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The People of the State of v. Terry W. Kiefel

March 25, 2013

THE PEOPLE OF THE STATE OF
PLAINTIFF-APPELLEE,
v.
TERRY W. KIEFEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court ILLINOIS, of the 13th Judicial Circuit, La Salle County, Illinois, Circuit No. 10-CF-632 Honorable H. Chris Ryan, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion.

OPINION

¶ 1 A La Salle County jury convicted the defendant, Terry W. Kiefel, on one charge of unlawful possession of a controlled substance. The trial court sentenced the defendant to four years in the Illinois Department of Corrections.

¶ 2 The defendant appeals, claiming that he did not voluntarily, knowingly and intelligently waive his right to a bench trial and that he received ineffective assistance of counsel when his trial attorney failed to file a motion to quash arrest and suppress evidence. We affirm.

¶ 3 BACKGROUND

¶ 4 Parole agents and police arrested defendant on December 29, 2010, when a search of his apartment by parole officers yielded a tinfoil pipe believed to be cocaine residue. The State ultimately charged defendant with unlawful possession of less than 15 grams of a substance containing cocaine, a controlled substance (a Class 4 felony), in violation of the Illinois Controlled Substances Act (720 ILCS 570/402(c) (West 2010)). When arrested, defendant was on mandatory supervised release (MSR) following a previous conviction for possession of a controlled substance.

¶ 5 At trial, the State called parole agent Steven Peters as its first witness. On the morning of December 29, 2010, Peters, along with fellow parole agent Tim Plankenhorn, went to defendant's apartment in Peru, Illinois, to interview defendant. The defendant opened the door and allowed Peters and Plankenhorn inside. Upon entering the apartment, the agents immediately handcuffed the defendant. Peters testified that this was standard operating procedure when searching a parolee or his surroundings. Peters proceeded to search the apartment and found a plastic grocery bag on the floor that was tied shut. Along with food wrappers and other trash, the grocery bag contained a piece of tinfoil that had been rolled up and burned on one end. Peters called the Peru police department. When he discovers items that he believes contain drugs, it is his responsibility as a parole agent to call the local police department so that it can collect the evidence and take the offender into custody for questioning. Detective Sergeant Degroot and two uniformed officers from the Peru police department arrived on the scene. Peru police took custody of both the evidence and defendant.

¶ 6 Sergeant Degroot was the State's next witness. Degroot responded to the call at defendant's apartment, where he met Agent Peters. Upon arrival, he observed that defendant was handcuffed; Degroot advised defendant that he was under arrest. At the station, Degroot interviewed defendant and had the "pipe" field tested. During the interview, Degroot read defendant his Miranda rights, which defendant indicated he understood and he initialed documentation to that effect. Defendant stated that he was drinking at a pub in La Salle County when he ran into an old friend, Pat Innis. Defendant and Innis returned to defendant's apartment and smoked crack cocaine in the tinfoil pipe. Defendant declined Degroot's offer to reduce his oral statement to writing.

¶ 7 The State then called Angela Nealand to the stand. Nealand is a forensic scientist specializing in drug chemistry with the Illinois State Police crime lab. The trial court found her qualified as an expert witness. Nealand testified that the tinfoil pipe tested positive for cocaine.

¶ 8 Defendant took the stand and testified on his own behalf. He acknowledged that at the time of his arrest in December, he was on MSR for a prior conviction for possession of a controlled substance. According to defendant, he was alone in his apartment when Agent Peters visited him and had no idea that the tinfoil pipe that was discovered was in the apartment. Defendant went on to testify that a few days prior to Agent Peters' visit, he had gone to a bar and had run into to Pat Innis, an old friend from California. Defendant was waiting for a cab to take him home, but Innis offered to give him a ride.

¶ 9 Once back at defendant's apartment, Innis pulled out a tinfoil pipe, lit it and asked if defendant wanted to take a hit. Defendant admitted to taking one hit off of the pipe, then handed it back to Innis and told him he had to take it when he left. Defendant thought Innis took the pipe with him when he left. He did not see Innis put the pipe in the grocery bag.

¶ 10 Defendant denied telling Degroot that he and Innis made the pipe. He further denied that he told Degroot during the interview that he and Innis went to the apartment to smoke cocaine. Defendant testified that he did not know what was in the pipe when he smoked it.

ΒΆ 11 The jury found defendant guilty of possession of a controlled substance. The trial court entered judgment on the verdict and ultimately imposed a sentence of four years' imprisonment and one year of MSR. Defendant filed a posttrial ...


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