People v. Hernandez

• Decision Date: 29 May 1992
• Docket Number: No. 3-91-0209,3-91-0209
• Citation: 593 N.E.2d 1123,229 Ill.App.3d 546
• Parties: , 171 Ill.Dec. 303 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank HERNANDEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1123

593 N.E.2d 1123

229 Ill.App.3d 546, 171 Ill.Dec. 303

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Frank HERNANDEZ, Defendant-Appellant.

No. 3-91-0209.

Appellate Court of Illinois Third District.

May 29, 1992.

M. Jacqueline Walther (argued), Kielian & Walther, Chicago, for Frank Hernandez.

Terry A. Mertel (argued), States' Attys. Appellate Prosecutor, Ottawa, Edward Burmila, Jr., Will County State's Atty., Joliet, for People.

Justice SLATER delivered the opinion of the court:

Defendant Frank Hernandez was convicted of armed violence and possession of a controlled substance and was sentenced to a 10 year term of imprisonment. Defendant raises numerous issues on appeal. We vacate in part and affirm in part.

On November 3, 1988, police officers executed a search warrant at a residence in Joliet, Illinois. When police entered the southeast bedroom of the home, they found the defendant lying in bed, undressed and between the covers, apparently asleep. Two other individuals, Kimberly Kirkland and Valerie Griffey, were also at the residence at the time of the search. After taking defendant into custody, the police searched the bedroom and found a "snow seal", a small piece of paper containing white powder, between the mattress and box spring of the bed. The powder was field tested and the results indicated the presence of cocaine. Police also found a loaded .38 caliber revolver lying near the snow seal. The gun was approximately six to eight inches in from the edge of the mattress, near the middle of the bed, and on the side of the bed where the defendant had been sleeping. In addition to these items, police found various types of ammunition and a triple beam scale in the drawer of a gun cabinet located near the defendant's bed. To avoid repetition, further evidence and testimony presented at trial will be related where it is relevant to specific issues raised by defendant.

The defendant first contends that he was not proved guilty of armed violence beyond a reasonable doubt. Defendant maintains that the evidence indicated that he, at most, constructively possessed the weapon and such constructive possession is insufficient to find that he was "otherwise armed" within the meaning of the armed violence statute. We disagree.

Section 33A-2 of the Criminal Code of 1961 (the Code) provides that a person commits armed violence when he commits any felony defined by Illinois law while armed with a dangerous weapon (Ill.Rev.Stat.1987, ch. 38, par. 33A-2). Section 33A-1 of the Code states that a person is considered armed with a dangerous weapon "when he carries on or about his person or is otherwise armed" with a weapon (Ill.Rev.Stat.1987, ch. 38, par. 33A-1). Recently in People v. Condon (1992), 148 Ill.2d 96, 170 Ill.Dec. 271, 592 N.E.2d 951, our supreme court elaborated upon the meaning of the phrase "otherwise armed." In Condon the defendant was convicted of armed violence after being arrested in the kitchen of his home. A number of guns, including two loaded pistols, were discovered throughout the house. No guns were in the kitchen, however, where defendant was found. Indeed, the only guns on the first floor were an unloaded rifle and and unloaded shotgun. In finding that the defendant was not "otherwise armed" the court stated:

"A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. [Citation.] Without a weapon at hand, the felon is not faced with such a deadly decision. Hence, we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon." (Emphasis in original.) (Condon, 148 Ill.2d at 109, 170 Ill.Dec. at 278, 592 N.E.2d at 958.)

In this case the gun was located six to eight inches from the edge of the mattress on the side of the bed nearest to defendant. We believe this was sufficient to constitute "immediate access" to the weapon. (Cf. People v. Bond (1989), 178 Ill.App.3d 1020, 128 Ill.Dec. 136, 534 N.E.2d 156 (gun located under cushion of sofa upon which defendant was seated); People v. Zambetta (1985), 132 Ill.App.3d 740, 87 Ill.Dec. 695, 477 N.E.2d 821 (gun located in glove compartment of car driven by defendant).) We also note that two police officers who participated in the search testified that defendant's position on the bed would have allowed him access to the weapon.

