Opinion
No. 1-12-0661
03-20-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE WILLIAMS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 11CR99
The Honorable
Evelyn B. Clay,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Howse concurred in the judgment.
Justice Lavin concurred in part and dissented in part.
ORDER
¶ 1 Held: (1) Where defendant fails to show that his predicate convictions are specific to a now-unconstitutional statutory section, defendant's challenge to the State's presentation of evidence fails; (2) trial counsel was not ineffective for failing to make a motion in limine to bar the court from reading defendant's prior crimes, which were predicate crimes to the current charges of unlawful use of a weapon by a felon and armed habitual criminal, to the venire; and (3) trial counsel was not ineffective for failing to file a motion to quash arrest and suppress statement where defendant's detention was a lawful investigative Terry stop which escalated into a lawful arrest based on probable cause. Trial court is affirmed. ¶ 2 Following a jury trial, defendant Dwayne Williams was found guilty of armed habitual criminal and two counts of unlawful use of a weapon (UUW) by a felon. Defendant was sentenced to eight years' imprisonment for armed habitual criminal and seven years' imprisonment for each count of UUW by a felon, the UUW by a felon sentences to merge. On appeal, defendant contends he was denied the effective assistance of trial counsel where his trial attorney failed to file pretrial motions: (1) to prevent the venire from hearing details about defendant's two prior convictions for gun offenses; and (2) to quash his arrest and suppress his statement. For the first time in his reply brief, defendant also argues that the State failed to prove him guilty of both armed habitual criminal and UUW by a felon where the State relied on defendant's prior convictions for aggravated unlawful use of a weapon to satisfy an element of the charged offenses, which convictions are invalid, he argues, because they were entered under a statute that has been found unconstitutional in People v. Aguilar, 2013 IL 112116. For the following reasons, we affirm. ¶ 3 I. BACKGROUND ¶ 4 Defendant was charged with armed habitual criminal, aggravated unlawful use of a weapon, and UUW by a felon. The State proceeded to trial on the armed habitual criminal charge and two counts of UUW by a felon. The indictments read, in pertinent part:
"[COUNT 1] Dwayne Williams committed the offense of armed habitual criminal in that he knowingly or intentionally possessed a firearm after being convicted of aggravated unlawful use of a weapon under case number 08CR1359001 and aggravated unlawful use of a weapon under case number 07CR1654001"and:
"[COUNT 2] Dwayne Williams committed the offense of unlawful use or possession of a weapon by a felon in that he, knowingly possessed on or about his person any firearm, to wit: 9mm handgun, after having been previously convicted of the felony offense of aggravated unlawful use of a weapon, under case number 08CR1359001 * * * and the State shall seek to sentence him as a Class 2 offender, in that he has been previously convicted of violation 24-1.1 under case number 08CR1359001"and:
"[COUNT 3] Dwayne Williams committed the offense of unlawful use or possession of a weapon by a felon in that he, knowingly possessed on or about his person any firearm, to wit: 9mm Kel-Tec handgun, after having been previously convicted of the felony offense of aggravated unlawful use of a weapon, under case number 08CR1359001, under the laws of the State of Illinois * * * and the State shall seek to sentence him as a Class 2 offender, in that he has been previously convicted of violation 24-1.1 under case number 08CR1359001[.]"¶ 5 Evidence at trial showed that, on December 9, 2010, police officers found two guns in a garbage can near where defendant had been standing. Chicago police officer Joseph White testified that he interviewed defendant on the night of his arrest, and defendant claimed ownership of the guns, stating he had found the weapons two years previous, had been storing the weapons in an abandoned building, and that, on December 9, 2010, he had them in his possession for his protection. ¶ 6 The parties stipulated that defendant had a prior felony conviction in 08 CR 13590 from November 23, 2008. The parties further stipulated that defendant had two prior felony convictions in 08 CR 13590 from November 23, 2008, and 07 CR 16540 from September 20, 2007, which convictions served as qualifying offense for armed habitual criminal. The nature of these previous felony convictions was not introduced at trial. The specific stipulations were as follows:
"[ASSISTANT STATE'S ATTORNEY FIALKOWSKI]: It is hereby stipulated between the People of the State of Illinois by their attorney, Anita Alvarez, the State's Attorney of Cook County, through her assistant state's attorneys, Antara Rivera and Melanie Fialkowski, and the defendant, Dwayne Williams, through his attorney, Wham Cary, that the defendant has a prior felony conviction in case 08-CR-13590 from November 23, 2008."And:
