Appeal from Circuit Court of McLean County No. 01CF355 Honorable Donald D. Bernardi, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
In January 2002, a jury convicted defendant, Rodney Harris, of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2000)). In May 2002, the trial court sentenced defendant to a five-year prison term. On appeal, defendant argues (1) section 24-1.1 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.1 (West 2000)) violates due process because it potentially punishes innocent conduct without requiring a culpable mental state, (2) the trial court erroneously refused his stipulation of a prior felony, and (3) the trial court improperly excused the transcribing of voir dire by a court reporter. We reverse and remand.
At trial, the State offered defendant's four prior felony convictions, aggravated battery, intimidation, and two counts of unlawful delivery of controlled substance, into evidence to prove defendant's status as a felon. Defendant offered to stipulate to the convictions and asked that the specific felonies not be published to the jury. The State objected to the stipulation, and the trial court agreed with the State:
"THE COURT: I agree with you. But the Supreme
Court doesn't. Aren't we supposed to identify the
crimes? We're no longer to allow the jury to
speculate because of what you just said. They might
think it's murder. Or do you think a different rule
applies in a prove up of an underlying felony?
I'm going to name the offense. *** Although, I
would agree there is some reason logically to think
that it's different when you're just proving up a
prior felony than when you're impeaching."
To establish defendant knowingly possessed an operable firearm, the State offered the testimony of officers and crime- lab technicians. Testimony relevant to this appeal follows.
Oliver Love, a Bloomington police officer, testified he was the officer who made the initial contact with defendant on April 2, 2001. At approximately 4:20 p.m., Love was driving on Market Street, near Mason Street, when he saw defendant in a group of six to eight men near the corner of Mason and Market Streets. Love knew there was a warrant for defendant; he did not recognize the others. After confirming the warrant was still valid, Love requested backup, exited his squad car, and approached defendant.
Love testified defendant was wearing blue sweatpants and sweatshirt, with a black baseball cap, and was holding a pit bull by a leash. Love told defendant to give the leash to someone and to come to him. Instead, defendant walked away from Love approximately 10 feet north on Mason Street.
Love testified one of the men took the pit bull from defendant. In that time, Love's backup, including Officer Chad Reeser, arrived. After Love gave the backup officers a description of defendant, defendant began sprinting south through the intersection of Mason and Market Streets. Love yelled for defendant to stop. Love and Reeser then chased defendant.
Love testified that as defendant ran through the intersection, he saw a handgun fall from defendant's waistband, at the small of defendant's back, and bounce in the intersection of Market and Mason Streets. Love retrieved the handgun as he ran. At Monroe Street, the next street they crossed, Love lost sight of defendant. Love called the canine unit and set a perimeter to watch for defendant. The officers found defendant in a large pine tree in the 600 block of West Jefferson. At the tree, Love saw what he believed might be a weapon in defendant's hand. Love told defendant to drop what was in his hand, which was a cellular phone. After defendant did not release the object, Officer Richard Hirsch, the canine officer, released his dog, which retrieved defendant from the tree by biting defendant's shoulder and pulling him from the tree.
Love testified defendant used vulgarities toward the police officers. Defendant repeatedly was "very much negative towards the dog" and "continuously bringing the theme that we would not have caught him without the dog." Love found cannabis on defendant.
Love testified he wrote in his report the handgun fell on Mason Street approximately 30 feet south of Market, not in the intersection. Love believed the waistband on defendant's sweatsuit was elastic. The handgun was approximately 6 inches long, 4 1/2 inches wide and weighed 2 to 3 pounds. Love denied defendant ran through two buildings on Market Street and not through the intersection.
Love further testified that after he lost sight of defendant, defendant could not have run north toward Econowash and then through the buildings to the location where he was found.
Defendant presented the testimony of four witnesses, who testified defendant did not run through the intersection where Love testified the handgun was found. Yeakia Thompson testified she was cleaning her tires at Econowash on Market Street when she noticed "the commotion." She watched defendant run through two buildings, a small business and a house, next to Econowash on Market Street. She was "positive" defendant did not run down Mason Street, and she did not see defendant drop anything. Thompson admitted she knew defendant, but only by name, because she had seen him at parties.
Toby Carlos III, who had known defendant for 15 to 20 years, testified he was with defendant, defendant's brother Azielis Phillip Harris (Phil), and Marcus Johnson on April 2, 2001. For approximately one to two hours in the afternoon, they lifted weights in defendant's mother's garage. When defendant "was doing the above-head presses," Carlos could see defendant's waistband. Carlos did not see a gun.
Carlos testified that after they lifted weights, the group went to Red Fox, a grocery store on West Market Street. After the police arrived, Carlos heard defendant say, "I got [marijuana] on me." Defendant then ran. Carlos watched defendant run between the small business and the house on the corner. Carlos did not see a gun fall from defendant's pants.
Carlos testified after defendant ran, the officer ran down Mason Street. Carlos saw the officer either drop something or bend over.
Marcus L. Johnson, defendant's cousin, testified he was with Carlos, defendant, and Phil lifting weights on April 2, 2001. During the workout, defendant had removed his shirt. Johnson could see the waistband to the pants, and he did not see a handgun. Johnson also did not see a handgun lying on a bench or car. Before they left the garage, Johnson did not see defendant tuck anything into his pants. Johnson did not recall seeing defendant's cellular phone.
Johnson testified the group decided to walk to Red Fox at approximately 3:30 to 4 p.m. While on Market Street, a police officer arrived. Defendant whispered he had marijuana on him and handed the leash to Carlos. Defendant then ran between two buildings. One officer followed defendant. Other officers were also in the area. Johnson ...