Appeal from the Circuit Court of Du Page County. Honorable No. 10-CF-896 John J. Kinsella, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Jorgensen and Schostok concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, John K. Lipscomb-Bey, was convicted of two counts of being an attempted armed habitual criminal (720 ILCS 5/8-4(a), 24-1.7(a) (West 2010)) and one count of possession of a controlled substance (720 ILCS 570/402(c) (West 2010)). He was sentenced to concurrent terms of 20 years' imprisonment for the attempt convictions, to be served consecutively with a 6-year term for the drug conviction. On appeal, defendant argues that: (1) the evidence was insufficient to show a substantial step for the attempt crimes; (2) the speedy-trial term had run on the attempt charges, because they were subject to compulsory joinder; and (3) one of the attempt convictions must be vacated under the one-act, one-crime doctrine. We agree with defendant's first argument and therefore reverse his convictions of being an attempted armed habitual criminal.
¶ 3 On April 29, 2010, defendant was charged by superseding indictment with three counts stemming from an incident on April 15, 2010. Count I alleged unlawful possession of ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2010)), in that defendant, a felon, knowingly possessed a .32-caliber bullet. Count II charged defendant with unlawful possession of less than 15 grams of a substance containing cocaine. Count III alleged unlawful possession of ammunition by a forcible felon (720 ILCS 5/24-1.1(a) (West 2010)), in that defendant had previously been convicted of the forcible felony of attempted murder and knowingly possessed a .32-caliber bullet.
¶ 4 A few months later, on August 17, 2010, defendant was charged with two counts of being an attempted armed habitual criminal. Count IV alleged that defendant, with the intent to commit the offense of being an armed habitual criminal, performed a substantial step toward the commission of that offense, in that he agreed to sell a firearm and drove to a predetermined location with the intent to sell a firearm, after having previously been convicted of the forcible felony of armed robbery and having been convicted of the Class 1 felony of manufacture or delivery of a controlled substance. Count V was identical except that it alleged two prior convictions of the forcible felony of attempted murder.
¶ 5 Defendant's trial began on November 9, 2010. Agent Daniel Alaimo of the Du Page Metropolitan Enforcement Group (DuMEG) provided the following testimony. In April 2010, DuMEG learned from Internet postings about prostitution occurring at the Extended Stay Hotel in Downers Grove. Posing as a customer, a DuMEG agent contacted a woman from a posting, who called herself "Avery," and arranged a meeting with her at the hotel on April 14, 2010. When DuMEG agents arrived at the hotel room, they placed the woman, Alyshia Dorton, under arrest for prostitution. Dorton agreed to cooperate and provide information in exchange for not being charged with prostitution. Dorton told Alaimo that she could arrange to have someone sell her a handgun.
¶ 6 The following day, at about 1 p.m., Alaimo met with Dorton in his car in the hotel's parking lot. Dorton said that she had contacted an associate who gave her the phone number of a man named "John" who could supply her with a handgun. Alaimo consulted with other DuMEG agents and then met with Dorton again at about 3 p.m. He asked Dorton to call "John" through speakerphone, and Alaimo listened in. Dorton called and asked if the person who answered was "John," and the man answered in the affirmative. The man did not mention his last name. Dorton said that she needed a handgun, to protect her from some individuals. The man said that he would provide her with a gun but that he would not be available until after 6 p.m. Dorton asked how much it would cost, and "John" said that he did not want to talk about it on the phone but would discuss the price when he arrived. "John" did not describe the gun. Dorton told him that she was at the Extended Stay Hotel.
¶ 7 Around 8 p.m., Alaimo met with Dorton again in the hotel's parking lot, this time in a minivan. Six armed agents were in another van at the hotel's back door. Agents were also in a truck at the hotel's entrance for surveillance. At Alaimo's request, Dorton called "John" through speakerphone and asked where he was. The man said that he had just left Chicago's west side and was on his way. He asked Dorton for directions to the hotel, which she provided. Dorton asked if he had a handgun for her, and he said that he did. She asked about the price, but "John" still did not want to discuss it over the phone. He advised Dorton that he would be driving a white Cadillac and would be there in about one hour. Dorton told him to come to the back of the hotel and she would let him in the back door. For safety reasons, DuMEG agents did not plan to have Dorton actually meet with "John" or have him enter the hotel.
¶ 8 At about 9 p.m., a white Cadillac parked by the hotel's back door. Dorton received a call from "John," who said that he had arrived. Dorton said that she would be down to let him in. Alaimo and other agents approached the Cadillac, from which defendant had just exited. Alaimo asked defendant what he was doing there, and defendant said that he was going to meet a friend named Avery. Alaimo recognized defendant's voice as that of "John" from the phone calls. Alaimo asked how defendant knew Avery, and he said that it was through a mutual friend. When asked why he was visiting Avery, defendant said that she was having problems with some people and that he was there to provide her with "some sort of protection." Alaimo asked what defendant meant by "protection," but he would not elaborate.
¶ 9 Meanwhile, other agents were using flashlights to look into defendant's car windows, and an agent alerted Alaimo that they found something. Alaimo looked in the car and saw on the front passenger's seat a black digital scale with white powder residue. Based on his training and experience, Alaimo believed that it was used for weighing drugs. Defendant volunteered that he was not a drug dealer and that the scale was for his personal use. An agent alerted Alaimo to something else, and he saw a small bullet on the backseat floorboard. Alaimo asked defendant if he had a Firearm Owner's Identification (FOID) Card, and defendant said that he did not, because he had a felony conviction. At that point, Alaimo placed defendant under arrest.
¶ 10 Alaimo read defendant his Miranda rights, and defendant agreed to speak to him. Alaimo asked defendant if he had a gun, and defendant replied in the negative. When asked about the bullet, defendant said that he had been arrested years ago for having a .32-caliber handgun and that it was probably left over from that. Defendant said that the car was his but was registered in his mother's name and that he was the only driver.
¶ 11 Agents meticulously searched the car but did not find a handgun. They also did not find a gun while searching the parking lot area. They took the scale and the bullet into evidence, and it was later determined that the bullet was .32-caliber. They further found in the car's center console a piece of paper with the name "Avery" and directions from Chicago to the hotel.
¶ 12 The State's Attorney's office contacted Alaimo about bringing Dorton in to testify. He spoke to her on the phone, and she said that she was in California and did not want to travel to Illinois because she could be extradited to Minnesota on an outstanding warrant. Alaimo was not able to confirm Dorton's exact whereabouts.
¶ 13 A forensic chemist testified that she tested the surface of the scale and found the presence of cocaine.
¶ 14 The parties stipulated that defendant had been convicted of felonies, including two forcible felonies and a violation of the Illinois Controlled Substances ...