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People v. Davis

May 21, 2004


[6] Appeal from the Circuit Court of Cook County Honorable Frank Zelezinski, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'mara Frossard

[8]  After a stipulated bench trial, defendant, Javan Davis was found guilty of two counts of aggravated unlawful use of a weapon and one count of possession of a controlled substance. Defendant was found not guilty of armed violence. Defendant was sentenced to two-year terms of probation on the aggravated-unlawful-use-of-a-weapon charges and concurrent two years' probation on the narcotics charge under section 410 of the Illinois Controlled Substances Act (720 ILCS 570/410) (West 2000)).


[10]   At trial the State and defense stipulated that, Officer Escalante responded to a report of two people sleeping in a car with the motor running. The officer observed defendant in the passenger seat, woke up the driver and then opened the door of the car. In the armrest of the opened door, the officer observed a baggy containing a white, rock-like substance which field-tested positive for cocaine. Officer Escalante woke up defendant, who was holding an unloaded .25-caliber revolver, and arrested defendant. Later that morning, defendant, in a statement, admitted to owning the gun and drugs found in the armrest of the driver's side door. Defense counsel and the State further stipulated that forensic chemist Paul Titus would testify that he tested the item that was submitted by Officer Escalante and the item tested positive for cocaine; the substance weighed 3.8 grams.

[11]   At sentencing, defense counsel argued the aggravated-unlawful-use-of-a-weapon statute was unconstitutional and discriminatory based on age because possession of a weapon is a felony if the defendant is under 21 and a misdemeanor if defendant is over 21. The trial judge rejected this argument and sentenced defendant to concurrent two-year terms of probation on each of the three charges. Defendant appeals.


[13]   We address defendant's argument that trial counsel was ineffective for failing to file a motion to quash arrest and suppress evidence. In support of that argument, defendant contends that the police did not have probable cause when they opened the car door and searched the vehicle in which defendant was a passenger.

[14]   A defendant under both the United States and Illinois Constitutions has a due process right to the effective assistance of counsel in a criminal prosecution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8. Regarding ineffective assistance of counsel, a defendant must demonstrate both a deficiency in counsel's performance and prejudice resulting from the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To demonstrate performance deficiency, a defendant must establish that counsel's performance was below an objective standard of reasonableness. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

[15]   Prejudice is demonstrated if there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. 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. We are mindful that the prejudice component of Strickland entails more than an " outcome-determinative test"; rather, the defendant must show that deficient performance of counsel rendered the result of the trial unreliable or the proceeding fundamentally unfair. People v. Richardson, 189 Ill. 2d 401, 411 (2000).

[16]   Where defense counsel fails to move to suppress prejudicial evidence obtained in violation of the defendant's constitutional rights, the defendant has not received competent and effective representation. People v. Stewart, 217 Ill. App. 3d 373 (1991). 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 move 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 if the evidence had been suppressed. People v. Morales, 339 Ill. App. 3d 554, 563 (2003); Rodriguez, 312 Ill. App. 3d at 925.

[17]   A police officer may make a valid investigatory stop absent probable cause for an arrest, provided that the officer's decision is based on specific, articulable facts that warrant the investigative stop. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 889, 906, 88 S. Ct. 1868, 1880 (1968). The stop is proper if a person of reasonable caution believes that the action taken was justified knowing the facts available at the time of the stop. People v. Rivera, 272 Ill. App. 3d 502, 504-05 (1995). The Illinois Supreme Court has emphasized that the sole legal justification for a "search" incident to a Terry stop is the protection of the officer and others nearby, not to gather evidence. People v. Sorenson, 196 Ill. 2d 425, 432 (2001); People v. Flowers, 179 Ill. 2d 257, 263 (1997).

[18]   Defense counsel decided to proceed by way of a stipulated bench trial to preserve a challenge to the constitutionality of sections 24-1.6(a)(1), and 24-1.6(3)(I) of the Criminal Code of 1961 (720 ILCS 5/ 24-1.6(a)(1), (3)(I) (West 2000)) and that the stipulated bench trial consisted of four pages of trial transcript. Clearly those four pages do not represent a complete presentation of all of the evidence. However, there was no stipulated testimony that Officer Escalante was concerned about his safety, the safety of others, or that he had any concern that evidence would be destroyed when he opened up the door of the parked car.

[19]   We note the stipulated testimony of Officer Escalante was as follows:

[20]   "[THE STATE]: Judge, it would be stipulated by and between the parties that if Officer Escalante were called to testify, he would testify that on October 27th, 2002, at approximately 7:32 in the morning, he went to a 156th Street between ...

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