People v. White

Decision Date20 April 2006
Docket NumberNo. 99935.,99935.
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Bobby WHITE, Appellant.
CourtIllinois Supreme Court

Daniel D. Yuhas, Deputy Defender, Arden J. Lang, Assistant Deputy Defender, Office of the State Appellate Defender, Springfield, for appellant.

Lisa Madigan, Attorney General, Springfield, Julia Rietz, State's Attorney, Urbana (Gary Feinerman, Solicitor General, Linda D. Woloshin, Claire E. Labbé, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice GARMAN delivered the judgment of the court:

Following a jury trial in the circuit court of Champaign County, defendant Bobby White was convicted of unlawful possession with intent to deliver one gram or more, but less than 15 grams, of a substance containing cocaine, while on real property owned and operated by the Champaign County Housing Authority (Housing Authority) (720 ILCS 570/407(b)(1) (West 2002)). He was sentenced to 15 years' imprisonment. The appellate court affirmed (No. 4-03-0369 (unpublished order under Supreme Court Rule 23)) and defendant filed a petition for leave to appeal (177 Ill.2d R. 315).


Defendant was initially charged by information in October 2002 with one count of unlawful possession with intent to deliver one gram or more, but less than 15 grams, of a substance containing cocaine (720 ILCS 570/401(c)(2) (West 2000)). Shortly thereafter, an indictment was returned, charging defendant with the same offense. At defendant's arraignment, he waived a preliminary hearing, entered a plea of not guilty, and requested a jury trial. Several months later, on the day trial was to begin and after plea negotiations failed, the prosecutor filed an information containing a "count two." That count alleged the same offense as the indictment, with the addition of the allegation that defendant committed the offense while on property owned and operated by the Housing Authority. While the offense charged in the indictment was a Class 1 felony (720 ILCS 570/401(c) (West 2000)), the offense charged in the new information was a Class X felony (720 ILCS 570/407(b)(1) (West 2000)). Defense counsel objected to proceeding to trial on the information because the new count included an additional element. The prosecutor argued that the filing of the information should not be a surprise to defense counsel because the prosecutor had told counsel that he would be filing the information if plea negotiations failed. After counsel declined an opportunity to present argument regarding any prejudice defendant might suffer from the timing of the filing of the new information, the trial proceeded.

Two Urbana police officers, Duane Smith and David Smysor, testified for the State. On the evening of October 1, 2002, the officers were on foot patrol at Lakeside Terrace, a housing complex owned and operated by the Housing Authority. The officers saw a man later identified as defendant walking near a playground on the complex. He was walking in the officers' general direction, juggling an object from one hand to the other. When defendant saw the officers, he turned his back, placed the item in his left front pants pocket, hesitated, and continued walking in the direction of the officers. Defendant appeared to be walking toward an apartment and the officers decided to meet him there to talk to him. The conversation took place a few feet from the front door of apartment No. 32. The officers introduced themselves and "expressed concern" about the object defendant had placed in his pocket. Defendant placed his hands in his pockets and pulled out some United States currency and a cigarette lighter. Defendant's pants fit him very loosely and the front pockets were deep. The officers did not believe that the lighter was the item defendant had been juggling. They asked for permission to search defendant's left front pocket and defendant refused. Defendant appeared to be nervous and he kept placing his hands in his pockets. The officers asked him to keep his hands out of his pockets. After the third time, the officers became concerned because the pockets were large enough to conceal a handgun. Defendant became "fidgety" and continued to put his hand in his left pocket. The officers asked for identification and defendant produced a pay stub. After defendant placed his hand in his pocket for about the sixth time, the officers decided to pat him down for weapons. When Smith reached for defendant, he pulled away and began to run. Smysor gave chase and tackled defendant. As he did so, defendant appeared to toss a white object onto the ground, which turned out to be a plastic bag containing 12 individual packages of a chunky white substance that appeared to be crack cocaine. None of the paraphernalia commonly used in the consumption of crack cocaine were found on defendant's person. Smith testified that, based on that fact, as well as the quantity of cocaine, the manner of packaging, and the $75 in currency found on defendant, he concluded that the cocaine was not possessed for the purpose of personal consumption.

The parties stipulated to the findings of a forensic scientist who weighed six of the bags and concluded that they contained 1.1 grams of a substance containing cocaine base. The other six bags were not weighed. The total weight of all the bags was 1.8 grams. The defense presented no evidence. The jury convicted defendant as stated. Defendant filed a posttrial motion that did not assert any error regarding the alleged faulty information filed by the prosecutor. On appeal to the appellate court, defendant argued that (1) his conviction must be reversed because he did not receive a preliminary hearing on the newly filed information, (2) the evidence was insufficient to convict him of possession of cocaine with the intent to deliver, (3) defense counsel was ineffective for failing to file a motion to suppress evidence, and (4) he was entitled to one day's additional credit against his sentence and an additional $5 against his fines. The appellate court affirmed the trial court on the first three issues, but agreed with defendant on the last issue. The court remanded the cause to the trial court to grant the additional credit. We granted defendant leave to appeal. 177 Ill.2d R. 315.

I. Standards of Review

Defendant raises three issues for this court's consideration. He first argues that his conviction must be reversed because he was tried and convicted on the basis of an information that improperly attempted to amend the indictment and on which he was not afforded a preliminary hearing. The appellate court reviewed defendant's argument for plain error. However, as we note in our discussion of the issue, the appropriate standard of review that we must apply is the standard set forth in this court's decision in People v. Gilmore, 63 Ill.2d 23, 29, 344 N.E.2d 456 (1976): "When attacked for the first time on appeal an information or indictment is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct."

Secondly, defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he intended to deliver the cocaine. When a court reviews the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

Finally, defendant argues that his trial counsel was ineffective for failing to file a motion to suppress evidence. Claims of ineffective assistance of counsel are judged under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, the defendant must show both that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

The facts are not in dispute in this case. Accordingly, we conduct de novo review of the appellate court's rulings. See People v. Bracey, 213 Ill.2d 265, 270, 290 Ill.Dec. 202, 821 N.E.2d 253 (2004).

II. Failure to Hold Preliminary Hearing

Defendant first argues that because he did not receive a preliminary hearing on the information filed on the day of trial, his conviction and sentence must be reversed. The appellate court concluded that error was committed in the filing of the information, but that defendant forfeited his argument because defense counsel did not object at trial and include the error in defendant's posttrial motion. The court found the evidence was not closely balanced nor was the error of such magnitude that defendant was denied a fair trial. Accordingly, plain error did not apply.

All prosecutions of felonies must be by indictment or information. If a prosecution is commenced by information, the accused is entitled to a preliminary hearing to determine whether probable cause exists to believe that the accused committed an offense. 725 ILCS 5/111-2(a) (West 2000). If a prosecution is brought by information or complaint and a preliminary hearing has been held or waived, the accused may be prosecuted for all offenses arising from the same transaction or conduct, even though not all such offenses were charged in the information. 725 ILCS 5/111-2(f) (West 2000). The State may amend the information to charge those additional offenses. People v. Kelly, 299 Ill.App.3d 222, 227, 233 Ill.Dec. 471, 701 N.E.2d 114 (1998).

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