Docket No. 107323.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
FATIMA GIVENS, Appellee.
Opinion filed April 15, 2010.–Modified upon denial of rehearing
May 24, 2010.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a bench trial in the circuit court of Cook County,
defendant, Fatima Givens, was convicted of possession of a controlled
substance (720 ILCS 570/402(c) (West 2004)) and sentenced to 12
months’ probation. On appeal to the appellate court, defendant raised
several contentions, including that her trial counsel was ineffective in
not litigating a motion to suppress evidence that would have
challenged the voluntariness of a consent to search. 384 Ill. App. 3d
101, 102, 105. The appellate court, however, reversed and remanded
the cause for a hearing on the basis that counsel was ineffective in not
litigating a motion to suppress on the ground that the person
consenting to the search in question lacked the authority to consent.
384 Ill. App. 3d at 112-15. This ground was raised sua sponte by the
appellate court and not argued or briefed by either party in the trial or
appellate courts. We allowed the State’s petition for leave to appeal.
210 Ill. 2d R. 315. Before this court, the State argues, among other
things, that the appellate court erred when it sua sponte addressed an
issue not raised by the parties. Defendant in turn raises a number of
issues in her cross-appeal in this court. See 155 Ill. 2d R. 318(a). For
the reasons that follow, we vacate the judgment of the appellate court
and reinstate defendant’s conviction.
BACKGROUND
The record reveals that in April 2005, defendant and her
codefendant, George Loving, were each charged by information with
one count of possession of a controlled substance with intent to
deliver (720 ILCS 570/401(c)(2) (West 2004)). In July 2005,
defendant filed a motion to quash arrest and suppress evidence
(motion to suppress), alleging generally that her arrest was made
without the authority of a valid search or arrest warrant. Pursuant to
a plea agreement with the State, codefendant Loving pled guilty in
November 2005, to the lesser charge of possession of a controlled
substance. Two months later, the trial court allowed defendant to
waive a jury trial and to withdraw her motion to suppress; the case
then immediately proceeded to a bench trial on the intent to deliver
charge brought against defendant.
The evidence at trial established that Chicago police officers
Robert Graves, Rafael Bonafazzi, and Stephen Lotts received a tip
from a confidential informant that illegal drugs were being sold out of
apartment number 366 at 2804 N. Leavitt in Chicago. The informant
said that defendant and her boyfriend were in the apartment and were
the ones selling the drugs. The apartment was rented by Teri
Mathews, a friend of defendant.
Officer Graves testified that around 11:30 a.m., on April 9, 2005,
he and the other two officers met Mathews outside the building
located at 2804 N. Leavitt, explained their reason for being there, and
Mathews then signed a consent form that allowed police to enter the
apartment. Officer Graves asked Mathews if anyone was in the
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apartment in question, and Mathews told the officer that defendant
and her boyfriend were upstairs in the apartment. The officers then
went inside, approached the sole bedroom and found defendant and
her boyfriend in bed. In plain view, the officers observed a clear plastic
bag on top of a night stand near the bed within arms reach of the
couple. Inside the clear plastic bag were 21 smaller baggies, each
containing crack cocaine. There was also a razor blade on the night
stand next to the bed. Police also found $355 cash. Graves placed
defendant and Loving in custody and took them to the police station.
On cross-examination, Officer Graves testified that he did not
observe any prospective drug buyers come to the area in the time he
was outside with Mathews before entering the apartment. When
defense counsel asked if the informant had given reliable information
in the past, the State objected; but the trial court overruled the
objection. Graves answered that indeed the informant had provided
reliable information before. Graves further testified on cross-
examination that although he was present with the other officers, it
was actually Officer Bonafazzi who spoke with Mathews on the
sidewalk outside the apartment. Graves also noted that Mathews did
not actually open the apartment for the officers. Rather, the officers
received the key from her, and she stayed outside. When the officers
entered the bedroom, defendant and Loving made no effort to hide the
contraband because they were still “half asleep.”
The parties then stipulated to the chain of custody of the items
seized from the apartment. They also stipulated that the State’s
forensic chemist tested the content of 14 of the 21 bags seized, which
amounted to 1.2 grams, and that the substance tested positive for the
presence of cocaine. The total estimated weight of the content of all
21 bags was 1.8 grams.
After the State rested its case, defendant moved for a directed
verdict. The trial court found that the State had introduced sufficient
evidence to support the lesser-included offense of possession of a
controlled substance, but granted defendant’s motion for a directed
verdict with respect to the greater charge of possession with the intent
to deliver.
Crystal Giles was then called to testify on behalf of defendant.
Giles stated that she lived in the same neighborhood where Mathews’
apartment was located and was a friend of both defendant and Loving.
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Giles also stated that Mathews was a friend of Giles’ mother. On the
day in question, Giles was walking about two buildings from 2804 N.
Leavitt when she saw Mathews being held up against a wall by police
officers who were going through her pockets. An officer had
Mathews’ keys in his hand, and then the officers and Mathews all
went upstairs. Giles did not see Mathews sign any paper work during
the time that Giles watched, which was about 20 minutes.
