NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 200363-U
Order filed March 16, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0363 v. ) Circuit No. 17-CF-779 ) RAYMOND C.L. LINDSEY, ) Honorable ) Kevin W. Lyons, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HAUPTMAN delivered the judgment of the court. Presiding Justice O’Brien and Justice Schmidt concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: (1) While the court erred in permitting the jury to hear that defendant had been convicted of a “forcible” felony and admitting into evidence hearsay testimony, these forfeited errors are not reversible plain errors. (2) The court erroneously considered during sentencing that defendant exercised his right to a jury trial, defendant had been the victim of violent criminal conduct of other people, and that defendant was involved in an order of protection case that was subsequently dismissed.
¶2 Defendant, Raymond C.L. Lindsey, appeals from his conviction of unlawful possession
of a weapon by a felon (UPWF). Defendant argues the Peoria County circuit court: (1) erred in allowing the jury to hear that he had previously been convicted of a “forcible” felony and
inadmissible hearsay testimony, and (2) violated his right to a fair sentencing hearing by relying
on three improper factors in aggravation. We affirm in part, vacate in part, and remand for
resentencing.
¶3 I. BACKGROUND
¶4 The State charged defendant with UPWF (720 ILCS 5/24-1.1(a) (West 2016)), a Class 2
felony. The indictment alleged that defendant “knowingly had in his possession a firearm being a
handgun and the defendant has been previously convicted of a forcible felony being residential
burglary.” Defendant waived his right to counsel and proceeded as a self-represented litigant.
¶5 Before trial, the court notified defendant that the State would have to prove that
defendant had previously been convicted of a “forcible” felony. The State proposed two ways to
introduce this evidence: (1) if defendant were willing to stipulate to the admission, the jury
would only be informed that defendant was a forcible felon and would not be notified of the
nature of the prior offense, or (2) if defendant did not stipulate, the State would present a
certified copy of his prior conviction to the jury. Defendant generally objected to the use of the
term “forcible” before felony. The State responded that it was required to prove defendant had a
prior “forcible” felony conviction because UPWF was charged in this case as a Class 2 felony.
Defendant agreed to stipulate to his prior “forcible” felony conviction.
¶6 During jury selection, the court explained to the venire that the UPWF charge was based
on the allegation that defendant possessed a firearm after previously being convicted of a
“forcible” felony.
¶7 In its opening statement, the State noted that the Peoria Police Department received an
anonymous tip that a black male wearing a black shirt and torn jeans with a black and gray
2 backpack had a handgun with tape wrapped around the handle. Officer Charles Bruess located an
individual who matched the description. That individual was defendant.
¶8 Bruess testified that on September 24, 2017, he was dispatched to the River West
apartment complex on a report that “a male in the park, just north of the complex, that had a
backpack and was showing children guns.” Dispatch further described the black male with a gun
as wearing a black T-shirt and cut up blue jeans, carrying a black and gray backpack. The gun
was black with tape wrapped around the handle. At the apartment complex, Bruess saw an
individual matching the description and identified the individual as defendant. Bruess addressed
defendant, and defendant started walking away from Bruess. Defendant “dropped the backpack
off on the porch of [one] of the apartments.” Bruess called out to defendant again, and defendant
approached Bruess. Bruess grabbed defendant by the arm and attempted to place him in
handcuffs. Defendant pulled his arm away. When Officer Rachel Kindred arrived, Bruess told
her to retrieve the backpack defendant had left near the apartment. Defendant then hit Bruess in
the chest with his right elbow and fled. Officers eventually apprehended defendant. A .40-caliber
black handgun with black electrical tape wrapped around the handle was discovered inside the
backpack.
¶9 Kindred testified that on September 24, 2017, she was dispatched to the River West
apartment complex on a report that a male walking around the area was “showing guns to kids.”
According to the dispatch, the gun was located in a black and gray backpack. The suspect was
wearing a black T-shirt and ripped blue jeans. At the scene, Kindred saw another officer with
defendant, who was wearing clothing that matched the description provided by dispatch, and she
saw the backpack on a nearby porch. Two or three people were standing near the backpack.