"[ASSISTANT STATE'S ATTORNEY FIALKOWSKI]: It is hereby stipulated between the People of the State of Illinois by their attorney, Anita Alvarez, the State's Attorney of Cook County,¶ 7 The State rested. Defendant did not present evidence on his own behalf. Following closing arguments and jury instructions, the jury found defendant guilty of armed habitual criminal and two counts of unlawful use of a weapon by a felon based on the two different recovered weapons. ¶ 8 Defendant timely appealed. ¶ 9 II. ANALYSIS ¶ 10 a. The Predicate AUUW Offenses ¶ 11 In this appeal, we first address defendant's contention that the State failed to prove him guilty of either UUW by a felon or armed habitual criminal where the underlying convictions of aggravated unlawful use of a weapon (AUUW) relied upon by the State were defendant's prior convictions for aggravated unlawful use of a weapon. According to defendant, after People v. Aguilar, 2013 IL 112116, these underlying convictions are void ab initio and can therefore no longer serve as predicate felonies to his current charges. On the specific facts before us in this case, we disagree. ¶ 12 Defendant essentially challenges the sufficiency of the evidence supporting his convictions for armed habitual criminal and UUW by a felon. See, e.g., People v. McFadden, 2014 IL App (1st) 102939, ¶ 36 (where the defendant argued that, under Aguilar, his conviction for UUW by a felon must be vacated because the underlying predicate felony of AUUW was void, his "argument amount[ed] to a challenge to the sufficiency of the evidence supporting his UUW by a felon conviction."). When considering a challenge to the sufficiency of the evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992). We will not substitute our judgment for that of the trier of fact. Ortiz, 196 Ill. 2d at 259. A reviewing court must construe all reasonable inferences from the evidence in favor of the prosecution. People v. Bush, 214 Ill. 2d 318, 326 (2005). We will not set aside a criminal conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Ortiz, 196 Ill. 2d at 259. ¶ 13 To prove unlawful use of a weapon by a felon, the State must prove that the defendant knowingly possessed a weapon or ammunition and that the defendant had previously been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2008). A person may be convicted of being an armed habitual criminal if he possesses any firearm after being convicted twice of, inter alia, unlawful use of a weapon by a felon or aggravated unlawful use of a weapon. 720 ILCS 5/24-1.7(a)(2) (West 2010). The statute "demonstrates an unmistakable purpose to criminalize recidivist offenders who subsequently receive, possess, sell, or transfer firearms. [Citation.] Moreover, the statute evinces a clear intent that the crime apply to those offenders whose prior offenses were of a particular serious class or nature." People v. Adams, 404 Ill. App. 3d 405, 411 (2010). Both the prior convictions and the present conduct must be proved beyond a reasonable doubt. Adams, 404 Ill. App. 3d at 412. ¶ 14 Recently, our supreme court filed its modified decision in Aguilar, in which it found the Class 4 version of the aggravated unlawful use of a weapon (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A)(d) (West 2008)) to be an unconstitutional violation of the second amendment right to bear arms. Aguilar, 2013 IL 112116, ¶ 22. That section provided as follows:
through her assistant state's attorneys, Antara Rivera and Melanie Fialkowski, and the defendant, Dwayne Williams, through his attorney, Wham Cary, that the defendant has two prior felony convictions in case 08-CR-13590 from November 23, 2008, and case 07-CR-16540 from September 20, 2007. These two prior felony convictions are qualifying offenses under the Armed Habitual Criminal."
"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:In Aguilar, our supreme court determined:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm; [and]
* * *
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately
accessible at the time of the offense[.]" 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008).
"[I]n the form presently before us, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) categorically prohibits the possession and use of an operable firearm for self-defense outside the home. In other words, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court. In no other context would we permit this, and we will not permit it here, either." Aguilar, 2013 IL 112116, ¶ 21."When a statute is declared unconstitutional, it is void ab initio, meaning that it is as if the law never existed." Aguilar, 2013 IL 112116, ¶ 9 (citing People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999)). "A trial court is without jurisdiction to enter a conviction against a defendant based on actions that do not constitute a criminal offense." People v. Dunmore, 2013 IL App (1st) 121170, ¶ 9. A Class 4 AUUW conviction, which offense has been found unconstitutional by our supreme court in Aguilar, cannot stand as a predicate offense for any charge. People v. Fields, 2014 IL App (1st) 110311, ¶ 44; People v. McFadden, 2014 IL App (1 st) 102939, ¶ 43. ¶ 15 While we recognize the above case law interpreting Aguilar, the case at bar differs factually from these cases and, therefore, has a different outcome. In the case at bar, it is unclear from the record whether defendant was previously convicted under the now unconstitutional section of the AUUW statute. From our review of the record, we have no doubt that defendant was convicted of aggravated unlawful use of a weapon, but we are unable to discern whether he was convicted of the now-unconstitutional Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d). The indictments included in the record specify defendant had previously been "convicted of aggravated unlawful use of a weapon under case number 07CR1654001" and previously been "convicted of the felony offense of aggravated unlawful use of a weapon, under case number 08CR1359001." At trial, the parties stipulated that defendant had two prior felony convictions, specifying that the convictions were "qualifying offenses under the Armed Habitual Criminal." The nature of the previous felony convictions was not introduced at trial. In the end, the jury, as the trier of fact, was presented with the fact of two prior felony convictions, which were stipulated to be "qualifying offenses" for the crimes at issue. At the time of defendant's trial, this practice was sufficient. Post-Aguilar, however, we now know the better practice may