People v. Burns

• Decision Date: 07 February 2014
• Docket Number: Docket No. 1–12–0929.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Edward BURNS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 120929

4 N.E.3d 151

378 Ill.Dec. 552

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

v.Edward BURNS, Defendant–Appellant.

Docket No. 1–12–0929.

Appellate Court of Illinois, First District, Sixth Division.

Dec. 31, 2013.

Rehearing Denied Feb. 7, 2014.

Michael J. Pelletier, Alan D. Goldberg, and Adrienne N. River, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial in the circuit court of Cook County, defendant Edward Burns (defendant) was found guilty of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24–1.6(a)(1), (a)(2), (a)(3)(A), (d) (West 2008)) and sentenced to 10 years in prison. Defendant was convicted of a Class 2 offense, based on a prior felony conviction, and sentenced as a Class X offender. On appeal, defendant argues his convictions must be reversed pursuant to the Illinois Supreme Court's decision in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321,reh'g denied, No. 112116 (Ill. Dec. 19, 2013), which held the Class 4 form of section 24–1.6(a)(1), (a)(3)(A), (d) of the AUUW statute facially violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend.II). Aguilar, 2013 IL 112116, ¶ 22, 377 Ill.Dec. 405, 2 N.E.3d 321. For the following reasons, we affirm defendant's conviction.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses the following facts. On October 7, 2009, defendant was charged by indictment with violating the armed habitual criminal statute (720 ILCS 5/24–1.7(b) (West 2008)), two counts of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24–1.1 (West 2008)), and eight counts of AUUW (720 ILCS 5/24–1.6 (West 2008)). The armed habitual criminal charge was based on prior convictions for possession of a controlled substance and AUUW. The UUWF charges were based on the prior AUUW conviction. Four of the AUUW charges refer to the prior AUUW conviction, while the four remaining AUUW charges refer to the prior conviction for possession of a controlled substance. On November 28, 2011, immediately prior to the commencement of the trial, the State moved to dismiss counts V, VII, IX, and XI by nolle prosequi.

The dismissed counts charged various forms of AUUW on the ground that defendant had not been issued a valid firearms owner identification card.

¶ 4 At trial, Chicago police officer Tim McDonough testified that on June 13, 2009, at approximately 4 a.m., he and Officer Mark Sobczyk were patrolling in a marked police vehicle and responded to a radio report of gunfire in the vicinity of 73rd Street and Blackstone Avenue. While proceeding to that location, the police officers were flagged down by the owner of a black sports utility vehicle, who notified the officers of gunfire and pointed down 73rd Street.

¶ 5 As the police officers approached the intersection of 73rd Street and Blackstone Avenue, Officer McDonough observed three individuals entering a four-door Nissan Maxima facing eastward on 73rd Street. Officer McDonough also noticed a female driver he had not observed entering the vehicle. Officer McDonough parked the police vehicle directly in front of the Nissan.

¶ 6 As Officer McDonough exited his vehicle, he observed the front-seat passenger, whom he identified in court as defendant, exit the Nissan while holding a handgun. Officer McDonough shouted, “Get your hands up,” whereupon defendant turned, tossed the handgun into the Nissan, and fled westbound on foot. Officer McDonough chased defendant, who turned southward and threw another object to the ground during the chase. Officer McDonough testified this object was a semiautomatic magazine containing ammunition.

¶ 7 According to Officer McDonough, defendant eventually ran back toward the Nissan. Officer McDonough transmitted this information over his radio. Officer McDonough subsequently learned defendant was apprehended by Officer Sobczyk. When Officer McDonough returned to the location of the Nissan, he observed Officer Hernandez recover the handgun from the floorboard of the passenger seat of the Nissan. Officer McDonough also testified the handgun contained one round of ammunition, but was missing the clip. Officer McDonough further testified the magazine he recovered while chasing defendant fit the handgun recovered from the Nissan.

¶ 8 Officer Sobczyk's testimony was substantially consistent with Officer McDonough's testimony. Officer Sobczyk additionally testified he secured the Nissan and radioed for backup when Officer McDonough pursued defendant. Officer Sobczyk received Officer McDonough's radio call regarding defendant running back toward the Nissan, and Officer Sobczyk started walking toward an alley between Dante and Blackstone Avenues on 73rd Street. Shortly thereafter, defendant emerged from the alley and Officer Sobczyk placed him in custody.

