Opinion
4-23-0151
12-05-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. BUCK JR., Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Macoupin County No.18CF28 Honorable Joshua A. Meyer, Judge Presiding.
CAVANAGH, JUSTICE delivered the judgment of the court. Justices Zenoff and Doherty concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held: The appellate court affirmed in part and vacated in part, finding (1) defendant's conviction for unlawful possession of a stolen firearm and unlawful possession of a weapon by a felon violated the one-act, one-crime rule, (2) the evidence was sufficient for a jury to reasonably conclude defendant was guilty beyond a reasonable doubt on all of the remaining offenses, (3) trial counsel did not provide ineffective assistance by failing to file a motion to suppress defendant's statements or object to the State's references to defendant's statements, and (4) defendant forfeited his chain-of-custody argument.
¶ 2 Defendant, David W. Buck Jr., was convicted by a jury of first degree murder (720 ILCS 5/9-1(a)(1) (West 2018)), unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2018)), possession of a stolen firearm (720 ILCS 5/24-3.8) (West 2018)), unlawful possession of a weapon by a felon (id. § 24-1.1(a)), and aggravated unlawful restraint (id. § 10-3.1(a). On appeal, defendant argues (1) the evidence was insufficient to convict him on all charges, (2) his conviction for unlawful possession of a weapon by a felon should be vacated because it violates the one-act, one-crime doctrine, (3) trial counsel was ineffective for not moving to suppress defendant's statements during a custodial interrogation, (4) the State's use of defendant's invocation of his right to counsel was reversible error, and (5) the State failed to establish a sufficient chain of custody to permit testimony regarding a firearm identification. We affirm in part and vacate in part.
¶ 3 I. BACKGROUND
¶ 4 In February 2018, defendant was charged by information with first degree murder for shooting and killing Rachel Warren. Defendant was also charged with unlawful possession of a stolen motor vehicle, possession of a stolen firearm, unlawful possession of a weapon by a felon, aggravated unlawful restraint, and aggravated fleeing and eluding (625 ILCS 5/11-204.1(a)(1) (West 2018)). The matter proceeded to a jury trial in January 2023.
¶ 5 A. Jury Trial
¶ 6 At trial, Allen Wheeler testified he was in an intimate, but not serious, relationship with Warren. On February 8, 2019, Wheeler met Warren at her home and they both went to Alton, Illinois, together so Wheeler could purchase a countertop. Wheeler and Warren then drove back to Chesterfield, Illinois, to get Wheeler's black Ford pickup truck. While driving back to Chesterfield, Wheeler noticed defendant walking and offered to give him a ride back to his father's home in Medora, Illinois. The three of them proceeded back to Warren's home so Warren could unlock the door to her home to allow her children to enter when they came home from school. Wheeler went into Warren's home to use the bathroom while defendant was standing outside smoking a cigarette.
¶ 7 When Wheeler came out of the bathroom, defendant was in Warren's home. Wheeler stated defendant then shot Warren in the head. Wheeler recalled falling to the ground and begging for his life. Defendant then ordered Wheeler out to his truck at gunpoint. Defendant walked out first and then suddenly turned around. Wheeler believed defendant was about to shoot him, so a struggle ensued for the gun. At that point, Wheeler believed he had lost his glasses and wallet. Defendant assured Wheeler he was not going to kill him and wanted Wheeler to drive him somewhere near Medora. Wheeler drove fast, with the intention of being noticed by the police. Wheeler drove down to a dead-end road with a creek. Defendant told Wheeler to jump down to the creek bed and dig a hole to bury the gun. Wheeler refused to comply, believing defendant wanted Wheeler to jump down to the creek bed so defendant could shoot him and leave his body there. Eventually Wheeler complied and began digging a hole for the gun with a trowel.
¶ 8 Both Wheeler and defendant heard a gunshot off in the distance. Wheeler then used the momentary distraction to wrestle the gun away from defendant. The gun fell into the creek bed. However, defendant pulled out another gun. Wheeler explained to defendant that he had no money, and the truck was almost out of fuel. Wheeler drove defendant to Wheeler's mother's home, where he had some money. Wheeler gave the money to defendant. Defendant said he would kill Wheeler's family and then drove away in Wheeler's truck.
¶ 9 Wheeler then drove his other car, a Ford Taurus, to his brother's home to make sure defendant did not go there. Wheeler explained he would not call the police because he did not trust them. Wheeler was facing pending gun charges in Macoupin County. Wheeler decided to drive to a bar in Chesterfield, where he told Ronnie Joe Reiher, a former police officer and someone Wheeler knew personally and trusted, what had happened. Wheeler and Ronnie left the bar together in Ronnie's truck and drove to Warren's home. On cross-examination, Wheeler denied having made a deal with the State in exchange for his testimony.
¶ 10 Albert Mize testified he lived across the street from Warren. Mize was operating a loud dual-action sander when the behavior of his dogs captured his attention. Mize observed a man he did not recognize wearing brown Carhartt coveralls walking on the sidewalk in front of Warren's home. Carol Rose lived across the street from Wheeler's mother's home and observed Wheeler's truck in the driveway with two people in the truck. Rose saw Wheeler go into the house and a male passenger get out of the truck and get into the driver's seat. Wheeler returned and had a short conversation with the male driver. Rose heard the truck "spin out" as it left.
