First Division
September 25, 2006
No. 1-05-0106
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County
)
v. ) 02 CR 25985
)
FREDDY VASQUEZ, ) Honorable
) Eddie Stephens,
Defendant-Appellant. ) Judge Presiding
)
PRESIDING JUSTICE McBRIDE delivered the opinion of the court:
Following an October 2004 jury trial, defendant, Freddy Vasquez, was found guilty of
aggravated unlawful use of a weapon by a felon and unlawful use of a weapon by a felon. The
trial court sentenced defendant to a term of six-years= imprisonment, ordered defendant to pay
$619 in fines, fees and costs, and ordered defendant to submit a DNA sample.
Defendant appeals, arguing that: (1) the State failed to prove defendant guilty beyond a
reasonable doubt because the testimony of a police officer was so incredible that it defied logic;
(2) defendant did not receive a fair trial because a police officer testified that defendant was a
Agang banger@; (3) the trial court erred in failing to provide the jury with a definition for
reasonable doubt when the jury requested the definition; (4) defendant was denied his sixth
amendment right to effective assistance of trial counsel; (5) defendant is entitled to a reduction in
the total amount of fines imposed because (a) the Violent Crime Victim Assistance Fund statute
only permits its imposition when no other fines have been imposed and the $4 criminal/traffic
conviction surcharge is a fine, and (b) defendant is entitled to a credit for the $4 criminal/traffic
conviction surcharge because of his presentence credit; and (6) the statute authorizing the
compulsory extraction and perpetual storage of the DNA of felons violated defendant=s
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fourth amendment rights.
Defendant was charged by indictment with aggravated unlawful use of a weapon by a
felon and unlawful use of a weapon by a felon.
Defendant filed a motion to quash arrest and suppress evidence. In December 2003, the
trial court conducted a hearing on defendant=s motion.
Defendant testified at the suppression hearing that on August 30, 2002, at around 3 a.m.
he was at the home of Willie Rosado, located at 2502 West Division. Defendant was spending
the night at that location. On cross-examination, defendant denied going outside of the building
during the early morning hours. Defendant said that the only time he went outside of the
residence was when the police arrested him and escorted him out. Defendant stated that Rosado
is defendant=s brother. Rosado was in front of the house at the time of defendant=s arrest.
Defendant was later recalled to the witness stand. Defendant stated that the entrance at
2502 West Division has a glass door at the bottom of the stairway. Once a person walks up the
stairs, he walks into the apartment. The stairs do not lead anywhere other than the apartment.
Defendant called Officer William Hartz. Officer Hartz testified that at about 2:45 a.m. on
August 30, 2002, he was in the area of 2502 West Division with his partner, Detective Sampin.
Officer Hartz stated that they entered the residence at 2502 West Division, but they did not have
a warrant to search or a warrant to arrest someone at that location.
Officer Hartz stated that his partner recovered contraband from the common area
stairwell. He described the building as a commercial building with a law firm on the main level
and an apartment upstairs. There is a solid glass door and stairs that lead to the second level.
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Officer Hartz stated that he believed there was a doorway at the top of the stairs on the second
level. Officer Hartz later conceded that there was no common area at that location, but instead
the stairs led straight into the apartment.
Officer Hartz stated that he saw defendant inside the residence of 2502 West Division.
Officer Hartz and his partner took defendant into custody. Following Officer Hartz=s testimony,
defendant rested.
The State called Detective Sayam Sampin to testify. Detective Sampin testified that on
August 30, 2002, he was a police officer with the Chicago police department. At the time of the
hearing, he was a detective.
On August 30, 2002, at about 2 a.m., Detective Sampin was on duty with his partner,
Officer Hartz. They were on patrol in a marked car and in uniform. Detective Sampin was the
passenger in the car while Officer Hartz was driving. At that time, they received a call of shots
fired in the area of Division and Campbell. Detective Sampin is familiar with the area and
understood it to be an area of high-crime activity with multiple gangs in the area. The officers
proceeded to that location after the call of shots fired.
The officers did not have a description for who was firing the shots so they toured the
area in the car. Detective Sampin observed a lot of gang members on the street from the ACobra
faction.@ Detective Sampin stated that no one approached their car while they drove around the
area. He said usually when Cobra gang members have been shot at, they come up and tell him
what the car looked like and in what direction they went. Since no one came up to Detective
Sampin that time, he believed that it was possible that the shooter was one of them.
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While they were driving around, Detective Sampin saw a flash of movement in an alley.
He asked his partner to let him out so he could check out the alley. He got out of the car just
north of Division on Campbell. Detective Sampin went to the intersection of Division and
Campbell to set up surveillance. He put himself in a position where he could see west down
Division from Campbell. Initially, Detective Sampin got behind some parked cars, but he was
exposed from the back. Then, he got between two parked cars. He was located east of 2502
West Division. He was approximately 35 feet away.
Detective Sampin saw an individual stick his head out of the door of 2502 West Division,
look both ways, and then step out onto the sidewalk. Detective Sampin stated that his line of
sight was clear and the street was pretty bright from streetlights. Detective Sampin identified
defendant as the person who came out of 2502 West Division.
Shortly thereafter, a gold vehicle pulled up and defendant immediately went to it. The
gold vehicle stopped directly in front of 2502 West Division. Defendant went to the passenger
side of the vehicle. Detective Sampin saw two individuals inside the car and one was in the rear
seat of the passenger side. Detective Sampin observed that individual pass a gun out of the open
car window to defendant. Defendant took the gun, turned it around, pulled up his shirt, and
tucked the gun into the waistband of his pants. Defendant continued to talk to the people in the
car. At this point, Detective Sampin radioed his partner to come pick him up.
