Appeal from Circuit Court of Champaign County No. 98CF1094 Honorable Thomas J. Difanis, Judge Presiding
The opinion of the court was delivered by: Justice Knecht
In August 1998, police arrested defendant and the State charged him with unlawful possession of weapons by a felon (720 ILCS 5/24-1.1(a) (West 1998)) and unlawful use of weapons (720 ILCS 5/24-1(a)(4) (West 1996)). In November 1998, a jury convicted defendant of both charges. In December 1998, the trial court sentenced defendant to concurrent 10- and 3-year prison terms. Defendant appeals, arguing (1) ineffective assistance of counsel due to counsel's failure to stipulate to defendant's prior felony convictions and failure to file a motion to vacate his conviction for unlawful use of weapons; and (2) violation of his fourteenth amendment due process right (U.S. Const., amend. XIV) to a fair trial occurred when the State argued defendant could be found guilty on an accountability theory as the evidence did not support such theory. We affirm as modified and remand with directions.
On November 4, 1998, a jury convicted defendant, Derrick Lindsey, of unlawful possession of weapons by a felon and unlawful use of weapons. On August 4, 1998, Officers David Griffet and Jim Rein, both of the Champaign police department, were driving an unmarked police car when they noticed a car stopped in the road. A pedestrian, later identified as Johnnie Washington, was leaning into the driver's side window and acted nervously when he recognized the unmarked police car. The driver of the vehicle, defendant, exited the car and got into the backseat and Washington got into the driver's seat and proceeded to pull the car over to the curb. The officers pulled behind the car and Washington got out of the car and approached the officers.
Officer Griffet asked for Washington's driver's license and, when he could not produce a license, Washington gave Griffet a false name. As Washington talked to Griffet, defendant and another passenger, Gary McFarland, remained in the vehicle. After discovering Washington's true identity, Griffet arrested Washington for driving without a valid license. When Washington was arrested, defendant and McFarland exited the car, and when Griffet placed Washington in the squad car, defendant and McFarland walked away from the car. Officer Rein then went to defendant's car to look for the keys, which he previously noted were on the front seat, but one of the passengers had taken them. Rein then performed a search of the vehicle, incident to Washington's arrest.
Rein tried to open the glove compartment, but it was locked. He then pried it open enough to observe a handgun inside. At this point, he used a screwdriver he found in the car to break open the glove compartment, revealing two more handguns. One of the guns was a 9 millimeter, holstered with an empty magazine inserted. The second gun was a .25-caliber semi-automatic handgun. Also in the glove compartment were six .25- caliber bullets and an empty magazine. The third gun was a .25- caliber handgun, fully loaded with a round in the chamber. The search of the trunk revealed the following items: an unloaded 9-millimeter magazine wrapped in a black and white handkerchief and a bank book in defendant's name.
After the search, Rein looked for defendant and McFarland, but they had left the scene. Rein saw McFarland walking down an alley and he followed him and placed him under arrest. Defendant was found and arrested the following day.
During the trial, the court took judicial notice of defendant's three prior felonies and informed the jury he had been convicted of aggravated battery and obstructing justice. Defense counsel objected to the introduction of evidence of defendant's prior convictions, but the objection was overruled because defendant's prior felonies were an element of the unlawful possession of weapons by a felon charge.
The defense presented the stipulated testimony of a forensic scientist who found four latent fingerprints on one of the handguns. Those prints belonged to Gary McFarland and no latent prints were found on the other weapons. During closing arguments, the State presented two theories to the jury. First, the State argued defendant was guilty of the charged offenses because he was in constructive possession of the handguns found inside the car, which was under his control. Second, the State argued because one of the weapons was connected to Gary McFarland through the fingerprint evidence, defendant was guilty of the charged offenses because he was legally responsible for McFarland's actions: "defendant, I'd argue to you, is guilty, if nothing else, because he's responsible for the action of McFarland[,] who clearly was in possession of one of those guns."
The jury returned guilty verdicts on both counts. On December 7, 1998, the trial court denied defendant's posttrial motion and sentenced him to concurrent terms of 10 years and 3 years respectively for unlawful possession of weapons by a felon and unlawful use of weapons. On December 17, the trial court denied defendant's motion to reconsider sentence, and this appeal followed.
Defendant presents two issues for review: (1) he was denied his sixth amendment right to the effective assistance of counsel when defense counsel (a) failed to offer to stipulate to defendant's felony status and (b) failed to file a motion to vacate his conviction for unlawful use of weapons; and (2) his fourteenth amendment due process right to a fair trial was violated by the State's improper use of an accountability theory.
A. Sixth Amendment Right to Effective Assistance of Counsel
Defendant first contends counsel's failure to stipulate to his felony status was error outside the range of professionally competent assistance and, as a result, the proceedings below were unreliable and prejudicial to him. We disagree.
The sixth amendment guarantees a criminal defendant the effective assistance of counsel. U.S. Const., amend. VI. To prove counsel rendered ineffective assistance, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The foundation of the two-pronged test is whether counsel's performance so undermined the adversarial process as to cause the result to be unreliable, possibly unjust, and violative of defendant's sixth amendment right to counsel. People v. Whitamore, 241 Ill. App. 3d 519, 525, 608 N.E.2d 1304, 1309 (1993). Under the first prong, defendant must establish counsel's performance fell below an objective standard of reasonableness. Under the second prong, defendant must show ...