People v. Melvin

2022 IL App (4th) 220029-U

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 220029-U FILED September 29, 2022 Supreme Court Rule 23 and is not precedent except in the Carla Bender NO. 4-22-0029 limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County BRUCE MELVIN, ) No. 19CF9 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding. ______________________________________________________________________________

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

ORDER

¶1 Held: Defendant failed to establish that he received ineffective assistance of counsel.

¶2 Following a bench trial, the trial court found defendant, Bruce Melvin, guilty of

both unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(a)(1)(A)

(West 2018)) and unlawful possession of a controlled substance (id. § 402(a)(1)(A)). It later

sentenced him to 10 years in prison. Defendant appeals, arguing he received ineffective assistance

of counsel because his trial attorney failed to move for a directed finding in his favor at the close

of the State’s case-in-chief. We affirm.

¶3 I. BACKGROUND

¶4 In January 2019, the State charged defendant with the two drug-related offenses at

issue. Id. § 401(a)(1)(A), 402(a)(1)(A). It specifically alleged that on October 5, 2016, defendant knowingly possessed with the intent to deliver more than 15 grams of a substance containing

heroin.

¶5 Defendant’s bench trial was conducted on two separate days in January and April

2021. The State’s evidence showed that on October 5, 2016, police officers with the Livingston

County proactive drug unit investigated a tip about a group of individuals in a silver Cadillac

traveling to Livingston County from Chicago. Officers observed the vehicle and stopped it for

speeding. Three people were inside the vehicle at the time of the stop: Kelly Dougherty, who was

driving the vehicle; Rob Simpson, the front seat passenger; and defendant, the backseat passenger

and owner of the vehicle.

¶6 Brian Maier, a police officer with the Dwight Police Department and a member of

the proactive drug unit, testified he initiated the traffic stop of the Cadillac. During the stop, he

learned Dougherty’s driver’s license was suspended. As a result, Dougherty was arrested, and a

search of her person was conducted. The State’s evidence showed officers found a large amount

of suspected heroin “in her pant leg tucked into a sock area.” Maier testified there were “four

bundles [of suspected heroin] made into one big bundle.” After all of the bundles were unraveled,

there were 94 smaller “individual baggies” of suspected heroin. The parties stipulated that the

substances inside 70 of the “individual baggies” were tested, the tested substances were found to

contain heroin, and the total weight of the tested substances was 15.6 grams. The “individual

baggies” that were not analyzed weighed 9.6 grams.

¶7 Maier further testified that the traffic stop was recorded by a camera on his squad

car. The recording was admitted into evidence and showed defendant initially denied knowing

anything about the heroin discovered on Dougherty’s person. Later, he acknowledged that the

group went to Chicago and bought drugs. He asserted Simpson had a lot of money and that only

-2- Simpson’s money was used for the purchase. The recording also showed that Simpson initially

told the police that the group had been to Chicago to visit Dougherty’s son. Ultimately, however,

he admitted that the group went to Chicago “to buy dope.” He asserted that he put up $200 for the

purchase and that they used “everybody’s money.”

¶8 Leland Brooke, a deputy with the Livingston County Sheriff’s Department, testified

he was present at the traffic stop and spoke with defendant. According to Brooke, defendant

reported “he was supposed to get a couple of bags of heroin from *** Simpson for driving him to

Chicago.” Brooke stated he also took a written statement from defendant. The statement was

admitted into evidence, and stated as follows:

“I [defendant] went to Chicago with a [woman] named Kelly and Rob

Simpson[.] [T]hey drove my car to purchase heroin. [O]n Cicero at Popeyes they

met a dealer then drove around the block in an alley where a young black girl got

out of an [sic] vehicle with a black guy and brought $650 worth of heroin[.] [T]hey

handed it to Kelly[.] Rob was driving [and] then we left Chicago. Then we were

pulled over by Dwight Police.”

¶9 On cross-examination, Brooke testified the tip the drug unit received was from

defendant’s wife. He stated he had personal contact with defendant’s wife and through their

conversations, Brooke learned defendant was a heroin user. Brooke further testified that at the

scene of the traffic stop, defendant reported that he needed “to get into a rehab facility.” Brooke

agreed that defendant appeared “pretty calm and collected,” and asserted he would have noticed if

defendant was “undergoing withdrawals.”

