NO. 4-06-0228 Filed 10/11/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
FORREST D. CHAPMAN III ) No. 05CF104
Defendant-Appellant )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
Following a January 2006 bench trial, the trial court
convicted defendant, Forrest D. Chapman III, of possession of a
controlled substance (less than 15 grams of a substance contain-
ing cocaine) and possession of cannabis (more than 30 but less
than 500 grams) (720 ILCS 570/402(c) (West 2004); 720 ILCS
550/4(d) (West 2004)). The court sentenced him to two years'
probation and six weekends in jail.
Defendant appeals, arguing that (1) the trial court
erred by denying his motion to suppress the evidence against him
because police violated the "knock and announce" rule when they
executed a search warrant at his residence and (2) his stipulated
bench trial was tantamount to a guilty-plea proceeding, thus
requiring that he be given the admonishments set forth in Supreme
Court Rule 402 (177 Ill. 2d R. 402). We affirm.
I. BACKGROUND
A. The Motion To Suppress Evidence
At the September 2005 hearing on defendant's motion to
suppress evidence, the evidence showed that around 3:30 a.m. on
May 6, 2005, police executed a search warrant at 610 West Grant
in Pontiac, which was a house that belonged to defendant's
longtime girlfriend, Julie Serna. Defendant, Julie, Julie's
daughter, Elizabeth Serna, Elizabeth's boyfriend, Daris Woods,
and Julie's son, Chase, were present when the search warrant was
executed.
Pontiac police sergeant Dan Davis testified that he was
one of the officers who executed the search warrant at Julie's
house on May 6, 2005. Davis detonated a defense-technology (DEF-
TEC) device in the backyard by throwing it over the backyard
fence. Davis explained that a DEF-TEC device produces a "very
loud report" and gives off a very bright light. It is "a tool
used by many tactical teams when executing search warrants." The
purpose of the device is to alert anyone in the house or the area
that police are executing a search warrant. Davis would not
classify the device as a bomb because it is primarily used for
noise and does not destroy anything.
Davis also testified that no lights were on at the
house when he detonated the DEF-TEC device. After he threw it
into the backyard, he joined seven other officers at the north
side of the house. He was 10 feet from those officers when the
device exploded about three seconds later. After another four or
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five seconds, Davis heard police officer Adam Fulkerson yell in a
loud voice, "Police, search warrant." Although Davis did not see
Fulkerson knock on the door, he heard knocking. Davis could not
recall specifically how many times he heard Fulkerson announce
their presence.
Davis further testified that he heard three knocks on
the door immediately after he heard Fulkerson yell, "police,
search warrant," and five or six seconds later, the police
entered the house. Davis believed that they entered through the
door without using a battering ram. He heard one of the officers
say that the door was unlocked. Davis did not know which officer
discovered that the door was unlocked.
Daris Woods testified that he was at Julie's house when
the police executed the search warrant. Woods had arrived at the
house between 10 p.m. and 11 p.m. the night before. He had been
watching television in the living room until the early morning
hours of May 6, 2005. However, he had turned off the television
and was giving Elizabeth a back massage when they heard an
explosion toward the front of the house. He asked Elizabeth what
the noise was, and she said she did not know. A few seconds
later, the police came through the front door into the living
room. Woods did not hear the police say anything prior to coming
into the house. After the door opened, the police were screaming
for everyone to get on the ground. Woods heard Elizabeth say,
"Oh, shit."
Woods acknowledged that in 2004, he was convicted of
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two counts of unlawful delivery of cannabis and the felony
offense of unlawful possession of cannabis. Despite having been
punished for those crimes, he said he would not lie in court.
Elizabeth testified that during the early morning of
May 6, 2005, she was lying on her stomach in the living room with
Woods. She heard a loud bang that she thought came from the back
of the house. Woods asked her what the noise was, and she said
she did not know. The police then came through the door, saying
"Pontiac PD." She did not hear anything besides the explosion
before they entered. The police did not notice that she was
present until she said, "Oh, shit." At that point, they shined a
flashlight on her and said, "Pontiac PD, get down on the ground."
