People v. Sherman

2020 IL App (1st) 172162

172 N.E.3d 540

447 Ill.Dec. 17

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

v.Kendrick SHERMAN, Defendant-Appellant.

No. 1-17-2162

Appellate Court of Illinois, First District, SIXTH DIVISION.

October 16, 2020

James E. Chadd, Patricia Mysza, and S. Emily Hartman, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Akash B. Vyas, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Following a bench trial in Cook County circuit court, defendant Kendrick Sherman was convicted of the offense of being an armed habitual criminal (AHC) and sentenced to 12 years' imprisonment. On appeal, he contends that (1) counsel was ineffective for not filing a motion to quash his arrest, (2) the court deprived him of a fair trial by failing to accurately recall the evidence, (3) the court failed to conduct an inquiry pursuant to People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), into his posttrial claims of ineffective assistance of counsel or into trial counsel's implicit admission of ineffectiveness, and (4) his sentence was erroneous because the court improperly considered in aggravation (a) the prior convictions that were elements of AHC, thus engaging in double enhancement, and (b) a void prior conviction for aggravated unlawful use of a weapon (AUUW). As explained below, we affirm defendant's conviction and sentence but remand for a preliminary Krankel inquiry.

¶ 2 I. JURISDICTION

¶ 3 On April 13, 2017, the trial court found defendant guilty of AHC. The court sentenced him on August 16, 2017, to 12 years' imprisonment, and he filed his notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017) governing appeals from a final judgment of conviction in a criminal case.

¶ 4 II. BACKGROUND

¶ 5 Defendant was charged in relevant part with AHC for allegedly, on or about May 14, 2016, knowingly or intentionally possessing a firearm while having prior convictions for residential burglary in case No. 10 CR 10175 and burglary in case No. 10 CR 15406.

¶ 6 At trial, the State entered certified copies of said prior convictions.

¶ 7 Police officer Miguel Vazquez testified that he and Officer Victor Razo were patrolling shortly before 10 p.m. on May 14, 2016, when Vazquez saw defendant driving a vehicle with its windshield broken and its headlights unlit despite it being night. Vazquez stopped the vehicle and saw that it contained three passengers in addition to defendant. In particular, Deandre Golden was in the front passenger seat with defendant, while the other two passengers were in the back seat. Defendant produced a driver's license at Vazquez's behest, and Vazquez then checked his name and the passengers' names in LEADS, the Law Enforcement Agency Data System. That check confirmed the validity of defendant's license and showed that he was "on parole and had failed to register as a gun offender," that Golden "also failed to register as a gun offender," and that defendant and Golden were both members of the Black Disciples gang.

¶ 8 Vazquez returned to defendant's vehicle on the passenger side and saw Golden make furtive movements toward the glove box. Vazquez told the occupants of the vehicle to exit, placing Golden and then defendant into custody as they exited. When asked why he detained defendant, Vazquez replied "Because he failed to register as a gun offender, and he was also in violation of his parole conditions." A blue steel Glock pistol with an extended 29- or 30-round magazine, which actually contained 24 bullets, was found in the vehicle. Vazquez described the magazine as 8 to 10 inches long and held his fingers about 10 inches apart. (Defense counsel did not object to this line of questioning or testimony.) The firearm and ammunition were later inventoried. The vehicle was registered to a woman who lived at the same address as defendant. Defendant was taken to the police station, where Razo interviewed him.

¶ 9 On cross-examination, Vazquez testified that police records would show a person who had been gang affiliated as such "for life." He did not see defendant make any furtive movements, only Golden. After Golden was detained, Vazquez found the firearm in the glove box, which "was half closed, partially opened" because the end of the magazine was protruding as if Golden had "jammed" the firearm into the glove box. When the firearm was inventoried, it was attributed to Golden. An arrest report that Vazquez assisted in preparing described defendant as unarmed because he did not have a weapon on his person when arrested.