¶ 11 Jersey County Sheriff Nicholas Manns testified he learned a female had been shot in Macoupin County and a suspect vehicle-a black Ford F-150 pickup truck-was heading to Medora. Manns decided to assist by heading toward Medora to watch for the suspect vehicle. Manns spotted the vehicle and began pursuit. The vehicle eventually stopped, and defendant was arrested. Manns recovered a .40-caliber Smith &Wesson magazine.
¶ 12 Quinn Reiher, chief deputy for the Macoupin County Sheriff's Office, testified he was in Royal Lakes, Illinois, working on an unrelated missing person case when he learned Warren was shot in Chesterfield. While Reiher was traveling north on Route 111, he observed a black Ford F-150 pass him in the opposite lane, heading south. Reiher pursued the vehicle along with other deputies from the Jersey County Sheriff's Office. Deputies eventually stopped the truck and arrested defendant as the sole occupant of the truck. While Reiher was pursuing the truck, he did not observe defendant throw anything from the truck.
¶ 13 Detective Paul Bouldin of the Macoupin County Sheriff's Office testified he took Wheeler to a roadside location outside of Chesterfield that Wheeler described as looking "familiar." Bouldin observed a hole in the ground near the roadside and trowel nearby. Bouldin also observed "skid marks" consistent with an individual coming down the embankment. He did not find a weapon at the location. Wheeler told Bouldin they were looking for a "small semi-automatic pistol, possibly a .22," and a second, larger gun, "possibly a .45." Bouldin recalled Wheeler speaking with his attorney on the phone. Wheeler's attorney advised him to stop cooperating and leave Bouldin's vehicle. Bouldin offered Wheeler the opportunity to leave or continue to cooperate. Wheeler chose to continue cooperating with Bouldin's investigation.
¶ 14 Sergeant Roger Diveley of the Macoupin County Sheriff's Office testified he took his canine officer to the scene where Wheeler stated defendant dropped his gun in the creek bed. No gun was located. Several days later, when Diveley returned to work, he searched the roadside of Route 111 where defendant had been fleeing police. Diveley located a black Ruger .380-caliber firearm.
¶ 15 Master Sergeant Jamie Brunnworth of the Illinois State Police testified he observed video from the Sportsman Inn off of Route 111 outside of Chesterfield. The video showed a Taurus similar to Wheeler's arrive. The video also showed Wheeler's truck pass by on Route 111.
¶ 16 Master Sergeant Timothy LeMasters of the Illinois State Police testified he investigated and photographed Warren's home after she had been shot. LeMasters observed a pair of sunglasses with a broken piece missing and a wallet with Wheeler's driver's license in it. LeMasters discovered a discharged .380-caliber cartridge case. LeMasters examined the clothing of both Wheeler and defendant. LeMasters observed gunshot residue on a tan jacket that was worn by defendant. LeMasters preserved two samples from each sleeve of the jacket for further testing. Sergeant Benjamin Koch of the Illinois State Police testified he performed a gunshot residue collection on Wheeler and defendant.
¶ 17 Special Agent Randall Custer of the Illinois State Police learned defendant occasionally stayed at Ryan Lenington's home. Lenington reported the day after Warren was killed that two firearms from his home had been stolen.
¶ 18 Lenington testified he was friends with defendant and that defendant occasionally stayed at Lenington's home. Lenington stated in February 2018, he owned two firearms, a "Smith and Wesson .40 and a Ruger LCP .380." Lenington stated defendant was aware he owned firearms and had showed defendant the Smith &Wesson firearm. Defendant told Lenington he wanted to use Lenington's Smith &Wesson to "apply pressure towards" Wheeler because Wheeler owed defendant money. Lenington was at work when he learned that defendant was involved in a police chase and later that someone had been shot. Lenington contacted his brother and asked him to check if Lenington's firearms were still at his home. Lenington's brother did not see any firearms where Lenington told him to look. Lenington checked for the firearms himself when he returned home from work on February 8 around 10 or 10:30 p.m. Lenington did not find his firearms where had last stored them. Lenington never told Wheeler about his firearms. Lenington stated he never locked his doors and that defendant was aware he did not lock his doors. Lenington confirmed the Ruger recovered on the roadside was identical to the Ruger that went missing from his home. Lenington last recalled seeing his firearms on February 5, 2018.
¶ 19 Special Agent Custer and Sergeant Koch both interviewed defendant on the date of the incident. Defendant stated he was with Wheeler. At one point, "Sis," who Custer identified as Warren, was with both Wheeler and defendant. Defendant stated he was trying to stay out of trouble and left Texas because he thought people were after him. Defendant stayed at his father's home in Medora the night before and got a ride for part of the way to Chesterfield that day. Defendant walked the rest of the way to Wheeler's home. Defendant wanted to borrow Wheeler's truck to look for work. Custer was never able to ask defendant about any kind of shooting. Defendant kept asking Custer and Koch why he was there and what was going on. On cross-examination, Custer stated defendant was rocking back and forth in his chair.
¶ 20 John Carnes, a forensic scientist for the Illinois State Police, testified he was unable to retrieve latent fingerprints from various items submitted for testing. Sergeant Joshua Easton of the Illinois State Police performed an inventory search of the Ford F-150 pickup truck. Easton found a brown purse with Warren's identification in it and receipt from a Walmart in Godfrey, Illinois, dated February 8, 2019, at 1:08 p.m.
¶ 21 Scott Rochowicz, a forensic scientist for the Illinois State Police, testified neither Wheeler nor defendant had gunshot residue on either hand. Wheeler's jacket tested negative for gunshot residue. Warren's right hand tested positive for gunshot residue. The right pocket of defendant's tan jacket tested positive for gunshot residue.
