People v. Lee
| Citation | 127 N.E.3d 1009,2019 IL App (1st) 162563,431 Ill.Dec. 476 |
| Decision Date | 27 February 2019 |
| Docket Number | No. 1-16-2563,1-16-2563 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bill LEE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 1 Following a jury trial, the circuit court of Cook County convicted defendant, Bill Lee, of defacing identification marks of a firearm, aggravated unlawful use of a weapon (AUUW) based on not having a currently valid license under the Firearm Concealed Carry Act ( 430 ILCS 66/1 et seq. (West 2016) ), and aggravated unlawful use of a weapon based on not having a currently valid firearm owner's identification card. At defendant's trial, the court instructed the jury that the State was required to prove that defendant knowingly possessed the firearm. Over defendant's objection, the court further instructed the jury that the State was not required to prove defendant had knowledge of the defaced serial number. On appeal, defendant argues that the State did not provide sufficient evidence to prove beyond a reasonable doubt that defendant knowingly possessed a firearm with a defaced serial number and the trial court erred when it failed to instruct the jury that the State was required to prove defendant knew the firearm's serial number was defaced. Alternatively, defendant argues that he was deprived of a fair trial when the court answered a question from the jury and when the State introduced prejudicial testimony into evidence. For the reasons that follow we reverse the judgment of the trial court and remand for a new trial.
¶ 3 The State indicted defendant for the offense of defacing identification marks of a firearm and two counts of AUUW. Prior to trial, defendant filed a motion in limine to prevent any reference to defendant being involved in a gang or gang activity, which the State did not object to. Defendant's motion also sought to preclude any reference to the location of defendant's arrest being a high-crime area. The trial court allowed the State to elicit evidence that officers were in the location of defendant's arrest to investigate drug sales, but not to offer a blanket statement that it was a high-crime area. After opening arguments, the State presented its case-in-chief.
¶ 5 Officer Ricky Hughes testified that he was conducting surveillance for a controlled drug buy on the morning of June 15, 2014. Officer Hughes was working with a supervisor, five additional surveillance officers, and two officers working enforcement. While conducting surveillance, Officer Hughes saw a black Toyota Camry with tinted windows repeatedly drive down the block, past a McDonald's restaurant, without parking. Officer Hughes wrote down the license plate number of the Camry and saw the same vehicle pass him three times driving in the same manner of slowing to a near stop in the middle of the block, continuing southbound, and turning westbound. Officer Hughes radioed his partners to inform them that the black Camry was driving suspiciously. The fourth time the Camry passed by, Officer Hughes saw that it was followed by a tan Ford 500, and he decided to leave his fixed surveillance and follow the vehicles. After the cars turned westbound, the rear passenger window of the Camry lowered, and a passenger put an arm out of the window and pointed to an area by the curb. The Ford pulled over and parked where the arm pointed. The Camry continued westbound and Officer Hughes followed, passing the parked Ford. Officer Hughes's partners communicated to him on the radio that they were set up watching the tan Ford. Eventually, the Camry returned to where the Ford was parked and pulled up alongside it. After a few minutes, the Camry continued driving, and the Ford followed behind. Officer Hughes followed the cars for about one mile and radioed his team members so that they could maintain mobile surveillance. After a mile or so, Officer Hughes stopped following, and another officer radioed that he was following the Camry and Ford. When the Camry and Ford stopped, the officers set up fixed surveillance of the vehicles. Officer Hughes heard over the radio that some men exited the vehicles and two of the men removed handguns from the trunk, and he began driving toward the parked cars. He saw two individuals running and followed them in his car. After turning into an alley and exiting the vehicle, Officer Hughes saw the individuals jump a fence and run back toward the parked cars. Officer Hughes radioed his team members that the men were running back to the parked cars. Officer Hughes returned to his vehicle to put on his bulletproof vest when he saw defendant and another person running toward him in the alley. Officer Hughes drew his weapon and ordered them to stop, and they complied. Officer Hughes testified that defendant was wearing a white baseball shirt with blue sleeves. On cross-examination, Officer Hughes testified that he first observed defendant when defendant was running toward him in the alley and that he had not seen defendant in either vehicle. Officer Hughes did not recover any weapons from defendant and did not see either the Camry or the Ford make any traffic violations.
¶ 7 On the morning of June 15, 2014, Officer Mike Heinzel was working as an enforcement officer on a team conducting a narcotics investigation. Officer Heinzel was in an unmarked squad car, wearing a marked police vest. He heard on the radio that Officer Hughes was following a black Toyota Camry and tan Ford sedan, and he followed a short distance behind for security. Eventually Officer Heinzel heard on the radio that two men put guns in their waistbands, and he drove to where the Camry and Ford were parked. Several men were standing near the parked vehicles. As Officer Heinzel arrived and opened his door, the men immediately ran away. Officer Heinzel saw defendant run away and lost sight of defendant until defendant came back over a gate near where the vehicles were parked. Defendant and another man were 25 feet away from Officer Heinzel when he saw them exit the gangway. Officer Heinzel had a full frontal view of defendant as defendant exited the gangway. Defendant was wearing a white baseball shirt with blue sleeves, though Officer Heinzel could not remember what kind of pants defendant was wearing. Defendant had a gun in his hand when he came out of the gangway and saw the officers before he dropped the gun to his left and ran away from the officers. The man with defendant also came to the gate at the gangway, hopped the gate, and threw a gun over the gate. Officer Heinzel then went to retrieve the guns while his partner, Officer Goins, gave chase.
¶ 8 Officer Heinzel saw a small black revolver where he witnessed defendant toss a gun and a silver handgun on the other side of a chain-link fence gate. Officer Santiago arrived on the scene, and she recovered the black revolver while Officer Heinzel recovered the silver handgun. Officer Santiago handed the black revolver to Officer Heinzel, who inspected the weapon and unloaded it. He discovered both guns had been loaded with five live rounds each. Officer Heinzel then put the guns in separate pockets and the ammo from each gun in separate pockets as well. He inventoried them when he arrived at the police station later. When inventorying the weapons, Officer Heinzel saw that the serial number was damaged on both guns.
¶ 10 Officer Joseph Serio testified that he is an evidence technician working in the Chicago Police Department firearms laboratory. Officer Serio inspected the black revolver recovered by Officer Heinzel. Officer Serio testified that the revolver was a .38 special Smith and Wesson model 37-2 with five live cartridges. The revolver had scratches and marks along the serial number at the butt of the weapon "consistent with an attempt to obliterate the serial number using some type of small punch or hand tool." Officer Serio was able to fully read the serial number on the weapon after he cleaned the revolver and used a piece of fine sand paper to remove the debris caused by the scratches. On cross-examination Officer Serio testified that it is possible for a handgun to receive abrasions and scratches on the serial number through normal wear and tear, but that the markings on this revolver were not consistent with general wear and tear. The markings appeared to be intentional.
¶ 11 Officer Serio testified there were two kinds of ammunition recovered with the revolver: three full metal jacket bullets and two hollow point bullets. Officer Serio was asked "What is a hollow point bullet?" He testified a The prosecutor asked Officer Serio to show the two types of bullets to the jury "so they can see the difference." Officer Serio stated: "Hollow points, it's hollowed on the inside when it—it's hollow in the center and when it hits the target, it opens up." The prosecutor asked Officer Serio to "describe for the ladies and gentlemen of the jury what that bullet looks like once it's opened up?" Officer Serio responded to that question as follows: The prosecutor asked Officer Serio to "compare the circumference of the hollow point bullets once it opens up to something?" He testified: ...
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