THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEON DAVIS, Defendant-Appellant.
No. 1-23-1856B
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
December 18, 2023
2023 IL App (1st) 231856
JUSTICE VAN TINE
Third Division. Appeal from the
JUSTICE VAN TINE delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Deon Davis, appeals the trial court‘s October 9, 2023, order granting the State‘s petition for pretrial detention pursuant to
¶ 2 Defendant argues that (1) the State did not establish by clear and convincing evidence that the proof was evident and the presumption great that he committed unlawful use of a weapon by a felon (UUWF) (
I. BACKGROUND
¶ 3 ¶ 4 Defendant was arrested on October 8, 2023, and charged with Class 3 felony UUWF (
¶ 5 At defendant‘s initial appearance on October 9, 2023, the State filed a petition for pretrial detention pursuant to
¶ 6 According to the State‘s proffer, on October 8, 2023, police stopped a car in which defendant was the sole rear seat passenger. Police saw defendant reach toward the floorboard behind the driver‘s seat and smelled a strong odor of cannabis emanating from the car. They also observed an open can of alcohol. The officers ordered defendant and two other individuals to exit the car. Near the area that defendant was seen reaching towards, an officer found a bag which contained a 9-millimeter, semiautomatic “ghost gun” with an extended magazine.2 Defendant told police that he did not have a valid Firearm Owners Identification card (see
¶ 7 The State further proffered that defendant had been convicted of misdemeanor child endangerment in 2019, felony aggravated battery of a Chicago Transit Authority (CTA) employee in 2016, and “escape” in 2005. The State argued that defendant posed a real and present threat to the safety of the community based on
¶ 8 Defendant challenged the evidence that he possessed the firearm, arguing that the arresting officers reported seeing both defendant and another passenger reaching for bags on the floorboard. Defendant also argued that the State failed to establish that he posed a threat to the community, noting that he did not use the firearm and there was no victim in this case. Defendant argued that his prior convictions were more than seven years old, and his 2005 escape conviction was nonviolent. Defendant proffered that he completed tenth grade and cared for his three children, with a fourth on the way. He requested pretrial release with a curfew or electronic monitoring.
¶ 9 At the conclusion of argument, the trial court explained the purpose of the detention hearing and summarized the State‘s burdens of proof under the Code. The court reviewed the presented facts, found probable cause (see
¶ 10 Defendant timely appealed. On appeal, defendant argues that the State failed to prove by clear and convincing evidence that (1) the proof is evident or the presumption great that he committed the charged offense, (2) he posed a real and present threat to the safety of the community, based on the specific, articulable facts of the case; (3) no condition or combination of conditions provided in the Code would mitigate that threat. Defendant also contends that the court erred by (4) failing to consider less restrictive conditions provided in the Code that would mitigate the threat defendant posed, and (5) improperly considering his criminal history when the State had failed to tender copies thereof prior to the detention hearing, as required by
II. ANALYSIS
¶ 11 ¶ 12 The Act overhauled the pretrial release procedures in the Code by abolishing monetary bail under the presumption that all defendants are presumed eligible for pretrial release subject to conditions that the trial court deems appropriate, such as electronic monitoring or home supervision. See Rowe, 2023 IL 129248, ¶¶ 5, 52; see also
¶ 13 Upon filing a timely, verified petition, the State has the burden to prove by clear and convincing evidence that (1) the proof is evident or the presumption great that the defendant has committed a qualifying offense, (2) the defendant‘s pretrial release poses a real and present threat to the safety of the community, and (3) that less restrictive conditions would not avoid that threat.
¶ 14 The Code provides a nonexclusive list of factors the court may consider in determining whether a defendant is dangerous, including (1) the nature and circumstances of the offense charged and whether it is a violent crime (
A. Standard of Review
¶ 15 ¶ 16 Prior to the amendments made by the Act, we reviewed bail appeals under Illinois Supreme Court Rule 604(c)(1) (eff. July 1, 2017) using an abuse of discretion standard. See People v. Simmons, 2019 IL App (1st) 191253, ¶ 9. An abuse of discretion occurs when the trial court‘s decision is arbitrary, fanciful, or unreasonable, or when no reasonable person would agree with the position adopted by the trial court. Id. In considering the trial court‘s decision to deny bail, the reviewing court will not substitute its judgment for the trial courts merely because it would have balanced the facts differently. Id. ¶ 15.
