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People v. Davis

Court of Appeals of Illinois, First District, First Division

November 20, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ALBERT DAVIS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, Criminal Division No. 11 CR 21450 Honorable Maura Slattery-Boyle, Judge Presiding

          JUSTICE SIMON delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

          OPINION

          SIMON, JUSTICE.

         ¶ 1 Following a bench trial, defendant Albert Davis was convicted of residential burglary and unlawful use of a weapon by a felon, and sentenced to two concurrent terms of seven years in prison. On appeal, defendant argues that (1) the State failed to prove beyond a reasonable doubt his guilt for residential burglary and unlawful use of a weapon by a felon, (2) he was denied his right to the effective assistance of counsel, and (3) he was denied his right to a fair trial when the court improperly admitted hearsay testimony from a police officer in violation of defendant's right of confrontation. Based on the record before us, we vacate defendant's conviction and sentence for residential burglary and affirm his conviction and sentence for unlawful use of a weapon by a felon.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant was charged by indictment with home invasion, residential burglary, unlawful use of a weapon by a felon, aggravated use of a weapon, and obstruction of justice based on the events that occurred on November 23, 2011, in an apartment located at 3251 West Maypole Avenue in Chicago. The indictment alleged that defendant committed residential burglary "in that he, knowingly and without authority, entered the dwelling place of Angela Powell *** with the intent to commit therein a felony, to wit: obstruction of justice." The State charged defendant with a separate count of obstruction of justice, alleging that defendant "with intent to prevent the apprehension or obstruct the prosecution of Donta Hudson, [1] knowingly concealed physical evidence, to wit: [defendant] hid a handgun which had been possessed by Donta Hudson in the freezer of an apartment located at 3251 West Maypole Avenue."

         ¶ 4 The following evidence was presented at trial. Officer Lloyd Maxwell testified that, on November 23, 2011, was on patrol by himself, driving a marked dash-camera-equipped squad car southbound on Kedzie Avenue, near the intersection of Chicago and Kedzie Avenue. While driving, he received a radio call, directing all units to respond to a man with a gun in the area of Kedzie Avenue and Walnut Street. The man was described as wearing a black coat and black jeans. Officer Maxwell immediately responded and headed southbound with his vehicle's siren activated. As officer Maxwell approached Walnut Street, he saw a man matching that description walking down the street. When the officer pulled up to the man, later identified as co-defendant Donta Hudson, Hudson started running southbound on Kedzie Avenue.

         ¶ 5 Officer Maxwell followed Hudson in his vehicle. Hudson ran across a vacant lot, while Maxwell turned westbound into an alley off Kedzie Avenue. Maxwell turned his dashboard camera on and began recording the chase. Maxwell continued to follow Hudson for about 30 feet. As officer Maxwell chased Hudson down the alley, Hudson's hand disappeared very briefly, then it came back up, and Maxwell saw that Hudson had a firearm in his hand. Officer Maxwell was about 10 to 15 feet away from Hudson when he jerked his hand twice, but the gun did not fire. Hudson continued to run westbound and then angled south through another vacant lot toward an apartment building with a large grassy courtyard. Officer Maxwell pulled up near an opening in a fence and chased Hudson on foot. Officer Maxwell ran to the side of the building because he feared getting shot, and then proceeded toward the courtyard. At that point, Maxwell lost sight of Hudson for about three or four seconds. He then regained sight of Hudson, who was standing alone behind a stairwell. As officer Maxwell looked in Hudson's direction, he saw the door to an apartment, about four or five feet away from Hudson, slam shut. Officer Maxwell arrested Hudson, but did not find a gun on his person.

         ¶ 6 Maxwell testified that several officers arrived at the scene. Officers Lopez, Zablocki, and Klein went to the apartment, located and recovered a semiautomatic handgun, and arrested defendant. Maxwell stated that he recognized the handgun as the same one Hudson pointed at him. He indicated that he never saw Hudson hand anything to defendant or interact with defendant in any way, and the first time he saw defendant was after he was arrested. The dashboard camera video was played in court, and Maxwell testified to the contents of the video.

         ¶ 7 Angela Powell testified that, on November 23, 2011, she lived at 3251 West Maypole Avenue, apartment B1, in Chicago with her three children. She appeared in court because she was subpoenaed to testify, and she tried to avoid testifying against defendant. On that day, at about 1:30 p.m., she was preparing for Thanksgiving. Her father, Larry Robertson; her nephew; and her boyfriend, Perry Reed, were in the apartment. While she was cooking, her boyfriend (nicknamed "Squirrel") was playing a videogame, while Robertson and her nephew were sitting on the couch. Robertson told her, "Bud just ran into your house. Something is going on." At the time, she did not know who Bud was, but she identified defendant in court as the person to whom Robertson was referring to. Powell indicated that she did not know defendant before that incident, although she had seen him around the neighborhood.

         ¶ 8 Powell came out of the kitchen and into the living room and saw defendant standing there. Powell asked defendant what he was doing in her residence. Defendant asked Powell to "put something up for [him], " which she understood to hide something for him. Powell told him that she would not put anything up for him because she did not want to lose her apartment. Powell lived in Section 8 housing. If she were caught with a gun without a Firearm Owner's Identification Card, she risked losing her apartment. She testified that she thought he was asking her to hide drugs or something illegal.

