Opinion
No. 1-13-2202
07-24-2017
THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee, v. CENQUE SOMERVILLE, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 10 CR 17394
Honorable Timothy J. Joyce, Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court.
Justice Cunningham and Delort concurred in the judgment.
ORDER
Held: Defendant's conviction for being an armed habitual criminal is affirmed pursuant to our supreme court's recent decision in People v. McFadden, 2016 IL 117424; and the State proved defendant guilty beyond a reasonable doubt.
¶ 1 Following a bench trial, defendant Cenque Somerville was convicted of being an armed habitual criminal (AHC) and sentenced to six and a half years in prison. In a previous order, we vacated defendant's AHC conviction, agreeing with defendant that his prior conviction for aggravated unlawful use of a weapon (AUUW) was void ab initio under People v. Aguilar, 2013
IL 112116, and the State could not rely on that conviction to satisfy the prior felony element of AHC. People v. Somerville, 2017 IL App (1st) 132202-U.
¶ 2 On September 28, 2016, our supreme court entered a supervisory order directing us to vacate our judgment and to reconsider the matter in light of People v. McFadden, 2016 IL 117424, to determine if a different result is warranted. After addressing for the first time whether the State proved defendant guilty of armed habitual criminal beyond a reasonable doubt, we now affirm the AHC conviction.
¶ 3 BACKGROUND
¶ 4 The State charged defendant with one count of AHC, four counts of unlawful use or possession of a weapon by a felon, and six counts of aggravated unlawful use of a weapon, stemming out of an incident that occurred on September 1, 2010, in which police officers allegedly observed defendant flee a car with a gun in his hand.
¶ 5 During defendant's bench trial, Officer Dwayne Gordon testified first. Officer Gordon testified that he was working with the gang enforcement unit on September 1, 2010. Officer Gordon testified that on the evening in question, he was patrolling the area of 940 East 48th Street in Chicago. Officer Gordon testified that he was working with Officer Randall Buford on the date in question, and that they were in an unmarked squad car. Officer Gordon identified defendant as someone he saw on the night in question, sitting on the right side of the back of a vehicle. Officer Gordon testified that there were four people in the car, including defendant, and that when he first saw defendant, he was about three to five feet away. Officer Gordon testified that when they passed the vehicle, they smelled "an odor of cannabis coming from the vehicle." Officer Gordon testified that the unmarked squad car had its windows down, as did the vehicle defendant was in, and that they could smell fresh cannabis coming from the vehicle.
¶ 6 Officer Gordon testified that they stopped the car and as he began to get out, defendant opened the rear passenger door, fleeing eastbound onto 47th and Ellis. Officer Gordon pursued him on foot. Officer Gordon testified that at the same time defendant cut into an alley, his partner jumped out of the unmarked squad car and followed defendant on foot. Officer Gordon testified that he then got into the squad car tried to cut defendant off. He saw defendant coming directly towards his car, with his partner running behind him. Officer Gordon exited the vehicle and once again pursued defendant on foot. A University of Chicago police officer, Curtis Thomas, had also joined the chase. Officer Gordon testified that he had seen an object in defendant's hand when he was initially chasing him, when he was about five to ten feet away, and that defendant then "tossed the foreign object - tossed the gun once I saw it."
¶ 7 Officer Gordon stated that he knew the object was a gun when defendant threw it, and described it as black steel with a wooden handle. Officer Gordon testified that defendant was facing him when he threw the gun, and that he had been holding it in his right hand. Officer Gordon testified that he saw where the gun landed, and maintained a visual surveillance of the area. After defendant was placed into custody, Officer Gordon recovered a black revolver with a wooden handle, "a Stern 357 magnum handgun containing six live rounds." Officer Gordon testified that defendant had never been issued a FOID card.
¶ 8 On cross-examination, defense counsel asked Officer Gordon how far he was away from defendant when defendant tossed the gun, and Officer Gordon answered, "five to ten feet" away. Defense counsel then asked if he remembered testifying at a preliminary hearing in this case, where he stated he was ten feet away from defendant when he tossed the gun. Officer Gordon stated that he did.
¶ 9 Detective Curtis Thomas testified next, stating that he worked for the University of Chicago Police Department on the night in question. Detective Thomas testified that it came over the radio that there was a foot chase around 47th and Ellis headed southbound, so he traveled to that area. Detective Thomas testified that when he arrived, he saw defendant running southbound on Ellis. Detective Thomas said he angled his car towards defendant, who then ran towards an orange dumpster that was in the street. Detective Thomas testified that he exited his vehicle and was able to "grab" defendant from behind. Detective Thomas testified that he had something in his hands, stating "I just saw it was a black object." He testified that as he grabbed defendant, he threw the object, which landed on the sidewalk. Detective Thomas testified that Officer Gordon then approached and helped him detain defendant, before walking over to the black object on the sidewalk, and returned with a "blue steel revolver," that he had "in his hand as he walked toward me."
