People v. Boston

54 N.E.3d 217

403 Ill.Dec. 557

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Sylvester BOSTON, Defendant–Appellant.

No. 1–13–3497.

Appellate Court of Illinois, First District, Fifth Division.

May 6, 2016.

Michael J. Pelletier, Alan D. Goldberg, and Jonathan Yeasting, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Tasha–Marie Kelly, and Patricia Pantoja, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Defendant Sylvester Boston was charged by indictment with possession of contraband in a penal institution (720 ILCS 5/31A–1.1(b) (West 2010)). The indictment specifically alleged he possessed a shank that was discovered in his waist band while in the Cook County Department of Corrections (CCDOC) on July 23, 2010.¹ After a jury trial, defendant was found guilty of that offense and was sentenced to five years' imprisonment. On appeal, defendant contends the trial court erred when it failed to instruct the jury regarding the defense of necessity and that his right to present a meaningful defense was violated when the trial court limited or excluded certain evidence. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with one count of possession of contraband in a penal institution for being found with a shank while incarcerated in the CCDOC on July 23, 2010.² Defendant filed an answer to discovery in which he stated he would be asserting the affirmative defense of necessity. Prior to trial, the State filed a motion in limine seeking to bar defendant from presenting the affirmative defense of necessity. The trial court determined it would not preclude defendant from presenting evidence in support of the necessity defense, but reserved ruling on whether the jury would be instructed on the defense based on what the evidence demonstrated.

¶ 4 At trial, the State presented the testimony of Officer James Gosling (Officer Gosling), a correctional officer in the Cook County sheriff's department. Officer Gosling testified that on July 23, 2010, at 2:45 p.m. he conducted a search of tier 1E in division nine of the CCDOC. Tier 1E held 22 inmates, each in their own individual cell. Inmates in this division are “locked up 23 hours a day.” When permitted, only one detainee at a time is allowed outside of his cell for a period of one hour. Inmates also shower alone. When allowed outside of their cells, inmates are perpetually supervised.

¶ 5 Officer Gosling testified that typically when conducting a search, the door of the cell is unlocked, the detainee is secured, patted down, and then seated in the day room area while officers search his cell. According to Officer Gosling, during a search he looks for “any sort of hazard” or “homemade weapons that could be used to injure” anyone in the jail.

¶ 6 Regarding the search of defendant and his cell, Officer Gosling testified he instructed defendant to step out of his cell. Defendant complied. When defendant was secured with handcuffs, Officer Gosling proceeded to conduct a pat-down search of defendant. In doing so, Officer Gosling discovered a “shank” in the waistband of defendant's boxer shorts on his right side that was approximately four to four and a half inches in length. According to Officer Gosling, a “shank” is “a homemade weapon.” Such weapons are not allowed in the CCDOC.

¶ 7 On cross-examination, Officer Gosling testified that when he recovered the shank defendant stated “this is a bad place,” implying that defendant possessed the shank to protect his life. Officer Gosling further testified that in four years of daily shakedowns he has conducted, he has recovered four to five weapons. He estimated, however, that during the same four years 50 shanks were recovered by the emergency response team.³ Officer Gosling did not know how long defendant had resided in tier 1E, but testified that in other tiers within division nine two inmates reside in one cell.

¶ 8 In addition, Officer Gosling testified that at times a detainee will utilize a “popper,” a device used to defeat the locking mechanism on the cell door. When this is accomplished a detainee can theoretically be able to “pop their door open,” although Officer Gosling testified he had never personally witnessed a detainee perform this act. Officer Gosling further testified that, at times, inmates are transported through the prison to be taken to court, for visitation, to consult with their attorney, or to obtain medical services.

¶ 9 Sergeant Brian Bialczak (Sergeant Bialczak) of the Cook County sheriff's department testified that on July 23, 2010, he was part of the emergency response team that searched defendant's cell. Sergeant Bialczak provided testimony similar to Officer Gosling regarding the search procedures. Sergeant Bialczak observed Officer Gosling conduct the pat-down search of defendant and recover a shank from the waistband of defendant's underwear.