         ¶ 9 Powell testified that she told defendant to leave, but he refused, and he began walking around her apartment. Powell followed him around so that defendant could not put anything inside the bedrooms. Defendant took a videogame controller off the refrigerator, but did not have an opportunity to play because the police showed up. The police came to Powell's door, and she told them they could enter. While the police were outside her door, Powell did not know where defendant went. An officer told her that "somebody just went into your house that shot somebody." Powell pointed out defendant as the person who entered her apartment. Powell signed a form consenting to the search. The police placed defendant in handcuffs and started searching the apartment. During the search, the police found a gun in the freezer. Powel testified that she had not seen the gun before the police found it in the freezer, nor did she see defendant placing anything into her freezer.

         ¶ 10 On cross examination, Powell stated that she told officer Zablocki that defendant was not her friend, that she only saw him around the block, and that she was scared when she found out he entered the apartment. She admitted that she never mentioned to the officers that defendant asked her to put something up for him, nor did she tell the officers that she asked defendant to leave.

         ¶ 11 Officer Lopez testified that he was on routine patrol with officers Dolan and Zablocki near Chicago and Kedzie Avenue when he received a radio call of a person with a gun in the area of Kedzie Avenue and Walnut Street. He went to 3251 West Maypole Avenue, and saw officer Maxwell arresting Hudson in the courtyard. He then went to apartment B1 of the same building and saw the door ajar. Powell, three children, and defendant were in the apartment. Lopez denied seeing any other adults in the apartment. Defendant was sitting on the couch in the living room with three children, and Powell pointed toward defendant. He testified that he and officer Dolan escorted defendant out of Powell's residence. Lopez, along with the other officers, searched the apartment and found the gun in the freezer. He described the gun as a "blue semi-automatic 45 caliber handgun." Lopez showed the gun to officer Maxwell and then inventoried the gun. The gun was loaded with six bullets in the magazine and one in the chamber. Lopez heard officer Zablocki give defendant Miranda warnings. Defendant agreed to speak with the officers and told them that he was childhood friends with Hudson, that he observed Hudson "running into the courtyard, and that he observed him throw a gun. At which time he retrieved the handgun, went into the apartment, B1, and placed that handgun in the freezer." Defendant also told the officers that he was visiting a girlfriend, Tiesha Daniels, who lived in apartment D1, located about two doors south of apartment B1, just before he saw Hudson throw the gun. Over defense counsel's objection, Lopez testified that he went to apartment D1 and spoke with Tiesha. She indicated that she did not know defendant.

         ¶ 12 Chicago Police Officer Joseph Keating, a forensic firearm examiner, examined the gun and was permitted to testify as a firearms expert. Keating identified the gun as a Gabilondo Llama 45-caliber semiautomatic pistol. The gun was introduced at trial as People's exhibit 1.

         ¶ 13 The parties stipulated that defendant had two prior convictions, one in a 2003 case for unlawful use of a weapon and one in 2006 for a possession of a controlled substance, and that he was on parole for the 2006 offense when the crime was committed.

         ¶ 14 Defendant called officer Zablocki to testify in his defense. In relevant part, Zablocki testified that he was assigned to the case involving defendant and Hudson. He and officer Lopez interviewed Powell at her residence. Powell told him that, at the time defendant entered her apartment, she was sitting in the front room with her three children. Zablocki stated that he saw children when he entered Powell's residence. He stated that Powell told him that she had never seen defendant before, and that after entering, defendant ran to the back of the apartment. Zablocki denied that Powell told him that she was in the kitchen cooking when defendant entered the apartment. Powell did not tell Zablocki that she followed defendant into different rooms of the apartment, or that defendant asked her to hide something for him.

         ¶ 15 Defendant also testified at trial. He consented to the Cook County public defender's request to allow a supervised law student, C.B., to assist in his representation pursuant to Illinois Supreme Court Rule 711 (eff. Feb. 10, 2006). At the beginning of defendant's testimony, C.B. elicited defendant's admission for various felony offenses, and that he served multiple prison sentences for those offenses. Prior to his arrest, defendant testified that he was living with his grandmother at 2839 West Wilcox Street in Chicago. Defendant testified that, on November 22, 2011, at around 10:30 p.m., he went to the apartment of his friend, Tiesha Daniels. Defendant spent the night at Tiesha's house, which was located at 3251 West Maypole Avenue, apartment D4. Around 9 a.m. on November 23, 2011, he went to Powell's residence, apartment B1. He stated that Squirrel, Powell's boyfriend, invited him to the apartment. Defendant knew Squirrel because Powell knew defendant's girlfriend, and they knew each other for about a month. Powell, Powell's father, her 12-year old nephew, and Squirrel were all inside the apartment. Defendant testified that he knew the other residents of the apartment and had been inside the apartment prior to that date.

         ¶ 16 That morning, defendant was playing videogames while Powell was cooking. He stated that he was there for about 45 minutes before the officers came into the unit. After they entered the residence, the officers told everyone to get on the floor. He was searched, handcuffed, and placed in a squad car. The officers ran his name and asked him if he had a record. The police informed defendant that he had an outstanding warrant for his arrest and took him to the police station.

         ¶ 17 Defendant testified that he did not know or see Hudson prior to his arrest. He also denied picking up a gun, having any contact with a gun, or ...


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