{ "id": 2491474, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN JASTRZEMSKI, Defendant-Appellant", "name_abbreviation": "People v. Jastrzemski", "decision_date": "1990-04-17", "docket_number": "No. 1-88-3103", "first_page": "1037", "last_page": "1041", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 1037" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "429 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 702", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3078299 ], "weight": 2, "pin_cites": [ { "page": "713" }, { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0702-01" ] }, { "cite": "447 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 818", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625027 ], "pin_cites": [ { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0818-01" ] }, { "cite": "529 N.E.2d 349", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 10920407 ], "opinion_index": 0, "case_paths": [ "/ne2d/529/0349-01" ] }, { "cite": "174 Ill. App. 3d 369", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514639 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0369-01" ] }, { "cite": "516 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547704 ], "weight": 2, "pin_cites": [ { "page": "738-39" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0730-01" ] }, { "cite": "527 N.E.2d 632", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 1030", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5079136 ], "weight": 3, "pin_cites": [ { "page": "1033" }, { "page": "1034" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/1030-01" ] }, { "cite": "361 N.E.2d 81", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 511", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2976071 ], "weight": 2, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0511-01" ] } ], "analysis": { "cardinality": 474, "char_count": 9034, "ocr_confidence": 0.752, "pagerank": { "raw": 9.792650855806949e-08, "percentile": 0.5325401210649733 }, "sha256": "f0b9ec8cb38872e0e1106cc3b51605534f7b59e95948a1e6bac8c4e3e22196c9", "simhash": "1:969d3edcf64aa8a3", "word_count": 1535 }, "last_updated": "2023-07-14T18:37:27.698771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN JASTRZEMSKI, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE DiVITO\ndelivered the opinion of the court:\nFollowing a bench trial, defendant Martin Jastrzemski was convicted of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 \u2014 1.1) and sentenced to 30 months\u2019 probation. He now appeals, raising as issues (1) whether the gun found under the hood of his car was \u201con or about his person,\u201d as required under the statute; and (2) whether his out-of-court statement that the car belonged to him was properly admitted at trial despite the State\u2019s failure to disclose the statement during pretrial discovery. We affirm.\nOn June 9, 1988, police officer Roy Hupke pulled over a car with a broken brake light. Defendant had been driving the car, and one person was seated next to him in the passenger\u2019s seat. A check of defendant\u2019s driver\u2019s license revealed.that defendant was driving on a suspended license. Hupke then arrested defendant and placed him in the back of the squad car. Hupke searched the car and found a bottle containing codeine capsules on the passenger-side floorboard of the front seat. Hupke then searched the engine compartment and found a loaded revolver wrapped in a shirt and scarf and placed between the battery and the passenger-side fender. While transporting defendant to the police station, Hupke asked defendant whether the car belonged to him, and defendant answered that it did.\nAt trial, it was stipulated that defendant had previously pleaded guilty to the felony offense of theft and that judgment was entered on that plea. The trial court found defendant guilty of unlawful use of a weapon by a felon and sentenced him to 30 months\u2019 probation.\nI\nDefendant maintains first that because the gun was found in the engine compartment of the car it was not \u201con or about his person\u201d as required under section 24 \u2014 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 24\u20141.1). He relies principally on People v. Cook (1977), 46 Ill. App. 3d 511, 361 N.E.2d 81, for the proposition that a gun under the hood of a car is not \u201cimmediately accessible.\u201d A gun that is not \u201cimmediately accessible,\u201d defendant argues, is also not \u201con or about [defendant\u2019s] person.\u201d\nAlthough we have found no cases directly on point, we reject defendant\u2019s argument generally, and his reliance on People v. Cook, in particular. In People v. Cook, a gun was found underneath the hood of the defendant\u2019s car and the defendant was subsequently convicted of unlawful use of a weapon by a felon. The appellate court reversed the conviction, reasoning that the gun was not \u201con or about [the defendant\u2019s] person\u201d because it was not \u201cimmediately accessible.\u201d (Cook, 46 Ill. App. 3d at 513.) Because the court relied on cases construing section 24 \u2014 2(b)(4) (Ill. Rev. Stat. 1987, ch. 38, par. 24 \u2014 2(b)(4)), which excludes weapons \u201cnot immediately accessible\u201d from the scope of sections 24 \u2014 1(a)(4) and 24 \u2014 1(a)(10) and is not at issue in this case, we decline to follow the court\u2019s rationale.