Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 12-CF-35. Honorable Daniel J. Rozak, Judge, Presiding.
Michael J. Pelletier and Lucas Walker (argued), both of State Appellate Defender's Office, of Ottawa, for appellant.
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Justice Wright dissented, with opinion.
[¶1] Following a bench trial, the Will County circuit court convicted defendant, Alex Moreno, of reckless discharge of a firearm and unlawful possession of a controlled substance.
[¶2] The trial court sentenced defendant to 24 months' conditional discharge and 24 months' probation, respectively.
[¶3] Defendant appeals, arguing that the State failed to prove beyond a reasonable doubt that defendant consciously disregarded a substantial and unjustifiable risk, and endangered the bodily safety of an individual when he shot his .22-caliber handgun into the ground at a New Year's Eve party. In the alternative, defendant argues that the trial court erred in finding him guilty of reckless discharge of a firearm by considering facts not in evidence at the time of trial. Defendant further contends that he should be awarded a credit of $205 against his $500 drug assessment fee based on his 41 days of presentence incarceration.
[¶4] We vacate defendant's conviction for reckless discharge of a firearm and remand the matter to the trial court for the proper calculation of fees.
[¶6] The State charged defendant with one count of reckless discharge of a firearm, a Class 4 felony, and one count of unlawful possession of a controlled substance, a Class 4 felony. Specifically, the indictment accused defendant of recklessly discharging a .22-caliber handgun during a New Year's Eve party on January 1, 2012.
[¶7] Defendant waived a trial by jury and the case proceeded to a bench trial in the Will County circuit court on October 23, 2012.
[¶8] The State called Joliet police officer Marcus Wietting. On the night of the incident, Wietting received a call from dispatch around 1 a.m. regarding a male subject, who had shot a weapon off a back porch at Broadway and Spring Streets.
[¶9] Wietting, along with Lieutenant Reid, responded to the call and, upon arrival, observed people looking out of the back door of a house on 353 North Broadway. The officers moved behind a telephone pole across the street approximately 50 to 75 feet away from the house. From that vantage point, they observed two people walk out of the residence and down into the yard, where they stood alongside the east side of the house. Six or seven more people came out of the residence and stood along the railing of a deck, while a person at the south railing of the deck started firing a gun at the ground. The shooter did not fire in the direction of any people. The residence was located in a residential neighborhood containing other homes and apartments.
[¶10] When the subject finished shooting, Wietting and Reid approached with their guns drawn and ordered everyone to raise their hands and lie down on the deck. Wietting identified the shooter as defendant. All partygoers were handcuffed until the weapon was located. Wietting handed defendant off to Officer Cammack and then assisted with frisking people on the scene for weapons. There were at least 15 adults and 10 children inside the residence.
[¶11] Wietting also searched the yard for bullet casings. He recovered both live and blank .22-caliber casings, 9-millimeter casings, and .380-caliber casings from the sidewalk, the deck, and the area of the
yard below the deck from where defendant had been shooting.
[¶12] After being transported to the police station, defendant signed a waiver of rights. Defendant told Wietting that the .22-caliber casings were his, but he did not know about the .380-caliber casings. He thought the 9-millimeter casings were from the Fourth of July and New Year's Eve of last year.
[¶13] Wietting testified as to his specialized firearms training and that he was a certified range instructor for the Joliet police department. The firing range at the Illinois State Police headquarters utilizes a " huge dirt pile" as a backstop to absorb the bullets fired at the range. When a person shoots a gun into the ground without knowing what is below the surface, there is a risk of ricochet because there could be rocks, concrete, or metal underneath the surface. During this incident, there was no ricochet, nor was anyone injured (aside from defendant, who shot himself in the left hand with a blank round in an attempt to demonstrate to others it was not dangerous). Wietting admitted defendant fired his gun into a grassy dirt area. He did not fire his gun into the air or in the direction of anyone.
[¶14] Joliet police officer Scott Cammack testified that he also responded to the call at 353 North Broadway. Upon arrival, Cammack observed Reid placing defendant in handcuffs. Defendant told Cammack he had blank .22-caliber ammunition in his pocket. Cammack received defendant's permission to retrieve the ammunition, and Cammack removed five live .22-caliber rounds and two blank .22-caliber rounds.
[¶15] Cammack read defendant his Miranda rights, at which point defendant agreed to speak with Cammack. Defendant told Cammack he had fired a gun, but used only blank ammunition. Defendant allowed Cammack into the residence to retrieve the handgun, which was a five-round revolver that had been placed in a kitchen drawer. With defendant's assistance, Cammack opened the revolver and discovered two live .22-caliber casings, two blank .22-caliber casings, and one blank .22-caliber round that had not been fired.
[¶16] Defendant indicated that he had another handgun in his room upstairs. Cammack, accompanied by Sergeant Alvarez, went upstairs with defendant. Defendant's door was locked with a padlock, but he opened it with his key to allow officers inside. Sergeant Alvarez opened up a small safe containing a 9-millimeter Ruger handgun, a magazine for the Ruger, and .22-caliber and 9-millimeter ammunition. The officers also observed a small mirror with a white powdery substance on it in the room. The white powder field tested as cocaine.
[¶17] At this point, defendant informed Cammack that he had fired several live .22-caliber rounds from the deck of the residence but did not feel that he endangered anyone.
[¶18] Like Wietting, Cammack also testified to his experience as a military policeman and his certification as a firearm instructor. Cammack stated that it was dangerous to fire a gun into the ground unless the ground has been prepared for that purpose. Stones, rocks or areas of clay could cause a ricochet in any direction. When a blank round is fired, all that comes out of ...