¶ 10 Razo testified that he interviewed defendant at the police station on the night of his arrest. When Razo asked "why would he risk being in a vehicle with a gun" in light of his parole, defendant had answered, "Man, if I don't have that gun, I'm dead." Razo noted his question and defendant's answer in his police report but did not audio- or video-record the interview or ask defendant to sign a statement memorializing the interview.

¶ 11 Defendant moved for a directed finding, arguing that the firearm was attributable to Golden based on his furtive movements towards the glove box where the firearm was found and that defendant did not "take responsibility for possession of that weapon." The State argued that the driver of a vehicle is presumed to have control over all items therein, that defendant's statement regarding the firearm was an admission of his knowledge of its presence in the vehicle, and that defendant either possessed the firearm solely as the driver or "jointly with others." The State also argued that evidence that Golden put the firearm in the glove box did not exculpate defendant in light of his knowledge and control. The defense argued in rebuttal that, even taking defendant's statement at face value, it did not show that he had knowledge of the firearm before police found it in the glove box but merely acknowledged "that his crew in this car may or may not have had a gun, and if they did, it was because it was dangerous there."

¶ 12 The court asked defense counsel, "You have a gun with a 30-round clip that's 10 inches in length and they can't even get the glove box closed, and you're telling me that people sitting in the car couldn't see that?" Counsel replied that the firearm could have been on Golden's person, such as inside his jacket, until he tried to hide it in the glove box as shown by his furtive movements there. Counsel also argued that defendant was not the registered owner of the vehicle and that the State did not show that he had knowledge of any weapons his passengers may have been carrying.

¶ 13 The court denied the directed finding motion, the defense rested, and the court made no admonishments or inquiries regarding defendant's rights to testify and to remain silent. Following closing arguments, the court found defendant guilty of AHC, expressly finding the officers' testimony credible and noting that the vehicle defendant was driving was registered to his residence. The court found defendant guilty based on his postarrest statement and "testimony of the officer as to the type of gun it was, the length of the clip, the fact that it couldn't be completely secreted into the glove box." Defendant exclaimed that the court had erred because "[i]t wasn't my gun" and "I never said that."

¶ 14 In his counsel-filed posttrial motions, defendant claimed that the court erred by not admonishing defendant of his right to testify, which deprived him of the opportunity to present certain evidence. In particular, he would have testified that he had no knowledge of the firearm in the vehicle until the police stopped the vehicle because the passenger concealed the firearm on his person until then. Defendant also claimed that the court abused its discretion by allowing the officers to testify to the size of the firearm without requiring the State to offer the firearm itself or a scaled photograph of it into evidence when its size was a material issue.

¶ 15 Defendant claimed that the evidence was insufficient to convict him on a constructive possession basis as he was the vehicle's driver but not its registered owner and because the officers did not testify that he physically possessed the firearm, testified that the passenger made furtive movements toward the glove box, initially inventoried the firearm as the passenger's, and testified to the firearm's size rather than having the State offer the firearm or its photograph into evidence. He distinguished case law holding that possession of a firearm can be proven by testimony alone, arguing that the firearm's size and whether it was concealable were key here. He argued that any statement he made demonstrating knowledge of the firearm would have to be corroborated to be sufficient evidence and that knowledge of a firearm without control over it is not possession.

¶ 16 At the hearing on the posttrial motions, defense counsel argued in relevant part that the control "element of constructive possession also turns on the issue of size and firearm, and its location. This gun was found in the glove box of the passenger side of the vehicle." The court asked whether "the clip was a 30-round clip and it would not fit into the glove box." Counsel argued that the officers did not testify to the appearance of the firearm or glove box when they approached the vehicle but only when they searched it. The court remarked that police "saw the passenger trying to place the gun in the glove box and the glove box would not close," and counsel clarified that the officer testified only to "furtive movements toward the glove box." Counsel argued that...