People v. McLaurin

• Decision Date: 15 May 2008
• Docket Number: No. 1-05-1149.,1-05-1149.
• Citation: 894 N.E.2d 138
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie McLAURIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

894 N.E.2d 138

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie McLAURIN, Defendant-Appellant.

No. 1-05-1149.

Appellate Court of Illinois, First District, Fourth Division.

May 15, 2008.

Patricia Unsinn, Deputy Defender, Chicago (Manuel Serritos, of counsel), for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (James E. Fitzgerald, Annette Collins, Allison Brunell Sise, of counsel), for Plaintiff-Appellee.

Presiding Justice NEVILLE delivered the opinion of the court:

After a jury trial, the defendant, Willie McLaurin, was convicted of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)(West 2004)) and unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)), and he was sentenced to six years' imprisonment. On appeal, he contends (1) that his constitutional and statutory right to be present at his trial was violated when, without his consent or knowledge, he was excluded from discussions of the jury's five notes that were sent to the trial judge during the jury's deliberations; and (2) that he was denied his due process right to a fair trial by an impartial jury when the trial court permitted the sheriff to have an ex parte discussion with the deadlocked jury.

BACKGROUND

McLaurin was charged in an information with aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2004)) and unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2004)). His prior felony conviction was predicated upon a federal bank robbery conviction. After pretrial motions were disposed of by the court, the defendant's case proceeded to trial.

The State's Case

At trial, Chicago police officer John O'Carroll testified that on August 17, 2004, at 2:30 a.m., he and his partner, Officer Langle, turned their MARS lights on and pulled a car over on 15th Street because the car's driver and front seat passenger were not wearing seat belts.¹ Officer O'Carroll testified that as he and his partner sat in their patrol car, which was parked behind the car they had stopped, he observed a black male in the backseat moving back and forth, his head was turning back and forth, and his hands were moving in front of his body. Based upon the black male's movements in the backseat, Officers O'Carroll and Langle exited their patrol car. Officer O'Carroll explained that after he exited his vehicle on the passenger side of both vehicles, he pulled his weapon and while holding his flashlight in his other hand, he announced, "Chicago police officers. Let me see your hands." When he and his partner were 10 to 15 feet from the stopped car, Officer O'Carroll testified that the man in the backseat, whom O'Carroll identified as the defendant, jumped out on the driver's side and began running eastbound on 15th Street. Officer O'Carroll radioed for backup, gave chase, and followed McLaurin down 15th Street.

On cross-examination, Officer O'Carroll testified (1) that the car they stopped was a two-door vehicle, and (2) that McLaurin had to push the driver's seat forward before he could jump out of the car. When asked how he could radio for backup while holding a flashlight in one hand and a gun in the other, Officer O'Carroll stated that he "probably did that right away — when he jumped out, I grabbed the radio and said that." During further questioning, the officer admitted that he could not radio in with the flashlight in his hand and that he did not really recall where his flashlight was that night. According to Officer O'Carroll, after he exited his vehicle, he pulled his weapon, radioed for help, and began chasing McLaurin.

As he ran down the street, Officer O'Carroll stated that he saw McLaurin reach in front of his body and throw a gun into the gutter under a van parked on 15th Street. While Officer O'Carroll continued chasing McLaurin, he turned south on Lawndale Avenue and a second police car arrived. With Officer O'Carroll behind McLaurin and with a second squad car closing in on him, Officer O'Carroll testified that McLaurin complied with his order to stop and lay down in the street. Officer O'Carroll stated that another officer, Officer Daily, handcuffed McLaurin while O'Carroll kept his gun on McLaurin.

While Officer Daily stayed with McLaurin in the second squad car, Officer O'Carroll returned to the van and retrieved the "heavy, blue stainless steel" gun from the gutter. Officer O'Carroll testified that the gun he retrieved that night was a High Point 9-millimeter semiautomatic and that it had one bullet in the chamber. After retrieving the gun, Officer O'Carroll returned to the car that he and his partner had originally pulled over. Officer O'Carroll and his partner ticketed and arrested the driver for driving on a suspended license, for driving without insurance, and for not wearing a seatbelt. Two other passengers, Ms. Arlena Jones and her 18-month-old child, were also in the car. Officer O'Carroll also testified that he and the other officers searched the car and did not find any other guns. When he returned to the police station, Officer O'Carroll inventoried the weapon, but he did not request that the weapon be tested for fingerprints.

