People v. Ash

• Decision Date: 23 February 2004
• Docket Number: No. 4-02-0838.,4-02-0838.
• Citation: 346 Ill. App.3d 809,282 Ill.Dec. 30,805 N.E.2d 649
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Russell S. ASH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

805 N.E.2d 649

346 Ill. App.3d 809

282 Ill.Dec. 30

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Russell S. ASH, Defendant-Appellant.

No. 4-02-0838.

Appellate Court of Illinois, Fourth District.

February 23, 2004.

Michael J. Pelletier, Deputy Defender (Court-appointed), Jeffery A. Waldhoff, Assistant Defender, Office of the State Appellate Defender, Chicago, for Russell S. Ash.

Barney S. Bier, State's Attorney, Quincy, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director (Anastacia R. Brooks, of counsel), State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice APPLETON delivered the opinion of the court:

A jury found defendant, Russell S. Ash, guilty of possession of a controlled substance (less than 15 grams) (720 ILCS 570/402(c) (West 2002)). Ash appeals on four grounds: (1) the trial court violated Supreme Court Rule 608(a)(9) (177 Ill.2d R. 608(a)(9)) and his right to due process by allowing voir dire to proceed off the record; (2) defense counsel rendered ineffective assistance by waiving the reporting of voir dire; (3) the trial court erroneously admitted evidence of an uncharged crime, possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2002)); and (4) the evidence was too weak and improbable to support the conviction. We affirm.

I. BACKGROUND

The State charged that on February 4, 2002, Ash knowingly and unlawfully possessed methamphetamine.

A Quincy police officer, Shannon Pilkington, testified that at 1:20 a.m. that day, he was patrolling the city in his squad car when he noticed a state trooper had pulled someone over. He stopped and got out to help. The trooper arrested the driver for driving under the influence and asked the passenger, a woman in a miniskirt, to step outside so he could search the vehicle. It was icy out and close to zero, and Pilkington told her she could wait in his squad car, if she liked, where it was warm. She accepted. "I did a quick pat[-]down of her person," Pilkington testified, "I didn't actually search her pockets." She climbed into the backseat. When the trooper said it was all right for the woman to leave, Pilkington let her out of the squad car and "searched the [backseat] area * * * and underneath both the driver's and passenger seats," shining his flashlight, "to see if that female" (as he called her) had "left any contraband." He saw nothing.

A little over an hour later, Pilkington helped to arrest a man, wanted on a warrant, who was standing in the bay of an automatic car wash, beside a Chevrolet Blazer. Ash, a passenger in the Blazer, got out and gave Pilkington permission to search his person. (Because the search and seizure of Ash's person are not at issue in this appeal, we express no opinion thereupon.) He searched the front and back pockets of Ash's pants as well as his coat pockets. In the right jeans pocket, he found "a nylon pouch that contained a glass vial and a glass tube. It also contained a * * * small metal tin. * * * It appeared that the glass tube was a snort tube * * * [f]or ingesting methamphetamine or cocaine." Users of methamphetamine commonly placed the drug "on the foil" and "plac[ed] the lighter underneath * * * it[,] * * * heating it up and then ingesting the fumes from the foil through a tube." Pilkington arrested Ash for possession of drug paraphernalia, handcuffed his hands behind his back—securely, so he could not get his hands loose—and put him in the backseat of the squad car, where he sat for 10 to 15 minutes. No one else had been in the backseat since the woman in the miniskirt left.

Pilkington testified he then drove Ash to police headquarters, three blocks away, for booking. After parking the squad car in the police parking garage and walking around to the backdoor of the squad car to get Ash out, Pilkington saw, through the window, a white object on the back passenger floorboard. He pretended not to see it. "I did not know if he had anything else on him[,] and I didn't want any problems at this time," he testified. "I didn't want the evidence to be destroyed by [his] stepping on it or pushing it far underneath the seat." He took Ash out of the squad car, locked the car, and escorted him to an interview room.

In the well-lit police headquarters, Pilkington realized, for the first time, that Ash was wearing not one but two jackets, one on top of the other. He had searched the outer jacket but not the inner one. He then searched the inner jacket and in the right front pocket found a stack of coffee filters. "Coffee filters," he testified, "are commonly used in the manufacture of methamphetamine. The product is poured through the filters to filter out the ingredients that you don't want." He then returned to the squad car and picked up the white object from the floorboard. "It was * * * a small plastic bag that contained another plastic bag that had a white powdery substance [resembling] methamphetamine. The outer [B]agg[ie] looked [as if] it had been ripped open."