have been to specify the precise conviction for the record. Because we are unable to discern from the record before us whether defendant was convicted of the Class 4 form of the statute ruled unconstitutional in Aguilar (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008), we find that Aguilar does not apply here. ¶ 16 In People v. Greene, 2014 IL App (4th) 120454, the Fourth District of this court addressed, in part, whether a defendant who had pled guilty to armed habitual criminal, should have his conviction vacated because it was void where one of the underlying offenses -AUUW-used to satisfy the armed habitual criminal statute was found unconstitutional in Aguilar. Greene, 2014 IL App (4th) 120454, ¶ 11. The court affirmed defendant's conviction because, in part, it was unclear from the record whether defendant was previously convicted under the now-unconstitutional section of AUUW. Greene, 2014 IL App (4th) 120454, ¶ 13. ¶ 17 Similarly, defendant in the case at bar fails to show that his predicate convictions were under the now-unconstitutional section of the AUUW statute. While a Class 4 AUUW conviction, which offense has been found unconstitutional by our supreme court in Aguilar, cannot stand as a predicate offense for any charge (People v. Fields, 2014 IL App (1st) 110311, ¶ 44; People v. McFadden, 2014 IL App (1st) 102939, ¶ 43), this court will not overturn a conviction based on an underlying predicate felony conviction about which we have insufficient information. ¶ 18 b. Prejudicing the Venire ¶ 19 Next, defendant contends he was denied the effective assistance of trial counsel where counsel failed to file a motion in limine to request that the trial court omit the details of defendant's prior convictions when reading the charges to the venire during voir dire. Defendant admits that, in response to the State's motion in limine seeking leave to present evidence of defendant's two prior convictions for aggravated unlawful use of a weapon, defense counsel argued before the court that "he would stipulate to the fact of the prior convictions, but the court should not admit details about the offenses because such information would be unduly prejudicial." Defendant argues that, although defense counsel put forth this argument orally, counsel should have filed a motion in limine or "anything" to prevent the judge from reading the full indictment, which contained the very details defense counsel argues-and the court ultimately agreed-would prejudice the jury against [defendant]." Ultimately, the details of defendant's prior convictions were kept from the jury, but, defendant argues, that fact "does not render [counsel's] prior failure [of not keeping the court from telling the venire about the prior crimes] reasonable because by the time counsel acted, the jury had already heard the damaging information." For the following reasons, we disagree. ¶ 20 The purpose of voir dire is not to instruct the jury, " '[t]he purpose of voir dire is to ascertain sufficient information about prospective jurors' beliefs and opinions so as to allow removal of those members of the venire whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.' " People v. Strain, 194 Ill. 2d 467, 47 (2000) (quoting People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993)). ¶ 21 To establish a claim of ineffective assistance of counsel, a defendant must show that: (1) his attorney's representation fell below an objective standard of reasonableness; and (2) he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); People v. Palmer, 162 Ill. 2d 465, 475 (1994). Failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. Palmer, 162 Ill. 2d at 475-76. To satisfy the first prong, a defendant must overcome the presumption that contested conduct which might be considered trial strategy is generally immune from claims of ineffective assistance of counsel. People v. Martinez, 342 Ill. App. 3d 849, 859 (2003). The reviewing court must remember to give great deference to the performance of counsel. Strickland, 466 U.S. at 690. Such deference to counsel's conduct should be given within the context of trial and without the benefit of hindsight. People v. King, 316 Ill. App. 3d 901, 913 (2000) (citing Strickland, 466 U.S. at 689). To establish prejudice, a defendant must show there is a reasonable probability that, but for counsel's insufficient performance, the result of the proceeding would have been different. People v. Easley, 192 Ill. 2d 307, 317 (2000). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice," then "that course should be followed." Strickland, 466 U.S. at 697. "Effective assistance of counsel means competent, not perfect, representation." People v. Rodriguez, 364 Ill. App. 3d 304, 312 (2006). ¶ 22 The comments about which defendant complains were made to the venire and are as follows:
"THE COURT: Now, let me read to you the charges that are pending against Mr. Williams. This is a multi-count information, and it reads in summary that on or about December 9, 2010, Dwayne Williams committed the offense of armed habitual criminal in that he knowingly or intentionally possessed a firearm after being convicted of aggravated unlawful use of a weapon under case number 08 CR 13590, and aggravated unlawful use of a weapon under case number 07 CR 16540.Immediately after making these comments, the court continued, instructing the venire regarding the principles of the presumption of innocence:
A second [count] reads that on or about December 9, 2010, Dwayne Williams committed the offense of unlawful use or
possession of a weapon by a felon in that he knowingly possessed on or about his person a firearm, to wit a 9 millimeter handgun after having been previously convicted of the felony offense of aggravated unlawful use of a weapon under case number 08 CR 135900, under the laws of the State of Illinois.
