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September 16, 1997


Appeal from the Circuit Court of Lake County. No. 95--CF--2178. Honorable Raymond J. McKoski, Judge, Presiding.

Rehearing Denied October 16, 1997. Released for Publication October 16, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Rathje, J., concurs. Justice Doyle, dissenting.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Following a jury trial, defendant, Francisco Aguirre, was convicted of the unlawful use of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1994)). The trial court sentenced defendant to eight years' imprisonment. On appeal, defendant contends that prosecutorial misconduct deprived him of a fair trial.

At trial, Detective Scott Chastain, of the Waukegan police department, testified that he and Detective Jay Tapia were in plain clothes, patrolling in an unmarked car, a red Grand Prix. Around 3 p.m., Chastain, who was not driving, saw a white vehicle speeding through a residential neighborhood. The officers pursued the vehicle, and Chastain saw it run a stop sign as it turned right onto Brookside. There were three men in the car. While the officers followed the car, Chastain noticed the backseat passenger and the people in the front of the car turning around and looking at the police. When the officers' car caught up with the white car, the front seat passenger leaned out of the car and tossed something out. According to Chastain, the passenger "appeared to be leaning out of the vehicle with his upper body, took his arm, bent it, and threw his arm out of the window releasing an object from his hand." The object, a gun, separated from the bandanna in which it was thrown. The gun landed in the parkway, and the bandanna fell to the ground in the street. Chastain then activated the Mars light on the dashboard. The white car tried to pull to the right in the lane. There was a Pace bus stopped in front of it. The officers' car pulled to the left of the white car, which came back into the normal lane on the left and collided with the police car. The collision occurred on the driver's door of the white car and the nose of the police car. Chastain identified defendant as the front seat passenger. Chastain also identified photos taken at the scene. He stated that the photos accurately depicted the vehicles, the bandanna, and the gun and their respective locations.

On cross-examination, Chastain admitted that, when he first saw the white car, it was in front of the post office on Washington Street. The car turned down Dorchester, and the police car then turned around to follow. When the police car first passed, the white car was stationary; while the police car turned around, the white car left the post office and started down Dorchester. The white car was not yet speeding. Chastain admitted that he did not say in his police report that the white vehicle was travelling at a high rate of speed.

Although Chastain stated that the car was pulling away from the curb when the collision occurred, he admitted that in the photo it appears that the white car's front end is pointed towards the curb. According to Chastain, the gun landed three or four feet from the curb. All three men were arrested.

Detective Tapia testified that, as he and Chastain were driving on Washington, he "observed the subject known to" him, and he also saw a white two-door car. While following that vehicle, Tapia observed that it was speeding down Dorchester. He caught up with the car, and it rolled through the stop sign at Dorchester to make a right turn onto Brookside. Tapia believed that the white car was travelling over 45 miles per hour in the 20-mile-per-hour zone. Once on Brookside, the white car slowed down. Tapia saw the three men in the car looking back at Tapia's car. The man in the backseat was in the middle and slightly behind the driver. Then the front seat passenger leaned towards the window, and a hand holding a bandanna emerged from the window. As the bandanna was thrown, a pistol fell out of it to the ground. Chastain activated the Mars lights, and the white car veered right and came back left quickly, striking the front of Tapia's car.

Following the collision, Tapia confronted the driver of the white car, Juan Morales. Chastain was dealing with the other men. The gun was about 10 to 15 feet away from them, and Tapia covered it with the bandanna.

On cross-examination, Tapia explained that when the gun was thrown he could see, through the back window of the white car, defendant's "head and shoulder area slightly," and, when the gun was released, he could see the right hand coming out of the window. Tapia admitted that the white car was outside of the post office when he first saw it. He also admitted that he was guessing that the white car was going 45 miles per hour on Dorchester. Although Tapia covered the gun with the bandanna, the photos taken by the evidence technician show the bandanna lying in the street. Tapia explained that the evidence had been moved before the technician took the photos. Tapia denied that the collision occurred because he drove his vehicle into the white car. After looking at the photos, Tapia stated that his vehicle was not "angled into" the white car, but rather that the white car was "angled into" Tapia's vehicle.

The evidence technician testified that he was unable to lift any fingerprints off the .22-caliber semi-automatic handgun. There was a bullet in the gun, it appeared that it had been fired, and there were eight rounds in the clip. Other than its slide not working properly, the gun was in good condition. The serial number had been filed off.

For the defense, Juan Morales testified that he went to the post office with defendant, his cousin. Morales was driving, and he waited in the car while defendant went inside. Morales saw Jorge Serrano, whom he knew through Morales' girlfriend. Morales and Serrano went on double dates because Serrano's girlfriend was Morales' girlfriend's best friend. Morales had known Serrano for over six months. Serrano was talking with defendant, and the two got into the car. Serrano sat in the backseat. Morales drove off and turned down Dorchester. According to Morales, he was driving about 25 or 30 miles per hour on Dorchester, and he did not notice any vehicle following him. He stopped at the stop sign and turned right on Brookside, after which he saw an unmarked police car behind him. Serrano began jumping up and down, hysterically asking what he should do. Morales told him to calm down. The police car was flashing its light and Morales went to pull over. Morales looked back and saw Serrano "fling his arm out the window." Defendant did not throw anything out of the vehicle, and he was calm. According to Morales, the police car hit his vehicle.

Despite a motion in limine ruling that barred any reference to gang activity, on cross-examination, the prosecutor asked Morales if he remembered what Tapia was wearing that day, and Morales answered, "Gang Unit uniform." Morales explained that, in addition to being his cousin, defendant is a very good friend. Although Morales was arrested, his case was dismissed. Morales further explained that Serrano encountered defendant as defendant was coming out of the post office.

Serrano, who testified through an interpreter, stated that he was walking towards the train station when he saw defendant and Morales. He asked them for a ride. Serrano knew defendant "a little," but he had known Morales for about three months through their girlfriends. Serrano and defendant worked together, and he had first met defendant a month before. Serrano sat in the backseat, Morales was driving, and defendant was the front seat passenger. While they were driving, Serrano saw a police car behind them with its light flashing. Serrano did not know what to do because he had a gun. Serrano testified that it was a .25-caliber semi-automatic, but he identified the gun in court as his gun. He also identified the bandanna as the one he found in the car. He had the gun in his pocket when he got into the car, and he did not tell defendant or Morales that he had a gun. Serrano waited until the police car got close, and then he threw the gun out the window. After the collision, all three were arrested.

Serrano further testified that he got the gun in Chicago. He bought it about a month before the incident, and on the day he was arrested, he told the police that it was his gun.

On cross-examination, Serrano stated that after he bought the gun he left it for a few days with his friend who lives in Chicago. Serrano did not look for serial numbers on the gun and did not file serial numbers off the gun. Serrano is not a United States citizen, and he had never applied for a firearm owner's identification card. The prosecutor asked Serrano what he did after defendant told him the police were coming. The court sustained an objection on the ground that the question assumed a fact. Serrano also explained that as he was walking to the train he saw Morales sitting in a car by the post office. Serrano said hello and asked for a ride. Then defendant came out of the post office. Serrano stated that on the day of the incident he had been to Chicago to take the gun to Crystal Lake. He and two friends had gone to Waukegan to eat lunch, and then ...

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