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People v. Lee

Court of Appeals of Illinois, First District, Third Division

February 27, 2019

BILL LEE, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County, No. 14-CR-11997; the Hon. Matthew E. Coghlan, Judge, presiding.

          DePaul University Legal Clinic, of Chicago (Maria A. Harrigan, of counsel, and Elin Shoback, Kathleen McStay, and Elena Morgan, law students), for appellant.

          Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

          Panel JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith concurred in the judgment and opinion. Justice Ellis specially concurred, with opinion.


          HOWSE, JUSTICE

         ¶ 1 Following a jury trial, the circuit court of Cook County convicted defendant, Bill Lee, of defacing identification marks of a firearm, aggravated unlawful use of a weapon (AUUW) based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. (West 2016)), and aggravated unlawful use of a weapon based on not having a currently valid firearm owner's identification card. At defendant's trial, the court instructed the jury that the State was required to prove that defendant knowingly possessed the firearm. Over defendant's objection, the court further instructed the jury that the State was not required to prove defendant had knowledge of the defaced serial number. On appeal, defendant argues that the State did not provide sufficient evidence to prove beyond a reasonable doubt that defendant knowingly possessed a firearm with a defaced serial number and the trial court erred when it failed to instruct the jury that the State was required to prove defendant knew the firearm's serial number was defaced. Alternatively, defendant argues that he was deprived of a fair trial when the court answered a question from the jury and when the State introduced prejudicial testimony into evidence. For the reasons that follow we reverse the judgment of the trial court and remand for a new trial.

         ¶ 2 I. BACKGROUND

         ¶ 3 The State indicted defendant for the offense of defacing identification marks of a firearm and two counts of AUUW. Prior to trial, defendant filed a motion in limine to prevent any reference to defendant being involved in a gang or gang activity, which the State did not object to. Defendant's motion also sought to preclude any reference to the location of defendant's arrest being a high-crime area. The trial court allowed the State to elicit evidence that officers were in the location of defendant's arrest to investigate drug sales, but not to offer a blanket statement that it was a high-crime area. After opening arguments, the State presented its case-in-chief.

         ¶ 4 A. Testimony of Officer Ricky Hughes

         ¶ 5 Officer Ricky Hughes testified that he was conducting surveillance for a controlled drug buy on the morning of June 15, 2014. Officer Hughes was working with a supervisor, five additional surveillance officers, and two officers working enforcement. While conducting surveillance, Officer Hughes saw a black Toyota Camry with tinted windows repeatedly drive down the block, past a McDonald's restaurant, without parking. Officer Hughes wrote down the license plate number of the Camry and saw the same vehicle pass him three times driving in the same manner of slowing to a near stop in the middle of the block, continuing southbound, and turning westbound. Officer Hughes radioed his partners to inform them that the black Camry was driving suspiciously. The fourth time the Camry passed by, Officer Hughes saw that it was followed by a tan Ford 500, and he decided to leave his fixed surveillance and follow the vehicles. After the cars turned westbound, the rear passenger window of the Camry lowered, and a passenger put an arm out of the window and pointed to an area by the curb. The Ford pulled over and parked where the arm pointed. The Camry continued westbound and Officer Hughes followed, passing the parked Ford. Officer Hughes's partners communicated to him on the radio that they were set up watching the tan Ford. Eventually, the Camry returned to where the Ford was parked and pulled up alongside it. After a few minutes, the Camry continued driving, and the Ford followed behind. Officer Hughes followed the cars for about one mile and radioed his team members so that they could maintain mobile surveillance. After a mile or so, Officer Hughes stopped following, and another officer radioed that he was following the Camry and Ford. When the Camry and Ford stopped, the officers set up fixed surveillance of the vehicles. Officer Hughes heard over the radio that some men exited the vehicles and two of the men removed handguns from the trunk, and he began driving toward the parked cars. He saw two individuals running and followed them in his car. After turning into an alley and exiting the vehicle, Officer Hughes saw the individuals jump a fence and run back toward the parked cars. Officer Hughes radioed his team members that the men were running back to the parked cars. Officer Hughes returned to his vehicle to put on his bulletproof vest when he saw defendant and another person running toward him in the alley. Officer Hughes drew his weapon and ordered them to stop, and they complied. Officer Hughes testified that defendant was wearing a white baseball shirt with blue sleeves. On cross-examination, Officer Hughes testified that he first observed defendant when defendant was running toward him in the alley and that he had not seen defendant in either vehicle. Officer Hughes did not recover any weapons from defendant and did not see either the Camry or the Ford make any traffic violations.

