People v. Carter

454 Ill. Dec. 624, 190 N.E.3d 224, 2021 IL 125954 • 2021-12-16

Citation454 Ill. Dec. 624, 190 N.E.3d 224, 2021 IL 125954

Date Filed2021-12-16

Docket125954

Cited25 times

StatusPublished

Full Opinion (html_with_citations)

2021 IL 125954

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 125954)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DAVID CARTER, Appellant.

Opinion filed December 16, 2021.

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with
opinion.

Chief Justice Anne M. Burke and Justices Garman, Theis, Overstreet, and
Carter concurred in the judgment and opinion.

Justice Neville concurred in part and dissented in part, with opinion.

OPINION

¶1 Defendant, David Carter, was charged in the circuit court of Cook County with
several weapons offenses, including being an armed habitual criminal, aggravated
unlawful use of a weapon, and unlawful use or possession of a weapon by a felon.
Defendant filed a motion to quash arrest and suppress evidence, arguing that the
arresting officer lacked reasonable suspicion to stop him. The circuit court denied
the motion. Following a bench trial, defendant was convicted of being an armed
habitual criminal (720 ILCS 5/24-1.7(a) (West 2016)) and sentenced to nine years’
imprisonment. The appellate court affirmed the circuit court’s denial of defendant’s
motion to suppress, his conviction, and his sentence.

2019 IL App (1st) 170803

.
We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct. 1,
2019). For the reasons that follow, we affirm in part, reverse in part, and remand
the cause for resentencing.

¶2 I. BACKGROUND

¶3 On March 29, 2016, the State charged defendant with one count of being an
armed habitual criminal (AHC), alleging that he “knowingly possessed a firearm,
after having been convicted of the offense of armed robbery, under case number
10CF-367, and the offense of aggravated battery, under case number 09CF-2251.”
Defendant was also charged with four counts of unlawful use or possession of a
weapon by a felon and four counts of aggravated unlawful use of a weapon.

¶4 Defendant filed a motion to quash his arrest and suppress evidence, alleging
that the investigatory stop that resulted in his arrest violated the fourth amendment.
At a hearing on the motion to suppress, Chicago police officer Robert Luzadder
testified that he and his partner, who were in uniform and wearing duty belts with
service weapons, were on patrol in a squad car on March 9, 2016, at about 11:36
p.m., when they received an Office of Emergency Management and
Communications (OEMC) dispatch “stating a person who wished to remain
anonymous [reported] a person with a gun that was walking with two females. Two
female whites were walking with a male white wearing a black jacket, hoodie, and
he was swinging at the females and that he has a gun on him.” The caller said that
the group was near the intersection of 33rd and Wallace Streets. Luzadder testified
that the anonymous tipster’s phone number had been recorded.

¶5 Luzadder arrived at the intersection two or three minutes after receiving the call,
but he did not see anyone matching the individuals described by the anonymous
caller. A second OEMC dispatch relayed additional information from the caller that
“the people were now walking near 3100 South Lowe Avenue,” approximately two

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blocks to the north. Luzadder further testified that he and his partner relocated to
that area within two to four minutes. At the second location, Luzadder saw
defendant, a white male, who was wearing clothing described by the anonymous
caller, walking east in the south alley of 31st Street and holding the right side of his
waistband. Luzadder did not observe the two women described by the caller, nor
did he see defendant violate any laws.

¶6 Luzadder explained that, during his 22 years of working as a police officer, his
observations of hundreds of individuals carrying firearms in their clothing led him
to believe that defendant was “attempting to conceal a firearm underneath his
clothing.” Luzadder acknowledged that in some instances in which he had observed
people holding their waistbands the police had not recovered guns.

¶7 After Luzadder got out of the patrol car, with a hand on his service weapon, he
ordered defendant to raise his hands, approach the squad car, and place his hands
on the car. Because the call concerned a firearm and Luzadder had seen defendant
holding his waistband, Luzadder patted down defendant for Luzadder’s own safety.
Luzadder patted down defendant over his clothes and felt what he believed to be
the handle of a handgun. He then lifted defendant’s shirt and recovered a nickel-
plated revolver from defendant’s waistband. Luzadder arrested defendant, at which
time defendant made a statement related to the gun. After hearing the testimony
and argument on defendant’s motion to suppress, the circuit court denied the
motion.

