Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 14 CR 11414 The
Honorable Neera Lall Walsh, Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Justices McBride and Ellis concurred in the judgment
1 After a jury trial, defendant Jesse Cox was convicted of
aggravated unlawful use of a weapon, based on his failure to
possess a Firearm Owner's Identification (FOID) card.
After considering factors in mitigation and aggravation, the
trial court sentenced him to 24 months of probation.
2 On this appeal, defendant claims that the trial court
violated his sixth amendment right to confront the witnesses
against him when it admitted a "Certification" from
a state employee, which stated that a search of the
State's records revealed that defendant did not possess a
FOID card. Defendant claims that the trial court violated his
sixth amendment right, even though the trial court
specifically asked defendant's counsel-twice-before
admitting the document whether defendant had any objection to
it and his counsel replied that defendant had no objection to
its admission. Also, during the State's initial closing
remarks, the prosecutor remarked that defendant's lack of
a FOID card was "uncontested, " without any
objection by the defense or any response to that remark in
the defense's closing.
3 On appeal, the State does not dispute either that the
certification was testimonial or that the State needed the
document to prove an element of its case, namely,
defendant's lack of a FOID card. However, the State
argues that defendant forfeited his right to raise this issue
4 In response, defendant asks this court to review his claim
under both the first and second prongs of the plain error
doctrine and also to consider whether the failure of his
counsel to object constituted ineffectiveness of counsel.
5 Both parties acknowledge that, in a prior case where this
court considered a sixth amendment challenge to the admission
of a similar document, this court found that the admission
constituted error and required reversal. People v.
Diggins, 2016 IL App (1st) 142088, ¶ 1. However, in
Diggins, the defendant made a timely objection to
the document's admission. Diggins, 2016 IL App
(1st) 142088, ¶ 7.
6 Thus, in this case, we are asked to consider whether
reversal is required, even when the defendant affirmatively
stated that he had no objection to admission of the document.
As we explain in more detail below, the sixth amendment
guarantees a defendant the opportunity to cross-examine the
witnesses against him. Infra ¶¶ 60-63.
However, it does not require a defendant to
cross-examine those witnesses. In the case at bar, where
defendant affirmatively waived his right to cross-examine, we
cannot find any sixth amendment error by the trial court in
admitting the statement. Similarly, without additional
reasons to make us question the competence of counsel in
waiving this opportunity, we will not second-guess
counsel's trial strategy.
7 Therefore, for the following reasons, we affirm
defendant's conviction and sentence. On appeal, defendant
also asks us to correct the fines and fees order entered
against him. The State agrees that the ordered fines and fees
are incorrect but argues that defendant forfeited this issue
when his counsel failed to object to the entry of these fines
and fees at sentencing. For the reasons explained below, we
order the fines and fees order corrected.
9 I. Pretrial Proceedings
10 On June 27, 2014, defendant was charged in an information
with six counts of aggravated unlawful use of a weapon.
Before trial, the State informed the trial court that it was
proceeding on only count II, and it moved to nol-pros all the
11 Count II charged defendant with aggravated unlawful use of
a weapon, "in that he knowingly carried" a firearm
while not on his own land, abode, or fixed place of business
without having been issued a currently valid FOID card, in
violation of sections 24-1.6(a)(1) and 24-1.6(a)(3) of the
Criminal Code of 2012 (Code). 720 ILCS 5/24-1.6(a)(1), (3)
(West 2014). Section 24-1.6(a)(1) makes it an offense for a
person to knowingly carry a firearm "on or about his or
her person" if one of a list of certain factors is
also present. 720 ILCS 5/24-1.6(a)(1) (West 2014). The list
of factors is contained in section 24-1.6(a)(3), and
defendant was charged under subsection (c), which states that
"the person possessing the firearm has not been issued a
currently valid [FOID card]." 720 ILCS 5/24-1.6(a)(3)(C)
12 On September 10, 2014, defendant moved the trial court to
find section 24-1.6 unconstitutional. Defendant argued, among
other things, that requiring a person to obtain a FOID card
was unconstitutional and that "a failure by the
defendant to acquire a FOID card is at most a Class A
misdemeanor." The trial court denied the motion.
Defendant does not raise these claims again on appeal. The
issue on this appeal is whether defendant forfeited his sixth
amendment challenge to the admission of the certification
that defendant was never issued a FOID card.
13 II. Evidence at Trial
14 On appeal, defendant does not dispute his possession of
the firearm, which was the primary issue at trial. At trial,
Officer Eric Jehl testified that, on June 17, 2014, at 1
a.m., he and his partner Officer Daniel Honda were on a
routine patrol in an unmarked Crown Victoria when they
received a call directing them to 19th Street and Albany
Avenue in Chicago. The officers were wearing badges and
bullet-resistant black vests with their name and unit number.
As they were driving north on Albany Avenue, Officer Jehl
observed defendant standing on the sidewalk in front of a
residential building on Cullerton Street.Defendant was
facing two people who were sitting on the steps of the
15 Officer Jehl testified that, when Officer Honda, who was
driving, turned onto Cullerton Street, defendant turned and
looked in their direction. As the Crown Victoria came closer,
defendant "grabbed the right side of his shorts and ran
along the east gangway of the building [that] he was standing
in front of." When defendant ran, Officer Jehl exited
his vehicle and stated " 'Chicago police. Stop and
show me your hands.' " Defendant continued to run,
and Officer Jehl chased him. When Officer Jehl reached the
gangway, he observed that defendant had reached the end of
the gangway, which led into an alley. On the left side of the
gangway was the residential building; and on the right side
was a wooden fence separating one property from another.
