Appeal from the Circuit Court of Cook County No. 10 CR 2232 (01) Honorable Evelyn B. Clay, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Salone specially concurred, with opinion, joined by Justice Neville.
¶ 1 Following a jury trial, defendant Kraig Hyland was convicted of one count of unlawful use of a weapon by a felon and one count of unlawful possession of a firearm by a street gang member. He was sentenced to concurrent prison terms of three years on each count. Defendant raises multiple issues on appeal. First, defendant contends that the trial court erred in denying his motion to quash his arrest and suppress evidence where the State failed to show that the arresting officers possessed knowledge of facts supporting probable cause to justify an arrest without a warrant. Defendant further contends that his convictions must be vacated because the statutes creating the offenses at issue violate the constitutional right to bear arms. Alternatively, where both of his convictions arose from the same physical act, defendant contends that his conviction for the less serious offense must be vacated under the one-act, one-crime doctrine. Finally, defendant contends that trial counsel was ineffective for: (1) failing to file a motion to sever the two counts, which allowed the jury to be inundated with unfairly prejudicial gang evidence that was only relevant to one of the counts; (2) failing to move for a mistrial or object to testimony that allowed the jury to infer that he had committed a previously uncharged murder; and (3) failing to object to the State's improper bolstering of a witness's credibility during closing rebuttal. Defendant also asks this court to amend the mittimus to properly reflect credit against his sentence for time served. For the reasons that follow, we reverse.
¶ 3 On January 13, 2010, defendant was arrested and charged with one count of unlawful use of a weapon by a felon and one count of unlawful possession of a firearm by a street gang member. At the hearing on defendant's motion to quash his arrest and suppress evidence, defendant testified that he worked as a barber at a shop located at 217 East 71st Street in Chicago. On the morning of January 13, defendant testified that he was in the barbershop with two other barbers and three clients. Two detectives knocked on the door of the barbershop. The door to the shop was kept locked and people had to either be "buzzed" in electronically or the door had to be opened manually. Defendant testified that one of the clients was smoking marijuana so they had to spray the shop down first before they opened the door for the detectives. Defendant stated that they thought the detectives were there to investigate a robbery that had occurred at the barbershop on December 30. Instead, one of the detectives pointed at him and said that he had violated an order of protection. The detective told him that they would have to take him in and he could discuss the matter with a judge the following day. Defendant put his hands behind his back and the detective placed handcuffs on him. His co-defendant objected and the detectives stated that they were going to take the co-defendant into custody for aiding and abetting. The detectives called for a transport car and, when it arrived, placed both men in the back seat of the vehicle to be transported to the police station. As the vehicle pulled away, defendant saw the detectives return to the barbershop. Defendant stated that after he had been at the police station for 45 minutes, the detectives came in with two guns and said, "Look what we got here, that's why y'all didn't let us in the shop."
¶ 4 On cross-examination, defendant stated that he had left the shop at 9 a.m. to walk to the corner store, but that was the only time he was outside the shop that morning. Defendant further testified that when the detectives brought the guns to the police station, he told them they were lying and one of the detectives told him it was defendant's word against the detective's word. Defendant stated that he did not have a gun in his possession and was not aware of any guns in the barbershop.
¶ 5 Officer Sledge testified that he was with his partner, Officer Boyd, in an unmarked squad car on January 13. Two other officers were in another unmarked car and were communicating with them via radio. Officer Sledge stated they saw defendant and co-defendant standing on the sidewalk outside the barbershop. There was a dumpster at the curb in front of the building. Officer Sledge and his partner exited their vehicle and approached the men, because they knew there was an investigative alert for defendant on a violation of an order of protection. The other two officers were also on the scene and exited their vehicle. As the officers approached, the two men looked in their direction and ran toward the barbershop, pushed the door open, and went inside. Officer Sledge followed them into the shop, cornered the co-defendant in the back of the shop, and performed a protective search. The other officers attended to defendant. Officer Sledge testified that, prior to performing the protective search, he had not observed any weapon on the co-defendant. Officer Sledge also testified that the shop was closed and under foreclosure at the time of the incident.
