People v. Oden

• Decision Date: 12 May 1994
• Docket Number: No. 5-92-0469,5-92-0469
• Citation: 633 N.E.2d 1385,261 Ill.App.3d 41,199 Ill.Dec. 394
• Parties: , 199 Ill.Dec. 394 The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. T.C. ODEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1385

633 N.E.2d 1385

261 Ill.App.3d 41, 199 Ill.Dec. 394

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. T.C. ODEN, Defendant-Appellant.

No. 5-92-0469.

Appellate Court of Illinois,

Fifth District.

May 12, 1994.

Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellant.

Robert Haida, State's Atty., St. Clair County, Belleville, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director Mary H. Doyle, Staff Atty., Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice RARICK delivered the opinion of the court:

Defendant, Thomas C. Oden, was charged in the circuit court of St. Clair County with unlawful use of weapons by a felon. (Ill.Rev.Stat.1990 Supp., ch. 38, par. 24-1.1.) The basis of the charge was that Oden was seen outside a nightclub holding an "Uzi-type" weapon. After a trial by jury, Oden was found guilty and sentenced to four years' imprisonment.

At trial, Sergeant Gregory Cox of the East St. Louis police department testified that on the night of June 23-24, 1991, he heard gunfire near the Bachelor's Lounge, a nightclub just down the street from Cox's residence. As he was leaving for work the following morning, he looked toward the Bachelor's Lounge, which he could see from his front porch. Cox saw defendant and defendant's brother John holding "Uzi-type" weapons, and he saw Jack Keel holding a sawed-off shotgun. All three were standing beside a parked car, between the car and the front door of the lounge.

Cox called in a report on his radio and told the dispatcher that he was "going in." As he ran to his car, the three men ran into the lounge. Cox sped to the front door of the lounge and radioed the dispatcher that he was going in without backup. As he got out of the car, the three came back out of the lounge. Cox drew his weapon and ordered all three to lie down. At this point, backup officers arrived. Defendant was handcuffed and taken inside. A subsequent search of the lounge produced two Uzis, a shotgun, and three pistols. Cox identified the Uzis and the shotgun as the weapons he had seen the three men holding outside the lounge.

Horace Smith, a neighbor of Cox's, testified that on June 24, 1991, between 6:15 and 6:30 a.m., he was on his way to work when he saw defendant in the doorway of the Bachelor's Lounge holding "an Uzi or a shotgun." Defendant tried to wave Smith down, but Smith did not stop because of the gun. Smith stopped at the police station to report "problems in the neighborhood." Smith continued on to work, but after a short while he returned home because he was worried about his neighborhood. Upon arriving home, he saw Cox coming out of his house. Cox walked to the lounge, and Smith went to get a State trooper. By the time the trooper got to the lounge, backup had arrived.

Detective Marion Hubbard testified that on June 24, 1991, he responded to a dispatch to assist Cox at the Bachelor's Lounge. Upon arriving, he saw Cox with three suspects in custody. Hubbard entered the lounge, where he found a sawed-off shotgun behind a door. Later, Officer William McGlown called Hubbard over to the bar, where he found two Uzis hidden in a beer-cooler box behind the bar. In addition, three pistols were found during a search of the bar.

Officer McGlown testified that on June 24, 1991, he assisted in a search of the Bachelor's Lounge. During the search, he found two Uzis in a beer-cooler box behind the bar.

Carlton Davis, owner of the Bachelor's Lounge and defendant's stepfather, testified that he did not own the two Uzis or the shotgun, nor did he own any of the pistols found during the search. He stated that both defendant and Keel were employees and had keys to the bar.

Alzada Carr testified that around 8:00 a.m. on June 24, 1991, a nephew ran up to her at her house and told her something was happening on the corner where the Bachelor's Lounge was located. She went outside where she could see the front door of the lounge and saw defendant and John Oden sitting on a car in front of the lounge. After five or ten minutes the police arrived. Prior to their arrival, Carr saw no guns.

Fred Mason, the East St. Louis police department jailer, testified that between 6:40 and 6:45 a.m. on June 24, 1991, he was driving to work when he saw defendant, John Oden, and Jack Keel. He waved at defendant and defendant waved back. Mason saw no one with a gun.

Officer Alicia Bruce testified that on June 24, 1991, between midnight and 7:00 a.m., she was sent to the Bachelor's Lounge three or four times. At 12:55 a.m., she responded to a complaint from John Oden and, upon arriving, discovered that he was injured. He stated that he had been shot, and he went to the hospital. At 2:58 a.m. defendant complained that shots had been fired at the Bachelor's Lounge. Upon responding, Bruce and her partner found defendant unarmed but saw fresh "bullet dents" in the rear quarter panel and window of a car parked in front of the lounge.