Teri Mathews testified that police met her outside of her
apartment, took the keys from her and then went upstairs. She was
not inside the apartment when police conducted the search. At some
point, they called for her to come upstairs, and it was then that she
signed the consent to search form. When asked if she signed it
voluntarily, she replied, “After he told me I would lose my house,
yeah.” On cross-examination, Mathews testified that aside from
herself, the only other persons in her apartment were defendant and
Loving. She also noted that the drugs found did not belong to her and
that she did not know how they got there.
Defendant testified that she stayed overnight in Mathews’
apartment with her fiance, Loving, the night before the search and her
arrest. When police entered Mathews’ apartment, defendant was in the
bedroom, but was not asleep or lying down. Defendant claimed that
as she opened the bedroom door, three officers rushed in and
handcuffed her and Loving. Police then had the two sit on the couch
in the living room while police searched the bedroom. At one point,
the police officers went away with Mathews, and when the officers
came back, they had “a piece of paper saying they had consent to
search.”
On cross-examination, defendant acknowledged that there is a
night stand located in Mathews’ bedroom, but claimed that it was
attached to a wall and not next to the bed. She denied that there were
any drugs on the night stand.
Officer Stephen Lotts was then called as a witness on behalf of the
State. He testified that he went to 2804 N. Leavitt and met Mathews
outside the building with Officers Bonafazzi and Graves. The officers
determined that Mathews was the leaseholder of apartment 366. Lotts
noted that after the officers explained to Mathews why they were
there, she signed a consent to search form that allowed Lotts and the
other officers to enter the apartment and search it. The form was
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signed outside on the sidewalk in front of the building in Lotts’
presence, and at no time did the officers have Mathews “up against a
wall.” Lotts also stated that no threats of any kind were made by
himself or his fellow officers to induce Mathews to sign the consent
form. It was Officer Bonafazzi that received the keys for the
apartment from Mathews. The three officers then went upstairs to
search the apartment while Mathews remained outside. After
refreshing his recollection with a review of the consent to search form
signed by Mathews and the arrest report of defendant’s arrest, Officer
Lotts testified that Mathews signed the consent to search form at
11:10 a.m. and defendant was placed under arrest at 11:30 a.m.
Lotts stated on cross-examination that Mathews voluntarily gave
up her keys to the officers to open the door and enter her apartment.
Lotts also noted that the officers were inside the apartment for at least
10 or 15 minutes before an arrest was made.
In his closing argument, defense counsel began by arguing that
defendant was not proven guilty beyond a reasonable doubt because
there was nothing to connect defendant to the cocaine that police
found in the bedroom. Defense counsel stated as follows:
“Judge, there’s nothing here that ties [defendant] to this
cocaine that the police found. She’s not holding it. She’s not
making any statement saying that’s mine, give it back. She’s
not selling it. She’s not doing anything to protect it or doing
anything to show that she possessed it.
Now, I think the court can take judicial notice that she’s
the remaining defendant in this case. And *** there’s nothing
here showing that she was possessing it. *** [T]his is mere
presence judge.”
Defense counsel then turned to the circumstances surrounding the
consent to search and argued as follows:
“Also, there’s been some question raised about a search,
the consent to search, Judge, and the unbelievability of Miss
Mathews simply giving up her keys for police to go into the
house, Judge, there’s also been some unimpeached testimony
from Crystal Giles that she saw Miss Mathews being muscled
or up against a wall there while police were aggressively
interviewing her.
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Judge, that raises a question about consent that Miss
Mathews may or may not have given regarding this case.
Judge, you also have testimony from Teri Mathews that
she was told that if she didn’t sign it, she would lose her
apartment, and that’s what led her to finally put pen to paper
on this.”
In rebuttal, the prosecutor first argued that defendant had
constructive possession over the drugs based on the circumstances of
defendant being present in the room in close proximity to 21 bags of
cocaine found on the night stand in plain view. The prosecutor then
turned to the credibility of the witnesses with respect to the question
defendant raised about the voluntariness of Mathews’ consent to
search. Specifically, the prosecutor noted:
“As far as Miss Giles goes, counsel mentioned
unimpeached testimony. Miss Giles’ testimony was clearly
impeached by Officer Lotts. He told you that no one
threatened Miss Mathews. He told you that no one was
physically–was physical with Miss Mathews.
Your Honor, and as far as Miss Mathews herself, the
Court needs to take into consideration the demeanor of that
witness who testified before this Court and the bias of Miss
Giles and the bias of this defendant who testified before this
Court. They all have reasons to be less than truthful with this
Court about what happened on that particular day, 9, April
2005.
This is obviously an issue of credibility, and the State has
given the Court two credible witnesses.”
The trial court found defendant guilty of possession of a controlled
substance, having already directed a verdict in favor of defendant on
possession with intent to deliver. The trial court resolved the
credibility issues with respect to the consent to search in favor of the
State and found defendant guilty, stating that “[b]ased on the evidence
that was presented, considering only the proper evidence that was
presented, judging the credibility of the witnesses ***, there will be a
finding of guilty.”