The powder in the plastic bags fieldtested positive for methamphetamine, and the crime laboratory confirmed, by more thorough testing, that it was indeed methamphetamine, 2.5 grams of it. The laboratory saw no residue, however, on any of the items that Pilkington had found in Ash's pants pocket and therefore did not test those items. Testing of the coffee filters proved inconclusive. On the plastic bags, the laboratory found no fingerprints "suitable for comparison."

The jury found Ash guilty of possessing methamphetamine, a Class 4 felony, for which the trial court sentenced him to three years' imprisonment. This appeal followed.

II. ANALYSIS

A. Waiving the Reporting of Voir Dire

Before trial, the trial court asked both the prosecutor and defense counsel if they wanted voir dire to be reported. Both declined. Ash argues that by allowing voir dire to proceed without a court reporter, the trial court violated Rule 608(a)(9) and his right to the due process of law. He also argues his defense counsel rendered ineffective assistance by waiving the reporting of voir dire. He cites Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967), among other authorities.

Unlike the Iowa statute in Entsminger, 386 U.S. at 749-50, 87 S.Ct. at 1402-03, 18 L.Ed.2d at 503, Illinois Supreme Court Rule 608(a) requires that the record on appeal be exhaustively inclusive. See 177 Ill.2d R. 608(a) (listing the numerous items that "[t]he record on appeal must contain"). Iowa law required the compilation of merely a skeletal record on appeal, unless the defense counsel affirmatively requested a fuller record. Entsminger, 386 U.S. at 749-50, 87 S.Ct. at 1402-03, 18 L.Ed.2d at 503. Not so with Illinois law. See 177 Ill.2d R. 608(a). For that reason alone, Entsminger is distinguishable.

Rule 608(a) requires, among other things, that "the court reporter * * * take full stenographic notes of the proceedings regarding the selection of the jury." 177 Ill.2d R. 608(a)(9). To our knowledge, no court has ever interpreted Rule 608(a) to require trial courts to second-guess defense counsel when they expressly waive any of the requirements of that rule. It was the responsibility of Ash, not the trial court, to preserve an adequate record for this appeal. See People v. Leonard, 171 Ill.App.3d 380, 389, 122 Ill.Dec. 138, 526 N.E.2d 397, 403 (1988); People v. Smith, 106 Ill.2d 327, 334-35, 88 Ill.Dec. 42, 478 N.E.2d 357, 361 (1985). The trial court asked defense counsel if he wanted voir dire reported, and he said no. Ash spoke and acted through his attorney, and the trial court could rely on that answer. See People v. Tucker, 183 Ill.App.3d 333, 335, 131 Ill.Dec. 890, 539 N.E.2d 243, 244 (1989).

If defense counsel made objectively demonstrable errors that were sufficiently prejudicial to the defense, Ash has a constitutional right to a new trial. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984). Ash must show, however, "that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Failing to memorialize voir dire does not deprive a defendant of "`all hope of any [adequate and effective] appeal at all.'" (Emphases added.) Entsminger, 386 U.S. at 752,87 S.Ct. at 1404,18 L.Ed.2d at 504, quoting Lane v. Brown, 372 U.S. 477, 485, 83 S.Ct. 768, 773, 9 L.Ed.2d 892, 898 (1963). The record in this appeal is hardly comparable to the bare-bones "`clerk's transcript'" in Entsminger, which lacked even a transcript of the trial or the attorneys' briefs and arguments (Entsminger, 386 U.S. at 749,87 S.Ct. at 1402-03,18 L.Ed.2d at 503). Excusing the court reporter from taking notes of voir dire is not, in and of itself, ineffective assistance (People v. Thompkins, 121 Ill.2d 401, 448, 117 Ill.Dec. 927, 521 N.E.2d 38, 59 (1988)) or a violation of due process (People v. McClurg, 195 Ill. App.3d 381, 388, 141 Ill.Dec. 922, 552 N.E.2d 290, 294 (1990); People v. Culbreath, 343 Ill.App.3d 998, 1005, 278 Ill. Dec. 511, 798 N.E.2d 1268, 1273 (2003)).

B. Evidence of Another Crime, Possession of Drug Paraphernalia

The State charged Ash with possessing a controlled substance (720 ILCS 570/402(c) (West 2002)), not with possessing drug paraphernalia (720 ILCS 600/3.5(a) (West 2002)). Nevertheless, over defense counsel's objection, the trial court allowed Pilkington to testify that he found drug paraphernalia in Ash's pockets. Ash argues the court thereby violated the rule against evidence of other crimes. See People v. Heard, 187 Ill.2d 36, 58, 240 Ill.Dec. 577, 718 N.E.2d 58, 71 (1999).

Ash had to do more than object to Pilkington's testimony; he had to renew the objection in his posttrial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill. Dec. 265, 522 N.E.2d 1124, 1130 (1988). Having failed to do that, he invokes the doctrine of plain error. See 134...