People v. Harmon
| Decision Date | 26 January 2018 |
| Docket Number | No. 1-15-0093,1-15-0093 |
| Citation | 2017 IL App (1st) 150093 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONOVAN HARMON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
Honorable Joseph G. Kazmierski, Jr., Judge Presiding.
¶ 1 Held: We affirmed defendant's aggravated unlawful use of a weapon conviction, where his motion to suppress was properly denied, the record was inadequate to show that his trial and posttrial counsels provided ineffective assistance, and the trial court correctly admitted a certification showing that he did not have a Firearm Owners Identification card. We corrected the fines and fees order.
¶ 2 Defendant-appellant, Donovan Harmon, was charged with three counts of aggravated unlawful use of a weapon (AUUW) for knowingly carrying in his vehicle (count I), on his person (count II), and on a public street (count III), a handgun without having been issued a valid Firearm Owners Identification (FOID) card. Following a bench trial, the court convicted defendant of all three counts of AUUW, merged counts II and III into count I, and sentenced him to 12 months' probation and imposed $834 in costs. On appeal, defendant contends: (1) the trial court erred by denying his motion to suppress; (2) his trial counsel and posttrial counsel provided ineffective assistance; (3) the trial court erred in admitting certain evidence; and (4) his costs should be reduced. We affirm defendant's conviction and correct the fines and fees order.
¶ 3 At the hearing on the motion to suppress, Landon Bulluck testified that, shortly before midnight on November 29, 2013, he and defendant were in their apartment at 747 West Irving Park Road in Chicago. Mr. Bulluck's brother and another friend were also in the apartment. They decided to go to the bars in the Wrigleyville neighborhood of Chicago (Wrigleyville), and defendant drove them there in his vehicle.
¶ 4 Defendant parked on a residential street in Wrigleyville, and they all exited the vehicle. A marked police vehicle with a male and female officer drove past them, then reversed and came up next to them. The male officer told them to turn around and place their hands on defendant's vehicle. All four men complied, and they were then searched by the male officer, who did not find anything on them.
¶ 5 The male officer called each of them over to the front of defendant's vehicle and asked them for identification, which they provided. Meanwhile, the female officer was searching defendant's vehicle. Mr. Bulluck heard her say that she had found something. Mr. Bulluck turned around and "saw the gun." Defendant had not told Mr. Bulluck that he had a gun in the vehicle.
¶ 6 On cross-examination, Mr. Bulluck testified that defendant had difficulty parking his vehicle in a first parking spot on the street in Wrigleyville, so he moved the vehicle further down the street and parked there. Soon after, the officers approached, wearing their police uniforms. When the officers first approached, they did not have their guns drawn and did not handcuff Mr. Bulluck or his companions. The male officer did most of the talking, while the female officer searched defendant's vehicle. Prior to searching the vehicle, both the male and female officers patted them down.
¶ 7 After searching defendant's vehicle, the female officer recovered a gun and a knife and placed them on top of the vehicle. The male officer called for backup, and Mr. Bulluck, defendant, and their two companions were handcuffed and transported to the police station.
¶ 8 Officer Meredith Esposito testified that, on November 30, 2013, she and her partner were in plain clothes, in an unmarked vehicle, assigned to patrol the 19th District, which encompassed Wrigleyville. There had been a recent increase of robberies in the district, in which a vehicle full of young men would drive around Wrigleyville until they found an intoxicated person walking on the street, after which one or two of the men would leave the vehicle while it drove around the corner. The men would rob the intoxicated victim, run back to the corner, enter the vehicle and drive off. These robberies occurred in the evenings, when the bars were open.
¶ 9 At about 12 a.m. on November 30, 2013, Officer Esposito and her partner were driving in the area of 1133 West Cornelia Street in Wrigleyville. They saw a vehicle with four occupants having difficulty parking on Cornelia Street. Defendant was the driver of the vehicle. While the vehicle was attempting to park, it was blocking traffic on the street for about 30 seconds; no other vehicles were able to pass during that time. Officer Esposito acknowledged that defendant's vehicle was not violating any city ordinances when it blocked traffic for 30 seconds while trying to park. Officer Esposito and her partner circled the block, came back, and saw the vehicle parking further up the street. The officers parked their vehicle slightly behind defendant's vehicle and approached the vehicle to see what its occupants "were up to." They did not have their guns drawn.