On appeal to the appellate court, defendant raised four issues: (1)
whether her trial counsel was ineffective for withdrawing her motion
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to suppress where the evidence presented at trial cast doubt on the
voluntariness of Mathews’ consent to allow police to enter and search
her apartment; (2) whether defendant was proved guilty beyond a
reasonable doubt; (3) whether the State established a sufficient chain
of custody with respect to the recovered evidence; and (4) whether
the trial court abused its discretion in refusing defendant’s request for
first-offender probation under section 410 of the Illinois Controlled
Substances Act (720 ILCS 570/410 (West 2004)).1 The appellate
court, however, did not resolve the case based upon any of the four
issues raised by defendant. Instead, the appellate court found that
Mathews only had a right to give her consent to allow police to enter
into the common area of the apartment, but she did not have authority
to consent to the police entry of her bedroom that was occupied by
defendant as an overnight guest. 384 Ill. App. 3d at 112. The appellate
court therefore found that trial counsel was ineffective in not
challenging the search on the basis that Mathews lacked authority to
consent. Accordingly, the appellate court reversed defendant’s
conviction and remanded the cause with directions to hold a hearing
on a motion to quash arrest and suppress evidence and, if necessary,
after the hearing on the motion, hold a new trial. 384 Ill. App. 3d at
115.
ANALYSIS
On appeal to this court, the State initially argues that the appellate
court deprived the State of a fair proceeding when it reversed
defendant’s conviction on the basis that a motion to suppress probably
would have been granted had trial counsel litigated the question of
whether Mathews lacked authority to consent to the search of her
1
We note that defendant again raises the first and second issues in her
cross-appeal before this court. Additionally, defendant now concedes that the
fourth issue, which raises a sentencing argument, is moot because defendant
has completely served her sentence. See People v. Campbell, 224 Ill. 2d 80,
83 (2006). Furthermore, defendant urges that if this court reverses the
appellate court judgment after considering the issues raised by this appeal,
this court should remand the cause to the appellate court for consideration
of the third issue raised in the appellate court involving the chain of custody,
which the appellate court did not address.
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own bedroom because of defendant’s status as an overnight guest–a
theory never raised by defendant or addressed by the parties in their
appellate briefs. We agree with the State.
Illinois law is well settled that other than for assessing subject
matter jurisdiction, “a reviewing court should not normally search the
record for unargued and unbriefed reasons to reverse a trial court
judgment.” (Emphasis added.) Saldana v. Wirtz Cartage Co., 74 Ill.
2d 379, 386 (1978); see also Parks v. McWhorter, 106 Ill. 2d 181,
184 (1985) (noting that except for jurisdictional grounds, a search of
the record for unargued and unbriefed reasons to reverse a lower
court’s decision is improper); People ex rel. Akin v. Southern Gem
Co., 332 Ill. 370, 372 (1928) (“while this court will examine the
record for the purpose of affirming a judgment it will not do so for the
purpose of reversing it”). Moreover, in Greenlaw v. United States,
554 U.S. ___, ___, 171 L. Ed. 2d 399, 408, 128 S. Ct. 2559, 2564
(2008), the United States Supreme Court recently addressed the
propriety of a reviewing court ruling upon issues raised sua sponte.
The Court admonished:
“In our adversary system, in both civil and criminal cases,
in the first instance and on appeal, we follow the principle of
party presentation. That is, we rely on the parties to frame the
issues for decision and assign to courts the role of neutral
arbiter of matters the parties present. To the extent courts
have approved departures from the party presentation
principle in criminal cases, the justification has usually been to
protect a pro se litigant’s rights. [Citation.] But as a general
rule, ‘[o]ur adversary system is designed around the premise
that the parties know what is best for them, and are
responsible for advancing the facts and arguments entitling
them to relief. [Citation.] As cogently explained:
‘[Courts] do not, or should not, sally forth each day
looking for wrongs to right. We wait for cases to come to
us, and when they do we normally decide only questions
presented by the parties. Counsel almost always know a
great deal more about their cases than we do ***.’
[Citation.]” Greenlaw, 554 U.S. at ___, 171 L. Ed. 2d at
408, 128 S. Ct. at 2564.
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Our appellate court in People v. Rodriguez, 336 Ill. App. 3d 1, 14
(2002), expressed a similar sentiment as follows:
“While a reviewing court has the power to raise unbriefed
issues pursuant to Supreme Court Rule 366(a)(5), we must
refrain from doing so when it would have the effect of
transforming this court’s role from that of jurist to advocate.
[Citation.] Were we to address these unbriefed issues, we
would be forced to speculate as to the arguments that the
parties might have presented had these issues been properly
raised before this court. To engage in such speculation would
only cause further injustice; thus we refrain from addressing
these issues sua sponte.”
