People v. Fowler

• Decision Date: 13 December 1991
• Docket Number: No. 2-89-1327,2-89-1327
• Parties: , 164 Ill.Dec. 770 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John R. FOWLER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 686

583 N.E.2d 686

222 Ill.App.3d 157, 164 Ill.Dec. 770

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John R. FOWLER, Defendant-Appellant.

No. 2-89-1327.

Appellate Court of Illinois,

Second District.

Dec. 13, 1991.

G. Joseph Weller, Deputy Defender, Office of State Appellate Defender, Marilyn Martin, Chicago, for John R. Fowler.

Roger T. Russell, Boone County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Samuel J. Cahnman, Chicago, for the People.

Justice DUNN delivered the opinion of the court:

Defendant, John R. Fowler, was charged with the offenses of intimidation and possession of a weapon without a valid firearm owner's identification card. After a jury trial, defendant was convicted of the possession offense and sentenced to 90 days in jail, plus a $1,000 fine. In addition, the trial court ordered the forfeiture of defendant's weapons. The trial court granted defendant's pro se motion to reduce sentence and the defendant was released from custody. Defendant appeals his conviction and the order requiring forfeiture. We affirm.

On appeal, defendant contends: (1) his conviction should be reversed because the weapons introduced as evidence at his trial were seized without probable cause or, in the alternative, the conviction should be reversed and the cause remanded for a hearing at which the defendant may challenge the integrity of the affidavit supporting the search warrant; (2) the trial court abused its discretion in failing to inquire into defendant's fitness after it was apprised of the defendant's involuntary commitment; (3) defendant was deprived of a fair trial due to the prosecutor's questioning of prospective jurors regarding mental institutions; and (4) the trial court lacked the authority to order the forfeiture of defendant's weapons.

On April 3, 1989, a complaint was filed against the defendant, alleging he committed the offense of intimidation of Boone County deputy sheriff David Dylak. (Ill.Rev.Stat.1989, ch. 38, par. 12-6(a)(1).) On April 3, 1989, a search warrant was issued based on the affidavits of Deputy Dylak and Boone County Sheriff Duane Wirth.

In Deputy Dylak's affidavit, he stated that on the morning of April 1, 1989, the Blackhawk Moving Company requested a patrol car in the vicinity of Herbert Grainery in Herbert. Blackhawk was moving some furniture into a building on the property of the Herbert Grainery and anticipated some possible problems with the defendant, who lived in the immediate vicinity. As Deputy Dylak drove past the grainery he observed in his rearview mirror a man with a rifle walk into the roadway. The man was accompanied by two large dogs which appeared to be Doberman pinschers. The dogs were growling and barking while attempting to approach the squad car, but the man in the road held them back.

Deputy Dylak continued to observe the armed subject as he reported the situation to the sheriff's office over his police radio. Then he made a U-turn so that he was facing the armed individual, who was still standing on the road. He began to drive slowly toward the individual. As he came within approximately 30 to 50 feet of the armed subject, the subject set his rifle down behind a telephone pole located on the side of the road near the grainery.

The subject was again standing on the roadway with his dogs when Deputy Dylak made contact with him. The dogs were still behaving in a very aggressive manner. The subject inquired as to what Deputy Dylak wanted, peppering his comments with expletives. Deputy Dylak informed the subject that he was a police officer and that he was concerned about the fact that the subject was standing in the roadway with a gun. The subject responded that it was his "f***ing right to bear arms in this country" and there was not a thing Deputy Dylak could do about it. When Deputy Dylak inquired into the subject's name, the subject replied "Jack F***ing Fowler." He then told Deputy Dylak to "get the f*** out of here" and if Deputy Dylak got out of the car, he would "never see the f***ing road again." Because of defendant's aggressive and abusive behavior towards the Deputy, the immediate threat of the dogs, and the fact that there were other subjects approximately 50 feet from the roadway, Deputy Dylak decided to vacate the immediate area in the interest of officer safety.

