People v. Smith, Appeal No. 3-16-0454

• Court: United States Appellate Court of Illinois
• Writing for the Court: JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
• Citation: 2020 IL App (3d) 160454,441 Ill.Dec. 20,156 N.E.3d 20
• Parties: The PEOPLE of the State of Illinois, Plaintiff-appellee, v. Andrew SMITH, Defendant-appellant.
• Docket Number: Appeal No. 3-16-0454
• Decision Date: 11 February 2020

2020 IL App (3d) 160454
156 N.E.3d 20
441 Ill.Dec. 20

The PEOPLE of the State of Illinois, Plaintiff-appellee,
v.
Andrew SMITH, Defendant-appellant.

Appeal No. 3-16-0454

Appellate Court of Illinois, Third District.

Opinion filed February 11, 2020

JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

441 Ill.Dec. 23

¶ 1 Following a jury trial, defendant, Andrew Smith, was convicted of forgery ( 720 ILCS 5/17-3(a)(3) (West 2014)), possession of a weapon by a felon (id. § 24-1.1(a)), and aggravated fleeing and eluding ( 625 ILCS 5/11-204.1(a)(4) (West 2014)). Defendant appeals his convictions and argues that the trial court erred by (1) failing to admonish him pursuant to Illinois Supreme Court Rule 401(a) (eff. July 1,

156 N.E.3d 24

441 Ill.Dec. 24

1984), (2) failing to properly admonish jurors during voir dire , and (3) closing the courtroom during voir dire . Additionally, the defendant challenges the sufficiency of the evidence relating to his conviction of unlawful possession of a firearm by a felon. In the alternative, if we affirm his convictions, defendant argues his sentence was improper. We reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 A. High-Speed Chase

¶ 4 Brothers Andrew and Jeremiah Smith engaged in a nationwide crime spree that involved passing counterfeit bills as they traveled from state to state. The brothers began their criminal endeavor in Pennsylvania with the goal of reaching Colorado. However, according to Andrew, he was not able to tolerate his brother's incessant drinking during the trip. The brothers turned around in Nebraska to return Jeremiah to Pennsylvania. Andrew stated it was his intention to travel to Alaska after dropping his brother off. On the way back to Pennsylvania, the brothers traveled through Illinois.

¶ 5 On October 13, 2015, at approximately 1:30 p.m., Officer Robert Cessna of the Tri-DENT Drug Task Force observed a black Nissan heading eastbound on Interstate 80. Cessna's radar gun indicated the vehicle was speeding and a traffic stop ensued. Cessna approached the passenger side of the vehicle, and the passenger rolled down his window. Cessna identified the driver as defendant, Andrew Smith, and the passenger as Jeremiah Smith. He also observed several empty beer cans along the floorboards of the Nissan and smelled a strong odor of alcohol emanating from the vehicle. Shortly after the stop was initiated, another officer arrived to assist. This officer provided the services of a drug sniffing canine and performed a free-air sniff on the vehicle. The canine alerted to the presence of narcotics. Cessna asked the defendant to step out of the vehicle, so he could perform a search. Defendant instead sped away.

¶ 6 Defendant led police on a high-speed chase through the La Salle-Peru area of La Salle County, while ignoring numerous traffic control signals. During the chase, the passenger held a white bag out of the window of the vehicle as if he planned to throw it out. However, the passenger did not throw the bag from the vehicle at that time. Officers eventually lost sight of the Nissan. Dispatch relayed that the vehicle had been found abandoned on Canal Street in LaSalle. The vehicle was towed to an impound lot to be searched later. Officers received reports that two individuals had been seen swimming across the nearby I&M canal. Officers searched the area on ATVs, eventually apprehending defendant and his brother.

¶ 7 Sergeant Scott Samolinski of the La Salle Police Department returned to the area where Cessna had lost visual contact with the Nissan during the chase. Along the route between where Cessna had lost visual and where the vehicle was abandoned, Samolinski found a blue bag that contained an unloaded shotgun. Samolinski also found a white bag similar to the one that was being held out of the window of the Nissan during the high-speed chase. The white bag was one block away from the blue bag and contained an additional unloaded shotgun.