A third count in summary, that on or about December 9, 2010, Dwayne Williams committed the offense of unlawful use or possession of a weapon by a felon in that he knowingly possessed on or about his person any firearm, to wit a 9 millimeter colt TBC handgun, after having been previously convicted of the felony offense of aggravated unlawful use of a weapon under case number 08 CR 13590."
THE COURT: The information that I've just read to you is not to be taken by you as any evidence of Mr. Williams' guilt. It is the formal method or machinery which is necessary to charge the defendant with the crimes I have summarized and to place him on trial. The information is not evidence against the defendant, and you must not regard it as any indication of his guilt. Mr. Williams is presumed to be innocent of the charges that bring him before¶ 23 Because defendant is unable to show either deficient performance or prejudice under Strickland, we reject defendant's argument that his counsel was ineffective. Under the first Strickland prong, that of deficient performance, defendant fails to explain how counsel's actions were objectively deficient. In fact, he acknowledges that counsel during trial successfully argued that the names and nature of the predicate crimes should be kept from the jury. Rather, he generally asserts, citing People v. Walker, 211 Ill. 2d 317 (2004), that counsel knew or should have known that presenting the prior-convictions evidence to the venire would be prejudicial and that the jury "could not help but [be] prejudice[d]" by it. We disagree. ¶ 24 In People v. Davis, this court held that trial counsel was not ineffective for stipulating to the defendant's prior convictions, including the names of those convictions, and allowing them to be entered into evidence, because the armed habitual criminal statute specified particular qualifying offenses that must be proved by the State. People v. Davis, 405 Ill. App. 3d 585, 591 (2010). In Davis, following a jury trial, the defendant was found guilty of violating the armed habitual criminal statute. Davis, 405 Ill. App. 3d at 588. The evidence at trial showed that the defendant fled from a curbed vehicle with a large gun in his hand and hid in nearby bushes. Davis, 405 Ill. App. 3d at 588. After the defendant was ordered to emerge from hiding, police officers recovered the gun which they had previously seen in the defendant's hand. Davis, 405 Ill. App. 3d at 588. The parties stipulated at trial that the defendant had a prior felony conviction for aggravated unlawful use of a weapon and a prior felony conviction for manufacture or delivery of a controlled substance. Davis, 405 Ill. App. 3d at 588. On appeal, the defendant relied on Walker in challenging the constitutionality of the armed habitual criminal statute. Davis, 405 Ill. App. 3d at 588. The Davis court addressed Walker, noting that, in Walker, the "name and nature of the prior conviction was held to be unnecessary and prejudicial surplusage," and the "state had no right to present unfairly prejudicial evidence when equally probative and non-prejudicial evidence is available." Davis, 405 Ill. App. 3d at 595. It further noted that the Walker court itself said its holding was narrow, and "held that where the defendant offers to stipulate to the fact of his prior conviction, the diminished probative value of the record of conviction is outweighed by the risk of unfair prejudice and, as a result, the trial court abuses its discretion by admitting the record of conviction and informing the jury of the name and nature of the conviction." Davis, 405 Ill. App. 3d at 504. This court distinguished Walker:
you. The presumption of innocence cloaks him now at the onset of the trial and will continue to cloak him throughout the course of the proceedings. The presumption of innocence remains during jury selection, during opening statements, during the body of evidence, during the closing arguments, during the instructions of law that I will read and provide to you at the end of the trial and on into your deliberations.
It is absolutely, as we select this jury, absolutely essential that as we select this jury that each of you understand and embrace these fundamental principles of law. All persons charged with a crime are presumed to be innocent, and that it is the burden of the State who has brought the charges to prove the defendant guilty beyond a reasonable doubt. What this means is that the defendant has no obligation to testify in his own behalf or to call any witnesses in his defense. He may simply rely upon what he and his attorney perceive to be the inability of the State to present sufficient evidence to meet their burden."
