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People v. Faulkner

Court of Appeals of Illinois, First District, Sixth Division

February 10, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DORIAN FAULKNER, Defendant-Appellant.

          Rehearing denied March 28, 2017

         Appeal from the Circuit Court of Cook County, No. 04-CR-24639; the Hon. Thomas V. Gainer, Judge, presiding.

          Michael J. Pelletier, Patricia Mysza, and Maria A. Harrigan, of State Appellate Defender's Office, of Chicago, for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

          JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Harris concurred in the judgment and opinion.

          OPINION

          CUNNINGHAM JUSTICE.

         ¶ 1 Following a bench trial, the circuit court of Cook County found defendant Dorian Faulkner guilty of one count of being an armed habitual criminal (AHC) and two counts of unlawful use or possession of a weapon by a felon (UUWF) and sentenced him to six years of imprisonment. On direct appeal, he argues that (1) his AHC conviction should be reversed because it was predicated on a prior conviction for aggravated unlawful use of a weapon (AUUW) that was based on a statute found to be unconstitutional and void by People v. Aguilar, 2013 IL 112116, and (2) his AHC and UUWF convictions should be reversed because the State failed to prove beyond a reasonable doubt that he had constructive possession of the firearm and ammunition recovered by the police. On August 31, 2015, we issued an opinion affirming the UUWF convictions but reversing the AHC conviction. People v. Faulkner, 2015 IL App (1st) 132884. In September 2016, our supreme court issued a supervisory order directing us to reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm the convictions for both AHC as well as UUWF.

         ¶ 2 BACKGROUND

         ¶ 3 On July 14, 2012, Chicago police officers conducted a compliance check on the defendant, who was released on parole[1] for an unrelated crime. At the defendant's residence at 5210 South Morgan Street, the police recovered a .223-caliber assault rifle and ammunition from the attic, after which they arrested the defendant. On July 26, 2012, the defendant was charged with one count of being an AHC (count I) and two counts of UUWF (counts II and III). The AHC charge was predicated upon his two prior convictions for AUUW under case No. 08 CR 0981001 and manufacture/delivery of a controlled substance under case No. 09 CR 0948301.

         ¶ 4 On July 16, 2013, a bench trial commenced, during which the State presented two witnesses. Parole Officer Jack Tweedle testified that at about 8:30 a.m. on July 14, 2012, he and Officer Jim Hollenback, with the assistance of four other officers, conducted a parole compliance check at the defendant's residence. He described the residence as a two-story, single-family home. Officer Tweedle testified that the purpose of the compliance check was to verify that the defendant was complying with the conditions of his parole contract. The officers knocked on the door multiple times, and the defendant took about five minutes to answer it. The defendant was alone at the time he answered the door. After entering the residence, Officer Tweedle found about three grams of cannabis in plain view on a coffee table in the living room. During the compliance check, the defendant remained in the living room with Officer Hollenback. Officer Tweedle described the layout of the residence as having a small hallway leading from the front door to the living room area, a bedroom, a kitchen, and an entry leading to an enclosed back porch from the rear of the kitchen. Stairs led to the attic via an enclosed back porch. Neither the entry leading to the enclosed back porch nor the attic had a door. Officer Tweedle went upstairs and walked through the entire attic, where he found a loaded .223-caliber assault rifle. A box of .223-caliber bullets was also found. Officer Tweedle testified that nothing obscured his view of the rifle. The police officers confiscated the assault rifle and the box of ammunition.

         ¶ 5 Officer Cary Pozulp[2] testified that he assisted Officer Tweedle with the parole compliance check. He stated that the officers entered the first floor of the South Morgan Street residence after climbing a flight of exterior stairs. There was a flight of stairs leading from the first-floor unit to the attic, which could be accessed by a "closed dwelling" through the kitchen. There were no locks or doors barring entry from the first floor into the attic. Officer Pozulp met Officer Tweedle in the attic, where he recovered a .223-caliber assault rifle near the entrance of the attic. Officer Pozulp did not have to move anything to see the assault rifle, which was only partially covered by a wooden board. The assault rifle was loaded with one round in the chamber and had over 40 live rounds in the magazine. Officer Tweedle then alerted Officer Pozulp to a nearby box of .223-caliber ammunition, which contained an additional 43 rounds of ammunition. Officer Pozulp testified that, aside from the defendant and the police officers, no one else was present in the first-floor unit or in the attic at the time of the compliance check. He stated that the officers also recovered about three bags of cannabis from the living room. The defendant was read his Miranda rights and taken into police custody. At the police station, Officer Pozulp and Sergeant Dedore interviewed the defendant. When Officer Pozulp asked the defendant about the assault rifle, he replied that "the hood's crazy, we're at war with these GDs out here, " and that "I'm not worried about that, and my lawyer will handle this." On cross-examination, Officer Pozulp noted that, during police interrogation, the defendant neither stated that the assault rifle belonged to him nor that it was used "for protection." However, Officer Pozulp answered affirmatively when defense counsel asked whether the defendant had told the police to "go ahead and charge me with that gun. My lawyer got this."

