Appeal from the Circuit Court of Cook County, Honorable William Lacy, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard.
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 pretrial 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 narcotics 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 United States 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 1 gram or more but less than 15 grams of a substance containing cocaine. Defendant was sentenced to 10 years in prison. Defendant appeals.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal defendant argues that his trial counsel was ineffective because he failed to present various pretrial motions. The sixth and fourteenth amendments to the United States Constitution guarantee the fundamental right of a defendant in a criminal case to be effectively assisted by counsel. U.S. Const., amends. VI, XIV. 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. In People v. Albanese, 104 Ill. 2d 504, 525-26 (1984), the Illinois Supreme Court adopted the Strickland rule that the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result" and that "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 686, 694, 80 L. Ed. 2d at 692-93, 698, 104 S. Ct. at 2064, 2068.
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 688, 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. Evaluation of counsel's conduct by a reviewing court cannot properly extend into areas involving the exercise of judgment, discretion or trial tactics. People v. Mitchell, 105 Ill. 2d 1, 12 (1984), cert. denied, 470 U.S. 1089, 85 L. Ed. 2d 153, 105 S. Ct. 1857 (1985). Effective assistance of counsel refers to competent, not perfect, representation. People v. Odle, 151 Ill. 2d 168, 173 (1992). 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). Defense counsel, at a minimum, must act as an advocate for the accused by subjecting the State's case to meaningful adversarial testing. People v. Shelton, 281 Ill. App. 3d 1027, 1037 (1996).
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 various motions 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 2½ pages of cross-examination by defense counsel consisting of 14 questions, and a 1½ page stipulation by both the State and defense to the testimony of the forensic scientist that the substance inventoried tested positive for cocaine. Defense counsel presented no pretrial motions, no opening statement, no witnesses, and no evidence. Defense counsel made no objections. The issue of ineffective assistance of counsel is to be determined from the totality of counsel's conduct, not from isolated incidents. Mitchell, 105 Ill. 2d at 15. Keeping these principles in mind, we examine the totality of trial counsel's conduct.
A. MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE
During trial, Officer Stack testified that in connection with a residential safety check of the building at 2430 South State Street, he observed the defendant on the front steps of the Ickes Home Development at that address. As to these observations which resulted in defendant's arrest, he testified on direct examination by the State as follows:
"THE 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.
THE STATE: After you made that observation, what did you do?
OFFICER: Waited a couple of seconds and then approached Mr. Spann.
THE 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.
THE STATE: When you ordered him to spit out that item, did he in fact do that?
THE STATE: You recovered that item?
THE STATE: Judge, it will be stipulated by and between the parties that that item was subsequently inventoried under 2244133 and submitted to the Illinois State Police. So stipulated?
THE STATE: After the defendant spit that item out, did you place him under arrest?
Officer Stack further testified that defendant admitted at the police station to residing at apartment 302, had the apartment key in his possession and consented to the search of the apartment which yielded 3.6 grams of cocaine and $1, 260 in United States currency.
The complete cross-examination of Officer Stack is as follows:
"DEFENSE: Officer Stack, you indicated that you were doing a safety check; is that right?
DEFENSE: And you indicated that you saw a person approach my client and that person gave my client money; is that your testimony?
DEFENSE: From your vantage point as you were observing this, you couldn't tell the amount of money that was tendered ...