SECOND DIVISION June 26, 2007
No. 1-05-2913
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) HENRY BAILEY, ) Honorable ) William G. Lacy, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Following a bench trial, the defendant, Henry Bailey, was
convicted of possession of a controlled substance with intent to
deliver. He raises several issues, most prominently the
contention that his lawyer’s cross-examination of the State’s
primary witness produced persuasive evidence of his intent to
deliver.
Defendant contends: (1) the State failed to prove him guilty
beyond a reasonable doubt of possession of a controlled substance
with intent to deliver; (2) his defense counsel provided
ineffective assistance where counsel elicited inculpatory
evidence on cross-examination; (3) the court abused its
discretion in sentencing him to 12 years in prison; (4) the trial
court erred in imposing a $20 penalty for the Violent Crime
Victims Assistance Fund; (5) he is entitled to a $150 credit 1-05-2913
against his mandatory drug assessment for the time he spent in
custody; and (6) the statute mandating a $5 fee for deposit in
the Spinal Cord Injury Paralysis Cure Research Trust Fund is
unconstitutional.
Because we agree that defendant’s lawyer provided
ineffective assistance that prejudiced the defendant, we reverse
his conviction and remand this cause for a new trial.
FACTS
Since prejudice to the defendant is an issue raised by his
ineffective assistance claim, we will set out the testimony in
some detail.
On February 26, 2005, at 10 a.m., Chicago police officer
Fron was conducting surveillance in the vicinity of 4449 West
Jackson Street. It was daylight. He was using binoculars from
an elevated position. He saw the defendant pacing back and forth
in an alley approximately 30 to 35 feet away. An unknown person
was standing on the corner of Gladys and Kilbourn, about 50 feet
from the alley. The unknown person on the corner was yelling the
word "Rocks" at passing cars. When cars pulled up, he would
speak with the occupants and direct the cars to the alley where
defendant was standing.
Fron lost sight of the cars for about 10 to 15 seconds
before they pulled into the alley. When the cars pulled up next
to the defendant, the defendant spoke to the occupants. One of
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the occupants would hand defendant what appeared to be United
States currency. The defendant then reached in his jacket pocket
and pulled out a 3/4 inch by 3/4 inch white item. He handed the
item to the person who gave him the money. Officer Fron believed
he had witnessed narcotics transactions. After the third such
transaction, he called his partner, Officer Purvis, and
instructed him to approach his surveillance point on foot so they
could detain the defendant.
Officer Fron switched to another position at ground level.
He could see the defendant, who was about 30 to 40 feet away. He
observed a fourth transaction similar to the first three. Fron
lost sight of the defendant for approximately 30 seconds. The
defendant reappeared and walked west to the mouth of the alley.
Officer Purvis approached. The officers ran towards the
defendant. The defendant turned, looked in the officers’
direction, and began running north on Kilbourn. They chased the
defendant for about a minute. They did not lose sight of the
defendant. The defendant cut into a vacant lot at 4448 West
Adams. He reached into his jacket pocket, pulled out an item,
and threw it in front of him. He dropped to the ground.
Officer Fron handcuffed the defendant and retrieved the
item. It was a ziplock baggie containing a substance he
suspected was crack cocaine. The officers advised the defendant
of his Miranda rights and transported him to the police station.
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Officer Fron gave the ziplock bag to Officer Purvis, who
inventoried the item in his presence. During a custodial search
of the defendant, Fron recovered $63 from under the arch of
defendant’s foot between two layers of socks.
On cross-examination, defense counsel asked Fron if he ever
saw the defendant speak with the unknown person on the corner.
Fron said he saw the unknown person speak to the defendant and
accept money from the defendant. Defense counsel continued
questioning Fron about the interaction between the defendant and
the unknown person. Fron said, "I’m not sure if it was between
transaction two or three, but I listed in there throughout the
surveillance, I think he came there twice and accepted money from
[defendant]." Fron said he wrote in the vice case report,
"periodically the subject on the corner would walk to where the
offender was and accept U.S.C. from the offender."
