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03/30/94 PEOPLE STATE ILLINOIS v. OLIVER SIMS

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION


March 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
OLIVER SIMS, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County. Honorable Dennis A. Dernbach, Judge Presiding.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial, defendant Oliver Sims was convicted of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24-1.1(a)), and sentenced to five years' imprisonment. Defendant now urges this court to reverse his conviction on grounds that: (1) he was improperly seized without a warrant or probable cause, or reasonable suspicion that he had committed a crime; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the State improperly cross-examined a defense witness; (4) the trial court improperly limited the duties of the court-appointed standby counsel; and (5) the trial court improperly allowed the State's chief witness to give his opinion as to the meaning of defendant's statements.

We affirm the trial court.

Defendant was charged by information with unlawful use of a weapon by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24-1.1(a)), and two other offenses which were tried separately and are not a part of the present appeal.

Prior to trial on the unlawful use of a weapon charge, defendant requested that he be allowed to serve as co-counsel with an attorney appointed by the court. The trial court advised defendant that if he decided to proceed pro se, the court would appoint standby counsel to answer questions at trial but would not permit defendant to proceed as co-counsel with the attorney. The court repeatedly explained this matter to defendant, and defendant insisted that he wished to represent himself. After the court determined that defendant understood his rights and made a knowing waiver of counsel, the case proceeded to trial.

The events leading to defendant's conviction occurred on February 11, 1991 at approximately 9 p.m., when Chicago Police Officers Herman Vazquez, David Hernandez and Anna Gall were assisting Officers Francis Higgins and James O'Grady apprehend a homicide suspect believed to be at an apartment owned by Betsy Ford. Officer Higgins testified that he had been to the apartment several times before and that each time Ford had allowed him to enter and, on this occasion, Ford had allowed the officers to enter after responding to their knock at the door.

Ford testified that she opened the door only after the officers had broken the windows and then kicked on the door. However, at a previous suppression hearing, Ford testified that anyone could enter her apartment since the windows did not lock.

After the police entered the apartment, they attempted to detain and identify the approximately nine adults and several children discovered on the premises. Two of the men inside the apartment, Tony Robinson and Warren Watkins, later testified for the defense that after the police entered the apartment they began to destroy Ford's furniture including her television. Officer Higgins denied that the officers harmed Ford's property.

Shortly thereafter, Officer Hernandez, who was dressed in plain clothes, responded to a knock at the door and, after opening the door, observed defendant with a woman later identified as his girl friend, Carla Crenshaw. Defendant testified that Hernandez' gun was drawn when he opened the door; however, Hernandez denied this allegation. Defendant began to run from the apartment, and Hernandez followed him on suspicion of defendant's possible involvement with the homicide under investigation. Defendant continued running despite Hernandez' several calls of "police, stop" until he attempted to hide behind a utility shed. When Hernandez located defendant behind the shed, he drew his gun but then replaced the weapon in its holster as soon as he realized that defendant was unarmed. Hernandez then led defendant back to Ford's apartment where the other officers would have an opportunity to discuss the ongoing homicide investigation with defendant.

Defendant testified that he ran from the apartment because he believed Hernandez was a Hispanic gang member robbing Ford's apartment. Defendant stated Hernandez threatened to shoot him during the chase, and that he stopped running and raised his hands in the air when he realized that he was being pursued by a police officer. Defendant also asserted that, upon being detained, Hernandez struck him in the face, held a gun to his head and forcibly escorted him to the apartment. This instance of violence is not corroborated. Moreover, Officer Higgins testified that he saw Officer Hernandez' gun in its holster when Hernandez and defendant returned to Ford's apartment.

During defendant's absence, Officer Gall detained Carla Crenshaw in the apartment when she exhibited signs of fleeing the scene. Officer Gall performed a protective pat-down search on Crenshaw and discovered a loaded .38 caliber revolver tucked into her waistband. Warren Watkins testified that he heard Crenshaw inform the officers that the gun belonged to defendant. Crenshaw testified that she purchased the gun for $100 from a female friend but did not receive a receipt, and never registered the weapon.

