The opinion of the court was delivered by: Justice O'mara Frossard
Released for publication March 12, 2002. Opinion vacated and new opinion filed June 28, 2002.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
BROSHUNE SPANN, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable William Lacy, Judge Presiding.
Following a bench trial defendant was found guilty of four counts of possession of a controlled substance with intent to deliver and sentenced to 10 years in prison. On appeal defendant contends that the class X sentence was improper because it was based on a defective indictment; the state failed to prove the offenses were committed on a public way; the state failed to prove defendant possessed with intent to deliver the cocaine found in the apartment; and defense counsel was ineffective for not presenting various pre-trial motions. We find ineffective assistance of trial counsel and reverse defendant's convictions and sentence. We remand for retrial.
On October 18, 1999, around 11:20 p.m. Chicago police officer Michael Stack was conducting a residential safety check of the Chicago Housing Authority building at 2430 South State Street. The location was known to be an area of high narcotic activity. Upon entering the back of the building, he saw the defendant on the front steps receive an unknown quantity of United States currency from an unidentified individual in exchange for an item that defendant retrieved from inside his mouth. Where the defendant was standing was well lighted, but the vestibule that Officer Stack was coming through was dark. Officer Stack approached the defendant and observed what appeared to be a chunk of suspect crack cocaine in a plastic bag in defendant's mouth. He told defendant to spit it out and defendant complied. Officer Stack recovered the bag and arrested defendant. Both parties stipulated that a chemist would testify the substance recovered from defendant's mouth weighed three grams and tested positive for cocaine.
Officer Stack testified that defendant told him at the police station that he resided at two addresses, one of which was apartment 302 at 2430 South State Street for which he had a key in his possession. Defendant told the officer that he paid rent there and he stayed there with his girlfriend and her child. When Officer Stack asked if defendant had anything at the apartment that he should not have, defendant answered in the negative. Officer Stack asked if defendant was willing to sign a consent to search form and defendant agreed. Stack entered the apartment with defendant's key and found 12 plastic bags of suspect cocaine and $1,260 in U.S. currency. Both parties stipulated that a chemist would testify the substance recovered from the apartment weighed 3.6 grams and tested positive for cocaine.
Defendant did not testify. The court found defendant guilty of four counts of possession of a controlled substance with intent to deliver one gram or more but less than fifteen grams of a substance containing cocaine. Defendant was sentenced to 10 years in prison. Defendant appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal defendant argues that his trial counsel was ineffective because he failed to present various pre-trial motions. The sixth amendment to the United States Constitution guarantees a criminal defendant the assistance of counsel. U.S. Const., amend. VI. In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the United States Supreme Court established a two-prong test that a defendant must meet in order to prove that trial counsel was ineffective. Strickland requires the defendant to show deficient performance and that the deficient performance prejudiced defendant. Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068.
Applying Strickland, we must examine the "fundamental fairness of the proceeding and consider whether *** the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. "At a minimum, defense counsel must act as a true advocate for the accused, subjecting the prosecutor's case to meaningful adversarial testing." People v. Shelton, 281 Ill. App. 3d 1027, 1037 (1996).
Under the first prong of the Strickland test, the defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. The reviewing court, without engaging in hindsight, must presume that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U. S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. The defendant is required to overcome the strong presumption that the challenged action was the product of sound trial strategy and not the result of incompetence. People v. Harris, 129 Ill. 2d 123, 156 (1989). Under the second prong of the Strickland test, the defendant must show there is a reasonable probability that but for counsel's deficient performance, the results of the proceeding would have been different. Strickland, 466 U. S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Specifically, the defendant must show that defense counsel's deficiencies so prejudiced the defendant as to deprive him of a fair trial with a reliable result. People v. Caballero, 126 Ill. 2d 248, 259-60 (1989).
Defendant argues that his trial attorney's failure to present a motion to suppress the cocaine recovered was ineffective assistance of counsel. We note the record in this case consisted of eight pages of direct examination of Officer Stack by the State, followed by two and one-half pages of cross-examination by defense counsel and a one and one-half page stipulation by both the State and defense to the testimony of the forensic scientist regarding the inventoried cocaine. Defense counsel presented no pre-trial motions, no opening statement, no witnesses, and no evidence.
The decision whether to bring a motion to quash arrest and suppress evidence is considered trial strategy, and trial counsel enjoys the strong presumption that failure to challenge the validity of the defendant's arrest or to exclude evidence was proper. People v. Rodriguez, 312 Ill. App. 3d 920, 925 (2000). To overcome that presumption, the defendant must demonstrate a reasonable probability that the motion would have been granted and that the outcome of the trial would have been different. Rodriguez, 312 Ill. App. 3d at 925. Reasonable probability is defined as a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
In connection with a residential safety check of the building at 2430 South State Street, Officer Stack testified that the defendant was on the front steps of the Ickes Home Development at that address. He testified as follows:
"STATE: As you observed the defendant, what did you see?
OFFICER: I observed the defendant receive a quantity of United States currency. In turn he took an item from his mouth and tendered it to an individual who then walked into a crowd of people and appeared to have gone northbound from the location.
STATE: After you made that observation, what did you do?
OFFICER: Waited a couple of seconds and then approached Mr. Spann.
STATE: When you approached Mr. Spann, did you observe anything at that time?
OFFICER: Yes, I was able to observe what appeared to be a large chunk of a white rock substance suspect crack cocaine in Mr. Spann's mouth, and I ordered him to spit that out because it was what I believed to be crack cocaine.
STATE: When you ordered him to spit out that item, did he in fact do that?
STATE: You recovered that item?
STATE: Judge, it will be stipulated by and between the parties that that item was subsequently inventoried under 2244133 and submitted to the ...