Fron could not describe any of the vehicles or their
passengers. He did not recall what time each transaction
occurred, although they took place from 10 a.m. to 10:35 a.m.
The parties stipulated that a forensic chemist from the
Illinois State Police Crime Lab would testify she tested the
substance in the ziplock bag. The contents weighed .1 gram and
tested positive for the presence of cocaine.
The defendant testified he was in the alley doing janitorial
work for a man named Bruce Neville. He denied dealing drugs or
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having drugs in his possession. When he saw the police, he ran
because Officer Fron was constantly terrorizing him. Officer
Fron had used him as a snitch to inform the police about other
people in the neighborhood. The defendant said he did not drop
anything. After he fell to the ground, the officers did a full
body search. No drugs were found. At the station, the officers
found $50 wrapped up with a prescription for his grandmother’s
medication.
The parties stipulated to the defendant’s seven prior felony
convictions for possession of a controlled substance and one
conviction for possession of a controlled substance with intent
to deliver.
The trial judge found Officer Fron’s testimony credible and
unimpeached in any significant way. He found defendant’s
testimony contradictory and incredible. The judge noted the
evidence that an unknown person was standing on the corner
yelling, "Rocks." The cars would pull up, the people would talk
to the unknown person, then immediately go to where defendant was
standing in the alley. The judge said:
"Then there is testimony, and it is
unimpeached testimony, even bolstered by the
introduction that it is placed in the police
reports that this individual who was on the
corner twice on two occasions went to the
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defendant, Mr. Bailey, and accepted United
States currency from Mr. Bailey."
The judge also noted the evidence that defendant ran from the
scene after he saw the police. The judge found defendant guilty
of possession of a controlled substance with intent to deliver.
At the sentencing hearing, the State introduced evidence of
defendant’s 17 prior felony convictions beginning in 1981. The
defendant was found to be Class X-eligible. In mitigation,
defense counsel told the court the defendant aspires to get his
GED and become a youth counselor. Defendant’s mother and uncle
testified defendant is a good-hearted person who helps his mother
around the house. His uncle said he was going to try to get
defendant into a treatment program. The defendant’s father is
deceased. The defendant has a good relationship with his 23-
year-old daughter. The court, citing the defendant’s
"horrendous" criminal background, sentenced the defendant to 12
years in the Illinois Department of Corrections.
DECISION
I. Reasonable Doubt
Where a defendant challenges the sufficiency of the evidence
supporting his conviction, the relevant inquiry is whether, after
viewing all the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. People v.
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Campbell, 146 Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). We will
not reverse a conviction on appeal "unless the evidence is so
unreasonable, improbable, or unsatisfactory as to justify a
reasonable doubt of the defendant’s guilt." People v. Smith, 288
Ill. App. 3d 820, 823, 681 N.E.2d 80 (1997).
To convict the defendant of unlawful possession of a
controlled substance with the intent to deliver, the State was
required to prove: defendant had knowledge of the presence of the
narcotics, the controlled substance was in the immediate
possession or control of the defendant, and the defendant
intended to deliver the controlled substance. People v. Burks,
343 Ill. App. 3d 765, 768, 799 N.E.2d 745 (2003); see 720 ILCS
570/401 (West 2002). The elements may be proved by
circumstantial evidence. People v. Moore, 365 Ill. App. 3d 53,
58, 846 N.E.2d 829 (2006).
The defendant challenges the evidence supporting the third
element, the defendant’s intent to deliver. Whether the State
proves intent to deliver in a given case "involves the
examination of the nature and quantity of circumstantial evidence
necessary to support an inference of intent to deliver." People
v. Robinson, 167 Ill. 2d 397, 408, 657 N.E.2d 1020 (1995).
