People of The State of Ill. v. ADAMS

• Citation: 343 Ill.Dec. 685,404 Ill.App.3d 405,935 N.E.2d 693
• Decision Date: 17 September 2010
• Docket Number: No. 1-08-0455.,1-08-0455.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jacoby ADAMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 405

935 N.E.2d 693

343 Ill.Dec. 685

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jacoby ADAMS, Defendant-Appellant.

No. 1-08-0455.

Appellate Court of Illinois,First District, Fifth Division.

Sept. 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Anita Alvarez, State's Attorney, Chicago (Alan Spellberg, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, Sate Appellate Defender, Patricia Unsinn, Deputy Defender, Ahmed Kosoko, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Defendant-Appellant.

Justice TOOMIN delivered the opinion of the court:

In the case at hand, we confront a constitutional challenge to the offense of armed habitual criminal, bottomed on due process and ex post facto concerns. Following a jury trial, defendant, Jacoby Adams, was found guilty of armed habitual criminal and sentenced to a term of 30 years' imprisonment. Defendant now appeals contending: (1) the armed habitual criminal statute is facially unconstitutional and violates ex post facto principles; (2) the State's amendment of the indictment implicated his speedy trial rights and his counsel was ineffective by not raising the issue; (3) his motion to quash was erroneously denied; (4) a defense expert was improperly prohibited from testifying; and (5) the court's response to a jury question was erroneous. For the reasons that follow, we affirm the judgment of the circuit court.

BACKGROUND

Recognizing that defendant does not challenge the sufficiency of the evidence, our review will be limited to the facts necessary to resolve his claims of error. Defendant was initially charged with the offenses of armed habitual criminal, unlawful use of a weapon by a felon, aggravated unlawful use of a weapon, unlawful possession of a rifle, and aggravated unlawful use of a weapon. The count charging defendant as an armed habitual criminal alleged that his prior predicated conviction was aggravated discharge of a firearm. Although the count identified the correct indictment number for the prior conviction, the offense listed was in error. The prior conviction actually was for armed robbery. Accordingly, the State moved to amend the indictment to correct this allegation, drawing no objection from the defense.

Prior to trial, defendant moved to quash arrest and suppress his identification. According to his argument, the arresting officers lacked probable cause to arrest, which essentially was based on the description of the offender, coupled with defendant's proximity to a rifle found secreted in a nearby bush.

At the hearing on the motion, defendant testified he was in the vicinity of 11th Street in Ford Heights, Illinois, around midnight on July 18, 2006. He was arrested by two uniformed officers. At that time, there were “several individuals” in the area, though he could not name them. Defendant was wearing all black. As he spoke with one of the officers, the other officer found a rifle nearby. Defendant denied ever seeing a rifle at any point that night. According to defendant, the officers “had some type of object they rub [ sic ] between my fingers and hand and stuff.” Additionally, the officers recovered a bullet from his pocket.

Officer Edward Barksdale of the Cook County sheriff's police department testified that he was on patrol in Ford Heights with a partner on July 18, 2006. Around midnight, they heard a call of possible shots fired near 15th and Ellis in Ford Heights, without any description of an offender. They proceeded to the area and spoke with “a lot of people over there.” They then received a second call of an unnamed “male black dressed in all black holding a rifle” near 11th and Lexington. After relocating to that location, Barksdale observed defendant, who fit the description in the radio call, standing on the corner. The officers recognized defendant from previous dealings.

According to the report prepared by the officers, defendant approached them when they first arrived on scene. Barksdale told defendant about the radio call and told defendant he needed to pat him down. As Barksdale did so, his partner walked over to the area where defendant had been standing when they arrived. His partner observed an assault rifle on the ground behind a bush and instructed Barksdale to handcuff defendant. The weapon was recovered approximately 10 feet from where Barksdale stood with defendant and two to three feet from where defendant was first seen. It was beneath a bush inside a fence surrounding an apartment complex, about 15 to 20 feet from the door to the residence. Barksdale did not recall seeing anyone else in the vicinity. Nor did he see defendant drop anything in his presence.