In the present case, appellate counsel did not argue that trial
counsel was ineffective for not challenging Mathews’ authority to
consent to a search of her own bedroom based on defendant’s status
as an overnight guest. Instead, appellate counsel argued only that
Mathews’ consent was not voluntarily given based on the testimony
of Mathews and Giles and the circumstances surrounding Mathews’
signing of the consent form. Thus, the appellate court’s raising of the
authority-to-consent issue sua sponte was a violation of the well-
established principles noted above.
Defendant argues that the case law noted above stands only for
the proposition that a reviewing court should not normally decide on
its own initiative an unbriefed issue. This is different, defendant
asserts, than ruling that a reviewing court lacks the power to decide
such issues. We agree with the general proposition that a reviewing
court does not lack authority to address unbriefed issues and may do
so in the appropriate case, i.e., when a clear and obvious error exists
in the trial court proceedings. We disagree, however, with the notion
that the appellate court did not error in addressing the unbriefed issue
in this case.
In support of her argument, defendant relies upon Hux v. Raben,
38 Ill. 2d 223 (1967). We do not find Hux, a civil case, to be availing
to defendant’s position under the circumstances presented here. Hux
indicated that under Supreme Court Rules 341(e)(7) and 366(a)(5),
a reviewing court may sometimes raise and consider unbriefed issues
in order to provide “for a just result and for the maintenance of a
sound and uniform body of precedent.” Hux, 38 Ill. 2d at 225. These
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concerns, however, are not implicated in the present case. Instead, we
conclude that the appellate court stepped over the line from neutral
jurist to that of an advocate for defendant to raise and rule on issues
that were neither controlled by clear precedent nor dictated by an
interest in a just result.
In the case before us, it would have been the burden of defendant
to file a motion to suppress and to raise the grounds for the motion in
the trial court prior to trial if she wanted to challenge Matthews’
authority over the bedroom. See 725 ILCS 5/114–12 (West 2008).
Whether defendant would have prevailed on such a motion would
have been a mixed question of law and fact, with the trier of fact
assessing and judging the credibility of the witnesses. People v. Jones,
215 Ill. 2d 261, 267-68 (2005); People v. Lee, 214 Ill. 2d 476, 483-84
(2005).Here, the issue raised sua sponte by the appellate court was
whether counsel was ineffective in not filing a motion to suppress
raising the authority of Matthews to consent to the search. We believe
that under the cold record before us, it was within the province of
defendant and his appellate counsel to raise or not raise any argument
with respect to trial counsel’s ineffectiveness, and in the absence of
any such argument, it should have been presumed, without specifically
addressing the merits, that the record would not have supported the
argument had it been litigated below. The appellate court relied upon
facts presented at trial, but such facts were not elicited with a view to
the authority-to-consent theory. The State would certainly have been
free to present evidence against the theory had it been raised.
Conversely, defendant may have presented different evidence. In such
a case, a reviewing court should not normally speculate about what
would have been the result of the motion to suppress. See People v.
Conley, 118 Ill. App. 3d 122, 131-32 (1983).
We also note that the issue identified sua sponte by the appellate
court did not amount to obvious error controlled by clear precedent,
and for that additional reason, the appellate court erred in addressing
the issue. The appellate court first broached the subject of Mathews’
possible lack of authority to consent to the search of her bedroom by
surprising the State with a few questions about it during oral
argument. The appellate court then filed an opinion that relied heavily
upon Minnesota v. Carter, 525 U.S. 83, 142 L. Ed. 2d 373, 119 S.
Ct. 469 (1998), and Minnesota v. Olson, 495 U.S. 91, 109 L. Ed. 2d
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85, 110 S. Ct. 1684 (1990), both of which are cases where the
Supreme Court held only that an overnight guest has a legitimate
expectation of privacy in his host’s home. The appellate court’s
opinion upbraided defendant’s trial counsel for failing to consider
these cases. Yet neither case involved a consent to search. More
importantly, both cases contain language indicating that a host may
consent to a search of her home, even though it may result in the
disturbance of the guest and the guest’s possessions. We would
assume that would be just as true, if not more so, when the host’s
home is, as here, a single bedroom apartment and the host has not
vacated the apartment, but rather is jointly occupying it. The appellate
court managed to quote the key language from Carter and Olson,
despite the fact that its applicability to the present case seems to have
been lost on the appellate court:
“ ‘ “From the overnight guest’s perspective, he seeks
shelter in another’s home precisely because it provides him
with privacy, a place where he and his possessions will not be
disturbed by anyone but his host and those his host allows
inside.” ’ ” (Emphasis added.) 384 Ill. App. 3d at 111, quoting
Carter, 525 U.S. at 89, 142 L. Ed. 2d at 380, 119 S. Ct. at
473, quoting Olson, 495 U.S. at 98-99, 109 L. Ed. 2d at 94-
95, 110 S. Ct. at 1689.
Notably, defendant’s appellate counsel does not even feel comfortable
enough with Carter and Olson to rely upon those cases to support her
arguments on the merits of the authority-to-consent issue in her briefs
before this court.
