People v. McKenzie

2020 IL App (4th) 180109-U

• Court: Appellate Court of Illinois
• Decided: June 5, 2020
• Docket: 4-18-0109
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180109-U This order was filed under Supreme FILED NO. 4-18-0109 June 5, 2020 Court Rule 23 and may not be cited as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County TERANCE McKENZIE, ) No. 16CF591 Defendant-Appellant. ) ) Honorable ) Debra L. Wellborn, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Turner concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, finding defendant forfeited his argument that the trial court erred in denying his request for funds to obtain an expert witness.

¶2 Defendant, Terance McKenzie, appeals directly from his conviction of unlawful

possession of a controlled substance. On appeal, defendant argues the trial court erred in denying

his request for funds to obtain an expert witness to test the alleged narcotic. We affirm.

¶3 I. BACKGROUND

¶4 On October 4, 2016, defendant was arrested and charged with one count of

unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2012)), alleging that

he “knowingly and unlawfully had in his possession less than 30 grams of a substance containing

heroin ***.” Defendant posted bond the same day and requested that the trial court appoint the public defender’s office to represent him. He filed an affidavit of assets and liabilities along with

his request, in which he reported that he was unemployed and had no income or disabilities.

Defendant further reported total assets valued at $223 and monthly expenses of $100. The trial

court found defendant to be indigent and appointed the public defender’s office.

¶5 At a March 3, 2017, pretrial conference, defendant informed the court that he had

retained private counsel. Counsel entered his appearance two weeks later. Defense counsel

subsequently indicated that in March 2017, defendant had paid him a $1500 retainer and signed

an attorney-client agreement whereby defendant promised to pay $195 per hour for counsel’s

services.

¶6 In June 2017, defendant filed a “motion for defendant[’]s testing of alleged

contraband/illegal substances.” He acknowledged that the Illinois State Police crime lab had

already tested the substance and found “a residue amount of heroin,” but, nonetheless, he alleged

that the substance did not contain heroin and “request[ed] the opportunity to have the alleged

drug tested by an independent lab at [d]efendant[’]s cost.” The State did not object to defendant’s

motion, stating at a pretrial conference: “And as far as the motion goes, I have no problem with

it. He has the right to independent testing. If he wants to have independent testing, he’s going to

pay for it.”

¶7 Defense counsel subsequently moved to withdraw his representation due to an

illness in his family, and on August 29, 2017, at a hearing on his motion to withdraw, the

following exchange occurred between defense counsel, the court, and defendant:

“[DEFENSE ATTORNEY]: The situation here is that if you review the

file, [defendant] wanted and still wants this alleged drug to be tested by an

independent lab. That was granted, but it was granted at his cost. He sent me a

-2- place that he wanted it tested and it was the same lab that already tested it for the

State of Illinois. I told him that, and he says[,] [‘]I want the State to pay for it.[’]

Well, the State is not going to pay for that. And I don’t know what I’m supposed

to do. But he wants it tested, you know, he—I’ll have it tested any place he wants

it tested, but I’m not going to pay for it.

THE COURT: Right.

DEFENDANT: Your Honor.

THE COURT: Yes.

DEFENDANT: This didn’t end up in an argument. When I told him over

the phone, I made myself clear. We were both happy. He said he would ask if the

State could pay for it but then I get to court and he wants to withdraw. You know,

that’s a blind side. I didn’t—you know, I paid him.

THE COURT: Well, I would tell you that the State is not going to pay for

additional testing—

DEFENDANT: Understood.

THE COURT: —in this case so.

DEFENDANT: I mean, in that case, I would have hoped he would have

just simply told me that, but, you know, since they won’t pay for it, I would like

to move on with him.” (Emphases added.)

¶8 Following the hearing, the court allowed defense counsel to withdraw, and

defendant again requested that the public defender’s office be appointed to represent him. The

trial court made the following inquiry into defendant’s request for representation:

-3- “THE COURT: Okay. [Defendant], just on the record, let me ask you a

couple of questions.

Like, do you own your own home?

DEFENDANT: No.

THE COURT: Do you own any vehicles outright?

THE COURT: Are you employed at this time?

DEFENDANT: No, due to this case alone, is why I lost my job.

THE COURT: Okay. All right. Okay. So you don’t have—you’re telling

me you don’t have any sources of income—

DEFENDANT: Right.

THE COURT: —to pay a down payment now for an attorney?

THE COURT: Okay. All right. Based upon that, the court will appoint a—

will find that [defendant] qualifies for the public defender’s office.”

¶9 In December 2017, defendant’s case proceeded to a jury trial. During cross-

examination of the forensic scientist who had tested the disputed substance, defense counsel

asked how frequently independent labs found different results than the State when testing

controlled substances. The trial court sustained the State’s objection to this line of questioning.

After presentation of the evidence, the jury found defendant guilty of unlawful possession of a

controlled substance.