¶ 22 Kelly Maciejewski of the Illinois State Police Forensic Sciences Laboratory testified she performed DNA analysis of various items submitted for testing. Maciejewski concluded at least two people handled the trowel. The firearm showed at least three people handled it. Maciejewski was unable to obtain identifiable DNA from these items to identify a match.
¶ 23 Dr. Nathaniel Patterson, a forensic pathologist, testified Warren's cause of death was a gunshot wound to the head. Patterson also observed bruising on Warren's neck and left leg that were older than the gunshot wound. Patterson recovered a bullet from Warren's head.
¶ 24 Katherine Doolin, a forensic scientist for the Illinois State Police, testified she analyzed the .380-caliber firearm and the bullet recovered from Warren's head. Doolin concluded the bullet was fired from the .380-caliber Ruger recovered from the roadside.
¶ 25 The parties stipulated that defendant was a convicted felon for the purposes of the unlawful possession of a weapon by a felon charge. After the State rested, defendant moved for a directed verdict. The State conceded there was insufficient evidence to support the aggravated fleeing and eluding charge. The court granted defendant's motion per the State's concession and denied defendant's motion as to the remaining charges.
¶ 26 Defendant called Deputy Jacob Zimmer of the Macoupin County Sheriff's Office. Zimmer spoke with Lenington regarding the stolen firearms from Lenington's home. Zimmer recalled Lenington stating the .40-caliber Smith &Wesson had two magazines that were both loaded. Lenington never told Zimmer that Wheeler owed defendant money.
¶ 27 Bouldin testified Wheeler never stated he went inside Warren's house to use the restroom. Bouldin recounted Wheeler stating he and Warren picked up defendant and went back to Warren's home so she could unlock the door for her children to get in after they returned from school. "They" went in Warren's home to get a cigarette lighter, and once in the home, defendant-who never said anything-pulled out a gun and shot Warren. Afterward, when Wheeler and defendant were at the creek bed, Wheeler stated he wrestled the gun away from defendant. Wheeler also stated defendant dropped Wheeler off at the edge of town and told Wheeler to get out of the truck, and Wheeler complied. Wheeler then stated he ran to his home and got his car and proceeded to drive to the Sportsman's Inn, not to his brother's home. Special Agent Custer testified Lenington never stated Wheeler owed defendant money. Defendant only asked to borrow Lenington's guns, and he did not state that he wanted to hurt anyone.
¶ 28 The jury found defendant guilty on all remaining charges.
¶ 29 B. Posttrial
¶ 30 Defendant filed a motion for a new trial. The court denied defendant's motion. The trial court found defendant's prior criminal history and the need for deterrence as factors in aggravation. In mitigation, the court found defendant's conduct was the result of circumstances unlikely to recur. The court sentenced defendant to a term of prison in the Illinois Department of Corrections as follows: 5 years for unlawful possession of a motor vehicle; 4 years for possession of a stolen firearm; 3 years for unlawful possession of a weapon by a felon; 3 years and 6 months for aggravated unlawful restraint; 40 years for first degree murder plus an additional 26 years for the discharge of a firearm enhancement, for a total of 66 years.
¶ 31 This appeal followed.
¶ 32 II. ANALYSIS
¶ 33 On appeal, defendant argues (1) the evidence was insufficient to convict him on all charges, (2) his conviction for unlawful possession of a weapon by a felon should be vacated because it violates the one-act, one-crime doctrine, (3) trial counsel was ineffective for not moving to suppress defendant's statements to Custer and Koch, (4) the State's use of defendant's invocation of his right to counsel was reversible error, and (5) the State failed to establish a sufficient chain of custody to permit Doolin's testimony regarding firearms identification.
¶ 34 A. One-Act, One-Crime Claim
¶ 35 Defendant contends his convictions for unlawful possession of a weapon by a felon and possession of a stolen firearm violate the one-act, one-crime rule. Defendant concedes he forfeited this issue by not raising it posttrial, but he asks us to review it under the plain-error doctrine.
¶ 36 "Under the plain-error doctrine, this court will review forfeited challenges when: (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant; or (2) a clear or obvious error occurred, and the error is so serious that it affected the fairness of the defendant's trial and the integrity of the judicial process, regardless of the closeness of the evidence." People v. Taylor, 2011 IL 110067, ¶ 30. A reviewing court begins a plain-error analysis by determining whether error occurred at all. People v. Sargent, 239 Ill.2d 166, 189 (2010).
¶ 37 A violation of the one-act, one-crime rule constitutes plain error and may be addressed for the first time on appeal. People v. Coats, 2018 IL 121926, ¶ 11. Therefore, we address whether a violation of the rule has occurred. "Whether a violation of the rule has occurred is a question of law, which we review de novo." Id. ¶ 12.
¶ 38 Defendant argues his convictions for unlawful possession of a weapon by a felon and possession of a stolen firearm were both predicated on the single physical act of him possessing the same Ruger .380-caliber firearm. The State concedes this issue.
¶ 39 Illinois courts follow a two-step analysis to determine whether a one-act, one-crime violation has occurred. Coats, 2018 IL 121926, ¶ 12. "First, the court ascertains whether the defendant's conduct consisted of a single physical act or separate acts." Id. The definition of "act" is" 'any overt or outward manifestation which will support a different offense.'" People v. Price, 2011 IL App (4th) 100311, ¶ 26 (quoting People v. King, 66 Ill.2d 551, 566 (1977)). The one-act, one-crime rule prohibits a defendant from being convicted of multiple offenses "based on precisely the same physical act." Id. However, a defendant can be convicted of multiple offenses that share a common physical act, so long as there is an additional physical act to support a separate offense. Id.
