People v. Johnson

• Decision Date: 28 October 2002
• Docket Number: No. 4-01-0739.,4-01-0739.
• Citation: 778 N.E.2d 772,334 Ill. App.3d 666,268 Ill.Dec. 506
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Erick JOHNSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

778 N.E.2d 772

334 Ill. App.3d 666

268 Ill.Dec. 506

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Erick JOHNSON, Defendant-Appellant.

No. 4-01-0739.

Appellate Court of Illinois, Fourth District.

October 28, 2002.

Rehearing Denied November 20, 2002.

Daniel D. Yuhas, Deputy Defender (Court-appointed) (Scott A. Lerner (argued), of counsel), Springfield, Office of the State Appellate Defender, for Erick Johnson.

John C. Piland, Champaign county State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Defender, James C. Majors, Staff Attorney (argued), State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice TURNER delivered the opinion of the court:

In February 2001, the State charged defendant, Erick Johnson, with unlawful possession of a controlled substance with the intent to deliver. In April 2001, defendant filed a motion to suppress evidence based upon an alleged illegal strip search, which the trial court denied. In June 2001, a jury found defendant guilty. Thereafter, the trial court sentenced defendant to 15 years' imprisonment.

On appeal, defendant argues (1) the trial court erred in denying his motion to suppress; (2) he received ineffective assistance of counsel based on his attorney's alleged conflict with a codefendant; (3) the trial court erred in denying his motion for a directed verdict and the jury's guilty finding was based on insufficient evidence; and (4) the jury erred in finding defendant guilty based on the lack of expert testimony indicating the chromatography mass spectrometer was working properly. We affirm.

I. BACKGROUND

In February 2001, the State charged defendant by information with one count of unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(c)(2) (West 2000)), alleging he knowingly and unlawfully possessed 5 grams or more but less than 15 grams of a substance containing cocaine with the intent to deliver. Thereafter, defendant pleaded not guilty and requested a jury trial.

In April 2001, defendant filed a motion to suppress the State's intended evidence of (1) 15 bags of crack cocaine and (2) United States currency. Defendant argued law enforcement personnel subjected him to an unreasonable and unlawful strip search that went beyond the scope of a search incident to a lawful arrest.

In May 2001, the trial court conducted a hearing on defendant's motion to suppress. Harvey Welch acted as attorney for defendant and the codefendant, Otto Taylor.

Kary Keleher, an officer with the Urbana police department, testified he and Officer Jay Loschen initiated a traffic stop of a vehicle on February 23, 2001, after the driver disobeyed a traffic sign. After an identification check, the officers learned defendant, a passenger in the vehicle, had a civil warrant for which he was thereafter arrested. Following his arrest, the officers took him to the Champaign County correctional center. Later, Officer Loschen and Officer James Black conducted a strip search of defendant in a shower room. A large bag containing several smaller individual plastic bags containing 15 rocks of crack cocaine was found during the strip search of defendant.

Officer Loschen testified he arrested defendant on the civil warrant. Thereafter, he conducted a search of defendant and found nothing. Officer Loschen testified he and Officer Black conducted the strip search of defendant and recovered the suspected cocaine from defendant's underwear. He stated the search was performed for reasons of evidence and safety.

Following arguments, the trial court found the police arrested defendant on a civil warrant. The court also concluded Officer Loschen had a reasonable belief that defendant was concealing a controlled substance and was entitled to proceed with the strip search. The court then denied defendant's motion to suppress.

In June 2001, defendant's jury trial commenced. Officer Keleher again testified to the traffic stop on February 23, 2001. He stated he was Officer Loschen's field-training officer at that time. The occupants of the car included the driver Jermaine Wilson, defendant, seated in the front passenger seat, and Otto Taylor, sitting in the backseat on the passenger side. Following an identification check on defendant, the officers were advised of a valid civil warrant. Defendant was subsequently arrested and searched. The search of defendant revealed United States currency in his pockets. The officers then transported defendant to the jail. Officer Keleher testified his search of the vehicle did not reveal any pipes or other devices that would be used in smoking or ingesting crack cocaine. In his experience, Officer Keleher stated crack cocaine is commonly used in an amount referred to as a "$10 rock." He stated the "rocks" are usually packaged individually using the corners of plastic sandwich bags.

