No. 1-14-2088

FIRST DIVISION May 31, 2016

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) 11 CR 6438 ) SHAWAN DIGGINS, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. )

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Harris concurred in the judgment and opinion.

OPINION

¶1 Defendant Shawan Diggins was convicted of aggravated unlawful use of a weapon

(AUUW) after a bench trial and was sentenced to 13 months in prison. Defendant appeals,

alleging that his right to confront the witnesses against him was violated when the State was

allowed to admit a certified letter that amounted to a testimonial affidavit from a nontestifying

witness for its truth, which established an element of AUUW. For the following reasons, we

reverse. No. 1-14-2088

¶2 BACKGROUND

¶3 The State charged defendant with several counts alleging that he illegally possessed a

firearm on April 12, 2011. Before trial, the State dismissed three of the charges and proceeded

on just two counts: (1) unlawful possession of a firearm by a street gang member, and (2)

AUUW predicated on defendant’s lack of a Firearm Owner’s Identification (FOID) card.

¶4 At trial, two police officers testified as to what happened on the date in question. Officer

Jeffrey Rodenberg testified that at approximately 9:20 p.m., he and his partner, Officer Scott

Celani, were patrolling in the vicinity of 80th Street and Fairfield Avenue. Officer Rodenberg

testified that as they were patrolling, he spotted defendant standing in an alley with another man.

The officers knew there was a warrant out for his arrest, so they approached defendant. Officer

Rodenberg testified that as they approached defendant, defendant reached into his waist and pull

out a dark-colored handgun. Officer Rodenberg testified that he observed defendant toss the

handgun over a chain-link fence. Officer Rodenberg arrested defendant and directed another

officer, Sergeant Poppish, who had arrived on the scene, to retrieve the handgun. Officer

Rodenberg testified that Sergeant Poppish climbed over the fence and retrieved a handgun.

¶5 Sergeant Michael Poppish testified that after arriving on the scene and talking to Officer

Rodenberg, he went inside the backyard at 7955 South Fairfield and recovered a "black

semiautomatic pistol, a .380, which I found to be loaded with six live rounds of ammunition."

¶6 The State then indicated that it had a "certified letter" from the Firearm Service Bureau of

the Illinois State Police, which stated:

"Based on the following name and date of birth information provided by the Cook

County State’s Attorney’s Office, I, Sergeant Matt Weller, Firearms Services

Bureau, Illinois State Police, do hereby certify, after a careful search of the FOID

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files, the information below to be true and accurate for [defendant], whose date of

birth is May 8, 1995. It is further certified that: (1) On December 28, 1997, this

office received a FOID application from [defendant] with the above date of birth.

On January 17, 2008, FOID Card #77550476 was denied due to [defendant]

having a pending felony indictment; and (2) As of May 7, 2013, this office has no

other record for [defendant]."

¶7 The document was signed and notarized. Defense counsel objected to the admission of

the certified letter into evidence. Defense counsel argued that it was not a self-authenticating

document, and that it was not kept in the normal course of business. The State responded that it

was a self-authenticating document because it was "a certified document with a seal bearing the

signature and seal of the office." The trial court stated that it believed the letter was properly

admissible as a certified document of a governmental agency. The court stated that "[t]he rule

that applies is the Illinois rule of evidence that permits the introduction of certified governmental

documents." The court continued, stating, "If you want an opportunity to subpoena and cross-

examine the witness and bring that person in as a witness on behalf of the [d]efense, I will give

you that opportunity, but the exhibit *** is admissible over your very well-stated objection."

Defense counsel continued its objection, stating that this was not a document kept in the normal

course of business, and rather it was the result of a specific request by the State. The trial court

again denied the objection because "the document speaks to a review of documents kept in the

normal course of business."

¶8 Defendant then testified on his own behalf. He denied that he ever possessed a gun on

the night in question. On cross-examination, defendant was asked, "you don't have a firearm

owner's identification card, do you?" Defendant responded, "No, I do not."

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¶9 At the close of evidence, the trial court noted that it had considered the testimony of

Officer Rodenberg, Sergeant Poppish, the State's exhibits, "the certified document," and the

testimony of defendant. The trial court found defendant not guilty of the unlawful possession of

a firearm by a street gang member, but guilty of the AUUW count. The trial court sentenced

defendant to 13 months in prison and a year of mandatory supervised release. Defendant now

appeals.