¶ 40 Defendant's conviction for possession of a stolen firearm required the State to prove (1) he knowingly possessed a firearm, (2) he was not entitled to possession of the firearm, and (3) he knew the firearm was stolen. 720 ILCS 5/24-3.8 (West 2018). Defendant's conviction for unlawful possession of a weapon by a felon required the State to prove (1) he knowingly possessed a firearm and (2) he was previously convicted of a felony. Id. § 24-1.1(a). Here, the only overt, physical act of either offense is the possession of a firearm. See People v. Miller, 238 Ill.2d 161, 165 (2010) (stating a reviewing court need only proceed to the second step of the one-act, one-crime analysis if the conduct involved multiple acts). As defendant argues and we agree, the State presented evidence to the jury that both offenses were satisfied by defendant knowingly possessing the .380-caliber Ruger. Therefore, we find defendant's convictions for possession of a stolen firearm and unlawful possession of a weapon by a felon violated the one-act, one-crime rule.
¶ 41 A violation of the one-act, one-crime rule is reversible error under the second prong of the plain-error doctrine. Coats, 2018 IL 121926, ¶ 10; People v. Herron, 215 Ill.2d 167, 187 (2005) (stating the second prong of the plain-error doctrine is the "error is serious, regardless of the closeness of the evidence"). Where two convictions violate the rule, the less serious offense should be vacated. People v. Artis, 232 Ill.2d 156, 170 (2009). In this case, the unlawful possession of a weapon by a felon offense, charged as a Class 3 felony (720 ILCS 5/24-1.1(e) (West 2018)), was the less serious offense to the Class 2 offense of possession of a stolen firearm (id. § 5/24-3.8(b)). We conclude defendant's conviction and sentence for unlawful possession of a weapon by a felon be vacated.
¶ 42 B. Sufficiency of the Evidence Claims
¶ 43 When examining the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) People v. Collins, 106 Ill.2d 237, 261 (1985). The trier of fact has the responsibility to assess the witnesses' credibility, weigh their testimony, resolve inconsistencies and conflicts in the evidence, and draw reasonable inferences from the evidence. People v. Sutherland, 223 Ill.2d 187, 242 (2006). We will not reverse a criminal conviction based on insufficient evidence unless the evidence is so unreasonable, improbable, or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Murray, 2019 IL 123289, ¶ 19.
¶ 44 1. First Degree Murder
¶ 45 For first degree murder, the State had to prove (1) defendant performed the acts which caused the death of Warren and (2) when he did so, he knew that his acts would cause Warren's death. 720 ILCS 5/9-1(a)(1) (West 2018). "An individual acts with knowledge when he is consciously aware that his conduct is practically certain to cause a particular result." People v. Castillo, 2018 IL App (1st) 153147, ¶ 47; 720 ILCS 5/4-5(b) (West 2018). A defendant's mental state is rarely proven by direct evidence and as such is generally inferred from the character of the defendant's acts and from the circumstances surrounding the commission of the offense. People v. Eubanks, 2019 IL 123525, ¶ 74. "[T]he trier of fact is in the best position to determine whether a particular mental state is present." People v. Pollard, 2015 IL App (3d) 130467, ¶ 27.
¶ 46 The evidence shows Wheeler observed defendant shoot Warren in the head. Patterson testified Warren's cause of death was a gunshot wound to the head. After defendant shot Warren in the head, he fled the scene by forcing Wheeler at gunpoint to drive him away and attempt to bury the murder weapon. It is not unreasonable for the jury to infer from defendant's actions of pointing the gun at Warren, shooting her in the head, and then fleeing the scene that defendant was consciously aware his conduct was practically certain to cause Warren's death. See People v. Bartall, 98 Ill.2d 294, 307 (1983) (finding the defendant "intended to fire the gun and did in fact point it and shoot in the decedent's general direction. This act, done voluntarily and wilfully, is sufficient evidence of the intent requisite to constitute the offense of murder." (Internal quotation marks omitted.)).
¶ 47 Defendant argues, however, that Wheeler's testimony was so inconsistent it cannot be credible. In support, defendant cites People v. Williams, 65 Ill.2d 258 (1976). We disagree.
¶ 48 Williams involved the credibility of an accomplice's testimony. Id. at 259, 267. Here, Wheeler was not an accomplice, but a victim of defendant's conduct after he shot Warren. Furthermore, the witness in Williams received a promise from the State in exchange for his testimony and "admitted making several material statements under oath on prior occasions which were patently inconsistent with his testimony at trial." Id. at 267. The State made no promises to Wheeler regarding his pending charges. While some of Wheeler's testimony was inconsistent with what he had said on the date of the incident-while, notably, not under oath-many of the inconsistencies in Wheeler's testimony were brought to light on cross-examination by defendant's trial counsel for the jury to resolve during its deliberations. We are unpersuaded by defendant's arguments that Wheeler's testimony was so incredible no rational jury could resolve the inconsistencies in his testimony.
