People v. Calloway
| Decision Date | 29 May 2019 |
| Docket Number | No. 1-16-0983,1-16-0983 |
| Citation | 2019 IL App (1st) 160983,138 N.E.3d 911,435 Ill.Dec. 297 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nicholas CALLOWAY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Patricia Mysza, and Adrienne E. Sloan, of State Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Smreti Didwania, Assistant State’s Attorneys, of counsel), for the People.
¶ 1 The police entered an apartment to execute a search warrant and found defendant Nicholas Calloway running toward the back exit, carrying two bags of cannabis. There was a gun on the couch, immediately inside the front door, about 15 feet away from where defendant was seen running when the first officer entered. The police secured the gun on the couch, pursued defendant out the back, and arrested him in another apartment downstairs. A jury convicted defendant of armed violence, the predicate offense of possession of cannabis with intent to deliver, and armed habitual criminal.
¶ 2 Defendant raises several issues on appeal. We reverse his conviction for armed violence based on one of them. Defendant argues, and we agree, that the State failed to prove that he was "armed," within the meaning of the statute, because the gun on the couch was not immediately accessible to him when the police entered the apartment. We affirm defendant's convictions for possession of cannabis and armed habitual criminal over his contentions of ineffective assistance of counsel.
¶ 4 On May 9, 2009, Chicago police officers arrested defendant while executing a search warrant at 7123 S. Campbell Avenue. Officers Walsh, Dougherty, and Bokowski, and Sergeants Johnson and Gade, all of whom testified for the State, were among the eight officers who entered the second-floor apartment in the two-flat building at that address.
¶ 5 The officers' testimony and accompanying exhibits described some salient features of the apartment's layout. The front door opens directly into the living room. The next room back is the adjoining dining room. The back bedroom is behind the dining room. There was at least one other bedroom, toward the front of the apartment, adjacent to the living room.
¶ 6 The officers forcibly entered the building and went upstairs to the second-floor unit. They knocked and announced their presence. When nobody answered after five to six seconds, they broke down the door with a battering ram and went inside.
¶ 7 There was a gun on the couch in the living room, immediately inside and just to the right of the front door. Apart from the gun, the couch was unoccupied. Johnson immediately secured the gun on the couch while the rest of the officers cleared the apartment.
¶ 8 Bokowski, the first officer to enter the apartment, testified that he did not see anyone in the living room. But he saw defendant, in a "side profile," about 15 feet away, either "inside" or "approaching" the dining room, and "fleeing towards the back of the apartment." Walsh testified that he saw defendant "fleeing from the living room into the kitchen area." Dougherty testified that he did not see anyone at first. But then he heard another officer say "he's running, he's running," and he noticed defendant "running through the apartment," specifically in "the dining room area." Neither Johnson nor Gade saw defendant at all. Other than defendant, there was nobody in the apartment.
¶ 9 Defendant was dressed in a T-shirt and boxer shorts. He was carrying two Crown Royal bags. Walsh and Dougherty pursued defendant as he ran to the back of the apartment, out the rear exit, down the rear stairwell, and into the first-floor apartment, where he tossed the Crown Royal bags onto a bed. There, defendant was arrested. Walsh opened the Crown Royal bags and found small plastic bags—26 in one bag and 31 in the other—filled with suspected cannabis. Walsh returned to the second-floor apartment. Dougherty soon followed with defendant in tow.
¶ 10 The officers searched the entire second-floor apartment. In the dining room, they found another small plastic bag with suspected cannabis, a digital scale, and a Western Union receipt bearing defendant's name but no address. A total of 55 live .22-caliber rounds (to match the loaded semi-automatic found on the couch) were found throughout the apartment—in the dining room, in the front bedroom, and under the sofa cushion in the living room. In the rear bedroom, Walsh found a pair of jeans and some gym shoes, which he gave to defendant so he could get dressed. A set of keys found in the pocket of the jeans matched the lock on the front door of the second-floor apartment. The officers did not find any other items clearly belonging to defendant or linking him to the property.
¶ 11 During the search, Dougherty spoke to defendant in the living room. After Mirandizing defendant, Dougherty asked why he had the gun. Defendant answered, "People be fittin' to kill me so I need protection." Defendant never signed a written statement, but Dougherty recorded defendant's response in his case report.
