Court of Appeals of Illinois, First District, Second Division
Rehearing denied August 27, 2013.
In a prosecution for unauthorized possession or storage of a weapon, the knife discovered in defendant’s possession as he entered a court building was properly measured from the hilt to the tip of the blade, but the cause was remanded for a new trial due to the trial court’s error in striking the word “knowingly” from the instruction on the elements of the offense based on the mistaken belief that the offense was an absolute liability offense, since “knowledge” is the proper mental state to be applied to a charge of unauthorized possession or storage of a weapon.
Appeal from the Circuit Court of Cook County, No. 09-MC-1224576; the Hon. Clarence Burch, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Geoffrey Burkhart, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Matthew Connors, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant David Louis Sito was found guilty of unauthorized possession or storage of weapons, then sentenced to 364 days' imprisonment. On appeal, defendant contends that his conviction should be reversed where the State's witnesses erroneously included a "non-cutting" part of a knife in their measurements of its blade, and the trial court erroneously struck the word "knowingly" from jury instructions. For the following reasons, we reverse and remand.
¶ 2 On March 12, 2009, defendant set off a metal detector in the lobby of the Richard J. Daley Center, 50 West Washington Street, in Chicago, and a Cook County deputy sheriff discovered a knife in his pocket. He was subsequently charged with unauthorized possession or storage of weapons and elected to be tried by a jury.
¶ 3 Defendant represented himself at trial. Orestes Ruffin, the vice president of MB Real Estate Services of Illinois, LLC (MB Real Estate), and the general manager of the Daley Center, testified that MB Real Estate operates the Daley Center pursuant to a contract with the Public Building Commission of Chicago, which owns the building. MB Real Estate receives money to operate the Daley Center from the Public Building Commission, which, in turn, receives its money from the City of Chicago and the County of Cook.
¶ 4 Cook County Deputy Sheriff Ronnie Sprowls testified that on March 12, 2009, he was working in the lobby of the Daley Center when defendant walked through and set off the metal detector. He asked defendant to step over and began to wand him, and as he was doing so, he felt something in defendant's right pocket which he believed to be a knife. Deputy Sprowls then reached into defendant's pocket and pulled out a knife. When he asked defendant where he was going, defendant told him that he was going to see Deputy Sheriff Edward Bionci "in regards to someone sodomizing his cats." Deputy Sprowls found that comment to be "strange and unusual" and asked defendant to step aside as he placed a call to Deputy Bionci. Then, after speaking with Deputy Bionci, he took defendant downstairs to the lockup for further investigation. Deputy Sprowls testified that he measured the knife recovered from defendant with a ruler and that it measured 3c inches long from the hilt to the tip of the knife. On cross-examination, Deputy Sprowls acknowledged that the "flat edge part of the knife, " i.e., the sharpened edge, ended at some point before the handle.
¶ 5 Sergeant Lawrence Garrett of the Cook County sheriff's department testified that on the day in question, he was the sergeant in charge of security for the Daley Center, and that prior to that date, he had neither met nor heard of defendant, and never received a written request from him to bring a knife into the building. He also testified that there were no written orders from a judge allowing defendant to bring a knife into the building. On cross-examination, Sergeant Garrett stated that he measured the knife recovered from defendant with a ruler as well and that it measured 3c inches from the handle to the tip of the knife.
¶ 6 The State rested its case-in-chief and defendant called Cook County Deputy Sheriff Eric Beverly, who was working security in the lobby at the Daley Center on the day in question. Deputy Beverly testified that he does not remember defendant emptying his pockets or putting his bag on the "conveyor belt."
¶ 7 Defendant also called Cook County Deputy Sheriff Michelle Fourte-Johnson, who was working the X-ray machine on the day in question. Deputy Fourte-Johnson did not recall defendant emptying his pockets that morning, or placing his bags on the X-ray machine, but does recall that his bag was stopped. She testified that she X-rayed the bag once or twice, had her partner check it for prohibited objects, and found a glass bottle inside.
¶ 8 Defendant then testified in the narrative that on March 12, 2009, he went to the Daley Center to meet with Deputy Bionci, whom he had been in contact with since December 2008, regarding animal cruelty at his boyhood home in Wilmette. He testified that when he arrived, he emptied his pockets and placed his items on the tray, put his bags on the X-ray machine, then walked through the metal detector, which was set off by his "belt or something." Deputy Sprawls wanded him and "that was it." However, Deputies Fourte-Johnson and Beverly wanted to run his bags through the X-ray machine again. After a couple times running his backpack through, Deputy Fourte-Johnson found a glass bottle, which the deputies told him he could not bring into the building. They then ran his backpack through four or five more times and found the knife in question. Defendant testified that he was not aware that the knife was in his backpack, and that he told Deputy Sprawls, "I'm on bond. I'm not looking for any trouble, is there a problem with this?" Deputy Sprawls responded that he thought that defendant was on parole, but defendant corrected him, "no, not parole, pretrial bail bond release."
¶ 9 Defendant was taken downstairs to the lockup, and while down there, he asked Deputy Sprawls if he was under arrest, to which Deputy Sprawls responded, "No, you're being held for an investigation." The deputies then went through his bag, made copies of various materials, and counted out his money, which amounted to $1, 340. At some point, Deputy Sprawls asked defendant, "Do you have any money to get home?" and defendant responded, "You know I got money, I've got $1300. You counted it twice." Deputy Sprawls then told him, "You'll be going home in 10 minutes, " but 20 minutes later, a Sergeant Henley arrived and asked defendant if he "had seen the Miranda rights." Defendant testified that he placed his initials next to each right, but did not sign the bottom of the page to indicate that he had waived those rights. He also testified that when he complained to the sergeant that he had not been allowed to use the phone, the sergeant "got all huffy and puffy, started threatening [him] with disorderly conduct charges." Defendant ultimately answered a few of his questions, but "chose to exercise the Fifth Amendment" with respect to some others, which "inflamed him even more." Then, later that evening, he was driven to the lockup in Maywood and learned on the way there that he had been charged with unauthorized possession or storage of weapons. Defendant presented the jury with photographs of the knife in question next to three different rulers and testified that the pictures showed the blade to be 2f inches long.
¶ 10 During the jury instructions conference, the State proposed a non-Illinois Pattern Jury Instruction (IPI) for the definition of unauthorized possession or storage of weapons. The State argued that in 1997, the legislature amended the language of the statute to include the words "public funds" and "building, " but that the IPI instruction still reflected the previous language. The State also argued that the IPI instruction included the phrase "knowingly, " but that the statute, itself, did not contain that term. The court stated that it was going to "follow the statute in every detail, " and over defendant's objection, gave the State's proposed instructions. It instructed the jury as follows:
"A person commits the offense of unauthorized possession or storage of weapons when he possesses any knife with a blade of at least three inches in length in any building supported in whole or in part with public funds without prior written ...