Detective Sampin broke his surveillance to get back into the car with his partner. Once
in the car, Detective Sampin immediately told his partner that there was a gold vehicle around
the corner and someone in the car passed a gun to a man standing outside. They went around the
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corner and saw the gold car in the same position and defendant was still standing next to it. Both
officers exited the car. Detective Sampin started to approach defendant and asked him to Acome
here.@ Defendant looked at him and turned around. As Detective Sampin continued to approach,
defendant started to run for the door of 2502 West Division. Detective Sampin ran after
defendant to the door of 2502 West Division.
Detective Sampin described the door as having a metal frame with a window from top to
bottom and a push bar in the center. Defendant got inside the door first. Defendant turned and
tried to slam the door in Detective Sampin=s face, but Detective Sampin was partially in the door.
Defendant continued to push the door shut as Detective Sampin tried to push it open. Detective
Sampin was pushing with one hand because he had his gun in his other hand. Officer Hartz ran
up to help Detective Sampin. At first, defendant was pushing with one hand on the door while
his other hand was on his waistband, but when Officer Hartz came to help, defendant began to
push with both hands. Defendant then got the door to close. Detective Sampin then kicked the
glass part of the door, and the window shattered. During the struggle at the door, Officer Hartz
called out that there was a gun in defendant=s pants.
Defendant began to run up the stairs. Detective Sampin ducked under the push bar and
got inside the building. Both defendant and Detective Sampin stumbled up the stairs. When
defendant was about halfway up the stairs, Detective Sampin saw defendant throw a gun to the
side. Detective Sampin grabbed the gun and continued to pursue defendant. Detective Sampin
stated that there was a short foot chase through the apartment onto the back porch. Defendant
ended up in a dead end. When Detective Sampin got to the back porch, defendant was crawling
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on the couch to get behind or under it.
Detective Sampin stated that he knew defendant from the neighborhood, but had never
arrested him before that date.
On cross-examination, Detective Sampin stated that he did not talk to anyone on the
street regarding the call of shots fired because no one initiated contact, which is what normally
happens. Detective Sampin said he did not see that anyone had been shot. Detective Sampin
testified that he set up his surveillance so he could look west down Division, and he told his
partner to take the marked police car out of sight. Detective Sampin said that he was in his
surveillance position for 6 to 10 minutes before he saw defendant. Defense counsel asked
Detective Sampin if a silver four-door Honda pulled up in front of 2502 West Division, but
Detective Sampin stated that it was a goldish color and that he did not know if it was a Honda.
He did not know the model or make. Detective Sampin denied calling dispatch and giving a
description of a silver Honda. Detective Sampin testified that he saw a gold-colored vehicle with
two male Hispanics inside, but he did not get a chance to look at the license plate. Detective
Sampin denied telling dispatch of a car with a possible license plate of 336558.
Detective Sampin said he focused more on defendant than on the vehicle because
defendant had a gun. When Detective Sampin called to defendant and asked defendant to come
toward the detective, Detective Sampin did not ask defendant to drop the weapon because the
weapon was not in defendant=s hands. Detective Sampin said that after he called for his partner
to pick him up, he Aduckwalked, almost crawled@ away from defendant so that he would not be
seen. He admitted that he could not see defendant when he reached his partner and the car.
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Detective Sampin testified that he did not have the recovered gun sent to the Illinois State
Police crime lab for fingerprint testing. Detective Sampin denied that defendant was kicked or
beaten. Detective Sampin stated that he struggled with defendant at the door and both men fell
on the stairs. Then, Detective Sampin had to wrestle with defendant when he tried to make the
arrest because defendant would not submit.
The parties entered into a stipulation that defendant had two prior felony convictions for
possession of a controlled substance and one prior felony conviction of sale or delivery of a
controlled substance. Following arguments, the trial court held that there was probable cause to
believe that a crime was being committed and there were exigent circumstances that allowed the
officer to enter the residence. Accordingly, defendant=s motion to quash arrest and suppress
evidence was denied.
At defendant=s October 2004 jury trial, Officer Hartz and Detective Sampin testified to
substantially the same facts as at the suppression hearing. Additionally, Officer Hartz stated that
after Detective Sampin got back into the car and they went to 2502 West Division, he parked the
car to block the gold vehicle and keep it from leaving. When he and Detective Sampin
approached defendant and the gold vehicle, he asked the driver of the vehicle to turn off the car.
After Detective Sampin got into the building after defendant, Officer Hartz saw the driver of the
gold vehicle start the engine, jump the curb, and speed off. When Officer Hartz went to the
apartment, he saw Detective Sampin with his knee on defendant=s back and defendant was
resisting arrest.
Officer Hartz also stated on cross-examination that defendant made a statement at the
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police station that he had the gun for protection. When asked by defense counsel what that
statement meant, Officer Hartz said he did not ask defendant, but Officer Hartz stated Ain [his]
career, [he has] seen a lot of gang bangers and gang members with guns carry guns [sic] for their
protection.@
Both Officer Hartz and Detective Sampin identified the gun presented by the State as the
gun they had seen in defendant=s possession. The State entered a stipulation that prior to August
30, 2002, defendant was convicted of a felony. The State then rested. The defense moved for a
directed verdict, which the trial court denied.
Willie Rosado testified for the defense. Rosado stated that he is defendant=s brother.
Rosado testified that he lives at 2502 West Division. Rosado stated that, from the street, there is
only one door to the building. He said that once a person goes through the door and up the stairs,
he would enter the apartment. He stated that there is not a door between the apartment and the
staircase.