We also note that after the appellate court issued its opinion
holding that Mathews lacked authority to consent to a search of her
bedroom, the State filed a petition for rehearing that raised points and
cited authority that legitimately called into question the correctness of
the appellate court’s holding. For example, citing United States v.
Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988,
993 (1974), the State argued that a warrantless search of an apartment
is justified if a third party who possesses common authority over the
premises to be searched consents to that search. The State further
argued that even if Mathews had relinquished her actual authority over
the bedroom, it could not be disputed that she retained apparent
authority to consent to the search of her entire apartment, including
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her bedroom. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 111 L. Ed.
2d 148, 161, 110 S. Ct. 2793, 2801 (1990) (Supreme Court held that
even where the person granting consent to search does not actually
have common authority over the premises, the fourth amendment is
not infringed if that person has “apparent authority” over the premises,
i.e., if the person is someone police reasonably believe has authority
to consent to a search). Nonetheless, the appellate court denied the
State’s petition for rehearing without any modification and without
addressing the points raised and the authority cited by the State.
We believe that the better approach was followed by the appellate
court in Rodriguez, where the court noted that even though a
reviewing court has the power to raise unbriefed issues, it should
refrain from doing so when it would have the effect of transforming
the court’s role from that of jurist to advocate. See Rodriguez, 336 Ill.
App. 3d at 14. In Rodriguez, the court began its analysis by noting
that it was compelled in the interest of justice to sua sponte address
the trial court’s “obvious error” in convicting defendant of four
separate counts of first degree murder involving a single murder. See
Rodriguez, 336 Ill. App. 3d at 12. It then cited an Illinois Supreme
Court decision on point before vacating the three less serious
convictions while letting the most serious conviction stand. Rodriguez
then proceeded to note that after a thorough review of the record, it
had found four additional issues that could have been raised to attack
defendant’s convictions for aggravated and reckless discharge of a
firearm. The court refrained from addressing the four additional issues
it had identified, however, because it determined that unlike the
multiple-murder conviction it had raised sua sponte, the answers to
the other four questions were “not so obvious.” See Rodriguez, 336
Ill. App. 3d at 13-14. It concluded that if it addressed the unbriefed
issues, it would be forced to speculate about the arguments the parties
might have presented had the issues been raised, and to engage in such
speculation would only cause further injustice. See Rodriguez, 336 Ill.
App. 3d at 14.
The approach taken in Rodriguez is consistent with the plain-error
doctrine of Supreme Court Rule 615(a), which applies to plain errors
“not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a).
The term “plain” as used in the plain-error doctrine is synonymous
with “clear” and is the equivalent of “obvious.” In re M.W., 232 Ill. 2d
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408, 431 (2009).This means that an appellate court cannot correct an
“error” unless the error is clear or obvious under current law. United
States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 519, 113 S.
Ct. 1770, 1777 (1993).Here, there is no indication that any error was
obvious under current law.2
We find that under the circumstances, the authority-to-consent
issue and the possibility that counsel lacked effectiveness in raising it,
which the appellate court identified and addressed as an issue, was not
an obvious error that could have been resolved without speculating as
to what the arguments of the parties would be. We therefore conclude
that it should not have been addressed. The appellate court’s sua
sponte consideration of the issue constituted error in this case. See
People v. Hunt, 234 Ill. 2d 49, 56 (2009) (this court found that the
appellate court’s sua sponte consideration of issues not considered by
the trial court and never argued by the parties constituted error; and
this court examined the merits of the additional issues only because
both parties urged this court’s consideration of them). Accordingly,
we find that the appellate court’s analysis finding that Mathews lacked
authority to consent to the search must be vacated.
We now turn to the issues that were properly raised in the
appellate court and that are raised again before this court in
defendant’s briefs. In that regard, defendant first argues that her trial
counsel was ineffective in not litigating a motion to suppress based on
the argument that Mathews did not voluntarily consent to the search.
According to defendant, a conflict existed between the testimony of
2
We note that the issue before us does, however, differ somewhat from
a plain-error issue. The plain-error doctrine applies to cases where the
defendant forfeited his issue by not properly preserving it in the trial court,
but is nonetheless raising the issue before the appellate court. See, e.g.,
People v. Piatkowski, 225 Ill. 2d 551 (2007). This is in contrast to the
situation where the issue may or may not have been raised before the trial
court, but the appellate court is addressing the issue sua sponte without
defendant raising it before the appellate court. In a plain-error case, the
defendant has the burden of persuasion before the appellate court on the
threshold question of whether plain, obvious error occurred. In re M.W., 232
Ill. 2d at 431. In the case before us, even if it could be said that error
occurred, it was not an “obvious” error.
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the police officers and the defense witnesses as to the voluntariness of
Mathews’ consent.
The State responds that even though defense counsel withdrew his
motion to suppress prior to trial, the defense nevertheless presented
evidence as to the voluntariness of Mathews’ consent during trial and
then questioned the voluntariness of the consent during closing
argument. The trial court then in turn resolved the credibility question
as to whether consent was voluntary in favor of the State’s witnesses.
