APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
535 N.E.2d 1147, 180 Ill. App. 3d 461, 129 Ill. Dec. 382 1989.IL.312
Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Following a jury trial, defendant was convicted of unlawful use of weapons by a felon and sentenced to four years in the penitentiary. (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1.) Prior to trial, defendant filed a written motion to suppress evidence on the ground that the police lacked probable cause. That motion was denied. On appeal, defendant contends that (1) the trial court erred in ruling he had failed to sustain his burden on the motion to suppress and (2) the trial court denied him a fair trial when it refused to instruct the jury on the defense of necessity.
Defendant testified at a suppression hearing that on December 19, 1985, he lived in Marietta, Georgia, but was in Chicago visiting his mother for the holidays. At approximately 3:15 p.m., he went to his brother's home at 908 West 58th Street in Chicago. When no one answered the doorbell, he returned to his 1977 Camaro. Detectives then drove up and told him that the car was stolen and to get out of the car. They searched him and found eight bullets and a derringer pistol in his jacket pocket. The police investigation later showed that his car had not been stolen.
Chicago police detective David Jarmusz testified that he was with Detective Collello conducting surveillance on a building at 908 West 58th Street because drugs were supposedly being sold there. He saw defendant exit this building and cross the street to a car. As the officers drove up to defendant, Jarmusz saw defendant counting what appeared to be a handful of bullets which he held in the palm of his hand as he walked across the street. Defendant stopped, and as the police vehicle approached to within several feet of defendant, the officer could clearly see that the objects in defendant's hand were bullets. He asked defendant if he had an Illinois State firearm owner's identification card, and defendant said that he did not. Jarmusz confiscated the bullets and arrested defendant, then searched defendant and found a .38 caliber two-shot derringer in the right-hand pocket of defendant's coat. The officer said that the incident was not precipitated by a "stolen" car.
The trial court denied defendant's suppression motion, stating it did not believe defendant had sustained his burden.
Detective David Jarmusz testified at trial concerning his apprehension of defendant and recovery of bullets and the weapon, which he identified in court.
Chicago police officer Sol Collello testified that he was with Officer Jarmusz on December 19, 1985, in an unmarked police car conducting a surveillance of a building at 907 West 58th Street when he saw defendant leave the building holding something in his hand. Collello drove toward defendant, stopped and exited the vehicle. Jarmusz then saw that defendant had bullets in his hands and asked defendant if he had a firearm owner's identification card. Defendant said that he did not and was placed under arrest. Jarmusz conducted a search of defendant, and Officer Collello took a .38 caliber derringer from defendant's pocket.
It was stipulated that defendant was convicted of involuntary manslaughter on November 1, 1979, and sentenced to probation for four years.
Defendant testified that he came to Chicago from Georgia where he was attending college to visit his mother for Christmas on December 16, 1985. The following day three gang members told him that they were going to revenge the death of their cousin whom defendant killed in 1978. When he told his brother of this threat, his brother gave him the derringer. Later, defendant discovered that the weapon did not work, and he went to the building under surveillance to return it to his brother. When nobody answered the door, he walked back to his car, but a detective told him to get out of his car because he was running a check to see if the car was reported stolen. The officer then searched him, and the derringer and some bullets were recovered from his jacket pocket. He denied that he had anything in his hands including bullets as he walked back to his vehicle. He denied that he told police that he was a member of the Disciple Nation street gang.
Detective David Jarmusz testified in rebuttal that he asked defendant at the police station if he was a gang member. Defendant responded that he was a "D," meaning a ...