Kindred secured the backpack before any of the individuals could access it. Defendant fled as
3 Kindred secured the backpack, and after the chase, Kindred and Bruess opened the backpack and
found a handgun and ammunition inside. Kindred described the handgun as a .40-caliber pistol
with black tape around the handle.
¶ 10 Officer Jacob Faw testified that on September 24, 2017, he was dispatched to the River
West apartment complex on a report of a black male wearing a black T-shirt and ripped blue
jeans, carrying a backpack, and armed with a handgun. Bruess radioed that he was with a male
that matched the description provided by dispatch. Moments later, Bruess radioed that the male
had fled. Faw identified defendant as the individual dispatch had described. At first, Faw
followed defendant in his patrol vehicle, and then chased him on foot. While in pursuit, Faw saw
defendant pull up his shirt in a way that revealed the butt of a handgun in his waistband. Faw lost
sight of defendant for approximately five seconds, and when officers apprehended defendant, he
did not have a gun on his person.
¶ 11 The State introduced into evidence the video from Faw’s patrol vehicle. The video shows
defendant run past while wearing clothing that matched the description provided by dispatch.
While running, defendant grabs at his waistband.
¶ 12 Officer David Buss testified that he searched the backpack at the scene. In addition to the
handgun and ammunition discovered by Bruess and Kindred, Buss found a pay stub that
belonged to defendant inside the backpack. Buss acknowledged that although his police report
mentioned the handgun was inside the backpack, he did not indicate in his report that he found
the pay stub inside the backpack. Photographs introduced into evidence showed the handgun
inside the backpack at the scene. Another photograph showed only the pay stub.
¶ 13 Buss also testified that he found no fingerprints suitable for comparison on the handgun,
and DNA testing on the gun was unable to obtain a complete profile suitable for comparison.
4 ¶ 14 Toward the end of the State’s case-in-chief, it introduced the parties’ stipulation. The
court told the jury
“Stipulation would be that the parties have—rather than require testimony to
prove up a prior conviction of residential burglary, [defendant] and [the State’s
attorney] have agreed that that would not be contested. And the jury may
consider, as a stipulation—in other words, by agreement—that the defendant has
been convicted of residential burglary in 2013[.]”
¶ 15 After the State rested, defendant chose to testify. Defendant testified that he never
possessed the backpack, handgun, or ammunition. Defendant acknowledged that the pay stub
belonged to him, and he had carried it inside the pocket of his jeans. Defendant was sitting on the
porch when officers approached him, and he ran because one of his friends had recently been
killed by a police officer. The State impeached defendant’s testimony with his 2013 convictions
for residential burglary and attempted aggravated robbery.
¶ 16 During the jury instruction conference, the State tendered modified versions of Illinois
Pattern Jury Instructions, Criminal, Nos. 18.07 and 18.08 (approved July 18, 2014). The first
instruction stated: “A person commits the offense of [UPWF] when he, having been previously
convicted of a forcible felony, knowingly possesses a firearm.” The second proposed instruction
stated:
“To sustain the charge of [UPWF], the State must prove the following
propositions:
First Proposition: That the defendant knowingly possessed a firearm; and
Second Proposition: That the defendant had previously been convicted of
a forcible felony.
5 If you find from your consideration of all the evidence that any one of
these propositions has not been proved beyond a reasonable doubt, you should
find the defendant not guilty.
If you find from your consideration of all the evidence that each one of
these propositions has been proved beyond a reasonable doubt, you should find
the defendant guilty.”
In response to the State’s proposed instructions, defendant inquired “what do they mean when
they say a ‘forcible felony’? Because that sounds kind of violent to me when it says, ‘Forcible.’ ”
The court explained “In Illinois, there are—sometimes the Judge has to determine whether
something is a forcible felony, but the statute does list, I don’t know, 10 or so crimes that are
forcible felonies. And residential burglary, I’m sure—I think is 1 of them.” The State added “It
is; aggravated robbery as well.” The court and the State further explained that if defendant did
not have a prior “forcible” felony, he would have been charged with “unlawful possession of a
[firearm].”