¶ 10 Officer Esposito was able to see inside defendant's vehicle with her flashlight, and she observed two people in the front seat and two people in the back seat. She also saw a knife tucked in a crevice on the dashboard, near the windshield. Officer Esposito looked at her partner and said: "Let's get these guys out of the [vehicle]," thereby indicating to him that there was a safety issue.
¶ 11 Once all of the occupants were out of the vehicle, the officers immediately handcuffed them and performed protective pat-downs for officer safety. Thereafter, Officer Esposito recovered the knife, which she described as a "standard kitchen steak knife" with a four to five inch blade. Approximately five minutes had elapsed between the time when the occupants exited the vehicle, to when the knife was recovered.
¶ 12 After recovering the knife, Officer Esposito asked defendant whether there was anything else in the vehicle she should know about. Defendant said: "No, I've got nothing" and that he told her to "go ahead and look" inside the vehicle. Officer Esposito then searched the vehicle and found a loaded handgun under the driver's seat. She showed it to her partner, and defendant stated: "Oh, I forgot that was in there." Approximately 10 to 15 minutes had passed since the time when the officers approached the vehicle to when the gun was recovered.
¶ 13 Officer Esposito learned that defendant did not have a valid FOID card. The officers called for backup, and the four men were placed into custody and taken to the police station.
¶ 14 On cross-examination, Officer Esposito testified that the recent robbery pattern in Wrigleyville involved young men in a vehicle robbing intoxicated persons, but that she did not see an intoxicated person in the vicinity of defendant's vehicle. Defendant's vehicle had Wisconsin license plates, but the robbery pattern in the area had not involved out of state offenders.
¶ 15 The knife was on the passenger side of the vehicle, tucked in a crevice in the dashboard near the windshield. Officer Esposito explained that it is a violation of a Chicago ordinance to have a knife on one's person that is longer than three inches, but that the knife here was recovered from defendant's vehicle and not from anyone's person; therefore, the presence of the knife inside the vehicle did not constitute an ordinance violation.
¶ 16 Officer Esposito testified that, although she was not in police uniform, she was wearing a bulletproof vest and had her badge on her belt. Her partner also had his badge prominently displayed and they both had their weapons in their holsters. They identified themselves as Chicago police officers when ordering the four men to exit their vehicle. The men were not free to disobey that order. None of the men made any movement toward the knife before exiting the vehicle.
¶ 17 After exiting the vehicle, the four men were handcuffed and searched.
¶ 18 The State rested. The defense rested in rebuttal without introducing any additional evidence.
¶ 19 The trial court denied defendant's motion to suppress. The court found that the officers had a reasonable, articulable suspicion to make a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and to question the occupants of the vehicle and to have them exit the car, "given the time of night, the number of officers involved, the number of individuals in the car there." The trial court further found that the officers' subsequent conversation with defendant led to a consensual search of the vehicle, and the recovery of the gun.
¶ 20 Defendant filed a motion to reconsider, arguing that the officers had no reasonable suspicion for a Terry stop or probable cause to arrest him based on his driving of his vehicle, where his actions did not meet the modus operandi of the robbery pattern, where his parking of the vehicle had not violated any law or city ordinance, and where the knife seen in the vehicle was not on anyone's person. Defendant contended the officers arrested him without probable cause when they ordered him out of the vehicle and handcuffed him, and that the subsequent recovery of the gun should have been suppressed as fruit of the poisonous tree.
¶ 21 The State argued that, given the recent robberies in Wrigleyville at night and the fact that defendant and three other young men were parked on a residential street in Wrigleyville at 12 a.m. with a knife in the car, the officers had a reasonable, articulable suspicion to stop and question defendant. Thereafter, defendant gave the officers consent to search his vehicle,...
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