¶ 49 Regarding defendant's arguments that Wheeler's and Lenington's testimonies harbor contradictions lending reasonable doubt to defendant's motive, or, in the alternative, the evidence supports the theory that Warren's killer could have just as easily been Wheeler, we note "motive is not an essential element of the crime of murder, and the State has no obligation to prove motive in order to sustain a conviction of murder." (Internal quotation marks omitted.) People v. Allen, 2022 IL App (4th) 200554-U, ¶ 59. Additionally, as a court of review, we determine whether any rational trier of fact could have found the essential elements of first degree murder beyond a reasonable doubt, not entertaining or trying, on appeal, defendant's alternative suspect. See People v. Echoles, 36 Ill.App.3d 845, 852 (1976) ("As a court of review, we must ascertain whether the factual determination reached by the trier of fact was properly entertained, not whether a different finding could also be supported by the record."); People v. Manning, 182 Ill.2d 193, 211 (1998) ("Regarding [the] defendant's insinuation that someone else murdered the victim, we note that speculation that another person might have committed the offense does not necessarily raise a reasonable doubt of the guilt of the accused."). Therefore, we find a jury could reasonably conclude beyond a reasonable doubt that defendant shot Warren in the head causing her death and in doing so, defendant knew his actions were practically certain to cause her death.
¶ 50 2. Unlawful Possession of a Stolen Motor Vehicle
¶ 51 For unlawful possession of a stolen motor vehicle, the State had to prove (1) defendant possessed a vehicle, (2) defendant was not entitled to possession of the vehicle, and (3) defendant knew the vehicle was stolen. 625 ILCS 5/4-103(a)(1) (West 2018).
¶ 52 The evidence shows defendant was arrested after fleeing from deputies in Wheeler's truck. Wheeler testified after trying to wrestle the Ruger away from defendant, defendant produced another gun. Wheeler explained he had no money and the truck was almost out of fuel, so he offered to drive defendant back to his mother's home to get money for fuel. Wheeler gave the money he had to defendant, who stated he would kill Wheeler's family and drove away in Wheeler's truck. Rose's testimony corroborated that there were two men outside Wheeler's mother's home and that Wheeler's truck left hastily.
¶ 53 Aside from defendant's contention that Wheeler's testimony is not credible, defendant only points to Rose's testimony as insufficient to support Wheeler's account. Rose, for example, did not identify defendant as the other man with Wheeler, did not observe either of the men yelling at each other, and was not paying close attention.
¶ 54 It was the province of the jury to determine the credibility and weight of Wheeler's and Rose's testimonies. We find nothing unreasonable or improbable that any jury could infer that the other man Rose observed was defendant. Rose provided an account of what she observed as best as she could recall. The fact that she did not observe yelling or pay close enough attention according to defendant does not rise to the level of reasonable doubt. The fact is defendant was arrested in Wheeler's truck and the only evidentiary explanation the jury had for defendant having Wheeler's truck was Wheeler's testimony. We find a jury could reasonably conclude beyond a reasonable doubt that defendant was in possession of Wheeler's truck when he was not authorized and knew he was not authorized to be in possession of Wheeler's truck.
¶ 55 3. Possession of a Stolen Firearm
¶ 56 For possession of a stolen firearm, the State had to prove (1) defendant knowingly possessed a firearm, (2) defendant was not entitled to possession of the firearm, and (3) defendant knew the firearm was stolen. 720 ILCS 5/24-3.8 (West 2018).
¶ 57 The evidence shows defendant possessed a firearm when he shot Warren in the head. The same .380-caliber Ruger that was used to shoot Warren was discovered on the roadside of Route 111 where defendant had traveled when leaving Chesterfield and when the police pursuit began. Lenington identified the Ruger found on the roadside as belonging to him, which he reported stolen the day after Warren was shot. Lenington stated defendant had previously asked to borrow one of Lenington's other guns and that Lenington left his home unlocked. Lenington also stated defendant knew Lenington kept his home unlocked. Lenington never authorized defendant to take his Ruger.
¶ 58 Defendant contends he never knew Lenington had a Ruger or where it was stored. Furthermore, Lenington's home showed no signs of being ransacked as if someone had been searching for his guns, and the deputies who pursued defendant when he fled in Wheeler's truck never observed him throw anything outside of the truck other than a white jug.
¶ 59 Lenington testified he never told defendant about his Ruger. However, defendant periodically stayed at Lenington's home and was aware Lenington owned at least one firearm and had shown an interest in borrowing said firearm. Lenington stated the Ruger was stored in a dresser in the dining room. The fact that Lenington's home was not ransacked is not inconsistent with defendant searching Lenington's home for the specific purpose of finding a firearm. It is also a reasonable inference that, upon searching Lenington's home, defendant discovered Lenington's Ruger. Lenington stated nothing was stolen other than his two firearms, which included the Ruger that was determined to be the murder weapon and discovered on the roadside along the path defendant traveled. The fact that neither Quinn nor Manns observed defendant throw the Ruger from the truck does not establish defendant never disposed of the firearm by throwing it out of the truck along Route 111. Both Quinn and Manns stated there were periods of time, particularly at the beginning of their respective pursuits of defendant, when they did not maintain constant visual contact with Wheeler's truck. Therefore, we find a jury could reasonably conclude beyond a reasonable doubt that defendant possessed Lenington's Ruger, which he had taken from Lenington's home without his permission.
¶ 60 4. Aggravated Unlawful Restraint
¶ 61 For aggravated unlawful restraint, the State had to prove (1) defendant knowingly and without legal authority detained Wheeler and (2) defendant did so while using a deadly weapon. 720 ILCS 5/10-3.1(a) (West 2018).
