Appeal from Circuit Court of McLean County No. 99CF254 Honorable Donald D. Bernardi, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
Following an investigation of a domestic disturbance, defendant, Thomas Brown, was arrested on various counts and ultimately convicted of unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1998)). The trial court sentenced defendant to an extended term of six years, six months in prison. Defendant appeals his conviction and sentence. We affirm.
On March 17, 1999, a grand jury indicted defendant, Thomas Brown, of one count each of unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1998)), domestic battery (720 ILCS 5/12-3.2(a)(1) (West 1998)), and endangering the life or health of a child (720 ILCS 5/12-21.6 (West 1998)). Defendant was arraigned on April 2, 1999, where he waived reading of the indictment and pleaded not guilty.
Prior to trial, the defense filed a motion to suppress confession; and on May 19, 1999 the trial court held a hearing. Defendant argued the policed failed to read him the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) before questioning him and urged the trial court to suppress any statements defendant made concerning the alleged domestic dispute, "and especially" his statement indicating knowledge of a gun.
At the suppression hearing, Bloomington police officer Gil Winger testified he spoke with defendant's former girlfriend, Crystal Beaudette, and her roommate, Steven Archer, on March 5, 1999. Beaudette told Winger she recently allowed defendant to stay at her apartment and he stayed for several days. One evening shortly before March 5, she asked defendant to leave her apartment, but he refused. An argument ensued, and defendant pushed Beaudette and tried to choke her. Beaudette also told Winger defendant brought a gun into her apartment, pointed it at her, and placed it above the kitchen cabinets. When Beaudette spoke to Winger on March 5, "all she wanted to do at that time was just have [defendant] removed from the residence."
Winger further testified Archer gave him a key to the apartment and Winger proceeded to the apartment with a backup officer Gregory Scott. The officers knocked and, upon receiving no answer, entered the apartment using the key. Defendant was asleep on the couch. Winger woke defendant and began to question him about the dispute with Beaudette. Defendant told Winger he had been baby-sitting Beaudette's child and when Beaudette accused him of swearing at the child, they began to argue. Defendant acknowledged "there was some pushing and shoving back and forth." Winger then asked defendant whether he had been in possession of a gun and defendant responded he recently found a gun in his own residence. Defendant further stated he was afraid of guns and wanted to keep the gun away from his roommate, so he hid the gun in Beaudette's apartment.
As Winger questioned defendant, Scott, who was in the kitchen area of the apartment, announced he found a gun. Winger then arrested defendant for domestic battery. Winger said his intention when going to the apartment was not to arrest defendant, but "just to speak to [defendant]" and make him leave the residence.
Winger admitted he did not read the Miranda warnings to defendant at any time. Winger said when he woke defendant and began to question him, he did not intend to arrest him. On cross-examination, Winger denied he immediately told defendant to come to the station with him. Upon further examination by the trial court, Winger stated he was obligated by department policy to question defendant about "his version of the domestic battery," even though Beaudette told him she only wanted defendant removed from the premises.
Officer Scott testified he had little direct knowledge of the specific details of the alleged domestic dispute, because he was merely acting as a backup officer. Scott's testimony was otherwise similar to Winger's, in that their "purpose in being there was to investigate the domestic disturbance," they had no intent to arrest defendant when they arrived at the apartment, and they "just wanted his side of the story."
Defendant testified that as soon as Winger woke him, Winger told him to get up, get dressed, and "come with him." While defendant put on his clothes, Winger questioned him about the domestic disturbance. After defendant acknowledged having argued with Beaudette, Winger immediately arrested him. According to defendant, Winger never even asked about a gun, and Scott did not find a gun until Winger informed defendant he was under arrest for domestic battery. Defendant admitted he drank earlier in the evening and he was "still drunk" when Winger woke him up. On this evidence, the trial court found no custodial interrogation took place, and denied defendant's motion to suppress confession.
At defendant's trial, Officers Winger and Scott testified, along with Archer. Winger's and Scott's trial testimony was similar to their testimony during the suppression hearing, although Scott's testimony on the recovery of the weapon was more detailed. At trial, Scott testified after he found the weapon, he heard defendant tell Winger "he had taken a weapon from a friend's to keep a friend from getting in trouble with it and brought it back to [Beaudette's apartment]." Scott said he found the unloaded weapon on top of the kitchen cabinets about 10 to 15 feet away from defendant. Scott acknowledged he had been given information concerning the location of the gun prior to entering the apartment.
Scott Archer testified he moved to Bloomington in 1998, had known defendant for about eight months, and defendant "was [his] best friend." Archer had been Beaudette's roommate for about two weeks before they made the statements to police on March 5, 1999. He indicated defendant was staying at the apartment on March 5, but he did not actually live there. Archer believed Beaudette and defendant had a dating relationship.
Archer testified he and Beaudette worked the same shift at Permabilt, and on March 4, 1999, they drove to work together at 4 p.m. They arrived at Beaudette's apartment after they got off work around 12:30 a.m. on March 5. Defendant was in the apartment when they arrived. Soon after they returned to the apartment, Beaudette and defendant began to argue. While Beaudette held her son, defendant shoved her and put his hands around her neck. Archer said the encounter did not last long and shortly thereafter, he, Beaudette, and her son left the apartment and walked to the police station to report the incident.
After making a statement, Archer accompanied the officers and Beaudette back to the apartment and they waited outside while the officers questioned and arrested defendant. The day after defendant's arrest, Archer said defendant called him and asked him to inform the police the gun was already in the apartment when Beaudette moved in. Archer testified he did not follow through with defendant's suggestion because he "did not want to perjure himself."
Beaudette did not testify at defendant's trial. The jury acquitted defendant of domestic battery and endangering the life or health of a child charges, but it convicted him of unlawful use of a weapon by a felon. After the trial, the court held a September 2, 1999, hearing on defendant's posttrial motion. The trial court denied defendant's request for a judgment n.o.v. or a new trial, and proceeded to sentencing. The State recommended a sentence of 10 years, noting the charge was a Class 3 felony and defendant was eligible for an extended term. The trial court sentenced defendant to 6 years, 6 months in prison, with credit for 182 days served. The trial court also assessed $415 in court costs, of which $200 was for "Felony Public Defender Reimbursement." The trial court later denied defendant's motion to reconsider sentence and this appeal followed.
Defendant presents four issues for review: (1) whether the trial court denied defendant a fair trial when it failed to suppress (a) a gun that was recovered after a warrantless search where no exigent circumstances were shown and (b) defendant's statement concerning a gun, which police obtained through coercive interrogation without providing Miranda warnings; (2) whether the State failed to prove beyond a reasonable doubt defendant committed the offense of unlawful possession of a weapon by a felon; (3) whether defendant's sentence must be vacated; and (4) whether the trial court's order requiring defendant to pay for his court-appointed counsel must be vacated.
Defendant first argues the gun discovered by the police officers should have been suppressed because the officers acted on prior information concerning the location of the gun that was independent of defendant's statements and the officers did not present any exigency for proceeding without a warrant.
As a threshold matter, we must determine whether defendant has standing to challenge the officers' search of the apartment and seizure of the weapon. To establish standing to challenge a search, a defendant show his own fourth amendment rights have been violated. People v. Walters, 187 Ill. App. 3d 661, 665-66, 543 N.E.2d 508, 511 (1989). This requires the defendant to show he has a reasonable expectation of privacy in the ...