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People v. Elders

June 29, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH ELDERS, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. Honorable Preston L. Bowie, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Burke

[8]  Following a bench trial, defendant Kenneth Elders was convicted of possession of a controlled substance with intent to deliver within 1,000 feet of a public park and was sentenced to seven years' imprisonment. On appeal, defendant contends: (1) he did not validly waive his right to a jury trial; (2) he was denied effective assistance of counsel because counsel failed to inform him of a plea offer made by the State; (3) the State failed to prove him guilty beyond a reasonable doubt because it failed to establish defendant's intent to deliver; (4) the stipulated testimony of the forensic chemist did not sufficiently establish that the substance recovered from defendant was cocaine; and (5) he was not properly admonished pursuant to Supreme Court Rule 605(a) ((Official Reports Advance Sheet No. 21 (October 17, 2001) R. 605, eff. October 1, 2001)). For the reasons set forth below, we reverse and remand this cause for a new trial.

[9]  STATEMENT OF FACTS

[10]   Defendant was arrested on November 24, 2001, at approximately 4:43 a.m., after police officers conducted a surveillance and observed him engaging in suspected narcotics transactions. On December 26, 2001, defendant was indicted on three counts of possession of a controlled substance with intent to deliver--count I alleged defendant did so within 1,000 feet of a school, count II alleged defendant did so within 1,000 feet of a public park, and count III was general.

[11]   On March 11, 2002, attorney Raymond Prusak appeared on behalf of defendant at a status conference. There is no evidence defendant was present at this time. Counsel stated, "I'd like to set this down for bench trial date." The case was continued to April 4. On April 4, a different attorney, John Miraglia, appeared on behalf of defendant. The court inquired whether this was to be a bench or jury trial, but received no response. The case was continued to April 8. Again, there is no evidence defendant was present at this time. On April 8, Prusak appeared on defendant's behalf and the case was continued to April 15. On April 15, Prusak again appeared on defendant's behalf. When the court inquired whether this was to be a bench or jury trial, counsel responded it would be a bench trial. There is no evidence defendant was present. On May 15, Prusak again appeared on behalf of defendant. At this time, defendant was present. Counsel stated, "This is Kenneth Elders before the Court. He is set for a bench trial today." Counsel then requested a short status date because he was attempting to locate a witness. Counsel indicated that if he did not find the witness, defense strategy would change and there probably would not be a trial. Counsel then stated, "The State made an offer to me earlier today. If they can keep this offer open until the next court date." The case was then continued to June 13. On June 13, William Breen appeared on behalf of defendant and indicated that the case was set for status or "possible plea." He asked that the matter be reset for a trial date of August 6.

[12]   The case was set for trial on the morning of August 6. Because John Morelli, counsel who was to try the case on behalf of defendant, was caught in traffic, it was continued to the afternoon. When the parties returned to the court in the afternoon, the State nolle prossed count I and proceeded on counts II and III. Immediately after doing so, the State began calling its witnesses.

[13]   Chicago police officer Louis Carrizal was called as a witness on behalf of the State. Carrizal testified that on November 24, 2001, at approximately 4:30 a.m., he was working near 3430 West Madison with his partner, Officer Perez. The two set up a surveillance in Garfield Park to observe suspected narcotics transactions on Madison. Carrizal testified that they parked their car nearby and walked into the park. Carrizal positioned himself behind a tree and conducted surveillance of the 3400 block of Madison, no more than 50 feet away. According to Carrizal, the area was well-lit by artificial lighting and he was using binoculars.

[14]   Carrizal observed defendant walking along Madison on the sidewalk. During his surveillance, defendant was on both the north and south sides of Madison, ranging from 50 to 70 feet away from Carrizal. On four occasions, Carrizal observed defendant approach the driver's side of a car, engage in a brief conversation (which Carrizal could not hear), receive an unknown amount of money, walk to the base of a tree approximately 10 feet away, retrieve something from a plastic bag lying at the base of the tree, return to the car, and hand the driver an unknown item. Carrizal testified that two of the transactions were conducted with the cars facing eastbound, at which time defendant was facing Carrizal, and two of them were conducted with the cars facing westbound, at which time defendant's back was to Carrizal.

[15]   After observing the four transactions, Carrizal and Perez returned to their car and drove to the location where defendant was. Perez detained defendant and Carrizal went to the tree and recovered a plastic bag that contained seven Ziploc baggies inside with a white rock substance that Carrizal suspected was crack cocaine. They also recovered $113 from defendant.

[16]   On cross-examination, Carrizal stated that he and his partner observed defendant for approximately 10 minutes. He further stated that he believed defendant was receiving money from the individuals in the cars based on the color and shape of the object. Carrizal admitted that when the cars were facing westbound, defendant's back was to him and it was more difficult to observe what was occurring. However, it was still his belief that defendant received something, walked to the tree, etc.

[17]   The State then offered the stipulated testimony of Elizabeth Ilowski, a forensic chemist with the Illinois State Police Lab. According to the stipulation, Ilowski, who was qualified as a expert, received "seven items which she tested using tests commonly accepted in the area of forensic chemistry and found the estimated weight to be 1.4 grams of a chunky substance and found it to be cocaine." Defense counsel stipulated to this testimony. The State then rested. Defendant moved for a directed finding, which was denied. Defendant then rested. After closing arguments, the trial court found defendant guilty on count II. At this time the following colloquy occurred:

[18]   "THE COURT: Wait a minute. State, we have a problem. I don't have a jury waiver in the file.

[19]   MS. O'CONNOR [Assistant State's Attorney]: Did the defendant sign one?

[20]   THE COURT: I don't believe so.

[21]   MS. O'CONNOR: Was the jury waiver taken on the record?

[22]   THE COURT: I don't believe it was.

[23]   MS. O'CONNOR: Can you do it retroactively? Was it the defendant's intent to sign a jury waiver?

[24]   THE COURT: He was never asked.

[25]   MR. MORELLI [Defendant's Attorney]: The defendant indicates to me that he wanted a bench trial.

[26]   THE COURT: Pardon me?

[27]   MR. MORELLI: The defendant just indicated to me that he wanted a bench trial. That was his intention.

[28]   THE COURT: His intention was what?

[29]   MR. MORELLI: It was his intention to have a bench trial. He did not ...


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