Appeal from the Circuit Court of Cook County No. 07 CR 398 Honorable Mary Margaret Brosnahan, Judge Presiding.
The opinion of the court was delivered by: Justice Lampkin
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Alejandro Alvarado was convicted of aggravated unlawful use of a weapon (AUUW) and sentenced to two years of probation.
¶ 2 On appeal, he contends that: (1) his multiple convictions for AUUW violate the one-act, one-crime rule; (2) he received ineffective assistance from trial counsel, who elicited testimony concerning street gangs; (3) and his convictions under the AUUW statute should be vacated because the relevant provisions of the statute violate the constitutional guarantees of the right to keep and bear arms and equal protection.
¶ 3 For the reasons that follow, we hold that: (1) one of defendant's two convictions for AUUW must be vacated under the one-act, one-crime rule; (2) defendant was not denied effective assistance of counsel where counsel's questions of witnesses were consistent with the defense strategy to discredit the police officers' testimony and disassociate defendant from the co-arrestee who flashed gang signs at the scene; and (3) defendant's conviction for possession of a firearm in the street when he was under 21 years of age is affirmed because the relevant provisions of the AUUW statute do not violate the constitutional guarantees of the right to keep and bear arms and equal protection.
¶ 4 Accordingly, we vacate one conviction for AUUW and affirm the judgment of the circuit court in all other respects.
¶ 6 On the afternoon of December 12, 2006, defendant was arrested after Chicago police officers, who were conducting surveillance from inside an unmarked squad car, allegedly saw defendant on the street with a gun in his hand. Two police officers approached defendant, chased him into a residence, and recovered the Smith and Wesson .38-special bluesteel revolver he was carrying.
¶ 7 Prior to trial, defendant moved the court to quash his arrest and suppress evidence. He argued the court should suppress the handgun recovered inside his home and his post-arrest statement because his home was illegally searched and he was illegally arrested. After a hearing, the trial court denied defendant's motion.
¶ 8 Defendant was tried before a jury on charges that he: (count I) knowingly carried on or about his person a handgun when he was not on his own land, or in his own abode or fixed place of business, and had not been issued a currently valid firearm owner's identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2006)); and (count II) knowingly carried on or about his person a handgun when he was not on his own land or in his own abode or fixed place of business and was under 21 years of age and in possession of a handgun (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2006)).
¶ 9 At trial, Chicago police officer Angel Cahue testified for the State that he was conducting surveillance on the 3000 block of South Homan Avenue. He sat in the backseat of a parked, covert vehicle and relayed information to other surrounding officers via radio. Sergeant Jason Janopolous and Officer Sonia Aponte were also present in that car. Officer Medina was sitting in an unmarked car parked in an alley about one block north of Officer Cahue's location.
¶ 10 Officer Cahue saw a Jeep driven by Raudel Perez pull into a driveway on the east side of Homan Avenue. Defendant, who was in the passenger seat, exited the Jeep and had a brief conversation with Perez. Defendant held a handgun in his right hand. Defendant turned and began to cross the street, tucking the gun into the right side of his waistband so that the gun handle remained visible. Officer Cahue radioed for Officer Medina to approach. Officer Medina drove to the rear of 3040 South Homan Avenue, and ran from the alley, through the backyard and gangway to the front of the residence. Defendant was in the street in front of 3040 South Homan Avenue, and Officer Cahue had exited his car. The revolver was in defendant's waistband and his hand was on the handle of the gun.
¶ 11 Officer Cahue testified that the officers announced their office and told defendant to stop. Defendant looked at them and then ran into the gangway at 3040 South Homan Avenue. Officer Medina chased defendant, followed by Officer Cahue. Defendant ran inside a basement apartment, slamming the door in Officer Medina's face. Officer Medina immediately opened the unlocked door and followed defendant. When Officer Cahue caught up to them inside the apartment, Officer Medina had defendant lying facedown on the floor in protective custody. While Officer Cahue stayed with defendant, Officer Medina recovered the revolver from the bathroom.
¶ 12 Officer Cahue testified that when the officers entered the basement apartment, it was filthy and in complete disarray. Garbage was spilling over from garbage cans, dishes were piled up in the kitchen sink, and clothes were all over the floor. The officers did not search or ransack defendant's apartment. Defendant was advised of his rights and taken to the police station. Defendant then voluntarily told Officers Cahue and Medina that a male pulled a gun on defendant and shot at him the previous day. Defendant also said that he would not call the police because he was his own protection. Defendant's statement was not videotaped or tape-recorded because this case did not involve a homicide. Officer Cahue took steps to verify whether the prior shooting incident had occurred.
