People v. Bailey

• Decision Date: 06 September 2007
• Docket Number: No. 2-05-1260.,2-05-1260.
• Citation: 874 N.E.2d 940
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George K. BAILEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

874 N.E.2d 940

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George K. BAILEY, Defendant-Appellant.

No. 2-05-1260.

Appellate Court of Illinois, Second District.

September 6, 2007.

James K. Leven (Court-appointed), Chicago, for George K. Bailey.

Paul A. Logli, Belvidere, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate Prosecutor, Elgin, L. Anita Richardson, Skokie, for the People.

Justice O'MALLEY delivered the opinion of the court:

Defendant, George Bailey, appeals from his conviction of possession of a controlled substance with intent to deliver. On appeal, defendant argues that his trial counsel was ineffective for failing to file a motion to quash his arrest and suppress evidence found pursuant to a search of the vehicle in which defendant was riding just before his arrest. For the reasons that follow, we affirm.

Defendant was charged in connection with an incident in which police, who arrested defendant after learning during a vehicle stop that defendant had an outstanding arrest warrant, searched the car in which defendant had been riding and discovered a substance alleged to have contained cocaine.

During an October 14, 2005, pretrial conference, the following conversation took place between defense counsel, the trial court, and defendant:

"[DEFENSE COUNSEL]: * * * In reviewing this case with [defendant], * * * I indicated to him that I thought that a motion to suppress statements should be filed based on the evidence that was contained in the police reports. He indicated to me at that time, and again today when I talked to him about it, he wishes no motions to be filed.

* * *

THE COURT: * * * [Defendant], you consulted with your attorney. You don't want any motions filed and you want to have your case set for trial, right?

THE DEFENDANT: Yes."

Before the next pretrial conference, defense counsel filed several motions in limine, including a motion to "prohibit the State from eliciting testimony from their witnesses regarding any statements made by the defendant." At the next pretrial conference, on October 24, the following conversation occurred:

"[PROSECUTOR]: I guess I have an objection to proceeding in this manner. I believe the appropriate action is for the Defense to file a Motion to Suppress Statements. In essence that's what they are doing, but they are titling it `Motion in limine.' If they are going to allege a Miranda violation, then it has to be filed, and there has to be a hearing on that issue, Judge. Then the Court can rule.

THE COURT: Response?

[DEFENSE COUNSEL]: The basis of a Motion in limine is to do exactly what counsel said, deal with the evidence, to see whether it's admissible or not. * * *

* * *

THE COURT: How come you didn't file a Motion to Suppress? * * *

[DEFENSE COUNSEL]: The Court will recall, when we were here at the last court date, I indicated I thought there was a motion with my client, and at such time my client directed me not to do so. He did not wish to delay his 120-day speedy trial demand. I could not delay the Defendant's right to his speedy trial. I felt that there was an appropriate remedy to address the issue before trial in this manner."

The trial court ruled that defense counsel had preserved defendant's right to object during trial to the admission of the statements. (During trial, the trial court denied defendant's motion in limine.) The cause then proceeded to a trial by jury.

Because defendant's appellate arguments all center on the propriety of police conduct during his initial stop and arrest, we limit our discussion of the evidence adduced at trial to the evidence pertinent to those issues.

Officer John Parry was the first witness to testify for the State. He testified that, on July 2, 2005, at approximately 12:15 p.m., while he was on patrol, he saw a small red car whose occupants were not wearing their seat belts. He activated the lights on his patrol car and stopped the red car. As Parry was informing his radio control operator that he had stopped a car, the driver of the vehicle exited the car, and, when Parry told the driver to return to the car, the driver "for some reason[ ] was putting the key into the door lock." Parry identified defendant as the passenger in the car.

After checking the driver's and defendant's identification, Parry "went back to [his] squad car to listen to the license information and check for warrants," at which point he was advised that defendant had an outstanding warrant. Parry arrested defendant, and, after defendant was searched, handcuffed, and placed in a police squad car, Parry conducted a search of the passenger compartment of the vehicle. During his search, Parry found in the center console next to the passenger seat "a plastic bag that contained smaller bags of a white course powder." The powdery substance he recovered field tested positive for the presence of cocaine. During subsequent interviews in police custody, and after more than one denial, defendant admitted that the cocaine belonged to him.

