Appeal from the Circuit Court of Cook County. The Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.
¶ 1 Defendant, Jerry Harris, appeals his bench trial convictions of three counts of aggravated unlawful use of a weapon and his sentence of 12 months' probation. On appeal, Harris contends (1) his conviction under count IV, which alleged he did not have a valid firearm owner's identification (FOID) card, should be vacated because he did have a valid FOID card; (2) his conviction under count I should be vacated because his gun was "encased" in the center console of his car; (3) his conviction under count III should be vacated because it required proof that Harris had a firearm "on or about his person" upon a public street and the State failed to prove the corpus delicti of this offense; (4) as to count III, the aggravated unlawful use of a weapon (AUUW) statute violates Harris's constitutional right to bear arms; and (5) his $5 court system fee should be vacated where he was not convicted for a violation of the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2006)). We reverse Harris's convictions under counts I, III, and IV. We also vacate the assessment of the $5 court system fee.
¶ 3 The trial court sentenced Harris on December 2, 2009, and he filed a timely notice of appeal on December 31, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 Harris was charged with four counts of aggravated unlawful use of a weapon. Count I alleged that Harris "knowingly carried in any vehicle, a firearm, *** and the firearm possessed was uncased, loaded, and immediately accessible at the time of the offense." Count II alleged that Harris "knowingly carried in any vehicle, a firearm, *** and he had not been issued a currently valid firearm owner's identification (FOID) card." Count III alleged that Harris "knowingly possessed on or about his person a firearm, upon a public street, *** and the firearm possessed was uncased, loaded, and immediately accessible at the time of the offense." Count IV alleged that Harris "knowingly possessed on or about his person a firearm, upon a public street, *** and he had not been issued a currently valid" FOID card.
¶ 6 Before trial, Harris filed a motion to quash his arrest and suppress evidence. At the hearing, Officer Combs testified regarding what a concerned citizen at the crime scene had told him. Defense counsel objected, but the trial court allowed the testimony to show Officer Combs' state of mind. The trial court ultimately denied the motion, finding that although police did not have a warrant to search or probable cause, Harris gave his consent to search his car.
¶ 7 At the bench trial, Officer Combs testified that on December 14, 2008, he and his partner, Officer Caraga, responded to a call of shots fired at 7440 South Wabash in Chicago. Shortly after arriving on the scene, Officer Combs spoke with "a concerned citizen" who wished to remain anonymous. The witness spoke to the officer through a gangway window of a single-family home located 100 to 125 feet from the scene of the shooting. The witness pointed to a parked car, and when officers approached this car, they found Harris sitting in the driver's seat.
¶ 8 The officers conducted a field interview with Harris, and he acknowledged that he owned the car and consented to a search of the car. During the search, Officer Combs opened the center console and recovered a black .45-caliber semiautomatic weapon. He placed the weapon on the front seat for the evidence technician, Officer Edwin Jones. Harris conceded that he owned the gun. The parties stipulated that if called to testify, Officer Jones would state that he was called to 7517 South Wabash, where he entered a vehicle and observed a .45-caliber semiautomatic handgun sitting in the driver's seat. He later examined the gun and concluded that it contained six live rounds. He inventoried the weapon under number 11528394.
¶ 9 Harris was taken into custody and read his Miranda rights. While in the police car, Harris told Officer Hardman that a green Pontiac had pulled up and started firing. One of the shots hit his friend, Keith Jones. Harris then ran to his car, retrieved his gun, and returned fire. At the police station, in the presence of Officers Hardman, Combs, and Caraga, Harris again stated that he had gone to his car, retrieved his gun, and returned fire. After the State rested, Harris moved for reconsideration of his motion to quash his arrest and suppress evidence, and for a directed finding. The trial court denied Harris's motions.
¶ 10 For his defense, Harris recalled Officer Combs as a witness. He stated that after the interrogation, Harris was allowed to use the restroom. Officer Combs also prepared a police report which stated that a concerned citizen told him that an individual "went to his car before the shooting, retrieved a black object and then went back to his car and returned the black object after the shooting." He prepared the report "close in point in time to the events it purports to describe." No objection was made to this testimony at trial. Officer Combs also acknowledged that he is a patrol officer who does not conduct gun-residue testing, but he knew that Harris's washing his hands in the restroom would negate the results of such a test.
¶ 11 Harris testified in his defense. He stated that on December 14, 2008, he and his friends, Jones, Al, and Kanik, attended a party at a nightclub on Wabash until about 2:30 or 3 a.m. As they headed toward their parked cars, someone fired nine shots, striking Jones. The offenders then fled in a car. Harris ran to Jones and called 911. He also called a family friend, Janine Robinson, ...