People v. Dismuke
No. 2-12-0925
Appellate Court of Illinois, Second District
June 19, 2013
2013 IL App (2d) 120925
District & No. Second District Docket No. 2-12-0925
Filed June 19, 2013
Held (Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.) Defendant‘s motion to dismiss his prosecution for unlawful possession of a weapon by a felon and being an armed habitual criminal was properly granted based on the State‘s violation of the compulsory-joinder and speedy-trial statutes, since the charges arose from defendant‘s possession of cannabis and a handgun, both items were discovered during the same search at the same place, for purposes of the compulsory-joinder statute, defendant committed a single act and both charges should have been brought in a single prosecution, but the weapon charge was not brought until after the 160-day speedy-trial period for the initial charge based on possession of cannabis had expired.
Decision Under Review Appeal from the Circuit Court of Kane County, No. 10-CF-2605; the Hon. David R. Akemann, Judge, presiding.
Judgment Affirmed.
Thomas A. Lilien and Kim M. DeWitt, both of State Appellate Defender‘s Office, of Elgin, for appellee.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Jorgensen concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Antwon L. Dismuke, was indicted for being an armed habitual criminal (
¶ 2 BACKGROUND
¶ 3 On November 19, 2009, Aurora police and special agents of the Bureau of Alcohol, Tobacco, and Firearms executed a search warrant at defendant‘s residence and arrested defendant and 10 others present at the time. The search warrant was aimed at recovering a firearm, ammunition, and proof of defendant‘s residency there. Items recovered during the search included a loaded handgun (found under the living room couch), an empty .380-caliber magazine, several containers of cannabis (found in three plastic bags in the kitchen and in a mason jar in the living room), and proof of defendant‘s residency.
¶ 4 On November 20, 2009, defendant was charged with misdemeanor possession of cannabis. Defendant was booked and fingerprinted, and he posted bond. On December 1, 2009, the cannabis recovered was sent to the Illinois State Police forensic lab. Thereafter, on March 30, 2010, defendant filed a written demand for a speedy trial.
¶ 5 With respect to the handgun recovered in the search, on November 25, 2009, an Aurora police department evidence technician lifted two latent fingerprints from the handgun and returned them to evidence storage. On July 15, 2010, the technician notified an Aurora police investigator that he had recovered a latent fingerprint1 from the handgun. On September 1,
¶ 6 For the next year and a half, defendant, alternately represented by the multiple defenders division3 and private counsel, and appearing pro se, moved several times to dismiss the gun-related charges on compulsory-joinder and speedy-trial grounds. After the trial court denied defendant‘s first motion to dismiss, he filed three pro se motions to dismiss (one was entitled a supplemental motion). With respect to each motion, the court granted the State‘s motion to strike because the issues had already been litigated.
¶ 7 Ultimately, on July 6, 2012, defendant, represented by private counsel, filed the motion to dismiss at issue here. The trial court heard argument on the motion on July 18, 2012, and took the matter under advisement. Relying heavily on People v. Hunter, 2012 IL App (1st) 092681, the court granted defendant‘s motion to dismiss in a written memorandum opinion entered on August 10, 2012. The State timely appeals.
¶ 8 ANALYSIS
¶ 9 Section 103-5 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (
¶ 10 Here, the State argues that compulsory joinder was not required, because the gun-related charges were not “based on the same act” as the cannabis charge—within the meaning of section 3-3(b) of the Criminal Code. The State raises no argument regarding the applicability of the speedy-trial statute if we conclude that compulsory joinder applies. It is undisputed that, if compulsory joinder applies, the speedy-trial period began to run when defendant filed a written demand for trial in the cannabis case. Also undisputed is the fact that, when the State brought the gun-related charges, the 160-day speedy-trial period had expired. Accordingly, the question we must decide is whether compulsory joinder applies. The issue presents a legal question and the facts are undisputed; therefore, our review is de novo. See Hunter, 2013 IL 114100, ¶ 12 (using de novo review in similar circumstances).
