People v. Jamesson

• Citation: 263 Ill.Dec. 736,768 N.E.2d 817,329 Ill. App.3d 446
• Decision Date: 23 April 2002
• Docket Number: No. 2-00-0480.,2-00-0480.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryce JAMESSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

768 N.E.2d 817

329 Ill. App.3d 446

263 Ill.Dec. 736

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryce JAMESSON, Defendant-Appellant.

No. 2-00-0480.

Appellate Court of Illinois, Second District.

April 23, 2002.

G. Joseph Weller, Deputy Defender, Steven E. Wiltgen, Office of the State Appellate Defender, Elgin, for Bryce Jamesson.

Joseph E. Birkett, DuPage County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Robert E. Davison, Springfield, for the People.

Presiding Justice HUTCHINSON delivered the opinion of the court:

In September 1999 defendant, Bryce Jamesson, was charged by complaint with the offenses of unlawful contact with a street gang member (720 ILCS 5/25-1.1 (West 1998)) and unlawful consumption of alcohol by a minor (235 ILCS 5/6-20 (West 1998)). At a bench trial, defendant was convicted of the unlawful contact offense and acquitted of the alcohol offense. The trial court sentenced defendant to a term of two years' probation. Defendant appeals, challenging the sufficiency of the evidence and the constitutionality of the statute under which he was charged and convicted. We find the statute constitutional and affirm the trial court's judgment.

The record reflects that on September 22, 1999, defendant pleaded guilty to the offense of possession of cannabis (720 ILCS 550/4(a) (West 1998)). On the same date, the trial court sentenced defendant to a term of six months' court supervision and imposed an express condition of supervision that, during the term of supervision, "[d]efendant must have no contact with Samuel Banuelos," three other named individuals, "or any other known gang members."

On September 25, 1999, defendant was charged with the offenses in the present case. On February 8, 2000, defendant filed a motion to dismiss the complaint. Defendant argued that the statute creating the offense of unlawful contact with street gang members (720 ILCS 5/25-1.1 (West 1998)) was unconstitutional. The State filed its response to defendant's motion, and the trial court denied defendant's motion. The cause proceeded to a bench trial.

The State's witness was Russell Schecht, a patrolman with the Addison police department assigned to the gang tactical unit. Schecht testified that his duties as a tactical officer with gang units include collecting intelligence, training, teaching, and educating other police and non-police personnel regarding gangs. He teaches classes on a regular basis and trades information on gangs with other police departments twice weekly. Schecht also participates in continuing education about gangs, attends gang intelligence meetings, and has attended seminars of the Midwest Gang Investigators for approximately 10 years. Schecht added that he had been qualified to testify in court as a gang expert on 15 to 20 prior occasions.

Schecht further testified regarding his familiarity with the structured gangs in Addison, which include the Latin Counts, Latin Kings, Vice Lords, and Insane Deuces. With respect to the Latin Counts, Schecht testified that they are a "People" gang under the "People" nation, and his department began to have contact with them a couple of years ago. He explained that gang members from the Cicero area came to Addison and began heavily recruiting members several years ago. Schecht described the Latin Counts as a violent street gang in Cicero and, in Addison, they have been in numerous violent incidents involving narcotics, batteries, aggravated batteries, assaults, and numerous other criminal activities.

Schecht testified that the Latin Counts are identified by the colors red and black. He described the many different ways they display their colors and "represent" to the left side of the body. For example, they may wear their hats tilted to the left side or wear bandannas on their heads with the knot turned to the left. Schecht also testified regarding his knowledge of the hierarchy and structure of the Latin Counts. The State tendered Schecht as an expert, and the trial court accepted the tender.

The State continued with its examination of Schecht. Schecht testified that he was familiar with defendant and had numerous contacts with him. Schecht described an area called Michael Lane, where there had been a recent concentration of Latin Counts gang members who maintained a presence in that neighborhood. Schecht testified that defendant admitted to him and other officers on a number of occasions that he is a Latin Counts gang member.