Officer Gall recovered the gun from Crenshaw and then placed her under arrest and handcuffed her. Shortly thereafter, Officer O'Grady searched Crenshaw's apartment, located in the same building as Ford's apartment, and found defendant's briefcase containing an identification card with defendant's real name, heroin and drug paraphernalia.

While Officer Hernandez escorted defendant back to the apartment, they encountered Officer Vazquez. Defendant testified that Vazquez struck him in the face and stated, "That's for running from my partner." The officers denied striking defendant, and Officer O'Grady specifically denied the allegation that Officer Vazquez struck defendant.

Inside the apartment, Officer Vazquez asked defendant his name, to which defendant responded, "Chester Lawrence." Crenshaw informed the officers of defendant's real name. Vazquez asked defendant why he lied about his name and defendant stated, "I might have a warrant." Defendant later testified that he gave the false name because he knew of a warrant issued under his real name.

Officer Vazquez then informed defendant of his Miranda rights. Vazquez testified that he first learned of a warrant for defendant based on a record search which he believed Officer Higgins or O'Grady executed from a computer in their car and which he later confirmed at the police station.

A few minutes after defendant's arrest he learned that the police recovered a weapon from Crenshaw. According to Officer Vazquez, defendant stated that he owned the gun and that Crenshaw was merely holding it for him. Ford testified that she listened to the conversation between defendant and the officer occurring in the front room of her apartment, but did not hear defendant state that he owned the weapon. However, Officer Gall testified that defendant repeated this admission as to the ownership of the weapon later at the police station.

Officer Vazquez testified that, after again advising defendant of his Miranda rights, defendant stated that he carried a gun because he had previously been shot in that neighborhood.

During defendant's case in chief, Crenshaw testified that the gun recovered by Officer Gall belonged to her and denied ever telling the officers that the gun belonged to defendant. Crenshaw also admitted that the police charged her with unlawful use of a weapon to which she pled guilty and received a sentence of one year supervision.

The parties stipulated at trial that defendant had been convicted of a felony and was released from custody in 1980. Hence, the only element the State needed to prove was possession of the gun to obtain a conviction for unlawful possession of a weapon by a felon.

At the Conclusion of the jury trial, defendant was found guilty of this crime. The court denied defendant's motion for new trial and sentenced him to five years' imprisonment.

Defendant first argues that the trial court erred in denying his motion to quash arrest since he was improperly seized without a warrant or probable cause, or reasonable suspicion that he had committed a crime.

On a motion to suppress evidence, the defendant has the burden to make a prima facie showing that the evidence was obtained by an illegal search and seizure (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 93 Ill. Dec. 365) and, once made, the burden of going forward with evidence for the seizure shifts to the State. (Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69, 528 N.E.2d 411, 123 Ill. Dec. 866, citing People v. Burton (1985), 131 Ill. App. 3d 153, 156, 475 N.E.2d 583, 86 Ill. Dec. 369.) A reviewing court will not reverse the trial court's finding on a motion to suppress evidence absent manifest error. Gross, 174 Ill. App. 3d at 69, citing People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 68 Ill. Dec. 122.

The record supports the trial court's decision to deny defendant's motion to suppress evidence since, under the circumstances, Officer Hernandez had a reasonable basis to stop and arrest defendant.

A police officer may, in the appropriate circumstances and manner, approach a person to investigate possible criminal behavior without probable cause to make an arrest. (People v. Scott (1992), 148 Ill. 2d 479, 502-03, 594 N.E.2d 217, 171 Ill. Dec. 365, citing, Terry v. Ohio (1968), 392 U.S. 1, 22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) To justify an investigative stop, the officer must identify "specific articulable facts which, when taken together with natural inferences, make the intrusion reasonable." Scott, 148 Ill. 2d at 503, quoting People v. Smithers (1980), 83 Ill. 2d 430, 436, 415 N.E.2d 327, 47 Ill. Dec. 322.