         ¶ 6 B. Testimony of Officer Mike Heinzel

         ¶ 7 On the morning of June 15, 2014, Officer Mike Heinzel was working as an enforcement officer on a team conducting a narcotics investigation. Officer Heinzel was in an unmarked squad car, wearing a marked police vest. He heard on the radio that Officer Hughes was following a black Toyota Camry and tan Ford sedan, and he followed a short distance behind for security. Eventually Officer Heinzel heard on the radio that two men put guns in their waistbands, and he drove to where the Camry and Ford were parked. Several men were standing near the parked vehicles. As Officer Heinzel arrived and opened his door, the men immediately ran away. Officer Heinzel saw defendant run away and lost sight of defendant until defendant came back over a gate near where the vehicles were parked. Defendant and another man were 25 feet away from Officer Heinzel when he saw them exit the gangway. Officer Heinzel had a full frontal view of defendant as defendant exited the gangway. Defendant was wearing a white baseball shirt with blue sleeves, though Officer Heinzel could not remember what kind of pants defendant was wearing. Defendant had a gun in his hand when he came out of the gangway and saw the officers before he dropped the gun to his left and ran away from the officers. The man with defendant also came to the gate at the gangway, hopped the gate, and threw a gun over the gate. Officer Heinzel then went to retrieve the guns while his partner, Officer Goins, gave chase.

         ¶ 8 Officer Heinzel saw a small black revolver where he witnessed defendant toss a gun and a silver handgun on the other side of a chain-link fence gate. Officer Santiago arrived on the scene, and she recovered the black revolver while Officer Heinzel recovered the silver handgun. Officer Santiago handed the black revolver to Officer Heinzel, who inspected the weapon and unloaded it. He discovered both guns had been loaded with five live rounds each. Officer Heinzel then put the guns in separate pockets and the ammo from each gun in separate pockets as well. He inventoried them when he arrived at the police station later. When inventorying the weapons, Officer Heinzel saw that the serial number was damaged on both guns.

         ¶ 9 C. Testimony of Officer Joseph Serio

         ¶ 10 Officer Joseph Serio testified that he is an evidence technician working in the Chicago Police Department firearms laboratory. Officer Serio inspected the black revolver recovered by Officer Heinzel. Officer Serio testified that the revolver was a .38 special Smith and Wesson model 37-2 with five live cartridges. The revolver had scratches and marks along the serial number at the butt of the weapon "consistent with an attempt to obliterate the serial number using some type of small punch or hand tool." Officer Serio was able to fully read the serial number on the weapon after he cleaned the revolver and used a piece of fine sand paper to remove the debris caused by the scratches. On cross-examination Officer Serio testified that it is possible for a handgun to receive abrasions and scratches on the serial number through normal wear and tear, but that the markings on this revolver were not consistent with general wear and tear. The markings appeared to be intentional.

         ¶ 11 Officer Serio testified there were two kinds of ammunition recovered with the revolver: three full metal jacket bullets and two hollow point bullets. Officer Serio was asked "What is a hollow point bullet?" He testified a "hollow point is designed to expand on contact with its target. *** It's designed to potentially do more damage to the target. They're also used for law enforcement purposes in aircraft type situations where they do not want to penetrate completely their target." The prosecutor asked Officer Serio to show the two types of bullets to the jury "so they can see the difference." Officer Serio stated: "Hollow points, it's hollowed on the inside when it-it's hollow in the center and when it hits the target, it opens up." The prosecutor asked Officer Serio to "describe for the ladies and gentlemen of the jury what that bullet looks like once it's opened up?" Officer Serio responded to that question as follows: "Similar to a mushroom or a flower depending on the target it hits, they'll be-normally they're some sharp edges. It's designed to do more damage to its target." The prosecutor asked Officer Serio to "compare the circumference of the hollow point bullets once it opens up to something?" He testified: "The .38 Special is consistent probably with a size of a nickel when it opens up but it's not going to be consistently round. It's going to open up. There's going to be fragments because they're sharp edge." The prosecutor asked for a moment, and when questioning resumed, Officer Serio was asked what a full metal jacket bullet does when it hits its target. Officer Serio testified the full metal jacket generally stays intact and does not expand. The defense did not object to any of the questions or answers during the State's direct examination of Officer Serio.

