People v. Simmons

No. 2--96--0386
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
) No. 94--CF--2462
v. )
)
MACK SIMMONS, ) Honorable
) Frederick J. Kapala,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________

JUSTICE McLaren delivered the opinion of the court:
A jury found the defendant, Mack Simmons, guilty of unlawful
use of a weapon by a felon (720 ILCS 5/24--1.1 (West 1994)) and
possession of a firearm without a firearm owner s identification
card (430 ILCS 65/2(a)(1) (West 1994)). The trial court sentenced
the defendant to seven years imprisonment for the unlawful use of
a weapon by a felon charge and 364 days imprisonment for the
possession of a firearm without a firearm owner s identification
card charge. We reverse and remand.
The facts are taken from the record. At trial, Sergeant
Stephen Johnson of the Rockford police department testified that on
October 22, 1994, at approximately 5 a.m., he was watching an
apartment building through binoculars from an unmarked car in
response to reports of drug trafficking. A four-door car with the
engine running was parked in front of the apartment building. Two
people were sitting in the car. A black man ran out of the
apartment building, entered the vehicle, and sat in the passenger
side of the backseat. Seconds later the car drove off. Sergeant
Johnson noticed the poor condition of the car, followed the car for
three blocks, and then pulled the car over. After radioing that he
was making a traffic stop, Sergeant Johnson approached the driver
of the car, asked the driver for his driver s license, and asked
the two passengers their names. The front-seat passenger stated
that his name was Dennis Johnson and the defendant, who was seated
in the backseat, provided his name. Sergeant Johnson returned to
his vehicle to check the validity of the driver s license and to
check if there were any warrants for any of the men in the car.
The driver s license was not valid, and there was a warrant for the
defendant for missing a court date.
About two minutes later, Officers Fricke and Shimaitis arrived
and arrested the driver. Sergeant Johnson opened the passenger
door and asked the defendant to step out; the defendant complied.
Sergeant Johnson told the defendant there was a warrant for his
arrest, and he handcuffed and searched the defendant. Sergeant
Johnson found no weapons or drugs on the defendant.
As Sergeant Johnson moved the defendant from between the door
and the car, Sergeant Johnson looked at the backseat where the
defendant had been sitting and saw a handgun. An inch or two of
the barrel of the gun was tucked under a small cooler which was in
the middle of the backseat. Although Sergeant Johnson did not see
the defendant sitting on the gun, he stated that the gun s handle
was in the same place as the defendant s left leg and hip. He
believed the defendant had been sitting on the gun. Sergeant
Johnson saw nothing but the gun and a cooler in the backseat.
Sergeant Johnson did not ask the defendant to whom the gun belonged
and the defendant said nothing about the gun. The defendant did
not have a valid firearm owner s identification card and had been
convicted of a prior felony. A check on the gun indicated that it
had not been reported stolen. Sergeant Johnson did not attempt to
obtain fingerprints from the gun.
Sergeant Johnson told the other two officers there was a
"1032," meaning a gun. He turned the defendant over to Officer
Shimaitis. Sergeant Johnson put the gun in his pocket, had the
other passenger, Dennis Johnson, step out of the car, and frisked
him. According to Sergeant Johnson, Dennis Johnson could have
picked up the gun from where he was sitting in the car. Sergeant
Johnson asked Dennis Johnson to whom the gun belonged, and then let
him go. At trial, Dennis Johnson refused to testify, invoking his
fifth amendment right against self-incrimination.
Officer Shimaitis' testimony essentially corroborated Sergeant
Johnson s. Shimaitis stated that, after taking custody of the
defendant, he saw a steel blue revolver on the backseat of the car
next to where the defendant s leg would have been. He also saw a
cooler in the middle of the backseat. Shimaitis could not recall
whether any portion of the gun was under the cooler, which was
located in the middle of the backseat. Shimaitis saw miscellaneous
items on the floor in the back of the car.
The defendant testified on his own behalf. He stated that in
the early morning hours of October 22, 1994, he went to his
mother s apartment to get some money to bail his sister out of jail
in Milwaukee. The defendant was at the apartment building to look
for his brother. When he came out of the building, he saw Dennis
Johnson in a car. The defendant did not know the driver. Dennis
Johnson called the defendant to the car, and the two talked for a
minute or so before the defendant got into the car.
According to the defendant, the backseat of the car had a "lot
of stuff" on it, including a cardboard box and a cooler. The
defendant pushed the stuff over and sat next to the cooler which
was on his left; the window was on his right. In addition, there
were cloths, greasy rags, a car jack, wrenches, and other "junk" on
the floor of the back of the car. The defendant stated that the
driver agreed to give him a ride to Milwaukee, so the defendant
give the driver $20 for gas. There was a discussion in the car
about drugs and guns.
