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February 4, 1994


Appeal from the Circuit Court of Cook County. Honorable Stuart Nudelman, Judge Presiding.

Released for Publication March 18, 1994.

McNULTY, Murray, Cousins

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

Ismaldo Navarrete was indicted for the offenses of unlawful use of a weapon (720 ILCS 5/24-1 (West 1992)), unlawful firearm possession (430 ILCS 65/2 (West (1992)), and failure to exhibit a city firearm registration certificate (Chicago Municipal Code § 1.13-11 (1983).) After a jury trial by the circuit court of Cook County, defendant was convicted of the offenses and sentenced to 180 days in jail. A timely notice of appeal was filed.

Defendant requests that his conviction be reversed, or, in the alternative, that this cause be reversed and remanded for a new trial, or for resentencing. Defendant makes four arguments: (1) the evidence was insufficient to sustain a conviction; (2) the trial court's instructions to the jury regarding the elements of the offense charged were improper; (3) prosecutorial comments regarding the failure of a witness to testify denied defendant a fair trial; (4) the trial court imposed an excessive sentence.

At trial the State presented the two arresting officers as witnesses. Officer Barry Miller, a police officer for the Chicago police department, testified that on the evening of October 20, 1990, around 9:15 p.m., he and his partner, Daniel Kometz, were working in plainclothes and an unmarked police car. As the officers turned from 18th Street onto Allport Street, they saw an altercation between two men on the sidewalk. At trial Miller identified defendant as one of those men. He testified that the men were yelling and that "there was some physical contact between two of them." Miller testified that in his case report he used the phrase "argument with another subject" to describe the altercation. Kometz pulled the squad car next to the two men. As Miller started to get out of the car, he saw defendant look at him and then start to run into a tavern at 1802 S. Allport. Both Miller and Kometz pursued defendant into the tavern. Kometz' testimony added that the other unidentified man ran into the tavern with defendant. Inside the tavern Miller saw defendant by a jukebox. Defendant had a handgun in his right hand. Miller testified that defendant reached down behind the jukebox, put the gun down, stood up, turned his back to Miller and Kometz and faced the rear of the tavern.

On cross-examination Miller stated that when he reached the tavern door he stopped before entering. Miller lost sight of the defendant for "just a second or two." However, Kometz testified that Miller ran directly in without stopping. Miller's case report stated that the gun was "discarded" onto the floor. That report did not mention any jukebox. Miller testified that after defendant walked away from the jukebox, Miller retrieved the loaded gun, noted it was cocked, and handed it to Kometz while Miller held defendant with his other hand. Kometz' testimony corroborated that he saw Miller recover a gun from behind the jukebox, which Kometz then uncocked and unloaded. Officer Kometz searched and handcuffed defendant and read him his Miranda rights. Defendant's testimony at trial was that as he was being handcuffed he asked, "Is that gun mine?" Upon arrival of an assist car, the two officers took defendant to the police station where defendant was unable to produce a firearm owner's certificate or a city registration form. At trial Miller could not recall defendant's home address but remembered that it was different from the address of the tavern and that defendant was unemployed.

On cross-examination Miller stated that the number of monthly arrests were tallied. He stated that whether an officer would be questioned regarding the lack of arrests in a month depended upon what an officer was working on. Miller stated that he did not see the gun prior to entering the tavern.

On redirect examination Miller explained that by "argument" in his case report he meant to refer to a very animated physical argument with pushing, touching, and yelling. He further stated that in addition to the case report, a supplemental arrest report was also prepared that same night. That report noted that the "subject threw a loaded and cocked * * * pistol behind the jukebox."

On cross-examination Kometz stated that pushing and yelling on a sidewalk constitutes disorderly conduct. However the unidentified man was not arrested or charged with any crime.

At the close of the State's case, defendant moved for a directed verdict on the grounds that neither officer saw a gun in defendant's possession while he was on the sidewalk and that Officer Miller lost sight of him upon entering the tavern. The motion was denied.

Defendant presented two witnesses and also testified on his own behalf. Javier Jaime testified that he was a friend of defendant's and had known him for about 10 years. He testified that he and defendant had been drinking in the tavern on that evening when defendant went outside at around 9 p.m. for two or three minutes. When he returned, defendant resumed standing by Jaime and picked up his drink which he had left on the bar. Approximately one minute later, Jaime testified, a police officer came up and started searching defendant. Jaime testified that he never saw a gun in defendant's possession. Jaime stated that he would not lie for defendant because of friendship.

A second witness for defendant, Victor Velasquaz, testified that defendant and Jaime were standing at the front edge of the bar by the door when he arrived around 8 or 8:15 p.m. He never saw defendant, or anyone else leave the tavern. He turned when he heard the tavern door open and saw two plainclothes officers walk in. He saw them search defendant and a few other people. Velasquaz never saw a gun nor did he ...

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