Elizabeth acknowledged that Julie and defendant, whom
she referred to as her stepfather, were charged with crimes in
this case and could go to prison. She stated that she would not
lie under oath even though Julie and defendant could go to
prison.
Julie testified that she had lived with defendant for
many years. When she got home in the early morning hours of May
6, 2005, she saw Elizabeth and Woods watching television in the
living room. She then went upstairs to her bedroom. Shortly
thereafter, defendant came home and joined her in the bedroom,
where they engaged in sex. The bedroom door was closed, and one
lamp was turned on. Even though the window was covered with a
bedsheet, someone standing outside the house would be able to see
that a light was on. While she and defendant were having sex,
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defendant thought he heard something. Defendant got up and went
to the window but could not see anything and went back to bed.
Then Julie heard a "big loud boom" and within seconds, she heard
the front door being rammed open and the words, "Pontiac PD, get
on the ground." She wrapped herself in a blanket and laid on the
ground and waited for them to come upstairs. She did not hear
anyone yelling prior to the officers' entry into the house. She
had consumed four or five beers before returning home that
evening over a six- to seven-hour time period.
Defendant testified that before he heard the explosion
that night, he thought he had heard something else. He went to
the window that faced the backyard and looked outside. He did
not see anything so he let go of the curtain and then immediately
heard the explosion. A split second, or maybe a second, passed
and then he heard another boom, which was the sound of "something
hitting the front door very hard." He did not hear anyone say
anything before the front door opened. Defendant estimated that
the distance from the front door to his upstairs bedroom was
approximately 25 feet if you went on foot and 15 feet "as the
crow flies." Defendant further testified as follows:
"Nothing was said. What--The first explosion
went off, the bomb, whatever, the grenade or
device; and then the front door, something
hit the front door very hard, very loud; and
then the next thing I heard was [']you didn't
have to do that.['] And then I heard the
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police say to Elizabeth, [']on the ground,
quit resisting.[']"
Defendant later clarified that the first thing he heard after the
officers came in was Elizabeth saying, "[Y]ou didn't have to do
that." He did not hear her say, "Oh, shit." Defendant then
heard footsteps coming through the house up to the bedroom. He
could not recall what the police said. They came into the
bedroom, and he just stood there.
Julie, defendant, and Woods all testified that the
front door to the house did not work properly and could be opened
without turning the doorknob.
After considering this evidence and arguments of
counsel, the trial court denied defendant's motion to suppress.
The court specifically found that Davis was a credible witness.
In announcing its ruling from the bench, the court explained as
follows:
"In assessing the credibility of [Davis], you
know, he didn't say there was a knock on the
door. He didn't see where the knock was. I
found him to be credible. This is his job.
They were carrying out an operation, and he
was specific with where he was when he was
down to seconds[,] which I think is impor-
tant.
[Woods], I just don't find him to be a
credible witness. He didn't, he didn't look
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confident in what he was saying. He didn't,
I just didn't find him to be that credible,
and he does have a substantial interest in
the outcome of the litigation or the hearing
I should say. So I didn't find him credible.
Another thing that really kind of from a
factual standpoint, [defendant], his testi-
mony was pretty inconsistent; and it also
supports the fact that people in different
rooms in the house are going to hear differ-
ent things. There was this distraction de-
vice going on. I think everybody agrees that
that happened. The question is what happened
after that.
From a factual standpoint, I believe
there was [sic] knocks, announcements, entry.
Happened very fast. It wasn't a half an hour
process where everybody has time to sit there
and think, oh, there were knocks on the door
and we wait 15 minutes and we heard more
knocks on the door. In the meantime, the
distraction device had gone off."
The trial court further pointed out that defendant
testified to hearing a different statement by Elizabeth at the
time the police entered. Elizabeth and Woods testified she said,
"Oh, shit." However, defendant said the first thing he heard was
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Elizabeth saying, "[Y]ou didn't have to do that." The court
found defendant not credible on that point, because "[h]e didn't
know what happened down there."