¶ 10 At the close of the State’s case, defendant’s attorney made no motions. In his

case-in-chief, defendant testified on his own behalf. He admitted having a 2015 conviction for a

-3- drug-related offense and described the events that occurred on October 5, 2016. Defendant asserted

that on the morning of October 5, Simpson and Dougherty called him because they “wanted a

ride.” He asserted that at the time, he was heavily using drugs, including heroin. On the day at

issue, he was “ill” and going though withdrawals due to his drug use. Defendant testified he

allowed Simpson and Dougherty to use his vehicle. He maintained he took the trip with them

because he “was just trying not to be physically ill,” and he denied that he was trying to acquire “a

large amount of drugs.”

¶ 11 Defendant testified he was aware that heroin was purchased while the group was in

Chicago. He recalled that the purchase occurred in an alley by a Wendy’s restaurant and that the

heroin was given to Dougherty. Defendant asserted he did not know the quantity of drugs that were

purchased or how much money was exchanged. He denied that any of the money used to purchase

the heroin was his.

¶ 12 Defendant asserted that after the heroin was purchased, he gave Simpson $50 in

exchange for “a few bags of heroin.” He used the heroin in the backseat of the car and testified it

made him feel “normal” and no longer “ill.” Defendant asserted he did not know where the

remaining drugs were located. Also, he asserted he did not know what Simpson and Dougherty

intended to do with the drugs, stating he did not know them well and “didn’t hang out with them.”

Defendant testified he simply “knew somebody they knew,” specifically a man named “John-

John” who “was selling for [Simpson].” Defendant further testified as follows: “[Simpson] sold

me a few bags. They asked to use my vehicle. That’s how I got in this mess[.]”

¶ 13 On cross-examination, defendant denied that there had been a “bargain,” whereby

he agreed to the use of his vehicle in exchange for bags of heroin. He asserted he allowed Simpson

and Dougherty the use of his vehicle and he rode with them to Chicago because he “wanted the

-4- drugs.”

¶ 14 During the State’s closing argument, the prosecutor argued defendant’s claim that

he was unaware of the purpose of the trip was inconsistent with the evidence. He asserted

defendant’s “role was that of an accomplice” and that he was “an integral part” of what occurred.

Defendant’s counsel argued defendant lacked knowledge of what Simpson and Dougherty were

“doing or going to do” and, instead, “just wanted to put himself closer to the drugs as quickly as

possible” so that he could obtain heroin for himself. In rebuttal, and in response to defense

counsel’s argument, the prosecutor pointed to defendant’s testimony that he knew Simpson “was

a dealer.”

¶ 15 Ultimately, the trial court found defendant guilty of both charged offenses. In

setting forth its ruling, the court found it was undisputed that defendant knew his vehicle was being

used “to go to Chicago to buy drugs.” The court stated it did not find defendant’s testimony was

“particularly credible” and noted that, in this written statement, defendant suggested that $650 was

spent to purchase the heroin. The court also stated as follows: “[B]ased on this amount that I’m

looking at right here, surely that wasn’t going to be used in one drive on the way back from Chicago

with three people in the car. So he knew what was going on.”

¶ 16 Following defendant’s bench trial, the trial court permitted defendant’s counsel to

withdraw from the case and appointed new counsel. In October and November 2021, defendant,

with the aid of his new counsel, filed a posttrial motion, and an amended posttrial motion, for a

new trial. He challenged the sufficiency of the evidence against him and argued his trial attorney

was ineffective for failing to properly prepare him for his testimony, challenge the admissibility

of evidence, seek retesting of the drug evidence, review discovery and discuss trial strategy with

him, or call witnesses to testify on his behalf.

-5- ¶ 17 In November 2021, the trial court denied defendant’s posttrial motion. Regarding

defendant’s sufficiency of the evidence claim, it stated as follows: “There is sufficient evidence I

believe to show on the theory of accountability and constructive possession that the [d]efendant,

in fact, was an integral part of the decision that day to drive to Chicago, pick up these drugs that

were going to be redistributed within the community.”

¶ 18 At defendant’s sentencing, the trial court entered a judgment of conviction on count

I, possession of a controlled substance with intent to deliver, finding the simple possession count

merged with that offense. It then sentenced defendant to 10 years in prison. Defendant filed a

motion to reconsider his sentence, which the court also denied.

¶ 19 This appeal followed.

