Appeal from the Circuit Court of Cook County 06 CR 28145 Honorable John A. Wasilewski, Judge Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice Cahill concurred in the judgment and opinion.
Following a bench trial, defendant Jesse Coleman was convicted of violating the armed habitual criminal statute (720 ILCS 5/24-1.7 (West 2006)). He was sentenced to eight years in prison. Defendant appeals, arguing that: (1) the State failed to prove beyond a reasonable doubt that defendant violated the armed habitual criminal statute because the name on one of the certified copies of conviction entered as evidence of a prior offense did not match defendant's name; (2) the armed habitual criminal statute violates the second amendment; (3) defendant's conviction for violating the armed habitual criminal statute violated the ex post facto clause of the United States Constitution; and (4) defendant is entitled to an additional 32 days of presentence credit.
Defendant was charged with one count of being an armed habitual criminal (720 ILCS 5/24-1.7 (West 2006)), four counts of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1 (West 2006)), and six counts of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6 (West 2006)). The following evidence was presented at defendant's December 2008 bench trial.
Officer Michael Lachance testified that he is employed by the Chicago police department. On November 30, 2006, at approximately 7:40 p.m., Officer Lachance was in the area of 6501 South Paulina. He was working with a partner, Officer Keith Deitelhoff. They were in uniform and driving a marked police car. Officer Deitelhoff was driving. They went to that area pursuant to a call from the Office of Emergency Management. They were headed south on Paulina.
At that moment, a man walked in front of their car. Officer Lachance stated, "[h]e walked eastbound in front of the car, didn't look at us, just walked without even paying any attention that there was a car." Officer Lachance said the headlights to the car were on. When the man walked passed the car, Office Lachance noticed "a shiny object in his hand." The officer identified defendant as the man he saw walk in front of the car.
Officer Lachance testified that the shiny object was later revealed to be a handgun. It was shining "due to the fact that there was artificial light shining off of it." Defendant passed in front of the car with his left side closest to the car and the object was in his right hand. At that point, the officers exited their vehicle. They told him to stop and pulled out their firearms. Officer Lachance stated that defendant then threw the gun onto the roof of a church located at the southeast corner of the intersection. Officer Lachance testified that he observed defendant throw the gun with his right hand and he was able to see the gun from the time the gun left his hand until it landed on the roof. He saw the gun land about five to six feet from the gutter on the roof. He described the roof as very steep and pitched, a triangle. Officer Lachance stated that he was less than 10 feet from defendant when defendant threw the gun.
The officers told defendant to stop, but he did not. Officer Lachance put his firearm in the holster and attempted to place defendant into custody. He grabbed defendant's arm and defendant "tried aggressively pulling away." Office Lachance stated that they tried to cuff defendant, but he would not let them. After some struggling, a detective arrived and helped them place defendant in custody with handcuffs. As they were arresting him, defendant was saying multiple profanities. Officer Lachance also stated that defendant was intoxicated and he smelled alcohol on defendant's breath.
Officer Lachance testified that he called the fire department to assist in retrieving the gun by bringing a ladder. Once the ladder was in place, Officer Lachance climbed onto the roof and retrieved the gun. He did not see anything else on the roof other than the gun. He described the gun as a bluesteel revolver. It was loaded with four live rounds and no expended cartridges.
On cross-examination, Officer Lachance stated that defendant was transported by different officers to the station. He also said that he did not survey the entire roof; he went to the area where he knew defendant threw the gun. He estimated that he was on the roof for about a minute and a half. He testified that he observed Officer Deitelhoff inventory the gun at the police station. He stated that he did not go on any calls while he was in possession of the gun.
In response to a question from the trial court, Officer Lachance further described the gun as a .38-caliber bluesteel revolver and was approximately five inches across by four inches down.
The State then entered copies of two certified copies of defendant's prior convictions into evidence. The first was a unlawful use of a weapon by a felon from 1997, and the other was a burglary conviction from 2002. Defendant did not object. The trial court admitted the convictions and the State rested.
Defendant moved for a directed finding. Defense counsel argued that the officer's testimony was insufficient to prove that the object was a gun. Defense counsel also asserted that the certified copies of the convictions were not sufficient proof that they are defendant's convictions because the certified copies did not contain any identifying information apart from defendant's name. Specifically, defendant's attorney noted that there was "no I.R. number" and no date of birth. The prosecutor responded that the officer testified that he saw a shiny object that he later recognized as a gun and he saw the gun leave defendant's hand and he never lost sight of the gun. The trial court granted the motion for four counts of aggravated unlawful use of a weapon, but denied the motion as to the other counts.
Defendant testified on his own behalf. He stated that on November 30, 2006, he was in the vicinity of 6501 South Paulina while waiting for a friend. He recalled seeing a police car when he was across the street headed toward the church. He stated that he had consumed "some drinks" and got out of the car "so [he] wouldn't catch a DUI." After he got out of the car, he needed to relieve himself so he was walking to the church to do so.
Defendant saw the police car driving southbound on Paulina. He said that when the police officers asked him to stop, he did not know they were speaking to him and he kept going. When he stopped, defendant testified that he "tossed the drinks in the air." He stated that he threw a bottle of gin mixed with grapefruit juice and a half can of beer. He denied having a gun and denied throwing a gun onto the church roof. He said he was then placed under arrest.
Defendant stated that Officer Lachance was in the police car with him when the fire truck came and Officer Lachance did not climb the ladder to retrieve anything from the church roof. He testified that Officer Deitelhoff got into the vehicle and said they were not needed there anymore. Defendant said he was transported to the police station by Officers Lachance and Deitelhoff.
While at the police station, another officer came into the investigation room with a gun and gave Officer Deitelhoff the gun.
On cross-examination, defendant testified that he had consumed a half of a can of beer and had gotten "high" that night. Defendant stated that he had gin and then he said he had whiskey. Defendant testified that gin and whiskey were "the same thing." He mixed his drink with grapefruit juice because he could not get drunk. Defendant denied crossing the street in front of the police car. Defendant said he threw a bottle and it fell to the ground, but it did not break because it was plastic. Defendant testified that an officer did not climb the ladder to retrieve a gun from the church roof because they were in the car with him. He saw a fireman halfway up the ladder.
The defense rested after defendant's testimony. In rebuttal, the State presented a certified copy of conviction for theft from 2001 to be used for impeachment, which the trial court allowed.
In closing argument, defense counsel argued that Officer Lachance's memory was "faulty" because he needed to refresh his recollection from his reports. Defense counsel also argued that the certified copies of prior convictions were not sufficient to establish proof beyond a reasonable doubt because other than defendant's name, there was no ...