The trial court further noted that Elizabeth did not
look the court in the eye when she took her oath. The court
explained, "The first thing that tells me is this person has
something to hide; and coupled with the statement of [']oh,
shit['] when there's police barging in the house as opposed to
[']what in the world is going on,['] it just seems like a strange
reaction."
The court further explained, "I just think that the
witnesses[,] while there are four of them[,] there are some
inconsistencies in their stories that lead me to question the
credibility, and they have reasons to lie." The court found that
defendant had not met his burden of proof by a preponderance of
the evidence and denied defendant's motion to suppress.
B. Defendant's Bench Trial
At defendant's January 2006 bench trial, the parties
asked (1) for a decision based on stipulated facts and (2) that
the trial court take judicial notice of the testimony presented
at the September 2005 suppression hearing. The prosecutor then
stated that the evidence produced at trial would be as follows:
(1) on May 4, 2005, officers from the Pontiac police department
apprehended bags of trash outside Julie's house; (2) on May 5,
2005, the officers took the bags to a secured location and
searched them; (3) in one bag, the officers found a plant stem
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that was identified and field tested as cannabis material; (4)
they also found an empty plastic sandwich bag tied off at the
corner, as is "commonly [done in] drug packaging"; (5) the
officers found mail addressed to defendant at Julie's address;
(6) in another bag, they found 1.8 grams of cannabis material and
mail addressed to defendant at Julie's address; and (7) in
another bag, the officers found remnants of a cannabis cigarette
and mail addressed to Julie.
Later that day, the officers obtained a search warrant
for Julie's house. At 3:30 a.m. on May 6, 2005, the Pontiac
Tactical Response Team (TRT) unit executed the search warrant.
Five persons were in the house at the time, including defendant,
Julie, Elizabeth, Chase, and Woods. After defendant, Julie,
Elizabeth, and Woods were taken to jail, the police used canines
to search the house.
In the kitchen, officers found (1) a plastic bag, the
contents of which tested positive for cannabis; (2) a tan pipe,
commonly referred to as a "bowl," that contained black residue;
(3) another plastic bag (on top of the refrigerator) containing a
green leafy substance that tested positive for cannabis; and (4)
an electronic scale that was commonly used to weigh drugs.
In the living room, officers found a clock containing
an air hose connector with black residue on the end of it that
smelled like burned cannabis. In an upstairs bedroom, officers
found (1) a plate containing a white powder substance that field
tested positive for cocaine, (2) a plastic container with white
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powder residue that field tested positive for cocaine, (3) a
plastic bag with a knot tied in it, (4) three plastic straws, and
(5) a plastic bag containing a white powdery substance that field
tested positive for cocaine. Between the mattress and the box
springs, the officers found a plastic bag containing a green
leafy substance that tested positive for cannabis.
In the office, officers found two "sockets" with part
of a Brillo pad in each socket's end. Such a device is commonly
employed for drug use. In the garage, officers found (1) another
socket containing a Brillo pad and (2) inside a toolbox, a
cigarette box containing a plastic bag with a green leafy sub-
stance that field tested positive for cannabis.
The materials were sent to the Illinois State Crime
Lab, where it was determined that approximately 61 grams of
cannabis had been seized from the house. The residue from a
plastic pen tested positive for cocaine. The crime lab did not
test any other suspected cocaine residue because it was the crime
lab's policy not to perform further testing unless the additional
amount would raise the charge to a higher class felony.
After hearing the stipulated evidence, the trial court
heard arguments of counsel. Defense counsel argued as follows:
"It would be difficult for me to make any
argument that there wasn't sufficient proof
of residence on behalf of this particular
[d]efendant. It would also be difficult for
me to argue the issue of possession when it
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comes to the cannabis. *** However, Judge,
as you are aware, the information charges
that he knowingly possessed the contraband,
the illegal substance. There was some evi-
dence that was seized that contained or that
had the presence of a white residue on it.