¶ 6 Officer Sena testified that he was working with his partner, Officer Lara, on January 13. Along with Officers Sledge and Boyd, Officer Sena saw defendant and co-defendant standing in front of the building at 217 East 71st Street. Officer Sena testified that there was no dumpster in front of the building. When they saw the officers, the two men ran into the building and Officer Sena ran after them. He detained defendant in the rear of the shop. Officer Sena testified that the officers were doing a follow-up investigation of defendant because he had an investigative alert for a violation of an order of protection. Officer Sena placed defendant in custody, performed a custodial search, and retrieved a semiautomatic pistol from defendant's front waistband. Officer Sena stated that he placed defendant in custody because there was probable cause to arrest him for the investigative alert. Officer Sena further testified that there were other investigative alerts that day, but he had only printed out the alert for defendant. He stated that defendant's alert caught his attention because he had had prior "run-ins" with defendant and knew that the barbershop was one of his "hangout spots." Officer Sena also stated that the barbershop was not a legal place of business because it did not have a permit.
¶ 7 The trial court found that the officers were credible and that the only instance of contradiction, regarding whether or not there was a dumpster outside the shop, was not germane to the issue of whether a lawful arrest occurred. The trial court found that both defendants were lawfully arrested given the totality of the circumstances. Therefore, the motion to quash the arrest and suppress evidence was denied. Counsel for defendant subsequently learned that the co-defendant filed a motion to reconsider and the trial court reversed its earlier ruling with respect to the co-defendant and granted the motion to quash his arrest and suppress evidence. However, the trial court explained that counsel for defendant had not timely filed a motion to reconsider and the case against defendant proceeded to trial.
¶ 8 At trial, Officer Sena testified that on January 13, he was working as a tactical officer. He went to the district office to check for investigative warrants and alerts for the district. He obtained an investigative alert for defendant and printed out a photograph. He then notified his partner and two other officers and the four officers proceeded to 217 East 71st Street in two separate vehicles. They arrived at the location shortly before noon. Officer Sena observed defendant standing in front of the location with another individual. Defendant was dressed in a T-shirt and was not wearing a coat. When Officer Sena stopped his vehicle in front of the location, the two men ran into the building. Officer Sena and the other officers ran into the building in pursuit of defendant through the unlocked door. Officer Sena caught up with defendant just past the first room in the building, placed him in custody because of the investigative alert, and performed a custodial search. A 9 millimeter weapon was recovered from defendant's front waistband. The officers then called for a transport vehicle and defendant was taken to the police station. Officer Sena testified that there was a back door to the building, but that neither of the men attempted to get out the back door. On cross-examination, Officer Sena testified that when he first saw defendant outside the barbershop, he had a view of defendant from the front and did not see a gun in his waistband.
¶ 9 Officer Lara testified that he was working with Officer Sena on January 13. They went to 217 East 71st Street to look for defendant. When they arrived at that location, they saw defendant and co-defendant outside on the sidewalk. Officer Lara testified that it was cold that day and that defendant was wearing some type of coat or outer garment. When the officers approached, the two men ran inside the building. The officers followed them into the building and Officer Lara and his partner placed defendant in custody and performed a custodial search, during which Officer Sena recovered a 9 millimeter handgun from defendant's front waistband. Defendant was transported to the police station and Officers Lara and Sena questioned him there after reading him his Miranda rights. Defendant indicated that he understood his rights and that he wished to speak with the officers. Officer Lara asked defendant why he had a gun and defendant replied that he had it for protection because they had been robbed two weeks earlier. Officer Lara then asked defendant if he was a member of a gang and defendant said he was a "70s Babies GD." Officer Lara understood that to mean that defendant was from a section of the Gangster Disciples street gang comprised of members who were born in the 1970s. Officer Lara asked defendant what he did for the gang and defendant replied that he was a foot soldier. Officer Lara explained that a foot soldier is a lower ranking gang member who sells narcotics.
¶ 10 After being asked whether he had any gang tattoos, defendant showed the officers two tattoos on his stomach and left forearm. Officer Lara was also shown a photo of defendant in which he identified two teardrop tattoos below defendant's right eye. He explained that, in his experience, teardrops under the eye indicate that a member of the gang has been killed. If the teardrop is filled in, it indicates that the gang has retaliated against whoever killed their fellow gang member. If the teardrop is open, it indicates that there has been no retaliation for the killing.
