The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County
Honorable Francis Golniewicz, Judge Presiding.
Defendant appeals his conviction after a bench trial for possession of controlled substance with intent to deliver and unlawful use of a weapon by a felon. Defendant raises four issues for review. He contends that: (1) he did not knowingly waive his right to a jury trial; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in denying his motion for a new trial; and (4) the defense attorney rendered ineffective assistance of counsel. We reverse the decision of the trial court, finding that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt.
At trial, Chicago police officer Thomas Horton testified that on February 5, 1996, he saw the defendant enter the apartment building at 2104 South Washtenaw. The multiple-unit building contained a security door leading to a common entry to front and rear apartments. Minutes after defendant entered the apartment building, Officer Horton noticed that the lights went on in the rear first-floor apartment. The next day, February 6, 1996, Officer Horton obtained a search warrant to search defendant and the rear first-floor apartment of 2104 South Washtenaw. Defendant was then placed under surveillance.
Later that same day, Chicago police officer Ramirez stopped defendant next to his parked car at 2204 South California Avenue. Officer Horton then came to defendant's parked car, where defendant and Officer Ramirez were located, and handed defendant a copy of the search warrant. After the officers advised defendant of his Miranda rights in Spanish, they performed a pat-down search on defendant. The officers recovered more than a dozen keys from defendant.
The officer next placed defendant in the squad car and drove to the 2104 South Washtenaw address. With a key recovered from defendant, the officers opened the security door to the common entrance and entered the building. The officers then went to the rear apartment on the first floor and found that there were two padlocks on the front door to the apartment. Again, with two separate keys from the defendant, the officers opened each padlock.
The officers entered and secured the apartment. Before searching the entire apartment, the officers noticed that a bedroom door next to the kitchen was locked with a padlock. Using a fourth key from defendant's set of keys, the officers unlocked the bedroom door. The officers then searched the bedroom and found, underneath a pile of clothes next to two dressers, 3½-kilograms of cocaine. In addition, the police officers recovered from underneath the bed mattress, a scale, plastic bags and two guns.
During a search of the apartment, the officers found no evidence that defendant resided in the apartment. The officers also did not find any fingerprints of defendant within the apartment. Defendant was then arrested. Some of the officers went to defendant's residence at 2540 St. Louis and obtained consent to search the residence from defendant's wife. The officers did not find anything incriminating against defendant at his residence.
During defendant's case in chief, the parties stipulated that Mr. Apachecho owned the 2104 South Washtenaw building and that Commonwealth Edison supplied electrical service to the first floor rear apartment from February 13, 1995, to February 6, 1996. The electric service was in the name of Rafael Meza. In addition, the parties stipulated that Rafael Meza was hospitalized from January 31, 1996, to February 7, 1996, in the intensive care until of St. Anthony's hospital. Meza's hospital bills indicated as his residence 2104 South Washtenaw, first floor, rear apartment.
The defendant then testified. He stated that on February 6, 1996, officers approached him, placed him into custody and took the 10 or 12 keys in his possession from him. The defendant stated that the police took keys to his house, his car and the 2104 South Washtenaw address.
Defendant also testified that, the Friday before his arrest, he went to visit his friend Rafael Meza at the 2104 South Washtenaw address. Upon his arrival at the apartment, defendant discovered two friends of Meza's staying at the apartment. They informed defendant that Meza was hospitalized and asked defendant to take a change of clothes to Meza at the hospital.
Defendant went to the hospital and visited Meza. At the hospital, Meza gave defendant keys to Meza's apartment in case Meza would need additional clothing. Defendant testified that he placed the keys on his key ring so that he would not lose them. Defendant testified that he never used those keys to enter the apartment, that he had not visited the apartment the day before his arrest, and that he had no knowledge of guns or drugs in the bedroom of the apartment.
The trial court found defendant guilty of possession with intent to deliver and unlawful use of a weapon by a felon. In its ruling, the trial court stated that defendant had keys not only to the apartment but to the padlock on the bedroom door, where the drugs and guns were found, and no evidence indicated that anyone else had a key to the bedroom padlock. In addition, the trial court found that defendant's testimony was "incredible" and that defendant was not telling the truth about the keys.
Prior to sentencing, defendant filed a motion for a new trial and sought to prove that Officer Horton's testimony at trial was incorrect about the keys seized from defendant. While at trial, Officer Horton stated that he obtained one single key ring from defendant. Officer Horton changed his testimony at the hearing on defendant's motion for a new trial. After examining the inventoried keys following trial, Officer Horton testified at the motion hearing that there ...