People v. Quinonez

• Decision Date: 22 December 2011
• Docket Number: No. 1–09–2333.,1–09–2333.
• Citation: 959 N.E.2d 713,2011 IL App (1st) 092333,355 Ill.Dec. 299
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellant, v. Deny QUINONEZ, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 092333

355 Ill.Dec. 299

959 N.E.2d 713

The PEOPLE of the State of Illinois, Plaintiff–Appellant,

v.Deny QUINONEZ, Defendant–Appellee.

No. 1–09–2333.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 2, 2011.Rehearing Denied Dec. 22, 2011.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Brian E. Koch, Assistant Appellate Defender, Office of the State Appellate Defender, for Appellant.

Anita Alvarez, State's Attorney (Alan J. Spellberg, Rimas F. Cernius, Michele I. Lavin, Assistant State's Attorneys, of counsel), for Appellee.

OPINION

Justice J. GORDON delivered the judgment of the court, with opinion.

[355 Ill.Dec. 301] ¶ 1 Following a jury trial, defendant Deny Quinonez was found guilty of possession of less than 15 grams of cocaine and sentenced to 30 months of probation. On appeal, defendant contends that his conviction should be reversed and his cause remanded for a new trial because the State improperly cross-examined defendant about his postarrest silence, and because the trial court failed to strictly comply with the admonition requirement of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the reasons discussed below, we reverse and remand.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with possession of more than 1 but less than 15 grams of cocaine with intent to deliver in connection with an incident which took place on December 14, 2006, on the north side of Chicago. Defendant filed a motion to quash his arrest and suppress evidence, which the trial court denied and his case proceeded to a jury trial.

¶ 4 As voir dire began, the trial judge addressed the entire venire and explained the following:

“[Defendant], as is the case with all persons charged with crimes, is presumed to be innocent of the charge that brings him here before you. This presumption is with him now at the beginning of the trial and remains with him throughout the course of the trial and into your deliberations unless and until you individually and collectively are convinced beyond a reasonable doubt that the Defendant is guilty. It is absolutely essential as this jury is selected that each of you understand and embrace these fundamental principles, that is that all persons charged with a crime are presumed to be innocent and that it is the burden of the State, who brought this charge, to prove the Defendant guilty beyond a reasonable doubt.

The Defendant has no obligation to testify in his own behalf or to present any evidence in his defense. The fact that the Defendant does not testify must not be considered buy [ sic ] you in any way in arriving at your verdict. However, should the Defendant elect to testify or present evidence in his behalf, you are to consider that evidence in the same manner and by the same standards as evidence presented by the State. There is no burden upon the Defendant to prove his innocence. It is the State's burden to prove the Defendant guilty beyond a reasonable doubt.”

¶ 5 After the venire was sworn in, the judge asked the first panel of 28 prospective jurors the following questions:

“A Defendant in a criminal case is presumed to be innocent until a jury determines after deliberation that the Defendant is guilty beyond a reasonable doubt. Does anyone have a problem with this rule of law?

The State has the burden of proving the Defendant guilty beyond a reasonable doubt. Does anyone disagree with this rule of law?

A Defendant does not have to present any evidence at all and may rely upon the presumption of innocence. Does anyone disagree with this rule of law?

A Defendant does not have to testify. Would anyone hold the fact that a Defendant did not testify at trial against the Defendant?”

¶ 6 None of the 28 prospective jurors answered affirmatively to any of those questions. Eight jurors were chosen from that first panel. The trial court then called 22 other prospective jurors and asked them those very same questions. Again, none of the prospective jurors from the second panel answered affirmatively to any of those questions, and the remaining jurors were selected from that panel. After the jury was selected, the court heard motions in limine and the State then began its case-in-chief.

¶ 7 The State first called Chicago police officer David Phelan, who testified that at about 9 p.m. in the evening in question, he was on patrol with his partner, Officer Pearson. The officers were driving south on Sheffield Avenue and turned right onto School Street, when they drove past defendant and another man arguing near the intersection of the two streets.