At about 2:30 a.m. on August 30, 2002, Rosado was in front of his house clearing out the
apartment. There had been a party at his house that night for his niece=s birthday and he was
directing people to leave. Defendant was going to spend the night at Rosado=s apartment. At
this time, defendant was upstairs helping clean up the apartment.
While Rosado was outside, a police car pulled up at the corner of Division and Campbell.
Rosado denied that a gold car was parked on the street. Rosado stated that the police exited the
car and came up to his door. Rosado was standing about five feet away from the door. He saw
one officer pull out a gun and tell people to stand back. Rosado said the officer kept banging on
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the glass until it broke. One officer went in through the broken door window. Rosado testified
that about 15 other officers came to the scene at that time. Rosado said he could hear his brother
yelling upstairs. Rosado did not see what was happening. Rosado stated that the officers were
upstairs for five to seven minutes. He later saw defendant when the officers led him downstairs.
Rosado said that the officers were dragging defendant down the stairs and defendant was
handcuffed.
Rosado denied seeing defendant with a gun that day. Rosado testified that defendant=s
legs were bruised and red when he was taken out of the building by the police.
During deliberations, the jury sent out two notes. The first note stated, AThe jury cannot
come to an unanimous verdict [sic], and will not be able to.@ The parties agreed that the trial
court should instruct the jury to keep deliberating. The second note was sent out 10 minutes later
and said, AWe need a definition of reasonable doubt, please.@ The parties agreed with the trial
court that pursuant to the Illinois Pattern Jury Instructions committee notes, no instruction should
be given. The trial court told the jurors that they had heard the evidence, had been given
instructions, and please continue to deliberate. About one hour later, the jury reached a verdict
and found defendant guilty of aggravated unlawful use of a weapon and unlawful use of a
weapon by a felon.
At defendant=s November 2004 sentencing hearing, the trial court considered evidence
presented in aggravation and mitigation. The trial court sentenced defendant to six years=
imprisonment and merged the two counts. Defendant was also ordered to pay $619 in fines, fees
and costs.
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This appeal followed.
Defendant first argues that he was not proven guilty beyond a reasonable doubt because
the testimony of Detective Sampin and Officer Hartz was Aso incredible that it defied logic.@
Defendant contends that the officers= version of the events is Asuspect@ because they did not
follow proper police procedures and this makes their story less plausible. The State maintains
that a rational trier of fact could easily have found defendant guilty.
When this court considers a challenge to a criminal conviction based upon the sufficiency
of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill. 2d 305,
329-30 (2000). Rather, our inquiry is limited to Awhether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.@ (Emphasis in original.) Jackson v. Virginia,
443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); accord People v. Cox,
195 Ill. 2d 378, 387 (2001). It is the responsibility of the trier of fact to Afairly *** resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.@ Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S.
Ct. at 2789.
It follows that where the finding of guilt depends on eyewitness testimony, a reviewing
court must decide whether, in light of the record, a fact finder could reasonably accept the
testimony as true beyond a reasonable doubt. In conducting this inquiry, the reviewing court
must not retry the defendant. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004). The
reviewing court must carefully examine the record evidence while bearing in mind that it was the
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fact finder who saw and heard the witnesses. Cunningham, 212 Ill. 2d at 280. Testimony may
be found insufficient under the Jackson standard, but only where the record evidence compels
the conclusion that no reasonable person could accept it beyond a reasonable doubt.
Cunningham, 212 Ill. 2d at 280. However, the fact a judge or jury did accept testimony
does not guarantee it was reasonable to do so. Reasonable people may on occasion
act unreasonably. Therefore, the fact finder's decision to accept testimony is entitled to
great deference but is not conclusive and does not bind the reviewing court.
Cunningham, 212 Ill. 2d at 280. Only where the evidence is so improbable or unsatisfactory
as to create reasonable doubt of the defendant's guilt will a conviction be set aside. Hall,
194 Ill. 2d at 330.
To be found guilty of aggravated unlawful use of a weapon, the State must prove that: (1)
the defendant knowingly carried a firearm on or about his person, (2) the defendant was not on
his own land or in his abode or fixed place of business, and (3) the firearm is uncased, loaded
and immediately accessible at the time of the offense. 720 ILCS 5/24-1.6 (West 2000). The
elements that the State must establish for unlawful use of a weapon by a felon are: (1) the
defendant knowingly possessed a firearm, and (2) the defendant had previously been convicted
of a felony. 720 ILCS 5/24-1.1(a) (West 2000).
Here, if we view the evidence presented at trial in the light most favorable to the
prosecution, all the elements of both charges were established beyond a reasonable doubt.
Officer Hartz and Detective Sampin testified that they responded to the area of Division and
Campbell after a call of shots fired. After patrolling the area for a few minutes, Detective
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Sampin exited the car to set up surveillance. Detective Sampin testified that during his
surveillance he witnessed defendant receive a gun from an occupant of a car and then tuck it into
the waistband of his pants. He stated that he was approximately 35 feet away from defendant,
his view was unobstructed and well lit due to artificial lights. Once Detective Sampin observed
defendant=s receipt of a gun, he called for his partner, Officer Hartz. Although Detective Sampin
lost sight of defendant for a brief time, Officer Hartz later saw the gun in defendant=s waistband
as he struggled with Detective Sampin at the door to 2502 West Division. As Detective Sampin
chased defendant up the stairs at that location, he saw defendant throw the gun to the side.
Detective Sampin recovered the gun from the stairway. Detective Sampin testified at trial that
the gun was loaded at the time of recovery. Both officers identified the gun at trial as the one
they saw in defendant=s possession.
The State entered into a stipulation that defendant had a prior felony conviction.
