a certified copy of defendant's felony conviction and rested.

Defendant testified he was sentenced to 28 years' imprisonment in June 1984 after receiving convictions for murder and attempted armed robbery. He previously had served two years in Pontiac for an armed robbery conviction in 1977.

Defendant acknowledged he possessed the shank but stated he needed to do so to protect himself. He explained he had received a "threatening" note that warned he could not live in Pontiac without being in fear of his life. This note had come from members of the Vice Lords gang. He explained that at the time of the murder offense he belonged to the Black Disciples gang. He murdered a CTA policeman who was receiving payments from the Vice Lords and allowing the gang to operate their drug business.

Defendant is 6 feet 2 inches tall and weighs 165 pounds. He stated he needed to carry a shank because the majority of inmates carry them. Usually, if the other inmates know you have one, they will leave you alone. He stated the inmates believe it is better to be caught with a shank than without one.

Defendant stated that if he went to the authorities with the problem they would only put him in protective custody. He testified he did not want to go there for a number of reasons. He believed that he would not be any safer there than in the general population. He stated that he would also have to stay locked up most of the day. He would not be able to go to the yard for exercise or attend school or take up a trade. Defendant is currently taking classes through Lincoln College.

Defendant stated there are currently 11 to 12 gangs in Pontiac. The gangs do not get along. Also, grudges started out on the streets are carried over to prison. Defendant was afraid for his life. He stated there are not many guards, and, usually, once a fight commences, they will get out of the way.

Another reason he did not want to go into protective custody was that the inmates regard it as less than manly. The other inmates refer to them as females.

On cross-examination, defendant admitted he did not keep the note nor did he tell anyone about it. Defendant stated he had the knife for six to eight weeks before it was confiscated. When asked whether he would rather be locked in a cell 24 hours a day for his protection or carry a knife, defendant responded that he would rather be a man and stand up to the problems he has rather than run from them. He also acknowledged he never knew who sent the note, nor did anyone in particular threaten him. He admitted the other shank was his also. He had two in case he lost one during a search.

On the second day of the trial, defendant retook the stand. He stated first that he procured the knives one or two days after receiving the note. He acknowledged telling an investigator on March 3, 1987, that he received the note three to four weeks before he was apprehended with the knife. He also maintained he ...


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