¶ 10 Defendant then testified on his own behalf. He stated that on the night in question, he was texting on his cell phone in a friend's car. He recognized one of the officers when they drove by the car. Defendant testified that he was on parole and had not checked in, and knew he "had a warrant." He stated that Officer Gordon was one of the officers that had previously arrested him and "tried to send me back downstate." When that did not happen, the officers told him that next time they saw him, they were "going to have some fun with me." Defendant testified that when he saw the officers approaching the vehicle, he decided to take his chances and run. He testified that he did not have a weapon on him that night, nor did anyone else in the vehicle. He also testified that he had not been smoking cannabis, and had not seen any in the vehicle. Defendant testified that Detective Thomas eventually intercepted him and tackled him in a bear hug, at
which point his cell phone "jumped out of my hand." Defendant stated that he never saw the officers with a gun.
¶ 11 At the close of defendant's bench trial, the trial court acknowledged defendant's testimony regarding Officer Gordon wanting to build a case against him, but noted that Detective Thomas, whose testimony corroborated Officer Gordon's, had no motivation to build a case against defendant. The trial court stated, "I did believe Officer Gordon. I did believe Detective Thomas. I listened carefully to their testimony, as I listened carefully to [defendant's] testimony. I believed Officer Gordon and Detective Thomas. I did not believe [defendant]. There will be a finding of guilty on all counts, 1 through 11." The trial court then stated that counts 2 through 11 "will merge into Count 1. There will be a finding of guilty of the offense of armed habitual criminal." Defendant's AHC conviction was premised on defendant's prior AUUW conviction in case number 08 CR 11235, and his prior unlawful use or possession of a weapon by a felon (UUWF) conviction in case number 08 CR 2995. Defendant was sentenced to 78 months in prison.
¶ 12 Defendant timely appealed, arguing that his AHC conviction, which was predicated, in part, on a prior conviction for AUUW, could not stand because, in People v. Aguilar, 2013 IL 112116, the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) was found to violate the right to bear arms under the second amendment of the United States Constitution. Defendant argued that because his 2008 AUUW conviction was now void, it could not serve as one of the two predicate convictions necessary to support his AHC conviction. See 720 ILCS 5/24-1.7 (West 2008) (a person commits the offense of AHC when "he or she receives, sells, possesses, or transfers any firearm after having been convicted" of two qualifying
offenses). Defendant also argued that the State failed to prove him guilty beyond a reasonable doubt.
¶ 13 On December 31, 2014, we issued an order in which we agreed with defendant that in light of Aguilar, the 2008 AUUW conviction could not support the subsequent AHC conviction. Somerville, 2014 IL App (1st) 132202-U. We never reached the sufficiency of the evidence issue. On September 28, 2016, our supreme court entered a supervisory order, directing us to reconsider our judgment in light of People v. McFadden, 2016 IL 117424. Our December 31, 2014, order was withdrawn after the supervisory order was issued, and we allowed the parties to file supplemental briefing with respect to the impact of McFadden.
¶ 14 ANALYSIS
¶ 15 We first address whether, in light of our supreme court's McFadden decision, the State established the predicate offenses necessary to sustain a conviction for the AHC offense. In McFadden, the defendant appealed a UUWF conviction based on his possession of a firearm at a time when he had previously been convicted of AUUW. As in this case, the McFadden defendant's prior AUUW conviction was based on the same AUUW statutory provision found to be unconstitutional by our supreme court's decision in Aguilar. McFadden, 2016 IL 117424, ¶ 1. The defendant in McFadden argued that Aguilar's holding prevented the State's use of the prior AUUW conviction to serve as a predicate offense for the UUWF charge. Id. ¶ 8.
¶ 16 This court agreed with the McFadden defendant and vacated his UUWF conviction on the basis of Aguilar. People v. McFadden, 2014 IL App (1st) 102939. However, our supreme court reversed, reasoning that the defendant's felon status was unaffected by Aguilar in that, unless the prior conviction was vacated, the prior felony conviction precluded the defendant from legally possessing a firearm. McFadden, 2016 IL 117424, ¶ 31 ("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.")
