People v. Stanley

• Decision Date: 24 December 2009
• Docket Number: No. 1-08-1017.,1-08-1017.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth STANLEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

921 N.E.2d 445

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth STANLEY, Defendant-Appellant.

No. 1-08-1017.

Appellate Court of Illinois, First District, Fifth Division.

December 24, 2009.

Rehearing Denied January 20, 2010.

Anita Alvarez, State's Attorney (James E. Fitzgerald, Marie Quinlivan Czech, Anthony L. Kenney of counsel), Chicago, IL, for Plaintiff-Appellee, People of State of Illinois.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Stepheanie A. Fisher, Assistant Appellate Defender, Chicago, IL, for Defendant-Appellant, Alfredo Ramos.

Presiding Justice TOOMIN delivered the opinion of the court:

In this case, we consider an apparent matter of first impression in Illinois, whether the proof of the mens rea for the possession of defaced weapons necessarily extends to the character of the weapon. Defendant, Kenneth Stanley, was convicted after a bench trial of unlawful use of a weapon, defacing identification marks on a firearm, and aggravated unlawful use of a firearm and sentenced to one year of probation. On appeal he contends: (1) the evidence was insufficient to prove knowledge of the defacement; (2) the evidence was insufficient to demonstrate a modification of the shotgun; (3) the identification evidence was insufficient; and (4) trial counsel was ineffective. As the State concedes the insufficiency of the evidence to prove the shotgun was modified, our review is limited to the remaining contentions. For the reasons that follow, we affirm in part and vacate in part.

BACKGROUND

Defendant was indicted for unlawful use of a weapon, defacing the identification marks on a firearm, and aggravated unlawful use of a weapon. The charges stemmed from his possession of a shotgun. Defendant waived his right to a jury and proceeded to trial.

Officer Jeffrey Brouder of the Chicago Police Department was the sole witness to testify for the State. On July 2, 2007, shortly before 8 p.m., Brouder and his partner were in uniform on patrol when they received a call regarding a man with a gun at 5752 South Maplewood Avenue in Chicago. The flash message described the offender as "a male black with a red hat, glasses, and a red shirt, waving a shotgun." The officers approached the area from 59th and Maplewood. Seconds later they reached the 5800 block, saw defendant from about six houses away, and recognized him as the individual depicted in the broadcast description.

Brouder observed defendant holding a black object that was approximately two to three feet in length. Defendant was on the sidewalk and about to enter a property through a fence. He then approached the house. Upon reaching the porch, defendant placed the object inside the door of the home. After he stepped into the doorway, defendant was no longer carrying anything. Officer Brouder never lost sight of defendant after his initial observation.

As Brouder and his partner approached the fence surrounding the property, they saw defendant on the porch with two other individuals. Brouder was unable to describe the clothing on the other men, but neither was dressed like defendant. After defendant refused several requests to come down from the porch, the officers entered the property and detained him. Officer Brouder then looked through the glass door and saw a pistol-grip shotgun leaning up just inside the exterior door. It appeared to be the same item defendant was seen holding on the sidewalk. Defendant was then placed under arrest.

Upon further examination at the police station, Officer Brouder determined the shotgun was loaded with four live rounds. Brouder also observed that its identification marks had been scratched off. Additionally, defendant did not have a firearms owner identification (FOID) card. The weapon was not presented at trial.

The first witness for the defense was Lorenzo Gonzalez, who testified that on the evening in question, he was sitting on the porch talking to his neighbor, Mr. G. Defendant and Jermaine Longs were also talking on the porch next door. Gonzalez had known defendant for approximately 15 years. He had also known Longs from the neighborhood. Both groups of men were talking when another person came down the block and stopped at Longs' gate. That person, whom Gonzalez knew only as Jason, was carrying a brown duffel bag and wearing a red hat, red shirt, and dark shorts. When Jason reached the gate at 5752 South Maplewood, defendant and Longs spoke with him.

Eventually, Jason entered the property and joined defendant and Longs on the porch. Gonzalez could see Jason showing defendant and Longs the contents of the duffel bag, which appeared to be a long black object. Gonzalez was about six feet away at the time, but was able to view the object as he continued talking to Mr. G on the porch next door. Gonzalez saw Jason return the object to the bag and enter the home, while defendant and Longs remained on the porch. About five minutes later, Jason emerged and continued speaking with defendant and Longs.

