2017 IL App (1st) 122370-B
FIRST DIVISION
February 27, 2017
No. 1-12-2370
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 18811 ) JAMAL SMITH, ) The Honorable ) Diane Cannon, Defendant-Appellant. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Jamal Smith, appeals his convictions for unlawful use of a weapon by a felon
(UUWF) (720 ILCS 5/24-1.1(a) (West 2008)) and aggravated unlawful use of a weapon by a
felon (AUUW) (720 ILCS 5/24-1.6 (West 2008)) and his sentence of five years’ imprisonment.
On appeal, Smith contends (1) the trial court improperly limited defense counsel’s cross-
examination of Officer Moore; (2) the supreme court’s decision in People v. Aguilar, 2013 IL
112116, rendered the predicate felony used to prove an element of his offense unconstitutional
and void; therefore, his convictions for UUWF and AUUW should be vacated; and 3) if his
UUWF conviction is affirmed, this court should reduce his conviction from a Class 2 felony to a
Class 3 felony. On March 25, 2014, this court issued a judgment vacating both convictions. On
September 28, 2016, our supreme court, in the exercise of its supervisory authority, directed this No. 1-12-2370
court to vacate the March 25, 2014, judgment and reconsider in light of People v. McFadden,
2016 IL 117424, and People v. Burns, 2015 IL 117387. The parties submitted supplemental
briefs on the issue. Upon reconsideration, we vacate Smith’s conviction of AUUW but affirm his
conviction of UUWF.
¶ 2 JURISDICTION
¶ 3 The trial court sentenced Smith on July 25, 2012. He filed a notice of appeal on the same
date. 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 Rules 603 (eff. Feb. 6,
2013) and 606 (eff. Dec. 11, 2014) governing appeals from a final judgment of conviction in a
criminal case entered below.
¶ 4 BACKGROUND
¶ 5 Smith was charged, as a previously convicted felon, with one count of UUWF for being
in possession of a semiautomatic handgun and one count of AUUW by a felon for possession of
a revolver. The following evidence was elicited at Smith’s jury trial. On October 3, 2009, at
around 9:40 p.m., Chicago Police Tactical Officer Ronald Moore, dressed in plain clothes, rode
in the front passenger seat of an unmarked police car driven by Officer LeMyles Remias.
Sergeant Richard Rochowicz was in the backseat of the car. In the area of 8800 South Halsted
Street, Officer Moore observed that the female driver in the vehicle to the right of him was not
wearing a seatbelt. They activated the police car’s lights and pulled the car over. Officer Remias
approached the driver, later identified as Natasha Kennedy. Officer Moore and Sergeant
Rochowicz approached the passenger side of the car. As they approached, they observed the
front seat passenger, defendant Smith, “leaning over as if he appeared to be placing something
under his seat.” Officer Moore also observed a male passenger, later identified as Christopher
Smith, in the rear seat.
¶ 6 The officers learned that Kennedy’s license had been revoked and placed her under
arrest. The occupants exited the vehicle, and Sergeant Rochowicz searched the vehicle before it
was towed. While searching, Sergeant Rochowicz found a gun and announced “143 Adam” to
alert the other officers. When he looked in the backseat, Sergeant Rochowicz found a second gun
and announced “times two.” After being advised of his Miranda rights, Sergeant Rochowicz
asked Smith, “[W]hat’s up with the gun.” Smith acknowledged owning the guns and stated that
he was taking the weapons to his “aunt’s house because we’re going out of town.” Officer Moore
testified that he observed suitcases in the backseat of the car.
¶ 7 On cross-examination, Officer Moore stated that when he checked the ownership of the
vehicle, he found that it did not belong to Smith. His towing report did not account for the
luggage, and he could not recall what had happened to the luggage. Officer Moore also
acknowledged that the “143 Adam” code was not noted in any case or police reports, but it was a
term officers often used. He stated that he did not see any weapons as he initially approached the
car or at any time before Sergeant Rochowicz recovered the weapons. Officer Moore stated that
neither he nor the other officers wrote down Smith’s statement that the guns belonged to him.
