People v. Bonslater

633 N.E.2d 830, 261 Ill. App. 3d 432, 199 Ill. Dec. 34
CourtAppellate Court of Illinois
DecidedMay 2, 1994
Docket1-92-1156
StatusPublished
Cited by4 cases

This text of 633 N.E.2d 830 (People v. Bonslater) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bonslater, 633 N.E.2d 830, 261 Ill. App. 3d 432, 199 Ill. Dec. 34 (Ill. Ct. App. 1994).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial, defendant Robert Bonslater was convicted of possession with the intent to deliver more than 15 but less than 100 grams of a controlled substance containing cocaine. The trial judge sentenced defendant to six years’ imprisonment in the Illinois Department of Corrections. On appeal, defendant contends: (1) that the State failed to prove beyond a reasonable doubt that he possessed a controlled substance with the intent to deliver where the officer’s version of the surrounding circumstances was so improbable and unsatisfactory that no rational trier of fact could have convicted him; and (2) that he was denied the effective assistance of counsel where his attorney failed to move to suppress evidence, failed to make an opening statement, failed to cross-examine the State’s.only witness, failed to move for a directed finding, failed to present any defense witnesses and made a closing argument which was refuted by the court reporter’s notes and which questions counsel’s knowledge of the law. For the following reasons, we reverse and remand for a new trial.

Prior to trial, defense counsel did not present any motions to suppress. At the start of trial, both the prosecutor and defense counsel waived opening statements. The prosecutor then called the arresting officer, Akki Mares, as the State’s only witness. Mares testified that on the night of February 27, 1987, he and his partner, Officer Malchick, were working with an undercover police tactical unit. Mares stated that at approximately 8:15 p.m., they were one of several tactical teams chasing an armed robbery suspect near Campbell and Milwaukee Avenues. According to Mares, he and his partner had proceeded down Fullerton and were turning southbound onto Campbell when he observed defendant exiting from a stairwell at 2339 North Campbell. Mares testified that defendant "looked in my direction!,] dropped a clear plastic bag and raced up the stairs.” Mares asserted that he then "ran out of the car, *** picked up the bag immediately and chased [defendant] into the hallway of the building.” Mares stated that the bag contained a "rocky substance” he believed to be cocaine. He testified that after he arrested defendant, he recovered from defendant’s person several bags of a substance which appeared to be cocaine, several bags of a substance which appeared to be marijuana, $1,968, and a portable telephone.

Defense counsel did not cross-examine Officer Mares.

The parties then stipulated that if the police crime lab chemists were called to testify they would state that the substances recovered from defendant consisted of 70.76 grams of cocaine and 7.55 grams of marijuana.

The judge accepted the stipulation and the State rested. The defense also rested without putting on any witnesses.

The State waived its closing argument, but reserved rebuttal. Defense counsel then made his closing argument. Defense counsel first asserted that the State failed to prove defendant guilty beyond a reasonable doubt because Mares "failed to identify defendant in open court.” A portion of Mares’ testimony was then read back to the court by the reporter. Specifically, the relevant portion of Mares’ direct examination proceeded as follows:

"STATE’S ATTORNEY: And you responded northbound on Milwaukee what, if anything, did you do and observe?
OFFICER MARES: We came southbound from Fullerton onto Campbell, and at that time I observed Mr. Bonslater who’s seated at the defense table coming from 2339 North Campbell from the stairwell.
STATE’S ATTORNEY: What, if anything, is that defendant wearing?
OFFICER MARES: He looked in your direction.
STATE’S ATTORNEY: What, if anything, is that defendant wearing today in court?
OFFICER MARES: Wearing the tan shirt with the dark jacket.
STATE’S ATTORNEY: Let the record reflect the in-court identification of the defendant.
THE COURT: Record will so reflect.”

Defense counsel then asserted that Mares never "pointed to the defendant in court” and that since there was "[n]o indication of pointing on the record *** there is no in-court identification of this defendant.” Defense counsel argued that for an in-court identification to be sufficient "[h]e must point [defendant] out for the record and state what he is wearing. We do not have that.” The trial judge responded, "He did state that.” Defense counsel persisted that Mares had not sufficiently identified defendant. Finally, the trial judge explicitly stated, "The Court finds that the record does support an in-court identification of the defendant. There was no other person in the courtroom at the time of the identification.” The following colloquy then occurred between defense counsel and an incredulous trial judge:

"DEFENSE COUNSEL: Your Honor, I at this time would object to your testifying in this case also.
THE COURT: These are findings of fact, Counsel.
DEFENSE COUNSEL: I understand that your Honor, I must make my record, do you understand that your Honor.
THE COURT: These are findings of fact.”

After repeating this argument for the record, defense counsel then asserted that since Mares did not witness defendant delivering the narcotics to another person, the court could not find defendant guilty of possession with the intent to deliver. He argued that the court could only "find [defendant] guilty of straight possession.”

The prosecutor argued in rebuttal that the large amount of drugs in defendant’s possession indicated that it was clearly not for "personal consumption” and that. defendant’s possession of $1,968 and a portable telephone was further indication of the intent to deliver the narcotics.

The trial judge then found defendant guilty beyond a reasonable doubt of possession of a controlled substance with the intent to deliver. At the sentencing hearing, the judge sentenced defendant to the minimum term of six years’ imprisonment. Defendant filed this timely appeal.

Defendant’s first contention on appeal is that Officer Mares’ version of the circumstances surrounding the arrest was so "improbable and unsatisfactory” that no rational trier of fact could have convicted him. Therefore, defendant asserts that the State failed to prove him guilty beyond a reasonable doubt of possession of a controlled substance with the intent to deliver. The State, on the other hand, argues that Mares’ testimony was sufficient to support defendant’s conviction.

In a bench trial, the court is the trier of fact and it is the function of the trial judge who heard the evidence and observed the witnesses to weigh that evidence, determine the credibility of the witnesses, draw reasonable inferences therefrom, and resolve any conflicts in the evidence. (People v. Molstad (1984), 101 Ill.

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Bluebook (online)
633 N.E.2d 830, 261 Ill. App. 3d 432, 199 Ill. Dec. 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bonslater-illappct-1994.