Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 99-CF-255 Honorable Donald Courson, Judge, Presiding
The opinion of the court was delivered by: Presiding Justice Lytton
A jury found the defendant, Shawn Earl Bell, guilty of home invasion (720 ILCS 5/12--11(a)(2) (West 1998)), aggravated battery (720 ILCS 5/12--4(b)(1) (West 1998)), and unlawful possession of a firearm by a felon (720 ILCS 5/24--1.1(a) (West 1998)). He was sentenced to 25 years' imprisonment for the home invasion conviction and 5 years' imprisonment for the firearm possession conviction to be served concurrently. He was not sentenced for aggravated battery. We vacate his aggravated battery conviction, but otherwise affirm.
The testimony at trial indicated that at approximately 3:30 a.m. on March 16, 1999, the defendant kicked in the front door of an apartment occupied by Chemacy Irby, her two children and her boyfriend, La Earl McBride. Naked and unarmed, McBride left the bedroom to investigate.
Police officers responded to a call and found McBride crouching in a corner, naked, with blood covering his face. The defendant was standing over McBride with a revolver in his right hand. An officer ordered the defendant to drop the gun. He did, and the officers took him into custody.
The defendant was charged by an indictment in three counts. Count I charged the defendant with home invasion. Counts II and III charged him with aggravated battery and unlawful possession of a firearm by a felon respectively.
The jury found the defendant guilty of all three counts, but he was sentenced only on counts I and III.
Additional facts will be discussed as they pertain to individual issues.
The defendant argues that the State failed to prove one element of the crime of unlawful possession of a firearm by a felon. He contends that the State did not prove beyond a reasonable doubt that he was the same "Shawn Bell" named in a certified copy of a 1992 conviction for attempted armed robbery. He was named in his indictment as "Shawn Earl Bell AKA: Bell, Shawn E" and the State presented no evidence beyond the certified copy of the conviction linking the defendant to the 1992 conviction.
At trial, but out of the presence of the jury, the prosecutor indicated that he had spoken with defense counsel about raising the issue of the defendant's prior conviction. The judge asked if there would be any objection to the certified copy of the defendant's prior conviction. Defense counsel replied, "No. I've gone over it. I know [the prosecutor] can prove it up." The judge suggested that the prosecutor mark the certified copy as an exhibit and offer it in evidence. He proposed that when the State offered the certified copy in evidence without objection, he would admit it. Defense counsel said, "It's going to avoid calling Nancy Mermelstein up, going through all that, Judge." The judge offered to inform the jury that in a Peoria County case, the defendant was convicted of two counts of attempted armed robbery on December 7, 1992. The judge said he would tell the jurors that they may consider the certified copy as evidence and give it whatever weight they thought it deserved. The judge asked if handling the prior conviction in that way was acceptable. Defense counsel agreed, saying, "I can't think of a better way, Judge."
At the conclusion of the State's case in chief, the prosecutor offered the certified copy of the defendant's prior conviction in evidence. When the judge asked if there was any objection, defense counsel said there was not. The judge admitted the certified copy as "People's Exhibit No. 9" and advised the jury as stated above. "People's Exhibit #9" indicates that an attorney named "Mermelstein" ...