Also, an assistant State’s Attorney did not come to interview Smith, and his statement was not
videotaped.
¶ 8 Defense counsel then attempted to question Officer Moore about a five page incident
report he filed:
“Q. And, officer, this is a five-page report, correct?
A. Yes.
Q. And this report—there is an area where you have to identify suspects, correct?
Q. Those who are victims, right?
A. Yes
Q. What kind of case this is?
Q. And it would list all of the suspects, right?
Q. And there’s all kinds of information that you have to put in here about the
vehicle?
THE COURT: Ladies and gentlemen, police reports are not evidence. You won’t
be getting police reports, not just in this case, but in any case just so you understand that.
If they were, we would just give you the police report and send you back there. They are
not evidence.
MS. PANOZZO [Defense attorney]: Correct?
Q. And there’s a section here where you can prepare a narrative, which is a
summary of what occurred, right?
Q. And you prepared that summary?
Q. All right. In that summary it talks about this—
THE COURT: That will be sustained. Anything in the police report is not
evidence. It is not admissible, ladies and gentlemen. Counsel knows that and now you
know it too.”
¶ 9 On redirect, Officer Moore stated that the other occupants of the vehicle, Christopher
Smith and Natasha Kennedy, were found in possession of cannabis and they were brought to the
police station on that basis.
¶ 10 Sergeant Rochowicz testified that on October 3, 2009, he worked as a tactical supervisor
for a team of officers focused on gang and narcotics enforcement. That night, he, Officer Moore,
and Officer Henry Remias wore plain clothes and traveled in an unmarked police car. In the
vicinity of 88th Street and Halsted Street, they observed a female driver not wearing a seat belt.
They activated the police car’s lights and pulled the car over. As Sergeant Rochowicz
approached the stopped vehicle, he noticed the person sitting in the front passenger seat (which
he identified as Smith) “crouching down reaching towards the floor area of the vehicle.”
¶ 11 After the occupants exited the vehicle, Sergeant Rochowicz looked under the front
passenger seat and found a “semiautomatic silver .32 caliber” handgun. The gun contained one
live round in its chamber. Sergeant Rochowicz continued his search and found a second gun, a
.38-caliber revolver containing five live rounds, behind the driver’s side backseat. He read Smith
his Miranda rights, and after Smith agreed to speak, he asked him, “[W]hat’s up with the gun?”
Smith told him that the gun was his and there was another gun in the rear compartment of the
car. He stated that he was dropping the guns off at his aunt’s house because he was going out of
town. Sergeant Rochowicz observed luggage in the backseat of the car. At the police station, he
gave the recovered weapons and ammunition to Officer Paublo Delgado for inventory.
¶ 12 On cross-examination, Sergeant Rochowicz stated that as he approached the stopped
vehicle, he could not see Smith’s hands or what he was doing. He acknowledged that while a
license check was performed on the driver, he kept his eyes on Smith and did not watch the rear
seat passenger. He stated that while he searched the car, he did not wear gloves nor did he wear
gloves when handling the recovered weapons. No evidence technician was called to the scene,
and no photographs were taken of the car or the guns. Likewise, no one inventoried or
photographed the luggage. Sergeant Rochowicz did not write down Smith’s statement, nor did he
give him paper on which to write down his statement. An assistant State’s Attorney did not take
a statement nor was a statement recorded or videotaped.
¶ 13 On redirect, Sergeant Rochowicz stated that he has pulled over a vehicle and found
something illegal hundreds of times in his career. He testified that the police do not call an
evidence technician to the scene every time, usually only if a shooting occurred or if a burglary
with an unknown offender occurred. He stated that handwritten statements are usually taken in
violent crime situations, and video statements are usually taken in cases of homicide.