¶ 17 During its closing argument, the State discussed the evidence, including that the Peoria
Police Department received a call that an individual wearing a black T-shirt and cut up jeans
with a black and gray backpack had a black handgun with tape wrapped around the handle.
Officers identified an individual matching this description at the scene as defendant. The State
also discussed the jury instructions explaining that two of the instructions were particularly
important. First, “ ‘A person commits the offense of [UPWF] when he, having been previously
convicted of a forcible felony, knowingly possesses a firearm.’ ” Second, to sustain the charge of
UPWF, the jury must find that defendant knowingly possessed a firearm and had previously been
convicted of a “forcible felony.” The State explained “The defendant and myself stipulated that
6 he’s been previously convicted of a forcible felony. You heard that he’s been previously
convicted of residential burglary and attempted aggravated robbery. That satisfies that element;
you can move on.” Then, the State argued that the first, and only contested element—that
defendant knowingly possessed a firearm—had also been proven.
¶ 18 At the end of its rebuttal argument, the State again noted that “The defendant’s been
prior—previously convicted of a forcible felony. Find him guilty.”
¶ 19 The court instructed the jury using the modified jury instructions tendered by the State.
The jury found defendant guilty.
¶ 20 Before sentencing, defendant requested counsel to represent him during the posttrial
proceedings. The court appointed counsel to represent defendant.
¶ 21 At the conclusion of the sentencing hearing, the court sentenced defendant to 11 years’
imprisonment. In support of the sentence, the court discussed a 2012 Peoria County order of
protection case that defendant was the subject of. 1 The court stated:
“[The] allegations were that [defendant] tried to kick in her door, harassed her by
telephone, threatened to kill her, and beat her up, broke her patio window and
television, choked her and punched her in the face, choked her and bit her on the
neck.
Those events occurred she says on October 16th, October 27th, October
30th, and October 31st, of 2012. Good grief.”
Regarding the present case, the court said
1 There is no indication in the record that the request for an order of protection was granted. Moreover, the Peoria County circuit court’s website, which we take judicial notice of, indicates that the order of protection case mentioned in the presentence investigation report, case No. 12-OP-1444 was dismissed. See People v. Alvarez-Garcia, 395 Ill. App. 3d 719, 726 (2009). 7 “Twelve people from the community had to come and listen to you and listen to
the police and listen to whoever you could get to testify and drag you over the
finish line to get you where we are, not because [defendant] took any
responsibility or accountability for his own actions.
No. It was a fight every step of the way. I don’t like my lawyer. I don’t
like the facts. I don’t like the testimony. I don’t like the juror.”
The court also discussed evidence in the presentence investigation report that indicated that
defendant was stabbed in 2000, fractured his skull in 2003, was shot in 2009, was stabbed in
2011, and had undergone seven life-saving surgeries. The court said “What’s left? You’re
running out of moments. I don’t think you’re a bad guy, [defendant], but you can’t pull it in, and
people are going to visit you at a funeral home.” Defendant attempted to interject during the
court’s ruling, but the court continued:
“Be quiet. If you keep up what you’re doing, the only thing you need to worry
about is the law of probability. Most people go through their whole lives and
never get arrested. You can’t keep from it. Most persons go their whole life
without being the victim of a violent crime. You’ve been stabbed, skull fractured,
shot in the groin, and stabbed in the back. Do you not see where you’re headed?
Golly.”
¶ 22 After sentencing, counsel filed a motion to reconsider sentence. The motion argued that
the court assigned too much weight to the aggravating factors and too little weight to the factors
in mitigation. At the hearing on the motion, counsel argued defendant’s 11-year sentence was
excessive and the court erred in relying on the aggravating factors. The court denied the motion,
and defendant appeals.
