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People v. Cox

Court of Appeals of Illinois, First District, Fourth Division

September 21, 2017

JESSE COX, Defendant-Appellant.

         Appeal 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 and opinion.



         ¶ 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 on appeal.

         ¶ 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.[1]

         ¶ 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[2] 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.

         ¶ 8 BACKGROUND

         ¶ 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 other counts.

         ¶ 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"[3] 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) (West 2014).

         ¶ 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.[4]Defendant was facing two people who were sitting on the steps of the building.

         ¶ 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 brick."

         ¶ 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[5] 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 suspected cannabis.

         ¶ 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 ***[6] 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 jury.
THE COURT: Is there any objection?
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, ...

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