People of The State of Ill. v. GIVENS

• Decision Date: 24 May 2010
• Docket Number: No. 107323.,107323.
• Citation: 343 Ill.Dec. 146,934 N.E.2d 470,237 Ill.2d 311
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Fatima GIVENS, Appellee.
• Court: Illinois Supreme Court

237 Ill.2d 311

934 N.E.2d 470

343 Ill.Dec. 146

The PEOPLE of the State of Illinois, Appellant,

v.Fatima GIVENS, Appellee.

No. 107323.

Supreme Court of Illinois.

April 15, 2010.

As Modified Upon Denial of Rehearing May 24, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Lisa Madigan, Atty. Gen., of Springfield, Richard A. Devine, Anita Alvarez, State's Attorneys. of Chicago (James E. Fitzgerald, Alan J. Spellberg and Maren Ronan, Asst. State's Attorneys, of counsel), for the People.

Michael J. Pelletier, State Appellate Def., Patricia Unsinn, Deputy Def., Elizabeth A. Botti, Asst. Appellate Def., of Office of State Appellate Def., of Chicago, for appellee.

OPINION

Justice THOMAS delivered the judgment of the court, with opinion.

Following a bench trial in the circuit court of Cook County, defendant, Fatima Givens, was convicted of possession of a controlled substance (720 ILCS 570/402(c) (West 2004)) and sentenced to 12 months' probation. On appeal to the appellate court, defendant raised several contentions, including that her trial counsel was ineffective in not litigating a motion to suppress evidence that would have challenged the voluntariness of a consent to search. 384 Ill.App.3d 101, 102, 105, 323 Ill.Dec. 106, 892 N.E.2d 1098. The appellate court, however, reversed and remanded the cause for a hearing on the basis that counsel was ineffective in not litigating a motion to suppress on the ground that the person consenting to the search in question lacked the authority to consent. 384 Ill.App.3d at 112-15, 323 Ill.Dec. 106, 892 N.E.2d 1098. This ground was raised sua sponte by the appellate court and not argued or briefed by either party in the trial or appellate courts. We allowed the State's petition for leave to appeal. 210 Ill. 2d R. 315. Before this court, the State argues, among other things, that the appellate court erred when it sua sponte addressed an issue not raised by the parties. Defendant in turn raises a number of issues in her cross-appeal in this court. See 155 Ill. 2d R. 318(a). For the reasons that follow, we vacate the judgment of the appellate court and reinstate defendant's conviction.

BACKGROUND

The record reveals that in April 2005, defendant and her codefendant, George Loving, were each charged by information with one count of possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2004)). In July 2005, defendant filed a motion to quash arrest and suppress evidence (motion to suppress), alleging generally that her arrest was made without the authority of a valid search or arrest warrant. Pursuant to a plea agreement with the State, codefendant Loving pled guilty in November 2005, to the lesser charge of possession of a controlled substance. Two months later, the trial court allowed defendant to waive a jury trial and to withdraw her motion to suppress; the case then immediately proceeded to a bench trial on the intent to deliver charge brought against defendant.

The evidence at trial established that Chicago police officers Robert Graves, Rafael Bonafazzi, and Stephen Lotts received a tip from a confidential informant that illegal drugs were being sold out of apartment number 366 at 2804 N. Leavitt in Chicago. The informant said that defendant and her boyfriend were in the apartment and were the ones selling the drugs. The apartment was rented by Teri Mathews, a friend of defendant.

Officer Graves testified that around 11:30 a.m., on April 9, 2005, he and the other two officers met Mathews outside the building located at 2804 N. Leavitt, explained their reason for being there, and Mathews then signed a consent form that allowed police to enter the apartment. Officer Graves asked Mathews if anyone was in the apartment in question, and Mathews told the officer that defendant and her boyfriend were upstairs in the apartment. The officers then went inside, approached the sole bedroom and found defendant and her boyfriend in bed. In plain view, the officers observed a clear plastic bag on top of a night stand near the bed within arms reach of the couple. Inside the clear plastic bag were 21 smaller baggies, each containing crack cocaine. There was also a razor blade on the night stand next to the bed. Police also found $355 cash. Graves placed defendant and Loving in custody and took them to the police station.