"[C]ontrary to the statutes involved in Old Chief and Walker, the legislature has determined that offenders who have been convicted of certain specified offenses should be prevented from possessing or using a gun. Thus, in contrast to those cases, it is insufficient under the statute at hand for the State to prove that the defendant had a prior felony; rather, the State must prove that defendant had two or more specific qualifying felonies." Davis, 405 Ill. App. 3d at 494.Ultimately, this court held that the defendant's prior crimes were not being admitted to show his propensity to commit crimes, but rather as elements of the offense of armed habitual criminal. Davis, 405 Ill. App. 3d at 595. We said:
"We categorically reject defendant's assertion that trial counsel was ineffective for stipulating to defendant's prior convictions, including the name of those convictions, and allowing them to be entered into evidence for the jury's consideration. This court has previously found that Old Chief and Walker suggest that where a¶ 25 We find no deficient performance by defense counsel in the case at bar and, like the Davis court before us, find defendant's reliance on Walker unpersuasive. Like Walker, the charges in this case require the State to prove more than just the defendant's status as a felon; the armed habitual criminal charge require the State to prove that defendant had previously been found guilty of specific, enumerated felonies, as an element of the offense. Davis sufficiently addressed this distinction, and we see no need to depart from that well-reasoned decision. The argument made here-that counsel should have found a way to keep the court from reading the charges, which included the names of defendant's prior convictions to the venire-is even less persuasive than that made and rejected in Davis, where the information was actually put before the jury and yet counsel was not found ineffective. Defendant has failed to overcome the strong presumption that counsel's actions were a product of sound trial strategy. Martinez, 342 Ill. App. 3d at 859 (To satisfy the first Strickland prong, a defendant must overcome the presumption that contested conduct which might be considered trial strategy is generally immune from claims of ineffective assistance of counsel). ¶ 26 Moreover, even if we were to find counsel's representation deficient, defendant's claim would still fail because he cannot show resulting prejudice here. We reject defendant's argument for a number of reasons. First, defendant cannot show prejudice where the trial court, after reading the information to the venire, immediately instructed the venire that the charges were not evidence of defendant's guilt and could not be considered by them as any indication of defendant's guilt. ¶ 27 Additionally, the name and nature of the underlying felonies did not become an issue at trial. Rather, the parties stipulated to the fact that the underlying felonies were qualifying felonies for the current charged crimes. Therefore, after the isolated mention of the name of the underlying felony convictions at issue here were read to the venire, the name and nature of the underlying felonies was never presented to the jury. Consequently, we cannot agree with defendant that he was prejudiced by his counsel's failure to request the court keep this information from the venire. See People v. Jackson, 205 Ill. 2d 247, 282 (2001) (finding no reasonable probability that the defendant was prejudiced as a result of voir dire questioning "which occurred long before the jury ever heard any evidence or determined whether defendant was eligible for the death penalty," thereby rendering the defendant unable to satisfy the cause-and-prejudice test). ¶ 28 Moreover, immediately following the complained-of comments, the court instructed the jury on the presumption of innocence, specifically informing the venire that the charges in the information were not evidence against defendant. Also, at the end of trial, the court instructed the jury via IPI Criminal No. 1.01, which reads, in pertinent part:
defendant's status as a felon is an element of the offense, a stipulation to his prior felony conviction is the least prejudicial means of introducing the evidence to the trier of fact. People v. Allen, 382 Ill. App. 3d 595, 599 (2008). As stated, specific qualifying prior convictions are elements of this offense and defendant ignores that in the absence of a stipulation, the State would have put other evidence before the jury. Although the statute before us requires the State to prove not just the fact of any prior felony conviction, but one of the specifically enumerated prior convictions, we find that in this case, stipulating to those convictions and their names in order to satisfy elements of the offense was inarguably less prejudicial than making the prior convictions an issue in the case. *** Defendant has not overcome the strong presumption that counsel stipulated to the prior convictions as a matter of sound trial strategy or shown that he was prejudiced by counsel's decision." Davis, 405 Ill. App. 3d at 597.
"It is your duty to determine the facts and to determine them only from the evidence in this case. You are to apply the law to the facts and in this way decide the case.The trial court also instructed the jury via IPI Criminal No. 2.02, which reads:
* * *
The evidence which you should consider consists only of the testimony of the witnesses the exhibits and stipulations which the court has received." Illinois Pattern Jury Instruction, Criminal, No. 1.01 (4th ed. 2000).