8 ¶ 23 II. ANALYSIS
¶ 24 A. Trial Errors
¶ 25 Defendant argues the court erred in allowing the jury to hear (1) he had previously been
convicted of a “forcible” felony, and (2) inadmissible hearsay testimony from several officers
that an unnamed caller told police that an individual matching defendant’s description showed a
handgun to children. Defendant acknowledges that he failed to preserve these errors for appellate
review (see People v. Enoch, 122 Ill. 2d 176, 186 (1988)), but he argues that they are reversible
plain errors. See People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 26 The plain error rule permits a court to consider a forfeited claim of error when:
“(1) a clear or obvious error occurred and the evidence is so closely balanced that
the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.” Id. (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).
“A defendant seeking plain-error review has the burden of persuasion to show the underlying
forfeiture should be excused.” People v. Johnson, 238 Ill. 2d 478, 485 (2010). We review
de novo whether a forfeited claim is reviewable as plain error. Id. The first step of plain error
review is to determine if the court erred. People v. Thompson, 238 Ill. 2d 598, 606 (2010).
¶ 27 The State concedes that the court committed a clear and obvious error when it:
(1) allowed the jury to hear that defendant had been convicted of a “forcible” felony, and
(2) admitted hearsay testimony from Bruess, Kindred, and Faw that an unnamed caller told
police that an individual matching defendant’s description had a handgun. We agree with the
9 parties that the court erred in allowing the jury to hear that defendant had been convicted of a
“forcible” felony. Although the court correctly indicated to defendant that his UPWF charge was
enhanced to a Class 2 felony due to his commission of a prior “forcible” felony (720 ILCS 5/24-
1.1(a) (West 2016)), this was not an element of the offense that the jury was required to find. See
People v. Webb, 2018 IL App (3d) 160403, ¶ 17 (whether a prior conviction constitutes a
“forcible” felony is a question of law); see also Illinois Pattern Jury Instructions, Criminal, No.
4.05, Committee Note (approved July 18, 2014) (explaining that the jury should not be instructed
on the term “forcible” felony). Additionally, the court erred in permitting the jury to hear
inadmissible hearsay evidence from three officers that the case began when an unnamed caller
informed the Peoria Police Department that a person matching defendant’s description was
showing a handgun to children. See Ill. R. Evid. 801(c) (eff. Oct. 15, 2015); Ill. R. Evid. 802 (eff.
Sept. 28, 2018). Accordingly, we proceed to the second step of the plain error analysis,
determining whether defendant has met his burden to establish prejudice.
¶ 28 To determine whether the evidence was so closely balanced that the contested errors
prejudiced the outcome of defendant’s trial, we must “evaluate the totality of the evidence and
conduct a qualitative, commonsense assessment of it within the context of the case.” People v.
Sebby, 2017 IL 119445, ¶ 53. This inquiry “involves an assessment of the evidence on the
elements of the charged offense or offenses, along with any evidence regarding the witnesses’
credibility.” Id.
¶ 29 Here, the State charged defendant with UPWF. To sustain this charge, the State was
required to prove that defendant (1) knowingly possessed a weapon on or about his person, and
(2) he had been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2016).
10 ¶ 30 At trial, Bruess testified that he saw defendant holding a backpack. Defendant set the
backpack down before approaching Bruess. Bruess and Kindred later discovered a handgun in
the backpack, and Buss documented the handgun along with a pay stub found in the backpack
that belonged to defendant. Together, this evidence established that defendant possessed the
handgun in the backpack. In addition to this evidence, defendant exhibited a consciousness of
guilt, as he broke free from Bruess and fled when Bruess directed Kindred to secure the
backpack. See People v. Carter, 2016 IL App (3d) 140196, ¶ 33. Also, during defendant’s flight,
Faw observed defendant reach toward his waistband as if he had a second weapon. Faw’s
testimony was largely corroborated by the video recorded from his patrol vehicle. Thus, the
evidence also established that defendant possessed a second firearm. The second element, the
existence of defendant’s prior felony conviction, is not disputed.
