People v. White

46 N.E.3d 889

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Samuel WHITE, Defendant–Appellant.

No. 1–13–1111.

Appellate Court of Illinois, First District, Third Division.

Filed Dec. 16, 2015.

Rehearing Denied Feb. 8, 2016.

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

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

OPINION

Justice LAVIN delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Samuel White was found guilty of being an armed habitual criminal as well as two counts of armed violence, unlawful possession of a weapon by a felon, and two counts of possession of a controlled substance. After determining that several counts merged, the trial court imposed three concurrent 18–year prison terms for the armed habitual criminal offense and the two counts of armed violence. On appeal, defendant asserts that the evidence was insufficient to sustain all three convictions because each of those offenses required the State to prove defendant had a handgun and the police officer's testimony that he saw defendant with a handgun was contrary to human experience. Defendant also asserts that the evidence was insufficient to sustain his armed habitual criminal conviction because his underlying conviction for domestic battery did not constitute a necessary predicate offense. Defendant further asserts that one or both of his armed violence convictions should be vacated and that his sentence was excessive.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with being an armed habitual criminal in that on March 21, 2012, he “knowingly or intentionally possessed a firearm, to wit: [a] handgun, after having been convicted of aggravated domestic battery under case number 09CR–22130 and first degree murder under case number 94CR–14140.” We note that the conviction under case number 09CR–22130 was actually for domestic battery, not aggravated domestic battery. Additionally, defendant was charged with one count of armed violence based on possessing 5–Methoxy–N, N–Diisopropyltryptamine while armed with a handgun and another count of armed violence based on possessing N–Benzylpiperazine while armed with a handgun. Furthermore, defendant was charged with two counts for separately and unlawfully possessing those same controlled substances as well as unlawful use of a weapon by a felon.

¶ 4 At trial, Officer Brian McDevitt testified that at about 10 p.m. on March 21, 2012, he was working with Officer May and Officer Carey in an unmarked car. Officer McDevitt was in civilian dress but was wearing a ballistics vest bearing a police insignia. Additionally, Officer McDevitt's duty belt and firearm were visible.

His partners were similarly dressed. At about 10:30 p.m., the officers responded to a call of shots fired in the area of 6535 South California Avenue. Although the officers observed no one in the courtyard at that address, they saw defendant and another man in the next courtyard over at 6527 South California Avenue. No other individuals were in the area. Furthermore, street lamps lit the courtyard and nothing obstructed Officer McDevitt's view.

¶ 5 He quickly walked into the courtyard, which he described as being about 20 feet wide by 50 feet deep, and approached the two men with his gun drawn. Officer McDevitt then saw defendant reach into his waistband, remove a “small silver handgun with light shining from the metal,” and walk toward the building's door. Despite seeing a handgun, Officer McDevitt did not immediately inform his partners that defendant was armed. At some point, Officer McDevitt ordered defendant to stop. That fact, however, was not included in the police report. After defendant opened the door to the building and threw the handgun inside, he walked a few steps away from the entrance. Officer Carey secured defendant and the other individual together, while Officer McDevitt opened the door to the building.

¶ 6 Inside the building, a second door with a lock separated the hallway from the apartments, although it was possible that the door was not locked. In addition, Officer McDevitt retrieved a loaded silver .22–caliber handgun from the hallway floor. No other items were in the area and the handgun looked like the item that defendant removed from his waistband. After securing the weapon, Officer McDevitt performed a custodial search of defendant, which revealed 1 clear plastic bag holding 12 smaller bags of suspect cannabis and another bag holding 6 multicolored pills containing suspect Ecstasy. The parties later stipulated that the substances found on defendant's person contained cannabis, 5–Methoxy–N, N-diisopropyltryptamine, and N–Benzylpiperazine. Officer McDevitt further testified that defendant said the gun belonged to him but he had not known it was in his immediate possession. Moreover, defendant said he had heard gunshots but that examining his handgun would confirm that it had not been fired. The individual with defendant was permitted to leave when a search revealed no contraband. Officer McDevitt did not run a check on either man's name and did not know whether the other officers did.

