People v. Lewis

• Decision Date: 30 June 2014
• Docket Number: No. 1–12–2126.,1–12–2126.
• Citation: 14 N.E.3d 1148
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Joseph LEWIS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

14 N.E.3d 1148

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Joseph LEWIS, Defendant–Appellant.

No. 1–12–2126.

Appellate Court of Illinois, First District, Sixth Division.

June 30, 2014.

Michael J. Pelletier, Alan D. Goldberg, and Kate E. Schwartz, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Andrea V. Salone, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Defendant Joseph Lewis appeals his conviction of unlawful use of a weapon by a felon (UUW by a felon) after a jury trial. 720 ILCS 5/24–1.1(a) (West 2010). Defendant was sentenced to five years' imprisonment as a Class 2 offender. 720 ILCS 5/24–1.1(e) (West 2010). On appeal, Lewis contends the trial court erred in sentencing him as a Class 2 offender for two reasons: (1) the State failed to provide notice pursuant to section 111–3(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111–3(c) (West 2010)) that the State would seek a Class 2 sentence; and (2) the trial court engaged in double enhancement by applying his one prior conviction for aggravated robbery, both as an element of his offense and to enhance his sentence. Defendant further contends the trial court erred in instructing the jury that it could consider his prior aggravated robbery conviction in determining whether the State proved the UUW by a felon charge beyond a reasonable doubt. For the reasons which follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On August 15, 2011, defendant was charged by information with one count of UUW by a felon pursuant to section 24–1.1(a) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24–1.1(a) (West 2010)) and two counts of aggravated unlawful use of a weapon (720 ILCS 5/24–1.6(a) (West 2010)).¹ Specifically, defendant's information as to the UUW by a felon charge alleged that he committed the “offense of unlawful use or possession of a weapon by a felon” as he “knowingly possessed on or about his person any firearm, to wit: a shotgun, after having been previously convicted of the felony offense of aggravated robbery, under case number 08CR17706.” The two aggravated unlawful use of a weapon counts were nol-prossed prior to trial. The record discloses the following facts.

¶ 4 Officer John Sego (Sego) of the ninth district of the Chicago police department testified that on July 27, 2011, at 1:30 a.m. he was on routine patrol with his partner, Officer Michael Alaniz (Alaniz), on the middle of the block between 4700 to 4800 on Winchester when he heard three loud shots. Sego and Alaniz lowered the windows of the police vehicle and Alaniz began driving at a “real slow pace down Winchester.” Two minutes later, Sego received a call over the police radio of “male with a gun, shots fired” at 4839 South Winchester. Sego and Alaniz were half a block away from the location when they responded to the call. Officer Robert Caulfield along with his partner Officer David Carey also responded to the call. Sego testified Alaniz “pulled up to roughly 4835 South Winchester” and both officers exited the vehicle. The officers approached the front of 4839 South Winchester, looked down the gangway on the south side of the residence, and observed defendant standing at the end of the gangway holding a shotgun to his side. No lighting illuminated the gangway, however, Sego testified he could see defendant's face. Both officers announced their office. The defendant then ran.

¶ 5 Sego further testified the officers then pursued defendant down the gangway, with Alaniz running in front of him. Defendant ran to the rear of the residence, up a flight of stairs, and through the back door of an enclosed porch that led to the first-floor apartment. The officers pursued defendant up the back stairs and Alaniz then kicked the porch door open. Sego testified he could see defendant standing in the door way of the first-floor apartment. Sego observed defendant enter the unit. The officers followed defendant into the illuminated residence, where Sego observed defendant “pitch the shotgun to the left side into an adjacent bedroom” next to the kitchen. The officers then placed defendant in custody. Sego testified Chicago police officer Robert Caulfield (Caulfield), who was “working another beat car,” was “right behind” him. Sego indicated to Caulfield that there was a shotgun on the bedroom floor. Caulfield recovered the shotgun and a spent shell casing from inside the weapon.

