People v. Leonard
| Decision Date | 26 May 2009 |
| Docket Number | No. 3-07-0780.,3-07-0780. |
| Citation | 391 Ill. App.3d 926,911 N.E.2d 403 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Finis E. LEONARD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Jeff Terronez, State's Attorney, Rock Island, Terry A. Mertel, Deputy Director, Judith Z. Kelly (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.
Defendant Finis Leonard was convicted by a jury of the offenses of habitual armed criminal and unlawful possession of a weapon by a felon and sentenced to concurrent terms of imprisonment of 30 years and 10 years, respectively. He appealed. We affirm.
In April 2006, defendant Finis Leonard was charged by information with the offenses of armed habitual criminal (count I) and unlawful possession of a weapon by a felon (count II). 720 ILCS 5/24-1.7(a), 24-1.1(a) (West 2006). Count I alleged that Leonard possessed a firearm and had been convicted of three qualifying offenses between 1998 and 2004, including unlawful possession of a weapon by a felon, aggravated discharge of a firearm, and unlawful possession with intent to deliver a look-alike substance. A jury trial ensued.
The State's first witness was Halbert Jackson. Outside the jury's presence, Jackson informed the trial court that he did not remember the substance of a statement he gave to the police implicating Leonard and that he wanted to exercise his right against self-incrimination. Jackson explained to the court that at the time he made the statement to the police, he had a drug problem and was not sober. The trial court replied that "[b]ad memory, foggy memory, drug infested memory are not Fifth Amendment issues." In the jury's presence, Jackson proceeded to testify that he knew Leonard, that while he was in jail on an unrelated offense the police had asked him about an AR-15 firearm, and that he did not remember what he told the officers. The transcript from the interview did not refresh his recollection.
The transcript, which the trial court admitted, indicated that Jackson told the police that Leonard was in possession of an AR-15 firearm which was located under the couch in Denise Taylor's living room. During his testimony, Jackson repeatedly stated that he could not remember the statement he gave the police, that he "was not sober at the time" and that he had drug problems. The trial court allowed the State to treat Jackson as a hostile witness, to which defense counsel did not object. Jackson also testified that he could not remember being in jail or what he told the police about Leonard. He stated that he did not remember seeing the firearm in People's Exhibit No. 1 or seeing Leonard with a similar firearm. Throughout his testimony, Jackson continued to deny that he remembered the statements he made to the police, although he did acknowledge making a statement. Jackson also stated that he was testifying only because he was subpoenaed and would have preferred not to testify.
Two Rock Island County police officers testified that they interrogated Jackson at the Rock Island County jail and that, based on his statements, obtained and executed a search warrant on Denise Taylor's home, where they recovered an AR-15 firearm and ammunition. They also discovered an order of protection during the search that prohibited Leonard from being at the residence. There was nothing recovered from the home with Leonard's name or anything indicating that he lived there.
Denise Taylor testified that she dated Leonard, that he would occasionally stay at her house, and that he had been at her home earlier the day of the search. Her two daughters lived with her, her son visited several times a week, and her children's friends also visited. She did not know how the AR-15 firearm was brought into her house. At some point, she had seen a gun in a car in which Leonard and another man were sitting but could not identify People's Exhibit No. 1 as the gun she saw. Taylor acknowledged that she had a prior conviction for felony theft and was charged with unlawful use of a weapon by a felon after the AR-15 firearm was discovered in her home. As part of her plea agreement for the latter charge, she was sentenced to conditional discharge.
Larry Horton testified that Leonard had shown him the AR-15 firearm at Taylor's house, that he had seen Leonard with the gun one week before the police search, and that he had seen Leonard with the gun in a car. Horton acknowledged that he was in jail for possession of a firearm as a felon and that he had not been promised anything in exchange for his testimony, but that he hoped he would receive a lesser sentence.
Finis Leonard testified that he did not live with Taylor but had often spent the night at her house until December 2005, when he and Taylor stopped dating. He continued to go to Taylor's home when she was at work to check on her daughters. He stated that Taylor's children always had friends over and had turned the place into "a party house." He denied ever seeing the AR-15 that was People's Exhibit No. 1. On cross-examination, the following occurred:
Following the close of evidence and arguments, the jury deliberated and returned guilty verdicts on both counts. Leonard was subsequently sentenced to concurrent terms of imprisonment of 30 years for armed habitual criminal and 10 years for unlawful possession. He appealed.
Leonard raises several issues on appeal. He challenges his conviction for the offense of armed habitual criminal as violative of the prohibition against ex post facto laws, asserts that he was denied a fair trial when Jackson's prior statement to police was admitted as impeachment and as substantive evidence, and argues that the State committed plain error in cross-examining him about the veracity of other witnesses.
We first address whether Leonard's conviction for the offense of armed habitual criminal violates the ex post facto clauses of the United States and Illinois constitutions. Leonard argues that because his prior convictions were an element of the offense of armed habitual criminal and occurred before that offense was enacted, his conviction violates the federal and state constitutional prohibitions against ex post facto laws.
Section 24-1.7(a) of the Criminal Code of 1961 (Criminal Code) provides:
"(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; aggravated discharge of a firearm * * *;
(3) any violation of the Illinois Controlled Substances Act [(720 ILCS 570/100 et seq.)] * * * that is punishable as a Class 3 felony or higher." 720 ILCS 5/24-1.7(a) (West 2006).
Both the Illinois and United States Constitutions prohibit ex post facto laws. Ill. Const.1970, art. I, § 16; U.S. Const., art. I, § 9, cl. 3; § 10, cl. 1. An ex post facto law is one that (1) makes criminal and punishable an act innocent when done; (2) aggravates a crime, or makes it greater than it was when committed; (3) increases the punishment for a crime and applies the increase to crimes committed before the enactment of the law; or (4) alters the rules of evidence to require less or different evidence than required when the crime was committed. People v. Morgan, 377 Ill.App.3d 821, 823, 317 Ill.Dec. 339, 881 N.E.2d 507, 508-09 (2007), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648, 650 (1798). The prohibition against ex post facto laws is founded on the basis of a person's right to have fair warning of conduct giving rise to criminal penalties and...
To continue reading
Request your trial
-
People v. Kennebrew
...was present for cross-examination but defendant did not question her about the alleged sexual act); People v. Leonard, 391 Ill.App.3d 926, 934, 331 Ill.Dec. 582, 911 N.E.2d 403 (2009) (witness is generally considered subject to cross-examination when he or she takes the stand and willingly ......
-
People v. Ruback
...prior statements to the police, in which she implicated the defendant in the sexual misconduct. See People v. Leonard, 391 Ill.App.3d 926, 331 Ill.Dec. 582, 911 N.E.2d 403 (2009) (a party may attack a hostile witness by impeaching her with evidence of a prior inconsistent statement). The St......
-
People v. Evans
...oath and willingly answers questions and the opposing party has an opportunity to cross-examine him. People v. Leonard, 391 Ill.App.3d 926, 934, 331 Ill.Dec. 582, 911 N.E.2d 403 (2009). ¶ 47 In this case, Lindsey was given “use-immunity” so that his testimony could not be used against him. ......
-
People v. Davis
...before the jury and causing him prejudice. We review the constitutionality of a statute de novo. People v. Leonard, 391 Ill.App.3d 926, 931, 331 Ill.Dec. 582, 911 N.E.2d 403 (2009), citing People v. Malchow, 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). A statute is presumed......