People v. Stewart

• Decision Date: 16 May 2006
• Docket Number: No. 1-05-0842.,1-05-0842.
• Citation: 851 N.E.2d 672
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antwine STEWART, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

851 N.E.2d 672

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Antwine STEWART, Defendant-Appellant.

No. 1-05-0842.

Appellate Court of Illinois, First District, Second Division.

May 16, 2006.

Rehearing Denied June 12, 2006.

COPYRIGHT MATERIAL OMITTED

Michael J. Pelletier, Deputy Defender, Chicago, Mickelle Olawoye, Panel Attorney, Naperville, Office of the State Appellate Defender, for Appellant.

Richard A. Devine, State's Attorney, Cook County, Chicago (James E. Fitzgerald, Samuel Shim, and Peter Maltese, of counsel), for Appellee.

Justice WOLFSONdelivered the opinion of the court:

The ineffective assistance of counsel issue raised by the defendant requires us to consider the impact of the State's cavalier approach to producing search warrant documents requested by the defense.

Following a bench trial, defendantAntwine Stewart was convicted of possession of a controlled substance with intent to deliver and two counts of unlawful use of a weapon by a felon.He was sentenced to 10 years' imprisonment.

Defendant contends: (1)he was denied effective assistance of counsel; (2) the evidence was insufficient to prove him guilty beyond a reasonable doubt; and (3)the trial court erred by allowing the State to impeach him by admitting into evidence his prior felony conviction for unlawful use of a weapon by a felon.We affirm.

FACTS

Defendant was arrested on September 26, 2003.He was charged with possession of a controlled substance with intent to deliver and two counts of unlawful use of a weapon by a felon.On November 19, 2003, defendant appeared in court for arraignment and a public defender was appointed to represent him.Defense counsel then made an oral motion for discovery.On January 27, 2004, defense counsel requested copies of the search warrant and complaint for search warrant.The case was then continued "by agreement" six times between January 27, 2004, and May 17, 2004, due to the inability of the State to obtain complete copies of the search warrant and the complaint in support of the warrant.

On May 17, 2004, defense counsel made an oral motion for bond reduction, which was denied without prejudice.Defendant then asked to address the court.The following colloquy occurred:

"DEFENDANT STEWART: No, I don't want to talk about the case.I just—You know, I been incarcerated since 2003.And here it is every time I come to court in front of you, your Honor, it's the same thing; a continuance for a search warrant.The officer didn't never show me a search warrant in the house.

THE COURT: You're starting to talk about the case, Mr. Stewart.

* * *

DEFENDANT STEWART: I'm not talking about the case.I'm talking about me coming to court, getting these continuances for something that's not showing up.

THE COURT: Mr. Jackson, you want to explain what I meant by without prejudice?

DEFENDANT STEWART: I don't understand, man.

MR. JACKSON [defense counsel]: I will, Judge.I'll talk to him about it.

DEFENDANT STEWART: I don't understand, man.I don't understand why is the Court still holding me."

On June 2, 2004, defense counsel informed the court that the State had tendered the search warrant data sheet, search warrant, and the complaint for search warrant.On August 30, 2004, however, defense counsel informed the court that the second page of the complaint for search warrant had been omitted.The case was continued by agreement twice between September 21, 2004, and October 4, 2004, in order for the State to subpoena Chicago police officer Anthony Blake, the signatory to the search warrant.

On October 4, 2004, the State informed the court that Officer Blake had been subpoenaed but had not shown up in court.Defense counsel renewed defendant's motion to reduce bond in light of the delay in obtaining the warrant.The court reduced defendant's bond from $75,000 to $50,000.On October 18, 2004, defense counsel acknowledged receipt of the missing materials.On October 27, 2004, defense counsel filed defendant's answer to the State's request for discovery.The case was set for a bench trial by agreement on December 9, 2004.

On December 9, 2004, the State informed the trial court that it would not be ready to proceed because Officer Blake was not available to testify.The case was continued by agreement to January 20, 2005.Defendant's bench trial commenced on January 20.

