People v. Orta
| Decision Date | 27 September 2005 |
| Docket Number | No. 1-04-2442.,1-04-2442. |
| Citation | 836 N.E.2d 811 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edwin ORTA, Defendant-Appellant. |
| Court | Illinois Supreme Court |
Michael J. Pelletier, Deputy Defender, Caroline E. Bourland, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.
Richard A. Devine, State's Attorney, Cook County, Chicago (James Fitzgerald, Alan J. Spellberg, Sally Dilgart, Kathleen M. Kain, of counsel), for Appellee.
A person charged with a crime has the right to expect his lawyer's questions to prosecution witnesses will not help the State prove its accusation. In this case, the defendant's lawyer elicited testimony from police officers that enabled the State to prove an essential element of its charge. For that reason, we reverse the defendant's conviction for possession of a controlled substance with intent to deliver and remand this cause for a new trial.
Following a bench trial, the defendant, Edwin Orta, was convicted of possession of a controlled substance with intent to deliver and sentenced to 10 years' imprisonment.
Defendant contends: (1) he was denied the effective assistance of counsel where defense counsel elicited inculpatory evidence on cross-examination; (2) he was denied his right to confrontation where stipulated evidence was introduced absent an explicit waiver; (3) he is entitled to a credit of $1,135.00 against his mandatory drug assessment for the time he spent in custody; and (4) the compulsory extraction of his blood and perpetual storage of his DNA violate his fourth amendment right to be free from unreasonable searches and seizures.
At trial, Chicago police officer Scott Wolf testified that he and his partner were conducting a narcotics surveillance and executing a search warrant on November 8, 2003. They were sitting in an unmarked police car outside a building at 2146 N. Milwaukee Avenue in Chicago. The building had commercial stores on the first floor with two doors in between the stores. He saw defendant exit from the first-floor door which led to an apartment on the second floor of 2146 N. Milwaukee Avenue. Defendant got into a car and drove away. The officers followed the defendant and stopped him a couple of blocks away. Wolf asked defendant to produce a driver's license. He informed the defendant he had a search warrant for the apartment at 2146 N. Milwaukee Avenue. He showed him a copy of the search warrant. Defendant said, Wolf recovered a set of house keys from the keys in the ignition of the car.
Wolf observed officer Marvin Bonnstetter try the keys on the ground-level entry door he had seen defendant exiting. The keys opened the locked door. Defendant was brought back to the scene but not brought upstairs. Wolf inventoried the keys.
On cross-examination, defense counsel asked Wolf about a "control transaction" that took place on November 7, 2003, at 2146 N. Milwaukee Avenue. Defense counsel had referred to this evidence in his opening statement. Wolf said he was present on November 7, 2003, but had no knowledge of any funds received by a "reliable informant" from the Chicago Police Department. The State objected to the evidence on grounds of relevance, and the court overruled the State's continuing objection. Defense counsel continued to ask about the November 7 transaction. Wolf said he had no knowledge of defendant's possession of any commingled funds that were later used in the investigation.
Defense counsel asked Wolf if he was aware that a black shaving bag was recovered in the apartment, and that various pieces of mail with defendant's name on it were found in the bag. Wolf said he was aware of those facts. Wolf admitted the mail bore the address of 2142 N. Milwaukee Avenue. In answer to a question by defense counsel, Wolf said a lot of male clothing was found in the apartment. None of the clothing was inventoried or mentioned in a police report.
Officer Bonnstetter testified he was given keys by another officer. He used one of the keys to open the ground-floor door of the building at 2146 N. Milwaukee. He walked upstairs to the second-floor apartment. There was only one apartment unit on the second floor. The door to the apartment was ajar. Bonnstetter knocked on the door. A woman answered the door. When the officer entered the apartment, the woman and two children were inside. He told them to stay in the front room and began searching the apartment. He entered a bedroom and opened a dresser drawer. In the drawer he found two boxes of baggies and a large black shaving bag. In the bag were a small hand scale and an electric scale, $395, some mail, and 14 individually wrapped bags of what he believed to be crack cocaine. The items were inventoried. Bonnstetter said the documents in the bag were cell phone bills of Edwin Orta. Defense counsel objected on the basis of "business records," and the court sustained the objection on hearsay grounds. Bonnstetter tried the keys on the upper apartment door. Another key fit that lock. These were the keys found in the ignition of the car driven by Orta.