"The charges against the defendant in this case are contained in a document called the information. This document is the formal method of charging the defendant and placing the defendant onAny prejudice caused by the court's reading the charges to the venire was cured by the court's instructions, both immediately after the charges were read to the venire and to the jury at the close of trial. Defendant fails to show his counsel was ineffective. ¶ 29 c. Motion to Quash Arrest and Suppress Statement ¶ 30 Finally, defendant contends he was denied the effective assistance of trial counsel where counsel failed to file a motion to quash arrest and suppress his statement. Specifically, defendant argues that his statement was the product of an illegal seizure. For the following reasons, we disagree. ¶ 31 We begin by noting that our courts have long recognized three types of police-citizen encounters, including: (1) consensual encounters, involving no detention and therefore not implicating a citizen's fourth amendment rights; (2) brief investigatory stops, referred to as Terry stops, which must be supported by a reasonable, articulable suspicion of criminal activity; and (3) arrests, which must be supported by probable cause. People v. Surles, 2011 IL App (1 st) 100068, ¶ 21 (citing People v. Vasquez, 388 Ill. App. 3d 532, 546-47 (2009) and People v. Leudemann, 222 Ill. 2d 530, 544 (2006)). ¶ 32 The two latter types of encounters are governed by the United States and the Illinois Constitutions, which explicitly prohibit the government from subjecting citizens to unreasonable searches and seizures. U.S. Const., Amends. IV, XIV; Ill. Const. 1970, art. I, § 6; People v. Lopez, 229 Ill. 2d 322, 345 (2008). ¶ 33 For constitutional purposes, a person is seized when he is placed under arrest. Lopez, 229 Ill. 2d at 346. Under the fourth amendment, an arrest must be accompanied by a warrant supported by probable cause. People v. Sorenson, 196 Ill. 2d 425, 432 (2001); see also People v. Robinson, 167 Ill. 2d 397, 405 (1995) ("A warrantless arrest is unlawful absent probable cause"); People v. Montgomery, 112 Ill. 2d 517, 525 (1986) ("An arrest executed without a warrant is valid only if supported by probable cause"). "Probable cause to arrest exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime." People v. Wear, 229 Ill. 2d 545, 563-64 (2008) (citing People v. Love, 199 Ill. 2d 269, 279 (2002)). The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. Wear, 229 Ill. 2d at 564 (citing Love, 199 Ill. 2d at 279). ¶ 34 A Terry stop is a recognized exception to the probable cause requirement of the fourth amendment, which allows for an officer to detain a citizen without an arrest warrant and without probable cause where his observations create a reasonable articulable suspicion that a crime has been or is about to be committed. Terry v. Ohio, 392 U.S. 1, 22 (1968) (codified in the Illinois Code of Criminal Procedure of 1963 as 725 ILCS 5/107-14 (West 2010)). Such a stop must, at its inception, be based on specific and articulable fact, which the officer can point to as a reasonable basis for such an intrusion. People v. Thomas, 198 Ill. 2d 103, 109 (2001). ¶ 35 Our courts have recognized that there is no bright-line test for determining whether an encounter is a Terry stop or an arrest. See Surles, 2011 IL App (1st) 100068, ¶ 24; Vasquez, 388 Ill. App. 3d at 549. Generally, an arrest occurs when a person's freedom of movement is restrained by physical force or a show of authority. Vasquez, 388 Ill. App. 3d at 549; see also Lopez, 229 Ill. 2d at 346 (" 'An arrest occurs when the circumstances are such that a reasonable person, innocent of any crime, would conclude that he was not free to leave.' [Citation.]") In determining whether an encounter is a Terry stop or an arrest, our courts have analyzed several factors, including, but not limited to: (1) the time, place, length, mood, and mode of the encounter; (2) the number of officers present; (3) use of handcuffs, weapons, or other formal restraint; (4) the intent of the officers; (5) whether the defendant was told he could refuse to cooperate or that he was free to leave; (6) whether the defendant was transported by the police in a police car; and (7) whether the defendant was told he was under arrest. Surles, 2011 IL App (1st), ¶ 24; see also Vasquez, 388 Ill. App. 3d at 549. ¶ 36 As discussed previously, to establish a claim of ineffective assistance of counsel, a defendant must show that: (1) his attorney's representation fell below an objective standard of reasonableness; and (2) he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); People v. Palmer, 162 Ill. 2d 465, 475 (1994). Failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. Palmer, 162 Ill. 2d at 475-76. To succeed on a claim of ineffective assistance of counsel based on the failure to quash arrest and suppress evidence, " 'a defendant must show that a reasonable probability exists both that the motion would have been granted and that the outcome of the trial would have been different had the evidence been suppressed.' [Citations.]" People v. Lundy, 334 Ill. App. 3d 819, 830 (2002). An attorney will not be deemed ineffective for failing to file a futile motion. Lundy, 334 Ill. App. 3d at 830. The decision whether to file a motion to suppress is generally considered a matter of trial strategy that will typically not support a claim of ineffective assistance of counsel. People v. Rucker, 346 Ill. App. 3d 873, 885 (2003). In order to establish prejudice with regard to the failure to seek the suppression of evidence, the defendant must show that the unargued suppression motion was meritorious and that there is a reasonable probability that the verdict would have been different without the excludable evidence. People v. Henderson, 2013 IL 114040, ¶ 14. ¶ 37 Here, the facts adduced at trial reveal the following scenario: On December 9, 2010, at approximately 11:00 p.m., Chicago