People v. Givens

• Decision Date: 10 July 2008
• Docket Number: No. 1-06-0679.,1-06-0679.
• Citation: 892 N.E.2d 1098,384 Ill.App.3d 101
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fatima GIVENS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

892 N.E.2d 1098

384 Ill.App.3d 101

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Fatima GIVENS, Defendant-Appellant.

No. 1-06-0679.

Appellate Court of Illinois, First District, Fourth Division.

July 10, 2008.

Rehearing Denied July 28 and August 25, 2008.

Michael J. Pelletier, Deputy Defender, (Elizabeth A. Botti, of counsel) Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, Michelle Katz, Daniel J. Griffin, of counsel), Chicago, IL, for Appellee.

Presiding Justice NEVILLE delivered the opinion of the court:

Fatima Givens was charged with one count of possession of a controlled substance with intent to deliver. At the close of the State's case, the trial court granted Givens' motion for a directed verdict and dismissed the count for possession of a controlled substance with intent to deliver. Following a bench trial, Givens was found guilty of the lesser included offense of possession of a controlled substance and sentenced to 12 months' probation. In this appeal, Givens presents the following issues for review: (1) whether she received ineffective assistance of counsel because her trial counsel filed but withdrew a motion to quash arrest and suppress evidence; (2) whether the State failed to prove beyond a reasonable doubt that she had either actual or constructive possession of the drugs recovered inside her friend's apartment; (3) whether the State failed to establish a sufficient chain of custody where the inventory numbers of the items recovered did not match the number of the items that were tested; and (4) whether the trial court abused its discretion when it refused to sentence her to probation pursuant to section 410 of the Illinois Controlled Substances Act (720 ILCS 570/410 (West 2006)). For the reasons that follow, we reverse and remand this case for a hearing on a motion to quash arrest and suppress evidence and, if necessary, a new trial.

BACKGROUND

Pretrial

On July 13, 2005, Givens' counsel filed a motion to quash arrest and suppress evidence that alleged that the arrest was made without authority of a valid search or arrest warrant. Givens' motion also alleged that her conduct prior to the arrest could not reasonably be interpreted by the arresting officers as constituting probable cause that she had committed or was about to commit a crime. Givens' motion further alleged that, due to the improper arrest, evidence recovered by the police should have been suppressed.

On January 11, 2006, Givens' counsel made an oral motion for leave to withdraw the July 13, 2005, motion to quash arrest and suppress evidence. The trial court granted the motion to withdraw the motion to quash arrest and suppress evidence.

Trial

The State's Case

Officers Robert Graves testified that, on April 9, 2005, he, Officers Rafael Bonifazi and Stephen Lotts received information from a confidential informant that drugs were being sold in apartment 366 at 2804 N. Leavitt in Chicago. The apartment was not rented by either Givens or Loving. Instead, the apartment was rented by Teri Matthews, who was one of Givens' friends. Officer Graves testified that he and his fellow officers arrived at the building and met Matthews outside. According to Officer Graves, Matthews signed a consent form that allowed the police to enter her apartment and gave them a key. Officer Graves testified that the officers entered the apartment and approached the sole bedroom found therein. Officer Graves entered the bedroom and found Givens and Loving "still half asleep." According to Officer Graves, he and the other officers observed a clear plastic bag that contained 21 smaller plastic baggies. Each of the smaller plastic baggies contained crack cocaine. There was also a razor blade on the night stand next to the bed. Officer Graves also testified that the police recovered $355 of United States currency.

Officer Graves testified that he placed the subjects in custody, and he and his partner transported them and the recovered items to the 19th District for processing and inventory. Officer Graves testified that his partner, Officer Bonifazi, was responsible for conducting the actual inventory. Finally, Officer Graves testified that the recovered items were inventoried at the 19th District and the drugs were placed in a vault and the other items were placed in an inventory bin.

The State also presented a stipulation that if Officer Bonifazi testified his testimony would be that he inventoried the recovered narcotic items under inventory number "10513558" and heat-sealed them into an inventory envelope for delivery to the Illinois State Police crime lab. According to the stipulation, when the items left Officer Bonifazi's possession, they were in a sealed condition.