¶ 11 In the trial court, the parties argued whether the appellate court‘s decision in Hunter, 2012 IL App (1st) 092681, governed. At that time, a petition for leave to appeal was pending in our supreme court. Not long after briefing was completed in the instant case, our supreme court issued its decision in Hunter, 2013 IL 114100. We agree with the trial court that the facts in Hunter are “strikingly similar” to the facts in the present case.
¶ 12 In Hunter, the State charged the defendant with cannabis possession, and the defendant filed a written demand for trial. Hunter, 2013 IL 114100, ¶ 5. More than 160 days later, the grand jury returned a six-count indictment against the defendant, including one count of being an armed habitual criminal, four counts of unlawful use of a weapon by a felon, and the original cannabis charge. Hunter, 2013 IL 114100, ¶ 6. All six counts were based on evidence retrieved in a search incident to an arrest following police surveillance of the defendant selling drugs from the vestibule of a building. Hunter, 2013 IL 114100, ¶ 3. The recovered evidence included cannabis and a handgun found in the vestibule near the defendant and another handgun found in a staircase in the vestibule about five feet from the defendant. Hunter, 2013 IL 114100, ¶ 3. The trial court granted defendant‘s motion to dismiss the gun-related charges on compulsory-joinder and speedy-trial grounds. The State appealed, and the appellate court affirmed. Hunter, 2013 IL 114100, ¶ 7.
¶ 13 Our supreme court allowed the State‘s petition for leave to appeal and affirmed. Hunter, 2013 IL 114100, ¶ 1. Our supreme court began its analysis by looking at the plain language of the phrase “based on the same act” in the compulsory-joinder statute in section 3-3(b) of the Criminal Code, noting that the word “‘act is generally regarded as ambiguous.‘” Hunter, 2013 IL 114100, ¶ 16. The court observed that the legislature‘s purpose in enacting the compulsory-joinder statute was to “‘prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process.‘” Hunter, 2013 IL 114100, ¶ 18 (quoting People v. Quigley, 183 Ill. 2d 1, 7 (1998)). The court examined the committee comments for section 3-3, which explained that the phrase “the same act” was “designed to describe the situation in which several persons are affected by only one act of the defendant, such as *** the stealing, in a single container, of several articles of property belonging to different persons; or violating by one act two different statutory provisions.” (Internal quotation marks omitted.) Hunter, 2013 IL 114100, ¶ 18. The court stated that it had never given the phrase—“based on the same act“—a “hypertechnical
¶ 14 Here, we conclude that, under Hunter, defendant‘s possession of cannabis and of the handgun was the same act.4 In both cases, the handguns that formed the bases of the later-filed charges were found during the same searches at the same times and places as the cannabis that resulted in the original charges. As in Hunter, defendant committed a single act within the meaning of the compulsory-joinder statute, and the State was required to charge him with all of the offenses arising therefrom in a single prosecution. Defendant‘s written demand for trial in the cannabis case commenced the applicable 160-day speedy-trial period. See Quigley, 183 Ill. 2d at 13 (explaining that, when additional charges subject to compulsory joinder are brought, the speedy-trial period is the same as that applied to the original charges). Accordingly, because the State brought the gun-related charges beyond this period, the trial court properly granted defendant‘s motion to dismiss on speedy-trial grounds.
¶ 15 The State argues that reliance on Hunter is “undermine[d]” because, unlike in Hunter, defendant here admitted that some of the cannabis was his. Thus, according to the State, the cannabis charge was based on actual possession and could not be the same act as the constructive possession of the handgun. As did the trial court, we disagree.
¶ 16 “To sustain a criminal conviction for the unlawful possession of a controlled substance, the State must prove the identity of the substance in question, the accused had knowledge the substance was present, and he or she had actual or constructive possession of the substance.” Grames v. Illinois State Police, 254 Ill. App. 3d 191, 203 (1993). Thus, actual possession and constructive possession are not two distinct offenses; rather, they are two theories under which a defendant may be proved guilty of the offense of possession. A defendant is said to have had actual possession when he or she “exercise[d] immediate and exclusive dominion or control over the illicit material“; however, the defendant need not have been actually touching the material. People v. Givens, 237 Ill. 2d 311, 335 (2010). The State may prove actual possession with testimony showing “some form of dominion over the unlawful substance, such as trying to conceal it or throwing it away.” People v. Love, 404 Ill. App. 3d 784, 788 (2010). Absent actual possession, a “defendant has constructive possession over a controlled substance when he or she has the intent and capability to maintain control and dominion over the controlled substance.” People v. Eghan, 344 Ill. App. 3d 301, 307 (2003).
