Appeal from the Circuit Court of Cook County. Honorable LORETTA DOUGLAS, Judge Presiding.
As Modified on Denial of Rehearing May 2, 1994. Rehearing Denied April 21, 1994. Released for Publication June 7, 1994.
Buckley, Campbell, O'connor, Jr.
The opinion of the court was delivered by: Buckley
MODIFIED ON DENIAL OF REHEARING
JUSTICE BUCKLEY delivered the opinion of the court:
Following a bench trial, defendant Robert Bonslater was convicted of possession with the intent to deliver more than 15 but less than 100 grams of a controlled substance containing cocaine. The trial Judge sentenced defendant to six years imprisonment in the Illinois Department of Corrections. On appeal, defendant contends: (1) that the State failed to prove beyond a reasonable doubt that he possessed a controlled substance with the intent to deliver where the officer's version of the surrounding circumstances was so improbable and unsatisfactory that no rational trier of fact could have convicted him; and (2) that he was denied the effective assistance of counsel where his attorney failed to move to suppress evidence, failed to make an opening statement, failed to cross-examine the State's only witness, failed to move for a directed finding, failed to present any defense witnesses and made a closing argument which was refuted by the court reporter's notes and which questions counsel's knowledge of the law. For the following reasons, we reverse and remand for a new trial.
Prior to trial, defense counsel did not present any motions to suppress. At the start of trial, both the prosecutor and defense counsel waived opening statements. The prosecutor then called the arresting officer, Akki Mares, as the State's only witness. Mares testified that on the night of February 27, 1987, he and his partner, Officer Malchick, were working with an undercover police tactical unit. Mares stated that at approximately 8:15 p.m., they were one of several tactical teams chasing an armed robbery suspect near Campbell and Milwaukee Avenues. According to Mares, he and his partner had proceeded down Fullerton and were turning southbound onto Campbell when he observed defendant exiting from a stairwell at 2339 North Campbell. Mares testified that defendant "looked in my direction[,] dropped a clear plastic bag and raced up the stairs." Mares asserted that he then "ran out of the car, * * * picked up the bag immediately and chased [defendant] into the hallway of the building." Mares stated that the bag contained a "rocky substance" he believed to be cocaine. He testified that after he arrested defendant, he recovered from defendant's person several bags of a substance which appeared to be cocaine, several bags of a substance which appeared to be marijuana, $1,968, and a portable telephone.
Defense counsel did not cross-examine Officer Mares.
The parties then stipulated that if the police crime lab chemists were called to testify they would state that the substances recovered from defendant consisted of 70.76 grams of cocaine and 7.55 grams of marijuana.
The Judge accepted the stipulation and the State rested. The defense also rested without putting on any witnesses.
The State waived its closing argument, but reserved rebuttal. Defense counsel then made his closing argument. Defense counsel first asserted that the State failed to prove defendant guilty beyond a reasonable doubt because Mares "failed to identify defendant in open court." A portion of Mares' testimony was then read back to the court by the reporter. Specifically, the relevant portion of Mares' direct examination proceeded as follows:
"STATE'S ATTORNEY: And you responded northbound on Milwaukee what, if anything, did you do and observe?
OFFICER MARES: We came southbound from Fullerton onto Campbell, and at that time I observed Mr. Bonslater who's seated at the defense table coming from 2339 North Campbell from the stairwell.
STATE'S ATTORNEY: What, if anything, is that ...