Officer Loschen testified he arrested defendant on his civil warrant and conducted a search resulting in the recovery of $291. After transporting defendant to the jail, Officer Loschen informed defendant he was going to conduct a strip search. During the search of defendant, Officer Loschen discovered 15 individual packages of a white, chunky substance in defendant's underwear, which he suspected to be crack cocaine. Officer Loschen indicated his search of defendant and the other occupants of the vehicle did not reveal any devices that could be used for smoking cocaine. After the search of defendant at the jail, Officer Loschen testified defendant made the spontaneous statement: "You got me. Call the State's Attorney and I will plead now."

James Black, a correctional officer at the Champaign County correctional center, testified he participated in the search of defendant in the shower room along with Officer Loschen. He observed the recovery of a "little bag" from defendant's underwear area.

John Martin, a forensic scientist employed by the Illinois State Police Bureau of Forensic Science, testified as an expert in forensic chemistry for controlled substances and cannabis. He indicated he tested two larger bags and a smaller bag containing a white, chunky substance weighing 8.8 grams. He also weighed the remaining 12 bags, which totaled 2 grams. Martin performed "color tests" on a portion of the 8.8 grams and found an indication of cocaine present in the powder. Then he performed a confirmatory analysis using an infrared spectrophotometer and a gas chromatograph mass spectrometer. Those tests revealed the presence of a cocaine base. Martin opined, based upon a reasonable degree of scientific certainty, that the 8.8 grams contained cocaine as its base. He did not perform tests on the other 2 grams found in the 12 bags.

Following the conclusion of the State's case and at the close of all the evidence, defendant moved for a directed finding, which the trial court denied. Defendant rested without presenting any evidence. Following closing arguments, the jury found defendant guilty of possession with intent to deliver a controlled substance. In July 2001, defendant filed a motion for a new trial, which the trial court denied. Following a sentencing hearing, the trial court sentenced defendant to 15 years' imprisonment. This appeal followed.

II. ANALYSIS

A. State's Motions

Initially, we consider the State's motion to supplement the record on appeal and its motion to correct the motion to supplement the record on appeal. These motions are allowed, and our review of the record indicates a body attachment in Champaign County case No. 00-F-434 was issued against defendant on February 8, 2001.

B. The Trial Court's Denial of Defendant's Motion To Suppress

Defendant argues the trial court erred in denying his motion to suppress because (1) the police had no authority to ask for his identification and perform a computer search; and (2) the officer's strip search violated his constitutional rights and Illinois law. We disagree.

First, we find defendant's argument concerning the officer's request for his identification to be forfeited. Failure to raise a contention in a motion to suppress results in forfeiture of the issue. People v. Johnson, 250 Ill.App.3d 887, 892, 189 Ill.Dec. 538, 620 N.E.2d 506, 511 (1993). Defendant failed to argue the propriety of the identification check in his motion to suppress or at the hearing; instead, he structured his focus on the constitutionality of his strip search. To preserve an argument for appeal from a jury trial, the defendant's "challenge must be presented to the trial court not only at the motion to suppress stage, but it must also be included in the defendant's post[ ]trial motion." Johnson, 250 Ill.App.3d at 893, 189 Ill.Dec. 538, 620 N.E.2d at 511. Such a requirement allows the court of review the benefit of the trial court's judgment on the issue under contention. Johnson, 250 Ill.App.3d at 893, 189 Ill.Dec. 538, 620 N.E.2d at 511. Here, defendant failed to include his argument on this issue in his motion to suppress and his posttrial motion. Thus, defendant has failed to properly preserve this issue for review.

Second, we find the trial court did not err in denying defendant's motion to suppress. Defendant argues the strip search violated section 103-1(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-1(c) (West 2000)). We disagree.

Statutory construction is a matter of law and our review is de novo. People v. Slover, 323 Ill.App.3d 620, 623, 257 Ill.Dec. 359, 753 N.E.2d 554, 557 (2001). Section 103-1(c) of the Code states:

"No person arrested for a traffic, regulatory[,] or misdemeanor offense, except in cases involving weapons or a controlled substance, shall be strip searched unless there is reasonable belief that the individual is concealing a weapon or controlled substance." 725 ILCS 5/103-1(c) (West 2000).

In this case, defendant was arrested on a civil warrant for failure to appear in Champaign County case No. 00-F-434. Thereafter, de...