¶ 17 Our supreme court in McFadden relied heavily on the United States Supreme Court's holding in Lewis v. United States, 445 U.S. 55, 65 (1980), noting "that under a federal felon-in-possession-of-a-firearm statue, a constitutionally infirm prior conviction could be used by the government as the predicate felony." Id. ¶ 22. McFadden cited this reasoning in holding that an AUUW conviction subject to vacatur under Aguilar may still serve as a predicate felony for a UUWF conviction, stating that "under Lewis and its progeny, the fact of a felony conviction without any intervening vacatur or other affirmative action to nullify the conviction triggers the firearms disability." Id. ¶ 24. McFadden applied the reasoning from Lewis to the UUWF statute, which prohibited possession of a firearm by any person " 'if the person has been convicted of a felony under the laws of this State or any other jurisdiction.' " Id. ¶ 27 (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The court stated that the UUWF statute "requires the State to prove only the defendant's felon status" and did not suggest "any intent to limit the language to only those persons whose prior felony convictions are not later subject to vacatur." Id. The McFadden court further stated that the language of the UUWF statute, as with the federal statute at issue in Lewis, was " 'consistent with the common-sense notion that a disability based upon one's status as a convicted felon should cease only when the conviction upon which that status depends has been vacated.' " (Id. ¶ 29 (quoting Lewis, 445 U.S. at 61 n.5)), and that "it is immaterial whether the predicate conviction 'ultimately might turn out to be invalid for any reason.' " Id. (quoting Lewis, 445 U.S. at 62). McFadden noted that the offense of UUWF was a status offense, "and the General Assembly intended that a defendant must clear his felon status before obtaining a firearm." Id. ¶ 29.
¶ 18 In his supplemental briefs, defendant contends that the qualifying prior convictions for the AHC offense are elements of a recidivist statute, and that under Lewis and its progeny, the State may not use invalid prior convictions to prove the prior-felony element of a recidivist statute. This exact argument has been recently addressed and rejected by this court.
¶ 19 In People v. Perkins, 2016 IL App (1st) 150889, this court found that McFadden applied to sustain an AHC conviction premised on the same AUUW offense at issue in this case. In Perkins, the defendant asserted that McFadden's reasoning was limited to the offense of UUWF because "UUWF impose[d] a 'status-based disability' that precludes any convicted felon from possessing a firearm" whereas "the offense of armed habitual criminal requires the State to prove that the defendant was convicted of specific enumerated offense." Id. ¶ 6. The Perkins defendant argued that UUWF imposed a "status-based disability" whereas the AHC conviction imposed a "conduct-based disability *** based on a defendant's commission of specific acts." Id. The Perkins defendant argued that "because the conduct of which he was previously convicted - possession of a firearm - was constitutionally protected, it cannot serve as a predicate for his armed habitual criminal conviction." (Emphasis in original.) Id.
¶ 20 This court in Perkins rejected the defendant's attempt to differentiate the UUWF offense form the AHC offense by stating:
"In order to sustain its burden to prove that defendant is an armed habitual criminal, the State need only prove the fact of the prior convictions of enumerated offenses [citations], just as the State need only prove the fact of a prior felony conviction to support a UUWF conviction. Nothing in the armed habitual criminal statute requires a court to examine a defendant's underlying conduct in commission of the enumerated offenses in order to
find that the State has sustained its burden of proof. And because here, as in McFadden, Perkins' prior convictions had not been vacated prior to his armed habitual criminal conviction, they could properly serve as predicates for that conviction." Id. ¶ 7.
¶ 21 This court found this same reasoning to apply in People v. Faulkner, 2017 IL App (1st) 132884, ¶ 27, in which the defendant's argument against applying McFadden to support an AHC offense was rejected. Accordingly, we also reject this argument.
¶ 22 We note that defendant has cited Burgett v. Texas, 389 U.S. 109 (1967), United States v. Tucker, 404 U.S. 443 (1972), and United States v. Bryant, 579 U.S. ___, 136 S.Ct. 1954 (2016), to assert that invalid convictions cannot be used in subsequent proceedings to prove the prior felony element of a recidivist statute or be relied upon to impose a longer sentence. This issue has also recently been addressed in People v. Fields, 2017 IL App (1st) 110311-B, in which this court reasoned:
"Recidivist statutes like the ones in Bryant and Burgett or the imposition of a harsher sentence as in Tucker, depend on the reliability of those prior convictions. The Lewis court explained that 'gun laws, however, focus not on reliability but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons.' McFadden acknowledged that Lewis dealt with a federal statute but our supreme court found 'no reason to treat the interpretation of section 24-1.1(a) [(UUWF)] different than the Supreme Court's interpretation of the similar federal statute in Lewis.' As the State was only required to prove the 'status' of defendant's prior convictions to establish AHC and not their
reliability, we reject defendant's argument." (Citations omitted). Fields, 2017 IL App (1st) 110311-B, ¶ 49.