However, that substance was not tested as far
as some of the pieces of evidence. There was
a plate. There was a [B]aggie.
The only thing that the State had to,
the only thing that the State had analyzed
was the inside of a barrel of an ink pen
where that contained a white residue. That
was later a residue that was tested at the
crime lab, and that established the presence
of cocaine. None of the other items were
tested.
It's our position, Judge, that the fact
that there was a residue inside of an ink pen
is not sufficient evidence to establish that
my client knowingly possessed cocaine. Of
course, there is the felony amount of canna-
bis. And like I say, that was an appreciable
amount. 61 grams. However, there was no
weight as to the residue that was found on
the inside of the ink pen.
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Okay. There was [sic] no statements
from my client that established his knowledge
of the presence of that residue. He never
made any statements to the police that, yeah,
I knew there was cocaine on the inside of
this ink pen. There's nothing to indicate
where it was found that would add to his
knowledge of the presence of a substance
inside of an ink pen.
Okay. I think it's commonly known that
an ink pen is or a barrel or a straw is some-
times used to ingest the controlled sub-
stance. However, the State, that does not
relieve the burden of the State to prove that
he was aware of it, aware of its presence.
Finding a [B]aggie of cocaine or finding a
[B]aggie of cannabis that weighed approxi-
mately 28 grams under his mattress is one
thing, and it's very difficult to argue that
he didn't know it was there. But finding a
residue inside of an ink pen that has no
weight from the crime lab or no weight indi-
cated from any police agency or any evidence
from the State is a different circumstance.
And I don't feel that that is enough
evidence to find my client guilty of know-
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ingly possessing a controlled substance, the
fact that there was a white powdery substance
that was located inside the barrel of an ink
pen."
The trial court found that it was "more or less con-
ceded" that defendant was guilty of possession of cannabis. The
court also found that "ample evidence" was present upon which to
find defendant guilty of possession of cocaine. In so finding,
the court noted that if the ink pen was the only piece of evi-
dence found containing residue, defense counsel's argument may
have been more convincing. However, given that the pen was found
inside the house, as opposed to outside the home in the yard, and
that other significant residue was found in other areas of the
house, the evidence supported its finding that defendant know-
ingly possessed cocaine.
Following a March 2006 hearing, the trial court sen-
tenced defendant as stated. Defendant filed a motion to recon-
sider, raising the same argument set forth in his motion to
suppress. The court denied defendant's motion to reconsider,
stating that it still believed its factual findings and ruling on
the motion were correct.
This appeal followed.
II. ANALYSIS
A. The Trial Court's Denial of Defendant's Motion To Suppress
Defendant first argues that the trial court erred by
denying his motion to suppress the evidence obtained during the
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search of Julie's house. Specifically, he contends that the
police circumvented the knock-and-announce rule by using the DEF-
TEC device, which prevented the occupants of the house from
hearing the police announce their presence. We disagree.
In People v. Lashmet, 372 Ill. App. 3d 1037, 1040, 868
N.E.2d 368, 371 (2007), this court discussed the standard of
review for a trial court's ruling on a motion to suppress evi-
dence as follows:
"When ruling on a motion to suppress
evidence, the trial court often must choose
between competing versions of fact and weigh
the credibility of witnesses. We thus defer
to the trial court's factual findings unless
we determine that those findings are mani-
festly erroneous."
We further explained that an error is "manifest" when it is
"'clearly evident, plain, and indisputable.'" Lashmet, 372 Ill.
App. 3d at 1040, 868 N.E.2d at 371, quoting People v. Ruiz, 177
Ill. 2d 368, 384-85, 686 N.E.2d 574, 582 (1997). "Although we
defer to the trial court on questions of fact, we review de novo
whether the law requires suppression of the evidence under those
facts." Lashmet, 372 Ill. App. 3d at 1040, 868 N.E.2d at 371.
In denying defendant's motion to suppress evidence, the
trial court stated that it found Davis's testimony to be more
credible than the testimony of defendant's witnesses, all of whom
were inside the house when the police executed the warrant.
