Court of Appeals of Illinois, First District, Fifth Division
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Appeal from the Circuit Court of Cook County. No. 11 CR 5522. Honorable Angela M. Petrone, Judge Presiding.
For Plaintiff-Appellee: Anita Alvarez, Cook County State's Attorney, Chicago, IL (Alan J. Spellberg and Tasha-Marie Kelly, Assistant State's Attorneys, Brian A. Levitsky, Special Assistant State's Attorney).
For Defendant-Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender of Cook County, Chicago, IL. (Alison L.S. Shah, Assistant Appellate Defender).
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.
[¶1] Defendant, Harvey Bowen, was charged with possession of contraband in a penal institution (720 ILCS 5/31A-1.1(b) (West 2010)). The indictment specifically alleged that he possessed a " dangerous weapon, to wit, a sharp metal object" while in the Cook County jail on March 6, 2011. After a bench trial, defendant was found guilty of that offense, and was sentenced to six years' imprisonment. He now appeals that judgment.
[¶2] At trial, the State presented the testimony of Pedro Ramirez, a correctional officer in the Cook County sheriff's department. Officer Ramirez testified that on the morning of March 6, 2011, he was assigned to do a " shakedown" of a " couple different tiers" in the Cook County jail. The officer described the procedure for a " shakedown" as, " [w]e go in, we bring the detainees out of their living unit, secure them, pat them down and check their living unit" for contraband. When Officer Ramirez approached defendant's cell, he observed defendant sitting on the bottom bunk and his cellmate sleeping on the top bunk. He then brought the inmates out of the cell, " secured them in cuffs," patted them down, and proceeded inside to begin the search.
[¶3] At the foot of the bottom bunk bed, he discovered a stack of Styrofoam trays which were tied together with pieces of bed sheet. He testified that the inmates were not allowed to have these trays in their cells because they could be melted down and turned into weapons. The officer untied the bed sheets, and hidden inside the stack of trays, he discovered a 7 1/2 inch long " large metallic piece shaped like a knife, or what we commonly refer to as a shank, with a handle made out of a piece of sheet." He identified a photograph of the shank, and testified that he could " tell [the shank] had been sharpened."
[¶4] The officer exited the cell, showed defendant and his cellmate the shank, and
asked them " what is this for, who does it belong to[?]" After defendant's cellmate did not say anything, Officer Ramirez told them " either way you are both in the cell, you can both get charged, what's the deal with this thing[?]" Defendant then responded that it was his. The officer asked defendant " what [he] would *** be doing with" the shank, and defendant said " something to the effect [of] he needed it to protect himself." Officer Ramirez testified that this conversation took a minute or less.
[¶5] The officer did not know how defendant and his cellmate " arranged matters" in the cell, but based on his prior experience, he knew that the inmate who had the bottom bunk would generally store his belongings underneath that bunk. He believed that defendant had the bottom bunk because he found him sitting there when he approached the cell, and he also observed that the stack of trays was with some of defendant's personal belongings.
[¶6] Defendant testified that on March 6, 2011, he had the top bunk in his cell, and was asleep on that bunk when Officer Ramirez walked in. The officer took him and his cellmate outside, searched the cell, and let them back inside. Officer Ramirez never said anything to him or his cellmate, or showed them a shank. Defendant stated that there was a stack of trays inside the cell, which he knew were contraband, but that " everyone uses them as a makeshift chair to sit in the chuck and watch television." He denied the stack of trays were his, and testified that they were by the door, not by the bed. He had never seen the shank before, and did not put it inside the stack of trays.
[¶7] The State then entered a certified copy of defendant's conviction for aggravated battery with a firearm, and, after argument, the court found defendant guilty of possession of contraband in a penal institution concluding that Officer Ramirez's testimony was credible, and the testimony of defendant was incredible. The court specifically observed that it disbelieved defendant's testimony regarding the location of the stack of trays, because he would be unlikely to leave contraband by the cell door where it could be seen by prison officials.