¶ 14 Illinois State Police forensic chemist Jeanne Hutcherson testified as an expert in latent
print examination. She stated that she examined the revolver and five rounds of ammunition
recovered and found with a reasonable degree of scientific certainty no latent prints suitable for
identification. Chicago police forensic investigator Herbert Keeler, an expert in fingerprint
identification, examined the handgun and one live round of ammunition recovered. He testified
that he could only recover “partials and smudges.”
¶ 15 The parties stipulated that Smith had been convicted previously of a qualifying felony.
Specifically, Smith had a prior conviction of the Class 2 felony offense of AUUW under case
No. 05 CR 17607. Smith’s conviction under case No. 05 CR 17607, in turn, was supported by his
prior felony conviction under case No. 05 CR 13735 for a violation of section 24-1.6(a)(1),
(a)(3)(A) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West
2004)). The State rested and defense counsel made a motion for a directed finding which the trial
court denied. Defense counsel rested without presenting evidence. The jury found Smith guilty
of UUWF regarding the handgun, and AUUW regarding the revolver. After denying Smith’s
motion for a new trial, the trial court merged his AUUW conviction into his UUWF conviction
and sentenced Smith to five years’ imprisonment. Smith filed this timely appeal.
¶ 16 ANALYSIS
¶ 17 Smith’s first contention is that the trial court erred when it “sua sponte precluded [his]
attorney from cross-examining Officer Moore” about Smith’s alleged statement and foiled
counsel’s attempt to impeach Officer Moore by omission using his police report. Smith has
forfeited this issue on review, however, by failing to object at trial during the cross-examination.
See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (in order to preserve an issue for review,
defendant must make an objection at trial and include the issue in a posttrial motion). Smith also
failed to set forth an offer of proof at trial. “[I]n order to preserve an issue concerning the trial
court’s preclusion of impeaching evidence at trial, the defendant must set forth an offer of proof
at trial.” People v. Wallace, 331 Ill. App. 3d 822, 831 (2002).
¶ 18 This court may review forfeited issues as plain error; however, we first must determine
whether any error occurred. People v. Lewis, 234 Ill. 2d 32, 43 (2009). In reviewing the
transcript of Officer Moore’s cross-examination outlined above, it is unclear whether defense
counsel was attempting to impeach him by omission regarding Smith’s statement allegedly
contained in his police report. Defense counsel generally asked about information contained in a
police report, and the trial court properly responded that police reports are not admissible
evidence. The record shows that it was during the cross-examination of Sergeant Rochowicz
wherein Rochowicz stated that he had put in a police report that Smith made the statement.
Defense counsel did not inquire further into the police report, and the trial court did not interject
at that time. The trial court could not have committed error if it did not preclude defense counsel
from questioning Sergeant Rochowicz about his police report.
¶ 19 Even if the trial court improperly limited defense counsel’s cross-examination of Officer
Moore, the error warrants reversal of Smith’s conviction “only where there has been a clear
abuse of discretion and a showing of manifest prejudice to the defendant.” (Internal quotation
marks omitted.) People v. Porter, 96 Ill. App. 3d 976, 983 (1981). Any error in restricting cross-
examination of a witness whose testimony merely supports the prosecution, “or on whose
credibility alone the prosecution does not rest, must be deemed harmless.” (Internal quotation
marks omitted.) Id. Here, both Officer Moore and Sergeant Rochowicz testified that Smith made
the statement, so the prosecution did not rely on Officer Moore’s credibility alone to support its
case. Therefore, any error in restricting Officer Moore’s cross-examination may be deemed
harmless.