¶ 7 The State then submitted a certified copy of defendant's 1997 conviction under case number 94 CR 1414003 for committing first-degree murder, and purported to submit a certified copy of his 2010 conviction under case number 09 CR 2213001 for “Class 4 aggravated domestic battery.” With that said, the certified copy of conviction included in our record shows that defendant had actually been charged under “720–5/12–3.2(a)(1)” with a Class 4 felony of “Domestic BTRY/Bodily Harm PRI.” Defendant was sentenced to two years' probation and six months in prison for that prior conviction.

¶ 8 Barbara Taylor testified on defendant's behalf that on the night in question, she was with her sister, Fairy Stennis, and her friend, Diane Walton. The three women were talking and listening to music with the windows down in Stennis' car, which was parked in front of Walton's apartment building at 6527 South California Avenue. In addition, defendant was sitting in a chair in the courtyard and Taylor could hear him searching through music on his phone. Taylor knew defendant through Walton, with whom he had an amorous relationship. Although another man was standing by defendant, Taylor had never seen him before. Taylor never heard gunshots fired.

¶ 9 Suddenly, a car pulled up behind the three women and two police officers exited. The officers ordered defendant and his companion not to move. Taylor then heard over the police radio that gunshots had been reported in the alley of 6535 or 6537 California. When the three women exited their car, Stennis and Walton walked into the courtyard while Taylor remained by the sidewalk. In addition, she did not see defendant throw a gun into the hallway. The police did, however, cuff defendant's hands behind his back. Furthermore, the police emptied defendant's pockets, which contained his wallet, his cell phone and keys. Moreover, Taylor heard over the radio that the police were looking for a man with dreadlocks and a white T-shirt. Defendant wore a white T-shirt but did not have dreadlocks. After more officers entered the courtyard, the police apparently entered the building. Walton argued with one officer who was preventing her from entering. The police then exited the building and announced that they were taking defendant with them.

¶ 10 Stennis testified that before the three women went out on the night in question, Walton said hello to defendant, her boyfriend. When they returned, they sat in Stennis' car for about an hour while defendant sat outside. The women made eye contact with defendant but did not say hello. Defendant was playing a game on his iPod but she could not hear any music coming from it because he was too far away. Another man who was near defendant appeared to be singing or rapping. The three women never heard gunshots.

¶ 11 After about an hour, a police car stopped behind Stennis' car. An officer, apparently Officer McDevitt, proceeded into the courtyard and ordered defendant, who was sitting in a chair, not to move. Officer McDevitt's gun was not drawn and Stennis never saw defendant approach the door. In addition, Stennis and Walton walked into the courtyard while Taylor remained by the sidewalk. Defendant was then handcuffed to the other man and searched. Stennis never saw any pills on defendant's person. Meanwhile, Stennis heard over the police radio that gunshots had been fired in an alley and the police were looking for a man with a white T-shirt and dreadlocks. Police officers then entered the building. Over Walton's objection, they went inside her apartment. Walton and Stennis followed the officers inside, where they threw pillows off of Walton's couch. The officers returned outside empty handed, however. Both defendant and the other man were taken to the police station.

¶ 12 Defendant testified that on the night in question, he was visiting Walton. He described her as a “[f]riend, more like a girlfriend but more a friend.” When he arrived, he spoke to her briefly but then she and her friends went to the store. When they returned, they acknowledged each other but did not say hello to one another. Defendant did not want to interrupt their “women's talk.” During the 45 minutes that the women sat in the car, defendant played a game on an iPod. Another man, whose name defendant did not know, stood nearby and rapped. Defendant also talked to the man. Furthermore, defendant did not hear shots fired.

¶ 13 When the police arrived, they told defendant not to move and he complied. He never threw a gun into the hallway and Officer McDevitt found no contraband while searching him. His pockets did contain, however, Walton's apartment key. In addition, defendant...