Additionally, defendant=s brother testified that while he lived at 2502 West Division, defendant
did not live there. This evidence established that defendant was in possession of a loaded,
uncased gun while he was not at his residence and that he was previously convicted of a felony.
The State provided evidence on each element of the two charges.
However, defendant contends that A[i]t would be impossible to see actions occurring at
the level of a car window when Sampin was down on the ground underneath a car@ and that the
two officers= testimony was unbelievable because they did not follow proper procedure and stop
the gold car from leaving the scene. We disagree with defendant and do not find the testimony
of Detective Sampin and Officer Hartz to be implausible and unbelievable. While there may be
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minor inconsistencies, each officer=s testimony corroborated the other=s and nothing in the record
contradicts their version of the events on August 30, 2002. Nothing was presented to suggest
that Detective Sampin=s view was obstructed by either lighting or distance. As a court of review,
we are to consider the evidence presented at trial in the light most favorable to the prosecution,
and we find that a rational trier of fact could have found the evidence sufficient to support a
guilty finding.
The next issue is whether defendant was denied a fair trial because Officer Hartz=s
testimony labeled defendant a gang member when no evidence was presented that defendant was
in a gang. Defendant concedes that this issue was not preserved for review because it was not
objected to at trial, but contends that the plain error rule applies and allows for review. The State
responds that this issue has been waived on appeal and plain error does not apply.
A defendant's failure to object at trial and to raise the issue in a posttrial motion operates
as a waiver of the right to raise the issue as a ground for reversal on review. People v. Harvey,
211 Ill. 2d 368, 385 (2004). We note that waiver is a limitation on only the parties, and despite
waiver, this court may address an issue in order to carry out its responsibility to reach a just
result. People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003). Supreme Court Rule 615(a)
states that A[a]ny error, defect, irregularity, or variance which does not affect substantial rights
shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the trial court.@ 134 Ill. 2d R. 615(a). Under the plain
error rule, issues not properly preserved may be considered by a reviewing court under two
limited circumstances: (1) where the evidence is closely balanced, so as to preclude argument
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that an innocent person was wrongfully convicted; or (2) where the alleged error is so substantial
that it affected the fundamental fairness of the proceeding, and remedying the error is necessary
to preserve the integrity of the judicial process. People v. Hall, 194 Ill. 2d 305, 335 (2000).
Defendant asserts that the first prong of the plain error rule applies. Under the first
prong, the defendant must prove Aprejudicial error.@ That is, the defendant must show both that
there was plain error and that the evidence was so closely balanced that the error alone severely
threatened to tip the scales of justice against him. The State, of course, can respond by arguing
that the evidence was not closely balanced but rather strongly weighed against the defendant.
People v. Herron, 215 Ill. 2d 167, 187 (2005).
Defendant argues that the evidence was closely balanced because the jury indicated that
it was unable to reach a verdict and the outcome relied on the credibility of the police officers in
comparison to defendant=s witness. In People v. Smith, 341 Ill. App. 3d 530, 543 (2003), this
court held that a jury's difficulty in reaching a verdict is but a single factor in determining
whether the evidence was closely balanced. In that case, the reviewing court found that Afour
hours was not a long enough interval to consider the jury deadlocked@ considering the evidence
to review. Smith, 341 Ill. App. 3d at 543. The Smith court reviewed the evidence against the
defendant and found it to be overwhelming, and the jury=s deliberations alone did not establish
that the evidence was closely balanced. Smith, 341 Ill. App. 3d at 543.
Here, the State presented the testimony of two police officers who observed defendant
with a loaded gun. Detective Sampin, while on surveillance, watched defendant receive and take
possession of the gun. Detective Sampin later recovered that gun after defendant discarded it
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during a pursuit. Officer Hartz also saw the gun tucked into defendant=s waistband during the
struggle at the door of 2502 West Division. The only witness that defendant presented was his
brother, who stated that defendant never came outside and the police just arrived at the scene,
smashed the door, entered the building and arrested defendant without provocation.
We find that the evidence against defendant was not closely balanced. The evidence
clearly established defendant=s guilt. The mere fact that jury indicated in one note that it could
not reach a decision does not render the evidence closely balanced. Additionally, the only
witness presented to challenge the testimony of the officers was defendant=s half-brother and
Rosado=s testimony was impeached by virtue of his close personal relationship with defendant.
People v. Cosme, 247 Ill. App. 3d 420, 429 (1993). Since the evidence was not closely
balanced, we decline to apply the plain error rule and find that this issue was waived. As we
point out later in this decision, this isolated comment, which was not specifically related to
defendant, is not the type of error to warrant review under the second prong of plain error.
The next argument raised by defendant is that the trial court erred in not giving the jury a
definition for reasonable doubt when they requested one during deliberations. The State
responds that this issue has been waived because defendant did not object to the trial court=s
refusal to define reasonable doubt at the jury=s request at trial or in a posttrial motion.
A defendant's failure to object at trial and to raise the issue in a posttrial motion operates
as a waiver of the right to raise the issue as a ground for reversal on review. People v. Harvey,
211 Ill. 2d 368, 385 (2004). As noted above, a waiver is a limitation on only the parties, and
despite waiver, this court may address an issue in order to carry out its responsibility to reach a
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just result. People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003). The State maintains that
defendant has forfeited this issue by failing to raise the issue at trial or in a posttrial motion and
that it does not qualify as plain error.
The pattern jury instructions state in a committee note for Illinois Pattern Jury
Instructions, Criminal, No. 2.05 (4th ed. 2000) (hereinafter IPI Criminal 4th) that AThe
Committee recommends that no instruction be given defining the term >reasonable doubt.= @ IPI
Criminal 4th, No. 2.05, Committee Comment. The Illinois Supreme Court has held that A[t]he
law in Illinois is clear that neither the court nor counsel should attempt to define the reasonable
doubt standard for the jury.@ People v. Speight, 153 Ill. 2d 365, 374 (1992), citing People v.
