Appeal from Circuit Court of McLean County No. 06CF132 Honorable Scott Drazewski, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Knecht concurred in the judgment and opinion.
¶ 1 In July 2010, defendant, Joseph Teen Dunlap, pro se filed a petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 2010)), claiming that he was denied (1) his right to a fair trial because the prosecutor had vouched for the credibility of witnesses and argued facts not in evidence, and (2) the effective assistance of appellate counsel because his appellate lawyer failed to argue on direct appeal that the prosecutor made improper remarks during his opening statement and closing argument. Later that month, the trial court dismissed defendant's post-conviction petition as frivolous and patently without merit.
¶ 2 Defendant appeals, arguing that the trial court erred by dismissing his post-conviction petition at the first stage of post-conviction proceedings. We disagree and affirm.
¶ 4 In February 2006, police arrested defendant as he drove away from a known drug house. A subsequent search incident to that arrest revealed four plastic bags containing a total of 11.9 grams of cocaine, $1,922 in cash, and a cellular telephone. In the hour and a half following defendant's arrest, defendant's cellular telephone--which the arresting officer had bagged for evidence--rang "no less than 50 times." The phone's display indicated that 19 of those callers left voice messages.
¶ 5 The State charged defendant, in pertinent part, with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2006)) and unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2006)).
¶ 6 Defendant's May 2007 trial began with the prosecutor outlining for the jury what he intended to show when he presented the State's case. As part of that opening statement, the prosecutor explained that as jurors, they were entitled to draw certain inferences from the fact that defendant was found with several bags of cocaine and a large amount of cash on his person. The prosecutor described the case as "simple really," given that the evidence would show that defendant was carrying the cocaine and cash because he "hadn't sold out yet." The prosecutor then added, "Clearly, he is somebody we don't want on the streets." The defense offered an immediate objection, which the trial court sustained.
¶ 7 During the State's case in chief, the State presented testimony from police that they arrested defendant as he was leaving a known drug house and that a search incident to that arrest revealed four plastic bags containing a total of 11.9 grams of cocaine, $1,922 in cash, and a cellular telephone. As part of its case, the State showed an audio and video recording of defendant's arrest. The State also presented evidence that (1) in the hour and a half following defendant's arrest, his cellular telephone rang approximately 50 times and (2) the phone's display indicated that 19 callers left voice messages. Defendant did not present evidence in his defense.
¶ 8 The prosecutor then presented his closing argument, part of which included suggested inferences the jury could draw from the evidence. Some of the prosecutor's closing argument, defense counsel's objections to the way the prosecutor characterized the evidence, and the trial court's rulings on those objections, are as follows:
"[PROSECUTOR]: Intent can be proven with circumstantial evidence. You can look to and consider the contents of the events and place to determine what that intent may have been. You are going to be instructed as follows regarding intent: That a person acts with intent to accomplish a result or engage in conduct when his conscious objective or purpose is to accomplish that result or engage in that conduct. It's no coincidence that the
[d]efendant is *** coming from a suspected location of drug activity. He is intending to accomplish a result. Think about the money, the nineteen hundred dollars he had on his person. What are these? We would argue to you and submit to you these are the fruits of perhaps a healthy drug sale, perhaps numerous healthy drug sales. In any event, [d]efendant had been --
[DEFENSE COUNSEL]: Objection. He's arguing facts not in evidence.
THE COURT: Overruled. The jury can make its own inference based upon the evidence presented, and those exhibits were admitted into evidence by the [c]court.
[PROSECUTOR]: The [d]efendant had money on his person because he was selling drugs. Think about the drugs. He had a baggie containing four smaller amounts of cocaine. That testimony was presented to you in open court. Those [B]aggies were tested by the *** [c]rime [l]ab. He had these because he hadn't sold out yet as I stated in my opening [statement].
And *** think about the cell phone. He's answering the cell phone. He's talking on the cell phone while he's being pulled over. Who was he talking to? Why does he need to be talking to anyone when he's being pulled over, or he's in a car getting pulled over by the police, just as the police are ...