People v. Millsap

873 N.E.2d 396, 374 Ill. App. 3d 857, 313 Ill. Dec. 772, 2007 Ill. App. LEXIS 812
CourtAppellate Court of Illinois
DecidedJuly 19, 2007
Docket4-05-1053
StatusPublished
Cited by9 cases

This text of 873 N.E.2d 396 (People v. Millsap) 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. Millsap, 873 N.E.2d 396, 374 Ill. App. 3d 857, 313 Ill. Dec. 772, 2007 Ill. App. LEXIS 812 (Ill. Ct. App. 2007).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

In November 2005, a jury convicted defendant, Amory L. Millsap, of two counts of criminal drug conspiracy (720 ILCS 570/405.1(a) (West 2004)), one count of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2004)), and one count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2004)). The trial court entered convictions on one count of criminal drug conspiracy and on the unlawful delivery of a controlled substance (counts I and III). The court sentenced defendant to concurrent 10-year prison terms. On appeal, defendant argues (1) defense counsel was ineffective for failing to file a motion to suppress defendant’s statements to police; (2) the court abused its discretion by requiring defendant to wear leg shackles during trial; and (3) his criminal-drug-conspiracy conviction must be vacated because it is the inchoate offense of unlawful delivery of a controlled substance. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

On August 2, 2005, the State charged defendant with two counts of criminal drug conspiracy, one count of unlawful delivery of a controlled substance, and one count of unlawful possession of a controlled substance. On November 16, 2005, a jury trial was conducted. Prior to jury selection, defense counsel asked the court about the removal of defendant’s handcuffs. The court noted defendant was in the custody of the county jail and was informed by the prosecutor that defendant was returned to the county’s custody after serving his time in prison for a parole violation. The court went on to say:

“THE COURT: Let me raise this as a suggestion, and I can get the comments of counsel. I would be inclined since Mr. Millsap is in custody, to release both of his hands from handcuffs. ***
THE COURT: And then shackle his ankles to the eyebolt in the floor. The jury *** won’t know that his ankle is secured. He will have freedom of his hands. The alternative is to place security officer! ] deputies very close to [defendant]. This is a very old courthouse, very inadequate physical accommodation. I believe this would be the best way to go.
Any objection to that Mr. Ahlemeyer?
MR. AHLEMEYER: Well, I personally am not too worried about him being restrained at all. I have known Amory since he was 13 years old. I don’t think he is much of a threat to do anything.”

The court inquired into defendant’s prison record, learning defendant served half of a 5-year sentence and 11 months on a 3-year sentence. The court observed defendant was eligible for a 14-year sentence on the current charges. Upon the court’s inquiry, defendant advised the court he was approximately 5 feet 11 inches tall and weighed 290 to 295 pounds. The court then expressed its belief defendant would not be prejudiced by shackling his legs to an eyebolt in the floor because his hands would be free and the table was skirted. The court asked defense counsel for his opinion, and counsel objected to the shackling. The court responded:

“THE COURT: [Defendant] is in custody. I am not in the position to say because we are having a trial, his custodial status is terminated. The alternative is to bring in at least two officers and seat them right behind [defendant], who is, as he says, 5’ 11” and 290 pounds. Would you rather have two officers seated behind him?
MR. AHLEMEYER: Well, Your Honor, I have given you my opinion, and I don’t think he is a risk to do anything. I would leave it to the [c]ourt to do what the [c]ourt wants to do. You are not going to get me in a situation where I pick one of — one of two alternative^], neither of which I want.
THE COURT: It is the position of the defense that [defendant] should then be placed in a noncustodial status during the trial? Is that the position of the defense?
MR. AHLEMEYER: Well, frankly, I think that my understanding of the defendants we have had in this courtroom that are in the custody of Livingston County, which he is, are, I guess, guarded by our security officer. *** I don’t know why [defendant] should be treated any different. He has been to prison twice. They have both been for nonviolent crimes.
THE COURT: Well, they are turned over to our security officers. Juries are not here. And they are shackled. Their legs and hands usually are shackled. That is why they are not a risk.
MR. AHLEMEYER: I meant during trials. During trials you know, I just am telling the [c]ourt my opinion is *** he’s not a security problem. My wish is that he is unencumbered altogether.
THE COURT: Well, I am dealing with an Appellate Court in the Third District at least, and sometimes we hear some language of that in the Fourth District, that are very uninformed, inexperienced[,] and possess very poor judgment on what is a proper step to take in courtroom security.
Now, I answer to the Fourth District Appellate Court. They are absolutely dead wrong. They mean well, but they are making some decisions that are unwarranted, that are dangerous, and uncalled for. They basically take the position that when someone enters the courtroom, even though he is in custody, unless he has spit in somebody’s face or hit them along the side of the head recently, put them in a noncustodial status. That is idiotic.
THE COURT: All right. The decision of the court is that [defendant’s] hands should be released and that he will be secured to the eyebolt in the floor. The Appellate Court is advised that the jury can’t see that. That it is absurd to take any other action. Even the [United States] Supreme Court does not require that defendants in custody be placed in a noncustodial status. To do otherwise is going to require that I bring in, certainly, two guards to sit right behind [defendant] so that he remains in custody. That would prejudice him, I fear. This arrangement that I have chosen does not. To those members of the Appellate Court that disagree with me, I simply say to them that they are wrong.”

The State then called John Cox, a corporal with the City of Pontiac police department, who testified on July 22, 2005, he received a tip from a caller who identified herself as Stephanie. Cox testified the woman described the automobile and identified the subjects in the car, the subjects’ place of origin and destination, and the subjects’ purpose.

Acting on the information, Cox gathered officers to look for the car. Shortly after receiving the tip, Officer Robin Bohm located the vehicle, a dark blue Chevy Impala with license plates reading BDYSHP4, and informed Cox the vehicle was in route to Pontiac. Bohm eventually lost sight of the vehicle. Officer Mike Nolan later located the vehicle leaving Pontiac and followed it.

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Cite This Page — Counsel Stack

Bluebook (online)
873 N.E.2d 396, 374 Ill. App. 3d 857, 313 Ill. Dec. 772, 2007 Ill. App. LEXIS 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-millsap-illappct-2007.