         ¶ 12 On cross-examination, Officer Serio testified that he did not know what caused the abrasions on the serial number or how long those abrasions had been there. The weapon had been produced from approximately 1994 to 2006. He testified that it was possible the marks on the firearm could have been made by normal wear and tear, although it was his opinion that the damage was caused by some type of small tool.

         ¶ 13 D. Testimony of Officer Ducar

         ¶ 14 Officer Ducar testified that, on the morning of June 15, 2014, he was working as a surveillance officer for the narcotics division with a team of officers. Based on information he received from Officer Hughes, Officer Ducar began mobile surveillance of a tan Ford 500. Officer Ducar was in plainclothes in a covert vehicle with nothing to identify him as a Chicago police officer. After following the Ford, he saw it park across from a black Toyota Camry. Two people exited the Ford and three people exited the Camry. As the people exited the Camry, the trunk of the car popped open. Officer Ducar testified that he was parked about 75 feet away when he saw defendant exit the driver's seat of the Camry and walk toward the trunk of the car. He saw defendant reach into the trunk, remove a black firearm, and place the firearm in his waistband. Another man reached into the trunk and pulled out a silver handgun. Officer Ducar could not see inside the trunk of the Camry from his vantage point. When Officer Ducar saw his team members arrive on the scene, defendant fled with another man. Officer Ducar did not see any of the people who got out of the vehicles throw anything to the ground while they were running. Defendant ran in Officer Ducar's direction before rounding the corner and heading down an alley when Officer Ducar lost sight of defendant. Officer Ducar did not see anything in defendant's hands when he saw defendant running. After pursuing a different person who he could not catch, Officer Ducar returned to enter the alley where he had lost sight of defendant and saw that defendant had been detained by other officers.

         ¶ 15 E. Testimony of Officer Robert Goins

         ¶ 16 Officer Robert Goins testified that on the morning of June 15, 2014, he was working as an enforcement officer on a narcotics unit along with Officer Heinkel. Based on information Officer Ducar relayed on the radio, Officers Goins and Heinkel relocated to where the black Toyota Camry was parked with five people standing near it. As the officers approached the Camry and exited their vehicle, four of the five men standing by the Camry fled. Officer Goins observed defendant was one of the individuals who fled. Officer Goins lost sight of defendant after defendant turned a corner. He saw defendant again, less than a minute later, exiting a gangway. At that time, Officer Goins observed "defendant toss a dark colored firearm." Officer Goins was about 20 to 30 feet away at the time. Immediately following defendant was another individual who tossed a silver colored firearm to the ground. Officer Goins gave chase after seeing the two men toss the weapons. The two were chased into an alley where Officer Hughes was waiting and defendant and the other man were detained. Defendant was taken to the police station.

         ¶ 17 At the police station, Officer Goins again saw defendant. He and Officer DiFranco spoke with defendant. Officer Goins advised defendant of his Miranda rights, using a preprinted form from the Fraternal Order of Police. Officer Goins then asked defendant if he had defaced the firearms. Defendant replied that they had bought the gun already defaced. No audio or video recording was made of the conversation. Officer Goins memorialized the statement later in his case report from his own memory. Defendant was not asked to write a statement or sign Officer Goins's report.

         ¶ 18 Officer Goins testified that although he was not working surveillance on June 15, 2014, he had not received any information regarding defendant or that defendant had anything to do with any narcotics transactions. Officer Goins did not see defendant remove a firearm from his waistband; the gun was already in defendant's hand when Officer Goins saw defendant toss it to the ground. Officer Goins had no knowledge that the guns had been defaced when he saw defendant throw the black handgun to the ground. No audio or video recordings were made during the officers' surveillance on June 15, 2014.

         ¶ 19 The State rested its case-in-chief, and defendant made a motion for directed finding, which was denied. The parties then stipulated that defendant had never been issued a firearm concealed carry license and that defendant had never been issued a firearm owner's identification card.

         ¶ 20 F. Jury Instructions

         ¶ 21 The trial court then held a jury instruction conference. The Criminal Code of 2012

(Criminal Code) defines the offense of defacing identification marks of a firearm as follows: "(a) Any person who shall knowingly or intentionally change, alter, remove or obliterate the name of the importer's or manufacturer's serial number of any firearm commits a Class 2 felony.
(b) A person who possesses any firearm upon which any such importer's or manufacturer's serial number has been changed, altered, removed or obliterated commits a Class 3 felony." 720 ILCS 5/24-5 (West 2016).

