People of The State of Ill. v. DAWSON
| Decision Date | 18 August 2010 |
| Docket Number | No. 1-08-2106.,1-08-2106. |
| Citation | 934 N.E.2d 598,403 Ill.App.3d 499,343 Ill.Dec. 274 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher DAWSON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
403 Ill.App.3d 499
934 N.E.2d 598
343 Ill.Dec. 274
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Christopher DAWSON, Defendant-Appellant.
No. 1-08-2106.
Appellate Court of Illinois,First District, Third Division.
Aug. 18, 2010.
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Jonathan Yeasting, Asst. Appellate Defender, Chicago, IL, for Petitioner-Appellant.
Anita Alvarez, State's Attorney of Cook County (Alan S. Spellberg, Mary Needham, William L. Toffenetti, Asst. State's Attorneys, of counsel), Chicago, IL, for Respondent-Appellee.
Presiding Justice MURPHY delivered the opinion of the court:
Following a bench trial, defendant, Christopher Dawson, was found guilty of three counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(A)(2) (West 2006)) and two counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2006)). Defendant was sentenced to concurrent terms of eight years' imprisonment for the aggravated discharge of a firearm convictions and three years' imprisonment for the aggravated unlawful use of a weapon convictions. Defendant was also assessed a $5 court system fee pursuant to section 5-1101(a) of the Counties Code (55 ILCS 5/5-1101(a) (West 2006)).
On appeal, defendant argues that the aggravated unlawful use of a weapon is unconstitutional following the decisions of the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, --- U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (plurality op.). Defendant also asserts
that his convictions should be reversed because the evidence presented by the State was insufficient. Third, defendant
claims that several of his convictions should be vacated under the one-act, one-crime rule because the charging instruments fail to contain allegations of distinct physical acts.
The State concedes that the conviction under count III for aggravated discharge of a firearm at an occupied vehicle should be vacated as it is based on the same operative facts supporting defendant's conviction in count IV. The State also concedes that there was no evidence as to defendant's ownership rights to the property where the second shooting occurred. Therefore, it concedes that the conviction under count VII, for AUUW must be vacated.
Finally, defendant contends, and the State concedes, that the $5 court system fee should be vacated because his convictions did not violate the Counties Code. Accordingly, that charge is vacated. For the following reasons, the judgment and sentence against defendant are affirmed in part and reversed in part.
Defendant was arrested in the early morning hours of July 24, 2007, in connection with two shootings that occurred earlier that day. Defendant was charged with the attempted murder of Mario Brantley, aggravated discharge of a firearm at a vehicle, aggravated discharge of a firearm at Mario Brantley, AUUW, and aggravated unlawful restraint. Defendant and codefendant Cedric McRay were tried simultaneously in a severed bench trial.
At trial, the State first presented Mario Brantley's testimony. Brantley testified that on July 23, 2007, he was driving his car when a light-colored vehicle driven by defendant with McRay in the passenger seat pulled up next to him. Brantley was friends with both men, but they “had a few words” at this time. At approximately 2:15 a.m. on July 24, 2007, Brantley was a “little intoxicated” and driving to purchase some cigarettes on the way to his baby's mother's house. The same light-colored car from the earlier confrontation approached him and he drove into an alley near South Green Street and West 53rd Street. The car followed him into the alley and he heard someone say “what up?”
Brantley testified that when he looked out the window he heard several gunshots from the light-colored car. Brantley sped off and then drove around for a while to make sure that he was not hit and that his vehicle was all right. Brantley testified that he encountered a marked police car and flagged it down. Brantley told the police officers what happened and that he knew where defendant lived.
Brantley led the police to the scene of the shooting and then to defendant's home. Brantley saw the light-colored vehicle at the side of
defendant's home and when he approached the house he heard someone say “[t]here go Mario.” At that time, someone came out of the front door of the house and four or five shots were fired. Brantley drove off immediately, but heard shots hit his vehicle. He soon returned to see the police approaching the house. Brantley saw a flash when the shooting occurred, but testified that he could not see who was shooting.