¶ 10 On cross-examination, Sergeant Bialczak described the shank discovered on defendant's person as “a piece of plastic with a point.” Sergeant Bialczak testified he personally recovered more than ten shanks during his four years as a member of the emergency response team. Sergeant Bialczak estimated that he witnessed other officers recover 40 shanks. Sergeant Bialczak further testified that defendant was cooperative during the search. Sergeant Bialczak also testified similarly to Officer Gosling that a popper allows an inmate to jam their cell door and prevent it from locking when it is closed.

¶ 11 The State rested and defendant moved for a directed finding, which the trial court denied.

¶ 12 Robert Anderson (Anderson), an inmate currently incarcerated due to a murder conviction, testified on behalf of the defense as follows. In 2009, he was in custody in CCDOC and resided in tier 2B of division nine along with defendant. In spring of 2009, Anderson was in the day room watching television when he observed an individual, identified only as “L.C.,” walking towards the restroom area. The restroom area was completely visible from the day room where Anderson was seated. Anderson observed L.C. approach defendant from behind and stab him in the shoulders and neck multiple times with an object resembling an ice pick. Defendant and L.C. began struggling and the altercation moved in front of the “officer's bubble” located just outside of the day room. In the meantime, other inmates stepped in and broke up the altercation, but shortly thereafter defendant and L.C. resumed fighting. No officer came to break up the altercation nor did any medical personnel attend to defendant. Anderson could not recall any other fights occurring between defendant and L.C.

¶ 13 Anderson further testified he was later moved to tier 1F and then to tier 1E. According to Anderson, tiers 1F and 1E were different from tier 2B because tiers 1F and 1E were for inmates who had problems stemming from protective custody issues due to disciplinary reasons. Tiers 1F and 1E consisted of single, individual cells with one inmate per cell. Inmates who resided on these tiers were only allowed out of their cells for one hour a day.

¶ 14 In addition, Anderson testified that in 2010 and 2011, when he resided in tier 2B at the same tier as defendant, he observed defendant being threatened. When asked about “poppers,” Anderson testified that a popper is “an object that detainees often place in their cell doors to defeat the lock mechanisms and get out of his cell to attack another individual.”

¶ 15 On cross-examination, Anderson testified he could not recall if he resided on the same tier as defendant on July 23, 2010. Anderson further testified tier 2B is a general population area where inmates could “hang out” together. Anderson also testified that in 2009, when he observed defendant being stabbed, he did not report what occurred to anyone at the jail. On re-direct, however, Anderson testified he did not report the stabbing “[b]ecause you can get killed.”

¶ 16 Defendant next called Andre Mamon (Mamon) who, at the time of the trial, was incarcerated due to a murder conviction. Mamon testified as follows. In 2009, he resided in tier 2B of division nine with defendant. In early 2009, he was in the day room watching television. Defendant was in the restroom when a man, whose name Mamon did not know, approached defendant from behind and stabbed him. Mamon observed this individual stab defendant in the neck and upper body with a metal object approximately four to five inches long. The two began struggling and ended up outside of the officer's bubble in the day room. The fight was stopped, but three or four minutes thereafter a fistfight between defendant and the individual commenced near the stairs. According to Mamon, no officer put a stop to the fight. Mamon also testified that a “popper” is “a little object that you could stick in the door to use to open your door” and that he observed inmates using poppers on tier 1E.

¶ 17 On cross-examination, Mamon testified he did not report defendant's stabbing to anyone and in 2010 he was not detained in the CCDOC.

¶ 18 Defendant testified on his own behalf as follows. At the time of trial, he was 28 years old. He first came to the CCDOC in June of 2006. Three or four months later he was “jumped” in the shower area by a man with the last name Munoz along with other unnamed individuals. As a result of this incident defendant was moved to division nine. In early 2009, he was residing on tier 2B when “[a] young man walked up to me and threatened me, and told me he was going to kill me and take my life, and I walked off from him, and he stabbed me in the back of the neck.” Defendant tried to take the knife from him, and the two began to fight. The fight ended, but shortly thereafter the two got into a fistfight. Defendant did not receive...