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People v. Irwin

Court of Appeals of Illinois, First District, Second Division

May 25, 2017

KRISTOPHER IRWIN, Defendant-Appellant.

          Rehearing denied May 25, 2017

         Appeal from the Circuit Court of Cook County, No. 12-C4-40256(02); the Hon. Gregory Robert Ginex, Judge, presiding.

          Michael J. Pelletier, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Eric Leafblad, Miles J. Keleher, and Jesse B. Guth, Assistant State's Attorneys, of counsel), for the People.

          Panel 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 opinion.



         ¶ 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), (a)(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.

         ¶ 3 BACKGROUND

         ¶ 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 them visible.

         ¶ 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 10 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 feet of the rear passengers 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 ...

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