The trial court denied the motion to quash. The trial judge concluded that the evidence of “a gun being found within a couple of feet of a person is sufficient probable cause to arrest someone.”

In turn, the State nolle prossed all charges other than armed habitual criminal and unlawful use of a weapon by a felon and the matter proceeded to trial. Kelly Moore testified that she saw defendant on July 18, 2006, walking toward her car with a rifle in the area of 11th Street in Ford Heights. Defendant was wearing black clothing and was carrying “a black shotgun and it was kind of rusty with brown spots on it.” Defendant was alone, though there was a crowd of people down the street. As he walked past, defendant pointed the weapon in the direction of the car. Moore and her sister-in-law, as well as the four children in the car, began driving toward the police station to report the incident. As they drove away, Moore heard defendant fire a shot into the air.

Curiously, Moore was unable to identify defendant in open court. However, she was able to identify him from a photograph taken on the night of his arrest. According to Moore, the photograph depicted defendant wearing the clothes she saw on him that night. Additionally, Moore identified the gun she saw defendant carrying that night.

Officer Barksdale's trial testimony mirrored his testimony at the hearing on defendant's motion to quash. Barksdale described how evidence technician Bernard arrived on the scene after about 45 minutes and attempted to conduct a gunshot residue test of defendant's hands while defendant was seated in the back of the squad car. Defendant resisted the technician's efforts and attempted to pull his hands away. Thereafter, defendant was transported to the Ford Heights police station and placed in a cell. As Bernard entered the cell, defendant, whose hands were cuffed behind his back, walked backwards and dipped his hands into a toilet. Bernard pulled him away from the toilet and conducted the gunshot residue test. A subsequent search of defendant's person yielded a live round in one of his pockets.

Officer Bernard acknowledged that he was assigned to administer a gunshot residue test on defendant's hands. However, he was unable to complete the test on scene as defendant, who was seated in a squad car, refused Bernard access to his hands. He turned around in his seat and sat on his hands. Another attempt was made when defendant was in a cell at the Ford Heights police station. When Bernard and other officers entered the cell, defendant walked over and placed his hands, which were cuffed behind him, in the toilet water. The other officers then restrained defendant so Bernard could conduct the test.

Robert Berk, a trace evidence analyst with the Illinois State Police, testified that the swabs from each of defendant's hands tested positive for gunshot residue. Berk explained that it is possible for trace evidence, including gunshot residue, to be transferred from surface to surface. Insofar as police car seats are concerned, transfer is more likely when the seats are cloth, as opposed to vinyl, which is suggested for use in transport vehicles. Berk ultimately concluded defendant either discharged a firearm, came into contact with an item containing gunshot residue, or “his hands were in the environment when the weapon was discharged.”

The State then offered a stipulation that defendant was “previously convicted of a total of two or more times of felonies defined as [forcible] felonies by Illinois Statute.” Defendant moved for a directed verdict, which the trial court denied.

A hearing was then conducted outside the presence of the jury concerning the qualification of Larry Hood, defendant's proposed expert witness. Hood had been employed for 23 years by the Illinois State Police, 13 of which were spent in the Division of Forensic Sciences as a crime scene investigator. His training included the collection and packaging of gunshot residue. He also received gunshot residue analysis training from the American Institute of Technology in Youngstown, North Carolina, which encompassed about 1 week of a 15-week course. Hood conceded he was not involved with gunshot residue analysis “except on a casual basis” when he was with the State Police. He explained that during his retirement he “started collecting information and training [himself] doing testing and working on [his] own in regards to the gunshot residue analysis.” According to Hood, he had a small lab where he did “chemical and standard microscope analysis,” without the benefit of a scanning electron microscope. Over the course of 15 years, Hood performed at least 35 to 40 experiments of this sort, often at the direction of attorneys. Hood claimed to have penned three papers for presentation at appellate defender continuing education seminars. None of these papers were otherwise published or subjected to peer review. Additionally, he claimed he was previously qualified as an expert in gunshot residue analysis in approximately a half-dozen Illinois counties. Insofar as firearms were concerned, Hood possessed no certifications, but was qualified as an expert approximately 30 to 40 times.

Despite having no degree in any scientific field, Hood...