Appeal from the Circuit Court of Lake County. No. 09-CF-3241 Honorable Daniel B. Shanes, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion.
Justice McLaren dissented, with opinion.
¶ 1 Defendant, Elpidio Garcia, appeals from his convictions of unlawful possession with intent to deliver 1 or more but less than 15 grams of a substance containing cocaine (720 ILCS 570/401(c)(2) (West 2008)) and unlawful possession with intent to deliver more than 2,000 but not more than 5,000 grams of cannabis (720 ILCS 550/5(f) (West 2008)). He asserts that the court erred when it did not admit into evidence the guilty-plea-based conviction of his co-defendant, Salvador Diaz. Because the conviction was not relevant to defendant's culpability, we hold that the court did not err in refusing to admit the conviction, and we therefore affirm defendant's convictions.
¶ 3 Defendant and Diaz were charged by indictment with the same two offenses of which defendant was eventually convicted. Diaz pled guilty to possession of less than one gram of a substance containing cocaine. Defendant filed a motion in limine seeking to admit "the proceeding" of Diaz's guilty plea as exculpatory evidence.
¶ 4 Evidence given at a hearing on a motion to suppress provides context for the motion in limine. On August 13, 2009, defendant was driving a crew-cab pickup truck when he passed an unmarked State Police squad car-one with window and grille lights, but not roof lights. The truck caught the attention of the State Trooper, Kenneth Benson, because it had tinted windows. Benson started following it. He saw the truck change lanes without signaling and decided to make a traffic stop. The truck pulled over.
¶ 5 Benson went to the passenger-side window, and that window opened. The passenger was drinking beer from a bottle. Benson asked defendant if he had been drinking too, and defendant said that he had. Benson told defendant to get out of the truck. After defendant complied, Benson asked for permission to look for alcohol. Defendant told him that he could look. In the center cup holder-part of the console between the two front seats-Benson saw a white substance that looked like cocaine. This was a double cup holder, and the white substance was in the section closer to the driver. He also identified the smell of raw cannabis. On "the floorboard behind the center console in between the driver and passenger seat," the trooper found "a brick of cannabis."
¶ 6 At the hearing on the motion in limine, defense counsel took the position that admitting evidence of Diaz's guilty plea would bolster defendant's credibility:
"The State would certainly always argue in a case like this [']how convenient to point the finger to the other person who happens to be in the car.['] But *** this isn't simply pointing the finger.
Now we know, in fact, the seven grams of cocaine that are attributed to Mr. Garcia are now we have someone who has accepted guilt, admission against penal interest for that. It is highly probative ***."
In response, the State pointed out that Diaz had agreed to plead guilty to possession of a reduced weight of cocaine. It also argued that Diaz's admission of possession did not exclude joint possession with defendant. The State said that its theory was that the possession was joint.
¶ 7 The court asked defense counsel what evidence he would be "seeking to offer." Counsel responded by suggesting that the court could take judicial notice that Diaz entered a plea of guilty. The court then asked if counsel was planning to call Diaz and counsel stated, "[n]o, we weren't." The court also inquired if either party was offering any forensic testing "on the drugs outside of maybe drugs but fingerprints?" The answer was no. In commenting on what was being offered, the court stated:
"What is not being asked is to admit testimony of the statement made by Mr. Diaz at any time other than his plea which is a different type of statement than the statement to when [sic] I refer. No statements by Mr. Diaz before the offense, no statements by Mr. Diaz during the offense, no statements by Mr. Diaz after the offense in a custodial-type situation, anything like that."
The court went on to point out that "[w]hat else is not being offered are any forensics showing, for example, that Mr. Diaz's fingerprints were on these items ***. No prints, DNA, no type of identifying forensics." In denying the defense motion, the court made clear that "the defense is certainly free to argue Mr. Diaz's presence and all the reasonable inferences and conclusions that flow therefrom."
¶ 8 The court looked to both Illinois and Supreme Court precedent to support its decision:
"I had the opportunity to consider Holmes v. South Carolina, 547 U.S. 319 [(2006)] ***. And it certainly addresses in some ways these issues. I have also considered People v. Bohn, *** 362 Ill. App. 3d 485 [(2005)]. To be sure a 2005 opinion, pre-dates Holmes. ***
*** I note, of course, the admissibility of evidence is something that is within the trial Court's discretion in constitutional parameters. And I examined this issue under that analysis. And [Bohn] affirmed [the] conclusion that whether another person was charged with possession of those items does not make the question of the defendant's guilt more or less probable. In fact, the Second District noted as did [the State] that possession can be joint. Not to mention the State could theoretically be proceeding on accountability rather than as a principal. And there are all sorts of ways possession can be-actual, constructive, and, of course, joint possession being the most relevant.
*** Here we have a plea and a conviction which brings us to Holmes. Holmes held that it was a constitutional violation for the State to prevent a defendant from introducing the evidence in that case that could show someone else committed this offense, the offense of Holmes. ***
Because our case here today the evidence that Mr. Diaz pled guilty to possessing this cocaine, I will just assume that is what it is for the sake of argument now, does not necessarily preclude a finding that this defendant possessed the cocaine because possession can be joint. Never mind theories of accountability. ...