¶ 20 Smith also makes a brief argument, without citation to authority, that the trial court
improperly sustained two State objections and overruled one defense objection, during closing
arguments. Specifically, Smith contends that the trial court erred in allowing the State to argue
that Smith’s statement “was documented in the report” when the testimony showed that no one
wrote down the statement or gave Smith an opportunity to write it down. However, the
prosecutor has great latitude in making a closing argument and may properly “comment on the
evidence and any fair, reasonable inferences it yields.” People v. Nicholas, 218 Ill. 2d 104, 121
(2005). Sergeant Rochowicz stated that in his police report he put down that Smith had made a
statement. A reasonable inference from that evidence is that he wrote down Smith’s statement in
the report. Furthermore, defense counsel was permitted to rebut the State in closing argument by
arguing that the only evidence of Smith’s statement is contained in the officers’ oral testimony.
We find no error here.
¶ 21 Smith, however, also contends that we must vacate his conviction for UUWF in light of
our supreme court’s decision in People v. Aguilar, 2013 IL 112116. In Aguilar, the issue before
our supreme court was “whether the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates
the second amendment right to keep and bear arms.” Aguilar, 2013 IL 112116, ¶ 18. The court
found that the second amendment protects a person’s right to bear arms for self-defense outside
of the home, and because the Class 4 form of the specified section “categorically prohibits the
possession and use of an operable firearm for self-defense outside the home,” it was
unconstitutional on its face. Aguilar, 2013 IL 112116, ¶¶ 21, 22. Smith’s conviction of UUWF
was based on his prior felony conviction under case No. 05 CR 13735 for violating section 24
1.6(a)(1), (a)(3)(A) of the Code, the same Class 4 form of AUUW which our supreme court
found unconstitutional in Aguilar. Smith argues on appeal that we should vacate his UUWF
conviction because Aguilar rendered the predicate felony (case no. 05 CR 17607) used to prove
an element of his offense void and unenforceable.
¶ 22 Our supreme court addressed this issue in People v. McFadden, 2016 IL 117424, a case
in which the defendant was charged with multiple counts of armed robbery and UUWF, having
previously been convicted of the felony offense of AUUW. In McFadden, the defendant
stipulated at trial that he was convicted of the prior felony conviction. He argued, however, that
Aguilar has rendered the statute under which he was previously convicted unconstitutional and
void ab initio; therefore, his prior AUUW conviction may not be used to establish the present
UUWF offense. Id. ¶¶ 15-16.
¶ 23 Our supreme court agreed that declaring a statute unconstitutional renders the statute void
ab initio, or void “ ‘ “from the beginning.” ’ ” Id. ¶ 17 (quoting Perlstein v. Wolk, 218 Ill. 2d
448, 455 (2006), quoting Black’s Law Dictionary 1604 (8th ed. 2004)). An unconstitutional
statute is unenforceable, and the decision declaring the statute unconstitutional is retroactive. Id.
¶ 18. It follows that once a criminal statute is declared facially unconstitutional, “a defendant
may not be prosecuted under it and, as a remedy, must be allowed to apply the court’s
declaration as a basis to vacate his judgment of conviction premised on the facially
unconstitutional statute.” Id. ¶ 19.
¶ 24 The defendant in McFadden, however, did not seek to vacate his prior AUUW
conviction; rather, he sought to reverse his present “conviction for UUW by a felon, a
constitutionally valid offense, by challenging the sufficiency of the evidence to convict him.” Id.
¶ 21. The defendant thus presented the “different question” of whether a prior conviction based
on a statute that has been subsequently declared facially unconstitutional, “may nevertheless
serve as proof of the predicate felony conviction in prosecuting” a UUWF offense. Id.
¶ 25 In making this determination, the McFadden court looked at the United States Supreme
Court case of Lewis v. United States, 445 U.S. 55 (1980), which addressed the issue of whether a
constitutionally infirm prior felony conviction could be used as the predicate felony under a
federal felon-in-possession-of-a-firearm statute. McFadden, 2013 IL 112116, ¶ 22. The Court in
Lewis examined the language of the federal firearms statute and found that the statute contained
“ ‘[n]o exception *** for a person whose outstanding felony conviction ultimately might turn out
to be invalid for any reason.’ [Citation.]” Id. ¶ 23. Thus, the Court determined that any felony
conviction, without intervening action to vacate the conviction, can be the predicate felony of an
offense under the federal firearms statute since the only relevant question is defendant’s felony
status at the time he was charged with unlawful possession of a firearm. Id. ¶ 24.
