People v. McBride

2020 IL App (2d) 170873

171 N.E.3d 104

446 Ill.Dec. 669

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Robert MCBRIDE, Defendant-Appellant.

No. 2-17-0873

Appellate Court of Illinois, Second District.

Opinion filed July 23, 2020

James E. Chadd, Thomas A. Lilien, and Lucas Walker, of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Patrick Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Following separate jury trials, defendant Robert McBride was convicted of three weapons offenses and three drug offenses. On direct appeal, defendant contends that the trial court in the weapons trial committed constitutional error by admitting irrelevant evidence that he possessed a large amount of cash when he was arrested. Although we agree with defendant that the trial court erred in admitting the evidence, defendant does not articulate a theory of a constitutional violation. We conclude that the error was (1) evidentiary, and not constitutional, and (2) harmless because no reasonable probability existed that the jury would have acquitted defendant absent the error.

¶ 2 Defendant also argues that the trial court in the drug trial improperly imposed an extended-term sentence for the least serious drug offense. The State confesses error on defendant's sentencing claim.

¶ 3 We thus affirm defendant's convictions of the weapons charges. We also accept the State's confession of error and reduce the sentence for the least serious drug offense to the maximum nonextended term for that offense.

¶ 4 I. BACKGROUND

¶ 5 A grand jury indicted defendant on five counts of unlawful possession of a weapon by a felon ( 720 ILCS 5/24-1.1(a) (West 2014)) and five drug offenses. Each weapon count related to a different firearm that he allegedly possessed "in his own abode." Count IV charged defendant with possession of a Glock 9-millimeter handgun, count V charged defendant with possession of a "High Point" [sic ] 9-millimeter handgun, count VI charged defendant with possession of a Beretta handgun, count VII charged defendant with possession of a Mossberg shotgun, and count VIII charged defendant with possession of a Taurus handgun.

¶ 6 The five drug counts were count I, unlawful possession (within 1000 feet of a church) with intent to deliver 1 gram or more but less than 15 grams of a substance containing cocaine (720 ILCS 570/40l(c)(2), 407(b)(1) (West 2014)); count II, possession with intent to deliver 1 gram or more but less than 15 grams of a substance containing cocaine (720 ILCS 570/40l(c)(2) (2014)); count III, unlawful possession of 15 grams or more but less than 100 grams of a substance containing heroin ( 720 ILCS 570/402(a)(2)(A) (West 2014)) (later amended to less than 15 grams); count IX, unlawful possession of less than 15 grams of a substance containing cocaine ( 720 ILCS 570/402(c) (West 2014)); and count X, unlawful possession (within 1000 feet of an assisted living center for senior citizens) with intent to deliver 1 gram or more but less than 15 grams of a substance containing cocaine (720 ILCS 570/40l(c)(2), 407(b)(1) (West 2014)).

¶ 7 On defendant's motion, the court severed the drug charges from the weapons charges, and the State elected to try the weapons charges first. Defendant moved in limine to bar the State from introducing evidence that the police officers, while executing the search warrant that led to defendant's arrest, had found more than $2000 in cash in a bedroom that the State contended was defendant's. Specifically, defendant sought to exclude evidence of (1) $184 found in a blue bank pouch found in the sleeve of a men's sweater in the bedroom, (2) $1907 found in " ‘various’ pockets" of a pair of men's blue jeans in the bedroom, and (3) $14 found on the floor near a bed. Defendant argued that the presence of the cash was not relevant to the State's proof that he possessed the weapons. The court denied defendant's motion.

¶ 8 At trial, the State's evidence showed that defendant was arrested when, on September 17, 2014, at about 2:45 p.m., a group of approximately 15 Aurora police officers executed a warrant permitting the search of a house on La Salle Street in Aurora. Nine Aurora police officers who executed the warrant and a fingerprint examiner testified for the State.

¶ 9 Officer Ron McNeff of the Aurora Police Department testified that he took his assigned position to the rear of the house. He heard a window open and saw defendant appear at a second-floor window at the southeast corner of the house. Defendant threw two guns across a fence and into the yard of the house to the south. Two handguns, a Glock and a Hi-Point, both heavily scratched, were found on a patio in that yard. Defendant's fingerprint was found on the slide of the Glock.

