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People v. Smith

Court of Appeals of Illinois, First District, First Division

February 27, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAMAL SMITH, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 18811 The Honorable Diane Cannon, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.

          OPINION

          HARRIS JUSTICE.

         ¶ 1 Defendant, Jamal Smith, appeals his convictions for unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2008)) and aggravated unlawful use of a weapon by a felon (AUUW) (720 ILCS 5/24-1.6 (West 2008)) and his sentence of five years' imprisonment. On appeal, Smith contends (1) the trial court improperly limited defense counsel's cross-examination of Officer Moore; (2) the supreme court's decision in People v. Aguilar, 2013 IL 112116, rendered the predicate felony used to prove an element of his offense unconstitutional and void; therefore, his convictions for UUWF and AUUW should be vacated; and 3) if his UUWF conviction is affirmed, this court should reduce his conviction from a Class 2 felony to a Class 3 felony. On March 25, 2014, this court issued a judgment vacating both convictions. On September 28, 2016, our supreme court, in the exercise of its supervisory authority, directed this court to vacate the March 25, 2014, judgment and reconsider in light of People v. McFadden, 2016 IL 117424, and People v. Burns, 2015 IL 117387. The parties submitted supplemental briefs on the issue. Upon reconsideration, we vacate Smith's conviction of AUUW but affirm his conviction of UUWF.

         ¶ 2 JURISDICTION

         ¶ 3 The trial court sentenced Smith on July 25, 2012. He filed a notice of appeal on the same date. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013) and 606 (eff. Dec. 11, 2014) governing appeals from a final judgment of conviction in a criminal case entered below.

         ¶ 4 BACKGROUND

         ¶ 5 Smith was charged, as a previously convicted felon, with one count of UUWF for being in possession of a semiautomatic handgun and one count of AUUW by a felon for possession of a revolver. The following evidence was elicited at Smith's jury trial. On October 3, 2009, at around 9:40 p.m., Chicago Police Tactical Officer Ronald Moore, dressed in plain clothes, rode in the front passenger seat of an unmarked police car driven by Officer LeMyles Remias. Sergeant Richard Rochowicz was in the backseat of the car. In the area of 8800 South Halsted Street, Officer Moore observed that the female driver in the vehicle to the right of him was not wearing a seatbelt. They activated the police car's lights and pulled the car over. Officer Remias approached the driver, later identified as Natasha Kennedy. Officer Moore and Sergeant Rochowicz approached the passenger side of the car. As they approached, they observed the front seat passenger, defendant Smith, "leaning over as if he appeared to be placing something under his seat." Officer Moore also observed a male passenger, later identified as Christopher Smith, in the rear seat.

         ¶ 6 The officers learned that Kennedy's license had been revoked and placed her under arrest. The occupants exited the vehicle, and Sergeant Rochowicz searched the vehicle before it was towed. While searching, Sergeant Rochowicz found a gun and announced "143 Adam" to alert the other officers. When he looked in the backseat, Sergeant Rochowicz found a second gun and announced "times two." After being advised of his Miranda rights, Sergeant Rochowicz asked Smith, "[W]hat's up with the gun." Smith acknowledged owning the guns and stated that he was taking the weapons to his "aunt's house because we're going out of town." Officer Moore testified that he observed suitcases in the backseat of the car.

         ¶ 7 On cross-examination, Officer Moore stated that when he checked the ownership of the vehicle, he found that it did not belong to Smith. His towing report did not account for the luggage, and he could not recall what had happened to the luggage. Officer Moore also acknowledged that the "143 Adam" code was not noted in any case or police reports, but it was a term officers often used. He stated that he did not see any weapons as he initially approached the car or at any time before Sergeant Rochowicz recovered the weapons. Officer Moore stated that neither he nor the other officers wrote down Smith's statement that the guns belonged to him. Also, an assistant State's Attorney did not come to interview Smith, and his statement was not videotaped.

         ¶ 8 Defense counsel then attempted to question Officer Moore about a five page incident report he filed:

"Q. And, officer, this is a five-page report, correct?
A. Yes.
Q. And this report-there is an area where you have to identify suspects, correct?
A. Yes.
Q. Those who are victims, ...

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