The People Of The State Of Ill. v. Strickland

• Decision Date: 08 March 2010
• Docket Number: No. 1-08-1304.,1-08-1304.
• Citation: 339 Ill.Dec. 269,399 Ill.App.3d 590,926 N.E.2d 744
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Leonard STRICKLAND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 590

926 N.E.2d 744

339 Ill.Dec. 269

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Leonard STRICKLAND, Defendant-Appellant.

No. 1-08-1304.

Appellate Court of Illinois,

First District, First Division.

March 8, 2010.

Anita Alvarez, State's Attorney, Chicago, IL (James E. Fitzgerald, Douglas P. Harvath, Carol M. Gaines Brian K. Hodes, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Holly J. K. Schroetlin, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Defendant-Appellant.

Justice GARCIA delivered the opinion of the court:

Following a jury trial, the defendant was convicted of one count of delivery of a controlled substance containing less than one gram of heroin and sentenced to 15 years in prison. The defendant contends the trial court committed reversible error by refusing to rule on his motion brought pursuant to People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), until after he testified, thereby interfering with his ability to knowingly exercise his constitutional right to testify. The defendant further contends the trial court violated his right to an impartial jury by failing to ensure that the individual jurors understood and accepted the principles set forth in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), now embodied in Illinois Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). Lastly, the defendant contends he was denied his right to effective assistance of counsel where the defense theory was that the State failed to present physical evidence tying the defendant to the drugs, yet trial counsel elicited from a State witness testimony allegedly defeating that theory.

Because we find the defendant forfeited his Montgomery-based claim by failing to testify, the jury was properly admonished pursuant to Supreme Court Rule 431(b), and defense counsel provided effective assistance, we affirm.

BACKGROUND

Prior to trial, both parties submitted motions in limine regarding the admissibility of the defendant's prior convictions for impeachment purposes. The court deferred its ruling: “I am going to rely on a U.S. case, which is Luce v. U.S., [469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984),] and I will have to make my decision if and when the defendant should testify in order to make the proper ruling.” Defense counsel objected and asked the court to issue a ruling prior to trial; the court did not.

The evidence at trial established that on February 18, 2007, the defendant was arrested in front of his home at 940 North Monticello in Chicago, with another individual, Derrick Crowder. No currency or drugs were found on the defendant's person or in the area.

Five police officers testified to the circumstances of the defendant's arrest. The officers were part of a 10-member team sent to the area of Monticello and Augusta in Chicago with instructions to purchase drugs with marked police funds, referred to as section 1505 funds. Officers Singleton and Randolph, two plainclothes officers, conducted surveillance of the area from separate, parked, unmarked vehicles. Undercover officers Mar and Contreras acted as purchase officers and arrived in the area in an unmarked vehicle. All four officers were in radio contact with enforcement officers Bates and Liss, who were stationed nearby.

When they arrived at the intersection of Monticello and Augusta, Officers Mar and Contreras saw an individual they identified at trial as the defendant. Officer Mar testified the defendant was standing in the middle of the street about 20 feet away. Officer Contreras, who was seated in the passenger side of the vehicle, testified the defendant was standing on the west side of Monticello. The officers described the defendant as wearing a black coat, gray, hooded sweatshirt, blue jeans and tan boots. The defendant was not waving down cars, just standing in the street.

Officers Mar and Contreras drove up to the defendant with the driver's side window rolled down and Officer Mar engaged the defendant in conversation. The defendant inquired as to what Officer Mar needed. Officer Mar asked for “three blows,” meaning heroin. The defendant directed Officer Mar to park his vehicle near 958 North Monticello. The defendant then walked southbound and entered a gangway a few buildings away. When the defendant entered the gangway, both Officers Mar and Contreras and the surveillance officers, Singleton and Randolph, lost sight of the defendant.

The officers testified the defendant soon emerged from the gangway, approached within a foot and a half of the driver's side window of Officer Mar's vehicle and facing Officer Mar directly, exchanged two foil packets for $30 of section 1505 funds. Although expecting three foil packets, Officer Mar drove away immediately after receiving two packets. As he drove away, Officer Mar communicated a description of the defendant to Officers Liss and Bates.