On cross-examination, defense counsel questioned Bonnstetter about male clothing found in the apartment. Bonnstetter said he saw men's underwear in the dresser drawer where he found the black shaving bag. He did not inventory the underwear. Defense counsel asked why the arrest report indicated only $295, not $395, was recovered. Bonnstetter explained that $295 belonged to the defendant, and $100 were prerecorded funds that belonged to the Chicago Police Department. Defense counsel asked whether the $100 in prerecorded money was used in the controlled transaction on November 7, 2003. Bonnstetter said it was. The State's objections to the evidence about the money were overruled.
The State attempted to introduce into evidence the cell phone bills addressed to the defendant. The court did not allow the bills to be entered into evidence, but let stand the oral testimony about the defendant's name and address on the bills.
The State proceeded by way of stipulation. The parties stipulated that if called to testify, Officer Marvin Bonnstetter would testify he recovered 14 baggies which were kept in his safekeeping and control from the time of recovery until the time of inventory, that the items were inventoried in a sealed condition for delivery to the Illinois State police crime lab, that the items were in substantially the same condition, and there was a proper chain of custody maintained at all times. The parties stipulated that if Kate Roscovius, a forensic chemist at the crime lab, were called to testify, she would testify she received the evidence in a sealed condition, she performed the tests commonly accepted in the area of forensic chemistry, found that the total estimated weight of the items was 29.7 grams, and the items tested positive for the presence of cocaine.
The parties stipulated that if called to testify, Officer Ruiz would testify he recovered a total of 15 bags containing suspect cocaine from the residence at 2146 N. Milwaukee Avenue on November 8, 2003.
In his closing argument, the assistant State's Attorney argued constructive possession of the drugs was evidenced by defendant's exiting the door at 2146 N. Milwaukee, his possession of the keys to the building and the apartment, and the recovery of the drugs in the apartment along with the pieces of mail in defendant's name. The evidence of defendant's intent to deliver included the amount of the drugs, the individual packaging, and the baggies and scales found with the drugs.
Defense counsel argued that no drugs were recovered from the vehicle the defendant was driving or from defendant's person. There was no evidence of who owned or leased the vehicle, or of who rented the apartment. He argued the State had not proved that defendant controlled the premises where the drugs were found. He argued the failure by officers to inventory any items of clothing damaged their credibility. Credibility also was affected, he said, by the officers' failure to turn over to the State the prerecorded funds from the previous day's sale.
The court found the defendant guilty of possession of a controlled substance with intent to deliver. In the judge's findings, the evidence he relied on included the defendant exiting the door that led to the apartment, his possession of keys to the apartment, the male clothing, and the pieces of mail with defendant's name that were found in the bag with the drugs. The judge said the significance of the mail was not to tie the defendant to the apartment but to the drugs and drug paraphernalia in the bag. The judge found the evidence of intent to deliver included the packaging, the scales, and the money that was used by police in a controlled buy the previous day.
The defendant's motion for new trial was denied. Following the sentencing hearing, defendant was sentenced to 10 years in prison. He was ordered to submit to a DNA sample pursuant to section 5-4-3 of the Unified Code of Corrections. 730 ILCS 5/5-4-3 (West 2002). The court ordered defendant to pay fees and costs totaling $3,499, including a $3,000 assessment, pursuant to section 411.2(a)(1) of the Illinois Controlled Substances Act. 720 ILCS 570/411.2(a)(1) (West 2002).
The defendant contends he received ineffective assistance because his lawyer brought out damaging and inadmissible evidence the State did not offer. The defendant says his trial counsel elicited, and the trial court relied on, evidence of cellular phone bills with his name on them, articles of male clothing, and pre-recorded funds from the drug sale of November 7.
Where the effectiveness of a defendant's trial counsel is questioned, the defendant must show that counsel's representation fell below an...
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