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United States v. Dombrowski

decided: June 7, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
DARRYL DOMBROWSKI, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 88 CR 10, Charles R. Norgle, Judge.

Cudahy and Easterbrook, Circuit Judges, and Fairchild, Senior Circuit Judge.

Author: Cudahy

CUDAHY, Circuit Judge

Darryl Dombrowski was convicted by a jury of violating 18 U.S.C. section 922(g),*fn1 prohibiting possession of firearms by convicted felons. He received the mandatory minimum sentence of fifteen years dictated by the sentence enhancement*fn2 provisions of 18 U.S.C. section 924(e), which mandate enhanced sentences for persons violating section 922(g) if they have had three previous convictions for violent felonies or serious drug offenses.*fn3 On appeal, Dombrowski contests application of section 922(g) in his case as unconstitutional and further claims that his previous convictions were for burglaries not properly encompassed by section 922(g). He also argues that the trial court committed reversible error in limiting cross-examination of a key witness and in admitting a photograph into evidence. We affirm.

I.

Between 12:45 and 1:00 a.m. on January 23, 1987, Chicago Police Sergeant Harold Dennis received a radio call reporting that a man was firing a gun behind a building at the corner of Touhy and Ridge Avenues. The man was described as a white male wearing a tan coat. Dennis proceeded to drive down Touhy Avenue to an alley behind the building at the corner of Touhy and Ridge. Dennis testified that he stopped his car when it was "in the mouth of the alley. Part of it was in the alley, and the other part was in the street." Trans. at 6-7. At that time Dennis observed a man he later identified as the defendant, twenty-five feet away, walking toward him down the alley. Dennis stepped out of the car, calling to the subject to stop. The man approached to within approximately eight feet of Dennis, who was standing behind the open door of his squad car. Dennis and the subject then simultaneously reached for and drew their guns. Dennis testified that the man never actually pointed the gun at him, but drew it to chest level and then turned and ran out of the alley onto Touhy Avenue in an easterly direction.

After radioing for assistance, Dennis pursued the subject, who by then had turned to the south down a gangway between two buildings. Dennis testified that he saw the subject's face again when the man turned, at a distance of 40 or 50 feet down the gangway, to look back. The subject then threw an object to the ground and continued his flight, turning westward through a parking lot. Dennis proceeded down the gangway and observed a black steel automatic pistol lying in a snowdrift in the area in which he had seen the subject throw an object to the ground. Still radioing instructions to approaching police units, Dennis continued in pursuit long enough to see the subject disappear into a gangway leading out onto Ridge Avenue. Immediately after he finished relaying this information on the radio, an officer replied by radio, "We have him." That officer, Patrick Garrity, had been driving on Touhy Avenue eastbound toward the intersection of Touhy and Ridge, and had observed the defendant on the southeast corner of the intersection walking rapidly away to the northwest. Garrity and his partner pursued and arrested the defendant, and immediately "took him around the corner to an alley" where Sergeant Dennis identified him as the subject he'd seen earlier. Trans. at 57. Dennis subsequently recovered six spent shell casings from behind the building at Touhy and Ridge.

II.

A.

Dombrowski first argues that the trial court committed reversible error when it limited the scope of the defendant's cross-examination of Sergeant Dennis. This argument rests on the following exchange:

DEFENDANT'S COUNSEL: Do you still make street arrests?

DENNIS: I have occasions to make arrests, yes.

DEFENDANT'S COUNSEL: Now, just give your best estimate, if you would, of the number of people you arrested in 1987.

GOVERNMENT: Objection.

THE COURT: Sustained.

DEFENDANT'S COUNSEL: Is it fair to say you arrest over 50 people a year, Sergeant?

GOVERNMENT: Objection.

THE COURT: Sustained.

Trans. at 28. Defense counsel proceeded to question Dennis about his duties as a sergeant. On appeal the defendant argues that this limitation of the examination constituted error; he further argues that the error was not harmless because it violated the ...


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