People v. Jones

2023 IL App (3d) 210351-U

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 210351-U

Order filed September 26, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 9th Judicial Circuit, ) Knox County, Illinois Plaintiff-Appellee, ) ) Appeal No. 3-21-0351 v. ) Circuit No. 20-CF-528 ) GAVIN P. JONES, ) Honorable ) Raymond A. Cavanaugh, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE PETERSON delivered the judgment of the court. Justices McDade and Albrecht concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Trial counsel provided ineffective assistance where he opened the door for the admission of otherwise inadmissible prejudicial evidence.

¶2 Defendant, Gavin P. Jones, appeals from his conviction for unlawful possession of

methamphetamine with intent to deliver. Defendant argues, inter alia, that he was deprived of

effective assistance where defense counsel opened the door to highly prejudicial video evidence.

We reverse in part, affirm in part, and remand for further proceedings. ¶3 I. BACKGROUND

¶4 On September 18, 2020, the State charged defendant with unlawful possession of

methamphetamine with intent to deliver (720 ILCS 646/55(a)(1), (a)(2)(B) (West 2020)) and

unlawful possession of methamphetamine (id. § 60(a), (b)(2)). The case proceeded to a jury trial

on May 17, 2021, along with an associated driving while license suspended charge (625 ILCS 5/6-

303 (West 2020)).

¶5 Officer Dan Williams of the Galesburg Police Department testified that on September 17,

2020, at approximately 2 p.m., he was parked in a lot on Water Street. He observed a yellow

Mustang driving on Water Street. Williams recognized the vehicle and indicated that he had run

the registration previously and knew the vehicle to be owned by defendant. Williams observed

defendant operating the vehicle. Williams was aware that defendant’s driver’s license was

suspended. He activated his lights, and defendant ultimately turned into a parking lot. While there,

Williams observed defendant lean across the passenger’s seat and throw an object out the window.

Williams approached defendant and asked for his license and registration. Defendant admitted to

Williams that his driver’s license was suspended. Williams placed defendant under arrest for the

traffic infraction and investigated the object that had been thrown from the vehicle.

¶6 Williams testified that he discovered a clear baggie with a substance inside. The contents

of the baggie were later tested and determined to be 8.4 grams of methamphetamine. Williams

searched defendant’s vehicle and discovered a cell phone, $56, and between 20 and 30 red plastic

baggies which “[they] call[ed] Apple bags.” Williams indicated that the Apple company makes

the 1 to 1½-inch bags. Williams testified that he had been a police officer for over 23 years. During

that time, he had attended “a lot” of trainings. As part of those trainings, Williams had “been

trained to see the items that are typically used *** in the delivery of controlled substances[.]”

2 Williams indicated that he had made well over 30 arrests for unlawful possession of a controlled

substance with intent to deliver. Based on his training, experience, and prior arrests, Williams

testified that the bags were used for selling drugs. Williams testified that he had never seen the

bags used for any legitimate purpose. A portion of the squad car video depicting the traffic stop

was admitted and published to the jury.

¶7 Detective Timothy Spitzer of the Galesburg Police Department testified that he and another

detective interviewed defendant on September 18, 2020, at defendant’s request. Spitzer indicated

that the interview had been video recorded. An excerpt of the video was admitted and published

to the jury. The video depicted defendant receiving his Miranda rights and his admission to

throwing “the dope” out of the car window.

¶8 On cross-examination, Spitzer indicated that he could not remember the exact length of the

entire video recorded interview but believed it to have taken “close to an hour.” When asked

whether their discussion had been confined to the events of September 17, 2020, Spitzer indicated

that it was not. Spitzer testified that he and defendant discussed other criminal activity that

defendant was offering to assist law enforcement with. Spitzer described defendant’s demeanor

during the interview as “varied” and indicated that defendant was concerned about the safety of

his family due to his involvement “in some dangerous criminal activity.” Defense counsel

questioned Spitzer about how they elicited the statements that were contained within the redacted

video, asking:

“Q. And the portion of the video that was just played, that entailed after

questioning by officers regarding that if officers were going to make any action

with the information he was giving, he was going to have to speak about what

occurred the day before; correct?

3 A. Not specific to that. We questioned him on both sides of the statement

that you’re seeing there.

Q. But it would be fair to say that you or [the other detective] indicated if

his information was going to be viewed as trustworthy, he would have to explain

also what happened the day before?

A. We explained that he needed to show us and other agencies involved that

he was trustworthy in the first place.