Cagle, 41 Ill. 2d 528, 536 (1969); People v. Malmenato, 14 Ill. 2d 52, 61 (1958).
Defendant argues that neither the IPI committee nor the supreme court has considered
what should be done when a jury specifically asks for a reasonable doubt definition and urges
this court to find it is appropriate to give the definition under that circumstance. The State
disagrees and points out that this issue has already been considered by the Fourth District.
In People v. Failor, 271 Ill. App. 3d 968, 969-70 (1995), the defendant was charged with
two counts of aggravated criminal sexual assault, and during deliberations, the jury sent out a
note requesting a definition of reasonable doubt. The prosecutor asked the trial court to refrain
from giving a definition. The defense counsel did not object and agreed with the prosecutor that
A >[w]hatever [the jury] decide[s] reasonable doubt is, is what it is.= @ Failor, 271 Ill. App. 3d at
970. The trial court instructed the jury that A >[t]he above matter is for the jury to determine= @
and to continue deliberations and to review the previously given instructions. Failor, 271 Ill.
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App. 3d at 970.
On appeal, the defendant contended that the trial court erred by refusing to give a
reasonable doubt instruction after the jury requested it. The reviewing court pointed out that the
Illinois Supreme Court has consistently held that neither the trial court nor counsel should define
reasonable duty and that the IPI does not provide a definition for reasonable doubt, which
indicates that none should be given. Failor, 271 Ill. App. 3d at 970; see also Speight, 153 Ill. 2d
at 374; Cagle, 41 Ill. 2d at 536; Malmenato, 14 Ill. 2d at 61; IPI Criminal 4th No. 2.05. The
defendant contended that Illinois courts should reassess their position in light of the United
States Supreme Court decisions in Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113
S. Ct. 2078, (1993), and Victor v. Nebraska, 511 U.S. 1, 127 L. Ed. 2d 583, 114 S. Ct. 1239
(1994). Failor, 271 Ill. App. 3d at 970-71. The Failor court held that the law in Illinois is clear
and declined the defendant=s invitation to disregard it. Accordingly, the court concluded that the
trial court did not err when it refused to define reasonable doubt upon the jury=s request. Failor,
271 Ill. App. 3d at 971.
Similarly, in People v. Tokich, 314 Ill. App. 3d 1070, 1075 (2000), the Fourth District
was confronted with the same issue as in Failor, and it declined to find an exception to the well-
established law in Illinois not to define reasonable doubt when the jury requests a definition.
Defendant contends that under People v. Childs, 159 Ill. 2d 217, 233 (1994), a jury is
entitled to have its explicit legal questions answered and that includes being given a definition of
reasonable doubt. Defendant asserts that this precise issue has not been considered in light of
Childs.
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In People v. Childs, the jury sent out a note during deliberations and the bailiff called the
trial judge at a time when the judge was having lunch with assistant State=s Attorneys. The judge
told the bailiff what response to give and then told the prosecutors what the jury had asked and
the response. No attempt was made to contact the defense attorney. Childs, 159 Ill. 2d at 225.
Upon returning to court, the defendant=s attorney was informed of the note and the response.
The defendant=s attorney objected. Subsequently, the defendant was found guilty of murder and
armed robbery. Childs, 159 Ill. 2d at 225-26. The appellate court reversed the defendant=s
conviction, ruling that defendant was prejudiced by the trial court's ex parte response to the
jury's question. Childs, 159 Ill. 2d at 226.
The question posed by the jury in Childs did not involve a definition of reasonable doubt,
but instead asked Awhether defendant could be found guilty of armed robbery and either
voluntary or involuntary manslaughter, or if a finding of guilt of armed robbery mandated a
>guilty of murder= verdict.@ Childs, 159 Ill. 2d at 229. The supreme court found that the State
failed to sustain its burden of proving that the trial court's improper ex parte communication to
the jury was harmless beyond a reasonable doubt, because its position
Aignore[d] several fundamental principles: (1) a jury is entitled to
have its explicit legal questions answered; (2) the trial court has an
obligation to seek clarification of the source of the jury's confusion
if the question is unclear, and to then attempt to clarify the matters
of law about which the jury has manifested confusion; (3) because
jury deliberations are a critical stage of trial affecting substantial
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rights, a defendant has an absolute right to be informed of any jury
question involving a question of law and to be given the
opportunity to participate for his protection in fashioning an
appropriate response; (4) to sustain the jury's verdict following an
improper ex parte communication between the judge and the jury,
it must be apparent that no injury resulted from the ex parte
communication; and (5) the burden is on the prosecution, not the
defendant, to prove that any error in the giving or the substance of
the ex parte response to a jury inquiry is harmless beyond a
reasonable doubt.@ Childs, 159 Ill. 2d at 233-34.
Although we concur with the Childs decision, we do not agree with defendant=s claim
that the jury=s right to have its questions answered trumps the long-standing position in Illinois to
define reasonable doubt. Moreover, defendant asserts that the decisions in Failor and Tokich
lack merit because they discussed supreme court case law before Childs. However, both
decisions were issued after Childs, and the Illinois Supreme Court denied leave to appeal in both
cases. See People v. Failor, 163 Ill. 2d 570 (1995); People v. Tokich, 191 Ill. 2d 556 (2000).