¶ 31 In opposition to the State’s evidence of possession, defendant testified that he never
possessed the handgun and indicated that the pay stub fell out of his pocket. Defendant also said
that he fled because he feared police officers after his friend had allegedly been killed by an
officer. Defendant’s explanation that he did not possess the handgun or backpack was less
credible than the consistent testimony of the officers. Additionally, defendant’s credibility was
impeached by his prior felony convictions. Moreover, defendant’s rationale for fleeing the scene
is undermined by the fact that he initially approached Bruess and only fled when Bruess directed
Kindred to secure the backpack that contained the handgun. Therefore, from our review, the
evidence that defendant possessed a handgun was not closely balanced.
¶ 32 Defendant argues that the “forcible” felony and hearsay errors either individually or
cumulatively warrant reversal under the second prong of the plain error rule. See People v. Blue,
11 189 Ill. 2d 99, 134 (2000) (finding the cumulative effect of several errors deprived defendant of
his right to a fair trial).
¶ 33 Under the second prong of the plain error review, defendant must prove that the alleged
error was so serious that it affected the fairness of the trial or undermined the integrity of the
judicial process. People v. Jackson, 2020 IL 124112, ¶ 81. Prejudice is presumed because of the
importance of the right involved. Sebby, 2017 IL 119445, ¶ 50. In Thompson, 238 Ill. 2d at 609,
613, our supreme court equated second prong plain errors with structural errors and provided the
following examples of structural errors: “complete denial of counsel, trial before a biased judge,
racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial
of a public trial, and a defective reasonable doubt instruction.” Prior to Thompson, our supreme
court explained that reversible second prong plain errors are “so prejudicial to the defendant that
the trial court could not cure the error by sustaining an objection or instructing the jury to
disregard the error.” People v. Herrett, 137 Ill. 2d 195, 215 (1990).
¶ 34 In this case, both the hearsay and “forcible” felony errors could have been cured by
sustaining an objection. Moreover, these errors are not of the same magnitude as the structural
errors that the Thompson court explained would require reversal under the second prong.
Accordingly, these errors are not individually subject to reversal under the second prong of the
plain error analysis.
¶ 35 We next consider whether the cumulative effect of the hearsay and “forcible” felony
errors require reversal under the second prong. Our analysis on this argument is guided by our
supreme court’s decision in Blue. The defendant in Blue was tried and convicted of the first
degree murder of a police officer. Blue, 189 Ill. 2d at 103, 108-09. The supreme court held the
circuit court erred in allowing the victim’s bloody, brain-spattered police uniform to be displayed
12 on a mannequin during the testimony of several witnesses and sent to the jury room during
deliberations, along with gloves so the jurors could handle the uniform. Id. at 121-26. The Blue
court also found that error occurred during closing argument, where the State said that the
victim’s family needed to “ ‘hear’ from the jury” and that the jury should send a message to the
police that it supported them. Id. at 130-33. The supreme court found that the erroneous
argument was compounded by the erroneous admission of irrelevant evidence regarding the
victim’s family, oath of office, and fact that the victim’s police badge was retired and displayed
in the “ ‘honored star case’ ” at the police department. Id. at 133. The Blue court also found that
error occurred where the State made “ ‘testifying’ objections.” Id. at 136. The supreme court held
the cumulative effect of these errors deprived the defendant of a fair trial and that reversal was
required despite the overwhelming evidence of the defendant’s guilt. Id. at 139-40.
¶ 36 The two errors at issue in this case are not nearly as egregious as the errors that deprived
the defendant in Blue of his right to a fair trial. While the erroneous references to defendant’s
prior “forcible” felony painted defendant in a more negative light than necessary, they caused
minimal prejudice as the nature of the UPWF charge required that the jury receive some
evidence of defendant’s prior felony conviction. See 720 ILCS 5/24-1.1(a) (West 2016).
Moreover, the addition of the term “forcible” slightly increased the State’s burden, as it required
the State to prove not only did defendant have a prior felony conviction, but that felony was a
“forcible” felony. Additionally, the hearsay testimony carried little prejudice, as it merely set up
the officer’s testimony as to why they were dispatched to the area and did not conclusively
establish that defendant was the individual who possessed the handgun. Together, these errors
had far less effect on defendant’s trial than the more numerous and severe errors found to have
cumulatively deprived the defendant in Blue of his right to a fair trial.