\nIn particular, we do not believe that a weapon must be \u201cimmediately accessible\u201d within the meaning of section 24 \u2014 2(b)(4) to sustain a conviction under section 24 \u2014 1.1. Instead, we believe that a weapon is \u201con or about [the defendant\u2019s] person\u201d for purposes of section 24 \u2014 1.1, where it was found underneath the hood of a car driven by the defendant and, as in this ease, there is also evidence that defendant owned the car and knew where the gun was hidden. This conclusion is supported by People v. Clodfelder (1988), 172 Ill. App. 3d 1030, 527 N.E.2d 632. In that case, a rifle was found near the back of a station wagon driven by the defendant. As in this case, the defendant was convicted under section 24 \u2014 1.1. The defendant admitted that he owned the station wagon and knew where the rifle had been placed. On appeal, the defendant argued that the rifle was not \u201con or about his person\u201d because he would have had to lean over his seat to reach the weapon. The court disagreed, specifically rejecting any contention that a weapon is not \u201con or about [the defendant\u2019s] person,\u201d merely because the defendant could not reach the weapon without changing positions. (People v. Clodfelder, 172 Ill. App. 3d at 1033.) The court stated: \u201cHere, defendant was *** the owner of the gun. He knew where it was placed. We hold the evidence to be sufficient to support a determination [that] he constructively possessed the gun \u2018about his person.\u2019 \u201d People v. Clodfelder, 172 Ill. App. 3d at 1034. See also People v. Rangel (1987), 163 Ill. App. 3d 730, 516 N.E.2d 936 (recovery of a gun from the defendant\u2019s car rather than his person did not exclude him from the scope of section 24 \u2014 1.1).\nWe do not believe this case is distinguishable from People v. Clodfelder on the ground that the gun was hidden under the hood near the front of the car. Although defendant would have had to stop the car and open the hood to get the gun, plainly the defendant in People v. Clodfelder would also have had to stop driving and either exit the car or climb over the seat to retrieve his rifle. Moreover, as in People v. Clodfelder, there was evidence that defendant owned the car and knew where the gun was hidden. Finally, the result we reach in this case is plainly consistent with the legislature\u2019s intent in enacting section 24 \u2014 1.1, namely, to protect public safety by prohibiting possession of weapons by felons. See People v. Rangel, 163 Ill. App. 3d at 738-39.\nII\nDefendant maintains next that he is entitled to a new trial because his out-of-court statement that he owned the car was admitted into evidence even though the State failed to comply with Supreme Court Rule 412(a)(ii) (107 Ill. 2d R. 412(a)(ii)). We disagree.\nRule 412(a)(ii) requires the State, upon written motion of defense counsel, to disclose any written or recorded statements and the substance of any oral statements made by the defendant. The rule\u2019s purpose is to protect the defendant against surprise, unfairness, and inadequate preparation (People v. Carter (1988), 174 Ill. App. 3d 369, 529 N.E.2d 349) and to give the defense the opportunity to investigate the circumstances surrounding the statement. (People v. Winfield (1983), 113 Ill. App. 3d 818, 836, 447 N.E.2d 1029.) Where there is no showing of surprise or prejudice, the trial court has discretion in allowing introduction of evidence not disclosed. (People v. Ferguson (1981), 102 Ill. App. 3d 702, 713, 429 N.E.2d 1321.) If a statement not disclosed is introduced and the defendant fails to request a continuance to investigate the statement and instead proceeds with trial, he has waived the issue for purposes of review. People v. Ferguson, 102 Ill. App. 3d at 713.\nIn this case, the record shows that defendant requested disclosure of oral statements and that the State at most gave defendant access to its files. At trial, the State introduced defendant\u2019s out-of-court statement that he owned the car and defendant objected to this evidence on the ground that the State failed to comply with his discovery requests. Defendant never requested a continuance to investigate the statement, however, and did not even attempt to impeach Hupke regarding the statement. Because defendant proceeded with the trial without requesting a continuance or otherwise developing the record, we conclude that he has waived this issue for purposes of review.\nWe also conclude that there is an inadequate record upon which to decide this issue under the plain error rule. (107 Ill. 2d R. 615(a).) All we can conclude from the record is that defendant\u2019s inculpatory admission might not have been disclosed, and that if defendant had seen Hupke\u2019s report, he did not find it useful for impeachment purposes. We certainly cannot conclude that defendant did not own the car and, indeed, that is not defendant\u2019s position on this appeal. Also, it is entirely unclear whether the State sufficiently complied with Rule 412 by providing defendant with Hupke\u2019s police report or other document containing the admission. Finally, although we would be less inclined to agree with the trial court that the gun was \u201con or about [the defendant\u2019s] person\u201d absent proof that defendant owned the car, even if his admission had not been allowed into evidence, there was other evidence adduced at trial that defendant was in exclusive control of the car. Thus, even if we were to reach the merits of this issue, we do not believe defendant was sufficiently prejudiced to warrant a new trial.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nHARTMAN and SCARIANO, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE DiVITO" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN JASTRZEMSKI, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201488\u20143103\nOpinion filed April 17, 1990.\nRandolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1037-01", "first_page_order": 1059, "last_page_order": 1063 }