Schecht testified that on September 24, 1999, at approximately 11 p.m., he was on routine patrol with another officer in the Michael Lane neighborhood driving through an alley when he saw two known gang members, George Soria and Sam Banuelos, standing between two apartment buildings. He observed Soria attired in a black and red sweatshirt and noted they were in an area where they have had "literally" hundreds of gang contacts at the apartment building in numerous incidents, so Schecht and the other officer stopped to make contact with them. Initially, Schecht thought Soria and Banuelos were the only two individuals outside, but then he realized someone was standing behind Soria. Schecht observed the third individual walk behind Soria, then turn around and walk away. Schecht called to the third individual and, when he turned around, Schecht recognized him as defendant. Schecht testified that defendant was wearing a red jacket, a red Cincinnati Reds hat tilted to the left, and a red bandanna on the left side of his pants or belt loop. Schecht knew that, by court order, defendant was not allowed to have contact with any other gang members, specifically Banuelos. Banuelos had admitted to Schecht that he was a gang member; additionally, Schecht has had numerous contacts with Banuelos. He also noted that Banuelos wears gang colors and is usually with or associated with other gang members.

Schecht next testified regarding gang contact cards, which are used to keep a record of contacts between officers and gang members. One card reflected that on August 27, 1999, an officer had a contact with Banuelos, defendant, and another gang member. That contact resulted in both Banuelos and defendant being charged with unlawful possession of cannabis and the other gang member being served with a failure-to-appear warrant. Another card reflected that on September 24, 1999, Schecht and his partner had a contact with Soria at approximately 11 p.m. Also noted on the card was that Soria was with defendant, who had a court order for no gang contact. Soria admitted being a Latin Counts gang member to Schecht, and defendant was arrested. A third card reflected that on June 4, 1999, three other officers had a contact with Soria, who was with defendant and another individual, and the officers issued loitering tickets. A fourth contact card reflected that on September 3, 1999, Banuelos, who was with defendant and another individual, was wearing gang colors and loitering. Banuelos was issued a ticket for loitering.

Schecht opined that, based on previous contacts with Banuelos and his associates, previous records, and the area where Banuelos was observed, Banuelos was a Latin Counts gang member on September 24, 1999. Schecht also opined that Soria was a Latin Counts gang member on September 24, 1999. He based his opinion on Soria's style of dress, location, and contacts prior to and since September 24.

Schecht also testified regarding his conversation with defendant on September 24, 1999. Defendant admitted to Schecht that he knew he had a no-gang-contact order and was not supposed to be with Soria or Banuelos but explained to Schecht that he was waiting for a ride from someone named Robert. Schecht noticed defendant's breath emitted an odor of alcohol. Schecht knew that defendant was under the age of 21 and knew defendant had a no-gang-contact order, so he placed defendant under arrest.

The parties rested, and the trial court granted defendant's motion for a directed finding as to the alcohol offense but denied the motion as to the unlawful-contact offense. On March 28, 2000, the trial court found defendant guilty of committing the offense of unlawful contact with a street gang member. Following the denial of his posttrial motion, defendant timely appeals.

We will first address the constitutionality of the statute under which defendant was charged and convicted because, in the event that the statute at issue is declared unconstitutional on its face, the ultimate outcome would be to vacate defendant's conviction based upon that statute. See People v. Zeisler, 125 Ill.2d 42, 48, 125 Ill.Dec. 845, 531 N.E.2d 24 (1988) (noting that the doctrine of void ab initio declares an unconstitutional statute null and void as of the date of its enactment, "which results in the court's vacating a conviction based upon such statute"); see also People v. Wright, 194 Ill.2d 1, 24, 251 Ill.Dec. 469, 740 N.E.2d 755 (2000).

The statute, section 25-1.1 of the Criminal Code of 1961 (the Criminal Code) reads, in relevant part:

"(a) A person commits the offense of unlawful contact with streetgang members when:

(1) He or she knowingly has direct or indirect contact with a streetgang member as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act after having been sentenced to * * * supervision for a criminal offense with a condition of such sentence being to refrain from direct or indirect contact with a streetgang member or members[.]" 720 ILCS 5/25-1.1 (West 1998).

Our review of the merits of defendant's constitutional challenge is guided by the following principles. A statute is presumed to be constitutional, and the party challenging it bears the burden of establishing its unconstitutionality. Wright, 194 Ill.2d at 24, 251 Ill.Dec. 469, 740 N.E.2d 755; People v. Jung, 192 Ill.2d 1, 4, 248 Ill.Dec. 258, 733 N.E.2d 1256 (2000). A reviewing court has a duty to construe a...