At trial, Officer Blake testified that he and eight other officers executed a search warrant at 8617 South Maryland in Chicago on September 26, 2003.Officer Blake knocked on the front door and announced he was a police officer.After he did not receive a response, Officer Blake and six other officers forcibly entered the house.While other officers secured two or three adults in the living room, Officer Blake went to the rear bedroom of the house and saw defendant sitting on a bed.Officer Blake then searched defendant and recovered three clear sandwich bags from his right pants pocket.Two of the bags contained a large amount of a "white chunky substance," which Officer Blake suspected to be crack cocaine.One of the bags contained nine smaller bags, each containing a "white rock-like substance," which Officer Blake also suspected to be crack cocaine.

Officer Blake recovered $160 from defendant's left pants pocket, an electric scale from the top of a dresser in the rear bedroom, and two handguns from beneath a mattress in the rear bedroom.Defendant was arrested and read his Miranda rights.Officer Blake then asked defendant whether the clothing in the bedroom was his.Defendant responded "yes."When asked about the guns, defendant said, "I keep them for protection."During booking, defendant said he lived at 8617 South Maryland.Officer Blake did not find any mail, rent receipts, or bills indicating defendant lived in the house.Officer Blake did not remember whether defendant had state identification on his person when arrested.

The parties stipulated that the eleven bags of "white chunky substance" recovered by Officer Blake were inventoried and sent to the Illinois State Police Crime Lab. Two of the eleven bags were tested for the presence of a controlled substance.The parties stipulated that the contents of the two items tested were positive for the presence of cocaine, and that the actual weight of the two items was 124 grams.The estimated weight of all eleven items was 127.2 grams.Because of the large weight of the two items actually tested by the forensic chemist, we assume the chemist tested the two bags containing the large amounts of "white chunky substance."

Defendant testified that on September 26, 2003, he was visiting a friend's house at 8617 South Maryland.Defendant and Skip Tansley were in the master bedroom watching a basketball game when they heard glass breaking.They ran out of the room and saw several police officers with guns drawn.Defendant and Tansley then were handcuffed and placed on the living room floor.Defendant was searched, but not by Officer Blake.Nothing was recovered.Defendant heard the police searching upstairs and in the basement apartment.He did not see the police recover anything.He was not shown any drugs or weapons.Defendant admitted he was the only person arrested in the house.

Defendant testified that at the time of his arrest he was living at 709 East 88th Street, not 8617 South Maryland.The officers removed a state firearm owner's identification card from his pocket when they searched him.However, the Cook County Department of Corrections lost the card.Defendant admitted he had clothes with him in a carrying bag, but said he did not keep additional clothing in the house.Defendant often went to the house in order to shower, but never spent the night.

The parties stipulated to defendant's prior convictions for impeachment purposes only.The parties stipulated that on August 4, 1995, defendant was convicted of unlawful use of a weapon by a felon.The parties also stipulated that on May 28, 1998, defendant was convicted of possession of a stolen motor vehicle, and that on November 15, 2001, defendant was convicted of manufacture and delivery of a controlled substance.Considering the stipulations, the trial court concluded, after balancing the prior convictions with the present charges, it would consider only the first two convictions for impeachment.

The trial court found defendant guilty of possession of a controlled substance with intent to deliver and two counts of unlawful use of a weapon by a felon.The court noted evidence of intent to deliver included the weight of the items, the fact that two of the bags were un-packaged while the third was packaged, and the scale found in the room.The defendant's motion for new trial was denied.

Following the sentencing hearing, defendant was sentenced to a 10-year prison term for possession of a controlled substance with intent to deliver and two concurrent 6-year prison terms for each of his unlawful use of a weapon by a felon convictions.

DECISION

I.Ineffective Assistance

A.Speedy Trial Rights

Defendant contends he received ineffective assistance of counsel because his lawyer failed to move for discharge on statutory speedy trial grounds and failed to raise the issue in a post-trial motion.We stress that he does not claim defense counsel was ineffective when agreeing to the continuances.

Where the effectiveness of a defendant's trial counsel is questioned, the defendant must show that counsel's representation fell below an objective standard of reasonableness.Strickland v. Washington,466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674(1984).There are two components to an ineffective assistance of counsel claim: (1) deficient performance and (2) prejudice.People v. Jackson,318 Ill. App.3d 321, 326, 251 Ill.Dec. 848, 741 N.E.2d 1026(2000), citingLockhart v. Fretwell,506 U.S. 364, 369, 113 S.Ct. 838, 842, 122 L.Ed.2d 180(1993).

A defendant not only must show his lawyer's...