¶ 20 II. ANALYSIS

¶ 21 On appeal, defendant argues both his trial counsel and his posttrial counsel provided

ineffective assistance. Specifically, he contends the State’s evidence presented in its case-in-chief

was insufficient to prove him guilty of possessing heroin with the intent to deliver because, from

that evidence, a reasonable fact finder could not “conclude that he was accountable for his

codefendant’s intent to deliver the heroin.” Defendant maintains the only evidence that would

support a finding of his guilt “came from [his] own testimony that he knew [Simpson] was a drug

dealer.” Defendant argues his trial counsel should have moved for a directed finding of not guilty

at the close of the State’s evidence and before he took the stand in his own defense because such

a motion would have been granted. He also contends his posttrial counsel was ineffective for

failing to argue during posttrial proceedings the ineffectiveness of his trial counsel for failing to

move for a directed finding. Defendant asks that we vacate his conviction for the unlawful

possession of heroin with the intent to deliver and remand the matter for resentencing on the

-6- remaining count of simple possession.

¶ 22 Ineffective-assistance-of-counsel claims are evaluated under the two-prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hatter, 2021 IL 125981, ¶ 25,

183 N.E.3d 136. Under that test, “a defendant must show that (1) the attorney’s performance fell

below an objective standard of reasonableness and (2) the attorney’s deficient performance

prejudiced the defendant in that, absent counsel’s deficient performance, there is a reasonable

probability that the result of the proceeding would have been different.” People v. Jackson, 2020

IL 124112, ¶ 90, 162 N.E.3d 223. A defendant’s failure to establish either Strickland prong is fatal

to his claim. Id. For the reasons that follow, we find defendant cannot establish Strickland’s

prejudice prong and, as a result, his ineffective-assistance claim lacks merit.

¶ 23 Section 115-4(k) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

5/115-4(k) (West 2018)) provides for directed findings or verdicts as follows:

“When, at the close of the State’s evidence or at the close of all of the

evidence, the evidence is insufficient to support a finding or verdict of guilty the

court may and on motion of the defendant shall make a finding or direct the jury to

return a verdict of not guilty, enter a judgment of acquittal and discharge the

defendant.”

“A motion for a directed verdict asserts only that as a matter of law the evidence is insufficient to

support a finding or verdict of guilty.” People v. Withers, 87 Ill. 2d 224, 230, 429 N.E.2d 853, 856

(1981). “The standard to be used in deciding whether to direct a verdict is ‘whether a reasonable

mind could fairly conclude the guilt of the accused beyond reasonable doubt, considering the

evidence most strongly in the People’s favor.’ ” People v. Hendricks, 137 Ill. 2d 31, 63, 560 N.E.2d

611, 625 (1990) (quoting Withers, 87 Ill. 2d at 230); see also People v. Shakirov, 2017 IL App

-7- (4th) 140578, ¶ 81, 74 N.E.3d 1157 (“A directed verdict *** is appropriate when a trial court

concludes, after viewing all of the evidence in a light most favorable to the State, that no reasonable

juror could find that the State had met its burden of proving the defendant guilty beyond a

reasonable doubt.”).

¶ 24 Here, defendant was charged with unlawfully possessing, and possessing with the

intent to deliver, in excess of 15 grams of a substance containing heroin. 720 ILCS

570/401(a)(1)(A), 402(a)(1)(A) (West 2018). On appeal, he challenges only the sufficiency of the

State’s evidence as it relates to the charge of unlawful possession with the intent to deliver. To

sustain a conviction for that offense, “the State must prove beyond a reasonable doubt (1) the

defendant had knowledge of the presence of the controlled substance; (2) the controlled substance

was in the immediate possession or control of the defendant; and (3) the defendant intended to

deliver the controlled substance.” People v. Warren, 2016 IL App (4th) 120721-B, ¶ 64, 55 N.E.3d

117. “Because direct evidence of intent to deliver is rare, such intent must usually be proven by

circumstantial evidence.” People v. Robinson, 167 Ill. 2d 397, 408, 657 N.E.2d 1020, 1026 (1995).

Factors that are probative of whether there is the intent to deliver a controlled substance include

whether the quantity of the controlled substance at issue is too large to be viewed as being for

personal consumption and the manner in which the substance is packaged. Id.

¶ 25 Additionally, “[i]t is proper to charge a defendant as a principal even though the

proof is that the defendant was only an accomplice.” People v. Ceja, 204 Ill. 2d 332, 361, 789

N.E.2d 1228, 1247 (2003). “A defendant charged as a principal can be convicted on a theory of

accountability if supported by the evidence.” Id. A person may be held legally accountable for the

conduct of another when “either before or during the commission of an offense, and with the intent

to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid

-8- that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2018).