Accordingly, the State contends, the result of the proceeding would
have been no different had a motion to suppress actually remained
filed.
This court has adopted the two-prong test set forth in Strickland
v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), to determine if a defendant was denied effective assistance of
counsel. People v. Manning, 227 Ill. 2d 403, 412 (2008). To prevail
under that test, a defendant must show both that his counsel was
deficient and that this deficiency prejudiced the defendant. People v.
Bew, 228 Ill. 2d 122, 127 (2008), citing Strickland, 466 U.S. at 687,
80 L. Ed. 2d at 693, 104 S. Ct. at 2064. If it is easier to dispose of an
ineffective assistance claim on the ground that it lacks sufficient
prejudice, then a court may proceed directly to the second prong and
need not determine whether counsel’s performance was deficient.
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
For a defendant to establish that prejudice resulted from his trial
counsel’s “ ‘failure to file a motion to suppress, [he] must show a
reasonable probability that: (1) the motion would have been granted,
and (2) the outcome of the trial would have been different had the
evidence been suppressed.’ ” Bew, 228 Ill. 2d at 128-29, quoting
People v. Patterson, 217 Ill. 2d 407, 438 (2005), citing People v.
Orange, 168 Ill. 2d 138, 153 (1995). Moreover, the failure to file a
motion to suppress or the withdrawal of such a motion prior to trial
does not establish incompetent representation when it turns out that
the motion would have been futile. See People v. Patterson, 217 Ill.
2d at 438.
Applying the above-mentioned principles to defendant’s claim, it
is clear that defendant cannot satisfy her burden under Strickland
because, under the special circumstances presented here, the record
indicates that there is no reasonable probability that the trial court
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would have granted a motion to suppress based on an argument that
Mathews did not give her consent voluntarily. Defendant’s trial
counsel withdrew defendant’s motion to suppress immediately prior
to the start of trial, but then proceeded to introduce evidence at trial
as if he had such a motion before the court. Parenthetically, we note
that while it is true that generally a defendant aggrieved by an
unlawful search and seizure must file a motion to suppress before trial
if he wants to challenge the evidence seized, it is also true that the trial
court has discretion to allow a motion to suppress made during trial
if certain statutory circumstances are satisfied. See 725 ILCS
5/114–12 (West 2008); People v. Hoffman, 84 Ill. 2d 480, 485
(1981); People v. Flatt, 82 Ill. 2d 250, 262-63 (1980). Moreover, a
trial court has the authority to hold a joint suppression hearing and
bench trial where a defendant does not object to the process. See
People v. Johnson, 363 Ill. App. 3d 608, 612 (2006). Although
neither of these two scenarios is exactly what happened here, it is
undeniable that the evidence that defendant presented at trial went
mostly to the question of whether Mathews’ consent to the search was
voluntary. Defendant presented very little, if any, evidence challenging
the fact that cocaine was found in plain view on a night stand in close
proximity to defendant in a bedroom that she occupied with her
codefendant boyfriend.
Furthermore, in closing argument, the defense assented to the
officers’ testimony concerning the discovery of the drugs and
defendant’s presence in the room, but argued only that these facts
indicated “mere presence” and not the constructive possession needed
to prove her guilt beyond a reasonable doubt. As such, the question
of whether defendant was guilty beyond a reasonable doubt of
possession of a controlled substance did not involve any true factual
or credibility determinations, but rather was simply a matter of
assessing the largely uncontested circumstances in comparison with
the established law for proving actual or constructive possession. At
any rate, defendant had no argument that the officers lacked credibility
with respect to the basic fact that defendant was found present in a
room with cocaine. Instead, the arguments of the parties at trial with
respect to the credibility of the witnesses centered exclusively on
whether or not Mathews consented to the search. Specifically, defense
counsel argued that the officers’ testimony that Mathews simply gave
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up her keys was not believable. Defense counsel also argued that
Giles’ testimony that the officers had Mathews muscled up against a
wall while aggressively interviewing her was “unimpeached.” Finally,
defense counsel noted that Mathews had testified that police told her
she would lose her apartment if she did not sign the consent form.
In rebuttal, the prosecutor addressed defendant’s attacks on the
credibility of the police officers over the consent to search. First, the
prosecutor noted that Giles’ testimony was impeached by the
testimony of Officer Lotts, who stated that the officers did not
threaten Mathews or get physical with her. With respect to Mathews’
testimony, the prosecutor asked the trial judge to take into account
the demeanor of the witness and the fact that she had a bias to testify
favorably on behalf of defendant. The prosecutor concluded by noting
that the voluntariness of the consent to search was an issue that boiled
down to the credibility of the witnesses and that the State had given
the court two credible witnesses in that respect. The prosecutor, like
defense counsel, made no argument with respect to the credibility of
the witnesses concerning anything other than the consent to search.