On cross-examination, Officer Graves testified that he did not observe any prospective drug buyers come to the area in the time he was outside with Mathews before entering the apartment. When defense counsel asked if the informant had given reliable information in the past, the State objected; but the trial court overruled the objection. Graves answered that indeed the informant had provided reliable information before. Graves further testified on cross-examination that although he was present with the other officers, it was actually Officer Bonafazzi who spoke with Mathews on the sidewalk outside the apartment. Graves also noted that Mathews did not actually open the apartment for the officers. Rather, the officers received the key from her, and she stayed outside. When the officers entered the bedroom, defendant and Loving made no effort to hide the contraband because they were still “half asleep.”

The parties then stipulated to the chain of custody of the items seized from the apartment. They also stipulated that the State's forensic chemist tested the content of 14 of the 21 bags seized, which amounted to 1.2 grams, and that the substance tested positive for the presence of cocaine. The total estimated weight of the content of all 21 bags was 1.8 grams.

After the State rested its case, defendant moved for a directed verdict. The trial court found that the State had introduced sufficient evidence to support the lesser-included offense of possession of a controlled substance, but granted defendant's motion for a directed verdict with respect to the greater charge of possession with the intent to deliver.

Crystal Giles was then called to testify on behalf of defendant. Giles stated that she lived in the same neighborhood where Mathews' apartment was located and was a friend of both defendant and Loving. Giles also stated that Mathews was a friend of Giles' mother. On the day in question, Giles was walking about two buildings from 2804 N. Leavitt when she saw Mathews being held up against a wall by police officers who were going through her pockets. An officer had Mathews' keys in his hand, and then the officers and Mathews all went upstairs. Giles did not see Mathews sign any paper work during the time that Giles watched, which was about 20 minutes.

Teri Mathews testified that police met her outside of her apartment, took the keys from her and then went upstairs. She was not inside the apartment when police conducted the search. At some point, they called for her to come upstairs, and it was then that she signed the consent to search form. When asked if she signed it voluntarily, she replied, “After he told me I would lose my house, yeah.” On cross-examination, Mathews testified that aside from herself, the only other persons in her apartment were defendant and Loving. She also noted that the drugs found did not belong to her and that she did not know how they got there.

Defendant testified that she stayed overnight in Mathews' apartment with her fiance, Loving, the night before the search and her arrest. When police entered Mathews' apartment, defendant was in the bedroom, but was not asleep or lying down. Defendant claimed that as she opened the bedroom door, three officers rushed in and handcuffed her and Loving. Police then had the two sit on the couch in the living room while police searched the bedroom.

At one point, the police officers went away with Mathews, and when the officers came back, they had “a piece of paper saying they had consent to search.”

On cross-examination, defendant acknowledged that there is a night stand located in Mathews' bedroom, but claimed that it was attached to a wall and not next to the bed. She denied that there were any drugs on the night stand.

Officer Stephen Lotts was then called as a witness on behalf of the State. He testified that he went to 2804 N. Leavitt and met Mathews outside the building with Officers Bonafazzi and Graves. The officers determined that Mathews was the leaseholder of apartment 366. Lotts noted that after the officers explained to Mathews why they were there, she signed a consent to search form that allowed Lotts and the other officers to enter the apartment and search it. The form was signed outside on the sidewalk in front of the building in Lotts' presence, and at no time did the officers have Mathews “up against a wall.” Lotts also stated that no threats of any kind were made by himself or his fellow officers to induce Mathews to sign the consent form. It was Officer Bonafazzi that received the keys for the apartment from Mathews. The three officers then went upstairs to search the apartment while Mathews remained outside. After refreshing his recollection with a review of the consent to search form signed by Mathews and the arrest report of defendant's arrest, Officer Lotts testified that Mathews signed the consent to search form at 11:10 a.m. and defendant was placed under arrest at 11:30 a.m.

Lotts stated on cross-examination that Mathews voluntarily gave up her keys to the officers to open the door and enter her apartment. Lotts also noted that the officers were inside the apartment for at least 10 or 15 minutes before an arrest was made.

In his closing argument, defense counsel began by arguing that defendant was not proven guilty beyond a reasonable doubt because there was nothing to connect defendant to the cocaine that police found in the bedroom. Defense counsel stated as follows:

“Judge, there's nothing here that ties [defendant] to this cocaine that the police found. She's not holding it. She's not making any statement saying...