¶ 26 Following Lewis, the McFadden court looked at the language of the UUWF statute (720
ILCS 5/24-1.1(a) (West 2008)), and found it also requires only that the State prove defendant’s
felon status. McFadden, 2013 IL 112116, ¶ 27. The court determined that the statutory language,
as well as the policy and purpose of the UUWF statute, “represents a considered and deliberate
decision to require that a prior felony conviction be vacated or expunged before a firearm is
possessed.” Id. ¶ 30. The court reasoned that “[a]lthough Aguilar may provide a basis for
vacating defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn that
judgment of conviction. Thus, at the time defendant committed the UUW by a felon offense,
defendant had a judgment of conviction that had not been vacated and that made it unlawful for
him to possess firearms.” Id. ¶ 31. The court held that since the defendant failed to clear his felon
status before obtaining the firearm that resulted in his UUWF conviction, his prior AUUW
conviction “properly served as proof of the predicate felony conviction for UUW by a felon.” Id.
¶ 37.
¶ 27 Like the defendant in McFadden, Smith presents the question of whether a prior AUUW
conviction based on a statute that has been subsequently declared facially unconstitutional “may
nevertheless serve as proof of the predicate felony conviction in prosecuting the offense of UUW
by a felon.” Id. ¶ 21. Smith stipulated at trial that he had been convicted previously of a
qualifying felony (AUUW). Although Aguilar subsequently deemed the AUUW statute
unconstitutional on its face, Smith did not clear his felon status prior to obtaining the weapon
that led to his conviction under the constitutionally valid UUWF statute. Therefore, following
McFadden, Smith’s prior AUUW conviction properly served as proof of the predicate felony
conviction for UUWF, and we affirm his conviction.
¶ 28 Smith, however, urges this court to disregard McFadden because McFadden did not
address the binding United States Supreme Court precedent of Montgomery v. Louisiana, ___
U.S. ___, 136 S. Ct. 718 (2016). Smith argues that Montgomery mandates the reversal of his
UUWF conviction because “a court has no authority to leave in place a conviction or sentence
that violates a substantive rule, regardless of whether the conviction or sentence became final
before the rule was announced” and “[t]here is no grandfather clause that permits States to
enforce punishments the Constitution forbids.” Montgomery, ___U.S. at ___, 136. S. Ct. at 731.
First, we disagree that the supreme court in McFadden failed to consider Montgomery. As the
State points out, counsel in McFadden was granted leave to cite Montgomery as additional
authority, and counsel made the same arguments in support of the motion that Smith makes here.
¶ 29 Furthermore, Montgomery did not address the issue we have here. Rather, Montgomery
cautioned that states have no power to enforce a conviction or penalty barred by the Constitution.
Montgomery, ___ U.S. at ___, 136 S. Ct. at 729-30. The State does not seek to enforce Smith’s
invalid felony conviction in contravention of Montgomery, and nothing in McFadden prevents
Smith from seeking to vacate his prior felony conviction. The issue here is whether a prior
conviction based on a statute that has been subsequently declared facially unconstitutional may
serve as proof of the predicate felony conviction in prosecuting a UUWF offense. In McFadden,
our supreme court answered in the affirmative, and this court follows McFadden as we are bound
to do. See People v. Artis, 232 Ill. 2d 156, 164 (2009).
¶ 30 In his second supplemental brief to this court, Smith additionally contends that if this
court affirms his UUWF conviction, his offense should be reduced from a Class 2 felony to a
Class 3 felony. The offense of UUWF is itself a class 3 felony, and only subsequent violations
are class 2 felonies. See 720 ILCS 5/24-1.1(e) (West 2008). Smith argues that since his prior
AUUW conviction was used to prove that his recent conviction was a subsequent violation, use
of the AUUW conviction improperly enhanced his punishment. Smith contends that although
Lewis permitted the use of a prior invalid conviction to prove defendant’s status as a felon, it
expressly forbade using such a conviction to enhance punishment. As support, he points to
Lewis’s citation of Burgett v. Texas, 389 U.S. 109 (1967), and United States v. Tucker, 404 U.S.