¶ 8 Officers searched the Nissan and found an HP color printer, 92 counterfeit $20 bills, and a counterfeit $10 bill. A majority of the bills were uncut on single sheets of paper, while officers did find some "loose" $20 bills. Many of the bills shared the same serial numbers. Officers also found suitcases, clothing, a large

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441 Ill.Dec. 25

amount of camping gear, and a small amount of cannabis and paraphernalia. Investigators at the local jail searched through the items that had been removed from defendant's person. Defendant's wallet was among the items seized and contained a torn, counterfeit $20 bill with the ink running off of it. The bill had the same serial number as some of the other counterfeit bills found in the Nissan.

¶ 9 Defendant was charged by superseding indictment with forgery, unlawful possession of a weapon by a felon, aggravated fleeing or attempting to elude a police officer, and aggravated possession of stolen firearms. Defendant's brother, Jeremiah, was charged as a codefendant with forgery and unlawful possession of a weapon by a felon.

¶ 10 B. Pretrial

¶ 11 Defendant's first appearance in court was on October 15, 2015. The prosecutor read the forgery and aggravated fleeing or attempting to elude a police officer charges aloud. The court admonished defendant as follows:

"THE COURT: All right. Mr. Andrew Smith, you have here a Count I of forgery, a Class 3 felony. And you could be sentenced between two and five years in the Department of Corrections, with a mandatory supervised release period of one year. It is a probational offense.

The same as to Count II.

Now, Count III is aggravated fleeing and eluding.

Is he eligible for extended term, if they're convicted felons—?

MR. TOWNE [ (STATE'S ATTORNEY) ]: Yes, Your Honor.

* * *

THE COURT: What about the Class 3?

MR. TOWNE: Yes. Both of them have burglary convictions, Class 2's.

THE COURT: Then I didn't realize that. So here we go. * * *.

THE COURT: Now Mr. Smith—Andrew Smith—you could be sentenced between—on the first two counts of a Class 3—between two and ten years in the Department of Corrections, with a mandatory supervised release period thereafter of one year.

On the Count IV, you could be sentenced between one and six years in the Department of Corrections, with a mandatory supervised release period of one year. And this is a probational offense.

Now, when he says investigation continues, that means, for both of you, there could be other charges related to weapons or other things that could be in additional counts."

The court then appointed the public defender to represent the defendant.

¶ 12 On December 10, 2015, the defendant appeared in court on the State's notice. The State tendered additional charges to the court including, inter alia , unlawful possession of a weapon by a felon and aggravated possession of a stolen firearm. Defendant and his counsel were present and responded.

"MR. CAPPELLINI [ (DEFENSE COUNSEL) ]: We acknowledge receipt of a copy of Count IV, Count V, Count VI, waive a reading of each of those counts and explanation of possible penalties therefore, enter a plea of not guilty to each count, and we would ask that it stay on the trial call as well."

¶ 13 Defendant, again, appeared in court in January of 2016. He was disgruntled with his appointed attorney and asked the court to appoint new counsel. Defendant complained that his attorney had failed to subpoena the wife of then La Salle County State's Attorney, former Governor Pat Quinn, and then current Governor Bruce

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441 Ill.Dec. 26

Rauner. The court denied defendant's request for new counsel. He asked to proceed pro se later that same month. However, the court sua sponte found a bona fide doubt as to defendant's competence based on his behavior in court and irrational requests. The court held the motion to proceed pro se in abeyance until it could be determined whether defendant was fit to stand trial and severed the case from his brother's. Jeremiah would later enter into a guilty plea.

¶ 14 The matter proceeded to a jury trial on the issue of fitness. Dr. Jean Cole testified. She had evaluated defendant and found him fit to stand trial. During her evaluation, she had conversations with the defendant about representing himself. The defendant was able to identify and describe all the different roles of individuals involved in the court system, understood his rights, and understood what evidence might be brought against him and how to defend himself. Subsequently, a jury found defendant fit to stand trial.

¶ 15 On April 21, 2016, defendant, again, requested to proceed pro se , stating, "I will not go to trial with this man," referring to his court-appointed counsel. The court admonished defendant extensively about the severe disadvantage he would face representing himself and warned that he would not be able to revert course during the trial; defendant stated he understood. Defendant was allowed to waive counsel and proceed pro se . The trial court did not admonish defendant about the nature of the charges,...