The defendant testified that he was in the car for about 30
seconds before the car was pulled over by Sergeant Johnson. The
defendant corroborated Sergeant Johnson s testimony in that
Sergeant Johnson asked the driver for his driver s license, asked
the defendant and Dennis Johnson for identification, told the
defendant that a bench warrant had been issued because the
defendant missed a court date, and handcuffed the defendant. The
defendant was then placed in a squad car. Dennis Johnson was
permitted to leave.
The defendant testified that he had not carried a gun that day
and had not put a gun in the car. He stated that he did not see
the gun, sit near or on the gun, or know anything about the gun.
The first time he knew about the gun was when Sergeant Johnson told
the defendant he was being charged with a gun violation while they
were in the Public Safety Building. The defendant admitted that he
had been previously convicted of aiding and abetting a robbery and
that he did not have a firearm owner s identification card. He
explained that he was not eligible to receive one.
On rebuttal, Sergeant Johnson stated that after searching the
car he saw no cardboard box, tire jacks, wrenches, or dirty rags in
the backseat of the car. However, he admitted that his focus was
on the weapon.
During deliberations, the jury asked for the defendant s
testimony regarding the discussion about guns and drugs. The jury
also requested the defendant s testimony regarding his awareness of
the gun at the Public Safety Building. Without objection, the jury
was told to decide the case on the testimony it heard before.
The jury found the defendant guilty of both charges, namely,
unlawful use of a weapon by a felon and possession of a firearm
without a firearm owner s identification card. At the sentencing
hearing, held in October 1995, the defendant filed an affidavit of
Dennis Johnson. In the affidavit, Dennis Johnson stated as
follows:
"On or about October 22, 1995, I was in an automobile
with the driver, Timothy Elmer, who I did not know, when [the
defendant] got into the vehicle. Before [the defendant] got
into the vehicle, the driver asked me if I would buy some
drugs for him and that he had a gun to sell for that purchase.
I did not see a gun before [the defendant] got into the
vehicle nor did I see [the defendant] with a gun. Within
minutes after [the defendant] got into the vehicle, and we
drove off, we were stopped by the police."
The defendant also offered the testimony of Lawrence Mathis as
mitigation. Mathis stated that he knew the defendant on October
22, 1994, that Mathis fiancée lived next door to the apartment
building in question, and that earlier that day Mathis saw Dennis
Johnson with another man trying to sell a pistol. According to
Mathis, Dennis Johnson and the other man then got into a car which
was parked in front of the apartment building. Mathis also stated
that the defendant told Mathis that the defendant was going to
Milwaukee to help a relative. Mathis stated that he did not come
forward earlier because he had a criminal record.
The trial court sentenced the defendant to seven years
imprisonment for the unlawful use of a weapon by a felon charge and
364 days imprisonment for the possession of a firearm without a
firearm owner s identification card charge. The trial court denied
the defendant s motion for a new trial based on new evidence and
trial errors. This appeal followed.
The defendant first argues that he was denied a fair trial
because the prosecutor improperly highlighted the defendant s post-
arrest silence during the State s case in chief and closing
argument. The State argues that defense counsel opened the door to
this type of questioning, failed to object to the prosecutor s
remark during closing arguments, and that, even if the prosecutor's
references to the defendant s postarrest silence were improper,
they did not prejudice the defendant. We agree with the defendant.
Generally, questions and remarks by a prosecutor regarding a
defendant s postarrest silence are improper. People v. Patterson,
282 Ill. App. 3d 219, 234 (1996). Thus, a defendant's postarrest
silence cannot be used to impeach his trial testimony or to
otherwise create an inference of guilt. Doyle v. Ohio, 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245 (1976); People
v. Mischke, 278 Ill. App. 3d 252, 265 (1995). There are two
exceptions to this rule. A defendant's postarrest silence may be
used for impeachment purposes when the defendant testifies at trial
that he gave an exculpatory statement to the police when arrested
or if the defendant made a prior inconsistent statement to the
police after his arrest. People v. Little, 223 Ill. App. 3d 264,
274 (1991). Although the defendant s postarrest silence may be
used in limited situations for impeachment purposes, it is "not
admissible for any purpose in the State s case in chief." People
v. Strong, 215 Ill. App. 3d 484, 488 (1991).
In the case at bar, during cross-examination, the following
exchange took place between defense counsel and Sergeant Johnson:
"Q: Did you ask my client whose gun that was?
A: I was going to.
Q: But you didn't?
A: I tried to.
Q: But you didn't?
A: No, sir, I did not."
On redirect, the prosecutor questioned Sergeant Johnson as follows:
"Q: And when you were asked on cross-examination if you
ever asked the defendant if that gun was not his, did he ever
volunteer to you that the gun was not his? Did he ever say,
'That's not my gun'?
A: No, sir.
Q: What did he say after you pulled him out and you saw
that weapon? What did he say about that gun?
A: He never acknowledged the gun, never said anything
about it.