Under these circumstances–where the only issue with respect to
the credibility of the witnesses that is raised by the facts of the case
and the arguments of the parties involved the voluntariness of
Mathews’ consent to search–we believe it is clear that when the court
noted that it had resolved the credibility of the witnesses in favor of
the prosecution, it was referring to the testimony presented on the
consent to search. We therefore find that there is no reasonable
probability that a motion to suppress would have been granted or that
the outcome of the trial would have been altered. Accordingly, we
conclude that defendant has failed to satisfy her burden of meeting the
second prong of Strickland by showing that she was prejudiced by her
trial counsel’s decision to withdraw the motion to suppress prior to
trial.
Defendant next argues that she was not proved guilty beyond a
reasonable doubt of possession of a controlled substance. She
contends that there was nothing to connect her to the cocaine found
in the bedroom other than her presence there, and the State therefore
failed to show that she had actual or constructive possession of the
drugs.
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We note that a criminal conviction will not overturned unless the
evidence is so improbable or unsatisfactory that it creates a reasonable
doubt of the defendant’s guilt. People v. Collins, 106 Ill. 2d 237, 261
(1985). When presented with a challenge to the sufficiency of the
evidence, it is not the function of this court to retry the defendant.
People v. Schmalz, 194 Ill. 2d 75, 80 (2000). Rather, the relevant
question is “ ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.’ ” (Emphasis in original.) People v. Davison, 233 Ill. 2d 30, 43
(2009), quoting Jackson v. Virginia, 433 U.S. 307, 319, 61 L. Ed. 2d
560, 573, 99 S. Ct. 2781, 2789 (1979); Collins, 106 Ill. 2d at 261.
Under this standard, a reviewing court must allow all reasonable
inferences from the record in favor of the prosecution. Davison, 233
Ill. 2d at 43, citing People v. Cunningham, 212 Ill. 2d 274, 280
(2004).
In reviewing a conviction for possession of a controlled substance,
the deciding question is whether defendant had knowledge and
possession of the drugs. See 720 ILCS 570/402 (West 2004) (“it is
unlawful for any person knowingly to possess a controlled ***
substance”). Proof that a defendant had control over the premises
where the drugs were located can help resolve this issue because it
gives rise to an inference of knowledge and possession of the drugs,
but control of the premises is not a prerequisite to a conviction.
People v. Adams, 161 Ill. 2d 333, 345 (1994). Moreover, possession
may be actual or constructive. People v. Frieberg, 147 Ill. 2d 326,
361 (1992). Actual possession is the exercise by the defendant of
present personal dominion over the illicit material and exists when a
person exercises immediate and exclusive dominion or control over
the illicit material, but does not require present personal touching of
the illicit material. Schmalz, 194 Ill. 2d at 82. The rule that possession
must be exclusive does not mean, however, that the possession may
not be joint. Schmalz, 194 Ill. 2d at 82; People v. Embry, 20 Ill. 2d
331, 335-36 (1960). If two or more persons share the intention and
power to exercise control, then each has possession. Schmalz, 194 Ill.
2d at 82. Finally, where possession has been shown, an inference of
culpable knowledge can be drawn from the surrounding facts and
circumstances. Schmalz, 194 Ill. 2d at 82.
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In the present case, the evidence showed that police received a tip
from a reliable, confidential informant that defendant and Loving were
conducting cocaine sales from an apartment at 2804 N. Leavitt; and
so, the officers went to that location and obtained consent from the
leaseholder to search the apartment.3 When the police entered the
bedroom of the apartment at that address at 11:30 a.m., defendant and
her fiance were half asleep on the bed. On top of the night stand and
within arms reach of defendant, the officers observed, in plain view,
a razor blade and a plastic bag containing 21 smaller bags that each
contained cocaine. The police also recovered $355 from the top of the
night stand. According to defendant’s own testimony, she and Loving
exerted joint control over the bedroom where they slept as overnight
guests. When this evidence is viewed in the light most favorable to the
prosecution and when all reasonable inferences are drawn in its favor,
we believe that the evidence established both that defendant had joint
possession of the drugs and that she had the requisite knowledge.
In reaching this conclusion, we find Schmalz, 194 Ill. 2d 75, to be
instructive. There, police entered the bedroom on the second floor of
a house after receiving consent to search by one of the occupants on
the first floor. Inside the bedroom, police found four persons (one
3
The trial court overruled defendant’s hearsay objection to police
testimony about the informant’s tip, but the court did not consider the
testimony for the truth of the matter asserted. Rather, the court considered
it only for the purpose of explaining the reason the police went to the
apartment at 2804 N. Leavitt. Compare People v. Robinson, 167 Ill. 2d 397,
414 (1995) (where this court considered an anonymous tip that drug sales
were being conducted at a certain apartment where defendant was later
arrested as substantive evidence of defendant’s guilt of possession of a
controlled substance with the intent to deliver), with People v. Ramirez, 244
Ill. App. 3d 136, 148-49 (1993) (where the appellate court cited People v.
