Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 06C661030 Honorable Frank Zelezinski, Judge Presiding.
COUNSEL FOR APPELLANT Michael J. Pelletier, State Appellate Defender, of Chicago, IL (Alan D. Goldberg, Deputy Defender Karl H. Mundt, Assistant Appellate Defender).
COUNSEL FOR APPELLEE Anita Alvarez, State's Attorney of Cook County, of Chicago, IL (Alan Spellberg, William Toffenetti, Of Counsel).
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.
¶ 1 Following a jury trial, the defendant, Ramirez D. Taylor, was found guilty of aggravated unlawful use of a weapon (AUUW) under section 24-1.6(a)(1), (a)(3)(C) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2006)) for carrying a firearm without a valid Firearm Owner's Identification (FOID) card. His offense was elevated to a Class X felony because he wore body armor as described in section 33F-1(a)(2) of the Code (720 ILCS 5/33F-1(a)(2) (West 2006)). 720 ILCS 5/24-1.6(d) (West 2006). The defendant was then sentenced to 16 years' imprisonment. On appeal, he contends that: (1) the trial court erred in admitting narcotics evidence found on codefendants at the time of his arrest; (2) trial counsel was ineffective for failing to object to the admission of hearsay evidence pertaining to the body armor; (3) without the improper body- armor evidence, there was insufficient evidence to prove the aggravating element which made his offense a Class X felony; and (4) the AUUW statute is facially unconstitutional because it violates the second amendment (U.S. Const., amend. II). For the reasons that follow, we affirm.
¶ 2 The defendant was charged with multiple counts of AUUW after being arrested while fleeing a vehicle with a handgun on September 15, 2006. The other vehicle occupants were arrested for possessing narcotics. Prior to trial, the defendant filed a motion seeking, inter alia, to bar the State from introducing any evidence of narcotics found near the vehicle at the time of his arrest. In opposition, the State argued that the evidence was relevant to show the circumstances of the defendant's arrest. The State explained that cocaine was dropped out of the driver's window as the defendant fled the vehicle with a gun; cannabis was later recovered from the inside of the vehicle. According to the State, the narcotics evidence explained the police officers' course of conduct as one officer stayed with the vehicle while two other officers chased the defendant. The trial court allowed the State to introduce the narcotics evidence for the purpose of explaining the circumstances of the defendant's arrest. The court limited the evidence by stating that the prosecution "will clearly indicate that the defendant [was] not charged with [the narcotics]." The court further stated that neither party could comment on the dispositions of the codefendants' narcotics cases.
¶ 3 On September 29, 2010, the State proceeded to trial on count II of the indictment, which charged the defendant with AUUW under section 24-1.6(a)(1), (a)(3)(C) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2006)). Officer Tony DeBois testified that he was the director of special operations for the Harvey police department. On September 15, 2006, around 9:50 p.m., he was working with tactical officers Harlen Lewis and Leonard Weathers in an unmarked car. Officer DeBois drove the car while Officer Lewis sat in the front passenger seat and Officer Weathers sat in the rear. He stated that he was headed southbound on Winchester Street in Harvey when a green Buick LeSabre attempted to turn in front of him and almost struck his vehicle. He testified that he then activated his emergency lights and followed the Buick, which turned into a driveway at 14388 South Winchester. According to Officer DeBois, the officers pulled up right behind the Buick, at which point the rear door of the Buick opened and the defendant got out and ran away from the car. Officers Lewis and Weathers ran after the defendant; Officer DeBois remained with the Buick and called for backup because he observed the driver throw a plastic bag out of his window.
¶ 4 When the backup officers arrived, Officer DeBois approached the Buick and retrieved the plastic bag, which contained a white substance, later determined to be cocaine. He then requested that the other individuals exit the Buick, and he searched the vehicle, retrieving a green leafy substance which was later proved to be cannabis. Officer DeBois testified that the driver of the Buick, Whalen Hughes, and the passenger, Jemetric Nickelson, were later taken to the police station.
¶ 5 Officer DeBois stated that after a short time, Officers Lewis and Weathers returned to the Buick with the defendant and showed him a loaded handgun that they had recovered from the defendant. Officer DeBois described the gun as a black Glock 19 with an extended ammunition clip. Officer Lewis also lifted the defendant's sweatshirt and showed Officer DeBois the bulletproof vest that the defendant was wearing. The State then introduced photographs from the scene depicting the defendant wearing the vest while standing next to Officer Lewis.
¶ 6 The following day, Officer DeBois, along with Officers Steve Pryor and Robert Hunt, interviewed the defendant. Officer DeBois testified that the defendant stated that he had purchased the Glock 19 several days earlier for $300 from a man named Lonnie "Pen" Cooksey. According to Officer DeBois, they did not reduce the defendant's statement to writing and did not videotape it because the defendant refused.
¶ 7 Officer Harlen Lewis testified that when he and Officers DeBois and Weathers pulled up behind the Buick, he saw the defendant jump out of the back of the car. According to Officer Lewis, the defendant had what appeared to be a black gun in his hand as he ran. He stated that he began chasing the defendant, identifying himself as a police officer, and ordering him to stop and drop his weapon. He testified that, while he was in plain clothes, he wore his badge either around his neck or on his belt so that it was visible. His vest also had "police" written on the back. Officer Lewis caught up with the defendant after about 11/2 blocks, forcibly subdued him, and took his gun. The gun was later identified as the Glock 19, and according to Officer Lewis's testimony, it was loaded with about 19 rounds of ammunition.
¶ 8 Officer Lewis testified that after he subdued the defendant, he conducted a pat-down search and felt something hard and stiff under the his sweatshirt. He lifted the shirt and determined that the defendant was wearing a ballistics vest, which he indicated was the same type police officers wear for protection. The State then introduced People's Exhibit No. 5, which Officer Lewis identified as a bulletproof vest. He briefly described the vest and the different ways it can be worn. The State then proffered the back panel of the vest, which was marked as People's Exhibit 5A. Over a defense objection based on relevance, Officer Lewis identified the front and back panels of the vest as ballistic material. Officer Lewis then read the "material" label from the vest as "a hundred percent Kevlar." He testified that Kevlar is a type of ballistic material. He identified a pouch in the front of the panel as a "shock plate, " which protects an officer's sternum if he is shot. Officer Lewis also stated that the defendant's vest had "soft" Kevlar inserts and that some types of vests have metal inserts.
¶ 9 Officer Steven Pryor testified that he conducted a search to determine whether the defendant had a ...