16 Officer Jehl testified that defendant paused "for a
second, " which gave Officer Jehl an opportunity to
close the distance between them, so that he was only 50 feet
from defendant. When defendant paused, he looked over his
right shoulder toward Officer Jehl, and then pulled out a
dark-blue steel revolver from his right pocket. As defendant
pulled out the revolver, defendant's phone fell out of
his pocket to the ground. Defendant threw the revolver over
the wooden fence, and Officer Jehl heard the revolver hit the
detached garage next door. It was "the sound of metal on
17 Officer Jehl testified that, after tossing the revolver,
defendant crossed the alley and ran into a vacant lot. When
defendant reached the middle of the lot, Officer Jehl
observed five marked squad vehicles approaching the intersection
of 19th Street and Albany Avenue, and he motioned to them, to
signal that he was chasing defendant. When Sergeant George
Artiga exited one of the squad vehicles, defendant stopped
running and raised his hands, and Sergeant Artiga placed
defendant in custody. Officer Jehl patted down defendant but
recovered no weapons. Officer Jehl turned around and observed
his partner Officer Honda in the alley, and Officer Jehl told
Officer Honda to go back to the gangway. The two officers
walked to the spot where defendant's cell phone was still
lying on the sidewalk, and where Officer Jehl had observed
defendant toss the gun.
18 Officer Jehl testified that he observed Officer Honda
recover the gun from underneath the fence, and that it was
the same gun that he had observed defendant toss over the
fence. The cell phone was "almost next to where the gun
was recovered." Less than two minutes elapsed between
when Officer Jehl observed defendant enter the gangway and
when Officer Honda recovered the gun. The gun was a Smith and
Wesson .38 revolver, blue steel in color with a brown wood
handle. Officer Jehl observed Officer Honda unload five live
.38- caliber rounds.
19 Officer Honda testified next and corroborated the
testimony of his partner, Officer Jehl. However, Officer
Honda did not witness defendant toss the gun over the fence.
Officer Honda also testified that he requested that the gun
be sent for fingerprinting.
20 Sergeant George Artiga testified that, after defendant was
detained, Sergeant Artiga directed another officer to search
defendant, and the search revealed two bags containing
21 III. The Certification
22 The State then moved to admit People's exhibit No. 4.
Since People's exhibit No. 4 is the evidence primarily at
issue on this appeal, we describe it in detail. At the top
and center of the document is a header which states:
"Illinois State Police[, ] Division of
Administration." To the left and slightly below
that header, the document states: "Pat Quinn,
Governor." To the right, it states: "Hiram
Grau, Director." Below the header is a title
which states "CERTIFICATION." Under this title is
the following paragraph which we quote in full:
"Based on the following name and date of birth
information provided by the Cook County State's
Attorney's office, I, Administrative Assistant Debbie
Claypool, Firearms Services Bureau (FSB), Illinois State
Police, do hereby certify, after a careful search of the FSB
files, the information below to be true and accurate for
Jesse Cox whose date of birth is *** has never been issued a FOID
or CCL Card as of July 16, 2014."
23 After this paragraph, there is a signature. The lines
under the signature state: "Administrative Assistant
Debbie Claypool[, ] Firearms Service Bureau[, ] Illinois
State Police." The document is notarized, and the notary
public states that the document was "[s]igned and sworn
(or affirmed) to before" her on July 16, 2014.
24 Before this document was admitted into evidence and
published to the jury, the following exchange occurred among
the trial court and counsel:
"ASSISTANT STATE'S ATTORNEY (ASA): Judge, we have no
further live testimony.
We would, however, seek to admit People's Exhibit No. 4
which is a certified letter from the Illinois State Police,
and if I may go ahead and read this for the record and for
THE COURT: Is there any objection?
ASSISTANT PUBLIC DEFENDER (APD): There is not, Judge.
THE COURT: Go ahead."
25 The ASA then read the certification to the jury and asked
the judge to admit it into evidence:
"ASA: And Judge, at this time, we ask to have
People's Exhibits 1 through 4 admitted into evidence. I
believe 3 already has been.
THE COURT: Right. Any objection?
APD: No, Judge.
THE COURT: And they will be admitted."
26 Thus, the trial court asked defense counsel twice if she
had any objection to admitting the certification prior to its
admission, and twice counsel stated that she did not. In
addition, later on, when the State asked if all its exhibits,
including the certification, could go back to the jury, the
trial court again asked defense counsel, "[a]ny
objection?" and she again replied
"[n]o"-thereby making a total of three times that
the trial court asked counsel if she had any objection to the
certification, and three times that she replied no.
27 IV. Defense Case
28 Defendant testified that he was 23 years old and had moved
to Chicago from Arizona to take care of his sick uncle. On
June 17, 2014, in the early morning hours, he was at his
stepsister's house on Cullerton Street. His stepsister
and two of her friends were on the front porch, and he was
standing at the bottom of the stairs talking to them.
Defendant heard a vehicle revving its engine, and he turned
and observed a Crown Victoria, which he assumed was a police
vehicle, "flying down the street" on Albany Avenue.
When he observed the police vehicle, he thought: "I had
weed in my pocket, ...