According to Gonzalez the police then arrived, walked into the yard, and patted down defendant, Jason, and Longs. In turn, one of the officers went into the house and returned carrying a shotgun.

Gonzalez could not specifically recall what defendant was wearing on the night of the incident. He was pretty sure defendant was wearing a white T-shirt because "That's all he wears." However, he also added: "I really don't know because I don't pay attention to men's clothes so I don't know." Likewise, Gonzalez did not know if defendant was wearing a red hat because he was "not trying to look at no dude."

Jermaine Longs testified that he was on his porch when defendant came over to talk to Longs' brother. A man named Jason, who was wearing a red hat, a white T-shirt, and black shorts, approached carrying a duffel bag. According to Longs, defendant was wearing a red shirt and a gray hat. Although Longs could not recall exactly what he was wearing, he thought he wore jean shorts and a hooded sweatshirt.

Jason stopped at Longs' house, entered the yard, and showed defendant the contents of the duffel bag. According to Longs, Jason laid the duffel bag on the porch's banister and showed the shotgun to defendant. Longs then told Jason "to go somewhere with [the shotgun]" and Jason walked into Longs' house. Jason remained in the house for two to three minutes and then returned to the porch. About five minutes later, the police arrived. The officers looked around and asked them all questions. One of the officers entered Longs' house and then exited carrying the shotgun Jason had shown Longs and defendant.

Longs knew neither Jason's last name nor where he lived. However, Longs claimed he had known him for about a year. Jason was not a friend of his, but "just a person I seen." Despite not knowing Jason well, Longs did not stop him when Jason went into Longs' home to hide the shotgun.

Defendant testified that on July 2, 2007, he went to visit his friend Ray Longs. Ray was not there, but defendant sat on the porch talking to Ray's younger brother Jermaine. Thereafter, a younger man named Jason came walking up the street carrying a duffel bag. Defendant first saw Jason from about six or seven houses to the north. Jason approached the Longs' gate and then entered the property. Jason showed defendant the contents of the duffel bag. At first he pulled the shotgun out just enough to reveal the black handle. Defendant told Jason, "Get away from me with that. You hot." Jermaine Longs then told him, "`Take that shit in the house.'" Jason went into house for "five minutes at the most" and returned to the porch empty-handed. About two minutes later, the police arrived.

According to defendant, that day he was wearing a gray hat, red shirt, and blue jeans. He was arrested and eventually taken to the Cook County jail. At this point in the testimony, defense counsel attempted to present a writing purporting to be a clothing receipt from the Cook County jail. According to counsel, he received it that morning prior to trial. The State objected to the use of this paper and alleged a violation of the discovery rules. Moreover, the prosecutor described seeing defense counsel with it at counsel table, but he never mentioned it prior to the start of the trial or at any point during the proceedings. During argument, the writing was tendered to the trial judge and briefly reviewed. The prosecutor complained that this was part of a deliberate discovery violation and constituted trial by ambush. In response, defense counsel argued the purported receipt was a "county document," albeit that no designation of "Cook County Department of Corrections" appeared. The trial court found a discovery violation and continued the proceedings to permit the State to investigate the paper and its contents.

When testimony resumed, the writing was shown to defendant. He testified it was a receipt given to him after booking at the Cook County jail. A sustained foundational objection prevented defendant from offering further testimony regarding the contents of the paper. Nevertheless, defendant testified the writing was the same as when it was given to him on July 4, 2007. When defense counsel moved to admit the writing, the State objected on hearsay grounds and counsel failed to lay a proper foundation for it. Defense counsel argued it was not hearsay as it was not being offered for the truth of the matter asserted. The trial court sustained the objection, finding the writing was hearsay, that defendant could not "establish that it is a document kept in the regular course of business by the Cook County Jail" or that it was issued as a receipt. Nonetheless, the court allowed defendant's answers about his receiving the writing to stand.

After each side rested and argument was heard, the trial court found defendant guilty of each of the remaining counts. Specifically, the trial judge stated, "I find the defendant's...