¶ 62 The evidence shows that after defendant shot Warren, he proceeded to take Wheeler at gunpoint to Wheeler's truck and forced Wheeler to drive him to a remote location to bury the murder weapon.
¶ 63 Defendant does not make any specific assertions related to the insufficiency of evidence to support a conviction for aggravated unlawful restraint other than his main contentions that Wheeler's testimony is incredible. As a reviewing court, it is not our duty to "search out all possible explanations consistent with innocence and raise them to the level of reasonable doubt." (Internal quotation marks omitted.) People v. Newton, 2018 IL 122958, ¶ 24. It is uncontradicted from the record that defendant detained Wheeler at gunpoint to drive him to a remote location and bury the murder weapon. "A deadly weapon is one that is 'dangerous to life' or 'one likely to produce death or great bodily injury,' or one that 'may be used for the purpose of offense or defense and capable of producing death.'" People v. Stanley, 369 Ill.App.3d 441, 445 (2006) (quoting People v. Dwyer, 324 Ill. 363, 364 (1927)). It is unarguable that a gun is a deadly weapon. Therefore, we find a jury could reasonably conclude beyond a reasonable doubt that defendant knowingly and without legal authority detained Wheeler with a deadly weapon.
¶ 64 C. Ineffective Assistance of Trial Counsel Claims
¶ 65 1. Waiver of Miranda Rights
¶ 66 Defendant argues he did not knowingly waive his Miranda rights (see Miranda v. Arizona, 384 U.S. 436 (1966)) because he did not understand the nature of his rights. Therefore, he claims, trial counsel was ineffective when he failed to file a motion to suppress defendant's statements to Custer and Koch. The State argues this issue was forfeited. Defendant contends the record is sufficient for our review on direct appeal, citing People v. Veach, 2017 IL 120649.
¶ 67 In Veach, our supreme court stated "ineffective assistance of counsel claims may sometimes be better suited for collateral proceedings but only when the record is incomplete or inadequate for resolving the claim." Id. ¶ 46. Defendant contends the record contains the entirety of his interrogation and is therefore sufficient for our review. Additionally, "a defendant must generally raise a constitutional claim alleging ineffective assistance of counsel on direct review or risk forfeiting the claim." Id. ¶ 47. "It is not the function of collateral review to consider claims that could have been presented on direct review." Id. Therefore, because defendant alleges the record is sufficient for our review on direct appeal and defendant's failure to raise this issue on direct appeal would subject him to forfeiture of this issue in collateral proceedings, we will address defendant's ineffective assistance of counsel claim.
¶ 68 "A claim of ineffective assistance of counsel is evaluated under the two-prong test set forth in Stricklandv. Washington, 466 U.S. 668 (1984)." People v. Henderson, 2013 IL 114040, ¶ 11. "Under this test, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A defendant's failure to establish either prong of the Strickland test precludes a finding of ineffective assistance of counsel." Id. To establish "prejudice where an ineffectiveness claim is based on the failure to file a suppression motion, the defendant must show that a reasonable probability exists both that the motion would have been granted, and that the result of the trial would have been different had the evidence been suppressed." Id. ¶ 12.
¶ 69 In order to determine whether a motion to suppress filed by defendant's trial counsel had a reasonable probability of being granted and would have affected the outcome of the trial, we must assess whether defendant knowingly and voluntarily waived his Miranda rights. Where the issue of a Miranda waiver was addressed by the trial court, a reviewing court conducts a bifurcated standard of review, applying a manifest weight of evidence standard to the trial court's factual findings and a de novo standard of review to "the ultimate question of whether a defendant's waiver was voluntary." People v. Soto, 2017 IL App (1st) 140893, ¶ 69 (citing In re G.O., 191 Ill.2d 37, 50 (2000)). "The validity of the waiver is a question of fact, which must be determined by the totality of the circumstances." People v. Crotty, 394 Ill.App.3d 651, 662 (2009). Because this issue was not raised before the trial court, we apply a de novo standard of review.
¶ 70 "A waiver of Miranda rights is valid where (1) the decision to relinquish the rights was voluntary in the sense that it was not the product of intimidation, coercion, or deception, and (2) it was made with a full awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them." Id.; see Moran v. Burbine, 475 U.S. 412, 421 (1986). "Whether a waiver is knowing and intelligent is determined by the particular facts and circumstances of the case, including the background, experience, and conduct of the accused." (Internal quotation marks omitted.) People v. Braggs, 209 Ill.2d 492, 515 (2003).
¶ 71 Our review of defendant's interrogation shows that prior to any questions that would elicit any incriminating responses, Custer and Koch reviewed defendant's Miranda rights with him. Defendant confirmed on multiple occasions he understood how to read and write in English. For a brief moment, defendant even read a portion of the Miranda warnings. Defendant initially stated he knew "what all of it means." On multiple occasions, defendant stated he did not know what was going on. However, Custer and Koch repeatedly went back to reviewing defendant's Miranda rights with him before moving on to questioning. Defendant confirmed he could "have someone here" in response to his right to have an attorney present. Defendant confirmed he did not have to speak with Custer and Koch. When asked if he understood an attorney could be appointed to him if he could not afford one, defendant eventually responded "yeah." Defendant was repeatedly asked if he understood his rights, to which he replied on multiple occasions, "[I]t's good."