Next, the State presented a stipulation for the testimony of Hasnain Hamayat, a forensic chemist with the Illinois State Police crime lab. According to the stipulation, if Hamayat had been called to the stand, he would have testified (1) that he received the inventory from the Chicago police department in a heat-sealed condition; (2) that he opened the inventory envelope and found that it contained 21 plastic baggies; (3) that all of the equipment he used to test the inventory was tested, calibrated and functioning properly; (4) that Hamayat employed commonly accepted forensic chemistry tests for ascertaining the presence of controlled substances; (5) that, after performing the tests on the contents of 14 of the 21 items recovered, Hamayat concluded that the items tested positive for the presence of cocaine and that the actual weight was 1.2 grams; (6) that the total estimated weight of the 21 items was 1.8 grams; and (7) that, after testing and analyzing inventory number "10515338," he resealed the items, would identify them in court as the same items he tested, and that a proper chain of custody was maintained.

Following the stipulations concerning Officer Bonifazi's and Hamayat's testimony, the State rested. The defense made a motion for a directed finding and argued that Givens was not seen holding, possessing, carrying or trying to sell any of the recovered narcotics. The defense also argued that no buyers were arrested. The State argued that the police entered the apartment with Matthews' permission and saw 21 bags of crack cocaine and other empty bags along with a razor blade. Based upon the aforementioned facts, the State argued that Givens had constructive possession of those items.

The trial court found that "[b]ased upon the evidence presented with regard to the motion for directed finding as to possession of a controlled substance with intent to deliver, it will be granted, but I find the State has put forth sufficient evidence to establish the lesser-included offense of possession of a controlled substance."

The Defendant's Case

Crystal Giles, a friend of the defendant, testified that on April 9, 2005, at 11:30 a.m., she was walking from 2890 North Clybourn to 2816 North Leavitt when she observed her mother's friend, Teri Matthews, being held up against a wall by police officers who were going through her pockets. Giles also testified that she observed a police officer with Matthews' keys and she observed Matthews go up the stairs into her building with the police officers.

Teri Matthews testified that she did not voluntarily sign a consent-to-search form. Matthews testified that she was on her way home when Officer DeLaFont approached her. According to Matthews, the police brought her into her apartment after they had been upstairs. Matthews testified that she was told that she would lose her house if she did not sign a consent form, so she signed it.

Fatima Givens testified that she was in Teri Matthews' apartment on April 9, 2005, at 11:30 a.m. Givens testified that she was a houseguest in Matthews' apartment the night before. According to Givens, she invited Loving to stay with her that night. The following morning, Matthews knocked on the bedroom door and told Givens that she was going to the store. Then Matthews left the apartment. Givens also testified that, when she got up to use the washroom, she opened the bedroom door and three police officers rushed in. According to Givens, the officers put handcuffs on her and Loving and led them out of the bedroom while they searched it. Givens testified that the police showed her a signed consent-to-search form and told her they found something but refused to tell her what it was. Givens also testified that she and Loving were taken to the 19th District police station. Finally, Givens denied storing or selling cocaine.

The State's Rebuttal

Officer Stephen Lotts testified in rebuttal that he went to 2804 North Leavitt to follow up on a tip from a confidential informant that drugs were being sold out of apartment 366. According to Officer Lotts, Matthews gave written consent to search the apartment and gave them keys. Officer Lotts denied that he or any of the police officers on the scene held Matthews against a wall. He also denied that any officer made threats to Matthews in order to get her to sign the consent-to-search form. Officer Lotts testified that Matthews remained outside the apartment building the entire time the apartment was being searched. Following Officer Lotts' testimony, the State rested in rebuttal.

The trial court found Givens guilty of possession of a controlled substance. On February 2, 2006, Givens filed a motion for new trial. The trial court denied the defendant's motion for a new trial and, after hearing arguments in aggravation and mitigation, sentenced Givens to 12 months of probation, 50 hours of community service, and DNA indexing. The trial court also assessed costs and fees of $1,259. The defendant made an oral motion to reconsider the sentence and requested that she be sentenced to probation pursuant to section 410 of the Illinois Controlled Substances Act. 720 ILCS 570/410 (West 2006). The trial court denied the...