Q: Did he say, 'That's not my gun'? "
At this point defense counsel objected, and the following colloquy
occurred between the prosecutor, defense counsel, and the court:
"[Defense]: Objection, Judge; he doesn't have to say
anything.
[Prosecutor]: Judge, he opened the door.
[Defense]: I didn't open any door. I asked him the
question. He said, 'I didn't say anything.'
The Court: Okay. I'll sustain the objection to the
leading nature of the question."
At this point the prosecutor asked Sergeant Johnson whether the
defendant ever said anything about the gun. Sergeant Johnson
replied, "No, sir." The prosecutor then asked Sergeant Johnson the
following question: "Then at that point did the defendant ever say
anything about that gun not being his, saying, 'Hey, that's not my
gun?' " Defense counsel objected again, claiming that the question
was improper. Then the following exchange took place:
"[Prosecutor]: Judge, he specifically asked this officer,
'Did you ask the defendant if that was his gun'? He opened
the door.
[Defense]: If I asked that question, a simple question
asked and answered, yes or no, he said he did not. So why do
we go any further?"
The court then sustained defense counsel's objection. Then during
closing arguments, the State made the following statements:
"Do you think for a second when the officer is pulling
him out he s going to go, 'Excuse me, Officer, I have a loaded
.38 handgun; oh, by the way, I m a convicted felon'? [sic]."
Defense counsel did not object to either remark.
In the case at bar, the prosecutor improperly questioned
Sergeant Johnson regarding the defendant's postarrest silence. The
questions did not fall within either exception to the rule against
using a defendant's postarrest silence against him. The State was
not attempting to elicit impeachment. The defendant did not
testify that he told the police that he did not know anything about
the gun and did not know it was in the car. Further, the
defendant's exculpatory testimony was not inconsistent with
anything the defendant said to the police. Thus, the prosecutor's
questions were improper.
The State's argument that defense counsel "opened the door" is
without merit. Defense counsel limited his question to what
Sergeant Johnson asked the defendant. Defense counsel asked
Sergeant Johnson whether he asked the defendant if the defendant
knew who owned the gun. Sergeant Johnson replied, "no." Defense
counsel limited his question to what Sergeant Johnson asked the
defendant. Defense counsel did not ask Sergeant Johnson anything
about the defendant's comments or lack thereof. Therefore, defense
counsel did not invite the prosecutor's questions regarding the
defendant's postarrest silence.
Although the trial judge sustained defense counsel's
objections to the improper questions, we believe that the improper
questions were later compounded by the prosecutor's comments during
closing argument regarding the defendant's postarrest silence. We
recognize that defense counsel did not object to the prosecutor's
allegedly improper comments during closing argument. However, we
believe this case was closely balanced in that it rested with
whether the jury believed that the defendant did not know that the
gun was in the car. Thus, we address this issue under the plain
error rule. People v. Mitchell, 155 Ill. 2d 344, 354 (1993).
Although the prosecution is given wide latitude in closing
arguments (People v. Alvine, 173 Ill. 2d 273, 292 (1996)), this
latitude in not so wide as to encompass this prosecutor's improper
comments regarding a defendant's postarrest silence. Patterson,
282 Ill. App. 3d at 234. Thus, the defendant was denied a fair
trial.
We also note that the prosecutor's improper comments regarding
the defendant's postarrest silence were further compounded by the
prosecutor's comments which implied that the defendant was guilty
simply due to his status as a defendant. During closing argument
the prosecutor stated:
"When [the defendant] sits on [the gun], he's going to
feel this, because he's a bony individual. But what did he
say? 'No, I didn't feel.' Why? Because he's lying. He's
not telling the truth, because if he tells us the truth, it
leads to a conviction."
Thus, the prosecutor argued that the defendant was guilty because
he remained silent and that the defendant was guilty because he
chose to speak. This deprived the defendant of any defense.
Because we are remanding this case for a new trial, we must
consider whether the evidence was sufficient to prove the defendant
guilty beyond a reasonable doubt. People v. Porter, 168 Ill. 2d 201, 215 (1995). After reviewing the record, we determine that the
evidence was sufficient to support the guilty verdicts. Thus, a
new trial is proper. Porter, 168 Ill. 2d at 215.
Further, because of our decision regarding the prosecutor's
improper questions and comments, we need not address the remaining
issues raised by the defendant. However, we note that on remand
the parties may want to discuss our supreme court's recent decision
in People v. Davis, No. 81358 (Ill. October 17, 1997), in which the
court held that the statutory penalty for felons convicted of
failing to register pursuant to the Firearm Owners Identification
Card Act (730 ILCS 5/5--5--3(c)(2)(N) (West Supp. 1995)) violates
the Illinois Constitution.
The judgment of the circuit court of Winnebago County is
reversed, and the cause is remanded.
Reversed and remanded.
INGLIS and HUTCHINSON, JJ., concur.