¶ 9 Following the police testimony, the State introduced certified copies of two convictions: one for possession of a controlled substance and one for AUUW. The trial court admitted the convictions without objection. Defendant then moved for a directed finding. The trial court denied the motion.

¶ 10 Tenika Burns (Tenika), defendant's wife, testified that on June 13, 2009, she was driving herself, defendant, Otis Burns (Otis), and Larry Lester to a nightclub. During the drive, Otis received a telephone call, after which he directed Tenika to drive them to 73rd Street and Blackstone Avenue. While parked, a police vehicle parked in front of her vehicle.

¶ 11 According to Tenika, defendant and Lester exited her vehicle, but she did not observe defendant toss a handgun into her vehicle. While one police officer pursued defendant and Lester, another officer directed her and Otis to exit her vehicle and place their hands on the trunk. Tenika observed a police officer recover a handgun from her vehicle, which Otis identified as belonging to him. She then observed defendant emerge from the alley and police place him into handcuffs and escort him to a police vehicle.

¶ 12 Lester testified in a manner substantially similar to Tenika. Lester additionally testified Otis placed a handgun under the passenger seat when the police parked their vehicle in front of them. Lester also testified he fled the vehicle and was apprehended at the intersection of 74th Street and Dante Avenue. Lester further testified he never heard Otis admit to being the owner of the handgun at the scene of the police stop.

¶ 13 Defendant testified he did not possess a handgun when the police parked in front of Tenika's vehicle. According to defendant, he fled in the mistaken belief a protective order Tenika had obtained remained in force. Defendant denied tossing the handgun into Tenika's vehicle and discarding ammunition while being pursued by the police. Defendant testified he walked back to Tenika's vehicle and surrendered to the police.

¶ 14 In rebuttal, the State called Officer Kubiak, who testified she and Officer Hernandez were involved in arresting defendant. According to Officer Kubiak, when she arrived at the scene of the incident, Otis and Tenika were in the Nissan. Officer Kubiak also testified Otis never admitted he was the owner of the handgun recovered from the passenger floorboard of the vehicle. Officer Sobczyk also testified in rebuttal that Otis never admitted he was the owner of the handgun.

¶ 15 Following closing arguments, the trial court found defendant guilty of violating the armed habitual criminal statute, two counts of UUWF, and eight counts of AUUW.

¶ 16 On January 3, 2012, defendant filed a motion to reconsider. In the motion, defendant first argued the State relied on two certified copies of convictions, one of which (possession of a controlled substance with intent to deliver) was under the name of Edward Burns, while the other (AUUW) was under the name of Damion Smith. Defendant argued the State failed to adduce any evidence that he is the same person as Damion Smith. Second, defendant argued the State failed to prove he knowingly possessed a firearm.

¶ 17 On January 6, 2012, the trial court held a hearing, commencing with a pro se motion alleging ineffective assistance of defense counsel, which the trial court denied. The trial court then heard argument on the motion to reconsider. The trial court denied the motion regarding the argument the State failed to prove defendant knowingly possessed a firearm. The trial court, however, granted the motion to reconsider in part regarding the State's failure to adduce any evidence defendant is the same person as Damion Smith. The trial court observed this ruling applied to the UUWF and armed habitual criminal charges, but not the remaining counts, where the prior felony conviction is not an element of the offense.

¶ 18 On February 10, 2012, the trial court proceeded to sentence defendant on the two remaining AAUW counts (counts VI and X). Following argument on the issue of whether defendant should be sentenced as a Class X offender, and hearing factors in aggravation and mitigation of the offense, including testimony from Tenika, the trial court sentenced defendant on count 6 of the indictment to 10 years in prison for violating section 24–1.6(a)(1), (a)(3)(A) of the AUUW statute. 720 ILCS 5/24–1.6(a)(1), (a)(3)(A) (West 2008). The sentencing order reflects defendant, having been convicted of a Class 2 offense, was sentenced as a Class X offender. The sentencing order does not reflect a sentence upon count X of the indictment, which addressed a violation of section 24–1.6(a)(2), (a)(3)(A) of the AUUW statute. 720 ILCS 5/ 24–1.6(a)(2), (a)(3)(A) (West 2008).

¶ 19 On March 12, 2012, defendant filed a timely notice of appeal to this court. Defendant filed an initial brief...