People v. Walker

2020 IL App (1st) 162305

164 N.E.3d 601

444 Ill.Dec. 505

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

v.Pierre WALKER, Defendant-Appellant.

No. 1-16-2305

Appellate Court of Illinois, First District, SIXTH DIVISION.

MARCH 20, 2020

James E. Chadd, Patricia Mysza, and Erin Sostock, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Kathryn A. Schierl, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Defendant-appellant Pierre Walker¹ appeals his April 2016 conviction for unlawful use of a weapon by a felon, for which he was sentenced to eight years and six months imprisonment. On appeal, the defendant argues that (1) trial counsel was ineffective for failing to move to quash the search warrant and suppress evidence, (2) the State failed to prove that he possessed a firearm in his own abode, and (3) the order for fines and fees should be amended. For the reasons that follow, we reverse the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On October 28, 2015, Chicago Police Officer Matthew Diblich swore a complaint for a search warrant requesting to search the defendant and the premises of the second floor apartment located at 4249 West Jackson Boulevard in Chicago in order to seize a firearm that was evidence of the crime of unlawful use of a weapon by a felon. Officer Diblich averred that he had probable cause to believe that the firearm would be found with the defendant at that location, referring to a conversation with a registered confidential informant who had provided accurate information in the past. The circuit court issued the warrant and Officer Diblich and Chicago Police Officer Ohle executed the warrant along with 6 to 10 other police officers. The officers arrested the defendant after finding him in the apartment along with two boxes of ammunition.

¶ 4 In November 2015, the defendant was indicted for unlawful use or possession of a weapon by a felon. The indictment alleged that he "knowingly possessed in his own abode any firearm ammunition, after having been previously convicted of the felony offense of manufacture/delivery [of cocaine]."

¶ 5 A bench trial commenced in April 2016 with testimony from Officers Diblich and Ohle. The officers testified that when they entered the three-bedroom apartment at 4249 West Jackson Boulevard, they found the defendant sleeping on a "makeshift" bed in the dining room area. There were five people in the apartment, besides the defendant, who were all detained while the search was underway. Officer Diblich could not recall where in the apartment those five people were when the officers entered to execute the search warrant.

¶ 6 Officer Diblich testified that during the search of the second bedroom, which did not have a bed, another officer found two boxes of ammunition in the top drawer of a dresser. After Officer Diblich photographed the ammunition and placed it into an evidence bag, he brought the defendant into the room and showed him the ammunition as well as some cannabis that was also recovered from the bedroom. Officer Diblich then read the defendant his rights, and the defendant agreed to give a statement, admitting the bullets were his. Later, after the defendant was arrested and taken to the police station, he told Officer Ohle, "I can't wait to find your kids. If you think * * * that all I got is the bullets."

¶ 7 On cross-examination, Officer Diblich admitted that he did not find anything linking the defendant to the room where the bullets were found.

¶ 8 Following the officers' testimony, the State introduced into evidence a certified copy of the defendant's 2004 conviction for manufacture and delivery of cocaine. The defendant then moved for a directed verdict, which was denied.

¶ 9 The defendant's girlfriend of 13 years, Dana Johnson, testified on his behalf. According to Johnson, in 2015, she lived with the defendant at two different addresses. Between January and August 2015, the defendant and Johnson lived at 615 East Gunderson Drive in Carol Stream, Illinois. After that, they lived at 619 North Meadows Boulevard in Melrose Park, Illinois. Johnson produced a check stub and a traffic ticket mailed to the defendant at the East Gunderson address, as well as a W-2 sent to the defendant at the North Meadows address.

¶ 10 Johnson testified that the defendant's family lived at the Jackson Boulevard address where the defendant was arrested. She further stated that when the defendant was not sleeping at their house, he would sleep there. In October 2015, the defendant slept the "majority" of nights with Johnson at their house, but spent at least eight nights at Jackson Boulevard. Johnson explained that he would visit his family at Jackson Boulevard and would stay overnight if he was "drunk or something."