¶ 10 ANALYSIS

¶ 11 On appeal, defendant contends that that the admission of the certified letter from Illinois

State Police alleging his lack of a FOID card violated his constitutional right of confrontation

because the document constituted an affidavit that was testimonial hearsay, the affiant was not

subject to prior cross-examination and not shown to be unavailable, and the affidavit was

admitted substantively for its truth. The State responds that defendant failed to preserve this

issue for appeal when he failed to include it in his posttrial motion, and that even if the issue had

been properly preserved the document did not violate defendant’s right of confrontation.

¶ 12 We first address the preservation issue. To preserve an issue for review, a party

ordinarily must raise it at trial and in a written posttrial motion. People v. Enoch,

(1988). Defendant admits that while he objected to the State's use of the certified letter at

trial, he failed to specifically object again in a posttrial motion. However, as defendant notes, he

did argue in his posttrial motion that the State failed to present sufficient evidence regarding

defendant's possession of a FOID card. See People v. Mohr,

(2008) (the

rule of forfeiture does not state that a defendant must object on identical grounds – only that the

defendant must object during and after trial). In any event, our supreme court has held that

certain types of claims are not subject to forfeiture for failing to file a posttrial motion, including

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constitutional issues that were properly raised at trial and may be raised later in a postconviction

petition. Enoch,

. The Post-Conviction Hearing Act provides a mechanism for

criminal defendants to assert that a conviction or sentence resulted from a substantial denial of

their rights under the United States Constitution, the Illinois Constitution, or both. 725 ILCS

5/122-1(a) (West 2008). Postconviction proceedings permit inquiry into constitutional issues

that were not, and could not have been, adjudicated on direct appeal. People v. English,

. If a defendant were precluded from raising a constitutional issue previously raised

at trial on direct appeal merely because he failed to raise it in a posttrial motion, the defendant

could simply allege the issue in a later postconviction petition. People Cregan,

. Accordingly, we find that defendant's constitutional violation allegation was properly

preserved on direct appeal.

¶ 13 The right of confrontation under the federal and state constitutions dictates that in all

criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses

against him. U.S. Const. 1970, amend. VI; Ill. Const., art. I, § 8. "Testimonial statements of

witnesses absent from trial have been admitted only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington,

(2004). While our Illinois Supreme Court recognized that in Crawford the

United States Supreme Court declined to spell out a "comprehensive definition of 'testimonial,' "

it nevertheless described the class of testimonial statements covered by the confrontation clause

as follows:

"Various formulations of this core class of testimonial statements exist: ex

parte in-court testimony or its functional equivalent – that is, material such as

affidavits, custodial examinations, prior testimony that the defendant was unable

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to cross-examine, or similar pretrial statements that declarants would reasonably

expect to be used prosecutorially, [citation] extrajudicial statements … contained

in formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions, [citation] statements that were made under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial." (Internal quotation marks

omitted.) Crawford,

.

The first question in this case therefore becomes whether the certified letter constituted a

testimonial statement.

¶ 14 Defendant relies on Melendez-Diaz v. Massachusetts,

(2009), to support his

contention that the certified letter was "testimonial" in nature. In Melendez, the defendant was

charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and

28 grams. At trial, the prosecution placed into evidence the bags of narcotics that had been

seized and three "certificates of analysis" showing the results of the forensic analysis performed

on the seized substances. The certificates reported the weight of the seized bags and stated that

the bags had been examined and were found to contain cocaine. The certificates were notarized

and signed by analysts at the State Laboratory Institute of the Massachusetts Department of

Public Health. The defendant in Melendez objected to the certificates, asserting that the

confrontation clause decision in Crawford required the analysts to testify in person. The

certificates were admitted into evidence over the defendant’s objection, as prima facie evidence

of the composition, quality, and net weight of the narcotic.

¶ 15 On appeal, the defendant in Melendez contended that the admission of the certificates

violated his sixth amendment right to be confronted with the witnesses against him. The

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Supreme Court found that there "is little doubt that the documents at issue in this case fall within

the 'core class of testimonial statements' thus described," as the Court's description of that

category in Crawford mentioned affidavits twice.

