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People v. Thompson

Court of Appeals of Illinois, Third District

September 6, 2017

JEREMY R. THOMPSON, Defendant-Appellant.

         Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois, Circuit No. 15-CF-414 Honorable H. Chris Ryan, Jr., Judge, Presiding.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O'Brien and Wright concurred in the judgment and opinion.


          McDADE, JUSTICE

         ¶ 1 Defendant, Jeremy R. Thompson, challenges his convictions, arguing that the circuit court erred in allowing an officer to testify as to ballistics results without sufficient foundation. We reverse and remand for a new trial.

         ¶ 2 FACTS

         ¶ 3 Defendant was charged with (1) possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2014)); (2) aggravated assault (720 ILCS 5/12-2(c)(5) (West 2014)), in that he "knowingly shined a laser gun sight that was attached to a firearm, so that the laser beam struck the immediate vicinity of Deputy Aaron Hollenbeck"; and (3) aggravated assault (720 ILCS 5/12- 2(c)(6)(i) (West 2014)), in that he pointed a firearm at Hollenbeck, knowing Hollenbeck was a peace officer, placing Hollenbeck in reasonable apprehension of receiving a battery.

         ¶ 4 A jury trial was held at which the evidence established that just after 10 p.m. on September 13, 2015, Hollenbeck and Deputy Matt Moore were dispatched to an apartment building based on a theft complaint. They were advised by dispatch that there was a warrant out for one of the tenants of the apartment building. They arrested the tenant. As they were walking to the squad car, Hollenbeck and Moore noticed a green light bouncing off the building and hitting the squad car. They looked up to see where the light was coming from and saw defendant holding a rifle about 40 to 50 feet away on the other side of a fence. A woman was tugging on defendant's arm, causing the laser from the rifle's scope to move around. Hollenbeck yelled at everyone outside of the apartment building to get down. He then yelled multiple times at the man to drop the gun. Hollenbeck thought he was going to get shot. The man and woman both took off running in the opposite direction. Hollenbeck and Moore ran after defendant and the woman with their guns drawn. They then saw defendant and the woman come back into view without the gun. Hollenbeck told them to freeze and put up their hands. He then patted down defendant. He did not find any weapons on him. Hollenbeck asked defendant where he placed the rifle, and defendant responded, "I stuck it up my ass, why don't you try looking there." Defendant was placed in handcuffs. Hollenbeck searched the area and found the rifle underneath a camper trailer about 40 feet away. The gun turned out to be a .22-caliber pneumatic rifle that was not loaded.

         ¶ 5 The State called Detective Sergeant Adam Diss to testify regarding the muzzle velocity of the pneumatic rifle in order to establish that it was considered a firearm. See 720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West 2014). Proving this essential element of all three of the charged offenses required a showing that the velocity of a projectile from the muzzle of the air rifle was 700 feet per second or greater. Diss testified that he worked in the investigations unit of the La Salle County Sheriff's Office and was a master firearms instructor with the Police Training Institute in Champaign and a part-time gunsmith. In his personal time, Diss collects and repairs firearms and reloads his own cartridges and chronograph cartridges. He discussed his experience using a chronograph to test a firearm's muzzle velocity. He said a chronograph is "an electronic device that you fire over the top of it and it measures the speed of the round, the velocity of the round." He had been using a chronograph "in [his] personal time" for 20 years. The State asked Diss, "In the firearms industry, what is the industry standard method in measuring of muzzle velocity?" Diss stated, "The industry uses chronographs to check the rounds." Diss stated he had owned a chronograph for approximately 10 years and used his friends' chronographs prior to that. He had used a chronograph "[s]everal dozens" of times through his experience with firearms. To gauge the accuracy of the chronograph, Diss said he "fired [his] chronograph with friends' chronographs and found it to be consistent with theirs, and [he] fired factory loaded ammunition over it and found it to be consistent with factory loads." He checked his chronograph in this manner within six months of performing the tests for this case. He never found it to be inaccurate.

         ¶ 6 Defense counsel objected to the foundation for Diss's testimony regarding the tests Diss performed with the chronograph. Outside the presence of the jury, the State and defense counsel questioned Diss regarding his education and training in firearms and the use of the chronograph. Diss stated that he did not have any formal degrees, formal training in forensic science, or any formal training "with regard to ballistic measuring of speed of firearms." When asked when he last calibrated his chronograph, Diss stated, "You don't calibrate personal chronographs." He did not consult any documentation to ascertain whether his chronograph was properly calibrated. He knew there were standards for calibrating chronographs, but he did not know what they were. Diss was unaware of national standards for using a chronograph to test the speed of bullets. He was further unaware of the National Institute of Standards in Technology. Diss again stated that he checked his chronograph against his friends' chronographs, but he said he did not know when or if their chronographs were calibrated.

         ¶ 7 Diss stated that when he used his chronograph in this case, the gun was not fixed, but he remained in the same position. He did not know the wind speed, the humidity, or where the wind was coming from during the time he tested the firearm. He did not know the standard for recording wind resistance as he "didn't think it was an issue." Diss stated he did not base his examination on any generally accepted scientific methodology, but only on his knowledge of his chronograph. When using the chronograph, Diss placed it 10 feet away from the firearm and fired 10 shots. He said he uses the same methodology each time based on his experience. He always fired the slowest possible pellets. Diss said he was unaware of any other methodology that would be relevant to its accuracy. Diss said he did not call the Illinois State Police for guidance as to the methodology to conduct a ballistics test or send the gun for velocity testing at the Illinois Crime Lab because "[t]hey do not offer velocity testing because they say they cannot calibrate a chronograph." He further did not consult the National Rifle Association or any other industry standard organization for the methodology. He based his method solely on his experience, uninformed by technical standards.

         ¶ 8 The court allowed Diss's testimony, stating, "I'll let him give his opinion on it. Whether or not you're going to get past a directed verdict is a whole other question." The jury was brought back in, and Diss testified that he fired 10 rounds of the .22-caliber air rifle over the chronograph, using the "slowest possible pellets." The velocity of the 10 rounds ranged from 714 to 741 feet per second, which was sufficient to designate the pneumatic rifle as a firearm. See 720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West 2014). Diss agreed that if his chronograph were even 5% inaccurate, the velocity of 8 of the 10 rounds would be less than 700 feet per second. If the velocity of the pneumatic rifle was under 700 feet per second, it would not qualify as a firearm under the statute, and therefore, defendant could not be convicted of the three offenses. See 720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West 2014). Diss did not know how accurate his chronograph was. Diss further testified to his experience, methodology, and use of the chronograph as he had previously.

         ¶ 9 After Diss's testimony, the State admitted into evidence a certified copy of defendant's conviction for criminal trespass to property, a Class 4 felony. The jury found defendant guilty of all three counts. Defendant was sentenced to a two-year term of imprisonment in the Department of Corrections.

         ¶ 10 ANALYSIS

         ¶ 11 On appeal, defendant argues that the circuit court erred in allowing Diss to testify as to the chronograph results without sufficient foundation. Because Diss did not establish the accuracy of the ballistic testing, we find that the foundation ...

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