¶ 23 We also reject defendant's identical arguments and affirm his AHC conviction. In addition, we incorporate the views expressed in both the majority opinion and special concurrence in People v. Spivey, 2017 IL App (1st) 123563, regarding the need for a legislative solution to continuing effects of convictions under the statute found unconstitutional and void ab initio in Aguilar.
¶ 24 Next, we turn to an issue that we have not yet addressed on appeal, which is whether the State proved defendant guilty of AHC beyond a reasonable doubt. Defendant contends that the State failed to prove that defendant possessed a firearm, and thus his AHC conviction cannot stand. Defendant argues that it was unreasonable for the trial court to accept Officer Gordon's "impeached" testimony over defendant's "plausible" testimony that he had a cell phone in his hand, not a gun. Defendant relies on the argument that Officer Gordon's testimony "was inherently not believable when he said that he smelled fresh marijuana coming from the car [defendant] was in." Defendant also takes issue with the fact that there was no other evidence introduced at trial to corroborate Officer Gordon's testimony that defendant had a gun. The State responds that in viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant possessed a gun, especially in light of the fact that Officer Gordon's testimony was corroborated by Detective Thomas. We agree.
¶ 25 The State carries the burden of proving beyond a reasonable doubt each element of an offense. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); People v. Cunningham, 212 Ill. 2d 274, 278 (2004). Where a criminal conviction is challenged based on the insufficient evidence, a
reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. Jackson, 443 U.S. at 318-19; People v. Cooper, 194 Ill. 2d 419, 430-31 (2000). "Under this standard of review, it is the responsibility of the trier of fact to 'fairly *** resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate acts.' " People v. Howery, 178 Ill. 2d 1, 38 (1997) (quoting Jackson, 443 U.S. at 319). Therefore, a reviewing court will not substitute its judgment for that of the trier of fact on issues involving the weight of evidence or the credibility of witnesses. Cooper, 194 Ill. 2d at 431. A criminal conviction will not be set aside unless the evidence is so improbably or unsatisfactory as to create a reasonable doubt of the defendant's guilt. Howery, 178 Ill. 2d at 38. This same standard of review applies regardless of whether defendant received a bench or jury trial. Cooper, 194 Ill. 2d at 431.
¶ 26 With respect to whether defendant had a gun on the day in question, the evidence presented was as follows. Officer Gordon testified that he saw an object in defendant's hand when he was initially chasing him, and that he saw defendant throw a gun right before he was apprehended. Officer Gordon described the gun as black steel with a wooden handle, and testified that he recovered a black revolver with a wooden handle, "a Stern 357 magnum handgun containing six live rounds." Detective Thomas testified that when he came upon defendant, he saw that defendant had "a black object" in his hands, and that when he tackled defendant, defendant threw the object, which landed on the sidewalk. Detective Thomas testified that Officer Gordon then recovered the gun, a "blue steel revolver," that Detective Thomas observed in Detective Gordon's hand when Detective Gordon walked toward him.
¶ 27 While defendant testified that he only had a cell phone in his possession that night, and that Officer Gordon was impeached by his testimony from the preliminary hearing where he stated he was ten feet away from defendant when he saw the gun in defendant's hand (instead of his trial testimony of five to ten feet away), we cannot accept this challenge to the sufficiency of the evidence. We highlight that when considering a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry the defendant. People v. Collins, 214 Ill. 2d 206, 217 (2005). Rather, in a bench trial, it is for the trial judge, sitting as the trier of fact, to determine the credibility of the witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence. People v. McDonald, 168 Ill. 2d 420, 448-49 (1995). A reviewing court will not reverse a conviction simply because the evidence is contradictory or because the defendant claims that a witness was not credible. People v. Evans, 209 Ill. 2d 194, 211-12 (2004).
¶ 28 In finding defendant guilty, the trial court made credibility determinations, finding the officers credible and the defendant not credible. The trial court appropriately rejected defendant's claim that Officer Gordon was trying to set up defendant. See Howery, 178 Ill. 2d at 37 (trier of fact not required to accept any possible explanation compatible with the defendant's innocence and elevate it to the status of reasonable doubt). After reviewing the record in the light most favorable to the prosecution, we hold that the officers' testimony was sufficient to prove defendant guilty beyond a reasonable doubt.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 31 Affirmed.