¶8 Defendant waived his right to a jury trial, and the State dismissed two of the
counts of unlawful use or possession of a weapon by a felon. At defendant’s bench
trial, the parties stipulated to Luzadder’s testimony from the suppression hearing.
Luzadder provided brief, additional testimony regarding the statement made by
defendant after the gun was found. According to Luzadder, defendant said, “I’m a
2-6, I’m on parole and I use this for protection against the SDs.” Luzadder also
testified that a five-shot revolver with one live round was recovered from defendant
during the pat-down.

¶9 The State placed two exhibits into evidence: a certified copy of defendant’s
2010 armed robbery conviction and a certified copy of defendant’s 2009 aggravated
battery conviction. The parties also stipulated that defendant did not have a valid
Firearm Owner’s Identification card or a concealed-carry license on the date that

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Luzadder recovered the firearm from his person. The State rested its case-in-chief.
Defendant elected not to testify, and the defense rested without calling any
witnesses.

¶ 10 Following closing arguments, the court determined that the State had met its
burden of proof beyond a reasonable doubt and convicted defendant on all
remaining counts: one count of AHC, two counts of unlawful use or possession of
a weapon by a felon, and four counts of aggravated unlawful use of a weapon. The
court denied defendant’s request for a new trial and sentenced him to nine years’
imprisonment on the AHC count and merged the other counts.

¶ 11 On appeal, defendant argued that the circuit court erroneously denied his
motion to quash arrest and suppress evidence because the police officers lacked a
reasonable, articulable suspicion to conduct the investigatory stop that produced the
gun, bullet, and statement that were admitted at trial. See Terry v. Ohio,

392 U.S. 1

       (1968). The appellate court explained that, to justify a Terry stop, an officer must
       be able to point to specific and articulable facts that, taken together with rational
       inferences from those facts, support the conclusion that an individual has
       committed or is about to commit a crime.

2019 IL App (1st) 170803, ¶ 20

. The
court recognized that anonymous tips alone seldom provide law enforcement
officers with the reasonable suspicion necessary to initiate a lawful investigatory
stop because such tips generally fail to demonstrate the informant’s basis of
knowledge or veracity and, in such cases, an officer’s corroboration of information
contained in the anonymous tip becomes especially important. Id. ¶ 21.

¶ 12 The court concluded that Luzadder engaged in corroboration of the assertion of
illegality provided by the tipster when he observed someone matching the
description of the person provided by the caller at the location where the caller said
he would be. Moreover, he corroborated the report that the person had a gun when
he observed defendant walking in a manner that suggested he was concealing a
firearm under his clothing. Id. ¶ 24. Luzadder’s reasonable suspicion that defendant
was armed further justified a protective pat-down search of his person to ensure
Luzadder’s own safety and the safety of others. Id. Because the firearm was
recovered during a lawful search and seizure, the circuit court did not err in denying
defendant’s motion to quash arrest and suppress evidence. Id.

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¶ 13 The appellate court next considered defendant’s challenge to the sufficiency of
the evidence supporting his AHC conviction. Defendant argued that the State had
failed to prove that he had the requisite two qualifying predicate offenses required
by the AHC statute. That statute provides:

“§ 24-1.7. Armed habitual criminal.

(a) A person commits the offense of being an armed habitual criminal if he
or she receives, sells, possesses, or transfers any firearm after having been
convicted a total of 2 or more times of any combination of the following
offenses:

(1) a forcible felony as defined in Section 2-8 of this Code;

(2) unlawful use of a weapon by a felon; aggravated unlawful use of a
weapon; aggravated discharge of a firearm; vehicular hijacking; aggravated
vehicular hijacking; aggravated battery of a child ***; intimidation;
aggravated intimidation; gunrunning; home invasion; or aggravated battery
with a firearm ***; or

(3) any violation of the Illinois Controlled Substances Act or the
Cannabis Control Act that is punishable as a Class 3 felony or higher.” 720
ILCS 5/24-1.7(a) (West 2016).

Armed robbery is not listed as a qualifying offense in either subsection (a)(2) or
(a)(3), and the only types of aggravated battery listed are aggravated battery of a
child and aggravated battery with a firearm. Thus, the court noted that defendant’s
convictions qualified only if they were considered “ ‘forcible felonies’ ” pursuant
to subsection (a)(1).