¶ 11 Officer Sledge was accepted as an expert witness in the area of street gang activities on the basis of his training in that area and his experience related to his assigned duties as an officer. Officer Sledge stated that there was no process for getting out of a gang and explained that a gang member simply might not be active. Officer Sledge testified that when a gang member has a teardrop tattoo, it means that one of his fellow gang members got hurt, shot or killed. If the teardrop is colored in, it means the person with the tattoo is the one "who did retribution for a slain gang member." At the end of his testimony, defense counsel asked Officer Sledge to verify that the fact that a person has tattoos does not mean that person is a gang member and Officer Sledge agreed. Defense counsel then asked, "A person could have absolved himself from a gang at any time, is that correct?" Officer Sledge answered, "That's correct." Officer Sledge was asked on redirect how easy it was to get out of a gang and he stated that it was not easy, especially if the person lives in the same area and associates with the same people, but that a person could actually remove himself from the gang if he wanted to.
¶ 12 The parties stipulated that defendant had a prior felony conviction. Defendant then called his former co-defendant, Ricky Montgomery. Montgomery testified that on the date in question, he was at the barbershop located at 217 East 71st Street with defendant. Some men came to the door and he realized they were police officers when he saw their badges. Montgomery testified that the officers knocked on the door, because the door was kept locked. When they realized the men were police officers, Montgomery stated, they opened the back door and sprayed something to mask odors because they had been smoking marijuana in the shop. Then one of the other barbers opened the door for the police. Montgomery asked the officers if they were there to investigate the robbery that had occurred at the shop and the officers said no, they had an investigative alert for defendant. The officers then proceeded to pat defendant down. Montgomery testified that the officers did not recover a gun from defendant. One of the officers started looking around the shop and Montgomery told him that if he had a warrant for defendant but not for the shop, he could not search the shop. The officer told Montgomery he was a "smart ass" and after a verbal exchange, the officer handcuffed Montgomery and said he was taking Montgomery to jail for aiding and abetting. Montgomery and defendant were placed in a transport vehicle and taken to the police station by different officers. The original two officers were joined by some other officers and they all went back into the shop. The arresting officers arrived at the police station about 45 minutes later. One of the officers came into the interview room with two guns and said, "Look what we found. This is what took y'all so long to open the door." Montgomery told the officers he had never seen the guns before.
¶ 13 Defendant testified that he was released from the penitentiary in 2002 and that, prior to his release, he attended a class because he wanted to stop drinking and doing drugs and he wanted to renounce his gang membership. Defendant testified that on January 13, 2010, he was in the barbershop. Apart from a trip to the store in the morning, defendant did not go outside the shop that day. He testified that it was cold and blowing and there was an icy rain. Around noon, two men came to the door of the shop and knocked. He thought they looked like police officers because one of the men was Caucasian and it was unusual to see a white person walking around in that neighborhood. The other barbers had been smoking marijuana, so he told them to spray the shop down and open the back door to let some air pass through the shop. The front door was locked, so someone had to go to the door and open it to let the officers in.
¶ 14 When the officers entered the shop, the occupants asked them if they had heard anything about a robbery that had occurred at the shop earlier. The officers said no, but asked which person was named Hyland. Defendant stated that he was Hyland and one of the officers told him that he had "an invest alert." The officer explained that the alert was for a violation of an order of protection and defendant asked how he had violated the order. The officer said defendant had called someone who had an order of protection against him for a domestic dispute. The officers told defendant they would have to take him to the police station. Defendant told the other barbers not to worry about him and asked them to call his mother and tell her that the police were taking him to the station, that he did not know what he had done, and that he had not called anyone in violation of the order. The officers placed him in handcuffs and started looking through the drawers of his booth, and then walked over to the other booths in the shop and continued to search. Montgomery told the officers they could not search the shop, and one of the officers said, "We got a little smart ass right here." Montgomery again told them they could not search the shop, and the officer asked Montgomery why he was interfering in their investigation. Montgomery told them they did not have a search warrant and they could not search the shop. The officer then grabbed Montgomery and handcuffed him. Officer Sena asked them what took them so long to open the door. Defendant acknowledged that they got sarcastic with the officers because they already knew they were going to jail anyway, so they told the officers that they could not search the shop no matter what the occupants had been doing before they opened the door. The officers then called for a transport vehicle, placed defendant and Montgomery inside, and they were transported to the police station.
¶ 15 Approximately 45 minutes later, Officers Sena and Lara arrived at the police station. One of the officers had two guns in his hands and told defendant one of the guns was his. The officers asked defendant if he was a member of a gang and defendant told them that he was when he was younger but he was no longer affiliated with a gang. Defendant further testified that there was a dumpster in front of the shop and he did not see the officers pull up outside the shop. Defendant testified that he was previously a member of the Gangster Disciples, but that he did not know what "70s babies" were. He explained that the tattoos on his face represented his father and his grandfather, who ...