People v. Johnson

• Decision Date: 08 January 2009
• Docket Number: No. 3-07-0404.,3-07-0404.
• Citation: 901 N.E.2d 455,387 Ill. App. 3d 780
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond JOHNSON, Honorable Stuart P. Borden, Defendant-Appellant. Judge, Presiding.
• Court: United States Appellate Court of Illinois

901 N.E.2d 455

387 Ill. App. 3d 780

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Raymond JOHNSON, Honorable Stuart P. Borden, Defendant-Appellant. Judge, Presiding.

No. 3-07-0404.

Appellate Court of Illinois, Third District.

January 8, 2009.

Melissa Maye, Office of State Appellate Defender, Ottawa, IL, for Appellant.

Terry A, Mertel, State's Attorneys Appellate Prosecutor, Justin A. Nicolosi, State's Attorneys Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Atty., Peoria, IL, for Appellee.

Justice CARTER delivered the Opinion of the court:

After a stipulated bench trial, defendant was found guilty of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)), aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2006)), and unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2006)) and was sentenced to concurrent terms of imprisonment of 12 years, 7 years, and 7 years, respectively. Defendant appeals his convictions, arguing that the trial court erred in denying his pretrial motion to suppress a gun that was recovered from a third party's vehicle and his pretrial motion to suppress his statements to police. Defendant also argues that his conviction for aggravated unlawful use of a weapon must be vacated under one-act, one-crime principles. We affirm the trial court's denial of defendant's motion to suppress the gun and defendant's motion to suppress his statements to police. We vacate defendant's conviction and sentence for unlawful possession of a weapon by a felon and remand this case to the trial court to amend the sentencing order accordingly.

FACTS

Defendant was charged with the above-listed offenses in connection with the July 9, 2006, shooting of Calvin Powell in Peoria, Illinois. Count I of the indictment alleged that on or about July 9, 2006, defendant committed the offense of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)), a Class X felony, in that in committing a battery, he knowingly and without legal justification caused an injury to Calvin Powell by means of the discharging of a firearm in that he shot Calvin Powell with a handgun. Count II alleged that on that same date, defendant committed the offense of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2006)), a Class 2 felony, in that defendant knowingly carried on or about his person and immediately accessible to him an uncased loaded handgun at a time when he was not on his own land or in his own abode or fixed place of business and defendant had been previously convicted of a felony in this state. Count III alleged that on that same date, defendant committed the offense of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2006)), a Class 3 felony, in that defendant knowingly possessed on or about his person a firearm having been previously convicted of a felony under the laws of this state or any other jurisdiction.

During the pretrial stage of this case, defendant filed a motion to quash arrest and suppress evidence (the motion to suppress the gun). In the motion, defendant alleged that he had been subjected to an illegal seizure in violation of the United States and Illinois Constitutions. Defendant sought suppression of all physical evidence and statements that were recovered as a result of the alleged illegal seizure. Although the motion did not articulate the items that defendant sought to have suppressed with any specificity, it appears from the record that with the first motion to suppress, defendant was primarily seeking to suppress as evidence a gun that was recovered from under the passenger seat of a vehicle belonging to a third party, Lawrence Thomas.

A hearing was held on the motion to suppress the gun. At the hearing, defendant called Peoria police officer Chris Hanley to the witness stand. Hanley testified that on July 9, 2006, at about 3 or 3:30 a.m., he responded to a report of a shooting on Jefferson Street in Peoria. Hanley was about six blocks away at the time and was on patrol in a marked police squad car. Upon approaching that address, Hanley saw two male subjects get into a vehicle parked in the parking lot of the Friendship House in an area near where the shooting took place. The Friendship House was not open for business at that time. As the vehicle left the parking lot, Hanley followed the vehicle, without activating his squad car's overhead lights. Hanley did not see the vehicle commit any traffic violations and the vehicle did not attempt to flee. After a couple of blocks, the vehicle pulled into the Taft Homes and parked in a parking spot. Hanley parked his squad car and illuminated the vehicle with his spotlight. Hanley did not activate his overhead lights and did not block the vehicle into the parking lot with his squad car. The driver and a passenger got out of the vehicle. Defendant was the passenger. Lawrence Thomas was the driver.

