People v. McPhee

• Decision Date: 29 November 1993
• Docket Number: No. 1-91-2908,1-91-2908
• Citation: 195 Ill.Dec. 59,628 N.E.2d 523,256 Ill.App.3d 102
• Parties: , 195 Ill.Dec. 59 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alexander McPHEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 523

628 N.E.2d 523

256 Ill.App.3d 102, 195 Ill.Dec. 59

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alexander McPHEE, Defendant-Appellant.

No. 1-91-2908.

Appellate Court of Illinois,

First District, First Division.

Nov. 29, 1993.

Office of the State Appellate Defender, Michael J. Pelletier, Deputy Defender, Chicago (Nan Ellen Foley, Asst. Appellate Defender, of counsel), for defendant-appellant.

Jack O'Malley, Cook County State's Atty., of Chicago (Renee Goldfarb, Margaret J. Faustmann, Katherine S.W. Schweit, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice BUCKLEY delivered the opinion of the court:

Following a jury trial, defendant Alexander McPhee was found guilty of possession with the intent to deliver more than 15 and less than 100 grams of a controlled substance containing cocaine. The trial judge sentenced defendant to nine years in the Illinois State Penitentiary. On appeal, defendant argues: (1) that his sixth amendment right to effective assistance of counsel was denied by his attorney's failure to move to quash his arrest on the grounds that the police made a forcible entry and search of his wife's home while acting pursuant to a warrant which only authorized a search of a Federal Express envelope; (2) that his motion to suppress evidence should have been granted where the police officer did not have any articulable reason to suspect that the Federal Express package addressed to defendant contained contraband before seizing it for a "dog sniff"; (3) that he must be resentenced where the trial court considered in aggravation that defendant's daughter Mary, a witness to the police arrest and search of the McPhee home, testified on defendant's behalf; and (4) that he was denied a fair trial by the prosecutor's remarks in closing argument urging the jury to convict defendant in order to combat the "number one disease" of drug abuse and that "every single member of your community is a potential victim."

On September 30, 1988, Detective Michael Farrant and his narcotics detection dog were assigned to the Federal Express facility at Los Angeles International Airport. According to Farrant, when his narcotics detection dog "sniffed" an envelope addressed to the defendant, the dog "alerted" to the presence of narcotics. Farrant allowed the envelope to be loaded onto a plane bound for Illinois and then he called the Chicago police department. He informed Detective Richard Boyle that a suspect package addressed to A. McPhee at 253 East 142nd Street would be arriving through Federal Express. Based upon the information provided by Farrant, Boyle prepared a complaint for a search warrant and, on October 2, 1988, Judge Bertina Lampkin signed the search warrant. The search warrant commanded that the officers search "A Federal Express Overnight Letter, measuring approximately 8 1/2" X 11", addressed to A. McPhee, Southside Para-legal 253 East 142nd St. Dolton, Illinois." Boyle then gave the warrant to other officers to execute.

Officer Chris Coleman executed the search warrant on October 3, 1988. She opened the envelope and field tested the substance within it. The test results were positive for cocaine. Coleman then repackaged the cocaine in the Federal Express envelope and handed it to Special Agent Raymond Spoon of the Federal Bureau of Investigation.

The police then set up surveillance of the designated address. Spoon put on a Federal Express uniform and, driving a Federal Express van, he delivered the package to the address on the envelope. A young girl answered the door and offered to accept the package. Spoon said he needed to speak to her father. The girl disappeared and returned with Sharon McPhee, the defendant's wife. Sharon told Spoon that her husband was not home. Spoon, therefore, gave the package to her and left.

Five minutes later, Coleman, Detective George Mays and another officer went to the front of the house. When they knocked on the door, they saw defendant's wife and daughter look through the front windows. Someone then opened the door a crack and the officers identified themselves. According to the testimony of both Coleman and Mays, Mays then put his foot in the door and the officers made a forcible entry into the home. Mays remained in the living room with defendant's wife and daughter while Coleman went to the back of the house. Coleman found defendant in a back office. According to Coleman, she saw in "plain view" just a few feet away from defendant a bag of white powder and a postal scale. Coleman stated that defendant then admitted that they were his drugs. He was arrested and read his Miranda rights. Mays then asked defendant if he had any more drugs in the house and defendant said he had some in the bedroom. Defendant and Mays then went upstairs where Mays recovered the empty Federal Express envelope, a bag of marijuana, two vials of cocaine, and a telephone bill in Sharon McPhee's name.