Next, Officer Edward Langle, O'Carroll's partner, corroborated Officer O'Carroll's testimony that the officers pulled the car over and that McLaurin jumped from the car and ran away. However, Officer Langle explained that he stayed with the car and its remaining occupants, so he did not see what happened after Officer O'Carroll started chasing McLaurin. Officer Langle testified that Officer O'Carroll returned to the car they had pulled over with a gun but he did not see the gun being tossed or being recovered. Finally, Officer Langle testified that he and his partner did not recover the gun from the backseat of the car that they had pulled over.

Officer Daily testified that on August 17, 2004, he had been a policeman for just five months. He and his partner, Officer Tillman, were patrolling 16th Street near Ridgeway Avenue, close to Officer O'Carroll's location, when they responded to Officer O'Carroll's radio call for assistance. Officer Daily stated that he drove north on Lawndale Avenue and saw McLaurin running from Officer O'Carroll who had his weapon drawn. According to Officer Daily, Officer O'Carroll told McLaurin to get on the ground and, when McLaurin got down, Officer Daily stated that he handcuffed McLaurin and put him inside his squad car. While Officer Daily sat with McLaurin, Officer O'Carroll walked back up Lawndale Avenue. Officer Daily stated that Officer O'Carroll went about 20 feet to a parked van, shouted, "Gun," and picked up a gun before leaving to return to his own squad car on 15th Street.

Outside the presence of the jury, the trial court admitted People's group exhibit 1 (weapon and bullet) and group exhibit 2 (federal conviction for armed bank robbery in case number 99 CR 776-2) into evidence and heard the testimony of Jackine Austin, a defense witness. Although he was not sworn, Austin, the driver of the car stopped by police on August 17, 2004, was called by the defense and stated to the trial court that, if he were called to testify, he would invoke his fifth amendment right to remain silent to avoid making incriminating statements. When the jury returned to the courtroom, the trial court received People's group exhibits 1 and 2, the State rested, and defense counsel's motion for a directed verdict was denied.

The Defendant's Case

Ms. Arlena Jones testified that on August 17, 2004, at 2:25 a.m., her boyfriend, Jackine Austin, was driving and she was in the front passenger seat of his car. Ms. Jones testified that McLaurin, whom she described as a family friend, was sitting in the backseat of the car with her baby who was in his car seat. The police pulled Austin's car over and Ms. Jones recalled that two officers approached the car from the rear, and that one officer was on each side of the car. Ms. Jones testified that she rolled her window down and one of the officers asked if anyone in the car had a license. She told the officers that she had one but not with her and McLaurin also told the officers that he had a license. Ms. Jones further testified that the police asked everyone to get out of the car and that, while she was getting her baby out of the car seat, the police told Austin and McLaurin to put their hands on the hood of the car. Ms. Jones was holding her baby and watching from approximately five feet away as one of the officers patted down Austin and McLaurin. Ms. Jones testified that the policeman who patted the men down did not find any weapons or contraband.

However, according to Ms. Jones, while the men were being searched by one officer, the other officer searched the car. Ms. Jones testified that the other officer found a gun in the backseat of the car. Ms. Jones testified that McLaurin never ran from the car and that both men stood with their hands on the hood while the officers searched them and the car. Ms. Jones stated that she did not see the gun before the officer found it; that she did not know if it was in the car that night; and that she did not see McLaurin with the gun on August 17, 2004. Finally, Ms. Jones testified that she knew that the gun belonged to her boyfriend, Austin.

The State's Rebuttal Case

The State called Officer Langle in rebuttal. Officer Langle testified that he and his partner, Officer O'Carroll, pulled a car over on August 17, 2004, ran the license plate, and noticed that the rear seat passenger was moving back and forth. As he and O'Carroll approached the stopped car, Officer Langle stated that McLaurin jumped out of the backseat and started running. While his partner was chasing McLaurin, Officer Langle secured the stopped car by telling the driver to get out and to lie down on the ground. When the driver complied, Officer Langle handcuffed him and took him into custody before getting the female passenger...