¶ 26 “[T]o prove that a defendant possessed the intent to promote or facilitate the crime,

the State may present evidence that either (1) the defendant shared the criminal intent of the

principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527,

¶ 13, 6 N.E.3d 145. “Under the common-design rule, the State need not prove that the defendant

and the principal shared the same intent vis-à-vis the charged crime.” People v. Phillips, 2014 IL

App (4th) 120695, ¶ 43, 14 N.E.3d 1. Rather, “the State need only prove the accused had the

specific intent to promote or facilitate a crime.” (Internal quotation marks omitted and emphasis

in original.) Id.

“Under the common-design rule, if two or more persons engage in a common

criminal design or agreement, any acts in the furtherance of that common design

committed by one party are considered to be the acts of all parties to the design or

agreement and all are equally responsible for the consequences of the further acts.

[Citation.] Evidence that a defendant voluntarily attached himself to a group bent

on illegal acts with knowledge of its design supports an inference that he shared the

common purpose and will sustain his conviction for an offense committed by

another.” (Internal quotation marks omitted.) Fernandez, 2014 IL 115527, ¶ 13.

¶ 27 On appeal, defendant concedes that the State’s evidence was sufficient to prove him

guilty of possessing the heroin at issue based on the theory of accountability, in that the heroin was

possessed by Simpson and Daugherty and he aided them in the commission of that offense. He

asserts however, that the evidence was insufficient to prove he had the intent to deliver the heroin

either as the principal of the crime or based on the theory that he was accountable for his

codefendants’ criminal conduct. Defendant argues the evidence established that his own purpose

-9- for being involved in the trip to Chicago was to obtain heroin for his own personal use. Further,

he contends he cannot be held accountable for any intent to deliver by his codefendants because

“[n]o evidence in the State’s case indicated that [he] knew that Simpson was a drug dealer.”

(Emphasis omitted.) According to defendant, “[t]he lack of evidence that [he] knew Simpson or

Dougher[t]y was a heroin dealer should have been fatal to the State’s case.”

¶ 28 Here, we disagree with defendant and find the State’s evidence was sufficient to

establish his guilt based on a theory of accountability. In particular, its evidence was sufficient to

find defendant accountable for his codefendants’ conduct under the common-design rule. In a

common-design case, “even if a defendant is completely unaware of his codefendant’s true

intentions, he is still legally accountable for any crimes committed by the group to which the

defendant had attached himself, knowing that the group was bent on illegal acts.” (Emphasis in

original.) People v. Jackson, 2020 IL App (4th) 170036, ¶ 45, 165 N.E.3d 523. Having knowledge

of a group’s design “means only that a person who attached himself to a group knew that the group

intended to engage in criminal behavior of some kind” and “nothing more specific is required.” Id.

¶ 49. “[A]ll that is required for a defendant to be legally accountable in a common-design case is

for the evidence to show that (1) the group was intending to engage in some form of criminal

behavior and (2) the defendant was aware of the group’s intentions.” Id. In this case, for defendant

to be held accountable for Simpson and Dougherty’s possession of heroin with intent to deliver,

he did not have to be aware that either individual was dealing drugs or that either had the intent to

deliver the heroin the group obtained.

¶ 29 Ultimately, the State’s evidence showed defendant agreed to lend his vehicle to

Simpson and Dougherty and travel with them to Chicago with knowledge that they intended to

obtain and possess heroin. The group purchased over 15 grams of heroin, which, when discovered

- 10 - by the police, was packaged in 94 “individual baggies.” We note defendant argues the quantity of

drugs was not so large that the drugs could not have been personally consumed by Simpson and

Dougherty “over a period of weeks.” However, when viewing the evidence in the light most

favorable to the State—as must be done when the defendant requests a directed finding in his

favor—the State’s evidence as to the weight and packaging of the heroin could create a reasonable

inference of an intent to deliver. Additionally, because the evidence showed defendant voluntarily

aided his codefendants with knowledge that they “intended to engage in criminal behavior of some

kind” (id. ¶ 49), the State’s evidence was also sufficient to support a finding that defendant was

legally accountable for his codefendants’ commission of the offense at issue.

¶ 30 In this instance, defendant cannot establish that either his trial attorney or his

posttrial attorney was ineffective. “Defense counsel is not required to make losing motions or

objections in order to provide effective legal assistance.” People v. Moore, 2012 IL App (1st)

100857, ¶ 45, 964 N.E.2d 1276. For the reasons discussed, defendant cannot establish that a motion

for a directed finding at the close of the State’s case would have been successful. Accordingly, he

cannot establish that he was prejudiced by the alleged deficient performance of either his trial or

posttrial counsel.

¶ 31 III. CONCLUSION

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

¶ 33 Affirmed.

- 11 -