No. 08 CR 4949 Appeal from the Circuit Court of Cook County. The Honorable Michele M. Simmons, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Murphy and Steele concurred in the judgment and opinion.
Following a bench trial, the trial court found that Montate Thomas violated the armed habitual criminal statute. 720 ILCS 5/24-1.7 (West 2006). On appeal, Thomas contends that: (1) the prosecution did not prove that he committed two prior forcible felonies, because the prosecution did not show that Thomas's prior conviction for attempted murder qualified as a forcible felony; (2) his trial counsel did not provide effective assistance; and (3) the armed habitual criminal statute violates the ex post facto clauses of the Illinois and United States Constitutions.
We hold that (1) every attempted murder conviction counts as a forcible felony; (2) defense counsel subjected the State's case to meaningful adversarial testing and therefore provided effective assistance; and (3) the armed habitual criminal statute does not violate the Illinois and United States Constitutions. Therefore, we affirm.
On November 11, 2007, Joshua Humes rode as a passenger in a car Thomas was driving in Lansing, Illinois, when Detective Barajas effected a traffic stop of their car. Barajas found an unloaded assault rifle in the car. At the police station, Thomas signed a written statement in which he said:
"At about 1 a.m. my cousin, Joshua, called me on my phone to pick him up. *** I drove to Joshua's house. *** At Joshua's house he gave me a chrome assault rifle. I took it from him and we agreed that I would pay him for it later. The gun was now mine."
The armed habitual criminal statute bans the possession of a firearm by any person with two prior convictions for forcible felonies. 720 ILCS 5/24-1.7 (West 2006). Thomas had three prior convictions for residential burglary, one burglary conviction, one armed violence conviction, and one prior conviction for attempted murder. A grand jury indicted Thomas for violating the armed habitual criminal statute. The grand jury specified only the attempted murder and one of the residential burglary convictions as the prior forcible felonies that made Thomas's possession of the rifle a violation of the armed habitual criminal statute.
At trial, the prosecution relied principally on the written statement Thomas signed. Thomas testified that when he picked up Humes on November 11, 2007, Humes put the assault rifle in the trunk of Thomas's car. The rifle stayed in the car when they stopped and Humes stepped out of the car for a few minutes. Thomas testified that Humes asked Thomas to claim that he owned the rifle, because Humes was on parole and would get life in prison if he was caught with the gun. The parties stipulated that Thomas had prior convictions for attempted murder and residential burglary. The prosecution presented no evidence of the facts that supported the attempted murder conviction.
Defense counsel argued that Thomas did not have constructive possession of the rifle because he never intended to exercise control over it. The trial court said:
"[T]his comes down to an issue of credibility. ***
*** [Thomas] had every intent to gain control over the weapon. *** Looking at the credibility of the witnesses, I do not believe that [Thomas] was not the person who intended to gain control over this weapon. ...