¶ 17 In the present case, the State asserts that defendant “admitted that the cannabis was his.” At the hearing on defendant‘s motion to dismiss, the State argued that defendant admitted “to possession of the marijuana.” The trial court‘s opinion referred to defendant‘s admission of “ownership.” This alleged admission, while relevant to the offense of possession generally, has no relevance exclusive to either theory. For example, defendant‘s alleged admission could have established his knowledge of the presence of cannabis in his residence (an element of possession generally); the admission could have been evidence of defendant‘s actual physical dominion over the cannabis (for actual possession); or the admission could have been a reflection of defendant‘s acknowledgment of his control over the premises (for constructive possession). Thus, defendant‘s admission did not establish that defendant‘s possession of the cannabis was actual possession.
¶ 18 Moreover, regardless of whether the cannabis possession was actual or constructive, defendant‘s possession of the handgun and the cannabis was “‘committed‘” at the time of his arrest. See Hunter, 2013 IL 114100, ¶ 19 (“‘[A] possession crime is “committed” at the time of the offender‘s arrest.‘” (quoting People v. Jenkins, 383 Ill. App. 3d 978, 986 (2008))). This simultaneous possession of both the cannabis and the handgun was a single act. The fact that possession with respect to the cannabis might be proved differently than possession with respect to the handgun does not compel the conclusion that there were two distinct acts. See Hunter, 2013 IL 114100, ¶ 18 (reviewing the committee comments for section 3-3, which explained that one of the situations encompassed by the phrase “the same act” was where a defendant violated two different statutory provisions by one act).
¶ 19 Significantly, the State never explains how defendant‘s purported actual possession of the cannabis would undermine reliance on Hunter. While Hunter involved a theory of constructive possession, we see no reason why the court‘s holding would not apply to a theory of actual possession. The holding in Hunter was premised on simultaneous possession of various items of contraband and was not contingent upon a particular theory of possession. The court stated:
“In sum, defendant simultaneously possessed the cannabis and two handguns, and this contraband was discovered during the same search, at the same place, and at the same time. Based on these facts, we conclude that defendant committed a single physical act within the meaning of the compulsory joinder statute.” Hunter, 2013 IL 114100, ¶ 27.
¶ 20 We also note, as defendant points out, that the State took the position in the court below that defendant made several admissions linking himself to the handgun after he was confronted with the fingerprint evidence. Accepting this as true, applying the State‘s reasoning would compel the conclusion that defendant‘s handgun admissions, like his cannabis admission, would have converted that act of possession to actual possession. Thus, under the State‘s reasoning, defendant‘s possession of the handgun and the cannabis would still be one simultaneous act of possession.
¶ 21 Finally, the State asserts that compulsory joinder should not apply because the State
¶ 22 We note that the State raises no argument regarding the trial court‘s finding that the State “unquestionably became aware of [the gun-related charges] upon the initial search” of defendant‘s residence. The search warrant was aimed at recovering evidence of a firearm, ammunition, and defendant‘s residency, and those items were recovered during the search on November 19, 2009. At a minimum, the State knew of the possibility of the gun-related charges when it charged defendant with cannabis possession. Under the facts of this case, this knowledge was sufficient to trigger compulsory joinder under section 3-3(b). See People v. Hiatt, 229 Ill. App. 3d 1094, 1097 (1992) (in a child pornography case, rejecting the State‘s argument that it did not know of the possibility of charges stemming from photographs discovered in the same search as a videotape, on which charges previously had been brought).
¶ 23 We are cognizant that 10 other persons were present in defendant‘s residence during the search when the handgun was seized and that the State elected to wait to bring charges until it had the fingerprint evidence. Nonetheless, the solution to the dilemma was not to ignore the speedy-trial statute; indeed, section 103-5(c) of the Code of Criminal Procedure anticipates such situations by allowing for extensions of the speedy-trial period.
¶ 25 Affirmed.