Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 07 CR 11206-02. Honorable Luciano Panici, Judge Presiding.
Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Douglas P. Harvath, Zachary Holladay, Assistant State's Attorneys, of counsel, Chicago, Illinois, for Plaintiff-Appellee.
Abishi C. Cunningham, Jr., Jeffrey Walker, Assistant Public Defender, of counsel, Public Defender of Cook County, Chicago, Illinois.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Presiding Justice Harris and Justice Simon concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant James Falco was convicted of possession of a firearm with defaced identification marks (720 ILCS 5/24-5(b) (West 2006)) and was sentenced to 2 years' probation with 90 days in the Cook County department of corrections. Defendant now appeals and argues: (1) the State improperly amended the indictment a week before trial without sending the case back to the grand jury; (2) the amendment to the indictment came after the statute of limitations had run; (3) the trial court erred where it did not instruct the jury that possession of a firearm with defaced identification marks must be knowing and intentional; and (4) trial counsel was ineffective for failing to object to the amendment to the indictment and for failing to request a jury instruction on " knowingly." For the following reasons, we reverse and remand this cause for a new trial.
[¶3] Corporal Christopher Connors of the Blue Island police department testified that on December 28, 2006, at about 7:50 p.m., he was on patrol in an unmarked squad car near 127th Street and Western Avenue. As he was traveling southbound on Western Avenue, he saw an older model gold Cadillac in front of him with no rear license plate light. Corporal Connors was unable to read the license plate number. He observed the Cadillac move from the left lane to the right lane without signaling.
[¶4] After the driver switched lanes a second time without signaling, Corporal Connors effectuated a traffic stop at 127th and Lincoln. Corporal Connors identified defendant as the passenger and James Dattolo as the driver. Dattolo provided a driver's license but did not have proof of insurance. The men then offered unsolicited statements about their business in Blue Island. Corporal Connors asked the men to step out of the car.
[¶5] Corporal Connors learned that defendant owned the vehicle. Corporal Connors requested consent to search the vehicle. After opening the trunk, Corporal Connors discovered a bag with 78 rounds of 7.62-caliber ammunition and an SKS assault rifle wrapped in a towel. Corporal Connors noticed that the serial number was scratched off and there was a bolt underneath the trigger area to modify the rifle's operation. Corporal Connors arrested defendant and Dattolo and transported them to the Blue Island police station.
[¶6] Detective Jeff Werniak testified that he mirandized defendant and interviewed him on December 29, 2006. Defendant waived his Miranda rights and told Detective Werniak that he was in Blue Island with Dattolo to have his car fixed at Dattolo's cousin's garage. A friend of Dattolo's cousin was at the garage and told defendant and Dattolo that he had a rifle he was
selling for $400. Defendant and Dattolo looked at the rifle and agreed to purchase it together for $400. They put the rifle in the trunk of the car and were stopped by police on the way home. Detective Werniak stated that defendant informed him that he consented to the search of his car and that the rifle was found pursuant to the search. ...