¶ 11 As his final witness, the defendant called Keith Terrell, who lived at the Jackson Boulevard address with three other people. Terrell, who was not related to the defendant, said that the defendant did not live at that address and did not keep any belongings there. However, he testified that the defendant stayed the night on October 28, 2015, because the defendant was drunk. Terrell further testified that the bedroom where the bullets were found was Antoine Walker's bedroom. Indeed, Terrell testified that Antoine Walker was in that bedroom with a woman who lived in the apartment when the police entered to execute the warrant. The police then took all the occupants of the apartment into the front room while they searched the premises.

¶ 12 Following closing arguments, the court found the defendant guilty of unlawful possession of a weapon by a felon.

¶ 13 The court ultimately sentenced the defendant to eight years and six months of imprisonment. Following the denial of his motion to reconsider sentence, the defendant timely appealed.

¶ 14 ANALYSIS

¶ 15 We note that we have jurisdiction to review this matter, as the defendant filed a timely notice of appeal following sentencing. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).

¶ 16 On appeal, the defendant raises three contentions of error, but because we find that his challenge to the sufficiency of the evidence is dispositive, we address it first.

¶ 17 A challenge to the sufficiency of the evidence requires the reviewing court to consider whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt . People v. Newton , 2018 IL 122958, ¶ 24, 427 Ill.Dec. 881, 120 N.E.3d 948. We will not substitute our judgment for that of the trier of fact, nor will we reverse a conviction unless the evidence is so improbable or unsatisfactory so as to raise a reasonable doubt of a defendant's guilt. People v. Wright , 2017 IL 119561, ¶ 70, 418 Ill.Dec. 866, 91 N.E.3d 826.

¶ 18 The defendant argues that the State failed to prove that he possessed the firearm ammunition in his own abode pursuant to section 24-1.1(a) of the Criminal Code of 2012 (Code). ( 720 ILCS 5/24-1.1(a) (West 2014)). Section 24-1.1(a) of the Code, under which the defendant was charged, provides in relevant part that

"[i]t is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business * * * any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction." Id.

¶ 19 Initially, the parties dispute whether the State was required to prove that Jackson Boulevard was the defendant's abode as an element of the offense of unlawful possession of a weapon by a felon. Our supreme court has held that the "essential elements" of the offense of unlawful possession of a weapon by a felon are (1) the knowing possession of a firearm and (2) a prior felony conviction.

People v. Gonzalez , 151 Ill. 2d 79, 85, 175 Ill.Dec. 731, 600 N.E.2d 1189 (1992).² The court has explicitly held that there is "no requirement" that an offender be using or possessing the weapon "in any particular place." Id. at 87, 175 Ill.Dec. 731, 600 N.E.2d 1189 ; see also People v. Hester , 271 Ill. App. 3d 954, 956, 208 Ill.Dec. 690, 649 N.E.2d 1351 (1995) ("[T]he situs of the defendant's possession does not constitute a material element of the offense [of unlawful use of a weapon by a felon]."); People v. Lindsey , 324 Ill. App. 3d 193, 201, 257 Ill.Dec. 644, 753 N.E.2d 1270 (2001) (same). Accordingly, we agree with the State that, notwithstanding its representations to the contrary at trial, it was not in fact required to prove that the defendant was in his own abode when he possessed the ammunition as an element of the offense of unlawful possession of a weapon by a felon.

¶ 20 That leaves us to address whether the State's evidence was sufficient to prove the defendant knowingly possessed the ammunition recovered from the dresser drawer. (Neither party disputes that the defendant was a convicted felon.) Possession may be either actual or constructive. People v. Terrell , 2017 IL App (1st) 142726, ¶ 18, 412 Ill.Dec. 751, 76 N.E.3d 817. Here, the defendant did not actually possess the ammunition, and so the State was required to prove constructive possession. Constructive possession is almost always subject to proof by circumstantial evidence. Id. In order to establish the defendant's constructive possession, the State was required to prove that (1) the defendant had knowledge of the contraband and (2) the defendant exercised immediate and exclusive control over the area where the contraband was found. People v. Maldonado , 2015 IL App (1st) 131874, ¶ 23, 394 Ill.Dec. 249, 35 N.E.3d 1218.

¶ 21 In support of its argument that it proved the defendant constructively possessed the ammunition, the State points to his statements to Officers Diblich and Ohle. Spec...