Police officer Teresa Dziadkowiec was working with Officer Urban when they received a call of a person with a gun at 55th Street and Damen Avenue in Chicago. They proceeded to that location and learned that the offenders were described as two African American males, six feet tall, wearing dark clothing and displaying a large handgun. They did not see anyone in that area. They then received another message that the two offenders were proceeding eastbound on 55th Street towards Wolcott Avenue. The officers traveled east on 55th Street, and saw two men matching the given description near an alley at 55th Street and Wolcott Avenue. The two men were standing next to a row of four garbage cans. When Officer Dziadkowiec approached in the police car, the man standing closest to the garbage can fled on foot. The second man fled, as well. As the second man fled, Officer Dziadkowiec noticed that, in the row of three garbage cans, all were covered with snow except the garbage can second from the end. That can had no snow on it. Officer Dziadkowiec testified it had snowed two to three inches that day. ¶ 38 Officer Dziadkoweic pursued the men eastbound through the alley and then north on Honore Street. After a brief pursuit, during which she dropped her partner off to pursue one of the men on foot, she saw one of the men on Wood Street as he was running out of a gangway. She stopped the car, got out, and approached the man. The man stopped running when he saw her. With Officer Urban behind her, Officer Dziadkoweic handcuffed the man. She identified this man in court as defendant. She also identified defendant as the man she had seen standing closest to the garbage can without the snow on the lid. Defendant was placed into another officer's squad car, and Officer Dziadkoweic then returned to 55th Street and Wolcott Avenue, where she had initially seen defendant by the garbage cans. Once there, she saw Officer Edwards recover two semi-automatic weapons from the garbage can that had no snow on the lid. ¶ 39 On cross-examination, Officer Dziadkoweic acknowledged that, when she first saw the men standing near the garbage cans, she did not see either of them make a motion towards the garbage cans or place a handgun into a garbage can. ¶ 40 Chicago Police officer Peter Edwards testified he was working on December 9, 2010, when he got a call about a person with a gun. He and his partner, Officer White, went to the area of Garfield Avenue and 55th Street. They did not see anyone matching the description of the two African American males dressed in black. At 56th Street and Damen Avenue, however, two individuals told the officers that two African American men had approached them with a weapon. At 55th Street and Wolcott Avenue, the officers noticed fresh footprints in the snow heading east through the alleyway. Officer Edwards followed the footprints to a yard. He then learned that one of the offenders had been taken into custody. Officer Edwards walked to 55th Street and Wolcott Avenue, where he met with Officer White and spoke to Officer Dziadkoweic and Officer Urban. Defendant was placed into Officer White's squad car. Officer Edwards noticed several footprints directly in front of the garbage can with no snow on the lid. He opened the lid of that garbage can and discovered two firearms in the bottom of the empty garbage can. Officer Edwards testified that there was nothing else in the garbage can other than the weapons. ¶ 41 Officer Edwards testified he tilted the garbage can so he could scoot the weapons down onto the garbage can lid so they would not fall into the snow on the ground. Upon recovering the weapons, he removed the magazines from the weapons and then ejected the round in the chamber. One of the weapons was a Kel Tech 9 millimeter handgun loaded with nine rounds. The second weapon was a larger Uzi with a 30 round magazine which was loaded with 25 rounds and had a rapid-fire mechanism. ¶ 42 Officer White testified he was also working on December 9, 2010, and was in the vicinity of 55th Street and Wood Street when he first saw defendant, who had been taken into custody by Officer Dziadkoweic. Defendant was placed into Officer White's squad car. Officer White advised defendant of his Miranda rights. After defendant indicated he understood his rights, Officer White asked him which of the weapons was his. Defendant told him both guns were his. Officer White then asked various questions, including how long he had owned the weapons. Defendant replied that he had found the weapons in 2008 and had been storing them in an abandoned building. Defendant explained to Officer White that, on that night, he had the weapons for his protection. ¶ 43 Defendant argues that "a motion to quash arrest and suppress evidence had a reasonable probability of success because [defendant] was handcuffed, placed in the back of a squad car, and then transported to another location before the police had any evidence of a crime." He argues that any crime the officers suspected him of was not a violent crime and, therefore, handcuffs were improper because the information the officers had "did not provide sufficient justification for the officers to reasonably believe that [defendant] was dangerous and thus needed to be handcuffed." He additionally argues that defendant would not have felt he was free to leave. We disagree. ¶ 44 Here, the stop and detention of defendant following a brief chase by the police was justified under Terry, as the encounter was supported by a reasonable, articulable suspicion of criminal activity. See Thomas, 198 Ill. 2d at 109. The record below establishes that the encounter between defendant and the police was brief, that it occurred in the middle of the night and on a public street. The officers were responding to a call of a person with a gun in the area of 55th Street and Damen Avenue. Officers were given a description of two African American males, six feet tall, wearing black clothing. As