People v. Stewart, 2018 IL App (3d) 160205 (November). Episode 560 (Duration 5:23)
You got to object when they try to admit the gun letter.
The State charged defendant with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C)) and aggravated assault (id. § 12-2(c)(2)).
Defendant fired a gun at his place of employment. He damaged a window of a house across the street from his factory.
Before the conclusion of the State’s case-in-chief, the State introduced into evidence a certification letter from the Illinois State Police, indicating that the defendant did not possess a valid FOID card. The court asked defense counsel if he had “[a]ny objection.”
Counsel responded “I think it’s self-authenticating.”
The court replied “[i]t is and you know that” and admitted the certification letter into evidence.
The certification letter stated:
“Based on the following name and date of birth information provided by the La Salle County State’s Attorney’s Office, I, Public Service Administrator Beth Kiel, Firearms Services Bureau (FSB), Illinois State Police, do hereby certify, after a careful search of the FSB files, the information below to be true and accurate for Brandon D. Stewart whose date of birth is February 28, 1986, has never been issued a [FOID] Card as of February 19, 2016.”
The bottom of the certification letter bears Kiel’s signature and notarization.
It’s Not Self-Authenticating
In Diggins, over defendant’s objection, the State introduced a letter that attested Shawan Diggins did not possess a valid FOID card. Diggins, 2016 IL App (1st) 142088, ¶¶ 6-7.
The trial court overruled counsel’s objection, stating “ ‘[i]f 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.’ ” Id. ¶ 7.
On appeal, Diggins argued that the admission of the letter violated his constitutional right to confrontation. Id. ¶ 11. The First District found that the introduction of the letter, over defense counsel’s objection, violated Diggins’s right to confront the witness, the author of the letter.
The jury returned verdicts of guilty on both charges.
After hearing the evidence and arguments on the sentencing alternatives and aggravating and mitigating factors, the court sentenced defendant to a total of 2 years’ imprisonment.
Defendant argues that the admission of the certification letter is reversible plain error because the error threatened to tip the scales of justice against him.
The parties’ arguments require that we determine whether this issue is reviewable under the plain-error doctrine or is the result of acquiescence. Additionally, underlying both the plain-error doctrine and acquiescence is the principle of “procedural default.” Acquiescence is a form of procedural default. The plain-error doctrine provides a narrow and limited exception to the general [rule of procedural default.
Acquiescence is not subject to the plain-error doctrine. This is because a party who acquiesces in proceeding in a given manner cannot show he was prejudiced by the proceeding.
In the instant case, the State introduced into evidence a certification letter that stated defendant did not possess a valid FOID card. The court then expressly asked defendant if he had any objection to the certification letter.
Defense counsel voiced no objection, and instead, responded “I think it’s self-authenticating.” Defense counsel’s statement is not a direct agreement to the introduction of the certification letter. However, the combination of defense counsel’s response and lack of objection establishes that defense counsel acquiesced to the admission of the certification letter. See, e.g., People v. Cox, 2017 IL App (1st) 151536 (September), ¶ 76 (defense counsel invited error by not objecting to the admission of a certification letter that stated defendant did not possess a FOID card).
This acquiescence, in turn, functioned as a waiver of defendant’s right to confront this witness by acquiescing to the admission of the certification letter.
Defense counsel’s acquiescence to the admission of the certification letter effectively waived defendant’s right to confront the witness and any associated claim of error. Therefore, defendant’s challenge is limited to a claim of ineffective assistance of counsel.
See Also People v. Cox
In Cox, 2017 IL App (1st) 151536, ¶ 1, the State had charged Jesse Cox with AUUW based on his failure to possess a FOID card. At trial, the State introduced a letter, similar to the instant case, documenting that Cox did not possess a FOID card.
The court asked defense counsel twice if she had any objection to the admission of the letter into evidence.
Twice, defense counsel responded in the negative.
On appeal, Cox argued that the court violated his constitutional right to confront the witness who signed the letter. The First District concluded “the defense invited the trial court to admit the certification [letter] by affirmatively responding to the trial court’s questions that it had no objection to its admission,” and therefore, the admission of the letter did not violate Cox’s right to confront the authoring witness.
The Cox court differentiated the facts in People v. Diggins, 2016 IL App (1st) 142088, the case that defendant relies on in this appeal, because defense counsel did not object to the introduction of the letter. Cox, 2017 IL App (1st) 151536, ¶ 82. Therefore, in Cox, the court found defense counsel “waived the opportunity for prior cross-examination by stating affirmatively that he had no objection to admitting the document.”
Defendant argues Cox was wrongly decided and Diggins dictates the outcome of this appeal.
Here, the instant case is more analogous to Cox because defense counsel did not object to the admission of the letter in this case, when directly asked by the court for an objection. In both the instant case and Cox, defense counsel’s response to the court’s question regarding an objection to the evidence constitutes waiver of defendant’s constitutional right to confront this witness.
Therefore, like Cox, defendant’s confrontation claim is not subject to review under the plain-error doctrine.
Not Ineffective Assistance Neither
In the instant case, the only way defense counsel’s decision not to object to the admission of the certification letter could be said to be the result of ineffective assistance is if defendant actually possessed a valid FOID card.
If defendant possessed a valid FOID card at the time of the offense, the certification letter introduced would be erroneous, and the State could not prove an essential element of the AUUW charge that was based on the theory that defendant did not possess a valid FOID card. See 720 ILCS 5/24 1.6(a)(3)(C).
The record is devoid of any indication that defendant actually possessed a valid FOID card at the time of the incident. Therefore, defense counsel’s performance was not deficient for failing to object.
Moreover, counsel’s inaction was consistent with his trial strategy that defendant did not shoot a gun. Accordingly, we conclude defense counsel’s decision not to object to the admission of the certification letter was not the result of ineffective assistance of counsel.