Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 12 C4 40256 (02)
The Honorable Gregory Robert Ginex, Judge, presiding.
JUSTICE MASON delivered the judgment of the court, with
opinion. Justice Pierce concurred in the judgment and
opinion. Presiding Justice Hyman dissented in part, with
1 On March 4, 2012, around 7:30 p.m., police officers in
Maywood responded to a radio call of "shots fired."
On their way to the location specified in the call, the
officers saw a vehicle traveling at high speed run through a
red light and head past them in the opposite direction. The
officers pursued the car with lights and siren activated, but
the car did not stop until blocked by another responding
police vehicle. After all four occupants exited the car, one
of the officers discovered a handgun on the floor in the
front passenger seat where defendant Kristopher Irwin had
been sitting. Irwin was tried and convicted of aggravated
unlawful use of a weapon (AUUW) based on his failure to
possess a valid Firearm Owner's Identification (FOID)
card. 720 ILCS 5/24-1.6(a)(1)(3)(C) (West 2010). Irwin was
sentenced to three years' imprisonment.
2 Irwin raises several issues on appeal relating to the
admission of evidence during his trial. Finding no error
warranting a new trial, we affirm.
4 Maywood police Officer Joseph Escamilla was on patrol in a
marked police car on the evening of March 4, 2012. Around
7:30 p.m., he received a "shots fired" call over
his police radio. Escamilla's partner, Officer Danielle
Deering, accompanied him, and they drove southbound on 17th
Avenue toward the Eisenhower expressway. As they approached
the bridge across the expressway, they saw a four-door Dodge
sedan, travelling at a high rate of speed, make a left turn
as it went through a red light and head northbound past them
on 17th Avenue. Escamilla activated his vehicle's lights
and siren, made a U-turn, and followed. The driver did not
stop or slow down, but as he tried to make a right turn onto
Van Buren Street, the driver was cut off by Officer Aaron
Peppers' police car. Peppers was responding to
Escamilla's radio call regarding the fleeing vehicle.
Peppers immediately exited his vehicle and shouted commands
to the occupants of the Dodge to put their hands up and keep
5 Escamilla parked behind the Dodge. He approached on the
driver's side and instructed Deering to approach the
passenger side. Escamilla acted as the business officer,
i.e., the officer who questions the driver during a
traffic stop, and Deering acted as the guard officer, whose
job it is to ensure the safety of the officers and occupants
of the vehicle. Peppers observed from in front of the Dodge.
6 Escamilla illuminated the inside of the Dodge with his
car's spotlight and his own flashlight. He could see
there were four occupants but could not determine their race
or gender. As he approached the driver's door, Escamilla
saw through the rear window that the person in the front
passenger seat (later identified as Irwin) made a
"sudden movement." Escamilla was about five feet
away, and described Irwin's movement as "his body
just drop[ped] very quickly" a few inches, as he bent
down at the waist and then came back up. The movement only
took a second or two. Neither Deering nor Peppers noticed
Irwin's movement, nor did they see any of the other
occupants move after the Dodge was stopped.
7 The car had two bucket seats divided by a console in the
front and a bench seat in the rear. Escamilla asked the
driver for his license, but the driver did not have one, so
Escamilla ordered him out of the car and had him stand in
front of Peppers' vehicle. Escamilla then directed Irwin
out of the car and had him stand with his hands on the hood
of the Dodge. Escamilla directed the individual sitting in
the rear passenger side seat to get out next and also had him
place his hands on the hood of the car. About ten seconds
passed between the time Irwin got out of the car and the
person sitting in the rear passenger side seat exited. When
the fourth occupant sitting in the rear driver's side
seat (Irwin's co-defendant Derrick Craddock) got out of
the car, he pushed Escamilla and tried to flee.
8 By this time, Officer George Adamidis had arrived on the
scene. Escamilla grabbed Craddock by the waist and felt a
blunt object in his waistband. With Deering's assistance,
Craddock was handcuffed, and Adamidis recovered a 9mm Beretta
handgun from his waistband.
9 Once all the occupants were out of the Dodge, Deering did
an inventory search and removed from the floor of the front
passenger seat area a black 9mm BPI handgun. The gun was over
an inch thick. Neither Escamilla nor Deering had seen the gun
in the car as they were standing on opposite sides of the car
before directing the occupants out, and neither had seen
Irwin with a gun. The gun was in plain view and would have
been inches from Irwin's feet while he was in the car.
About three minutes passed between the time Irwin exited the
car and Deering found the gun.