[¶8] Thereafter, defendant moved for a new trial, asserting that he had discovered additional witnesses who would contradict Officer Ramirez's testimony. The court granted defendant's motion and allowed him a continuance to reopen the case and call those witnesses.
[¶9] When the trial continued, defendant called Albert Robinson, who testified that he is a convicted felon, and that he was assigned to the cell next to defendant's at the time of the search. During the search, he and the other inmates were lined up outside the cells, about 15 feet from the cell doors. He stood near defendant at that time, but he did not see or hear any officer speak with defendant or show him a shank.
[¶10] Marcelino Ruiz testified that he is a convicted felon and he was defendant's cellmate on March 6, 2011. Ruiz testified that he used the bottom bunk and defendant used the top. Ruiz was asleep on the bottom bunk at the time Officer Ramirez came in to do the search. The officer woke him up and told him and defendant to step outside, then brought them to the " day room" where they sat while the search was conducted. After the search was complete, they were told to go back to their cell. At no time did Officer Ramirez talk to him or defendant about a shank, and he never observed the officer holding a shank, or speaking to anyone that morning. Ruiz testified that there was a stack of Styrofoam containers by the cell door, but denied that they were his.
[¶11] The defense rested, and after argument the court again found defendant guilty of the charged offense. The court incorporated its prior ruling, and reiterated its finding that Officer Ramirez's testimony was credible. It also found Robinson and Ruiz incredible, noting that they were impeached by their prior felony convictions, and that they testified inconsistently with each other, and with defendant, specifically regarding where they were when the search took place.
[¶12] Thereafter, defendant filed a posttrial motion to reconsider or for a new trial, and during a hearing on that motion, defendant claimed pro se that his trial counsel had been ineffective. The trial court allowed defendant to explain his arguments, indicating that it wanted to take " what [he] said very seriously about ineffective assistance of counsel." Defendant specifically complained that counsel had failed to file a motion to suppress his statements where he had not been advised of his Miranda rights, and had failed to call Officer Ramirez to question him regarding the lack of Miranda warnings. Defendant also maintained that his counsel was ineffective for failing to ask the court to recuse itself after the initial guilty finding. The court granted defendant a continuance to determine whether there were any other claims he wished to bring to its attention.
[¶13] At a subsequent hearing, the court again allowed defendant to explain his claims. Defendant stated that he had asked his counsel to file a motion to suppress statements on the grounds that he had not been informed of his Miranda rights, and that his statements would have been suppressed if counsel had " called forth a Miranda hearing."
[¶14] The court gave counsel the opportunity to respond, and counsel stated that Officer Ramirez's report did not indicate whether Miranda warnings were given, or whether there had been a change in custodial status when defendant made the statements. He asserted, " I think it would have been prudent to have filed a motion to suppress that statement based on the absence of Miranda. I did not file it. *** [I]t was not a matter of trial strategy to not file that, the better practice would have been to file it beforehand." Counsel then said that the trial testimony " clearly [showed] a chain [ sic ] in custodial status" and that he should have raised the Miranda issue, once that became clear. Counsel again stated that his failure to do so was not a matter of trial strategy.
[¶15] In ruling on defendant's pro se claims, the trial court stated:
" Now, regarding Miranda not being given. I'm not aware of any law that requires that Miranda be given in custodial settings when an officer immediately finds a weapon (inaudible). I'm not aware that Miranda was required.
I think that your attorney in a way took some responsibility (inaudible) and not file the motions. And I'm going to say he didn't need to take that responsibility. Your attorney did a find [ sic ] job of representing you.
But even if there is [ sic ] some errors that there should have been a motion filed. I did not find him guilty not only because of his statement. But it's because of certain actual evidence and the constructive possession of you and that shank.
You were the person who was sitting on the bed--excuse me--in the cell *** that had Styrofoam trays with a shank in between it. ***
And the cell[mate] was on the top bunk. I find you to be in constructive possession of that shank. And the circumstantial evidence tells me that it's
your's [ sic ] even in part from the statements.
So for all of those reasons, I will say that [counsel] was not ineffective. *** [H]e went above and beyond for you. Getting the jail records, filing detailed motions, asking ...