Ineffective assistance of counsel for not giving a non IPI jury instruction was found in possession of a firearm with daced identification marks case. It is a horribly written crime. There are no pattern jury instructions for it. Reversible error occurred in this case for tracking the language in the code. The code does not mention a mental state for the defacement.
People v. Falco, 2014 IL App (1st) 111797 (08/12/2014).
Following a jury trial, defendant was convicted of possession of a firearm with defaced identification marks (720 ILCS 5/24-5(b)).
Defendant faults defense counsel. The attorney did not request an instruction that would have informed the jury on the correct mental state. The correct mental state included a requirement that the State prove that the Defendant knowingly or intentionally possessed a firearm with defaced identification marks.
Did the trial attorney commit ineffective assistance of counsel by not asking for a jury instruction making it clear that possession of a firearm with defaced identification marks must be knowing and intentional?
The offense of possession of a firearm with defaced identification marks, is defined as,
“[a] person who possesses any firearm upon which any such importer’s or manufacturer’s serial number has been changed, altered, removed or obliterated commits a Class 3 felony.”
Illinois Compiled Statutes, Criminal Code section 720 ILCS 5/24-5(b).
The problem is that this section does not explicitly state the applicable mens rea. Definitely, to sustain defendant's conviction of possession of a firearm with a defaced serial number the State is required to prove, beyond a reasonable doubt, that defendant intentionally or knowingly possessed a firearm upon which the serial number has been changed, altered, removed, or obliterated. See People v. Stanley, 397 Ill. App. 3d 598, 609 (2009).
The jury instructions in this case did not include a mens rea on the issue of the defacement.
Jury Instructions in General
Jury instructions are necessary to provide the jury with the legal principles applicable to the evidence presented so that it may reach a correct verdict. People v. Hopp, 209 Ill. 2d 1, 8 (2004).
Illinois Supreme Court Rule 451(a) provides that whenever the Illinois Pattern Jury Instructions (IPI) contains an applicable jury instruction and the court determines that the jury should be instructed on the subject, “the [IPI instruction] shall be used, unless the court determines that it does not accurately state the law.”
Where no IPI instruction exists on a subject, the court has the discretion to give a non-pattern jury instruction. See People v. Ramey, 151 Ill. 2d 498, 536 (1992). The failure to request a particular jury instruction may be grounds for finding ineffective assistance of counsel if the instruction was so critical to the defense that its omission “den[ied] the right of the accused to a fair trial.” People v. Johnson, 385 Ill. App. 3d 585, 599, (2008) (quoting People v. Pegram, 124 Ill. 2d 166, 174 (1988)).
When Instruction is Necessary
Additionally, where the mental state is implied, as it is here, a court is not always required to instruct the jury as to the required mental state. It is not always necessary to instruct a jury concerning mental states implied by a section of the Code.
However, “some mental states involved in offenses, although not specifically mentioned in the statute defining the offense, may be implied in the offense and be specific enough to require instruction to the jury. Under some circumstances, the mental state implied by section 4-3 of the Code may possibly be so specific as to require instruction.” People v. Burton, 201 Ill. App. 3d 116, 122 (1990).
The court concluded the mental state implied in section 24-5(b), being knowingly and intentionally, required to sustain a charge of possession of a defaced firearm is specific enough to require instruction.
Ineffective Assistance of Counsel for Not Giving a Non IPI Jury Instruction
There is no IPI instruction for a section 24-5(b) offense, so either a modified instruction containing the elements of the offense, including knowledge, was required or IPI Criminal 4th No. 18.01, modified to reflect the firearm being altered or defaced, was required.
An instruction, modified to reflect the character of the firearm (i.e., defaced), would have properly informed the jury of the elements required to be proven beyond a reasonable doubt a violation of section 24-5(b) and should have been given.
Therefore, we find that trial counsel was ineffective for failing to request an instruction which would have properly informed the jury that defendant must knowingly possess the firearm with defaced identification marks to be found guilty of that offense.
Of course, Defendant was prejudiced by the jury not having this instruction. Although the offense of possession of a defaced weapon is not a strict liability offense, a jury could have, without being properly instructed on the correct mental state, concluded the offense was a strict liability offense.
There is no likelihood a jury, without proper instruction, would reach the conclusion that knowledge is the appropriate mental state for the offense of possession of a defaced firearm and that knowledge only applies to the possession element and to the defendant's knowledge of the defacement.
The court has determined that knowledge is the appropriate mental state. Yet, the statute reads like a strict liability offense and a jury would not know otherwise without being so instructed.
Jury Has To Be Told “Knowledge” Extends to the Defacement
The non-IPI instruction on possession of a defaced firearm given in this case failed to inform the jury of the elements of this possessory offense, specifically the applicable mental state of knowingly. Furthermore, even if the jury were to glean that “knowledge” is an implied element of the offense of possession of a defaced firearm, it is likely there would be a question as to what component of the offense the element of knowledge applied: the possession or the defacement or both.
This is especially true in this case, where defendant's knowledge of the firearm in the trunk was clearly an issue critical to the charge of possession of a defaced firearm given defendant's denial of its presence and his denial of making any incriminating statements to the police officers.
The court concluded that defendant was prejudiced by counsel's failure to request an instruction that correctly set forth the required elements of the offense. In order for the jury to determine whether defendant knowingly possessed the defaced firearm, the jury was required to be properly instructed.