Court of Appeals of Illinois, First District, Third Division
Rehearing denied January 13, 2014
The appellate court upheld defendant’s conviction for aggravated unlawful use of a weapon under section 24-1.6(a)(1), (a)(3)(C) of the Criminal Code, based on carrying a firearm without a valid FOID card, as elevated to a Class X felony as a result of wearing body armor, since evidence pertaining to the narcotics found on codefendants at the time of defendant’s arrest was relevant to explain the arresting officer’s conduct leading up to defendant’s arrest and why defendant was armed and fled, and any error was harmless in view of the overwhelming evidence of defendant’s guilt, defense counsel was not ineffective in failing to object to an officer’s testimony about the bulletproof vest defendant was wearing, even though the officer was not an expert, and furthermore, neither prong of the Strickland test was established, and the constitutionality of subsection (a)(3)(C) was upheld despite Aguilar, because subsection (a)(3)(C) is not a flat ban but, rather, is intended to protect the public from persons who should not be permitted to carry firearms.
Appeal from the Circuit Court of Cook County, No. 06-C-661030; the Hon. Frank Zelezinski, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Karl H. Mundt, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and William L. Toffenetti, Assistant State’s Attorneys, of counsel), for the People.
Panel 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 ...