Because direct evidence of intent to deliver is rare, the
defendant’s intent usually must be proved through circumstantial
evidence. Robinson, 167 Ill. 2d at 407.
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Factors that may be probative of intent to deliver include:
whether the quantity of controlled substance in defendant’s
possession is too large to be viewed as being for personal
consumption; the high purity of the confiscated drugs; the
possession of weapons; the possession of large amounts of cash;
the possession of police scanners, beepers, or cellular
telephones; the possession of drug paraphernalia; and the manner
in which the substance is packaged. Robinson, 167 Ill. 2d at
408. The list of Robinson factors is not exhaustive; other
factors may provide evidence of an intent to deliver. People v.
Bush, 214 Ill. 2d 318, 327-28, 827 N.E.2d 455 (2005).
The defendant contends the State failed to prove an intent
to deliver because none of the Robinson factors is present in
this case. The very small amount of drugs found on the
defendant, .1 gram of cocaine, could easily be viewed as being
for personal consumption. There was no evidence about the purity
of the drugs, and no weapons, beepers, cell phones, or drug
paraphernalia were found on the defendant. Only $63 in cash was
retrieved from the defendant’s sock. There was no testimony that
police saw the defendant take off his shoe and sock or put money
in his sock. There was nothing about the packaging that would
support an intent to deliver, given the fact that only one
ziplock bag was found.
As the court stated in Robinson, however, the factors listed
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are merely examples of factors considered by Illinois courts as
probative of an intent to deliver. Robinson, 167 Ill. 2d at 408.
"In light of the numerous types of controlled substances and the
infinite number of potential factual scenarios in these cases,
there is no hard and fast rule to be applied in every case."
Robinson, 167 Ill. 2d at 414.
A reviewing court must allow all reasonable inferences from
the record in favor of the prosecution. Bush, 214 Ill. 2d at
326. Although the evidence was far from overwhelming, we believe
a rational trier of fact could have inferred from the evidence
that defendant had an intent to deliver the drugs found in the
ziplock bag. We find the evidence was sufficient to convict the
defendant beyond a reasonable doubt of possession of a controlled
substance with intent to deliver.
II. Ineffective Assistance
The defendant contends his counsel was ineffective for
eliciting the evidence from Officer Fron that the unknown person
on the corner approached him and received money from him
throughout the transactions. The State did not elicit this
evidence during its direct examination.
To establish a claim of ineffective assistance of counsel, a
defendant must demonstrate that his counsel’s representation was
deficient, and he was prejudiced by the deficiency. Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
9 1-05-2913
(1984). Both prongs of the Strickland test must be satisfied to
establish an ineffective assistance of counsel claim. People v.
Albanese, 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246 (1984).
Counsel’s performance is deficient if it fails to satisfy an
objective standard of reasonableness. Strickland, 466 U.S. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must
overcome a strong presumption that the challenged action or
inaction was the product of trial strategy. People v. Evans, 186
Ill. 2d 83, 93, 708 N.E.2d 1158 (1999). A defendant is
prejudiced if there is a reasonable probability that the outcome
of the trial would have been different, or the result of the
proceeding was unreliable or fundamentally unfair. Strickland,
466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; People
v. Evans, 209 Ill. 2d 194, 220, 808 N.E.2d 939 (2004).
This court has held a defense attorney who elicits damaging
testimony that proves an element of the State’s case may be found
to have provided ineffective assistance. In People v. Orta, 361
Ill. App. 3d 342, 836 N.E.2d 811 (2005), defense counsel brought
out damaging and inadmissible evidence through cross-examination,
evidence not offered by the State. Specifically, defense counsel
elicited testimony that police officers recovered from an
apartment cellular phone bills with defendant’s name on them,
articles of male clothing, and pre-recorded funds from a prior
drug sale. Orta, 361 Ill. App. 3d at 346. We said the most
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damaging evidence was the pre-recorded funds. Orta, 361 Ill.