Hanley got out of his vehicle and approached defendant and Thomas. He did not draw his gun. Hanley asked defendant and Thomas if they knew anything about the shooting. Defendant and Thomas seemed nervous and did not say much to Hanley. Hanley asked defendant and Thomas what they were doing in the area. Thomas responded that he worked for Caterpillar and that he did not get involved in criminal activity. Defendant stated that they were visiting somebody in the area but did not go into specifics of who they were visiting or where. Defendant and Thomas did not ask if they were free to leave, and Hanley testified that the two men were not free to leave at that point.

Officer Buhl, Officer Goforth, and Lieutenant Adams arrived at Hanley's location. Upon being asked, defendant and Thomas consented to a search of their persons. Hanley testified that defendant and Thomas seemed very nervous about the whole thing. Nothing illegal was found on Thomas or defendant's person.

Hanley asked defendant and Thomas for identification. After receiving the identification, Hanley ran a warrant check on each subject, with negative results. Hanley could not remember whether he returned the identification cards to either subject at that time. Hanley asked Thomas for permission to search the vehicle. Thomas, who was the driver and the owner of the vehicle, refused. Lieutenant Adams instructed Hanley to detain the two subjects, secure them in the back of a squad car, and to search the vehicle anyway. The officers did not obtain a warrant for a search of the vehicle. Hanley secured defendant and Thomas. He could not remember whether defendant and Thomas were handcuffed while in the back of the squad car. Upon conducting a search, Hanley found a .22-caliber handgun under the front passenger seat of the vehicle.

During the encounter, defendant and Thomas complied with the orders they were given by the police officers and did not try to flee. Neither subject ever asked if he was free to leave, and Hanley never told either subject that he was free to leave. After the gun was found, defendant and Thomas were taken to the police station for interrogation.

Following Hanley's testimony, defendant rested. The State called Peoria police lieutenant Jeff Adams to the stand. Adams testified that on July 9, 2006, at about 3:13 a.m., he was on patrol near the north end of Peoria when he heard a call come over the radio about a shooting that had occurred at 817 North Jefferson. Adams was just around the corner from where the shooting took place, so he went to the scene. In driving to the scene, Adams did not see anyone else out in the area.

Adams got out of his car and knocked on the front door of the house at that address. Officer Landwehr joined him at that time. A woman opened the door. When the officers stepped inside, they saw a man lying on the floor in a pool of blood. The woman told Adams that she had just heard some gunshots behind the house and that the man ran into the front door of the house stating that he had been shot.

Adams left Landwehr at that location to tend to the shooting victim and went outside, where he was joined by Sergeant Venzon and a couple of other officers. Adams told the other officers to go behind the house and to look for the location of the crime scene so that it could be secured and physical evidence could be gathered. Adams told Venzon to go inside with Landwehr to try to get information on who the possible suspects were so that they could put that information out over the radio.

Within two minutes after he had arrived at the scene, Adams heard on the radio that Officer Hanley was following a vehicle that had just left from the Friendship House. The Friendship House was about one or two houses down from where the shooting occurred. Adams left the scene of the shooting and went to back up Officer Hanley. Other than the police officers that Adams mentioned, no one else was out at that time. The businesses in the area all were closed. When Adams got to Hanley's location, the vehicle that Hanley was following had already stopped. Hanley had illuminated the vehicle with his spotlight and was talking to two gentlemen outside of the vehicle. Hanley told Adams that the two gentlemen had agreed to have their persons searched but were refusing to have the vehicle searched. Despite that refusal, Adams directed Hanley to search the vehicle. Adams felt that there was probable cause to search the area within the vehicle that the two gentlemen had direct access to based on what Officer Hanley had told him and because the vehicle was leaving from the area where the shooting had occurred within a short time later and at a time of night when no one else was out. At the time that he gave the direction to search the vehicle, Adams knew that defendant's and Thomas's identification had been verified, that there were no warrants out for either of them, that they had agreed to a search of their persons and nothing illegal was found, and that Thomas had...