13 ¶ 37 B. Sentencing
¶ 38 In the alternative, defendant argues the court violated his right to a fair sentencing
hearing where it improperly relied on the following three factors in aggravation: (1) defendant’s
decision to exercise his constitutional right to a jury trial, (2) defendant’s history of being a
victim to violent criminal conduct, and (3) the unsubstantiated allegations from a 2012 order of
protection case that was ultimately dismissed. The State concedes that the court erred in
considering the allegations derived from the dismissed order of protection case, but the State
argues the court did not err in considering the other two factors. The State contends defendant is
not entitled to a new sentencing hearing because the record fails to establish that the court
imposed a longer sentence due to the improper factor.
¶ 39 Generally, we review the imposition of a sentence for an abuse of discretion. People v.
Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. However, the issue of whether the court considered an
improper factor in aggravation presents a question of law and is subject to de novo review. Id.
¶ 40 Defendant’s fundamental right to liberty includes the right not to be sentenced based on
improper factors. People v. Martin, 119 Ill. 2d 453, 458 (1988) (citing People v. Conover, 84 Ill.
2d 400, 405 (1981) for the proposition that a sentence based on improper factors will not be
affirmed unless a reviewing court determines that the weight placed on the improper aggravating
factor was so insignificant that it did not lead to a greater sentence). Improper aggravating factors
include consideration of: a defendant’s decision to exercise his right to a jury trial (see People v.
Moriarty, 25 Ill. 2d 565, 567 (1962)), the conduct of a person other than defendant absent
evidence that defendant was responsible for the other person’s conduct (see People v. McPhee,
256 Ill. App. 3d 102, 114 (1993)), and pending charges or unsubstantiated allegations that
defendant committed criminal conduct (see People v. Minter, 2015 IL App (1st) 120958, ¶ 150).
14 The cause must be remanded for resentencing where we are unable to determine the weight the
court gave to an improper factor. People v. Sanders, 2016 IL App (3d) 130511, ¶ 13. Remand is
not required where the record establishes that the court placed insignificant weight upon the
improper aggravating factor. Id.
¶ 41 We note that a sentence within the applicable sentencing range carries a presumption of
validity. People v. Sauseda, 2016 IL App (1st) 140134, ¶ 12. Here, defendant was sentenced to
11 years’ imprisonment, which is within the sentencing range of 3 to 14 years’ imprisonment
prescribed by section 24-1.1(e) of the Criminal Code of 2012 for a Class 2 felony UPWF charge.
720 ILCS 5/24-1.1(e) (West 2016).
¶ 42 Although defendant’s sentence is within the applicable sentencing range, the presumption
of validity is undermined by the court’s express consideration of defendant’s decision to exercise
his right to a jury trial, history of being a victim of violent crime, and unsubstantiated allegations
from the 2012 order of protection case. See supra ¶ 21. First, the court’s comment that “[t]welve
people from the community had to come and listen to you and listen to the police and listen to
whoever you could get to testify,” impliedly criticized defendant for exercising his right to a jury
trial. Second, the court improperly considered, at some length, the evidence of defendant’s
history of being the victim of violent crime because there was no evidence to show that the acts
of violence committed against defendant were brought on by defendant’s conduct. Finally, the
court erred in considering the unsubstantiated allegations from a 2012 order of protection case.
To properly consider these allegations, the court needed to receive evidence proving the facts
underlying the allegations. See Minter, 2015 IL App (1st) 120958, ¶ 150. Due to the court’s
references to, and at times, extensive discussion of these aggravating factors, we are unable to
15 say that the court placed little weight on these improper factors. Accordingly, we vacate
defendant’s sentence and remand for a new a sentencing hearing.
¶ 43 III. CONCLUSION
¶ 44 The judgment of the circuit court of Peoria County is affirmed in part, vacated in part,
and remanded with directions.
¶ 45 Affirmed in part, vacated in part. ¶ 46 Cause remanded with directions.