Q. And that would include at least talking about what happened the day

before?

A. It would help.”

¶9 At the conclusion of these questions, the State requested a sidebar. It informed the court

that defense counsel’s line of questioning had left “the jury with an inference that [it had] been

less than forthcoming in what’s going on, [it] purposely excerpted this just to focus on the Miranda

and his admission.” To remedy this, the State indicated that it was “left with no other choice” but

to play the interview in its entirety. Defense counsel responded that:

“[T]he State opened the door for this. They selectively chose portions of the video

relating only to his admissions and left out all of the rest of the interview including

that—as the officer testified—15 minutes from the Miranda warnings before this

admission is made. I think the jury has the right to know and the officer can testify

that—it wouldn’t be hearsay at this point since the State has opened the door to it

that he can testify to that.

The State has chosen not to play the whole video and they should be bound

by their choices to selectively pick for the jury. They could have only asked the

4 officer about the statements rather than playing the video and then I would have

had the burden to then present the entire one for *** the ability to have the entirety

of the video but that would still be at my discretion to do it.”

¶ 10 The court informed defense counsel his questioning did create an inference, and it was not

going to bar the State from introducing the video of defendant’s entire interview with detectives.

After hearing this, defense counsel objected to the admission of the full video on confrontation

clause grounds because the second detective in the video did not testify. This objection was

ultimately overruled. The court granted a recess for the State to decide how it wanted to proceed.

¶ 11 After the recess, the State informed the court that it did intend to play the entire video. It

indicated that it originally redacted the video in the interests of justice but now needed to play the

entire video “to rebut the inferences made in cross-examination that [it was] leaving things out

purposefully.” The court inquired as to whether the parties would stipulate that defendant had not

been threatened or coerced. Defense counsel indicated that he would stipulate that no threats had

been made but he did not feel that he could agree that the detectives’ statements to defendant were

not coercive. The trial resumed and defense counsel again objected to the admission of the full

video of the interview, citing a lack of foundation. The objection was overruled, and the entire

interview was admitted and published to the jury.

¶ 12 During the interview, defendant indicated that he wanted to talk to detectives about some

very dangerous individuals. Before he provided any information, detectives asked about the events

on September 17, 2020. Defendant admitted that he had been driving, that his license was

suspended, and to using “dope.” Defendant offered information to detectives in exchange for not

pursuing any drug charges against him. Detectives informed defendant that he would need to

discuss the events of September 17, 2020, to establish his trustworthiness, indicating that if he was

5 not truthful about those events then no one would believe any other information he provided.

Defendant responded that if he made admissions about September 17, 2020, the state’s attorney

could still refuse to help or work with him because of who he was and his prior criminal history.

Detectives acknowledged that possibility and indicated they were not “running a game on him”

and it “would be a hard sell, regardless.”

¶ 13 Defendant indicated that the individuals he possessed information about were going to kill

him. The detective asked, “Without saying any names, what are we talking about?” Defendant

responded that he was talking about “Mexicans” that are from “everywhere.” Defendant indicated

that the drugs he possessed on September 17, 2020, were from those individuals. He stated that he

believed the individuals to be a part of the cartels. They possessed large amounts of drugs which

defendant could either have delivered to him or pick up from them. Defendant became emotional

and expressed concern about the safety of his family. Defendant explained that he became involved

with them to make money but now owes $10,000. Defendant explained that when he sells the

drugs, he deals with various delivery people, but the drugs all come from one source. When asked

if he would provide information about these individuals to someone higher up, defendant began to

discuss the sentencing range for the charge, stating that he would be facing two to five years’

imprisonment on the drug charge. Detectives asked again about the events of the previous day, and

defendant admitted to driving on a suspended license and throwing the drugs out the car window.

Defendant again expressed concern for the safety of his family. He told detectives that he needed

to be released as soon as possible without any drug charges, otherwise he would just “eat the

charge.” If he did not, the cartel would kill him.

¶ 14 After the video was published to the jury, the State rested. Defense counsel renewed his

objection based on a confrontation clause violation then moved for a mistrial. Counsel also filed a

6 motion for directed finding on the unlawful possession of methamphetamine with intent to deliver

count. The State argued that evidence of defendant’s possession of the Apple bags and his

admission to dealing drugs were sufficient to support a denial of the motion. The court denied both

motions. In denying the motion for directed verdict, the court indicated that it was a close call but,

in the light most favorable to the State, a trier of fact could return a finding of guilty.