¶ 12 Using both microscopic and chemical analyses, a forensic chemist from the Illinois State Police confirmed that the substances packaged in the small plastic bags were cannabis. The samples weighed by the chemist totaled approximately 41 grams.
¶ 13 The parties stipulated that the ridge impressions found on the gun were not suitable for comparison, and that defendant had two qualifying convictions for the charge of armed habitual criminal.
¶ 14 Sergeant Kappel of the Evidence and Recovered Property Section testified that in the spring of 2013 (defendant was arraigned in July 2009 and tried in January 2016), the narcotics vault became wet and some of the inventoried items—including the cannabis recovered in this case—started to rot. On May 24, 2013, Kappel made an administrative decision to have the rotting cannabis destroyed, out of fear that it would pose a health risk to the officers working in the building. In total, about 4000 items from the vault were destroyed, many on account of such health risks, and others because the underlying cases had been adjudicated.
¶ 15 In August 2013, the digital scale and keys recovered during the search were discarded from the evidence vault. Kappel did not know why, but he testified to his "assumption": That someone in the evidence section, researching the inventoried items, noticed that the cannabis had been destroyed, assumed that the case was over, and discarded the keys and scale "without checking further."
¶ 16 At trial, the State showed the jury photos of the destroyed items, taken by Gade, depicting how they appeared when they were seized during the search.
¶ 17 The record shows that the State informed defense counsel that this evidence had been destroyed at a pretrial hearing on July 30, 2014. Counsel did not file any motions in response. At the close of the State's case, however, counsel filed a motion for directed finding. As to the cannabis charge, that motion was based on "the fact that there is no longer any cannabis and there is no way we can bring it out, or show it or even take a test of it." The motion was denied.
¶ 18 Defendant took the stand on his own behalf. He testified, in sum, that he was in the first-floor apartment at 7123 S. Campbell Avenue when the officers arrived, checking on his aunt's boyfriend, who was ill at the time, while his aunt was out of town. Defendant heard some loud noises and realized the police were upstairs. He opened the back door of the first-floor apartment and was met by officers who told him to get down. The officers searched the first-floor apartment, took defendant upstairs, and strip-searched him. The officers found the Western Union receipt, which they claimed to find in the dining room of the second-floor apartment, in his pocket. Defendant denied ever seeing the Crown Royal bags or admitting to the officers that the gun on the couch was his.
¶ 19 After the jury found defendant guilty, the trial court sentenced him to 16 years in prison for armed violence, 7 years for armed habitual criminal, and 3 years for possession of cannabis with intent to deliver, with all sentences to run concurrently. This appeal followed.
¶ 22 Defendant first argues for a reversal of his conviction for armed violence. He contends, in particular, that he was not "armed," within the meaning of the statute, because the gun was not immediately accessible to him when the police entered the apartment.
¶ 24 To prove the offense of armed violence, the State had to prove that defendant committed a predicate felony (namely, possession of cannabis with intent to deliver) "while armed with a dangerous weapon." 720 ILCS 5/33A-2(a) (West 2008). In construing this element, our supreme court has explained that a felon with immediate access to a dangerous weapon may have to make a "spontaneous" decision whether to use deadly force—and thus will be more likely to spark a violent encounter—when faced with resistance from a police officer, victim, or another criminal. People v. Harre , 155 Ill. 2d 392, 395, 185 Ill.Dec. 550, 614 N.E.2d 1235 (1993) ; People v. Condon , 148 Ill. 2d 96, 109-10, 170 Ill.Dec. 271, 592 N.E.2d 951 (1992). The purpose of the armed-violence statute is to minimize the risk of such violence by disarming felons, thus eliminating the need for them to decide, in the heat of the moment, whether to resort to deadly force. Harre , 155 Ill. 2d at 395, 185 Ill.Dec. 550, 614 N.E.2d 1235 ; Condon , 148 Ill. 2d at 109-10, 170 Ill.Dec. 271, 592 N.E.2d 951.
¶ 25 To this end, the statute prohibits a felon from being armed at any point that creates an "immediate potential for violence." People v. Anderson , 364 Ill. App. 3d 528, 538-39, 302 Ill.Dec....
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