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People v. Cunningham

Court of Appeals of Illinois, First District, Sixth Division

June 8, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
GIOVANNI CUNNINGHAM, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County.14 CR 8635 Honorable Thomas M. Davy, Judge Presiding.

          JUSTICE CONNORS delivered the judgment of the court, with opinion. Justices Cunningham and Delort concurred in the judgment and opinion.

          OPINION

          CONNORS JUSTICE

         ¶ 1 Defendant, Giovanni Cunningham, was charged with, inter alia, unlawful use of a weapon by a felon (UUWF) and aggravated use of a firearm after he was observed loading a shotgun by Chicago police officers. After a bench trial, defendant was convicted of the aforementioned offenses and sentenced to eight years' imprisonment. Defendant appeals, arguing that his due process rights were violated where police failed to follow the proper inventory procedures for material, exculpatory evidence and ultimately destroyed said evidence even after receiving a discovery request from defendant. For the reasons that follow, we affirm the trial court's decision.

         ¶ 2 BACKGROUND

         ¶ 3 On April 16, 2014, defendant was arrested and charged with one count of armed habitual criminal, two counts of UUWF, six counts of aggravated unlawful use of a weapon, and two counts of unlawful use of a weapon.

         ¶ 4 On July 10, 2014, defendant filed a motion for discovery, asking that the State disclose and produce certain evidence. In relevant part, defendant's motion requested that the State produce the following:

"A list of all physical property that the State intends to use at the time of trial, including:
a) A list of all physical property in the possession of law enforcement officials;
b) Date and time the property was acquired;
c) Location from which property was acquired;
d) What person or persons first took the property into their possession;
e) Reports made by law enforcement authorities pertaining to this property, including scientific reports, etc.;
f) That such property be made available to the defense for inspection before trial."

         ¶ 5 Defendant waived his right to a jury trial, and his bench trial began on June 11, 2015. The State called three witnesses: Officers Caribou, Mostowski, and Meadows. Officer Caribou testified that on April 16, 2014, at approximately 2:32 p.m., he and his partner, Officer Mostowski, were on duty conducting narcotics surveillance of 6951 South Indiana Avenue, which was an abandoned house. Officer Caribou stated that he and his partner were on the porch of the house next door when they observed three individuals walking to the rear alley of the abandoned house. The officer estimated that he and his partner were approximately 10 to 15 feet away from the rear of the building, and stated that they had a clear view. Officer Caribou further stated that as the three individuals walked to the rear of the building, he observed one of them, who he subsequently identified in court as defendant, take a shotgun from the open doorway at the rear of the building. Officer Caribou described defendant on that date as wearing blue jeans, a black and red Bulls coat, and a mohawk haircut, which he agreed was "unique." He estimated that defendant was about 5 feet, 5 inches tall. Officer Caribou also stated that the other two individuals were wearing a black hoodie and a blue hoodie, but neither had a mohawk haircut.

         ¶ 6 Officer Caribou testified that he then observed defendant begin to load the shotgun with ammunition that he removed from either his pants pocket or jacket pocket. The officers then approached the three individuals and announced their office as Chicago police when they were about 10 feet away, and all three individuals fled. Officer Caribou further stated that the two individuals who were wearing hoodies fled back into the alley, but defendant went through the open doorway into the abandoned house. Officer Caribou followed defendant into the house and observed defendant drop the shotgun on the bottom of the staircase. Defendant proceeded up the stairs, and Officer Caribou testified that he then secured the shotgun, which was loaded with four rounds and one in the chamber. Officer Caribou stated that he then continued to run about halfway through the building when he heard his partner on the radio state that he observed defendant go out the front door and onto the next block. Officer Caribou secured the shotgun in his vehicle and joined up with his partner. At this point, the officers had lost sight of defendant. The officers then put out information over the radio dispatch that they were looking for three individuals.

         ¶ 7 Officer Caribou further testified that at approximately 2:48 p.m. on that same date, he received notice from dispatch that other officers had detained a possible offender. Officer Caribou then traveled to 6926 South Michigan Avenue, which he testified was approximately one block away from where he initially observed defendant with the shotgun. Officer Caribou stated that upon arriving at that location, he saw another officer (Officer Meadows) and his partner detaining defendant, whom Officer Caribou recognized as "the individual with the mohawk haircut, the Chicago Bulls clothes that had the shotgun at the abandoned house." Officer Caribou further testified that defendant was not wearing the Chicago Bulls jacket at that time but was wearing blue jeans, a shirt, and "obviously his mohawk." Officer Caribou stated that defendant was subsequently taken to the third district police station, where he and his partner, Officer Mostkowski, spoke to defendant. Officer Caribou testified that at approximately 3:15 p.m., defendant was advised of his Miranda rights by Officer Mostowski. Officer Caribou also testified that defendant made a statement that "the DOD was in the area shooting, so he went to go get the shotgun to protect him and his friends." Officer Caribou testified that "DOD" was slang for a gang in Chicago. The officer also stated that he inventoried the shotgun he recovered, which he found out to be a 12-caliber gauge shotgun. Officer Caribou testified that defendant gave his home address as 9356 South Martin Luther King Drive, and that his date of birth was July 25, 1990.