App. 3d at 347. The trial court tried to discourage counsel from
presenting the evidence, and the State objected to the evidence
as irrelevant. Undeterred, defense counsel persisted in asking
about the prerecorded bills during cross-examination of police
officers, referring to them again during final argument. The
evidence prejudiced the defense case with no legitimate tactical
purpose. Orta, 361 Ill. App. 3d at 347. In addition, the trial
court mentioned the evidence in its finding of intent to deliver.
We held the evidence was sufficiently damaging to satisfy both
Strickland prongs. Orta, 361 Ill. App. 3d at 350.
See also People v. Jackson, 318 Ill. App. 3d 321, 328, 741
N.E.2d 1026 (2000) ("For defense counsel to elicit testimony
which proves a critical element of the State’s case where the
State has not done so upsets the balance between defense and
prosecution so that defendant’s trial is rendered unfair.")
Here, defense counsel asked Officer Fron if he saw the
defendant speak with the unknown person on the corner. When Fron
responded that he saw the defendant speak with the unknown person
and saw the defendant give money to the man, defense counsel did
not move to strike the nonresponsive answer. Instead, she
continued questioning the witness, digging the hole deeper,
eliciting damaging testimony not presented as part of the State’s
case. We cannot find a valid trial strategy in defense counsel’s
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pursuit of this line of questioning.
The State contends defense counsel was attempting to impeach
the witness by showing the officer had not included certain facts
in the police report, such as whether he saw defendant speak to
the unknown corner person. This could have been accomplished
without allowing the witness to testify three times that he saw
the defendant tender money to the corner person. Fron also was
allowed to testify to the contents of the vice case report where
he reported seeing the unknown corner person "periodically"
approach the defendant and accept money from the defendant.
Apparently, defense counsel did not know what was in the vice
case report. Either that, or she gave it no thought. The
defense attorney’s continued questioning of the witness about the
evidence, coupled with the failure to move to strike the
nonresponsive answer, and the presumed lack of awareness of the
contents of the vice case report, was an error satisfying the
first prong of the Strickland test.
We believe the defendant also satisfies the second prong
because he was prejudiced by the admission of the evidence. The
testimony was a key piece of evidence. It connected the
defendant to the man on the corner yelling, "Rocks." It also
explained why no money was found in defendant’s pockets, and the
only money found on the defendant was $63 between two layers of
socks. The trial judge clearly relied on the evidence in finding
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defendant guilty. He said so. The police did not arrest the
unknown man on the corner, nor did they arrest any of the
passengers in the cars. There was no testimony describing any of
the cars or the passengers. As we have stated, none of the
factors usually associated with an intent to deliver, i.e., the
amount of the drugs, paraphernalia, or packaging, was present.
We find defense counsel’s elicitation of this evidence was so
damaging as to render defendant’s trial unfair. See Jackson, 318
Ill. App. 3d at 328.
Because both prongs of the Strickland test were satisfied,
we reverse the defendant’s conviction and remand for a new trial.
Given our decision to reverse and remand the defendant’s
conviction, we see no need to discuss the sentencing issues he
has presented.
CONCLUSION
We find defense counsel was ineffective in eliciting
evidence that proved an important part of the State’s case. We
reverse and remand for a new trial.
Reversed and remanded.
HALL, J., concurs.
JUSTICE HOFFMAN, dissenting:
The majority concludes that the defendant received
ineffective assistance of counsel because his attorney elicited
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testimony on cross-examination of Officer Fron that was damaging
to the defendant's interests and which had not been presented as
part of the State's case. The majority also finds that the
defendant was prejudiced by the actions of his attorney because
the trial judge relied upon the cross-examination testimony of
Officer Fron in finding the defendant guilty. I dissent because
I believe that the evidence against the defendant was
overwhelming and that there is no reasonable probability that the
outcome of the trial would have been different if the defendant's
attorney had never elicited the damaging testimony from Officer
Fron.
