Appeal from the Circuit Court of Winnebago County. No. 00-CF-850. Honorable Ronald J. White, Judge, Presiding.
The dismissal of defendant's amended postconviction petition alleging newly discovered evidence that supported his innocence was reversed and the cause was remanded for a third-stage evidentiary hearing, since defendant was convicted of unlawful possession of a controlled substance with intent to deliver under a theory of constructive possession based on circumstantial evidence, defendant presented an affidavit from another person that was sufficient to rebut the inference that defendant had the requisite knowledge about and possession of the cocaine, raise a reasonable doubt of defendant's guilt, and change the result on retrial.
Thomas A. Lilien and Fletcher P. Hamill, both of State Appellate Defender's Office, of Elgin, for appellant.
Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Sally A. Swiss, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Jorgensen and Hudson concurred in the judgment and opinion.
[¶1] Defendant, Reico L. Alexander, appeals from the dismissal of his amended postconviction petition based on newly discovered evidence. On appeal, defendant argues that the trial court erred by dismissing his petition, because the allegations contained in the petition and the supporting affidavit made a substantial showing that defendant was actually innocent of the charged offense. We reverse and remand for further proceedings.
[¶2] I. BACKGROUND
[¶3] At defendant's jury trial on one count of possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2000)), the State argued in its opening statement that circumstantial
evidence would prove that defendant " controlled" the apartment in which police found over 80 grams of cocaine, that defendant " had constructive possession of those drugs," and that he had the intent " to distribute those drugs."
[¶4] The State called Rockford police detective Brian Skaggs, who testified that he was working on the Metro Narcotics Unit on April 3, 2000, when he and other team members executed a search warrant at a downstairs apartment on Underwood Street in Rockford. The officers broke down the door to the apartment and Skaggs saw a man, later identified as Gradie Hawkins, run into the bathroom and flush the toilet. Also present in the apartment upon the officers' entry were Robert E. Lee and Patrick Garry. Lee got down on the floor when asked to do so by the officers. Skaggs asked the three men if they lived there, and they all said " no." Skaggs entered the northeast bedroom with Rockford police detective Mike Schneider and a search dog. The search dog found defendant hiding under a pile of clothes in the bedroom's closet. When asked, defendant denied living in the apartment and said that he did not know who lived there. Skaggs found $743 in defendant's pants pocket: 3 $50 bills, 24 $20 bills, 7 $10 bills, 6 $5 bills and 13 $1 bills. No contraband was found on any of the men.
[¶5] Schneider testified that, in the northeast bedroom where defendant had hid, Schneider collected keys from the computer desk and that one of the keys opened the front door of the apartment. The closet in that bedroom contained men's clothing. Schneider found mail on the desk, including an Insight Communications bill and a Commonwealth Edison bill. Both bills were dated a week prior to the search, had been opened, and were addressed to defendant at the apartment. Schneider also found in that bedroom a court order in defendant's name, which appeared to be signed by defendant and dated approximately one month earlier; a receipt from Guzzardo's music store for $717.19, in defendant's name and dated the same day as the search; and a cell phone.
[¶6] Schneider also testified as follows. When Schneider searched the northwest bedroom, he found a scale and what would later be determined to be cocaine hidden in two different pockets of a shoe rack that was hanging on the back of the bedroom door. There was one large chunk of cocaine, which was later determined to weigh 62.2 grams, and 111 baggies, each containing about 0.2 grams of cocaine. The scale was tested for fingerprints but none were found. On the dresser was a wallet containing a Blockbuster card in defendant's name, an Illinois identification card in defendant's name but with an address different from the Underwood Street address, an Eagle savings card signed by defendant, and defendant's social security card. In addition, on top of the dresser was a jewelry box containing a tie clip and a ring engraved with defendant's initials. Schneider also found $1,701 in small bills between the mattress and the box spring. Two small two-way radios were on the living-room table and two open boxes of sandwich baggies were in the kitchen.
[¶7] Rockford police officer Todd Reese testified that, as part of the booking procedure, he asked defendant if he was employed and defendant said that he was not. Defendant gave an address in Rockford as his home, but not the Underwood Street address.
[¶8] The State called Lee who testified as follows. Lee identified defendant and said that he had known defendant as a friend for a few months. Lee at first testified that he did not know who lived at the Underwood Street address but he also testified
that defendant lived there. In a written statement to police, Lee had stated that defendant lived at the address. On previous visits to the apartment, Lee saw defendant answer the door and talk to some people. In response to the prosecutor's question, " had you seen [defendant] sell dime pieces of crack cocaine about 10 times while you were at the [apartment]?," Lee replied " Yes." When asked if Lee was " involved at all with anything at that [apartment]," Lee replied " No." On the day of the search, before the search, defendant and Garry had been at Guzzardo's music store, where they bought a studio mixing board with cash. The two men returned to the apartment and defendant used a key to let them in. Within 30 minutes the police arrived. Lee, Garry and defendant were in the computer room, but Hawkins was somewhere else in the ...