People v. Phillips

• Decision Date: 14 October 2004
• Docket Number: No. 3-00-0511., No. 3-00-0510
• Citation: 817 N.E.2d 566,352 Ill. App.3d 867,288 Ill.Dec. 208
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joanne Y. PHILLIPS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

817 N.E.2d 566

352 Ill. App.3d 867

288 Ill.Dec. 208

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joanne Y. PHILLIPS, Defendant-Appellant.

Nos. 3-00-0510, 3-00-0511.

Appellate Court of Illinois, Third District.

October 14, 2004.

Donna K. Kelly (argued), Office of the State Appellate Defender, Ottawa, for Joanne Y. Phillips.

Lawrence M. Bauer, Deputy Director, Terence M. Patton, State's Attorney, Rita Kennedy Mertel (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice McDADE delivered the opinion of the court:

This matter is before us once again pursuant to a supervisory order of the Illinois Supreme Court directing this court to vacate its earlier judgment (People v. Phillips, 326 Ill.App.3d 157, 259 Ill.Dec. 885, 759 N.E.2d 946 (2001)) and to reconsider its decision in light of People v. Campbell, 208 Ill.2d 203, 280 Ill.Dec. 684, 802 N.E.2d 1205 (2003), to determine if a different result is warranted.

The prior decision of this court affirmed the conviction by jury of Joanne Y. Phillips for unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 1998)), unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1998)), unlawful possession of cannabis (720 ILCS 550/4(a) (West 1998)), and driving while license suspended (625 ILCS 5/6-303 (West 1998)). Defendant was sentenced to four years' imprisonment on the charge of possession with intent to deliver. The second conviction for possession of a controlled substance was vacated; defendant was sentenced to time served on the cannabis charge; and a conviction was entered on the suspended license charge. The sentence was also affirmed by this court.

At the trial of Joanne Phillips, the State had presented, by stipulation, laboratory reports establishing the contents, identity and weight of the controlled substances found in defendant's car at the time of her arrest. Defendant's attorney stipulated to their admission and defendant herself voiced no objection either when the reports were admitted without testimony of a laboratory technician or when the prosecutor alluded to them in the State's opening statement and closing argument. On appeal, defendant relied heavily of the recent decision of the Illinois Supreme Court in People v. McClanahan, 191 Ill.2d 127, 246 Ill.Dec. 97, 729 N.E.2d 470 (2000), striking down as unconstitutional a statute that provided for the admission of hearsay laboratory reports with only an affidavit unless the defendant objected. 725 ILCS 5/115-15 (West 1998). The court held that the statute impermissibly requires a defendant to take a procedural step to secure his constitutional right of confrontation and does not require a knowing, intelligent, and voluntary waiver of this right. McClanahan, 191 Ill.2d at 140, 246 Ill.Dec. 97, 729 N.E.2d at 478.

In so holding, the supreme court said:

"In the absence of this statute, the State would have to secure a knowing waiver of the confrontation right by acquiring a defendant's stipulation to allow the lab report into evidence without the testimony of the report's preparer. Unlike section 115-15, these stipulations properly require a defendant to make a voluntary, knowing, and intelligent decision whether he wishes to waive his right to confront the preparer of the report." McClanahan, 191 Ill.2d at 137-38, 246 Ill.Dec. 97, 729 N.E.2d 470.

Relying on the quoted language, Phillips had argued that her sixth amendment right of confrontation had been violated because she was not given an opportunity to personally make a knowing and voluntary waiver of that right.

Based on that same language, the defendant in People v. Campbell, 208 Ill.2d 203, 280 Ill.Dec. 684,802 N.E.2d 1205 (2003), had argued in his case that any waiver of the right of confrontation must be a knowing waiver made by the defendant personally. The court responded to that contention by Campbell, saying:

"We decline to read McClanahan so broadly. Contrary to defendant's interpretation of McClanahan, this court has never held that only a defendant can waive his sixth amendment right of confrontation. In fact, this court has never directly addressed the issue of whether defense counsel may waive a defendant's right of confrontation by stipulating to the admission of evidence." Campbell, 208 Ill.2d at 212, 280 Ill.Dec. 684, 802 N.E.2d at 1210.

