People v. Diggins

2016 IL App (1st) 142088
No. 1-14-2088
FIRST DIVISION
May 31, 2016
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
)
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) 11 CR 6438
)
SHAWAN DIGGINS, ) Honorable
) Timothy Joseph Joyce,
Defendant-Appellant. ) Judge Presiding.
)
JUSTICE CONNORS delivered the judgment of the court, with opinion.
Presiding Justice Cunningham and Justice Harris concurred in the judgment and opinion.
OPINION
¶1 Defendant Shawan Diggins was convicted of aggravated unlawful use of a weapon
(AUUW) after a bench trial and was sentenced to 13 months in prison. Defendant appeals,
alleging that his right to confront the witnesses against him was violated when the State was
allowed to admit a certified letter that amounted to a testimonial affidavit from a nontestifying
witness for its truth, which established an element of AUUW. For the following reasons, we
reverse.
No. 1-14-2088
¶2 BACKGROUND
¶3 The State charged defendant with several counts alleging that he illegally possessed a
firearm on April 12, 2011. Before trial, the State dismissed three of the charges and proceeded
on just two counts: (1) unlawful possession of a firearm by a street gang member, and (2)
AUUW predicated on defendant’s lack of a Firearm Owner’s Identification (FOID) card.
¶4 At trial, two police officers testified as to what happened on the date in question. Officer
Jeffrey Rodenberg testified that at approximately 9:20 p.m., he and his partner, Officer Scott
Celani, were patrolling in the vicinity of 80th Street and Fairfield Avenue. Officer Rodenberg
testified that as they were patrolling, he spotted defendant standing in an alley with another man.
The officers knew there was a warrant out for his arrest, so they approached defendant. Officer
Rodenberg testified that as they approached defendant, defendant reached into his waist and pull
out a dark-colored handgun. Officer Rodenberg testified that he observed defendant toss the
handgun over a chain-link fence. Officer Rodenberg arrested defendant and directed another
officer, Sergeant Poppish, who had arrived on the scene, to retrieve the handgun. Officer
Rodenberg testified that Sergeant Poppish climbed over the fence and retrieved a handgun.
¶5 Sergeant Michael Poppish testified that after arriving on the scene and talking to Officer
Rodenberg, he went inside the backyard at 7955 South Fairfield and recovered a "black
semiautomatic pistol, a .380, which I found to be loaded with six live rounds of ammunition."
¶6 The State then indicated that it had a "certified letter" from the Firearm Service Bureau of
the Illinois State Police, which stated:
"Based on the following name and date of birth information provided by the Cook
County State’s Attorney’s Office, I, Sergeant Matt Weller, Firearms Services
Bureau, Illinois State Police, do hereby certify, after a careful search of the FOID
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files, the information below to be true and accurate for [defendant], whose date of
birth is May 8, 1995. It is further certified that: (1) On December 28, 1997, this
office received a FOID application from [defendant] with the above date of birth.
On January 17, 2008, FOID Card #77550476 was denied due to [defendant]
having a pending felony indictment; and (2) As of May 7, 2013, this office has no
other record for [defendant]."
¶7 The document was signed and notarized. Defense counsel objected to the admission of
the certified letter into evidence. Defense counsel argued that it was not a self-authenticating
document, and that it was not kept in the normal course of business. The State responded that it
was a self-authenticating document because it was "a certified document with a seal bearing the
signature and seal of the office." The trial court stated that it believed the letter was properly
admissible as a certified document of a governmental agency. The court stated that "[t]he rule
that applies is the Illinois rule of evidence that permits the introduction of certified governmental
documents." The court continued, stating, "If you want an opportunity to subpoena and cross-
examine the witness and bring that person in as a witness on behalf of the [d]efense, I will give
you that opportunity, but the exhibit *** is admissible over your very well-stated objection."
Defense counsel continued its objection, stating that this was not a document kept in the normal
course of business, and rather it was the result of a specific request by the State. The trial court
again denied the objection because "the document speaks to a review of documents kept in the
normal course of business."
¶8 Defendant then testified on his own behalf. He denied that he ever possessed a gun on
the night in question. On cross-examination, defendant was asked, "you don't have a firearm
owner's identification card, do you?" Defendant responded, "No, I do not."
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¶9 At the close of evidence, the trial court noted that it had considered the testimony of
Officer Rodenberg, Sergeant Poppish, the State's exhibits, "the certified document," and the
testimony of defendant. The trial court found defendant not guilty of the unlawful possession of
a firearm by a street gang member, but guilty of the AUUW count. The trial court sentenced
defendant to 13 months in prison and a year of mandatory supervised release. Defendant now
appeals.