¶ 13 Officer Cahue testified that Raudel Perez was also arrested at the scene for reckless conduct where he attempted to create a diversion by flashing gang signs and yelling gang slogans when the police were chasing defendant. Furthermore, no females were around the area when defendant was out on the street with the gun. In addition, defendant was 20 years old at the time of the arrest and did not have a FOID card.
¶ 14 Officer Medina testified consistently with Officer Cahue. Officer Medina added that when defendant ran into the basement and the door slammed closed, Officer Medina immediately opened the unlocked door and saw defendant in the vestibule area still in possession of the revolver. Defendant ran into a bathroom that was less than 10 feet from the vestibule, pulled the revolver from his waistband, and tossed it into the top of an uncovered, water-filled toilet tank. Defendant then moved away from the toilet, got on the ground, and cooperated with the officers' orders. Furthermore, at the police station, defendant told the officers that a rival gang member pulled a gun on him the day before. Officer Medina did not ask defendant when or where the incident happened or the name of anyone defendant may have thought was the offender. Officer Medina explained that he did not make a tape or video recording of defendant's post-arrest statement because the matter was treated as a gun case, not a homicide case.
¶ 15 Sergeant Janopolous testified that he supervised the surveillance in this matter and was the driver in the covert vehicle with Officer Cahue. Sergeant Janopolous saw the Jeep driven by Perez pull into the driveway. Defendant, who was the passenger, then exited the Jeep and started to walk across the street. Perez exited the Jeep soon thereafter. When Officers Medina and Cahue chased defendant, Perez started flashing Latin King gang signs and yelling gang slogans, and began to cross the street. At that point, Sergeant Janopolous and Officer Aponte exited their car and, in order to provide additional protection for the officers that chased defendant, arrested Perez for reckless conduct. Sergeant Janopolous testified consistently with Officers Cahue and Medina concerning the condition of the basement apartment. Sergeant Janopolous testified that the officers did not break the basement door or search the basement apartment. The officers were only inside the apartment for a couple of minutes before they all returned to the police station.
¶ 16 Amber Huerta testified for the defense. She lived across the street from defendant and knew him as a family friend. She was home at the time of the incident and looked out her window because a green truck playing loud music drove into the driveway next to her home. Two men were in the truck, but defendant was not with them. Furthermore, defendant was not around on the street. Two Hispanic male police officers searched the truck and its two occupants. Then more officers came and they ran to the house next door to defendant's home and spoke with someone at that residence. Next, the officers went to the second floor of defendant's home, but no one answered the door. The officers then went through the gangway, and Huerta lost sight of them. About 10 minutes later, the officers came outside with defendant, took him to the two men from the truck, and searched them. Huerta knew that defendant was arrested for having a gun, realized her information was important, but never told the police that someone other than defendant was the truck passenger. Moreover, prior to trial, Huerta refused to give a statement to the State's investigator in this case.
¶ 17 Defendant testified that he had been at home all day before the police burst into his apartment. Specifically, he was alone when he heard two loud knocks on the door. Then, the police knocked the door off its hinges and entered. The first officer, a big white man, came in with his gun drawn, and two others came in and began searching the apartment. While defendant lay facedown on the floor for about 15 minutes, the officers pulled cabinets down, flipped and tore couches, and went through drawers. The police took him to the washroom, where they had removed the toilet tank cover and claimed to have found a gun. Defendant testified that he never put a gun in the toilet tank and did not know how the toilet tank cover disappeared. Photographs of defendant's home in disarray were introduced into evidence. Defendant, however, acknowledged that he did not present any photographs from family functions, etc., that would have shown the condition of his home prior to the date of his arrest.
¶ 18 Defendant did not remember being told his Miranda rights and never made a statement that someone shot at him the day before his arrest. Defendant acknowledged that his neighborhood was in Latin King territory but testified that he was not in a street gang, had never been in one, and did not have any gang tattoos. Although defendant had seen Perez around for probably one month, defendant did not know Perez was a Latin King and was not in Perez's Jeep on the date of the incident.
¶ 19 The State recalled Officer Cahue as a rebuttal witness. Officer Cahue testified that after the arrest he asked defendant if he was in a gang, and defendant said he was a Latin King. Officer Cahue documented that statement in his offense report.
¶ 20 The jury found defendant guilty of both counts of AUUW where he did not possess a valid FOID card (count I), and where he was under 21 years of age at the time of the offense (count II). He was then sentenced to two years of felony probation. Defendant appealed.