Gacho, 122 Ill. 2d 221, 247-49 (1988), for proposition that an officer’s
testimony about the substance of an informant’s tip is inadmissible hearsay,
unless used solely for the purpose of explaining why the wheels of a police
investigation were set in motion). Because the trial court, as the trier of fact,
did not consider this testimony as substantive evidence of guilt, we will not
do so either. We further note that the question of whether the trial court’s
ruling was correct is not before us, and therefore we will not pass judgment
on that question.
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male and three females), one of whom was the defendant. The
defendant was sitting on the floor, two persons were sitting on a
couch, and a fourth person was sitting on a bed. Police found
marijuana and drug paraphernalia on the floor within arm’s reach of
defendant. Drugs were also recovered from the couch. The officer did
not see who actually placed the drugs and paraphernalia on the floor,
no drugs were recovered from defendant’s person, and it was
established that defendant was not a resident of the house. All four
persons found in the bedroom were charged with possession of
cannabis. This court found that a rational trier of fact could have
found the essential elements of the crime of possession of cannabis
beyond a reasonable doubt, particularly because the evidence showed
that defendant had knowledge of the presence of cannabis and that she
had it in her immediate and exclusive possession. Schmalz, 194 Ill. 2d
at 83.
Here, evidence of defendant’s control over the room where the
drugs were found was much stronger than in Schmalz,4 and this
control gives rise to an inference of knowledge and possession
(Adams, 161 Ill. 2d at 345). The evidence established that defendant
stayed at Mathews’ apartment overnight and slept in the bed in the
only bedroom in the apartment. According to defendant herself, at one
point she left the room when Mathews knocked on the bedroom door
to tell her that she was going out. Defendant then locked the front
door of the apartment and returned to the bedroom. Thus, the
evidence showed defendant’s control and dominion over the room for
purposes of connecting her to the drugs. Furthermore, the fact that
defendant was not alone, but was with her codefendant fiance, does
not defeat her possession of the narcotics because, as Schmalz noted,
“if two or more persons share immediate and exclusive control or
share the intention and power to exercise control, then each has
4
We note that in Schmalz the defendant did not have exclusive control
over the bedroom, as defendant did in the present case, and so the
prosecution had to rely upon other circumstances to show the defendant’s
possession and knowledge of the drugs: i.e., even though there was no food
or snacks in the room, defendant told the officer that “[W]e’re having a
party,” not “They’re having a party.” (Emphasis in original.) Schmalz, 194
Ill. 2d at 83.
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possession.” Schmalz, 194 Ill. 2d at 82. As our appellate court
recently stated in People v. Ingram, 389 Ill. App. 3d 897, 901 (2009):
“ ‘ “The law is clear that the exclusive dominion and control
required to establish constructive possession is not diminished
by evidence of others’ access to the contraband. [Citation.]
When the relationship of others to the contraband is
sufficiently close to constitute possession, the result is not
vindication of the defendant, but rather a situation of joint
possession. To hold otherwise would enable persons to escape
criminal liability for possession of contraband by the simple
expediency of inviting others to participate in the criminal
enterprise.” (Emphasis added.)’ ” Ingram, 389 Ill. App. 3d at
901, quoting People v. Hill, 226 Ill. App. 3d 670, 673 (1992),
quoting People v. Williams, 98 Ill. App. 3d 844, 849 (1981).
Moreover, the evidence was such that the trier of fact could have
reasonably inferred that defendant had knowledge of the cocaine. In
Schmalz, the illegal drugs were within a short distance of defendant,
while in the instant case, the drugs were on a night stand within a
short distance of the bed in which defendant was lying. A night stand
in a bedroom is a place where it could reasonably be expected that a
couple staying as overnight guests would place their valuable personal
items. Mathews testified that the drugs did not belong to her and that
no other persons were staying in her apartment other than defendant
and her fiance. In sum, the evidence is not so improbable or
unsatisfactory that it creates a reasonable doubt of guilt; we therefore
will not set the conviction aside.
CONCLUSION
The appellate court erred in sua sponte considering whether trial
counsel was ineffective in not arguing that the leaseholder of the
apartment lacked authority to consent to the search of her bedroom
where the issue was not raised by the parties and there was no obvious
answer to the issue that was controlled by clear precedent. With
respect to the issues that were raised by the parties in the appellate
court and again in this court, we find that defendant’s arguments must
be rejected. Defendant was not denied the effective assistance of
counsel because of her trial counsel’s withdrawal of a motion to
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suppress where all the facts and circumstances related to the consent
to search were presented to the trial court and it resolved the
credibility of the witnesses on that issue in favor of the prosecution.
Moreover, a rational trier of fact could have found defendant guilty
beyond a reasonable doubt of the essential elements of the crime of
possession of a controlled substance.
Finally, we note that the appellate court did not address the chain-
of-custody issue raised by defendant before that court because it
considered the issue that it raised sua sponte to be dispositive.
Therefore, we remand the cause to the appellate court for
consideration of defendant’s remaining contention. See, e.g., People
v. Richardson, 234 Ill. 2d 233, 266 (2009).
Accordingly, we vacate the appellate court’s judgment and remand
the cause to the appellate court for further proceedings.
Appellate court judgment vacated;
cause remanded.
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