Court of Appeals of Illinois, First District, First Division
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
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.
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.
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
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?
Q. And this report-there is an area where you have to
identify suspects, correct?
Q. Those who are victims, ...