Brantley was questioned on his testimony given in court a week after the incident. The testimony was elicited for the purpose of admitting the statements as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963. 725 ILCS 5/115-10.1 (West 2006). Brantley admitted that he had testified under oath
that in the first shooting, defendant and McRay started shooting at him after asking him “what's up?” Brantley also admitted that he previously testified that in the second shooting, he saw defendant and McRay come toward him from the house with handguns and start shooting at him. The State also elicited testimony from Brantley regarding his four prior convictions in 2001, 2002, and 2004 on various narcotics charges and on unlawful use of a weapon by a felon.
Brantley admitted on cross-examination that, in his statement to the police, he stated that the first shooting occurred minutes after the first conversation with defendant and McRay. He also admitted that he told police that he saw defendant shooting at him in the first incident. However, Brantley testified at trial that he could not see the shooter.
Detective Paulette Wright testified that on July 24, 2007, she arrived at the police station at about 8:30 a.m. and spoke with Brantley. Brantley did not appear intoxicated. Wright testified that her reports indicated that Brantley first identified McRay, but not defendant, as the shooter in the first shooting. Wright was also present for Brantley's statement to the assistant State's Attorney. Brantley identified defendant as the driver of the light-colored car during the first shooting. He also indicated that the two incidents occurred minutes apart from each other.
Officer Tom Rosales testified that on July 24, 2007, at approximately 2:26 a.m., he and his partner, Officer Steve Schmid, were on patrol and responded to a radio call of shots fired at West 53rd Street and South Halsted Avenue. At about West 53rd Street and South Sangamon Street, Brantley flagged the officers down from his vehicle and told them that he was the victim of a drive-by shooting. Rosales followed Brantley to 918 West 52nd Street from about two car lengths behind. When they approached, Brantley slowed down and Rosales was approximately one car length behind when he saw two men
open fire as they stood in front of the building. Rosales testified that he heard 8 to 10 shots fired.
Rosales testified that he turned on his spotlight, illuminating two subjects whom he identified as defendant and McRay. The offenders turned toward the police and then turned to go back into the residence. Rosales testified that he saw defendant throw his weapon in the gangway between the residence and the adjacent residence. Rosales and Officer Andrew Thomas went to the gangway and retrieved the handgun that defendant had thrown. Rosales testified that about one minute elapsed between the time the gun was thrown and when Thomas retrieved it. Rosales never lost sight of the gangway where the gun was thrown.
While in the gangway, Rosales saw defendant lean out of a window of the residence and throw a handgun on the roof. Rosales testified that McRay then also leaned out of the window and threw another handgun toward the roof. However, the gun hit the roof and fell to the ground between Rosales and Thomas. Rosales testified that they secured the handguns and then entered the residence and placed defendant, McRay and a third person into custody. The Chicago fire department was summoned and Officer David Tencza climbed a fire ladder to the roof to retrieve the third handgun.
Rosales testified that the weapons were taken to the police station and he detailed the process that was followed to enter them into evidence. Rosales testified that the handgun recovered by Thomas was a 9-millimeter Luger, the second handgun that he recovered from the gangway was a .45-caliber Taurus, and the handgun retrieved
from the roof was a Bersa Thunder 380.
On cross-examination, Rosales testified that he did not observe any behavior indicating that Brantley was intoxicated and did not question him regarding the shooting, but followed him to the scene. Rosales admitted that his incident report detailed that he was following at approximately three or four car lengths behind Brantley but that he testified that he was one or two car lengths behind Brantley during this time. He also testified that it was dark and there were no streetlights where the shooters fired their weapons.
Officer Thomas testified that, on July 24, 2007, he was dispatched to the scene of the shooting at approximately 2:25 a.m. and he heard shots fired while en route to the scene. When he arrived at the scene, Thomas went to the gangway and recovered a High Point 9-millimeter Luger. Thomas testified that he carried the weapon until he returned to the police station to enter the weapon and its magazine into evidence. Thomas admitted that he never saw defendant fire any handgun.
Officer Tencza...
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