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Specifically, the court noted that (1) discrepancies existed in
the defense witnesses' testimony, (2) some defense witnesses did
not come across as truthful, and (3) they all had reasons to lie.
The court also noted that some of the defense witnesses had been
in the upstairs of the residence and may have been distracted.
Based on the record, we conclude that the court's finding that
the police knocked and announced their authority before entering
was not against the manifest weight of the evidence.
Moreover, as a matter of law, violations of the knock-
and-announce rule, even if proved, will not automatically result
in the exclusion of evidence obtained as a result of the search.
Hudson v. Michigan, 547 U.S. __, 165 L. Ed. 2d 56, 126 S. Ct.
2159 (2006). In Hudson, the Court held that the exclusionary
rule is unwarranted under the fourth amendment (U.S. Const.,
amend. IV) for violations for the knock-and-announce rule.
Hudson, 547 U.S. at __, 165 L. Ed. 2d at 71, 126 S. Ct. at 2170.
Given the recent decision of the Supreme Court of Illinois in
People v. Caballes, 221 Ill. 2d 282, 313, 851 N.E.2d 26, 44-45
(2006), reaffirming that court's commitment to the limited-
lockstep analysis regarding decisions of the United States
Supreme Court applying the search-and-seizure provisions of the
fourth amendment, we believe the Supreme Court of Illinois would
likely adhere to Hudson. Therefore, even if the trial court had
found that the police failed to comply with the knock-and-an-
nounce rule, excluding the evidence obtained in the search would
not necessarily have been required. In light of our conclusion
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that the trial court's decision to deny the motion to suppress
was not against the manifest weight of the evidence, we decline
defendant's invitation to address the appropriate remedy for a
violation of the knock-and-announce rule under Illinois law.
B. Rule 402 Admonishments
Defendant also argues that his convictions must be
vacated because his stipulated bench trial was tantamount to a
guilty-plea proceeding, thus requiring the trial court to admon-
ish him, pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402).
We disagree.
Initially, we note that defendant failed to raise this
issue at trial or in a posttrial motion. Ordinarily, issues not
raised in the trial court are considered forfeited on appeal.
People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130
(1988). However, the forfeiture rule is an admonition to the
parties and not a jurisdictional limitation on the reviewing
court. See, e.g., People v. Porter, 372 Ill. App. 3d 973, 977,
866 N.E.2d 1249, 1254 (2007), quoting People v. Normand, 215 Ill.
2d 539, 544, 831 N.E.2d 587, 590 (2005). Because we conclude
that responding to defendant's argument regarding his stipulated
bench trial could provide guidance to trial courts, we choose to
address it.
Rule 402(a) provides as follows:
"The court shall not accept a plea of
guilty or a stipulation that the evidence is
sufficient to convict without first, by ad-
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dressing the defendant personally in open
court, informing him of and determining that
he understands the following[.]" 177 Ill. 2d
R. 402(a).
The rule goes on to list the admonitions defendant must be given,
such as the nature of the charge and the minimum and maximum
penalties prescribed by law. 177 Ill. 2d Rs. 402(a)(1), (a)(2).
If a "stipulated bench trial is tantamount to a guilty
plea, the trial court must admonish the defendant pursuant to
Rule 402." People v. Mitchell, 353 Ill. App. 3d 838, 844, 819
N.E.2d 1252, 1258 (2004). Whether a defendant's stipulated bench
trial was tantamount to a guilty-plea proceeding requiring Rule
402 admonitions is a question of law that this court reviews de
novo. Mitchell, 353 Ill. App. 3d at 844, 819 N.E.2d at 1258.
Defendant contends that the following circumstances
rendered his bench trial tantamount to a guilty-plea proceeding:
(1) the State's entire case was presented via stipulated facts,
(2) defense counsel did not challenge any of the State's evidence
of guilt, and (3) defense counsel agreed that the State had
proved defendant guilty of possession of cannabis. We are not
persuaded.
