Appeal from Circuit Court of Vermilion County No. 99CF116 Honorable Claudia S. Anderson, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
In April 1999, the State charged defendant, Casper Peete, with unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1998)). In June 1999, a jury found defendant guilty of the crime as charged. After a joint hearing in September 1999, the trial court denied defendant's posttrial motion and sentenced defendant to seven years' imprisonment. That same month, defendant filed a motion to reconsider, and the trial court denied the motion. Defendant appeals, arguing that (1) the State did not prove him guilty beyond a reasonable doubt; (2) the trial court erred in not accepting his stipulation to the fact of a prior felony; (3) the prosecutor made improper statements in closing argument; and (4) the trial court erred in ordering defendant's court-appointed attorney be appointed with reimbursement without conducting a hearing regarding defendant's ability to pay. We reverse and remand.
On April 4, 1999, several police officers with the Danville city police force responded to the 400 block of Oak Street in Danville, Illinois, looking for defendant. Officer Chris Yates responded to the call and was driving down Oak Street when he spotted defendant walking across Oak Street, away from the - 1 - apartment complex at 438 Oak Street. Officer Yates notified Sergeant Kenneth Kidwell of defendant's location and then proceeded to pull within a safe distance of defendant. As Sergeant Kidwell and Sergeant Larry Wilson approached defendant on foot, Officer Yates drew his pistol and asked defendant to stop. Defendant turned eastward and began to run down the alley that divides the 400 block of Oak Street.
Officer Yates followed defendant down the alley in his patrol car while Sergeant Kidwell chased defendant on foot. According to Officer Yates, defendant turned in a southeasterly direction between some houses approximately in the area of 420 Franklin Street. At that point, Officer Yates lost sight of both defendant and Sergeant Kidwell for 5 to 10 seconds.
Sergeant Kidwell testified that, once defendant began running, he chased defendant on foot, trailing 30 or 35 feet behind defendant. As defendant entered the area between 422 and 424 Franklin Street, Sergeant Kidwell saw defendant start to "dig" at the right side of his waistband. At the time, defendant was wearing a long-sleeved shirt that hung out of his pants. Sergeant Kidwell testified that, because of defendant's clothes, he was unable to see what defendant was trying to find or remove. As defendant dug at his pants, he began to slow down. Sergeant Kidwell also began to slow down. According to Sergeant Kidwell, defendant ran around the corner of 422 Franklin Street "hugging" the corner "pretty tight." At that point, Sergeant Kidwell stopped running and cautiously approached the corner. The next time Sergeant Kidwell saw defendant, defendant was running southbound on Franklin Street. Sergeant Kidwell estimated that defendant was out of his sight for no more than 10 seconds and that, during that period of time, the distance between him and defendant doubled to between 65 and 70 feet. Sergeant Kidwell did not see defendant reach for his waistband after he rounded the corner.
After losing sight of defendant, Officer Yates continued eastward onto Franklin Street. Officer Yates saw defendant round the northeast area of 418 Franklin Street and continue running south on Franklin Street. As defendant proceeded south on Franklin Street, Officer Yates followed him in the squad car at a distance of 10 to 15 feet. Defendant turned in a southwesterly direction onto Seminary and entered the upstairs apartment at 205 West Seminary.
After backup arrived, defendant was taken into custody. The officers obtained consent to search the apartment and found nothing. A search of defendant's person yielded a cellular phone. The officers also searched the area of the pursuit. While the officers were searching the area, Joseph Pierce, who lived at 418 Franklin Street, asked the officers what they were doing. The officers informed Pierce that they were searching for contraband that might have been discarded during a pursuit, and if he observed anything, to let the officers know. Shortly thereafter, Pierce informed the officers that his wife had found a gun behind the hedges of their residence. According to the testimony of several witnesses, the hedges were anywhere between three and five feet tall. The hedges were described as being thick and located five feet from the sidewalk. The gun was lying on top of paint chips, which had been stripped from the porch above. According to Officer Yates, the gun was halfway between the trunk of the hedge and the brick foundation and was clean and free of debris. Pierce testified that the gun did not belong to him and that he had never seen the gun there before.
Later in April 1999, the State charged defendant with unlawful possession of a weapon by a felon. In June 1999, the trial court conducted a jury trial. During opening statements, the prosecutor referred to defendant's prior felony convictions of residential burglary and aggravated battery. Defense counsel objected and offered to stipulate to defendant's felon status. The trial court refused the stipulation and allowed the State to publish one prior felony conviction to the jury.
At trial, Officer Yates, Sergeant Kidwell, and Pierce testified to the events on the evening of April 4, 1999. Defendant presented the testimony of his girlfriend, Kelly Rouse. Rouse testified that she was with defendant until 7 p.m on April 4, 1999, and had not seen defendant in possession of a handgun, but he did have a cellular phone. Rouse also testified that defendant was carrying between $800 and $900 that evening because his mother had given him the money earlier in the day for a car. In rebuttal, the State called Officer Bruce Stark, who testified that Rouse had told him that defendant did not have any money and that defendant had asked her for $50 to buy clothes. At the conclusion of the trial, the jury found defendant guilty of the crime as charged.
In July 1999, defendant filed a posttrial motion seeking a new trial or an acquittal. In September 1999, the trial court held a hearing on the posttrial motion and a sentencing hearing. The trial court denied defendant's posttrial motion and sentenced defendant to seven years' imprisonment. Defendant filed a motion to reconsider his sentence, which the trial court denied. This appeal followed.
A. Sufficiency of the Evidence
Defendant appeals, contending that the evidence is insufficient to prove him guilty of unlawful possession of a weapon by a felon. When a defendant challenges the sufficiency of the evidence to sustain his conviction, the question for the reviewing court is whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Adams, 308 Ill. App. 3d 995, 1006, 721 N.E.2d 1182, 1190 (1999). Proof beyond a reasonable doubt does not require the exclusion of every possible doubt, and a conviction may be sustained wholly upon circumstantial evidence where the entire chain of circumstances leads to a reasonable and moral certainty that the defendant committed the crime. People v. Brown, 309 Ill. App. 3d 599, 608, 723 N.E.2d 362, 369 (1999).
A person commits unlawful possession of a weapon by a felon if he has been convicted of a felony and knowingly possesses a firearm on or about his person. 720 ILCS 5/24-1.1(a) (West 1998); Brown, 309 Ill. App. 3d at 608, 723 N.E.2d at 369.
In this case, Officer Yates, in uniform and in a marked squad car, yelled at defendant to stop, and defendant began to run down an alley. Sergeant Kidwell pursued defendant on foot while Officer Yates pursued in his squad car. As defendant was running, Sergeant Kidwell saw defendant "start to dig" on the right side of his waistband in what looked to be an attempt to remove something from his waistband or pocket.
While the testimony is sketchy and confusing, a reasonable jury could have concluded that defendant was out of the sight of both Sergeant Kidwell and Officer Yates for a few seconds as defendant approached and turned at the corner of the residence at 418 Franklin Street. As defendant ran down Franklin Street, he was no longer reaching for the waistband of his pants.
The gun was later found behind the hedges on the east side of the house at 418 Franklin Street and could be seen from the porch of the residence. The gun was clean and lying on paint chips that had fallen from the porch. The owner of the residence testified that his children played on the porch earlier in the day and had not seen the gun. ...