¶ 22 A. One-Act, One-Crime Rule
¶ 23 When a defendant is convicted of two offenses based upon the same, single physical act, the court must vacate the less-serious offense. People v. Johnson, 387 Ill. App. 3d 780, 793 (2009). The State concedes that one of defendant's two convictions for AUUW must be vacated under the one-act, one crime rule because multiple convictions are improper if they arise out of the same physical act. People v. Crespo, 203 Ill. 2d 335, 340-41 (2001). Both of defendant's AUUW convictions are based on the same, single act of possession of the same revolver.
Moreover, both offenses are Class 4 felonies. See 720 ILCS 5/24-1.6(d) (West 2006). Because defendant's constitutional challenges to the AUUW statute are not significantly impacted by which offense is vacated, we will address his constitutional challenges under the more general charge of (count II) possession of a handgun in the street when he was under 21 years of age. Consequently, we vacate defendant's AUUW conviction under count I, which was based on his possession of a handgun in the street without a valid FOID card.
¶ 24 B. Ineffective Assistance of Trial Counsel
¶ 25 Defendant contends that trial counsel provided ineffective assistance by eliciting irrelevant and inflammatory testimony which suggested that the offense was gang-related. Specifically, defendant complains his trial counsel should not have elicited on cross-examination testimony (1) from Officer Cahue that Perez, defendant's co-arrestee, was arrested for flashing gang signs and shouting gang slogans; and (2) from Officer Medina that defendant told the officers a rival gang member shot at defendant the day before his arrest. According to defendant, that cross-examination opened the door for the State to present evidence that the neighborhood was considered Latin King territory and defendant told the police after his arrest that he was a member of that street gang. We do not agree.
¶ 26 To obtain relief, defendant must show not only that his lawyer's performance fell below an objective standard of reasonableness, but also that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-89 (1984); People v. Albanese, 104 Ill. 2d 504, 525-27 (1984). A reviewing court must consider the totality of the evidence before the fact finder in determining whether a defendant has established his attorney's unreasonable errors and the reasonable probability of a different result. Strickland, 466 U.S. at 695. The prejudice prong of this Strickland test may be satisfied if defendant can show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. People v. Evans, 209 Ill. 2d 194, 220 (2004). The failure to satisfy either the performance or the prejudice prong of the Strickland test will preclude a finding of ineffective assistance of counsel. People v. Johnson, 368 Ill. App. 3d 1146, 1161 (2006).
¶ 27 Before we address defendant's ineffective assistance of counsel claim, we must clarify the trial court's ruling on the parties' motions in limine. Defendant asserts, without citation to the record, that prior to the start of the trial, "the trial court ruled that the case was not gang-related and that no gang evidence would be introduced." Our review of the record, however, establishes that the trial court made no such ruling. The trial court's ruling was actually much narrower. It addressed whether the State could present evidence that the police were at the scene conducting surveillance as a result of receiving information from an unknown citizen that someone would be carrying a gun in order to retaliate for a prior shooting incident involving street gangs. The trial court did not preclude any mention of street gang activity but, rather, precluded the State from eliciting the hearsay information obtained from the unknown citizen, who was not available for cross-examination.
¶ 28 According to the record, before jury selection on July 14, 2008, the trial court addressed the parties' motions in limine. After ruling on several of the State's oral motions in limine, the State sought guidance regarding the extent to which the officers could testify about the reason they had set up surveillance at 30th Street and Homan Avenue. The State explained that the police had defendant's name and photo because an unknown citizen told the police that there was going to be a gang retaliation and defendant was going to be the one with the gun. Furthermore, an offense case report indicated that on a previous day defendant was shot at by unknown rival gang members. The State sought leave to present the facts that the officers were familiar with that block based on gang activity and had information that a gang retaliation was going to take place.
¶ 29 The defense objected, arguing defendant would not be able to cross-examine the source of that information. The defense explained that a telephone call to the police was apparently the source of the information, but the person connected to the relevant telephone number denied making any such call and denied any knowledge of the matter.
¶ 30 Due to concerns involving hearsay and prejudice resulting from the denial of the right to confront witnesses, the trial court precluded the State from mentioning any information supplied by the unknown citizen. The trial court limited the State on direct examination to presenting testimony that the police were at the location "on surveillance pursuant to a continuing investigation."
¶ 31 The trial court then addressed the admissibility of defendant's post-arrest statement that a male pulled a gun on him on a previous day, defendant was not going to call the police, and defendant was his own protection. Defense counsel asked the court to preclude any use of defendant's post-arrest statement because it was not written or recorded, defendant denied being shot at and denied making the post-arrest ...