In People v. Horton, 143 Ill. 2d 11, 22, 570 N.E.2d
320, 325 (1991), the Supreme Court of Illinois addressed a
defendant's claim that his stipulated bench trial was tantamount
to a guilty-plea proceeding, thus entitling him to be admonished
under Rule 402. Prior to trial in Horton, defense counsel filed
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a motion to suppress identification evidence, which the trial
court denied. Horton, 143 Ill. 2d at 15, 570 N.E.2d at 321-22.
Later, at a pretrial hearing, defense counsel stated that defen-
dant was "'not contesting the sufficiency of the evidence'" and
merely sought to preserve the suppression issue. (Emphasis
omitted.) Horton, 143 Ill. 2d at 16, 570 N.E.2d at 322.
At the defendant's trial, all of the State's evidence
was admitted by stipulation, except for the testimony of one
witness. Defense counsel conducted a brief cross-examination of
that witness. Horton, 143 Ill. 2d at 16, 570 N.E.2d at 322.
During closing argument, defense counsel again stated that
defendant was not contesting the sufficiency of the State's
evidence. Horton, 143 Ill. 2d at 17, 570 N.E.2d at 322.
The supreme court concluded that the defendant's bench
trial was not tantamount to a guilty-plea proceeding, specifi-
cally noting that (1) conceding during argument that the State
presented sufficient evidence to convict was not equivalent to
stipulating to the defendant's guilt, and (2) the defendant had
presented and preserved a defense--namely, the suppression issue.
Horton, 143 Ill. 2d at 21-22, 570 N.E.2d at 324-25. The court
"unequivocally" held that "a stipulated bench trial is not
tantamount to a guilty plea if the defendant presented and
preserved a defense." Horton, 143 Ill. 2d at 22, 570 N.E.2d at
325.
More recently, in People v. Phillips, 217 Ill. 2d 270,
840 N.E.2d 1194 (2005), the supreme court addressed the issue of
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stipulated evidence, though not precisely for the purpose of
deciding the necessity for Rule 402 admonishments. Instead, the
court considered whether defense counsel can waive his client's
confrontation-clause rights by entering into evidentiary stipula-
tions. Discussing its prior holding on the issue in People v.
Campbell, 208 Ill. 2d 203, 802 N.E.2d 1205 (2003), the court
wrote, in pertinent part, as follows:
"[In Campbell,] we held that a defendant must
personally waive the right of confrontation
'when the State's entire case is to be pre-
sented by stipulation and the defendant does
not present or preserve a defense ***, or
where the stipulation includes a statement
that the evidence is sufficient to convict
the defendant.' [Citation.] We attached no
other restrictions to defense counsel's au-
thority to stipulate to the admission of
evidence, and, except in those specified
instances where the stipulation is tantamount
to a guilty plea, we imposed no obligations
on the trial court or counsel to admonish the
defendant and ensure that the advisement is
made a part of the record." (Emphasis in
original.) Phillips, 217 Ill. 2d at 283, 840
N.E.2d at 1202, quoting Campbell, 208 Ill. 2d
at 218, 802 N.E.2d at 1213.
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Borrowing language from Campbell and Phillips, defendant asserts
that he should have been admonished under Rule 402 because the
State's "entire case" was presented by stipulation.
We reject defendant's assertion for two reasons.
First, defendant overlooks the additional language quoted above,
indicating that a defendant's confrontation-clause rights are not
at risk of being compromised unless the entire case is presented
by stipulation and the defendant failed to present or preserve a
defense. Phillips, 217 Ill. 2d at 283, 840 N.E.2d at 1202. In
this case, defendant presented and preserved two defenses: (1)
the suppression issue and (2) whether he was guilty of knowing
possession of cocaine.
Moreover, we strongly disagree with defendant's charac-
terization of the State's case as being "entirely" presented by
stipulation. The evidence presented at the hearing on defen-
dant's motion to suppress was not entered by stipulation.