         ¶ 8 On cross-examination, Officer Caribou testified that when he first saw defendant, he recognized the following distinguishing features, other than the Bulls jacket: "[b]lue jeans, medium skin, and roughly about five-five in height." Officer Caribou described defendant's hair as "a fresh clean mohawk haircut." Counsel for the State confirmed with Officer Caribou that he inventoried both the shotgun and the Bulls jacket and asked the officer if he knew where the jacket currently was. Regarding the jacket's location within the Evidence and Recovered Property Section of the Chicago Police Department (ERPS), Officer Caribou stated that "[i]f it's still inventoried, it should be down in ERPS. Usually for something like this we would put a hold on it, so if it's still on a hold, it's in ERPS which is at Homan."

         ¶ 9 On redirect examination, Officer Caribou identified the arrest report, which contained a photo of defendant, and testified that the photo depicted defendant's unique-looking mohawk on the date he observed defendant with the shotgun. The following relevant questioning then occurred:

"Q. Officer I don't know if you will know the answer to this, but Chicago Police when personal property of a Defendant such as the clothing that they are wearing is inventoried and that property is not picked up by a Defendant, do you know whether or not that property gets destroyed within a certain amount of time?
A. Like I said earlier, I'm positive I put a hold on this because we gave a description of him wearing it, so if there is a hold on it, it should be at Homan Square where they hold the property in ERPS.
Q. But you don't know what happens to it otherwise, correct?
A. No.
Q. Okay. Thank you. But you did inventory the Bulls jacket in question, is that correct?
A. I am pretty positive I did; yes.
Q. And the inventory for that was under 13151446, is that correct?
A. Correct."

         ¶ 10 The State next called Officer Mostowski to testify. Officer Mostowski testified to substantially the same events as his partner, Officer Caribou, with a few exceptions. Officer Mostowski testified that when he first observed defendant, he saw him wearing "[a] Bulls jacket, blue jeans, and he had a mohawk." He further testified that the other two individuals who were with defendant were wearing a black hoodie and a blue jacket. Officer Mostowski testified that after he and his partner approached the individuals and announced their office, the individuals ran. The officer stated that he lost sight of defendant after defendant ran into the house, with Officer Caribou following after defendant. Officer Mostowski testified that after losing sight of defendant, he ran to the front of the house and then saw defendant again when defendant ran out of the front of the house. Officer Mostowski stated that he saw defendant run westbound towards 69th Street and Michigan Avenue. The officer again lost sight of defendant and met up with his partner, who then had the shotgun in his possession. Officer Mostowski confirmed that the shotgun Officer Caribou recovered was the same one they had observed defendant holding.

         ¶ 11 Officer Mostowski further testified that he and Officer Caribou received information over dispatch that a suspected offender had been detained at 6926 South Michigan Avenue, which was about a block away. When Officer Mostowski arrived at that location, he recognized defendant as the same person that he had seen with a shotgun moments before at 6951 South Indiana Avenue. Officer Mostowski stated that defendant was no longer wearing the Bulls jacket at that time but still had on jeans and the same mohawk haircut. Officer Mostowski testified that he recognized defendant's face and had gotten a clear view of his face because defendant had looked "directly in [his] direction." Officer Mostowski stated that another officer, Officer Meadows, showed him a Bulls jacket that he had recovered, and Officer Mostowski recognized it as the jacket that defendant had been wearing. Back at the third district station, Officer Mostowski and his partner advised defendant of his Miranda rights. Officer Mostowski testified that defendant made a statement to the officers that, "the DOD[, ] Black Disciples, were coming around the block with guns, so he wanted to protect himself and his friends with the shotgun." 3

         ¶ 12 On cross-examination, Officer Mostowski confirmed that it was officers other than him and his partner who recovered the Bulls jacket but that he and his partner inventoried the jacket. Officer Mostkowski also testified that when he spoke to defendant at the third district station, he got defendant's basic information, and stated that he thought he got the information off of defendant's identification (ID) card. When asked if he would have inventoried defendant's ID, Officer Mostkowski said he would not have and instead would have "[l]et him take it. Take it to the lock-up with him."

         ¶ 13 The State next called Officer Meadows, who testified that on April 16, 2014, sometime after 2:30 p.m., he was on patrol with his partner. Around that time, he heard over his dispatch radio the description of an offender that fellow officers were chasing. Officer Meadows stated that the description was of "a male black about five-five with a Chicago Bulls jacket on, medium complected, hairstyle of a mohawk." Officer Meadows testified that while he and his partner were touring the area, at approximately 6830 South Michigan Avenue, he saw a Chicago Bulls jacket underneath a car in the alley, which was "in the area of the last direction that I heard the guys give out of where the offenders [sic] was possibly going." Officer Meadows testified that he did not recover the jacket at that time and instead continued to search the area, believing that the subject offender was nearby in light of the jacket's location.

         ¶ 14 Officer Meadows further stated that he observed someone who matched the description given over dispatch, and whom he identified in court as defendant, on the rear porch of the building at 6926 South Michigan Avenue, which was the building next to where the officer saw the Bulls jacket under the car. Officer Meadows testified that when he saw defendant on that rear porch, he was wearing blue jeans and had a mohawk hairstyle. Officer Meadows then announced his office and told defendant to come to him. Defendant did not immediately comply so the officer took steps toward defendant, grabbed him, and placed defendant in custody. Officer Meadows testified that he then told dispatch that he had detained a possible offender. He also stated that Officers Caribou and Mostkowski came to the location where he had detained defendant and they ...


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