2023 IL App (1st) 220429
Ill. App. Ct.2023Background
- Defendant Tyshon Thompson was arrested March 25, 2020 and indicted for two counts of aggravated discharge of a firearm and one count of aggravated unlawful use of a weapon (AUUW) for possession of a loaded, uncased handgun in a vehicle without a CCL.
- After counsel moved to withdraw, Thompson insisted on proceeding pro se; the court ordered a behavioral clinical exam (BCX) which found him fit to stand trial and fit to proceed pro se; standby counsel was later appointed.
- Trial evidence: occupants of a vehicle fired upon another vehicle on I‑290; a white Nissan Rogue driven by “Thompson” was stopped minutes later; a silver .45 handgun was recovered from the Rogue’s glove compartment with blood on the trigger and a blue rag with blood in the vehicle.
- DNA testing showed the blood on the gun’s trigger matched Thompson as the major contributor; gunshot residue (GSR) on both of Thompson’s hands tested positive; fired casings and a bullet matched the recovered .45 handgun.
- The jury convicted Thompson of AUUW, deadlocked on the two aggravated‑discharge counts (mistrial declared on those counts), and the court sentenced him to 30 months’ imprisonment; the court polled only 11 of 12 jurors when confirming the AUUW verdict.
- On appeal Thompson challenged (1) sufficiency of evidence on AUUW, (2) statutory speedy‑trial violation, (3) AUUW’s constitutionality under the Second Amendment post‑Bruen, and (4) failure to poll one juror (unanimity/plain error).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove AUUW (possession/carry) | DNA on gun trigger, GSR on both hands, matching ballistics, and proximity (driver of the car) support a reasonable inference Thompson possessed/carried the gun | State failed to prove Thompson carried or possessed the gun; absence of fingerprints and inability to identify him as shooter raise reasonable doubt | Affirmed. Viewing evidence in the light most favorable to the State, a rational jury could find Thompson guilty beyond a reasonable doubt |
| Speedy‑trial under 725 ILCS 5/103‑5 | Time after Oct 1, 2021 counts; delays between Dec 28 and Jan 5 attributable to defendant because he sought discovery and standby counsel, tolling the 120‑day period | Court-ordered BCX and continuances were not attributable to Thompson; he objected to continuances and demanded trial | Affirmed. The period Dec 28–Jan 5 (8 days) was chargeable to defendant (motions/standby counsel), so trial commenced within 120 days |
| Constitutionality of AUUW (open carry / Second Amendment after Bruen) | AUUW, which criminalizes possession/carry of a loaded, uncased handgun in a vehicle without a CCL, is consistent with Bruen and with historical tradition; Illinois is a shall‑issue jurisdiction | AUUW facially violates Second Amendment right to open carry absent a CCL (Bruen requires broader public carry) | Affirmed. Bruen does not require unrestricted open carry; Illinois’ licensing scheme and AUUW do not facially violate the Second Amendment |
| Failure to poll one juror (unanimity/plain error review) | No prejudice shown; verdicts were unanimous and evidence strongly weighty against defendant | Polling only 11 jurors was a clear error that—given allegedly close evidence—qualifies as plain error and warrants relief | Affirmed. Court committed clear error in polling only 11 jurors, but evidence was not closely balanced; error did not amount to plain error under first prong |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency review)
- People v. Hall, 194 Ill. 2d 305 (deference to jury on credibility and inferences)
- New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022) (Second Amendment historical‑tradition test)
- People v. Liss, 406 Ill. 419 (distinguishing carrying on or about the person from constructive possession)
- People v. Wheeler, 226 Ill. 2d 92 (weight to be given jury credibility findings)
- People v. Cross, 2022 IL 127907 (delays from pretrial motions toll speedy‑trial calculation)
- People v. Mayfield, 2023 IL 128092 (discussion of statutory speedy‑trial rights and tolling)