¶ 72 Defendant gave his birthdate but struggled to recall if he was born in 1982 or 1983. He stated he lived with his father in Medora, understood English, and had passed the general education development test. Defendant confirmed he was not employed or a military veteran. Defendant also confirmed he was not under the influence of any drugs or alcohol and suffered from no mental illness. Thereafter, defendant began answering questions about his day prior to his arrest. Eventually, defendant indicated he needed an attorney because he was accused of being involved with something serious. Once defendant invoked his right to an attorney, Custer and Koch ceased questioning him.
¶ 73 Defendant argues his conduct and failure to understand all of the warnings render his waiver invalid. For example, defendant rocked back and forth in his chair for an extensive period, suggesting he suffered from a mental health issue or was under the influence of some substance.
¶ 74 Defendant does not support his assertion of a mental health issue with any evidence other than the behavior itself. "The evidence must clearly demonstrate that, because of his condition, defendant lacked capacity to waive his rights." People v. Johnson, 285 Ill.App.3d 802, 812 (1996). Furthermore, being under the influence of alcohol or drugs at the time a defendant waives Miranda rights "does not automatically render his statements inadmissible." People v. Foster, 168, Ill.2d 465, 476 (1995). Aside from his rocking behavior, defendant demonstrated during his interrogation he was aware and comprehended the questions Custer and Koch asked of him. Without more than bare assertions, we cannot find defendant's arguments persuasive.
¶ 75 "The defendant need not understand far-reaching legal and strategic effects of waiving his or her rights or appreciate how widely or deeply an interrogation may probe; however, the defendant must at least understand basically what those rights encompass and minimally what their waiver will entail." Braggs, 209 Ill.2d at 515. Given the painstaking care Custer and Koch took to ensure defendant understood his Miranda rights prior to asking him any questions, it is clear defendant understood his basic rights and minimally what any waiver of them would entail. Defendant affirmed on multiple occasions he understood his rights when specifically asked. Defendant confirmed to Custer and Koch he understood he did not have to answer their questions, he could have an attorney present, and if he could not afford an attorney, one would be appointed. This was demonstrated when defendant, in fact, invoked his right to counsel and questioning ceased. We find from the totality of the circumstances of this case that defendant knowingly and intelligently waived his Miranda rights. Therefore, defendant cannot show ineffective assistance of counsel because he cannot show a reasonable probability existed that a motion to suppress the statements he made prior to invoking his Miranda rights would have been granted.
¶ 76 2. State 's Use of Defendant 's Invocation of Miranda Rights
¶ 77 Defendant argues his trial counsel was ineffective for failing to object to (1) the State's questioning of Custer regarding whether he learned from defendant what happened to Warren and (2) the State's argument defendant was guilty because defendant never stated what happened to Warren during his interrogation. In the alternative, defendant urges us to review this issue under the plain-error doctrine. In support of his argument, defendant cites People v. Herrett, 137 Ill.2d 195 (1990).
¶ 78 In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United States Supreme Court held "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." The Doyle court found that while "Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings." Id. The Doyle rule only applies to a defendant's silence after Miranda warnings have been issued. Fletcher v. Weir, 455 U.S. 603, 607 (1982). The Doyle rule has also been applied where impeachment is not at issue, such as in Herrett. In Herrett, the State, during closing argument, asked the jury to consider why, if the defendant was innocent, he had not explained his innocence to the police upon arrest. Our supreme court in Herrett held the State's "remarks invited the jury to view the defendant's post-arrest silence as a tacit admission of guilt." Herrett, 137 Ill.2d at 213.
¶ 79 Relying on the Doyle rule and Herrett, defendant points to this exchange between the State and Custer:
"[THE STATE]: Now, he states that Sissy was with [defendant] and A.J. Wheeler?
[CUSTER]: Female nick-named Sis.
Q. Did Sis go out to the bridge with them?
A. He only indicated that [defendant] and A.J. went.
Q. And Sis, were you able to identify who Sis was?
A. I believe Sis is Rachel Warren. That is Allen Wheeler identified her as Sis.
Q. So when you talk about Sis, that's Rachel Warren?
A. To my understanding, yes.
Q. Were you able to learn from [defendant] what happened to Sis, where she went to during the interview?
A. No.
Q. Just that she was there at one point and wasn't the next?
A. Correct."
¶ 80 Defendant also points to this argument by the State during closing argument:
"The Defendant is interviewed. And you saw that interview. I've referenced what the Defendant stated, but I'll state it again. He stated he met up with A.J. *** went out to Lime Bridge and came back. And that he took the truck after that, consistent with A.J.'s testimony. What is omitted from the Defendant's statement? What happened to Sis? He does not say what happened in her. This is a 14-minute window and he does not talk about what happened to her. While this is all happening, A.J. is headed to his brother's house."
¶ 81 We do not find Herrett applicable here, nor do we find the State's questioning of Custer or its closing argument remarks run afoul of the Doyle rule. First, neither the State's questioning of Custer nor its closing argument remarks make direct or inferential reference to defendant's invocation of his Miranda rights. Thus, the issue of defendant's eventual invocation of his Miranda rights was never presented to the jury for its consideration. Defendant, prior to invoking his Miranda rights, mentioned Warren was present with both him and Wheeler and then she was no longer there. The State simply recounted what defendant had told Custer regarding Warren's whereabouts prior to his invocation of Miranda. Similarly, during closing argument, the State referenced the same admissible testimony of Custer when it referenced Warren's absence. Because the State did not utilize defendant's post-arrest silence after invoking Miranda, we need not address whether defendant's trial counsel's performance was deficient for failing to object, as defendant cannot show counsel's failure to object was prejudicial. See People v. Ashford, 168 Ill.2d 494, 502 (1995) ("[I]f [a] defendant fails to show prejudice, we need not address the adequacy of trial counsel's performance."). Additionally, for the same reasons, defendant has failed to establish any clear or obvious error occurred; thus, his forfeiture of this issue cannot be excused under the plain-error doctrine. See People v. Sebby, 2017 IL 119445, ¶ 49 (stating a defendant must first establish a clear or obvious error occurred to seek relief under the plain-error doctrine).