We do not allow officers to intrude upon the security of our citizens merely because they have a "hunch" or some other visceral feeling; however, we do not require that the circumstances meet probable cause requirements. (Scott, 148 Ill. 2d at 503, citing People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252, 75 Ill. Dec. 693.) Sudden flight from police has long provided reasonable suspicion to stop the fleeing individual. People v. Rivera (1992), 233 Ill. App. 3d 69, 77, 598 N.E.2d 423, 174 Ill. Dec. 226; see People v. Holdman (1978), 73 Ill. 2d 213, 221, 383 N.E.2d 155, 22 Ill. Dec. 679; Gross, 174 Ill. App. 3d at 70-71; People v. Tribett (1981), 98 Ill. App. 3d 663, 672, 424 N.E.2d 688, 53 Ill. Dec. 897; People v. Jackson (1981), 96 Ill. App. 3d 1057, 1060, 422 N.E.2d 195, 52 Ill. Dec. 514; People v. Montgomery (1977), 53 Ill. App. 3d 298, 302, 368 N.E.2d 752, 11 Ill. Dec. 201; see also Sibron v. New York (1968), 392 U.S. 40, 66, 20 L. Ed. 2d 917, 937, 88 S. Ct. 1889, 1904 ("deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea [.]").

On the night at issue, the record shows that the officers were at Ford's apartment looking for a murder suspect described as a black male. When defendant, a black male, opened the door, he immediately began to run from Officer Hernandez. Let us be absolutely clear that Officer Hernandez lacked grounds to detain defendant merely based on defendant's race and gender; however, defendant's immediate flight provided the articulable facts necessary to justify an investigative stop. These facts were strengthened by defendant's failure to stop despite Hernandez' several calls of "police, stop" and subsequent attempt to elude Hernandez by hiding behind a utility shed. See Holdman, 73 Ill. 2d at 221-22; see also Scott, 148 Ill. 2d at 503, quoting Long, 99 Ill. 2d at 229 (courts consider whether a police officer was justified in making an investigative stop from the perspective of a reasonable officer at the time that the situation confronted him, not with analytical hindsight).

Officer Hernandez also had reasonable grounds for detaining defendant for purposes of identification, especially in light of the homicide investigation occurring at Ford's apartment. Terry contemplates a brief intrusion to verify information or to ascertain whether criminal activities have, in fact, taken place. (People v. Schacht (1992), 233 Ill. App. 3d 271, 275, 599 N.E.2d 43, 174 Ill. Dec. 497.) Contrary to defendant's contentions, stopping or detaining an individual for questioning as part of an investigation does not constitute an arrest. (Tribett, 98 Ill. App. 3d at 671, citing People v. Fulton (1979), 68 Ill. App. 3d 915, 386 N.E.2d 605, 25 Ill. Dec. 334.) "In Illinois, a valid arrest occurs when: police officers inform defendant of a violation; defendant submits to their control; and the evidence clearly shows that the officers intended to effect the arrest and defendant so understood them." (Emphasis in original.) (People v. McClellan (1992), 232 Ill. App. 3d 990, 999, 600 N.E.2d 407, 175 Ill. Dec. 476, quoting People v. Rimmer (1985), 132 Ill. App. 3d 107, 111, 476 N.E.2d 1278, 87 Ill. Dec. 286.) Factors to be considered in determining whether or not an arrest occurred include the presence or absence of a formal declaration of arrest and other routine procedures associated with an arrest, such as handcuffing, fingerprinting and photographing. McClellan, 232 Ill. App. 3d at 999, citing People v. Clay (1984), 124 Ill. App. 3d 140, 148, 463 N.E.2d 929, 79 Ill. Dec. 375.