Clearly, the defense attorney rendered deficient
representation when her cross-examination of Officer Fron
elicited testimony that he witnessed the unknown person, who was
standing on the corner and yelling "rocks" at passing vehicles,
speak to the defendant and accept money from him on several
occasions. That evidence was never brought out by the State, and
it connected the defendant with the unknown individual. It is
also true, as the majority notes, that the trial judge relied
upon that evidence in finding the defendant guilty. However, the
trial judge also found the defendant's testimony "wholly
incredible and hardly merit of commenting." The judge observed
that the defendant contradicted himself and that his testimony
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made no sense. Specifically, the trial judge stated:
"It doesn't seem to make sense that he [the defendant]
is telling this Court that he continuously helps
Officer Fron by providing him with information and
being a snitch for him, as he put it, and that this
officer is going to concoct this elaborate scenario in
order to put a case on him."
In contrast, the judge found that Officer Fron testified in a
"credible manner" and that he was "not impeached in any
significant way."
If one discounts the "incredible" story that the defendant
related, we are left only with the "credible" testimony of
Officer Fron. The majority states that the evidence against the
defendant was "far from overwhelming." I disagree.
On direct examination, Officer Fron testified that he
observed the unknown individual, who was yelling "rocks", direct
vehicles into the alley where the defendant was standing. He
observed the defendant engage in 4 transactions during which the
occupants of the vehicles gave the defendant money in exchange
for a three-quarter square-inch white article which the defendant
took from his jacket pocket. Officer Fron also observed the
defendant remove a similar object from his jacket pocket and
throw it on the ground as he was fleeing to avoid apprehension.
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That object tested positive for the presence of cocaine. Officer
Fron was never impeached in any significant manner.
The majority correctly notes that the trial court referenced
the damaging cross-examination testimony of Officer Fron, but he
did so only after finding Officer Fron's testimony credible and
after finding that the defendant's testimony was contradictory
and made no sense. Further, it was not the cross-examination of
Officer Fron that connected the defendant to the unknown
individual on the corner; it was his direct examination that
initially established their connection. On direct examination,
the officer testified that the unknown individual directed
vehicles into the alley where the defendant was positioned. The
cross-examination may have offered additional evidence linking
the defendant to the unknown individual, but it certainly was not
the only evidence that connected the two.
In order to establish a claim of ineffective assistance of
counsel, a defendant must demonstrate that his attorney's
performance was deficient, that is to say that counsel made
errors so serious that she was not functioning as
constitutionally guaranteed, and that counsel's deficient
performance prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To
establish prejudice, a "defendant must prove that there is a
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reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158 (1999).
Both prongs of the Strickland test must be satisfied in order to
establish ineffective assistance of counsel. Evans, 186 Ill. 2d
at 94.
Implicit in the majority's opinion is the notion that there
is a reasonable probability that, but for defense counsel's
having elicited the damaging testimony on cross-examination of
Officer Fron, the result of the defendant's trial would have been
different. I disagree. Officer Fron's cross-examination
testimony was not the basis for the trial court having found the
defendant's version of events incredible. Also, though that
testimony may have "bolstered" the officer's evidence on direct
examination, it certainly was not the corner stone of the trial
court's finding that Office Fron was both credible and
unimpeached. Based on the record in this case and the full text
of the trial judges's comments in finding the defendant guilty, I
do not believe that there is any reasonable probability that the
outcome of the defendant's trial would have been any different
had defense counsel never elicited the damaging testimony on
cross-examination of Officer Fron. Simply put, I do not believe
that the defendant has satisfied the second prong of the
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Strickland test.
For these reasons, I would affirm the defendant's conviction
and sentence to 12 years' imprisonment. However, in accordance
with the State's concession, I would vacate the $20 fine assessed
against the defendant for the Violent Crime Victims Assistance
Fund and grant him a $150 credit against his mandatory drug
assessment.