¶ 6 Sego testified that defendant was removed from the apartment and then placed in his police vehicle. After advising defendant of his Miranda rights, and defendant acknowledging those rights, Sego testified he asked defendant “who he was shooting at.” Sego testified that defendant's response was, “we were just having fun with it, I wasn't popping at anyone.” Sego testified “popping” is “a term used for shooting at one particular individual or place.” In addition, Sego testified that while he and his partner were chasing defendant they did not observe anyone else inside the residence. After defendant was placed under arrest Sego testified that two of the residents of 4839 South Winchester, James McCain (McCain) and Ms. McCain, McCain's mother,² approached him, but they were not in the bedroom where the shotgun was located.

¶ 7 On cross-examination, Sego testified that when he observed defendant in the gangway, defendant was approximately 50 feet away from him. Once defendant gave chase, defendant was out of Sego's sight-line for three to four seconds. Sego did not have his weapon drawn, but believed his partner did have his weapon drawn when he was inside the residence. Sego testified that someone in the residence other than defendant may have had a weapon. When asked whether any of the officers on the scene searched the entire residence, Sego testified he did not know.

¶ 8 Officer Michael Alaniz testified consistently with Sego's testimony. On July 27, 2011, at 1:30 a.m. while on routine patrol in the 4700 block of South Winchester he heard three loud gunshots. Alaniz proceeded driving his unmarked police vehicle at approximately 10 to 15 miles per hour down Winchester with the windows down and the headlamps off to achieve an “element of surprise.” He stopped the vehicle at 4800 South Winchester because he received a call over the police radio indicating shots were fired at 4938 South Winchester. Once he arrived at the location, he and Sego exited the vehicle and approached the residence. Alaniz observed defendant standing at the end of the gangway holding a shotgun. Alaniz could not view defendant as he rounded the rear of the building because defendant was already in the back of the building. Once Alaniz was 10 to 15 feet away from defendant in the back of the building he observed defendant enter the residence through the back door. When Alaniz reached the back door, he proceeded to “kick the door in.” Alaniz observed defendant go into the “actual house,” which was the first-floor apartment of a two-flat building. Alaniz testified defendant entered an illuminated kitchen and observed defendant was still in possession of the shotgun. Alaniz followed defendant into the kitchen with Sego behind him. Alaniz then observed defendant toss the shotgun into a bedroom, which was adjacent to the kitchen. Alaniz testified at the time defendant tossed the shotgun into the bedroom, he did not know whether any one was in the bedroom. He later learned the bedroom was not occupied. Alaniz testified he, along with Sego, placed defendant in custody while in the kitchen. Alaniz further testified that as he was placing defendant in custody, Caulfield entered the residence and he informed Caulfield that the shotgun was in the bedroom. Alaniz further testified 8 to 10 seconds elapsed from the moment he first observed defendant standing in the gangway with the shotgun until he detained defendant in the kitchen of the residence.

¶ 9 On cross-examination, Alaniz testified that when he approached 4839 South Winchester he had his weapon drawn. Alaniz further testified that prior to kicking it in, he did not know whether the porch door was locked. Alaniz's weapon was not drawn when he was in the kitchen of the residence. He did not search the remainder of the residence.

¶ 10 Officer Robert Caulfield testified he was working and assigned to the ninth district on the night of July 27, 2011. He was working with Officer David Carey when he received a call of shots fired at 4839 South Winchester at 1:30 a.m. He and his partner responded to the call. Upon arriving at the location, Caulfield testified he observed fellow officers Sego and Alaniz chasing an individual down a gangway. Caulfield exited his vehicle and gave chase toward defendant, following the officers down the gangway into the back door of the first floor apartment. Upon entering the apartment, Caulfield testified that Alaniz told him, “Rob, there is a gun in the bedroom.” Caulfield then retrieved a Remmington 870, 20–gauge shotgun from the bedroom that was directly off of the kitchen. Caulfield testified at the time he retrieved the weapon, Sego and Alaniz were placing the subject into custody. Caulfield cleared the weapon to ensure it had no live rounds and observed one spent 20–gauge shell casing in the weapon. Caulfield identified defendant in court as the subject he observed being placed into custody. Caulfield further identified the shotgun in court as the weapon he recovered from 4839 South Winchester.

¶ 11 On cross-examination, Caulfield testified he did not request an evidence technician come to the apartment to examine the scene, nor did he request the weapon be tested for DNA or fingerprints.

¶ 12 The parties then stipulated that defendant had a prior felony conviction in case number 08 CR 17706. The State rested its case and defendant moved for a directed verdict which was denied.

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