Deputy Dylak reported the incident to his supervisor, Sheriff Duane Wirth. Sheriff Wirth drove out to the Herbert Grainery to speak with defendant regarding the incident later that morning. In his affidavit Sheriff Wirth stated that he spoke with John (Jack) Fowler about the confrontation that had occurred earlier that morning with Deputy Dylak. At that time defendant produced a pellet rifle which he claimed was the gun he displayed earlier to Deputy Dylak. The gun did not fit the description of the weapon Deputy Dylak had seen and reported to Sheriff Wirth. The sheriff stated that he believed that the gun actually used during the incident was hidden on John Fowler's premises in close proximity to the area where the incident occurred. Those premises consisted of a grain elevator with attached buildings, a tin one-story building, a wooden one-story building, a motor home, a trailer house and several motor vehicles on the premises. In addition, the sheriff stated that his department ran defendant's name through the State computer and found that he did not have a valid firearm owner's identification card. Defendant's card had expired November 14, 1973.

A search warrant was issued on April 3, 1989, for the premises described in the sheriff's affidavit. The search warrant described the weapon being sought as a rifle with full brown wood stock and heavy steel barrel with large open sights, in addition to a pellet rifle with forearm pump action. The execution of the warrant resulted in the seizure of three rifles, two shotguns, a pistol, a revolver, assorted ammunition and a pellet gun.

Defendant was arrested at the time of the search. After being admonished of his rights, defendant waived his right to counsel and elected to represent himself pro se.

After a preliminary hearing, the trial court found probable cause existed to support the offense of intimidation. The State filed an information charging defendant with the offenses of intimidation and possession of a firearm without a valid firearm owner's identification card.

On May 30, 1989, the defendant failed to appear at a status hearing. The prosecutor informed the judge that defendant had been picked up by the De Kalb County sheriff's office and taken to the Singer Mental Health Center by court order. The defendant was admitted May 22, 1989, and released May 31, 1989.

The Illinois State Police informed defendant by letter dated June 2, 1989, that his firearm owner's identification card had been revoked due to his ineligibility to possess the card as a person who had been committed to a mental health facility within the last five years.

The case proceeded to trial on September 5, 1989. After deliberation, the jury was unable to arrive at a verdict on the intimidation charge, but found the defendant guilty of the misdemeanor count of possessing a weapon without a firearm owner's identification card. Defendant was sentenced to 90 days in jail and a $1,000 fine.

At that time the State requested the forfeiture of the weapons seized in the case. The trial court entered an order of confiscation and destruction of the weapons. The court granted defendant's motion to stay the destruction of the weapons pending this appeal.

Defendant contends that his conviction must be reversed because the weapons introduced as evidence at his trial were seized without probable cause. The State contends that defendant has waived this issue on appeal because it was not raised prior to trial, at trial or in any post-trial motions filed by defendant. We agree with the State's contention.

In People v. Caballero (1984), 102 Ill.2d 23, 79 Ill.Dec. 625, 464 N.E.2d 223, our supreme court discussed the purpose of the waiver rule. The general rule followed by the courts is that failure to raise an issue in the written motion for a new trial constitutes waiver of that issue and it cannot be urged as grounds for reversal on review. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124; People v. Caballero, 102 Ill.2d 23, 79 Ill.Dec. 625, 464 N.E.2d 223; People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.) The court stated that when no post-trial motion has been filed specifying the grounds upon which the defendant relies for reversal, the trial court is denied an opportunity to grant a new trial, if warranted. (Caballero, 102 Ill.2d at 31, 79 Ill.Dec. 625, 464 N.E.2d 223.)

"This casts a needless burden of preparing and processing appeals upon appellate counsel for the defense, the prosecution, and upon the court of review. Without a post-trial motion limiting the consideration to errors considered significant, the appeal is open-ended." (Caballero, 102 Ill.2d at 31, 79 Ill.Dec. 625, 464 N.E.2d 223.)

The court clarified the holding of Caballero in People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124, in which the court stated the presence of both a trial objection and a written post-trial motion raising the issue are necessary to preserve an issue for review.

In the present case, defendant failed to present the issue of lack of probable cause in a motion to suppress, as an objection at trial or in his post-trial motion. Accordingly, the issue is waived for the purposes of this appeal.

Defendant asks us to consider this issue under the plain error doctrine. (134 Ill.2d R. 615(a).) However, we need not consider whether the issue is plain error because we conclude no error occurred.

Probable cause for the issuance of a search warrant exists if the facts set forth in an affidavit would cause a reasonable person to believe a crime has...