The problem with defendant=s analysis is that Childs does not discuss reasonable doubt at
all. It does not consider the issue defendant poses on appeal. Additionally, Childs was not a
case about a jury=s right to have its questions answered; rather, it concerned a defendant=s right to
be informed of a jury=s question. For these reasons, the supreme court=s decision in Childs is
easily distinguishable from the instant case.
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We agree with the Fourth District=s holdings in Failor and Tokich. The Illinois Supreme
Court has consistently held that reasonable doubt should not be defined by either trial judges or
attorneys. The trial court in this case was correct in adhering to this precedent. Therefore, even
if we were to review this under the plain error rule, we would find there was no error.
Next, defendant asserts that his trial counsel was ineffective because: (1) he failed to
impeach both officers at the suppression hearing and at trial with their arrest report; (2) he failed
to argue that the officers= testimony was incredible at the suppression hearing; (3) he did not
move to strike Officer Hartz=s statement that defendant was a Agang banger@; (4) he failed to
perfect impeachment of Detective Sampin at the suppression hearing regarding an alleged radio
transmission that contradicted his testimony; and (5) he acquiesced in the trial court=s decision
not to give the jury a definition for reasonable doubt. The State maintains that defendant failed
to establish that his trial counsel=s representation was inadequate and that the inadequate
performance substantially prejudiced him.
In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct 2052
(1984), the Supreme Court delineated a two-part test to use when evaluating whether a
defendant was denied the effective assistance of counsel in violation of the sixth
amendment. Under Strickland, a defendant must demonstrate that counsel's
performance was deficient and that such deficient performance substantially prejudiced
defendant. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. If a
case may be disposed of on the ground of lack of sufficient prejudice, that course
should be taken, and the court need not ever consider the quality of the attorney's
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performance. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. In
evaluating sufficient prejudice, A[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.@ Strickland, 466 U.S. at 694, 80 L. Ed. 2d at
698, 104 S. Ct. at 2068.
Defendant=s first claim of ineffective assistance is that his trial counsel failed to question
the officers about their arrest report. The arrest report, signed by Detective Sampin, states:
AIn summary, above arrested on signed complaints in that
the above offender a known felon whom R/Os [reporting officers]
observed with a blue steel semi-automatic pistol loaded with 14
live rounds. Above offender fled from R/Os and threw the pistol
onto the stairs. Fleeing from R/Os he was apprehended after a
short foot chase. Weapon inventoried in 014 District. As offender
fled from A/Os [arresting officers] he fell several times as he
stumbled up the stairs.@
Defendant contends that his trial counsel was ineffective because he did not impeach
both officers regarding the portion of the report that stated Aabove arrested on signed complaints@
and the lack of important details in the report, such as defendant=s receipt of the gun from an
individual in a gold car, that one of the officers asked defendant to Acome here,@ and that
defendant struggled with the officers at the door of 2502 West Division. In defendant=s opinion,
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a reasonable police officer would have included such details in his arrest report. Defendant says
that any failure to impeach the officers with their arrest report affected the trial court=s decision
at the suppression hearing and the jury=s verdict at trial.
The State responds that the statement that Aabove arrested on signed complaints@ refers to
the complaint for preliminary examination that Detective Sampin prepared on August 30, 2002.
The State also points out that the arrest report does not contradict the officers= testimony and the
missing details do not amount to inconsistencies that should have been provided to the jury.
As the State notes, defendant does not cite any authority to support his argument that an
arrest report requires more details than what was provided by Detective Sampin. Defendant
cannot show that his trial attorney=s failure to impeach the officers with the arrest report so
prejudiced him that the result of the proceeding would have been different. The lack of details
did not render the officers= testimony inconsistent, and defense counsel was not ineffective for
failing to impeach the officers about the absent details.
Defendant also contends that his trial counsel was ineffective because he failed to argue
the credibility of the officers at the suppression hearing. However, the State points out that at the
suppression hearing, defendant=s trial counsel proceeded under a legal argument that defendant
was an overnight guest at his brother=s residence and, therefore, the police needed a warrant.
Defendant=s trial counsel asserted that since Detective Sampin lost sight of defendant for a brief
period of time, he did not know whether defendant had a weapon and was committing a crime.
This was a sound legal strategy at the hearing on defendant=s motion to quash arrest and suppress
evidence.
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In order to prove ineffective assistance of counsel, defendant must overcome the
presumption that the challenged conduct might be considered sound trial strategy under the
circumstances. People v. Giles, 209 Ill. App. 3d 265, 269 (1991). Neither mistakes in strategy
nor the fact that another attorney with the benefit of hindsight would have handled the case
differently suggests the trial lawyer was incompetent. People v. Young, 341 Ill. App. 3d 379,
383 (2003). A decision that involves a matter of trial strategy typically will not sustain a claim
of ineffective representation. People v. Simmons, 342 Ill. App. 3d 185, 191 (2003).
Defendant=s trial counsel presented a reasonable and sound legal argument at the
suppression hearing; that defendant would have raised a different argument does not render his
representation ineffective. We do not find that defendant=s trial counsel was ineffective for
failing to argue the officers= credibility at the suppression hearing.
Defendant also claims his trial counsel was ineffective for failing to ask the court to
strike Officer Hartz=s testimony that defendant was a Agang banger.@ Defendant contends that
this statement was highly prejudicial and failing to object to the testimony was ineffective
assistance.
At trial, Officer Hartz testified that defendant told the officer that he was carrying the gun
for protection. The following colloquy took place during Officer Hartz=s cross-examination:
AMR. ADAM [Defense Counsel]: Did you ask him, Freddy,
we just saw you receive the gun, how could you be carrying it for
protection? Did you ask him that?
OFFICER HARTZ: I don=t recall asking him that, no.