¶ 10 A presentence investigative report (PSI) was prepared for sentencing. According

to the PSI, filed on January 29, 2018, defendant reported that he was diagnosed with sickle cell

-4- anemia in 2000 and “receives $1,003 per month in benefits.” Defendant also reported that he

worked for his uncle “ ‘on and off’ from 2005 to 2016” and began working for Federal Express

in November 2017, making $14 per hour; he paid between $300 and $800 each month in rent

from 2012 to 2017; and he “pays over $1,000 per month in child support.”

¶ 11 In January 2019, the trial court sentenced defendant to 18 months’ probation.

Defendant filed no posttrial or postsentencing motions.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues the trial court erred in denying his request for funds

to obtain an expert witness. “A trial court’s denial of a motion for funds for an expert witness is

generally reviewed for an abuse of discretion.” In re T.W., 402 Ill. App. 3d 981, 986, 932 N.E.2d

125, 130 (2010).

¶ 15 A. The Right to Compulsory Process

¶ 16 In criminal prosecutions in Illinois, as in all states, defendants enjoy the right to

compel the attendance of witnesses in their behalf. See U.S. Const., amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right to *** have compulsory process for obtaining

witnesses in his favor ***.”); Ill. Const. 1970, art. I, § 8 (“In criminal prosecutions, the accused

shall have the right to *** have process to compel the attendance of witnesses in his or her behalf

***.”). While the right to compel the attendance of witnesses generally does not include the

additional right to have the State pay for those witnesses, our supreme court has recognized that

“in certain instances involving indigents, the lack of funds with which to pay for the witness will

often preclude him from calling that witness and occasionally prevent him from offering a

defense.” (Emphasis added.) People v. Watson, 36 Ill. 2d 228, 233, 221 N.E.2d 645, 648 (1966);

-5- see also Ake v. Oklahoma, 470 U.S. 68, 77 (1985) (“[A] criminal trial is fundamentally unfair if

the State proceeds against an indigent defendant without making certain that he has access to the

raw materials integral to the building of an effective defense.”). Thus, to ensure indigent

defendants are not deprived of the substance of their fundamental right to compulsory process,

“Illinois has long recognized that a defendant may be entitled to funds to hire an expert witness

where expert testimony is deemed critical to a proper defense.” People v. Clankie, 180 Ill. App.

3d 726, 730, 536 N.E.2d 176, 179 (1989). To establish an entitlement to funds, the indigent

defendant must demonstrate that (1) “the expert services sought are necessary to prove a crucial

issue in the case” and (2) “the defendant’s financial inability to obtain his own expert will

prejudice his case.” Id.; see also People v. Lawson, 163 Ill. 2d 187, 221, 644 N.E.2d 1172, 1188

(1994).

¶ 17 B. Defendant Forfeited His Argument

¶ 18 Initially, the State argues defendant forfeited his argument by failing to raise it in

the trial court and include it in a posttrial motion. See People v. Sebby, 2017 IL 119445, ¶ 48, 89

N.E.3d 675 (“To preserve a purported error for consideration by a reviewing court, a defendant

must object to the error at trial and raise the error in a posttrial motion.”). Defendant, relying on

People v. Djurdjulov, 2017 IL App (1st) 142258, ¶ 45-46, 86 N.E.3d 1139, responds that he

properly preserved this issue for review despite the fact that he did not raise it in a posttrial

motion “because it involves a constitutional issue that was addressed at trial.”

¶ 19 In Djurdjulov, the defendant argued on appeal that the trial court had committed

reversible error “when it denied his motion for fees so that he could hire an expert to analyze ***

cell phone records.” Id. ¶ 44. Although the defendant failed to include this argument in his

motion for a new trial, the First District held that the defendant had not forfeited it, reasoning

-6- that “[c]onstitutional issues that were previously raised at trial and could be raised later in a

postconviction petition are not subject to forfeiture on direct appeal.” (Emphasis in original and

internal quotation marks omitted.) Id. ¶ 45. We find defendant’s reliance on Djurdjulov

misplaced, as the relevant facts in this case differ significantly from those in Djurdjulov.

¶ 20 There, due to the importance of cell phone records to the prosecution’s case, the

defendant “filed a [pretrial] motion asking the court for funds so that [he] could pay an expert to

analyze the cell phone records and help with cross-examination of the prosecution’s cell phone

expert.” Id. ¶ 9. The trial court denied the defendant’s motion for funds following a hearing, at

which the defendant presented evidence regarding his inability to pay. Id. The defendant filed a

motion for a new trial after his conviction, but he neglected to argue that the court had erred in

denying his motion requesting funds. Id. ¶¶ 33, 44. As noted above, the First District found that

the defendant’s failure to include the issue in his posttrial motion did not result in forfeiture

because, in relevant part, the issue was “previously raised at trial ***.” Id. ¶ 45.

¶ 21 Here, unlike the defendant in Djurdjulov—who raised his argument in the trial

court by “fil[ing] a motion asking the court for funds” and then presenting evidence on his

motion at a hearing—defendant failed to raise the instant argument in the trial court. Id. ¶ 9.

Instead, defendant’s privately retained counsel filed a pretrial motion “request[ing] the

opportunity to have the alleged drug tested by an independent lab at [d]efendant[’]s cost.”