¶ 15 Defendant presented no evidence. During closing arguments, defense counsel argued that

defendant asked to speak with detectives to “get out of the life that *** he got sucked into” and

was repeatedly told he would receive no help without discussing the events of September 17, 2020.

Defense counsel highlighted defendant’s fear for his family’s safety and argued that defendant said

what he did “[b]ecause he knew that was the only way that he was going to get any sort of members

of law enforcement to potentially help him.” During deliberations, the jury sent three notes to the

court, two questioning the evidence provided regarding intent to deliver and one indicating that

they could not agree on a verdict for one of the charges. Eventually, the jury found defendant guilty

on all counts.

¶ 16 On July 9, 2021, defense counsel filed a motion for new trial alleging, in pertinent part,

that the court erred when it allowed opinion testimony from Williams when he had not been

tendered as an expert, allowed defendant’s entire video recorded interview into evidence without

the proper foundation, and denied defendant’s motion for mistrial following the admission of the

full video. The court denied defendant’s motion for new trial. After a sentencing hearing, the court

found that the two counts merged and sentenced defendant to 6½ years’ imprisonment for unlawful

possession of methamphetamine with intent to deliver. Defendant appeals.

¶ 17 II. ANALYSIS

7 ¶ 18 Defendant argues on appeal that he was provided ineffective assistance of counsel where

defense counsel, on cross-examination, initiated a line of questioning that opened the door for the

entirety of defendant’s video recorded interview to be published to the jury. Defendant asserts that

the contents of the video bolstered the State’s evidence of defendant’s intent to deliver

methamphetamine, prejudicing defendant. Defendant further argues that the court erred in

allowing expert testimony by a lay witness.

¶ 19 “Every defendant has a constitutional right to the effective assistance of counsel under the

sixth amendment to the United States Constitution and the Constitution of Illinois.” People v.

Domagala, 2013 IL 113688, ¶ 36. Claims of ineffective assistance of counsel are measured against

the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on a claim

of ineffective assistance, defendant must demonstrate that counsel’s performance was deficient,

and that the deficient performance prejudiced defendant. Id. To establish prejudice, a defendant

must demonstrate that there is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶ 20 “To establish deficiency, the defendant must overcome the strong presumption that the

challenged action *** might have been the product of sound trial strategy.” People v. Evans, 186

Ill. 2d 83, 93 (1999). “[A] reviewing court will be highly deferential to trial counsel on matters of

trial strategy, making every effort to evaluate counsel’s performance from his perspective at the

time, rather than through the lens of hindsight.” People v. Perry, 224 Ill. 2d 312, 344 (2007).

¶ 21 Here, defense counsel initiated a line of questioning during the cross-examination of

Spitzer that addressed parts of the interview not included in the redacted video that had been

admitted by the State which implied that the State had been less than forthright about the entire

8 interview and that possibly the detectives had coerced defendant into confessing to possessing the

baggie of methamphetamine on September 17, 2020. As a result, the State indicated that it would

need to play the entire video recording of defendant’s interview to cure the suggestion that the

State had purposely been “less than forthcoming” with the redacted version of the video.

¶ 22 Our review of the record demonstrates that counsel’s performance fell below an objective

standard of reasonableness. Counsel believed that the State’s redaction of the video enabled him

to ask about the questions and statements made by detectives leading up to defendant’s admissions

that would previously have been considered hearsay. Counsel’s arguments indicate that he

believed the State should be bound by choices it made in redacting the video and the entire video

should not be played unless the defense decided to play it. The irony is that the video was redacted

to keep overly prejudicial evidence contained in the defendant’s statements out for the benefit of

the defendant. When the court announced that the State could admit the entire video, counsel

immediately objected to the admission on confrontation clause grounds. After this objection was

overruled, counsel again attempted to bar the admission of the video by objecting to its foundation.

Further, counsel moved for a mistrial based on the admission of the entire interview and argued

the same in his posttrial motion.

¶ 23 It is apparent from his questions and closing argument that counsel’s strategy was to argue

that defendant’s confession was coerced. However, counsel’s actions demonstrate that he was not

seeking to admit the entire interview as part of his trial strategy but laboring under the erroneous

belief that he could ask questions about the redacted portions of the video because the State’s

actions allowed it. Further, even if counsel’s strategy was to admit the entire video in furtherance

of his argument, that strategy cannot be characterized as sound. The redacted portions of the video

contained references to other criminal acts, the sentencing range defendant faced, and his

9 admission to dealing drugs for the Mexican cartels, which provided no benefit to defendant nor

substantiated his argument of coercion.