Officer James Jarrett testified that about 7:51 a.m. on June 24, 1991, he received a report of shots fired near the Bachelor's Lounge. He arrived around 8:00 a.m. and found two black males standing in front of the lounge. He asked them if any shots had been fired, and they indicated that shots had been fired earlier that night, but none had been fired recently.

Jessie Oden, defendant's brother, testified that several days prior to defendant's arrest he had been attacked by Arvell Mosley and two other men. Arvell Mosley chased Jessie Oden up the street and shot at him. He escaped and made his way safely back to the lounge. Later, Arrie Jenry Mosley, Arvell's grandmother and Cox's neighbor, shot at Jessie. Jessie Oden testified that although Arrie Mosley admitted shooting at him and trying to kill him, Cox arrested him instead.

Defendant testified that on the night of June 21, 1991, Arvell Mosley fired a pistol near the front door of the Bachelor's Lounge, and he made Mosley leave. Mosley later returned and struck defendant, but Mosley's grandmother came and took him away. Later that night, Arvell returned with some friends and did more shooting. Sammy Reeves entered the bar and drew a gun, and defendant defended himself with a baseball bat. When police arrived in response to his complaint, they arrested defendant and his brothers, Jessie and Larry.

On the night of June 23, 1991, defendant's house was burglarized. He took his family to Carlton Davis' house and then went to watch the lounge. After Davis closed the lounge around 11:00 p.m., defendant went to file a police report on the burglary of his house, returning to the lounge around 12:45 a.m. He saw that an air conditioner had been pushed out of a window. While he and John Oden put it back in the window, Jack Keel went to unlock the door. At about 12:50 a.m., shots were fired at them from Cox's front yard. Cox's son Damon, Arvell Mosley, and several others were in Cox's front yard at the time. Keel and the Oden brothers ran into the bar and called the police. Officer Bruce took a report from John Oden, and Sergeant Isadore Chambers took a report from defendant.

Several hours later, more shots were fired at the bar. T.C. Oden again called the police, and Bruce and Chambers again responded. John Oden had been shot and he went to the hospital, returning to the lounge around 4:45 a.m.

Sometime after dawn, the three men were outside sitting on a car when they saw Cox come out of his house, look at them, get in his car, and drive to the front of the lounge. Cox got out of his car, drew two guns, and forced all three men to lie on the ground. Numerous other officers arrived, and the three were taken into the bar and forced to lie down. Defendant stated that he saw police "pulling up guns from everywhere" and lining them up on the bar. Defendant denied ever having seen the guns before.

During deliberations, the jury gave the bailiff a note asking the following question:

"Can the jury have a copy of T.C.'s testimony?"

The court clerk telephoned the judge, who was in a meeting. The judge told her to inform the jury that they could not have a copy of defendant's testimony because it was not yet transcribed. Subsequently, the jury sent out another note asking the following questions:

"(1) Does the fact that a person knows weapons are present in a building constitute possession?

(2) If they're in a building where weapons are knowingly present, and if that person is in charge of said building, does it constitute possession?

(3) What is possession?"

The clerk gave these questions to the court reporter and left the courtroom. When she returned, the court reporter handed her a typewritten answer instructing the jury to rely on the instructions already given. The jury subsequently returned a verdict of guilty.

At the request of defendant's appellate counsel, a supplemental hearing was held on July 19, 1993, to determine whether Supreme Court Rule 608(a)(8) had been complied with. Rule 608(a)(8) provides that the record on appeal must contain the report of proceedings including, inter alia, communications from the jury during deliberations and responses and supplemental instructions to the jury. (134 Ill.2d R. 608(a)(8).) The trial court ruled that while it failed to comply with Rule 608, its responses to the jury were correct.

On appeal, defendant argues first that he was denied a fair trial by the trial court's refusal to answer the jury's questions. We agree.

Whether to issue supplemental instructions in response to questions from the jury rests with the discretion of the trial court. (People v. Batchelor (1990), 202 Ill.App.3d 316, 334, 147 Ill.Dec. 608, 620, 559 N.E.2d 948, 960; People v. Stevenson (1990), 198 Ill.App.3d 376, 387, 144 Ill.Dec. 555, 561, 555 N.E.2d 1074, 1080.) The trial court has a duty, however, to provide supplemental instructions where...