2019 IL App (1st) 170803, ¶ 34

. Defendant did not dispute that
his armed robbery conviction was a forcible felony and therefore a proper
qualifying predicate offense. Id. ¶ 36.

¶ 14 The court explained, however, that the only type of aggravated battery that
qualifies as a forcible felony pursuant to section 2-8 of the Criminal Code of 2012
is “ ‘aggravated battery resulting in great bodily harm or permanent disability or
disfigurement.’ ” (Emphasis omitted.) Id. ¶¶ 35-39 (quoting 720 ILCS 5/2-8 (West
2016)); id. ¶¶ 36-39. The certified copy of the aggravated battery conviction
provided by the State to establish defendant’s guilt of AHC did not specify the

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aggravating factors underlying defendant’s aggravated battery conviction. Id. ¶ 40.
Defendant attached a copy of the aggravated battery indictment as an appendix to
his appellate brief. Id. ¶ 41. The indictment showed that defendant was charged
with two counts of aggravated battery. Id. ¶¶ 41-42. One count alleged the
aggravating factor of use of a deadly weapon other than the discharge of a firearm.
See 720 ILCS 5/12-4(b)(1) (West 2008). The other alleged the aggravating factor
of being on a public way. See id. § 12-4(b)(8). Nevertheless, the court held that it
could not consider the indictment, as defendant had merely attached it as an
appendix to his appellate brief and had not moved to supplement the record.

2019 IL App (1st) 170803, ¶¶ 43-44

¶ 15 The court ultimately rejected defendant’s sufficiency of the evidence claim for
two reasons. First, the court explained that it was defendant’s burden to provide the
appellate court with a sufficiently complete record on appeal and, in the absence of
a complete record, the court must presume that the trial court’s judgment conformed
to the law and had a sufficient factual basis. Id. ¶ 44. Because of the lack of
information in the record about defendant’s aggravated battery conviction, the court
said that it “necessarily” rejected his sufficiency of the evidence claim. Id. ¶¶ 44-
45. Second, the court reiterated that, when reviewing a sufficiency of the evidence
claim, it was required to construe the evidence in the light most favorable to the
prosecution and determine whether any rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. Id. ¶ 45. Because aggravated
battery qualifies as a predicate felony in certain circumstances and because
defendant did not challenge the State’s assertion at trial that his aggravated battery
conviction was a qualifying felony or provide any evidence that it was not a
qualifying felony, the court held that it had no choice but to reject defendant’s
sufficiency argument. Id. The court denied that it was shifting the burden of proof
to defendant to establish his innocence. Id.

¶ 16 We granted defendant’s petition for leave to appeal. See Ill. S. Ct. R. 315 (eff.
Oct. 1, 2019).

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¶ 17 II. ANALYSIS

¶ 18 A. Motion to Suppress

¶ 19 On appeal, defendant argues that his conviction must be reversed because the
circuit court erred in denying his motion to quash arrest and suppress evidence
obtained from a Terry stop that was not supported by reasonable suspicion in
violation of the fourth amendment. Specifically, defendant contends that the
anonymous tips were not sufficiently reliable to provide Luzadder with reasonable
suspicion that defendant was engaged in criminal activity because (1) the
information provided by the unnamed caller did not state the basis of the caller’s
knowledge or give predictive assertions that would allow the police to test the
caller’s credibility, (2) the tip that a man was assaulting two women was not
corroborated by the police, which then called into question the reliability of the tip’s
assertion that the man had a gun, and (3) the officer’s observation of defendant’s
act of walking with his hand on his waistband did not sufficiently corroborate the
tip to justify the Terry stop.

¶ 20 The State responds that, considering the totality of the circumstances,
Luzadder’s investigatory stop was supported by reasonable suspicion. The State
argues that the anonymous tips contained sufficient indicia of reliability and were
corroborated by Luzadder’s observations. The State contends that Luzadder’s
observation of defendant walking with his hand on his waistband, and his subjective
inference from the same, independently corroborated the informant’s report that
defendant was carrying a firearm.

¶ 21 When reviewing the trial court’s ruling on a motion to quash arrest and suppress
evidence, we apply a two-part standard of review. People v. Timmsen,

2016 IL 118181, ¶ 11

. First, we afford great deference to the trial court’s findings of fact
       and will reverse those findings only if they are against the manifest weight of the
       evidence.