¶ 17 Although the Code, as amended by the Act, itself does not set out a standard of review, this court has applied the abuse of discretion standard pursuant to it. See People v. Whitmore, 2023 IL App (1st) 231807, ¶ 18. The Fourth District has also reviewed cases under the Code, as amended by the Act, for an abuse of discretion. See People v. Inman, 2023 IL App (4th) 230864, ¶ 11. On the other hand, the Fifth District has applied the manifest weight of the evidence standard in reviewing the trial court‘s finding on whether the State has met its burden of proof and reviewed the trial court‘s determination decision regarding pretrial release for an abuse of discretion. People v. Vingara, 2023 IL App (5th) 230698, ¶ 10. The parties before us do not dispute that the applicable standard of review is abuse of discretion. We agree and we continue to apply it.
B. Pretrial Detention
¶ 18 ¶ 19 We now consider defendant‘s challenges to the merits of the trial court‘s detention ruling. We address each argument in turn.
1. Commission of UUWF
¶ 20 ¶ 21 Defendant first argues that the State failed to prove by clear and convincing evidence that he committed UUWF because there was no indication that he possessed the firearm.
¶ 23 According to the police reports, defendant was the only person seated in the rear of the car and multiple officers saw him reach toward the floorboard in the rear driver-side seat of the car. Immediately thereafter, police recovered a firearm in a bag from the area where they saw defendant reaching. It appears that no other objects were nearby. These facts support a reasonable inference that defendant knew that the bag contained the firearm in his possession and exercised control of it. The State did not need to introduce proof that defendant actually touched the firearm, owned the firearm, or was the only person who could have possessed the firearm to show constructive possession and control. See id.
¶ 24 Defendant argues that the only evidence of possession was defendant‘s proximity to the bag containing the firearm, which, under federal Seventh Circuit caselaw, is not sufficient to establish possession. However, we are not bound to follow the decisions of federal courts other than the United States Supreme Court. People v. Leavitt, 2014 IL App (1st) 121323, ¶ 48. Moreover, defendant‘s possession of the firearm was not based on proximity alone. Rather, it was based on proximity plus movement toward the bag containing the firearm. Illinois courts have affirmed proof of possession based on a police officer‘s testimony that he saw the defendant reach for an object, the defendant was immediately apprehended in that area, and the object turned out to be an illegal firearm. See, e.g., People v. Brown, 309 Ill. App. 3d 599, 609 (1999). Accordingly, the court did not abuse its discretion in finding that the proof was evident and the presumption great that defendant committed UUWF.
2. Threat to the Community
¶ 25 ¶ 26 Defendant next argues that the State failed to prove he posed a threat to the community. As noted before, the Code provides a list of factors the court may consider in determining whether a defendant is dangerous, including (1) the nature and circumstances of the offense charged and whether it is a violent crime (
¶ 27 The trial court‘s finding that defendant posed a threat to the community was not an abuse of discretion. Contrary to defendant‘s contention, the trial court found the State met its burden based on several factors to determine dangerousness. See
¶ 28 Defendant is a felon convicted of a violent offense. Convicted felons may not possess firearms. See
¶ 29 Defendant argues that the State provided no facts to show dangerousness. He further argues that the State improperly concluded that he posed a threat based solely on his status as a convicted felon who was merely in proximity to the weapon. However, as stated above, defendant was not “merely in proximity” to the weapon. He had constructive possession of the gun and was capable of exercising control over it. Spencer, 2016 IL App (1st) 151254, ¶ 25. Defendant overlooks the significance that the weapon is a ghost gun. We are hard pressed to come up with a benign reason for a felon to possess an untraceable firearm that was designed to avoid surveillance. As the trial court correctly noted, “Why would one possess a weapon which is designed to be untraceable?” Not only did defendant violate the law by possessing a firearm, but he did so with a firearm that was designed to circumvent the law in such a way that its use could not be traced back to him. Defendant further claims his prior convictions are too old to be relevant in assessing his current level of dangerousness. However, he does not present any legal argument or authority in support of this contention. The trial court did not abuse its discretion in finding the State proved defendant posed a real and present threat to the safety of the community.
3. Conditions of Pretrial Release
¶ 30 ¶ 31 Defendant contends that the State failed to prove that no conditions of pretrial release would mitigate the threat he poses to the community. He also contends that the trial court failed to consider less restrictive conditions that could have minimized any threat he posed to the community. Because defendant provides essentially the same argument for both claims, we address them concurrently. The Code requires the court to consider potential conditions for release “on the basis of available information.”
¶ 32 Defendant claims the court could have required that he merely “[r]efrain from possessing a firearm” pursuant to
4. Incorrect Written Ruling
¶ 33 ¶ 34 Defendant next argues the court written order incorrectly states that “D has a prior escape from electronic monitoring,” when the conviction was for an escape from a law enforcement officer. To the extent defendant suggests that his detention was based on the trial court‘s incorrect understanding of his criminal background, the court‘s oral ruling indicates that is not the case. At the hearing, the court specifically asked if defendant‘s escape charge was from electronic monitoring and the State clarified that it was “an escape of a police officer.” In its oral ruling, the court held
“The escape from a law enforcement officer tells me that you are not likely to follow the commands of the court. There aren‘t any conditions that I can impose that would be—restrict you in such a way that it would mitigate that real and present threat, so at this time, sir, you will be detained on this particular case.”