10 Deering was not watching the rear passengers during the
entire encounter, but it would have been difficult for a
person sitting in the rear passenger seat to reach between
the front seats to deposit a gun on the floor without being
noticed. There was space under the front seats but Deering
did not remember how that area appeared. Deering could not
see the rear passenger's feet until the door opened.
11 Adamidis took the gun from Deering and cleared it of
ammunition. It was fully loaded with one bullet in the
chamber. The gun was never tested for fingerprints and a
trace of its serial number did not reveal Irwin as the owner.
Irwin was arrested and later charged with AUUW.
12 Craddock ultimately pled guilty. Before trial, Irwin's
counsel filed several motions in limine to
exclude testimony. The trial court ruled that (i) the police
witnesses could testify they knew Irwin, but not about any
other arrests or encounters; (ii) the officers could testify
that they pulled over the Dodge while responding to a
"shots fired" call over the police radio, but not
elaborate further; and (iii) the State could not comment on
Irwin's silence after his arrest. Irwin's counsel
made a standing objection to testimony concerning the
"shots fired" radio call. The State asked for a few
minutes so that it could advise its witnesses of the
court's rulings and the parameters of their testimony.
13 At trial, the officers recounted the events described
above. The State referenced the "shots fired" call
in its opening statement, and Escamilla, Deering and Peppers
all testified that they responded to a "shots
fired" call, but did not provide any further details.
Irwin's counsel objected to the prosecutor's and
witnesses' references to "shots fired." The
State made no mention of a "shots fired" call in
closing or rebuttal argument, instead referring to it once as
an "emergency call."
14 State's Exhibit 2 was a photograph of Irwin taken on
the night he was arrested. The exhibit consists of a black
and white photocopy of two photographs of Irwin, laid out
next to each other. One photograph is a frontal shot of
Irwin's head and shoulders; the photograph next to it is
a profile shot of Irwin's head and shoulders. In the
photos, Irwin had longer curly hair and was wearing a dark
t-shirt. Based on the record, we can conclude that
Irwin's hair was shorter at trial and he was wearing a
shirt and tie. No number or other identifying information is
on the photos.
15 The State first used Exhibit 2 with Escamilla. Irwin's
counsel objected. Out of the presence of the jury, counsel
argued that Irwin was not contesting that he was the man who
had been sitting in the front passenger seat of the Dodge and
that since identification was not at issue, admission of the
"mug shot" would be irrelevant and prejudicial. The
State argued that the exhibit was relevant to the
police's recognition of Irwin, and since Irwin looked
different at trial, the "jury is entitled to see who the
officers removed from the vehicle." Irwin's counsel
responded that the State's reason for submitting this
photo was "they think he looks more like a thug in this
picture than he does now." The trial court ruled that
Exhibit 2 was not a mug shot and allowed the State to use it
over Irwin's objection.
16 At one point in Adamidis's testimony, the prosecutor
asked how he recognized Irwin, to which Adamidis replied,
"multiple street encounters." As this response
violated the court's order in limine, the court
sustained Irwin's objection, struck the testimony, and
instructed the jury to disregard it. Irwin's counsel
later moved for a mistrial based on this testimony. The trial
court denied the motion.
17 The prosecutor then asked Adamidis if he recognized Irwin
from the traffic stop, and Adamidis replied that he did. The
prosecutor further queried "but the defendant didn't
look like he does now, does he?" Irwin's objection
was overruled. Adamidis identified Exhibit 2 as a photograph
of Irwin as he looked at the time of the traffic stop.
18 Although the State did not originally seek to publish
Exhibit 2 to the jury, it later did so and, again over
defense counsel's objection, the exhibit was admitted
into evidence and sent back to the jury room.
19 During Deering's cross-examination, she was asked
about the police report of the incident and testified that
she did not prepare it, but read it in preparation for her
testimony. She also prepared to testify by meeting with the
prosecutors, while Escamilla and other police officers were
present. On redirect, the prosecutor asked Deering about the
preparation of her testimony, and then asked "didn't
I tell you I only wanted you to tell the truth?"
Irwin's objection to this question was overruled. Deering
agreed that the prosecutor had given her those instructions.
20 Irwin's counsel also asked that the State be prevented
from arguing during closing that the Dodge was "fleeing,
" but the trial court denied the request, finding that
it was a reasonable inference from the evidence. The court
also denied Irwin's request for a jury instruction on the
"shots fired" call, which would have informed the
jury of the limited purpose for which the testimony was