In Phillips, 326 Ill.App.3d at 161, 259 Ill.Dec. 885, 759 N.E.2d at 948-49, this court distinguished the defendant's situation from that of McClanahan, noting, first, that, unlike McClanahan, Phillips had not objected to the stipulation and concluding, second, that her consent to the stipulation could be reasonably inferred from her failure to object. The court then held that because the reports were admitted pursuant to stipulation and not pursuant to the provisions of the unconstitutional statute, Phillips's argument that she was denied her sixth amendment right to confront witnesses must fail.

In People v. Campbell, 208 Ill.2d 203, 280 Ill.Dec. 684, 802 N.E.2d 1205 (2003), the supreme court considered a stipulation, apparently agreed to by counsel without any evidence of consultation with or consent by the defendant. Unlike McClanahan and Phillips, the stipulation concerned certain facts set forth in a statement that would have been testified to at trial but for the unavailability of the witness. It is not clear that the State could have secured a conviction without that testimony. At the time the stipulation was entered into, the trial judge had said the case would be dismissed if the witness could not be produced, and the jury had been selected and had heard testimony so jeopardy had attached. Nonetheless the majority found there was value to defendant in some aspects of the statement of the missing witness and therefore an agreement to stipulate was a matter of sound trial tactics and strategy. Campbell, 208 Ill.2d at 220, 280 Ill.Dec. 684, 802 N.E.2d at 1214-15.

Rejecting Campbell's reliance on McClanahan as based on a faulty interpretation, the court undertook a lengthy survey and evaluation of the existing decisions concerning who can appropriately waive a defendant's sixth amendment right to be actually confronted by the witnesses against him or her. The Campbell court then held:

"For the foregoing reasons, then, we hold that counsel in a criminal case may waive his client's sixth amendment right of confrontation by stipulating to the admission of evidence as long as the defendant does not object to or dissent from his attorney's decision, and where the decision to stipulate is a matter of legitimate trial tactics or prudent trial strategy. Where the stipulation includes a statement that the evidence is sufficient to convict the defendant or where the State's entire case is to be presented by stipulation, we find that a defendant must be personally admonished about the stipulation and must personally agree to the stipulation." (Emphasis added.) Campbell, 208 Ill.2d at 220-21, 280 Ill.Dec. 684, 802 N.E.2d at 1215.

Because Campbell had not objected and the court concluded that there were legitimate trial tactics or prudent strategic reasons for agreeing to the stipulation, Campbell's sixth amendment right to confront witnesses was appropriately waived by his counsel and not by him.

The supreme court has now advised us that Campbell, not McClanahan, is its seminal consideration of and decision on the issue of who can waive a defendant's sixth amendment right of confrontation. Accordingly, we reanalyze Joanne Phillips's appeal once again.

We begin with the language of the sixth amendment to the United States Constitution, which states, in pertinent part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * * and to have the Assistance of Counsel for his defense." U.S. Const., amend. VI.

Similar language can be found in article I, section 8, of the Illinois Constitution, providing, in pertinent part:

"In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; * * * [and] to be confronted with the witnesses against him or her * * *." Ill. Const.1970, art. I, § 8.

It is clear from the plain language that the right is the defendant's. It also may be reasonably inferred that the attorney assisting with the defense may be authorized by the defendant to exercise the right on his or her behalf. We do not find anything in Campbell that suggests a contrary conclusion.

Indeed, the Campbell court discussed its decision in People v. Ramey, 152 Ill.2d 41, 178 Ill.Dec. 19, 604 N.E.2d 275 (1992), in which it held:

"[T]here are four decisions that ultimately belong to the defendant in a criminal case after consultation with his attorney: (1) what plea to enter; (2) whether to waive a jury trial; (3) whether to testify in his own behalf; and (4) whether to appeal. Ramey, 152 Ill.2d at 54 [178 Ill.Dec. 19, 604 N.E.2d 275]. This court then stated that:

"`Beyond these four decisions, however, trial counsel has the right to make the ultimate decision with respect to matters of tactics and strategy after consulting with his client. Such matters include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike and what trial motions should be made. [Citation.] Such matters also include the defense to be

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