People v. Sapp
| Decision Date | 02 February 2022 |
| Docket Number | 1-20-0436 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stephen SAPP, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and Emily Scout Distefano, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak, Jon J. Walters, and David B. Greenspan, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Following a jury trial, defendant, Stephen Sapp, was found guilty of two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful use of a weapon (UUW). He was sentenced to three concurrent sentences of 15 months’ imprisonment and one year of mandatory supervised released (MSR). On appeal, defendant contends that (1) the trial court erred in effectively barring witness Jocelyn Mrozek's statement that she owned the firearm by "inducing" her to assert her fifth amendment privilege and excluding her statement as hearsay; (2) trial counsel rendered ineffective assistance by failing to question prospective jurors, failing to object to the trial court "inducing" Mrozek to assert her fifth amendment privilege, and failing to call a witness to testify to Mrozek's statement that she owned the firearm; and (3) defendant's three convictions violate the one-act, one-crime rule of People v. King , 66 Ill. 2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977). We affirm the jury's findings of guilt but reverse defendant's convictions for all three offenses and remand for the trial court to merge the three offenses into the most serious.
¶ 3 Defendant was charged with two counts of AUUW ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (C) (West 2018)) and one count of UUW (id. § 24-1(a)(8)), which alleged that on March 17, 2019, he knowingly carried on his person an uncased, loaded, and immediately accessible firearm in a place licensed to sell intoxicating beverages when he had not been issued a valid Firearm Owner's Identification (FOID) card or a concealed carry license.
¶ 5 Prior to jury selection, the State informed the court that Mrozek was present as a trial witness pursuant to subpoena. The court ordered Mrozek to return the following day.
¶ 6 The State conducted all questioning of prospective jurors, with occasional clarifying questions and explanations by the court. Defense counsel asked no questions of prospective jurors and stated that he "ha[d] no questions" when the State finished questioning them. Defendant exercised three peremptory challenges and joined the State in two challenges for cause.
¶ 9 Sean Skilnik testified that he was the corporate supervisor of Moretti's Restaurant (Moretti's) on the 6700 block of North Olmstead Avenue in Chicago. Skilnik was working as a manager between 12:30 a.m. and 1 a.m. on March 17, 2019, when there was a "scuffle" at the bar. Skilnik saw security guard Joe Anderson on the floor with defendant, whom Skilnik identified in court. Skilnik broke up the scuffle and picked defendant up with the assistance of Anderson and security guard Connor Santoria. As they walked defendant out through the front door, defendant said that he dropped something. Skilnik felt an object from defendant's body against his right leg, then felt an object hit the floor. He did not see anything fall to the floor.
¶ 10 Within two seconds, Skilnik turned around and saw restaurant manager Mitchell Acance recover a firearm from the floor; Acance said, "It's a gun." Security guards took defendant out through the front door, and Acance handed Skilnik the firearm, which Skilnik identified in court. Skilnik handed the firearm to security guard Chris Oglesby and asked him to take it to the office. Police arrived, and Skilnik led them downstairs and into the office. Police did not arrest defendant because he "ran away."
¶ 11 Skilnik viewed a photo array on March 22, 2019, and identified defendant. Skilnik identified the photo array in court, and the State moved it into evidence.
¶ 12 Skilnik also identified a DVD containing a surveillance video of the incident, which he provided to police. Skilnik confirmed the video accurately depicted the events of March 17, 2019, and the State moved it into evidence. The video depicts the interior of a bar, which Skilnik identified as Moretti's "front door entrance and the main bar right in front of it." Skilnik identified defendant and Anderson entering the bar from another room and "going down to the ground and into the foot of the bar" and himself going to assist Anderson. He also identified himself with a group of men taking defendant out through a door and Acance behind him. He identified Acance handing him the firearm and then calling police.
¶ 13 Acance testified that he was working as a manager at Moretti's on March 17, 2019. Between 12:30 a.m. and 1 a.m., there was an altercation between two customers in the bar. Acance saw defendant, whom he identified in court, being escorted out by security. Anderson had control of defendant's upper body, Santoria had control of his legs, and Skilnik was walking behind defendant. Acance went to Skilnik's right and saw a firearm fall from the right side of defendant's waistband to the floor. Acance heard defendant say, "I dropped something," or "[L]et me get my stuff." Acance said, "[I]t's a gun," picked the firearm up, and gave it to Skilnik. Acance identified the firearm in court.
¶ 14 Acance viewed a photo array on March 26, 2019, and identified defendant as "the person in possession of a firearm." Acance identified the photo array in court, and the State moved it into evidence.
¶ 15 The State also moved into evidence a certified business record from G.A.T. Guns, Inc. (G.A.T. Guns). This document shows that Mrozek purchased a "Glock 36 Gen 3" with a certain serial number on March 7, 2019, in East Dundee, Illinois.
¶ 16 Santoria testified that he was working security at Moretti's on March 17, 2019. He saw defendant, whom he identified in court, involved in a scuffle and grabbed defendant's legs. Anderson grabbed defendant "from behind," and he and Santoria walked defendant out of the bar. Santoria heard a "loud click noise" on the floor to his left and felt "a percussion of, like, something falling heavy," but he did not see what made the noise. Defendant said, "I dropped something," and Santoria responded, "I'll get it for you in a minute." Santoria then took defendant outside in front of Moretti's.
¶ 17 Outside Moretti's, Santoria spoke to a short, white female with dark hair. When defendant asked Santoria what this woman said to him, the State objected that her statement was hearsay. At a sidebar, defendant stated that when the woman saw defendant being escorted out of Moretti's, she "blurt[ed] out, quote, it's mine, it's registered to me, I have a license." Defendant argued that the woman's statement fell under the excited utterance exception to the rule against hearsay. The court sustained the State's hearsay objection, explaining:
¶ 18 Santoria viewed a photo array on March 22, 2019, and identified defendant as the person "at the bar that night who had dropped something." Santoria identified the photo array in court, and the State moved it into evidence.
¶ 19 Oglesby testified that he was working at Moretti's on March 17, 2019. He saw defendant, whom he identified in court, as defendant was entering the bar and checked his identification. Defendant was "with a female and another white male" when he entered the bar. Oglesby later saw Santoria and Anderson taking defendant out of the bar. After defendant was taken out of the bar, Oglesby spoke to Skilnik and learned that there was a firearm in the drawer of the host stand. Oglesby identified the firearm, its magazine, and .45-caliber bullets in court.
¶ 20 On March 25, 2019, Oglesby told police that he saw defendant talking with a white female with a short build "as soon as they came in[to]" Moretti's. On March 26, 2019, Oglesby viewed a photo array and identified defendant "as the person who was in the bar that night." He identified the photo array in court, and the State moved it into evidence.
¶ 21 Chicago police officer Patrick Binder testified he was on duty on the morning of March 17, 2019, wearing plainclothes and a police vest, when he and his partner responded to a call of a person with a gun at Moretti's. Binder spoke to Skilnik and was "led to the basement of Moretti's where they found a gun." Binder recovered the firearm in the basement and inventoried it. He identified the firearm, its magazine, and six .45-caliber bullets, and the State moved them into evidence. The firearm was not subjected to any kind of testing.
¶ 22 Binder identified a video recording from his body camera, which the State moved into evidence. The time stamp on the video indicates that it is from March 17, 2019. Binder identified a Moretti's employee leading him to the restaurant's basement office, where the firearm was...
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