After the testimony of a crime scene technician, a forensic drug chemist, a forensic scientist specializing in latent fingerprints, and an officer from a police narcotics unit, the State rested its case, and the trial court denied defendant's motion for a directed verdict. The defense rested its case without calling any witnesses, and, after hearing closing arguments, the jury found defendant guilty of possession of a controlled substance with intent to deliver. The trial court denied defendant's motion for a new trial and sentenced him to 15 years' imprisonment. Defendant timely appeals.

Defendant's lone contention on appeal is that his conviction must be reversed because he received ineffective assistance of counsel by virtue of his attorney's failure to file a motion to quash defendant's arrest and suppress the drug evidence recovered from the car.

An accused is entitled to capable legal representation at trial. People v. Wiley, 165 Ill.2d 259, 284, 209 Ill.Dec. 261, 651 N.E.2d 189 (1995). Under the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant alleging ineffective assistance of counsel will prevail only where he or she is able to show that (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. People v. Albanese, 104 Ill.2d 504, 525, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984), adopting Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. The question of whether to file a motion to quash arrest and suppress evidence is traditionally considered a matter of trial strategy. People v. Sterling, 357 Ill.App.3d 235, 247, 293 Ill.Dec. 766, 828 N.E.2d 1264 (2005). A "trial counsel's strategic decisions during the course of the proceeding are generally protected by a strong presumption that the attorney's decisions reflect sound trial strategy rather than incompetence." Wiley, 165 Ill.2d at 289, 209 Ill.Dec. 261, 651 N.E.2d 189. To prevail on a claim that trial counsel was ineffective for failing to file a motion to quash and suppress, a defendant must show a reasonable probability that the motion would have been granted and the trial outcome would have been different. Sterling, 357 Ill.App.3d at 247, 293 Ill.Dec. 766, 828 N.E.2d 1264. Defendant's appeal rises and falls, then, with the merit of the motion to quash and suppress that he proposes counsel should have presented.

The question of whether defense counsel provided ineffective assistance requires a bifurcated standard of review, wherein a reviewing court must defer to the trial court's findings of fact unless they are against the manifest weight of the evidence but must make a de novo assessment of the ultimate legal issue of whether counsel's omission supports an ineffective assistance claim. People v. Davis, 353 Ill. App.3d 790, 794, 289 Ill.Dec. 395, 819 N.E.2d 1195 (2004). Here, the facts surrounding the ineffective assistance claim are undisputed, and the dispositive question is whether, based on the facts as presented, a motion to quash and suppress probably would have been granted. This question, too, receives de novo review. People v. Sorenson, 196 Ill.2d 425, 431, 256 Ill.Dec. 836, 752 N.E.2d 1078 (2001). We therefore review defendant's arguments de novo.

Before we reach the merits of a motion to quash and suppress, we must discuss a threshold issue presented by the State. The State argues that defendant understood that a pretrial motion to suppress could have been filed on his behalf, yet he knowingly waived such arguments when he told his counsel that he did not want any motions filed for fear of delaying his trial. The State directs us to People v. Whalen, 158 Ill.2d 415, 199 Ill.Dec. 672, 634 N.E.2d 725 (1994), as support for this argument. In Whalen, the trial court barred the defense from presenting expert testimony, because the defense "had been dilatory in disclosing the expert's identity." Whalen, 158 Ill.2d at 424, 199 Ill.Dec. 672, 634 N.E.2d 725. The trial judge suggested, however, that it could grant a continuance so that the defense could present the witness after the State had time to prepare. Whalen, 158 Ill.2d at 425, 199 Ill. Dec. 672, 634 N.E.2d 725. After learning that such a continuance would delay his trial, the defendant himself indicated that he did not want a continuance. Whalen, 158 Ill.2d at 425, 199 Ill.Dec. 672, 634 N.E.2d 725. The supreme court held that the defendant had waived objection to the trial court's decision to bar the testimony. Whalen, 158 Ill.2d at 426-28, 199 Ill.Dec. 672, 634 N.E.2d 725.

The State observes that defendant here stated in open court that he wished to forgo a motion to suppress and he wished to begin his trial, and it argues by analogy to Whalen that defendant's statement constituted a waiver of any...