¶ 24 The State argues that the admission of the video did not prejudice defendant because the

evidence was overwhelming and defendant’s statements in the video could not have affected the

jury’s decision. However, the evidence presented by the State to establish defendant’s intent to

deliver was far from overwhelming.

¶ 25 Direct evidence of intent to deliver is rare, and the element is generally proven by

circumstantial evidence. People v. Robinson, 167 Ill. 2d 397, 408 (1995). Factors probative of a

defendant’s intent to deliver include whether the quantity of the substance was too large for

personal use; the purity of the substance; the possession of weapons; the possession of large

amounts of cash; the possession of police scanners, beepers, or cell phones; the possession of drug

paraphernalia; and the manner in which the substance is packaged. Id. Our supreme court has made

clear that these factors are merely examples of the “many different factors [that] have been

considered by Illinois courts as probative of intent to deliver.” Id. However, this list is not

“exhaustive” or “inflexible.” People v. Bush, 214 Ill. 2d 318, 327 (2005).

¶ 26 Outside of defendant’s full interview, the State elicited evidence that defendant possessed

8.4 grams of methamphetamine, $56, a cell phone, and between 20 and 30 Apple bags. The

methamphetamine was not packaged inside the Apple bags. The record contains no evidence of

whether the small amount of methamphetamine defendant possessed was greater than an amount

for personal use. No evidence was elicited concerning the purity of the methamphetamine or any

weapons or drug paraphernalia found. Further, Williams testified that he observed defendant

driving in the middle of the afternoon. He did not observe any suspicious transactions or

circumstances that would lend itself to an inference of intent to deliver. See id. at 328 (evidence

10 that defendant was standing alone behind a fence at 2 a.m. selling small items from a brown paper

bag that was later found to contain cocaine was as “equally probative of intent to deliver” as the

enumerated Robinson factors).

¶ 27 Defendant possessed only a small amount of drugs and cash, and a cell phone, a commonly

used item. See People v. Ellison, 2013 IL App (1st) 101261, ¶ 26 (due to the popularity of mobile

communication devices, possessing a cell phone, without more, “provides little, if any, support to

a finding that defendant intended to distribute drugs”). Where a small quantity of drugs is found,

the minimum evidence to sustain a conviction for intent to deliver is that the drugs were packaged

for sale and one additional factor indicating intent to deliver. People v. Clinton, 397 Ill. App. 3d

215, 225 (2010). Here, the only evidence suggesting an intent to deliver is the Apple bags, which

were unused and contained no methamphetamine. This evidence alone would likely have been

insufficient to sustain a conviction for unlawful possession of methamphetamine with the intent to

deliver. See People v. Sherrod, 394 Ill. App. 3d 863, 868 (2009) (small amount of cocaine

packaged in 17 separate baggies, without more, was insufficient to sustain a conviction for

unlawful possession with intent to deliver).

¶ 28 Accordingly, a reasonable probability exists that evidence provided by the entire interview

video influenced the jury to convict defendant of unlawful possession of methamphetamine with

intent to deliver. The full interview contained statements regarding defendant’s prior criminal

activity and his admission to dealing drugs for individuals that he believed to be involved with the

Mexican cartels. That admission, coupled with the Apple bags, is the evidence that the State argued

was sufficient to sustain a conviction in their response to defendant’s motion for directed finding.

Further, even after viewing this evidence, the jury’s questions to the court demonstrated hesitancy

regarding defendant’s intent to deliver. We cannot say, considering the record before us, that the

11 jury would have returned a conviction without viewing defendant’s entire interview. Thus,

defendant was prejudiced by the deficient performance of counsel.

¶ 29 For the foregoing reasons, we find defendant received ineffective assistance of counsel,

reverse his conviction for unlawful possession of methamphetamine with intent to deliver, and

remand for further proceedings, to include a new trial, if necessary. We note that defendant did not

challenge his other convictions. Accordingly, his convictions for unlawful possession of

methamphetamine and driving while license suspended are affirmed. Because we have reversed

defendant’s conviction due to ineffective assistance of counsel, we need not address defendant’s

other contention. On remand, should the State decline to further prosecute defendant for unlawful

possession of methamphetamine with intent to deliver, a new sentencing hearing will be required

on the remaining convictions.

¶ 30 III. CONCLUSION

¶ 31 The judgment of the circuit court of Knox County is reversed in part, affirmed in part, and

remanded for further proceedings.

¶ 32 Reversed in part and affirmed in part. ¶ 33 Cause remanded.