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People v. Neely

Court of Appeals of Illinois, First District, Second Division

November 12, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ORLANDO NEELY, Defendant-Appellant.

Appeal from the Circuit Court of Cook County. No. 11 CR 8060 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.

OPINION

HARRIS JUSTICE

¶ 1 Following a bench trial, defendant Orlando Neely was convicted of unlawful use of a weapon by a felon (UUWF) and sentenced to three years' imprisonment. On appeal, defendant contends that his conviction for UUWF must be vacated because the statute creating the offense violates the second amendment right to bear arms for self-defense. Defendant also contends that the trial court abused its discretion by admitting his prior convictions for impeachment purposes without determining whether the danger of unfair prejudice substantially outweighed their probative value. We affirm.

¶ 2 Defendant was charged with two counts of UUWF (Counts 1 and 2) and one count of aggravated unlawful use of a weapon (AUUW) (Count 3) stemming from an incident on May 8, 2011, where police stopped the vehicle defendant was riding in for a broken taillight. During a search of the vehicle, police recovered a gun that, according Officer Fetzer, defendant admitted belonged to him.

¶ 3 At trial, Officer Matthew Fetzer testified that at about 11:39 p.m. on May 8, 2011, he was in a squad car with his partners Officers Tim Bubacz and Jimmy Sherlock in the vicinity of 6306 South Damen Avenue in Chicago. As they were driving, Fetzer saw a vehicle, which had four people inside including defendant who was in the rear passenger seat, with a broken taillight. The officers pulled over the vehicle, and one of Fetzer's partners asked the driver for his license. The driver gave police a suspended driver's license. The police ordered everyone to exit the car, and Fetzer performed a custodial search of the vehicle because it was about to be towed. During the search, Fetzer found a loaded handgun on the floor of the rear passenger seat, and the four occupants of the vehicle were arrested. Defendant was transported to the police station and advised of his Miranda rights. Defendant told Fetzer that the recovered gun belonged to him, and that he had it for protection because he was shot at a few days ago. After the parties stipulated that defendant had a 1992 murder conviction, the State rested.

¶ 4 Defendant testified that after 11 p.m. on May 8, 2011, his nephew, who was driving a vehicle with two passengers inside, picked him up and he sat in the rear passenger seat. Defendant did not notice any guns in the vehicle. Shortly thereafter, the police stopped the vehicle and asked the occupants to get out of the car. The police then searched the vehicle, arrested defendant, and transported him to the police station. At the station, police asked defendant if he owned the gun in question, and he responded negatively. He also denied telling police that he had contact with a gun inside of the vehicle, that he was shot at recently, and that he had the gun for protection.

¶ 5 In rebuttal, the State offered into evidence the previously received 1992 murder conviction, a 1992 conviction for possession of a controlled substance, and a 2006 conviction for possession of a controlled substance. Defense counsel conceded that the 2006 possession conviction was admissible, but noted that the 1992 conviction for possession of a controlled substance was over 10 years old and thus inadmissible. The State agreed and the court received the 2006 possession conviction and the 1992 murder conviction, for which defendant received a 25-year sentence.[1]

¶ 6 Following argument, the court found defendant guilty of both counts of UUWF and the one count of AUUW. In doing so, the court stated that the evidence was conflicting with regard to possession, but noted that it made a credibility determination after assessing all of the evidence. In sentencing defendant to three years' imprisonment, the court merged Counts 2(UUWF) and 3(AUUW) into Count 1 (UUWF). The court specifically stated during sentencing that defendant would only be sentenced on Count 1, as the mittimus also reflects.

¶ 7 On appeal, defendant contends that his conviction for UUWF must be vacated because the statute creating the offense (720 ILCS 5/24-1.1 (West 2010)), violates the constitutional right to bear arms for self-defense.

¶ 8 Our review of the constitutionality of a statute is de novo (People v. Davis, 408 Ill.App.3d 747, 749 (2011)), and a challenge to the constitutionality of a criminal statute may be raised for the first time on appeal (People v. Marin, 342 Ill.App.3d 716, 722 (2003)). Because we assume that a statute is constitutional, the defendant has the burden of showing the constitutional violation. People v. Sole, 357 Ill.App.3d 988, 991 (2005).

¶ 9 The second amendment provides that, "[a] well regulated Militia, being necessary to secure a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const., amend. II.

¶ 10 The relevant provisions in the UUWF statute state:

"It is unlawful for a person to knowingly possess on or about his person *** any firearm *** if the person has been convicted of a felony *** ." 720 ...

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