         Defendant objected to the use of Illinois Pattern Jury Instructions, Criminal, No. 18.24 (3d ed. 1992), modified, arguing that the "knowing possession" must attach not only to the possession of the firearm, but also to the defacement of the firearm's serial number. The State argued it only had to prove defendant knowingly possessed a firearm that was defaced, and Illinois law did not require the State to also prove that defendant knew that the firearm was defaced. The court found that under People v. Falco, 2014 IL App (1st) 111797, ¶ 18, and People v. Stanley, 397 Ill.App.3d 598, 609 (2009), the statute was clear that the State only had to prove that defendant knowingly possessed the firearm and that the firearm's serial number was altered, obliterated, or removed. Defendant did not object to any other jury instruction.

         ¶ 22 G. Defendant's Testimony

         ¶ 23 Defendant testified he had never been arrested before, had never been charged with a crime before, and had a bachelor's degree in health and physical education from Oklahoma Panhandle State University. On the morning of June 15, 2014, defendant was in Chicago, driving a gray Toyota Camry, with defendant's brother in the back seat and another passenger in the front seat, who they were dropping off from staying the night before. Defendant was wearing blue jeans and a white baseball shirt with blue sleeves. As defendant pulled out of a McDonald's, he encountered a tan Ford 500. Defendant pulled around the block and defendant's brother lowered the window and indicated to the people in the Ford to go and meet up. After parking, the five people exited the vehicles and were having a conversation for five minutes before a car came speeding down the block. As the car approached the group, everybody began to run.

         ¶ 24 Defendant testified that he did not handle a firearm while standing outside the cars and then running. He testified that he did not own a firearm, that he did not possess a firearm on June 15, 2014, and that he did not throw a firearm. Defendant testified that he did not possess a valid firearm owner's identification card and that he did not possess an Illinois concealed carry license. Defendant stated that he did not feel he needed either because he had no intention of owning a gun. Defendant testified that he ran away when the car came speeding toward his group because he did not know what was going on and did not want to stand around while everyone else ran off. Defendant testified he did not see the other individuals he was with possess any firearms.

         ¶ 25 When defendant ran into an alley, he saw an officer putting on a bulletproof vest. Defendant then stopped and was detained by the officer. After defendant was taken to the police station, defendant was questioned by police. Defendant testified that he was asked if they were about to conduct a robbery or deal drugs, and defendant told police no. Defendant further testified that he was never read his Miranda warnings and that no officer asked him about guns.

         ¶ 26 In closing arguments, defense counsel argued that defendant credibly testified he did not possess a firearm and that the police officers' testimony was not credible as to seeing defendant with a firearm because they could not have seen a small firearm from 75 feet away. Counsel also argued that Officer Heinzel could not have seen defendant dropping a gun after jumping a fence due to the distance between them. Counsel argued it was improbable that police would ask only one question of defendant and then not ask any follow-up questions.

         ¶ 27 H. Jury Deliberation

         ¶ 28 After closing arguments, the trial court instructed the jury that "the State must prove the following proposition: That the defendant knowingly possessed a firearm upon which the serial number has been changed, altered, removed, or obliterated." The court also instructed the jury as to the elements of the charges for AUUW.

         ¶ 29 At 2:50 p.m., the jury began deliberations. At 5:13 p.m., a note came from the jury, informing the court that jurors "cannot come to a unanimous decision" and inquiring what should be done. The court replied by instructing the jury to continue deliberations. At 5:55 p.m. the jury sent another note that jurors still cannot agree and that no one had changed his or her mind. The court sent a reply for the jury to keep deliberating. At 6:16 p.m., the jury sent another note asking, "Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?" The court stated to the parties that "Under the Falco case and the Stanley case, the State must prove the knowing possession of the firearm of the defendant but need not prove the defendant's knowledge of the character of the firearm." Defendant renewed his objection, arguing that knowledge of the defacement was an element of the statute despite the case law and that any other reading meant that the offense de facto became a strict liability offense. The State argued that the court should provide a direct answer to the question, and defendant argued that the jury has the law under their instructions and that no further instructions were necessary.

         ¶ 30 The trial court found that the note presented a question of law that the court was obligated to answer. The court overruled defendant's objection and sent a note back to the jury, stating "no, the State must prove beyond a reasonable doubt the knowing possession ...

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