(Emphasis added.) Additionally, defendant did not make a request for funds at the hearing on

defense counsel’s motion to withdraw when, in supporting his motion, defense counsel told the

court, “[Defendant] says[,] [‘]I want the State to pay for [the test.’]” We do not find that this lone

statement, made in passing by defense counsel, constitutes a properly raised claim by defendant

-7- that he had a constitutional right to funds to obtain an expert witness due to his indigency. Thus,

defendant has forfeited his argument on appeal by failing to raise it in the trial court.

¶ 22 C. Defendant Fails to Establish Plain Error

¶ 23 Alternatively, defendant asks us to review his argument for plain error.

¶ 24 The plain-error doctrine allows us to consider a forfeited claim when “(1) a clear

or obvious error occurred and the evidence is so closely balanced that the error alone threatened

to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurred and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness

of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007).

“Under both prongs of the plain-error doctrine, the burden of persuasion remains with the

defendant. [Citation.] When a defendant fails to establish plain error, the result is that the

procedural default must be honored.” (Internal quotation marks omitted.) People v. Naylor, 229

Ill. 2d 584, 593, 893 N.E.2d 653, 659-60 (2008). We begin by determining whether defendant

established that a clear or obvious error occurred. See, e.g., Sebby, 2017 IL 119445, ¶ 49 (“The

initial analytical step under either prong of the plain error doctrine is determining whether there

was a clear or obvious error ***.”).

¶ 25 Even assuming, arguendo, we could characterize the trial court’s statement at the

hearing on defense counsel’s motion to withdraw—i.e., “Well, I would tell you that the State is

not going to pay for additional testing”—as a denial of a request for funds, we still would not

find clear or obvious error as defendant cannot establish that he was indigent. As briefly

discussed earlier, the standard developed by the supreme court for determining whether a

criminal defendant has a constitutional right to funds for an expert witness presupposes that the

-8- defendant is indigent. See Watson, 36 Ill. 2d at 233 (“[I]n certain instances involving indigents,

the lack of funds with which to pay for the witness will often preclude him from calling that

witness and occasionally prevent him from offering a defense.” (Emphasis added.)). Thus, if a

defendant cannot demonstrate that he was, in fact, indigent, it follows that it cannot be error to

deny a request for state funds to pay for an expert witness’s services.

¶ 26 Here, defendant points only to his financial affidavit, which was relied on by the

trial court in initially appointing the public defender’s office, in support of his assertion that he

established his indigency. In that affidavit, filed on October 4, 2016, defendant reported that he

was unemployed and had no income or disabilities. Defendant further reported total assets valued

at $223 and monthly expenses of $100. However, the information defendant reported in his

financial affidavit is contradicted by the information he provided during the preparation of the

PSI. According to the PSI, filed on January 29, 2018, defendant reported that he was diagnosed

with sickle cell anemia in 2000 and “receives $1,003 per month in benefits.” Defendant also

reported that he worked for his uncle “ ‘on and off’ from 2005 to 2016” and began working for

Federal Express in November 2017, making $14 per hour; he paid between $300 and $800 each

month in rent from 2012 to 2017; and he “pays over $1,000 per month in child support.”

Defendant’s claim of indigence is further contradicted by the fact that in March 2017, he paid

$1500 to retain private counsel and agreed to pay him $195 per hour for his services.

Accordingly, since the record contradicts defendant’s conclusory assertion that he was indigent,

we find he has failed to establish plain error and we therefore must honor his forfeiture. See

Naylor, 229 Ill. 2d at 593.

¶ 27 D. Defendant’s Ineffective-Assistance Claim

-9- ¶ 28 In closing, we note that defendant also argues, in the alternative, that we may

reach the merits of his argument by finding that his counsel was ineffective for failing to

properly preserve it by including it in a motion for a new trial. Ineffective-assistance claims are

reviewed de novo. People v. Miramontes, 2018 IL App (1st) 160410, ¶ 13, 116 N.E.3d 199.

¶ 29 When analyzing an ineffective-assistance claim, we apply the familiar two-

pronged test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),

which requires a defendant to “show both that counsel’s performance was deficient and that the

deficient performance prejudiced the defendant.” People v. Cherry, 2016 IL 118728, ¶ 24, 63

N.E.3d 871. A defendant must satisfy both prongs of the Strickland test; “the failure to establish

either precludes a finding of ineffective assistance of counsel.” Id.

¶ 30 We reject defendant’s ineffective-assistance claim because, as discussed above, it

would not have been error for the trial court to deny a request for funds. Therefore, a posttrial

motion raising an argument to the contrary would have been unsuccessful, which means

defendant is unable to show that he suffered prejudice from counsel’s failure to include his

argument in a posttrial motion. As a result, defendant’s claim of ineffective assistance

necessarily fails. See, e.g., id. ¶ 31 (“[T]o prevail on an ineffective assistance claim under

Strickland, a defendant must establish both prongs of the Strickland test, such that the failure to

establish either precludes a finding of ineffective assistance of counsel.”).

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we affirm the trial court’s judgment.

¶ 33 Affirmed.

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