. The Court found that while the

documents were denominated as "certificates," they were "quite plainly affidavits," which are

" 'declaration[s] of facts written down and sworn to by the declarant before an officer authorized

to administer oaths.' "

(quoting Black’s Law Dictionary 62 (8th ed. 2004)). The Court noted

that "[t]he fact in question is that the substance found in the possession of [the defendant] was, as

the prosecution claimed, cocaine – the precise testimony the analysts would be expected to

provide if called at trial. The 'certificates' are functionally identical to live, in-court testimony,

doing ‘precisely what a witness does on direct examination.' "

at 310-11 (quoting Davis v.

Washington,

(2006)).

¶ 16 We likewise find that in the case at bar, the certified letter was an affidavit, as it was a

declaration of facts written down and sworn to by the declarant before an officer authorized to

administer oaths. Id. at 310. Moreover, the affidavit was “made under circumstances which

would lead an objective witness reasonably to believe that the statement would be available for

use at a later trial.” (Internal quotation marks omitted.) Crawford,

. Defendant

was arrested in April 2011, and the trial began in April 2014. The certified letter was issued on

May 7, 2013, presumably in preparation of trial. Additionally, whether defendant owned a FOID

card constituted an element of AUUW, which the State had the burden to prove. Accordingly,

absent a showing that the witness was unavailable to testify at trial and that defendant had a prior

opportunity to cross-examine him, defendant was entitled to be confronted with the witness at

trial.

.

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¶ 17 Finding that the certified letter was testimonial in nature and that defendant therefore had

a right to be confronted with the declarant of the statement contained therein, we turn to the

question of whether the confrontation clause violation in the case at bar was harmless beyond a

reasonable doubt. In determining whether a constitutional error is harmless, the test to be

applied is whether it appears beyond a reasonable doubt that the error at issue did not contribute

to the verdict obtained. People v. Patterson,

(2005) (citing Sullivan v.

Louisiana,

(1993)). The State bears the burden of proof. Sullivan,

. Here, while the State briefly states that a Crawford violation "is subject to harmless

error review," it does not provide any argument whatsoever as to whether the Crawford violation

in the case at bar was harmless beyond a reasonable doubt. We therefore cannot say that it has

met its burden of proof on this issue.

¶ 18 Moreover, we note that to convict a defendant of AUUW, the State must prove beyond a

reasonable doubt either that a defendant carried a weapon on his person or in his vehicle, outside

his home (720 ILCS 5/24-1.6(a)(1) (West 2008)) or carried a weapon on his person on the public

way (720 ILCS 5/24-1.6(a)(2) (West 2008)), and one of the nine factors that transform the

offense of unlawful use of a weapon to AUUW. People v. Henderson,

. Relevant to this case is factor 3(C), the person possessing the firearm had not been

issued a valid FOID card. 720 ILCS 5/24-1.6(a)(3)(C) (West 2008). Accordingly, whether

defendant had been issued a valid FOID card was an essential element the State had to prove in

order for the trial court to convict him of AUUW. Without the affidavit from the Illinois State

Police, the element of possession of a valid FOID card could not be proven, as neither of the

police officers testified as to defendant's possession of a FOID card. While it is true that

defendant himself testified on cross-examination that he was not in possession of a FOID card,

8 No. 1-14-2088

we are persuaded by defendant's argument that had the affidavit been excluded from evidence,

the State would not have been able to prove AUUW beyond a reasonable doubt, and therefore

defendant may have decided not to take the stand on his own behalf. See People v. Patrick,

(2009); People v. Hogan,

(2009). Accordingly,

because the State has failed to show beyond a reasonable doubt that the error at issue did not

contribute to the verdict obtained (Patterson,

), we find that the confrontation

clause violation did not constitute harmless error.

¶ 19 Before we remand this cause for a new trial, we must determine whether a retrial would

raise double jeopardy concerns. Double jeopardy prohibits a retrial when a conviction is

reversed due to insufficient evidence to support the conviction, but does not prohibit retrial

where a conviction is set aside due to the erroneous admission of hearsay evidence. People v.

Olivera,

(1995) (retrial is permitted even though evidence is insufficient to

sustain a verdict when erroneously admitted evidence has been discounted). Here, when

considering all the evidence submitted at the original trial, including the discounted evidence, we

find that a rational trier of fact could have found the essential elements of AUUW beyond a

reasonable doubt, and therefore we remand this cause for a new trial. See Olivera,

.

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County

and remand this case for a new trial.

¶ 22 Reversed and remanded.

9