¶ 82 D. Chain of Custody Claim
¶ 83 Defendant argues the State failed to establish a sufficient chain of custody regarding the Ruger Doolin tested, thereby making it error for the jury to hear Doolin's testimony. Defendant concedes this issue was forfeited and asks that we review it under the plain-error doctrine, or, in the alternative, he argues trial counsel was ineffective for failing to object to Doolin's testimony.
¶ 84 The plain-error doctrine requires a defendant first establish a clear or obvious error. Id. Second, the defendant must show either "(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence." Herron, 215 Ill.2d at 187. Here, defendant seeks review under the first prong of the plain-error analysis, arguing the evidence was closely balanced.
¶ 85 When the State seeks to introduce an object into evidence, it must lay an adequate foundation by either (1) a witness identifying the object or (2) a sufficient chain of custody. People v. Woods, 214 Ill.2d 455, 466 (2005). When the object "has readily identifiable and unique characteristics, and its composition is not easily subject to change," an adequate foundation may be laid by having a witness testify that the object being admitted is the same object that was recovered and is in substantially the same condition from when it was recovered. Id. However, if the object is "not readily identifiable or may be susceptible to tampering, contamination or exchange," then an adequate foundation requires establishing a chain of custody to prove the object being admitted is the same object that was recovered. Id.
¶ 86 Defendant contends there is no evidence showing the gun tested by Doolin was the same gun recovered by Diveley on the roadside off of Route 111. Defendant contends the exhibit photographs show the gun had significant rust and several dents on the barrel compared to the photographs of the gun Diveley took. The State argues the gun is readily identifiable with unique characteristics and its composition is not easily subject to change, and that witness identification of the gun was sufficient. We agree with the State.
¶ 87 The evidence shows that after Diveley recovered the Ruger off of Route 111, he photographed it again prior to putting the Ruger (including its magazine and two cartridges) into a box that was sealed with his initials and call number. Diveley believed the box was taken by the Illinois State Police. Diveley testified the Ruger he removed from the box at trial was the same Ruger he recovered from the roadside several days after the incident. Carnes tested the Ruger for latent fingerprints. Carnes did not recognize the Ruger from the photograph taken of it on the roadside by Diveley. However, Carnes did not take the photograph, nor was he present when the Ruger was recovered or photographed by Diveley. Doolin stated she received the Ruger from the firearms vault. Doolin explained objects are placed in the firearms vault "unless they need to go to other sections in the laboratory" for additional testing. Doolin's testimony was consistent with Carnes's testimony that the Ruger would have been processed after being received.
¶ 88 Diveley explained the Ruger was found during a cold night, and there was frost on the weapon. Carnes also observed the Ruger in the photograph taken by Diveley was dirty. The frost and dirt on the Ruger would explain why the photograph Doolin later took of the Ruger showed rust on it. Regarding defendant's contention the barrel contained several dents, defendant does not specify or elaborate on this assertion and does not explain this distinction with prior photographs of the Ruger. Defendant also does not point to any evidence of actual tampering, substitution, or contamination of the Ruger. Our supreme court has explained:
"In the absence of [actual evidence of tampering, alteration, or substitution] from [a] defendant, a sufficiently complete chain of custody does not require every person in the chain testify, nor must the State exclude every possibility of tampering or contamination. [Citation]. It is not erroneous to admit evidence even where the chain of custody has a missing link if there was testimony which sufficiently described the condition of the evidence when delivered which matched the description of the evidence when examined. [Citation]. At this point, deficiencies in the chain of custody go to the weight, not admissibility, of the evidence. [Citation]." People v. Alsup, 241 Ill.2d 266, 275 (2011).
¶ 89 Furthermore, an error in the chain of custody only amounts to plain error "in those rare instances where a complete breakdown in the chain of custody occurs." Woods, 214 Ill.2d at 471. A complete breakdown occurs when, for example, "the inventory number or description of the recovered and tested items do not match-raising the probability that the evidence sought to be introduced at trial was not the same [evidence] recovered from [the] defendant." Id. at 471. Therefore, even if we indulge defendant's contention that this issue is one of an insufficient chain of custody, we do not find defendant has pointed to anything that remotely suggests a complete breakdown in the chain of custody.
¶ 90 We find defendant has not identified any clear or obvious error, let alone plain error, occurred. Therefore, we honor defendant's forfeiture of this issue. Additionally, nothing in the record suggests counsel had evidence that would undermine the chain of custody for the Ruger. Therefore, we also find counsel was not ineffective for failing to object to Doolin's testimony. See People v. Glass, 232 Ill.App.3d 136, 152 (1992) ("Defense counsel is not required to make futile motions or objections in order to provide effective assistance.").
¶ 91 III. CONCLUSION
¶ 92 For the reasons stated, we affirm in part and vacate in part the trial court's judgment and remand the cause to the Macoupin County circuit court for the issuance of an amended sentencing judgment reflecting the vacatur of defendant's conviction and sentence for unlawful possession of a weapon by a felon.
¶ 93 Affirmed in part and vacated in part; cause remanded with directions.