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MR. ADAM: Didn=t it strike you as odd a man would
confess to saying I carry a gun, you or your partner just witnessed
himself, doesn=t that strike you as funny?
OFFICER HARTZ: No. In my career, I have seen a lot of
gang bangers and gang members with guns carry guns for their
protection.@
The State counters that this statement was not highly prejudicial because Officer Hartz
did not specifically label defendant as a gang member. Rather, Officer Hartz was merely
explaining that in his experience it was not unusual for him to encounter people who carry guns
for protection.
While defendant argues that this alleged error was of such a magnitude as to deny
defendant a fair trial, we find that the statement does not establish sufficient prejudice that Abut
for counsel's unprofessional errors, the result of the proceeding would have been
different.@ Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. First, the
statement does not directly label defendant as a gang member, as he asserts on appeal.
Additionally, this one statement is the only mention of gangs at defendant=s trial. This isolated
comment, which does not relate specifically to defendant, would not have changed the outcome
of the trial. As previously stated, we have found that the evidence was not closely balanced and
do not believe that this one statement would have resulted in defendant=s acquittal. Since
defendant cannot show prejudice, this claim of ineffective assistance must fail.
Defendant next contends that his trial counsel was ineffective for failing to perfect the
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impeachment of Detective Sampin at the suppression hearing. Specifically, defendant argues
that his trial counsel questioned Detective Sampin on cross-examination about an audio
transmission sent over police radio that contradicted his testimony, but he failed to produce any
evidence that the transmission existed.
At the suppression hearing, defendant=s attorney asked Detective Sampin about an
alleged call to dispatch regarding a silver, four-door Honda with a possible license plate of
336558. Detective Sampin denied making a radio call, stated that the car was gold, and stated
that he was unable to determine the make, model or license plate.
Defendant relies on People v. Williams, 333 Ill. App. 3d 204, 209-11 (2002), to support
his argument that when an attorney attempts to impeach a witness, then he must perfect the
impeachment when the witness denies the impeachment allegation. However, the issue
presented in Williams was whether a defendant was prejudiced by the State=s failure to perfect its
impeachment of the defendant after it implied a motive, but failed to substantiate its line of
impeachment with substantive evidence. Williams, 333 Ill. App. 3d at 209-11. The reviewing
court held that such unperfected impeachment was reversible error because the unsubstantiated
line of questioning destroyed the defendant=s credibility and he was the only witness to testify on
his behalf. Williams, 333 Ill. App. 3d at 211. Further, as the Williams court noted, A >[t]he
danger inherent in such questioning is that the jury will ignore the denial and presume the
accuracy of the impeaching insinuation contained in the question.= @ Williams, 333 Ill. App. 3d at
210, quoting People v. Enis, 139 Ill. 2d 264, 297 (1990).
Here, the alleged ineffectiveness is based on defense counsel=s failure to produce some
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evidence of a radio transmission that contradicted Detective Sampin=s testimony at the
suppression hearing. Defendant does not offer such evidence in the record on appeal as proof
that his attorney had such evidence, but failed to use it. Rather, defendant speculates that such a
recording existed and his attorney should have presented it. Additionally, the harm to be
protected under Williams, namely, to keep the fact finder from presuming the insinuation of
impeachment and the loss of credibility without substantiation, is not present in this case. If the
trial court at the suppression hearing were to assume that Detective Sampin did not correctly
recall the night of August 30, 2002, then it would benefit defendant and harm the prosecution.
Defendant failed to argue how this alleged prejudice would have changed the result of the
proceedings. Even if Detective Sampin=s recollection was wrong regarding the color and make
of the car, it does not alter the fact that Detective Sampin witnessed defendant receiving and
taking possession of a gun and the later recovery of that gun after defendant threw it aside. This
impeachment does not contradict the substance of Detective Sampin=s testimony, and we do not
believe that defendant was prejudiced so that the outcome of the case is uncertain.
Defendant=s final claim of ineffective assistance of counsel is that his trial counsel was
ineffective for failing to object to the trial court=s decision not to define reasonable doubt for the
jury. Since the Illinois Supreme Court has held that no definition of reasonable doubt should be
given and we have already held that the trial court did not err by refusing to define reasonable
doubt, defendant=s trial counsel was not ineffective for following the established case law in this
state. Accordingly, defendant=s trial counsel was not ineffective for adhering to Illinois case law
that a definition of reasonable doubt should not be given to a jury.
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Additionally, defendant argues that he is entitled to a reduction in the total amount of
fines imposed because (1) the $4 criminal/traffic conviction surcharge is a fine and the $20 fine
for the Violent Crime Victim Assistance can only be imposed if no other fines are imposed; and
(2) he is entitled to a credit for the $4 criminal/traffic conviction surcharge from his presentence
credit.
Defendant asserts that the $20 fine for the Violent Crime Victims Assistance Fund (725
ILCS 240/10(c)(2) (West 2004)) was erroneously imposed because the trial court also imposed a
$4 fine for the Traffic and Criminal Conviction Surcharge Fund (730 ILCS 5/5-9-1(c-9)(West
2004), 1 and the $20 fine may only be imposed if Ano other fines@ are imposed (725 ILCS
240/10(c)(2) (West 2004)). This issue presents a question of statutory construction. The
primary rule of statutory construction is to ascertain and give effect to the intent of the
legislature and that inquiry begins with the plain and ordinary meaning of the statute. People v.
Campa, 217 Ill. 2d 243, 252 (2005).
Section 10(c)(2) of the Code of Criminal Procedure of 1963 ( Code) states, in relevant
part:
A(c) When any person is convicted in Illinois on or after
August 28, 1986, *** and no other fine is imposed, the following
penalty shall be collected by the Circuit Court Clerk:
***
1
We note that the $4 additional penalty was eliminated by the legislature in Public Act
94-652 and replaced with A(Blank).@ Pub. Act 94-652, eff. August 22, 2005.