Although defendant contends in his appellate brief that his arrest occurred when Officer Hernandez detained him at the utility shed, the record evinces the contrary. Hernandez testified at trial that from the moment he encountered defendant behind the shed, he intended to return defendant to Ford's apartment for further investigation. Even if Hernandez drew his gun while escorting defendant back to the apartment, as defendant claims, an officer drawing a gun does not conclusively indicate an arrest. (Tribett, 98 Ill. App. 3d at 672, citing People v. Basiak (1977), 50 Ill. App. 3d 155, 365 N.E.2d 570, 8 Ill. Dec. 332.) The record shows that Hernandez and the other officers were merely investigating defendant's suspicious behavior until defendant revealed that he used a false name due to a warrant for his arrest. (See Tribett, 98 Ill. App. 3d at 672.) At this point, the officers had probable cause to arrest defendant since a reasonable person would have believed that a crime had been committed and that defendant committed the crime. (People v. Foster (1987), 119 Ill. 2d 69, 83, 518 N.E.2d 82, 115 Ill. Dec. 557, quoting People v. Eddmonds (1984), 101 Ill. 2d 44, 60, 461 N.E.2d 347, 77 Ill. Dec. 724.) The officers manifested their intent to arrest defendant by administering his Miranda rights and handcuffing him, and defendant acknowledged his understanding of the arrest at this time.

For these reasons, we cannot say that the trial court's order denying defendant's motion to suppress was manifestly erroneous.

Defendant next contends that the State failed to prove beyond a reasonable doubt his actual or constructive possession of the gun recovered from Carla Crenshaw's waistband.

The standard of review to be applied when a defendant challenges the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Campbell (1992), 146 Ill. 2d 363, 374, 586 N.E.2d 1261, 166 Ill. Dec. 932, citing People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 87 Ill. Dec. 910.) This standard affords the trier of fact the opportunity to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts. Campbell, 146 Ill. 2d at 375, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

To sustain a conviction for unlawful use of a weapon by a felon, the State must prove beyond a reasonable doubt that the defendant knowingly possessed a firearm or firearm ammunition, and that the defendant has been convicted of a felony. (Ill. Rev. Stat. 1989, ch. 38, par. 24-1.1(a); see People v. Rasmussen (1992), 233 Ill. App. 3d 352, 370, 598 N.E.2d 1368, 174 Ill. Dec. 431, citing People v. Hammer (1992), 228 Ill. App. 3d 318, 323, 591 N.E.2d 554, 169 Ill. Dec. 381; People v. Rangel (1987), 163 Ill. App. 3d 730, 739, 516 N.E.2d 936, 114 Ill. Dec. 781.) The parties stipulated to defendant's prior felony conviction, so all that remains at issue is whether defendant knowingly possessed a firearm.

Possession may be actual, based on direct evidence such as eyewitness testimony that defendant actually possessed the weapon, or constructive, based on circumstantial evidence. (Rasmussen, 233 Ill. App. 3d at 370.) "Constructive possession of a firearm by a felon is established by showing that defendant had knowledge of the weapon and that he exerted immediate and exclusive control over the area where the weapon was found." Rasmussen, 233 Ill. App. 3d at 370, citing Hammer, 228 Ill. App. 3d at 323 (constructive possession of weapons found where guns recovered from marital closet, and defendant's wife and son denied using them); People v. Elam (1990), 197 Ill. App. 3d 8, 12-13, 554 N.E.2d 661, 143 Ill. Dec. 726 (constructive possession of a weapon found where pistol recovered from the defendant's girl friend's apartment where defendant frequently visited).

The record supports the trial court's finding that the State presented sufficient evidence to show that defendant constructively possessed the prohibited weapon. Because the gun was tucked into Carla Crenshaw's waistband and she arrived at Ford's apartment with defendant, defendant had access to the weapon from the time he arrived on the scene, if not earlier. Moreover, two police officers testified that defendant told the police that the gun, which was produced at trial, belonged to him and that Crenshaw was merely holding it for him. Although defendant's confession standing alone could not establish that an offense occurred (People v. Willingham (1982), 89 Ill. 2d 352, 358-59, 432 N.E.2d 861, 59 Ill. Dec. 917), defendant's own witness, Warren Watkins, also testified that he heard Crenshaw inform the police that the gun belonged to defendant. Because a jury could have reasonably inferred from the testimony that defendant owned the gun at issue, we cannot say that the evidence was so unsatisfactory that we are left with a reasonable doubt of defendant's guilt. See Elam, 197 Ill. App. 3d at 13, citing Collins, 106 Ill. 2d 237, 87 Ill. Dec. 910, 478 N.E.2d 267.

