Appeal from the Circuit Court of Du Page County. No. 01--CF--1932 Honorable Ann Brackley Jorgensen, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Following a jury trial, defendant, John Eghan, was found guilty of unlawful possession of less than 15 grams of a substance containing cocaine (720 ILCS 570/402(c) (West 2000)) and sentenced to 24 months' probation. On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) he was denied a fair trial as a result of the cumulative prejudicial effect of the admission of testimony that he refused to submit to a drug test, the admission of testimony that he had prior contacts with the police, and the State's improper statements during closing argument; and (3) he was denied the effective assistance of trial counsel. We reverse and remand for a new trial.
On August 2, 2001, defendant was charged by indictment with the offense of unlawful possession of less than 15 grams of a substance containing cocaine (720 ILCS 570/402(c) (West 2000)). Prior to trial, defendant moved in limine to preclude the State from presenting any evidence (1) concerning prior contacts between the police and defendant, and (2) that defendant refused the police's request that he take a drug test to prove that he was not a user of cocaine. The trial court granted the motion in limine as it related to defendant's prior contacts with police but denied the motion as it related to defendant's refusal to take a drug test.
At trial, the State called Woodridge police officers Mark Walters, Cornell Owens, and Steve Edson. These officers testified that, on the afternoon of July 10, 2001, they entered the Hawthorne Ridge apartment complex in an unmarked squad car. The officers had previously made several drug arrests in the complex and were patrolling for "suspicious activity and narcotic activity." As the officers were driving, they noticed defendant and a man named Douglas Anderson "moving around" outside a vehicle. The officers observed no other persons in the parking lot.
Walters testified that he called out to defendant, "John, what are you doing?" Defense counsel did not object to this testimony. On cross-examination, Walters testified that he was acquainted with both defendant and Anderson. Owens and Edson also testified, without objection, that they knew defendant's first name and that Walters used defendant's name when he called out to him.
The officers testified that defendant held a beer can and walked to the front of the vehicle that he had been standing near. Defendant then walked past the squad car and continued toward the other side of the parking lot. Walters, who was driving the squad car, accelerated forward and completed a U-turn, so that the officers could maintain their visual contact with defendant. Walters testified that the officers exited the squad car and that he continued to request defendant to "come over by [him] and stop." Defendant did not respond to these requests but, rather, walked across the main driveway of the apartment complex and toward a pick-up truck parked on the opposite side of the parking lot.
Walters testified that defendant walked behind the truck as the officers were approaching him on foot. Walters walked toward the front of the truck, and Edson walked toward the rear. Walters testified that, because of an incline in the parking lot, he could see the bottom of defendant's body "from the knees down" as Walters walked toward the truck. Walters testified that defendant paused behind the truck for three to five seconds and then walked around the driver's side of the truck and approached Walters.
Edson testified that the officers were still seated in the squad car at the time defendant walked behind the truck and paused for six to eight seconds. Edson testified that he could see defendant's feet and ankles under the truck and "[i]t looked like the posture that someone would look like when they are trying to get something out of their pocket." Defense counsel objected to this testimony, and the trial court sustained the objection. Edson then testified, without objection, that he observed defendant "flex" his ankles and transfer his weight to the ball of one of his feet. On cross-examination, Edson acknowledged that he never saw defendant reach into his pocket.
Edson testified that, following defendant's pause behind the truck, he exited the squad car and walked along the passenger side of the truck to the rear of the truck while defendant walked alongside the driver's side of the truck. Edson observed a plastic baggie containing a rock-like substance on the rear bumper of the truck. The parties stipulated that the baggie contained 3.14 grams of cocaine. Edson testified that the baggie "appeared to have a light moisture on the exterior." The officers then arrested defendant. Edson testified that, as he assisted Walters handcuff defendant, he observed that the moisture on the outside of the baggie had evaporated. On cross-examination, Edson admitted that he did not know whether his own hands might have caused the moisture to appear on the baggie. Edson also admitted that the police never attempted to lift fingerprints from the baggie.
After Walters arrested defendant and provided him with his Miranda warnings, defendant asked, "What am I being arrested for?" In response to Walters's inquiry whether the drugs were his, defendant stated, "[you] got the wrong guy." Later at the police station, Walters asked defendant whether he would undergo a drug test to determine the presence of cocaine in his bloodstream. Defendant responded that he "had cannabis in his system but not [cocaine]." Walters again proposed that defendant "take a test to kind of prove that [he did not] have cocaine or crack cocaine in his system," and defendant again refused to undergo any testing.
Officers Owens and Walters also spoke with Anderson at the scene. Owens described Anderson as somewhat nervous. Walters testified that he had personal knowledge of Anderson's past involvement in drug activity. Walters testified that, when he asked Anderson about the cocaine the police had found at the scene, Anderson appeared nervous and his hands were shaking.
During closing argument, the State noted that the officers had given defendant an opportunity to take a drug test to show whether he had cocaine in his system. The State argued, "[T]he defendant refused to do that, refused to cooperate. He knew that those drugs on that bumper were his." The State also argued that defendant made "some sort of movement with his feet that [was] indicative of someone reaching into a pocket and getting something out." Defense counsel did not object to these statements.
The jury found defendant guilty of the charged offense. Following a sentencing hearing, the trial court sentenced defendant to 24 months' probation. This court subsequently allowed ...