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01/05/98 PEOPLE STATE ILLINOIS v. MACK SIMMONS

January 5, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MACK SIMMONS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 94--CF--2462. Honorable Frederick J. Kapala, Judge, Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published January 5, 1998.

The Honorable Justice McLaren delivered the opinion of the court. Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

The Honorable Justice McLaren delivered the opinion of the court:

A jury found the defendant, Mack Simmons, guilty of unlawful use of a weapon by a felon (720 ILCS 5/24--1.1 (West 1994)) and possession of a firearm without a firearm owner's identification card (430 ILCS 65/2(a)(1) (West 1994)). The trial court sentenced the defendant to seven years' imprisonment for the unlawful use of a weapon by a felon charge and 364 days' imprisonment for the possession of a firearm without a firearm owner's identification card charge. We reverse and remand.

The facts are taken from the record. At trial, Sergeant Stephen Johnson of the Rockford police department testified that on October 22, 1994, at approximately 5 a.m., he was watching an apartment building through binoculars from an unmarked car in response to reports of drug trafficking. A four-door car with the engine running was parked in front of the apartment building. Two people were sitting in the car. A black man ran out of the apartment building, entered the vehicle, and sat in the passenger side of the backseat. Seconds later the car drove off. Sergeant Johnson noticed the poor condition of the car, followed the car for three blocks, and then pulled the car over. After radioing that he was making a traffic stop, Sergeant Johnson approached the driver of the car, asked the driver for his driver's license, and asked the two passengers their names. The front-seat passenger stated that his name was Dennis Johnson and the defendant, who was seated in the backseat, provided his name. Sergeant Johnson returned to his vehicle to check the validity of the driver's license and to check if there were any warrants for any of the men in the car. The driver's license was not valid, and there was a warrant for the defendant for missing a court date.

About two minutes later, Officers Fricke and Shimaitis arrived and arrested the driver. Sergeant Johnson opened the passenger door and asked the defendant to step out; the defendant complied. Sergeant Johnson told the defendant there was a warrant for his arrest, and he handcuffed and searched the defendant. Sergeant Johnson found no weapons or drugs on the defendant.

As Sergeant Johnson moved the defendant from between the door and the car, Sergeant Johnson looked at the backseat where the defendant had been sitting and saw a handgun. An inch or two of the barrel of the gun was tucked under a small cooler which was in the middle of the backseat. Although Sergeant Johnson did not see the defendant sitting on the gun, he stated that the gun's handle was in the same place as the defendant's left leg and hip. He believed the defendant had been sitting on the gun. Sergeant Johnson saw nothing but the gun and a cooler in the backseat. Sergeant Johnson did not ask the defendant to whom the gun belonged and the defendant said nothing about the gun. The defendant did not have a valid firearm owner's identification card and had been convicted of a prior felony. A check on the gun indicated that it had not been reported stolen. Sergeant Johnson did not attempt to obtain fingerprints from the gun.

Sergeant Johnson told the other two officers there was a "1032," meaning a gun. He turned the defendant over to Officer Shimaitis. Sergeant Johnson put the gun in his pocket, had the other passenger, Dennis Johnson, step out of the car, and frisked him. According to sergeant Johnson, Dennis Johnson could have picked up the gun from where he was sitting in the car. Sergeant Johnson asked Dennis Johnson to whom the gun belonged, and then let him go. At trial, Dennis Johnson refused to testify, invoking his fifth amendment right against self-incrimination.

Officer Shimaitis' testimony essentially corroborated Sergeant Johnson's. Shimaitis stated that, after taking custody of the defendant, he saw a steel blue revolver on the backseat of the car next to where the defendant's leg would have been. He also saw a cooler in the middle of the backseat. Shimaitis could not recall whether any portion of the gun was under the cooler, which was located in the middle of the backseat. Shimaitis saw miscellaneous items on the floor in the back of the car.

The defendant testified on his own behalf. He stated that in the early morning hours of October 22, 1994, he went to his mother's apartment to get some money to bail his sister out of jail in Milwaukee. The defendant was at the apartment building to look for his brother. When he came out of the building, he saw Dennis Johnson in a car. The defendant did not know the driver. Dennis Johnson called the defendant to the car, and the two talked for a minute or so before the defendant got into the car.

According to the defendant, the backseat of the car had a "lot of stuff" on it, including a cardboard box and a cooler. The defendant pushed the stuff over and sat next to the cooler which was on his left; the window was on his right. In addition, there were cloths, greasy rags, a car jack, wrenches, and other "junk" on the floor of the back of the car. The defendant stated that the driver agreed to give him a ride to Milwaukee, so the defendant give the driver $20 for gas. There was a discussion in the car about drugs and guns.

The defendant testified that he was in the car for about 30 seconds before the car was pulled over by Sergeant Johnson. The defendant corroborated Sergeant Johnson's testimony in that Sergeant Johnson asked the driver for his driver's license, asked the defendant and Dennis Johnson for identification, told the defendant that a bench warrant had been issued because the defendant missed a court date, and handcuffed the defendant. The defendant was then placed in a squad car. Dennis Johnson was permitted to leave.

The defendant testified that he had not carried a gun that day and had not put a gun in the car. He stated that he did not see the gun, sit near or on the gun, or know anything about the gun. The first time he knew about the gun was when Sergeant Johnson told the defendant he was being charged with a gun violation while they were in the Public Safety Building. The defendant admitted that he had been previously convicted of aiding and abetting a robbery and that he did not have a firearm owner's identification card. He explained that he was not eligible to receive one.

On rebuttal, Sergeant Johnson stated that after searching the car he saw no cardboard box, tire jacks, wrenches, or dirty rags in the backseat of the car. However, he admitted that his focus was on the weapon.

During deliberations, the jury asked for the defendant's testimony regarding the discussion about guns and drugs. The jury also requested the defendant's testimony regarding his awareness of the gun at the Public Safety Building. Without objection, the jury was told to decide the case on the testimony it heard before.

The jury found the defendant guilty of both charges, namely, unlawful use of a weapon by a felon and possession of a firearm without a firearm owner's identification card. At the sentencing hearing, held in October 1995, the defendant filed an affidavit of ...


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