At trial, the defense presented the testimony of defendant, his wife and his daughter. The jury returned a verdict of guilty of possession with the intent to deliver more than 15 and less than 100 grams of a controlled substance containing cocaine. At the sentencing hearing, the judge considered the fact that defendant allowed his minor daughter to testify falsely as an aggravating factor and sentenced defendant to nine years in the penitentiary.

Prior to trial, defendant filed a motion to suppress on the grounds that the Los Angeles police officer did not have probable cause or reasonable suspicion to seize the Federal Express envelope. He also challenged the warrant on the grounds that it only stated that the officers had probable cause to believe that the envelope contained cocaine. Since the drug detection dog could not differentiate between cocaine, marijuana, and heroin, defense counsel argued that the police must have opened the package prior to receiving the warrant. Defendant's pretrial motions were denied.

Defendant's first contention on appeal is that he was denied his right to the effective assistance of counsel because defense counsel failed to make a pretrial motion to quash his arrest and suppress evidence on the grounds that the police forcibly entered and searched his wife's home without a proper warrant. Specifically, he asserts that the warrant the police possessed at the time of his arrest and the search of the house only authorized a search of the Federal Express envelope. He contends that since the police, in effect, made a warrantless entry and search, the court would have granted his motion to quash his arrest and suppress the evidence discovered in the search and, therefore, there is a strong probability that the result of the trial would have been different.

The State argues, on the other hand, that defense counsel's failure to make such a motion was a "tactical decision" and a matter of professional judgment. The State points out that defense counsel made several other motions to suppress, called witnesses and cross-examined witnesses, pursued a defense throughout trial and objected numerous times. The State asserts that, rather than viewing specific acts or omissions of counsel, counsel's "total performance" must be evaluated in order to determine whether there has been a breakdown in the adversarial process. The State also argues that it is "absurd" for defendant to suggest that the warrant was only for the Federal Express envelope and not for the home. Finally, the State maintains that "exigent circumstances" existed which would have justified a warrantless entry.

Ineffective assistance of counsel is established if defendant demonstrates that his counsel's performance fell below an objective standard of reasonableness and that, but for this substandard performance, there is a reasonable probability that the outcome of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-94, 693-98, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674, 693-98; People v. Albanese (1984), 104 Ill.2d 504, 525, 85 Ill.Dec. 441, 450, 473 N.E.2d 1246, 1255; People v. Martin (1992), 236 Ill.App.3d 112, 120, 177 Ill.Dec. 533, 538, 603 N.E.2d 603, 608.) In order to show a "reasonable probability" that the trial result would have been affected, defendant must demonstrate more than just that his counsel's errors "had some conceivable effect on the outcome of the proceeding." (People v. Patten (1992), 240 Ill.App.3d 407, 413, 181 Ill.Dec. 278, 282, 608 N.E.2d 351, 355, citing Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L.Ed.2d at 697.) Defendant must show that counsel's deficient performance was "sufficient to undermine confidence in the outcome." (Patten, 240 Ill.App.3d at 413, 181 Ill.Dec. at 282, 608 N.E.2d at 355, citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.) Therefore, a defendant is only entitled to competent, and not perfect, representation. People v. Purnell (1984), 126 Ill.App.3d 608, 623, 82 Ill.Dec. 87, 98, 467 N.E.2d 1160, 1171.

Additionally, in order to avoid the "distorting effects of hindsight," reviewing courts indulge in a "strong presumption" that defense counsel's performance "[fell] within the wide range of reasonable professional assistance." (Patten, 240 Ill.App.3d at 413, 181 Ill.Dec. at 282, 608 N.E.2d at 355, citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.) The United States Supreme Court stated in Strickland that:

"It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. * * * There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.]" (Patten, 240 Ill.App.3d at 414, 181...