“When the oral pronouncement of the court and the written order are in conflict, the oral pronouncement controls.” (Internal quotation marks omitted.) People v. Carlisle, 2015 IL App (1st) 131144, ¶ 87.
5. Plain Error
¶ 35 ¶ 36 Defendant contends that the State failed to tender copies of his criminal history prior to the detention hearing, as required by
¶ 37 The threshold issue is whether the unpreserved error resulted from
¶ 38 Although defendant forfeits any errors not first raised in the trial court, we may review unpreserved plain errors where the evidence is close and the error affected defendant‘s substantial rights—namely, his liberty. See Herron, 215 Ill. 2d at 186-87. However, we need not consider whether plain error occurred when a defendant “acquiesce[s]” to the alleged error. People v. Johnson, 2019 IL App (1st) 161104, ¶ 29. A defendant that “‘acquiesces in the admission of evidence, even though the evidence is improper, ‘” may not claim on appeal that the trial court erred in the admission. Id. ¶ 26 (quoting People v. Bush, 214 Ill. 2d 318, 332 (2005)).
¶ 39 In other words, defendant‘s counsel may not stand mutely by, participate in the hearing without objection, and then complain of error on appeal. See id. ¶ 28. Counsel did not object to the State‘s proffer of defendant‘s criminal history at the beginning of the detention hearing. Counsel likewise failed to object at any of the multiple times the trial court mentioned defendant‘s criminal history in its ruling. Although the trial court did not ask whether the State tendered copies to the defendant, nothing prevented defense counsel from raising an objection at any of the multiple opportunities it had to do so. See, e.g., People v. Cox, 2017 IL App (1st) 151536, ¶ 75 (“If the defense had objected at any point during trial, *** the State could have easily remedied the problem ***.“). The proper time to object would have been at the hearing, to give the trial judge a chance to pass the case and allow the State to easily remedy the alleged problem. Based on the circumstances of this case, we find that defendant acquiesced to the State‘s proffer of his criminal history and affirmatively waived any claim of alleged error.
¶ 40 Assuming, arguendo, that defendant did not waive this argument, he still fails to explain how the trial court erred. Before plain-error review, there must first be an error. See People v. Hood, 2016 IL 118581, ¶ 18 (“without error, there can be no plain error” (internal quotation marks omitted)); People v. Sargent, 239 Ill. 2d 166, 189-90 (2010) (plain-error analysis begins with determining whether any error occurred). Defendant fails to point to any specific language in the Code that suggests the trial court is precluded from considering defendant‘s criminal history when the State fails to tender a copy of that history to defendant prior to the detention hearing. The most reliable indicator of the meaning of a statute is its language, given its plain and ordinary meaning. Accettura v. Vacationland, Inc., 2019 IL 124285, ¶ 11. Had the legislature intended such a restriction, it would have included it in the language of the statute. Instead, the Code provides that evidence may be presented “by way of proffer based upon reliable information” (
¶ 41 Moreover, the State‘s alleged failure to furnish defendant with a copy of his criminal record before the hearing resulted in no prejudice where defendant‘s counsel demonstrated a proficient knowledge of his criminal history at his pretrial release hearing. Nothing in the record suggests that defendant‘s counsel was unaware of defendant‘s background or that the State failed to tender it. Counsel competently argued for pretrial release based, in part, on the fact that his convictions occurred more than seven years ago and were not for sufficiently violent offenses.
¶ 42 For the foregoing reasons, we hold the trial court‘s grant of the State‘s petition for pretrial detention under the Code did not constitute an abuse of discretion. Defendant‘s argument that the court erroneously considered his criminal history is waived. We affirm the trial court‘s order of October 9, 2023.
III. CONCLUSION
¶ 43 ¶ 44 For the foregoing reasons, we affirm the trial court‘s judgment.
¶ 45 Affirmed.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23-MC-1110425; the Hon. Charles Beach, Judge, presiding,
Attorneys for Appellant: Sharone R. Mitchell Jr., Public Defender, of Chicago (Tressa Palcheck and Jeffe Yang, Assistant Public Defenders, of counsel), for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State‘s Attorney, of Chicago (Enrique Abraham, Matthew Connors, and Shannon Berkey, Assistant State‘s Attorneys, of counsel), for the People.