¶ 10 ANALYSIS
¶ 11 On appeal, defendant contends that that the admission of the certified letter from Illinois
State Police alleging his lack of a FOID card violated his constitutional right of confrontation
because the document constituted an affidavit that was testimonial hearsay, the affiant was not
subject to prior cross-examination and not shown to be unavailable, and the affidavit was
admitted substantively for its truth. The State responds that defendant failed to preserve this
issue for appeal when he failed to include it in his posttrial motion, and that even if the issue had
been properly preserved the document did not violate defendant’s right of confrontation.
¶ 12 We first address the preservation issue. To preserve an issue for review, a party
ordinarily must raise it at trial and in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176,
186 (1988). Defendant admits that while he objected to the State's use of the certified letter at
trial, he failed to specifically object again in a posttrial motion. However, as defendant notes, he
did argue in his posttrial motion that the State failed to present sufficient evidence regarding
defendant's possession of a FOID card. See People v. Mohr, 228 Ill. 2d 53, 64-65 (2008) (the
rule of forfeiture does not state that a defendant must object on identical grounds – only that the
defendant must object during and after trial). In any event, our supreme court has held that
certain types of claims are not subject to forfeiture for failing to file a posttrial motion, including
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No. 1-14-2088
constitutional issues that were properly raised at trial and may be raised later in a postconviction
petition. Enoch, 122 Ill. 2d at 190. The Post-Conviction Hearing Act provides a mechanism for
criminal defendants to assert that a conviction or sentence resulted from a substantial denial of
their rights under the United States Constitution, the Illinois Constitution, or both. 725 ILCS
5/122-1(a) (West 2008). Postconviction proceedings permit inquiry into constitutional issues
that were not, and could not have been, adjudicated on direct appeal. People v. English, 2013 IL
112890, ¶ 22. If a defendant were precluded from raising a constitutional issue previously raised
at trial on direct appeal merely because he failed to raise it in a posttrial motion, the defendant
could simply allege the issue in a later postconviction petition. People Cregan, 2014 IL 113600,
¶ 18. Accordingly, we find that defendant's constitutional violation allegation was properly
preserved on direct appeal.
¶ 13 The right of confrontation under the federal and state constitutions dictates that in all
criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses
against him. U.S. Const. 1970, amend. VI; Ill. Const., art. I, § 8. "Testimonial statements of
witnesses absent from trial have been admitted only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington,
541 U.S. 36, 59 (2004). While our Illinois Supreme Court recognized that in Crawford the
United States Supreme Court declined to spell out a "comprehensive definition of 'testimonial,' "
it nevertheless described the class of testimonial statements covered by the confrontation clause
as follows:
"Various formulations of this core class of testimonial statements exist: ex
parte in-court testimony or its functional equivalent – that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable
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No. 1-14-2088
to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially, [citation] extrajudicial statements … contained
in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions, [citation] statements that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial." (Internal quotation marks
omitted.) Crawford, 541 U.S. at 51-52.
The first question in this case therefore becomes whether the certified letter constituted a
testimonial statement.
¶ 14 Defendant relies on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), to support his
contention that the certified letter was "testimonial" in nature. In Melendez, the defendant was
charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and
28 grams. At trial, the prosecution placed into evidence the bags of narcotics that had been
seized and three "certificates of analysis" showing the results of the forensic analysis performed
on the seized substances. The certificates reported the weight of the seized bags and stated that
the bags had been examined and were found to contain cocaine. The certificates were notarized
and signed by analysts at the State Laboratory Institute of the Massachusetts Department of
Public Health. The defendant in Melendez objected to the certificates, asserting that the
confrontation clause decision in Crawford required the analysts to testify in person. The
certificates were admitted into evidence over the defendant’s objection, as prima facie evidence
of the composition, quality, and net weight of the narcotic.
¶ 15 On appeal, the defendant in Melendez contended that the admission of the certificates
violated his sixth amendment right to be confronted with the witnesses against him. The
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Supreme Court found that there "is little doubt that the documents at issue in this case fall within
the 'core class of testimonial statements' thus described," as the Court's description of that
category in Crawford mentioned affidavits twice. Id. at 310. The Court found that while the
documents were denominated as "certificates," they were "quite plainly affidavits," which are
" 'declaration[s] of facts written down and sworn to by the declarant before an officer authorized
to administer oaths.' " Id. (quoting Black’s Law Dictionary 62 (8th ed. 2004)). The Court noted
that "[t]he fact in question is that the substance found in the possession of [the defendant] was, as
the prosecution claimed, cocaine – the precise testimony the analysts would be expected to
provide if called at trial. The 'certificates' are functionally identical to live, in-court testimony,
doing ‘precisely what a witness does on direct examination.' " Id. at 310-11 (quoting Davis v.