the officers searched for these individuals, they came into contact with two other individuals who reported an African American male had just approached them with a gun. Very soon after, Officers Dziadkoweic and Urban saw two men matching the description, one of whom was defendant, at 55th Street and Wolcott Avenue, just a few blocks away. The officers followed defendant and the other individual to an alley where they were standing next to a row of snow-covered garbage bins, one of which did not have any snow on it. When the officers approached, the men fled. After a chase, Officer Dziadkoweic apprehended defendant within a few blocks. She handcuffed defendant and he was placed into a squad car. Given the facts and circumstances surrounding the call received by the officers, their observation of defendant standing by a suspicious garbage bin, and defendant's flight when Officer Dziadkoweic approached him, there was a reasonable, articulable suspicion to stop defendant after a brief chase. ¶ 45 In addition, we disagree with defendant's characterization of the officers' use of handcuffs. He claims that, because the police had not received "any report of a violent crime," the use of handcuffs to protect the officers was unnecessary and, in this circumstance, would have made for a compelling argument that he was arrested without probable cause. However, police can handcuff a suspect without turning a Terry stop into an arrest. People v. Colyar, 2013 IL 111835, ¶ 46 ("handcuffing does not automatically transform a Terry stop into an illegal arrest;" "the propriety of handcuffing during a Terry stop depends on the circumstances of each case."). Here, the officers, responding to a call of a person with a gun, approached defendant, who fled. They gave chase. Within minutes, they caught defendant. In order to detain him, they handcuffed him and placed him into a squad car. They then transported him a few blocks back to the alley where he was first seen near the suspicious-looking garbage bins. Two guns were then recovered from one of the garbage bins. Defendant was then advised of his Miranda rights and, when asked which weapon belonged to him, responded, "both of them." This all happened in a matter of minutes, at night time, on a public street. ¶ 46 Under these circumstances, we find that the detention of defendant constituted an investigatory Terry stop, rather than an arrest. See People v. Arnold, 394 Ill. App. 3d 63, 71 (2009) ("there are situations in which concerns for the safety of the police officer or the public justify [employment of arrest-like measures] *** for the brief duration of an investigatory [Terry] stop."); People v. Nitz, 371 Ill. App. 3d 747, 754 (2007) ("when arrest-like measures *** are employed, they must be 'reasonable in light of the circumstances that prompted the [investigatory] stop or that developed during its course.' [Citations.]") ¶ 47 Based on the record before us, defendant's detention was lawful as an investigative Terry stop which escalated into a lawful arrest based on probable cause when the guns were recovered from the garbage cans. A motion to quash arrest and suppress statements in this case would not have been meritorious and, accordingly, counsel cannot be deemed incompetent for failing to file such a motion. See Lundy, 334 Ill. App. 3d at 830 (An attorney will not be deemed ineffective for failing to file a futile motion). ¶ 48 III. CONCLUSION ¶ 49 For all of the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 50 Affirmed. ¶ 51 JUSTICE LAVIN, concurring in part and dissenting in part: ¶ 52 A defendant's qualifying prior convictions constitute elements of the armed habitual criminal offense. People v. Davis, 405 Ill. App. 3d 585, 491 (2010). Similarly, to prove UUW by a felon, the State must prove that the defendant had previously been convicted of a felony as an element of the offense. People v. McFadden, 2014 IL App. (1st) 102939, ¶ 41. Moreover, the legislature clearly contemplated that those elements would be satisfied with valid prior convictions. ¶ 53 In this case, the State attempted to satisfy elements of the armed habitual criminal and UUW by a felon offenses with prior AUUW convictions. See 720 ILCS 5/24-1.7(a) (2) (West 2010). In addition, the majority recognizes that the Class 4 form of AUUW conviction found to be unconstitutional in People v. Augilar, 2013 IL App (1st) 112116, cannot stand as a predicate offense for any charge. People v. Fields, 2014 IL App (1st) 110311, ¶ 44. The majority fails to recognize, however, that the State had the burden of proving each element of the charged offense beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 52. Thus, the State bears the burden of demonstrating that a valid conviction exists, not defendant. To require defendant to demonstrate that his prior conviction was a Class 4 in this instance, is to impermissibly shift the burden of proof to defendant and require him to prove his innocence. Cf. People v. Green, 2014 IL App (4th) 120454 (considering Aguilar in the context of a fully negotiated plea agreement). If the evidence presented at trial does not unequivocally demonstrate that defendant had valid, constitutional prior convictions necessary to satisfy the elements of the offense, defendant is entitled to acquittal. Accordingly, I would vacate defendant's convictions resting upon his prior AUUW convictions in light of the State's failure to demonstrate that those offenses were valid. ¶ 54 For that reason, I dissent from the majority's decision to affirm those convictions. I concur with the majority in all other respects.
trial. It is not any evidence against the defendant." Illinois Pattern Jury Instruction, Criminal, No. 2.02 (4th ed. 2000).
The dissent argues that our result in this case "impermissibly shift[s] the burden of proof to defendant and require[s] him to prove his innocence." The dissent, however, conflates appellate standards with trial court standards.