443 (1972), and the Court’s statement in Lewis that “its interpretation was consistent” with those
cases. Smith, however, reads too much into Lewis’s discussion of Burgett and Tucker.
¶ 31 As the Lewis Court noted, Burgett and Tucker held that a subsequent conviction or
sentence was unconstitutional “because it depended upon the reliability of a past uncounseled
conviction.” Lewis, 445 U.S. at 67. The Lewis Court held, however, that an uncounseled felony
conviction may nonetheless be used as the basis to impose “a civil firearms disability,
enforceable by a criminal sanction,” and its interpretation was “not inconsistent with” Burgett
and Tucker. Id. The Court in Lewis explained that the subsequent conviction or sentence in
Burgett and Tucker depended upon the reliability of the past uncounseled convictions, whereas
the federal gun laws at issue in Lewis “focus not on reliability, but on the mere fact of conviction
*** in order to keep firearms away from potentially dangerous persons. *** Enforcement of that
essentially civil disability through a criminal sanction does not ‘support guilt or enhance
punishment.’ [Citation.]” Id. Thus, Lewis did not forbid the use of a prior uncounseled felony
conviction to enhance punishment as Smith contends; rather, Lewis determined that the mere
enforcement of a statute prohibiting felons from possessing firearms through criminal sanction
does not enhance punishment. Id. Lewis does not support Smith’s argument here.
¶ 32 Also instructive is People v. Easley, 2014 IL 115581, in which our supreme court
examined section 24-1.1(e) of the UUWF statute to determine whether the defendant was
improperly sentenced as a Class 2 offender when the State did not give defendant notice that it
intended to charge him with an enhanced Class 2 offense. The defendant in Easley was convicted
of UUWF and sentenced pursuant to section 24-1.1(e), which provided that a violation of this
section is a class 3 felony and “any second or subsequent violation shall be a Class 2 felony
***.” 720 ILCS 5/24-1.1(e) (West 2008). The court reasoned that since the defendant had
previously been convicted of a felony, as alleged in the indictment, “defendant’s Class 2
sentence was the only statutorily allowed sentence under” the statute. Easley, 2014 IL 115581,
¶ 22. Therefore, the State need not give such notice because “the prior conviction is already a
required element of the offense and only one class of felony is possible for that offense as
alleged in the charging instrument.” Id. ¶ 24. Here, Smith stipulated to his felon status at the time
of his UUWF conviction, and his prior felony conviction had not been vacated. Pursuant to
Easley, Smith’s prior AUUW conviction was an element of his UUWF offense and only one
class of felony is possible for that offense under section 24-1.1(e). The State did not
impermissibly use Smith’s AUUW conviction to enhance his offense to a class 2 felony.
¶ 33 Smith also argues that his AUUW conviction should be vacated. In light of our supreme
court’s decision in People v. Burns, 2015 IL 117387, we agree. In Burns, our supreme court
determined that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute “is facially unconstitutional,
without limitation” because it “constitutes a flat ban on carrying ready-to-use guns outside the
home.” Id. ¶ 25. As the court reasoned, “[i]t is precisely because the prohibition is not limited to
a particular subset of persons, such as felons, that the statute, as written, is unconstitutional on its
face.” (Emphasis in the original.) Id. Therefore, the provision is not enforceable against anyone,
including Smith, and we vacate his conviction for AUUW. Id. ¶ 32.
¶ 34 For the foregoing reasons, we affirm Smith’s UUWF conviction and sentence and vacate
his AUUW conviction and sentence.
¶ 35 Affirmed in part and vacated in part.