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The People of the State of Illinois v. Jerry Burton

November 20, 2012


Appeal from the Circuit Court of Kane County. No. 09-CF-3044 Honorable Allen M. Anderson, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Schostok concurred in the judgment and opinion.


¶ 1 Following a bench trial, defendant, Jerry Burton, was convicted of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2008)), unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)), and unlawful use of a weapon (720 ILCS 5/24-1(a)(7)(ii) (West 2008)). The trial court denied defendant's posttrial motion for reconsideration of the finding of guilty and for a new trial. Thereafter, the trial court sentenced defendant to six years in prison followed by a three-year term of mandatory supervised release. Defendant was assessed a $400 fine and $310 in costs. Defendant timely appealed. The issues are: (1) whether the State's comment during closing arguments that the testimony of its key witness was credible, because the witness had given a prior consistent statement to the police immediately after the incident, warrants a new trial under the plain-error doctrine; and (2) whether defendant is entitled to monetary credit against his $400 fine, where he spent 86 days in presentencing custody. For the reasons that follow, we affirm the judgment as modified to reflect full credit awarded against defendant's fine.


¶ 3 The following evidence was presented at trial. Montgomery police officer Ismael Diaz testified that, during the early morning hours of October 25, 2009, he pulled over a minivan for driving through a red light. Defendant was the driver. Joseph Budnick was sitting in the front passenger seat, and Peter Straus was sitting in the middle row of seats. After learning that defendant's driver's license had been revoked, Diaz arrested him. Budnick and Straus were placed into temporary investigative custody. Diaz conducted an inventory search of the minivan, because it was going to be towed to an impound lot. Diaz described the interior of the minivan as having two "captain seat[s]" in the front and two rows of "bench[]" seats. During the search, Diaz discovered a sawed-off shotgun on the floor between the rows of bench seats. Diaz later interviewed Straus at the police station. Straus provided a written statement. Diaz identified People's Exhibit No. 4 as Straus's statement. The statement was not admitted into evidence. Diaz could not recall who owned the minivan, but he stated that defendant was not the owner.

¶ 4 Montgomery police officer Adam Kuncl identified People's Exhibit No. 1 as a shotgun having a barrel measuring just under 15 inches. The gun was admitted into evidence along with People's Exhibit No. 2, ammunition.

¶ 5 Budnick testified that he was with defendant and Straus in the hours leading up to the traffic stop. Budnick and Straus picked up defendant and went to a house party. The three men were drinking, "smoking weed," and doing "a little coke." At some point during the party, he and defendant left and went to defendant's house "to get some weed and a bowl." Defendant drove and Budnick sat in the passenger seat. When they arrived at defendant's house, defendant went inside the house for about 10 minutes while Budnick waited in the minivan. When defendant returned to the minivan, he opened the sliding door behind Budnick. Budnick did not see what defendant was doing. Defendant closed the door and then entered the minivan. Budnick asked defendant "if he got the smoke and [defendant] said, yeah." They returned to the party and stayed for about two hours. When the three men left the party, defendant drove the minivan, Budnick sat in the front passenger seat, and Straus sat in the row behind them. Defendant blew a stoplight, and an officer pulled them over. Budnick was drunk, "[l]ike falling asleep." Budnick did not see the gun until after the officer removed it from the minivan.

¶ 6 Straus testified that, during the evening of October 24, 2009, into the early morning hours of October 25, 2009, he was with defendant and Budnick. They were in his minivan and doing some "bar hopping." They were drinking; they did not do any drugs. When they were done bar hopping, they went to a party. Defendant drove because Straus had been drinking. At some point during the party, defendant and Budnick drove off in Straus's van to get something to eat. Straus remained at the party, because he "was talking to a young lady." When defendant and Budnick returned, they remained at the party for a while. Eventually, the three men left in Straus's van, with defendant driving. Straus was sitting in the middle row of seats. According to Straus, when an officer pulled the van over, defendant said something like, "[I]t's not mine," and defendant "pushed [the gun] back towards [Straus]." Straus stated that he "just kind of freaked out and tossed it behind [him]." Straus had no idea there was a gun in the van until that point. Although Straus did not see the gun before defendant pushed it back toward him, he testified that the gun was lying between the two front seats. Straus admitted that he had previously been convicted of aggravated discharge of a firearm and had been sentenced to five years in prison. At the time of the incident, he was still serving mandatory supervised release. He was not allowed to possess guns or bullets. Straus was taken to the police station and provided a written statement. He was truthful when he provided his statement to the police.

¶ 7 The parties entered into the following stipulations. First, all chain-of-custody issues for People's Exhibit No. 1, the firearm, and for People's Exhibit No. 2, the ammunition, had been satisfied. And, second, People's Exhibit No. 1 was tested for, and did reveal, latent fingerprints, and there was no match between the prints on the firearm and those of defendant. In addition, the parties agreed that, if called to testify, Francis Senese, a forensic scientist, would testify that a person can touch a firearm and not leave prints suitable for comparison.

¶ 8 The State rested, and defendant rested. During closing arguments, defense counsel argued that the "crux" of the case involved the "issue of knowledge." According to defense counsel, the only evidence that defendant knew that the shotgun was in the van came from Straus, whose credibility was dubious given that the weapon was found in his van and that he was on parole for a weapons violation at the time. In response, the prosecutor argued as follows:

"[Defense] [c]counsel points out that Peter Straus has a reason to lie, motive, bias, reasons to lie. But, Judge, he didn't lie that night.

That night when he talked to the police officers without ever being promised anything, after being read Miranda and told what you say can and will be used against you in a ...

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