Officer Singleton, who had witnessed the transaction from his vehicle, testified that after Officer Mar drove way, the defendant walked southbound on Monticello, appearing to count the funds he had been handed. The defendant then met an unidentified black man dressed in dark clothing who had emerged from the same gangway the defendant had entered earlier. The men shook hands and the unidentified individual walked back into the gangway, out of Officer Singleton's sight. The defendant remained on Monticello, but Officer Singleton could no longer see any United States currency in the defendant's hands. Officer Singleton did not include the defendant's encounter with the unidentified man in his incident report. Officer Randolph did not see this encounter.

The defendant was subsequently approached by a second individual, identified by the officers at trial as Derrick Crowder. As Crowder approached the defendant, the enforcement officers arrived. The enforcement officers detained both individuals. Before either individual was handcuffed, Officers Mar and Contreras returned. From inside their vehicle, about 20 feet away, Officers Mar and Contreras identified the defendant as the individual that sold them the foil packets.

A custodial search of the defendant recovered no drugs or section 1505 funds. After placing the defendant in his unmarked vehicle, Officer Liss searched the gangway the defendant had entered and the surrounding area for the individual the defendant had encountered as related by Officer Singleton. Officer Liss did not see another individual; no section 1505 funds were ever recovered.

A forensic scientist testified the foil packets tested positive for the presence of heroin.

The defendant did not testify at trial and the defense presented no evidence. The defense theory was that the State failed to prove the defendant was the individual that sold the officers the heroin because no currency or drugs were found on the defendant. During cross-examination of the officers, defense counsel elicited that recording capabilities were available during the surveillance, but not used, and that the foil packets were not checked for fingerprints. Defense counsel sought to further bolster this theory during her cross-examination of the forensic scientist. In response to defense counsel's questioning, the forensic scientist testified that his lab did not routinely check items like the foil packets for fingerprints, explaining that, although he was not an expert, it was his opinion that it was unlikely that fingerprints could be successfully lifted from the foil packets. On redirect, the State elicited testimony that either party could have requested a fingerprint examination of the packets but neither party did. It is this exchange that the defendant premises his ineffective assistance of counsel claim.

The jury returned a guilty verdict. In his motion for a new trial, of the three issues brought here, the defendant raised only his claim that the trial court erred in refusing to rule on his Montgomery motion until after he testified. This timely appeal followed.

ANALYSIS

Montgomery Motion

The defendant first argues that the trial court committed reversible error by refusing to rule on his motion in limine to bar the admission of evidence of his prior convictions pursuant to Montgomery until after the defendant testified. The defendant contends that by doing so, the trial court interfered with his “constitutional right to testify.”

Though the defendant phrases this issue as centering on his “constitutional right to testify,” we see no reason to frame our analysis on such a right. Though it appears no longer an open question that such a constitutional right exists ¹, we discern the controlling issue to be whether the trial court's decision to defer ruling on the defendant's motion in limine prevented the defendant from testifying. See People v. Knox, 58 Ill.App.3d 761, 767, 16 Ill.Dec. 182, 374 N.E.2d 957 (1978).

Against the backdrop of a constitutional right to testify, the Knox court concluded that the dispositive question is whether the defendant “was prevented from testifying.” Knox, 58 Ill.App.3d at 767, 16 Ill.Dec. 182, 374 N.E.2d 957. In what now might be described as a motion pursuant to People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), the defendant in Knox filed a pro se “ ‘affidavit in support of motion’ * * * [wherein he] stated that his attorney had prevented him from testifying in his own behalf, even though defendant had desired to do so.” Knox, 58 Ill.App.3d at 763, 16 Ill.Dec. 182, 374 N.E.2d 957. The court found no support in the record that “his right to testify was violated by his trial counsel.” Knox, 58 Ill.App.3d at 763, 16 Ill.Dec. 182, 374 N.E.2d 957. Rather, the court held that if trial counsel advises his client not to testify and “the client acquiesces in...