¶ 8 The officers exited the vehicle in an area well-lit by streetlights, and as Officer Phelan approached defendant and the other man, he observed defendant, who was three to five feet away from the officer, drop a clear plastic bag on the ground. According to the officer, defendant dropped the bag between himself and Officer Phelan, who immediately recovered the bag and found that it contained six smaller plastic bags with suspected cocaine inside. Officer Phelan stated that after he recovered the bag, he “immediately placed [defendant] in custody,” and after performing a custodial search, the officer found in defendant's jacket pocket another plastic bag, which contained seven smaller clear plastic bags of suspect cocaine. After defendant was arrested, the officers transported him to the police station, where Officer Phelan inventoried the items recovered from defendant.

¶ 9 On cross-examination, defense counsel asked Officer Phelan at what time “this alleged occurrence” happened, which the officer replied that it was 8:55 p.m. When asked at what time he placed defendant under arrest, the officer replied that it also happened at 8:55 p.m. The officer then acknowledged that the arrest was “pretty immediate.” Officer Phelan did not see the other man on the scene drop anything, nor did he recover anything from that man.

¶ 10 The State then called Officer Pearson, who testified that he conducted a pat-down search of the man who had been arguing with defendant but did not recover anything from him. Officer Pearson was not asked on direct examination whether he observed defendant drop anything or whether he saw Officer Phelan recover a bag from defendant's jacket. However, although he was not cross-examined with regard to his knowledge of the origin of the plastic bags, the officer attested that he recognized the two bags, for which he generated reports, as the bag recovered from the ground and the bag recovered from defendant's jacket.

¶ 11 Next, the State called David Boler, a forensic scientist for the Illinois State Police crime laboratory, who testified that the substance contained in the plastic bags that were recovered from the ground and from defendant's jacket tested positive for cocaine. After the State rested, the defense made a motion for directed verdict, which the trial court denied.

¶ 12 Defendant testified on his own behalf. He stated that in the evening in question, he had plans to meet with his landlady at a restaurant near Clark and Sheffield. When he arrived, defendant realized that he did not have his wallet, so he left the restaurant to get his wallet from his car, which was parked on Sheffield Avenue.

¶ 13 Defendant stated that as he walked down Sheffield, he was approached by a strange man, whom he described as African–American, in his thirties, dirty and disheveled. According to defendant, that man initially asked him for spare change, and after defendant told him that he did not have any, the man grabbed defendant's arm and kept walking alongside him. Defendant testified that he turned left on School Street, which was not where he had parked his car, because he did not want that man to know where his car was parked. After defendant reached the elevated tracks above School Street, he turned around and began walking toward Sheffield. According to defendant, the man was touching defendant's jacket. Defendant stated that he did not push or yell at the man or call out for help because he did not feel threatened by the man, who was only bothering him. Defendant denied that he and the man were arguing at any point.

¶ 14 As defendant approached the intersection of Sheffield and School Street, he heard a car screeching, then saw an unmarked car parked next to him. Defendant stated that there were no lights above the area where he was standing. Two police officers exited the car and approached defendant and the other man with flashlights. One of the officers grabbed the other man and took him to the trunk of the car, while the other officer grabbed defendant and placed him by a fence. Defendant testified that the officers handcuffed both men, and he denied that he either dropped a bag on the ground or that he had the seven plastic bags of cocaine in his pocket. According to defendant, the incident involving the police officers happened fast and they put defendant in a police car within 10 seconds of handcuffing him.

¶ 15 On cross-examination, defendant acknowledged that he had previously testified, at a hearing on his motion to quash his arrest and suppress evidence, that the man who followed him had also tried to sell him drugs. Defendant then explained that he did not know whether the man was trying to sell him drugs, but he stated that the man told him “I have something good for you,” and “I got a good deal.” Defendant further stated that he did not know whether the man had gone into his pockets or put anything in his jacket while he walked alongside defendant. He acknowledged that at the hearing, he had testified that the man had been trying to put bags with some kind of substance into defendant's hands and pockets while the man followed defendant. Defendant explained, however, that at the time of trial, he could no longer recall whether the man had, in fact, tried to put bags in his hands and pockets. When asked about the point in time when the...