         ¶ 6 At the close of the State's case-in-chief, the State, without objection from the defense, entered into evidence certified copies of the defendant's prior felony convictions for AUUW (case No. 08 CR 0981001) and manufacture/delivery of a controlled substance (case No. 09 CR 0948301). These two prior felony convictions were offered as proof of the requisite predicate offenses supporting the defendant's AHC charge. After the State rested, the trial court denied a defense motion for a directed finding.

         ¶ 7 Patricia Faulkner (Patricia) testified as the sole witness for the defense. She testified that the defendant is her great-nephew and that she had lived at the 5210 South Morgan Street residence since about 1980. Patricia stated that her siblings, Loretta Faulkner (Loretta) and Willie Faulkner (Willie), owned the building. Patricia lived in the basement, while the defendant lived in the first-floor unit. The attic was accessible from the enclosed back porch stairs of the first-floor unit, and the back porch could be accessed from the backyard. She stated that before the defendant moved into the residence in April 2012, other family members brought furniture and items into the apartment and also "tried to clear some things out to make the space better for him." Some items in the attic were there before the defendant moved into the residence. Much of the furniture inside the first-floor unit belonged to other family members. Patricia testified that there were three copies of the key to the residence, which were held by her and her siblings, Loretta and Willie. Loretta's key, however, was not "cut properly" and she no longer possessed it. At trial, Patricia also identified numerous bills and mailings that were addressed to different family members at the 5210 South Morgan Street location. She testified that she did not see the defendant bring a gun into the home in April 2012, nor did he ever tell her that he had a gun. She also never observed anyone else bring a gun into the home between April 2012 and July 2012. On cross-examination, Patricia stated that, at the time the defendant lived in the home, there was no door separating the attic stairs from the attic. However, the door separating the enclosed back porch from the backyard had a lock on it. Both she and the defendant had physical access to the attic. Before the defendant moved in, other family members had lived there from time to time, but the defendant was the only person living in the first-floor unit at the time of his arrest in the instant case. Patricia stated that she was not aware that there was a .223-caliber assault rifle and ammunition in the attic. In order to access the attic from the basement unit where Patricia lived, she would have had to walk through the laundry room next to her apartment and walk up the back stairs.

         ¶ 8 Following closing arguments, the trial court found the defendant guilty of all charges-one count of AHC and two counts of UUWF:

"Okay. Yes, this is a case of [ ] constructive possession, and, yes, other people had access to this building, according to the testimony of [Patricia], before the [d]efendant moved in. There is evidence from [Patricia] that people were bringing things into that [first-floor] unit *** to make the place habitable for the [d]efendant when he was paroled in April of 2012.
There is also evidence that the [d]efendant's grandfather, who is [Patricia]'s brother, had a key. [Patricia] had a key, and [Patricia's] sister, apparently, had a key at some point, but that key didn't work anymore-it wasn't cut right-and it didn't work.
There are-there's access to the attic from the floor that the [d]efendant was living on; there's access to *** the attic from [Patricia's] apartment. [Patricia] testified that she had no idea that the gun was up there, so it clearly wasn't her gun, even though she had access to *** the attic.
I would note, for the record, that [Patricia] had a tremendous amount of difficulty walking in and out of the courtroom. She was aided by a cart that is on wheels that also has a seat which she sat in when she testified. She did not take the two or three steps up to the witness stand, and I asked her to do that only because I thought it would be more convenient for her.
In any event, even if she could access the attic herself, in her condition, she clearly said it wasn't her gun, though she had no idea it was up there.
The fact that her brother, the [d]efendant's grandfather, had access doesn't mean he was up there. We need to look at what was up there. This is a very dangerous weapon that was locked and loaded and ready to go.
Now, that alone would not be enough to prove that this [d]efendant, beyond a reasonable doubt, possessed that weapon. But when you combine the fact that this thing was up there, locked and loaded and ready to go, with the statement-and I believe the police officers because if the police officers were making this up, the statement from the police officers would have been, he admitted that that was his weapon, he kept it up there for protection.
But that's not what [Officer] Pozulp said. He said, this-the hood is crazy, we're at war with these GDs. Which is tantamount to saying, I ...

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