Defendant argues, however, that even if the gun was theoretically within his reach, he did not, as a practical matter, have immediate access to it. Defendant points out that he was asleep when the officers entered his bedroom and he was completely under their control after being awakened. Initially, we note that while some of the testimony indicated that defendant was asleep, one officer's testimony suggested that defendant may have been awakening when the officers entered the room. In any event, we do not find this issue to be dispositive. The purpose of the armed violence statute is to deter felons from using dangerous weapons and to thereby avoid the deadly consequences which might otherwise result. (Condon, 148 Ill.2d 96, 170 Ill.Dec. 271, 592 N.E.2d 951.) We do not believe that this purpose would be advanced by making a conviction dependent upon the fortuitous circumstance of whether a sleeping defendant awakened in time to reach for a nearby weapon. The key inquiry is whether the defendant had immediate access to or timely control over the weapon (Condon, 148 Ill.2d 96, 170 Ill.Dec. 271, 592 N.E.2d 951), not whether he reached for or gained actual physical control of it.

Defendant also contends that the State failed to prove that he knew the gun was present. Defendant notes the following circumstances in support of his argument: the defendant shared the house and the bedroom where the gun was found with Valerie Griffey; there was no evidence, such as fingerprints, to show that defendant had ever handled the gun; the gun was not in plain view; defendant never did or said anything to suggest that he knew the gun was present, nor did he engage in conduct indicative of a consciousness of guilt; and Griffey testified at defendant's sentencing hearing that defendant did not know the gun was there.

The element of knowledge is very often not susceptible to direct proof. (People v. Ortiz (1980), 91 Ill.App.3d 466, 46 Ill.Dec. 919, 414 N.E.2d 1072.) Whether defendant had possession or knowledge is a question of fact to be determined by the jury and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant's guilt. (People v. Gallagher (1990), 193 Ill.App.3d 566, 140 Ill.Dec. 619, 550 N.E.2d 255.) Upon review, the fact finder's role as weigher of the evidence is preserved by considering all the evidence in the light most favorable to the prosecution. The relevant question is, after viewing the evidence in this manner, whether any rational trier of fact could have found the elements of the crime proved beyond a reasonable doubt. People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267.

In this case the gun was found beneath the mattress on which the defendant was lying. The photograph contained in the record indicates that the weapon was of sufficient size to raise an inference that it would not go unnoticed by someone using the bed. In addition, the presence of a gun cabinet containing live ammunition, including .38 caliber ammunition, located a few feet from the bed suggests the presence of weapons. While the circumstances to which the defendant refers, such as the shared living arrangements and the lack of evidence of defendant's fingerprints on the gun, are factors which might support an inference that defendant was unaware of the weapon, they do not themselves create a reasonable doubt. Rather, these facts created an issue for the jury to resolve. Viewing all the evidence in the light most favorable to the prosecution, we find that there was sufficient evidence to support a determination that the defendant had knowledge of the gun's presence.

In his final reasonable doubt argument, defendant contends that constructive possession of a controlled substance should not be permitted to serve as the predicate felony for armed violence. As defendant points out, this argument has previously been rejected by this court. (People v. King (1987), 155 Ill.App.3d 363, 107 Ill.Dec. 916, 507 N.E.2d 1285; People v. Lenoir (1984), 125 Ill.App.3d 260, 80 Ill.Dec. 681, 465 N.E.2d 1027.) Also, while in People v. Condon (1992), 148 Ill.2d 96, 170 Ill.Dec. 271, 592 N.E.2d 951, the supreme court found that the defendant had not committed armed violence because he did not have immediate access to or timely control over a weapon, the predicate felonies in Condon were delivery of cocaine and possession of cocaine with intent to deliver. The Condon court's analysis represents, we believe, an implicit rejection of the argument defendant raises here. For the reasons stated above, we find that the defendant was proved guilty of armed violence beyond a reasonable doubt. In addition, we decline defendant's invitation to exercise our authority under Supreme Court Rule 615(b)(3) (137 Ill.2d R. 615(b)(3)) and reduce his conviction to possession of a controlled substance because of the "evidentiary weakness of the State's [case] or the basic unfairness of the result." (See People v. Jackson (1989), 181 Ill.App.3d 1048, 130 Ill.Dec. 725, 537 N.E.2d 1054.) The power to reduce the degree of an appellant's offense should be exercised with caution and circumspection. (People v. Coleman (1979), 78 Ill.App.3d 989, 34 Ill.Dec. 510, 398 N.E.2d 185.) Factors relevant to such a determination include whether an...