¶ 10 The officers searching the house entered the northeast bedroom on the second floor. On the bed they found a .22-caliber Taurus handgun, and in the closet, they found a Mossberg 12-gauge shotgun and a Beretta handgun. The Mossberg, covered by a soft case, was leaning against the wall in a recess in the closet; the Beretta was holstered and hanging from a peg. In the closet, they also found a safe that contained ".22 Long Rifle Hollow Point, and 9 mm Luger" ammunition. Four people were in the house when the officers entered: defendant, two young children, and defendant's girlfriend, Gabriella Chairez.

¶ 11 The State contended that defendant and Chairez occupied the northeast bedroom. It supported that contention with objects and photographs of objects found in that bedroom:

In the closet, a purse containing Chairez's driver's license that showed her address as North Chicago.

A "bill" or packing slip from Canon addressed to "Robert McBride" at the La Salle Street address. Defendant identified the slip as relating to black ink cartridges and photo paper that he ordered for Chairez. The officers found this on top of a plastic box with drawers.

A plastic drawer containing an electric shaver and what an officer described as a prescription bottle with the name "McBride" on it. A photograph of the drawer shows, among other things, four prescription bottles, two of which bore the name "McBride."

A spiral-bound notebook with defendant's name on the front cover. A photograph of one page contained writing in two hands, one neat and one scrawling. Defendant identified the neat handwriting as Chairez's and the scrawling handwriting as his.

The upper part of the page contained what appeared to be receipts for a planned performance that were written in the neat handwriting.

A Yahoo e-mail address for "McBrideRobert" and what defendant identified as the account's password are written in the scrawling handwriting on the lower part of the page.

¶ 12 Over defendant's renewed objection, the trial court admitted the State's photographs showing the cash they found in the bedroom. A photograph depicted the zippered bank pouch containing what appeared to be the edges of many United States bank notes. An officer testified that the pouch came from the sleeve of a men's dark-colored jacket in the bedroom closet. Two other photographs depicted more than $1000 in cash. One photograph showed the bills in what appears to be the right front pocket of a pair of men's jeans, which defendant later admitted were his. (Defendant was wearing basketball shorts or boxers when he was arrested.) Another photograph shows bills from that pocket fanned out in a gloved hand. Sixteen bills are visible, 13 of which are clearly $100 bills. The jeans also held a wallet containing cash and an Illinois driver's license in defendant's name with his address given as a Batavia residence.

¶ 13 Investigator Dave Tellner interviewed defendant at the house. Tellner testified that defendant admitted that he was the person the police saw throwing guns out the window. Defendant explained that he was lying in bed when he heard the police coming in the door. He was afraid, so he threw the guns out the window. He told Tellner that there was a ".22" in the northeast bedroom; defendant told Tellner it could be found on "his bed in his bedroom." Defendant also said that they might find a shotgun in the closet of "Cassey's" bedroom. ("Cassey" was Cassey Deuchler, another resident of the house.) The .22-caliber handgun was his, but he was holding the other guns as a favor for a person he knew as "Ro-Ro." Tellner questioned defendant again at the Aurora Police Department. Defendant did not deny his previous admission but refused to make a written statement.

¶ 14 Defendant testified that he worked as a talent promoter: he arranged shows for musicians and comedians. Chairez was the mother of his five-year-old son, R.M., and his four-year-old daughter, A.M. Chairez lived in the house with Deuchler, Deuchler's boyfriend, defendant's two children, Chairez's three other children, Chairez's two brothers, and a girlfriend of one of those brothers. Chairez shared the northeast bedroom with her brother Ricky but would sleep with her daughters if Ricky brought a girlfriend home. Deuchler and her boyfriend shared the southeast bedroom (the one from which the guns had been thrown). Chairez's young daughters, R.H. and A.M., slept in the northwest bedroom. Another of Chairez's brothers and his girlfriend had the southwest bedroom. Her three boys shared the attic bedroom.

¶ 15 Defendant denied living at the house. He claimed that, in September 2014, he was paying rent to live with his aunt and her four children in an Aurora apartment. The Aurora apartment address was on file for his government food assistance. He did not keep belongings in the house on La Salle Street. He purchased an ink cartridge from Canon for the printer that Chairez kept in her bedroom. The spiral-bound notebook belonged to Chairez; defendant had given her his e-mail...