Washington, 547 U.S. 813, 830 (2006)).
¶ 16 We likewise find that in the case at bar, the certified letter was an affidavit, as it was a
declaration of facts written down and sworn to by the declarant before an officer authorized to
administer oaths. Id. at 310. Moreover, the affidavit was “made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial.” (Internal quotation marks omitted.) Crawford, 541 U.S. at 52. Defendant
was arrested in April 2011, and the trial began in April 2014. The certified letter was issued on
May 7, 2013, presumably in preparation of trial. Additionally, whether defendant owned a FOID
card constituted an element of AUUW, which the State had the burden to prove. Accordingly,
absent a showing that the witness was unavailable to testify at trial and that defendant had a prior
opportunity to cross-examine him, defendant was entitled to be confronted with the witness at
trial. Id. at 54.
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No. 1-14-2088
¶ 17 Finding that the certified letter was testimonial in nature and that defendant therefore had
a right to be confronted with the declarant of the statement contained therein, we turn to the
question of whether the confrontation clause violation in the case at bar was harmless beyond a
reasonable doubt. In determining whether a constitutional error is harmless, the test to be
applied is whether it appears beyond a reasonable doubt that the error at issue did not contribute
to the verdict obtained. People v. Patterson, 217 Ill. 2d 407, 428 (2005) (citing Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993)). The State bears the burden of proof. Sullivan, 508 U.S. at
278-79. Here, while the State briefly states that a Crawford violation "is subject to harmless
error review," it does not provide any argument whatsoever as to whether the Crawford violation
in the case at bar was harmless beyond a reasonable doubt. We therefore cannot say that it has
met its burden of proof on this issue.
¶ 18 Moreover, we note that to convict a defendant of AUUW, the State must prove beyond a
reasonable doubt either that a defendant carried a weapon on his person or in his vehicle, outside
his home (720 ILCS 5/24-1.6(a)(1) (West 2008)) or carried a weapon on his person on the public
way (720 ILCS 5/24-1.6(a)(2) (West 2008)), and one of the nine factors that transform the
offense of unlawful use of a weapon to AUUW. People v. Henderson, 2013 IL App (1st)
113294, ¶ 21. Relevant to this case is factor 3(C), the person possessing the firearm had not been
issued a valid FOID card. 720 ILCS 5/24-1.6(a)(3)(C) (West 2008). Accordingly, whether
defendant had been issued a valid FOID card was an essential element the State had to prove in
order for the trial court to convict him of AUUW. Without the affidavit from the Illinois State
Police, the element of possession of a valid FOID card could not be proven, as neither of the
police officers testified as to defendant's possession of a FOID card. While it is true that
defendant himself testified on cross-examination that he was not in possession of a FOID card,
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No. 1-14-2088
we are persuaded by defendant's argument that had the affidavit been excluded from evidence,
the State would not have been able to prove AUUW beyond a reasonable doubt, and therefore
defendant may have decided not to take the stand on his own behalf. See People v. Patrick, 233
Ill. 2d 62, 75-76 (2009); People v. Hogan, 388 Ill. App. 3d 885, 893-94 (2009). Accordingly,
because the State has failed to show beyond a reasonable doubt that the error at issue did not
contribute to the verdict obtained (Patterson, 217 Ill. 2d at 428), we find that the confrontation
clause violation did not constitute harmless error.
¶ 19 Before we remand this cause for a new trial, we must determine whether a retrial would
raise double jeopardy concerns. Double jeopardy prohibits a retrial when a conviction is
reversed due to insufficient evidence to support the conviction, but does not prohibit retrial
where a conviction is set aside due to the erroneous admission of hearsay evidence. People v.
Olivera, 164 Ill. 2d 382, 393 (1995) (retrial is permitted even though evidence is insufficient to
sustain a verdict when erroneously admitted evidence has been discounted). Here, when
considering all the evidence submitted at the original trial, including the discounted evidence, we
find that a rational trier of fact could have found the essential elements of AUUW beyond a
reasonable doubt, and therefore we remand this cause for a new trial. See Olivera, 164 Ill. 2d at
396.
¶ 20 CONCLUSION
¶ 21 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
and remand this case for a new trial.
¶ 22 Reversed and remanded.
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