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(2) $20, for any other felony or misdemeanor,
excluding any conservation offense.@ 725 ILCS
240/10(c)(2) (West 2004).
Section 5-9-1(c-9) of the Unified Code of Corrections (Code of Corrections) provides, in
relevant part:
AThere shall be added to every fine imposed in sentencing
for a criminal *** offense, *** an additional penalty of $4
imposed. *** Such additional penalty of $4 shall be assessed by
the court imposing the fine and shall be collected by the circuit
clerk in addition to any other fine, costs, fees, and penalties in the
case. *** The additional penalty of $4 shall be in addition to any
other fine, costs, fees, and penalties and shall not reduce or affect
the distribution of any other fine, costs, fees, and penalties.@ 730
ILCS 5/5-9-1(c-9)(West 2004).
This court has recently considered this issue in People v. Jamison, 365 Ill. App. 3d 778
(2006), and People v. Jones, No. 1-05-0020 (June 23, 2006). In Jamison, the court found that the
defendant was misconstruing the nature of the $4 additional penalty in section 5-9-1(c-9).
Jamison, 365 Ill. App. 3d at 780. After considering the relevant statutory language, the Jamison
court found that Athe plain language of the statute provides that the $4 assessment is an amount
to be surcharged as an additional penalty; it is considered after the imposition of any basic fines
provided for by other legislation.@ (Emphasis in original.) Jamison, 365 Ill. App. 3d at 780. The
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court concluded that Aafter the imposition of the $20 fine, an additional penalty of $4 was
surcharged, and did not reduce or affect the distribution of the $20 fine.@ Jamison, 365 Ill. App.
3d at 780B81.
In Jones, the court found that the fine was improperly imposed since two other fines had
been imposed; a $500 controlled substances assessment and the $4 traffic and criminal
conviction surcharge. Jones, slip op. at 12. However, the Jones court did not acknowledge the
finding in Jamison on this issue nor did it consider, as the court in Jamison did, that the $4
additional penalty is added after the imposition of other fines.
We have reviewed the decisions in both Jamison and Jones, and find the decision in
Jamison to be more persuasive. The statutory language of section 5-9-1(c-9) clearly explained
that the $4 additional penalty was not meant to affect the imposition of other fines, which is what
defendant is asking on appeal. If we were to find that the $4 additional penalty prevented the
imposition of the $20 Violent Crime Victims Assistance Fund fine, then we would be ignoring
the language of the statute. Accordingly, the trial court properly imposed both the $20 Violent
Crime Victims Assistance Fund fine and the $4 additional penalty.
Defendant also contends that the $4 additional penalty should be offset by his
presentence credit. It is not contested that defendant was in custody for 61 days. Defendant did
not raise this issue before the trial court, but the normal rules of waiver do not apply and a
defendant may raised the issue of credit on appeal even if not raised in the trial court. See
People v. Woodard, 175 Ill. 2d 435, 457-58 (1997).
Section 110-14(a) of the Code provides:
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AAny person incarcerated on a bailable offense who does
not supply bail and against whom a fine is levied on conviction of
such offense shall be allowed a credit of $5 for each day so
incarcerated upon application of the defendant. However, in no
case shall the amount so allowed or credited exceed the amount of
the fine.@ 725 ILCS 5/110-14(a) (West 2004).
This issue was also addressed in both Jamison and Jones. The Jamison court noted that
the plain language of section 110-14 provides that the credit is limited to Afines@ and does not
apply to any other amount such as costs or fees, but it Adoes not explicitly provide for credit
against such an >additional penalty.= @ Jamison, 365 Ill. App. 3d at 781. The court stated that in
order to resolve the issue, they had to determine whether the legislature intended the penalty to
be treated as a fine or something else, such as a cost or fee. Jamison, 365 Ill. App. 3d at 781.
Quoting Black's Law Dictionary, the Jamison court noted that a Apenalty@ is defined as a
A >[p]unishment imposed on a wrongdoer, esp. in the form of imprisonment or fine.= @ Jamison,
365 Ill. App. 3d at 781, quoting Black's Law Dictionary 1153 (7th ed.1999). The court
concluded because there is no indication that the legislature intended to depart from the plain
meaning of the statute, the Aadditional penalty@ provided for in section 5-9-1(c-9) is a pecuniary
punishment in the nature of a fine . Jamison, 365 Ill. App. 3d at 782. Accordingly, the court
modified the defendant=s sentencing order to reflect the $4 credit.
The court in Jones agreed with Jamison, and held that pursuant to section 110-14,
defendant may apply the $5-per-day credit to the $4 traffic and criminal conviction surcharge.
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Jones, slip op. at 11.
Likewise, we agree with Jamison that the $4 additional penalty is a fine, and therefore,
defendant is entitled to a credit in the amount of $4.
Finally, defendant asserts that section 5-4-3 of the Unified Code of Corrections,
which
allows for the extraction and storage of the deoxyribonucleic acid (DNA) of convicted
felons, violates his fourth amendment right to be free from unreasonable searches and
seizures. Our supreme court recently rejected this particular claim and upheld the
constitutionality of the statute in People v. Garvin, 219 Ill. 2d 104 (2006). Therefore,
defendant's argument fails.
Based on the foregoing reasons, we affirm defendant=s conviction and modify the
sentencing order of the circuit court of Cook County to reflect the total amount of fines, fees, and
costs of $615.
Affirmed as modified.
CAHILL and GARCIA, JJ., concur.
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