Moreover, defendant argues that the State's cross-examination of Carla Crenshaw deprived him of a fair trial since the State improperly elicited evidence of another crime which was not material to any issue at trial, and failed to perfect its impeachment of Crenshaw.

Contrary to defendant's contentions, the record shows that the State properly impeached Crenshaw with her previous conviction for possession of a controlled substance. After Crenshaw admitted to a 1991 conviction, the State asked if she had told the arresting officers that she was holding the drugs for defendant. Crenshaw denied the allegation, and the State did not offer evidence to the contrary. Defendant now argues that the State elicited this testimony to show that he was a drug dealer and had the propensity to commit crimes. However, defendant cannot raise this argument on appeal since he failed to object to these statements at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 119 Ill. Dec. 265 (defendant's failure to object at trial and raise the objection in a post-trial motion waives the issue on appeal).) Although we give deference to pro se litigants, all litigants must conform to the rules of Illinois evidence and procedure. See Paddock v. Department of Employment Security (1989), 184 Ill. App. 3d 945, 949, 540 N.E.2d 1053, 133 Ill. Dec. 187; see also McCutcheon v. Chicago Principals Association (1987), 159 Ill. App. 3d 955, 960, 513 N.E.2d 55, 111 Ill. Dec. 809 (plaintiff's decision to proceed pro se did not relieve her from adhering to the Illinois procedural rules concerning waiver).

Defendant further argues that the trial court abused its discretion by declining to grant defendant's request to have an appointed attorney act as co-counsel while defendant represented himself. We disagree.

The trial court has discretion whether to allow a defendant to proceed in that manner, and the court's decision will stand absent an abuse of discretion. (See People v. Taggart (1992), 233 Ill. App. 3d 530, 557, 599 N.E.2d 501, 174 Ill. Dec. 717, citing People v. Gibson (1990), 136 Ill. 2d 362, 383, 556 N.E.2d 226, 144 Ill. Dec. 759.) Here, the trial court properly exercised its discretion in appointing standby counsel, rather than co-counsel, based on defendant's repeated statements that he planned to make his own decisions during the proceedings. The record shows that the court repeatedly explained to defendant the limited nature of counsel's participation at trial and defendant consented to this arrangement. At one point, defendant explicitly acknowledged that he was waiving his right to have an attorney represent him and agreed to have a court-appointed attorney assist him at trial to answer any questions he might wish to raise.

Defendant's argument on appeal that the court should have appointed co-counsel fails to acknowledge that a defendant is not entitled to a hybrid trial at which he alternates between proceeding pro se and being represented by counsel. (Taggart, 233 Ill. App. 3d at 557.) Once the court found that defendant knowingly and voluntarily waived his right to counsel, based on a finding that defendant was an "articulate" man of mature age with an associate degree from a four-year college, it was within the court's discretion to allow defendant to proceed pro se. (See People v. Bowman (1968), 40 Ill. 2d 116, 123, 239 N.E.2d 433.) Hence, the fact that defendant failed to raise proper objections or allowed Carla Crenshaw to be improperly impeached does not constitute grounds for reversal.

Defendant's final argument on appeal challenges the trial court's decision to allow Officer Vazquez to offer his opinion as to the meaning of defendant's alleged statement:

"Officer, that's my gun. She is holding it for me. Why don't you give her a play."

Defendant claims, and we agree, that a witness ought not be called upon to explain the meaning of a declaration made by a defendant unless it was uttered to move the witness to action based upon his understanding of defendant's words, or unless the language employs a colloquial expression not readily understood by the average listener.

However, upon defense counsel's objection at the suppression hearing, the court struck Officer Vazquez' statement from the record. Vazquez again offered his opinion as to the meaning of this statement at trial, but defendant failed to object and does not challenge that statement on appeal. Hence, defendant has waived any challenge to Vazquez' trial statement (Enoch, 122 Ill. 2d at 186-87), and has failed to show prejudice at trial from the suppression hearing statement.

For the foregoing reasons, we affirm defendant's conviction and sentence.

Affirmed.

TULLY, P.J., and CERDA, J., concur.

19940330

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