Instead, (1) the State put on one witness, (2) defense counsel
cross-examined that witness, and (3) defense counsel put on four
additional witnesses. Only later, at defendant's stipulated
bench trial, did the trial court take judicial notice of the
record of the hearing on defendant's motion to suppress. Thus,
the concerns addressed in Phillips and Campbell are not impli-
cated in this case. Instead, the defense preserved the suppres-
sion issue and the stipulated evidence included the transcript of
the suppression hearing, at which defense counsel conducted
vigorous cross-examination of the State's witness and put on
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evidence.
Under these circumstances, Rule 402 admonitions have no
place. Under Rule 402(a)(4), the trial court must admonish the
defendant that he is waiving "the right to be confronted with the
witnesses against him." 177 Ill. 2d R. 402(a)(4). Such a waiver
makes no sense when defense counsel had already cross-examined
the State's witness on the issue defendant preserved for review.
We emphasize this point because experience teaches us that it is
hardly uncommon for defendants (particularly in drug cases) who
have lost their motions to suppress evidence to stipulate at
their later bench trials that the trial court may consider the
evidence the parties presented at the suppression hearing. This
entirely sensible practice (1) avoids wasting the court's time,
as well as the time of everyone else (including the witnesses)
connected with the proceedings, (2) preserves for appeal what is
often the only real issue in the case--namely, the correctness of
the court's denial of the defendant's motion to suppress, and (3)
does not violate the defendant's right to confront and cross-
examine the witnesses against him (one of the fundamental con-
cerns underlying Rule 402) because the defendant has already
exercised that right.
Moreover, Campbell and Phillips did not overrule
Horton, and the circumstances in Horton bear striking similari-
ties to those presented here. Although in this case the State's
evidence regarding the possession of cannabis and cocaine was
entirely by stipulation, defendant did not stipulate to the
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sufficiency of the evidence.
Further, under Horton, a stipulated bench trial is not
tantamount to a guilty-plea proceeding if the defendant preserves
a defense. In addition to arguing that the stipulated facts did
not prove him guilty of cocaine possession, defendant presented
and preserved a defense based on the trial court's denial of his
motion to suppress evidence. (We note that in Horton, the sole
defense the defendant had preserved was the suppression issue.)
We thus conclude that because defendant (1) did not
stipulate to the sufficiency of the State's evidence and (2)
preserved a defense, his bench trial was not tantamount to a
guilty-plea proceeding, and the trial court was not required to
admonish him under Rule 402. See Horton, 143 Ill. 2d at 21-22,
570 N.E.2d at 324-25; People v. Rowell, No. 4-04-0481, slip op.
at 12 (December 15, 2006), ___ Ill. App. 3d ___, ___ N.E.2d ___
(in which this court held that even though the State's entire
case was presented by stipulation, the trial court was not
required to issue Rule 402 admonishments because the defendant
presented and preserved a defense, and the stipulated bench trial
was not tantamount to a guilty-plea proceeding).
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs for this
appeal. 55 ILCS 5/4-2002(a) (West 2004); see also People v.
Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985),
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citing People v. Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194,
199 (1978).
Affirmed.
COOK, J., concurs.
MYERSCOUGH, J., specially concurs in part and dissents
in part.
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JUSTICE MYERSCOUGH, specially concurring in part and
dissenting in part:
I respectfully specially concur in part and dissent in
part. I agree the trial court properly denied defendant's motion
to suppress; however, I disagree with the majority's holding that
defendant was not entitled to Rule 402 admonishments during his
stipulated bench trial.
Defendant's stipulated bench trial was tantamount to a
guilty plea on count II, alleging the unlawful possession of
cannabis. 720 ILCS 550/4(d) (West 2004). At defendant's bench
trial, defense counsel stated as follows:
"It would be difficult for me to make any
argument that there wasn't sufficient proof
of residence on behalf of this particular
[d]efendant. It would also be difficult for
me to argue the issue of possession when it
comes to the cannabis. ***
***
*** Of course, there is the felony
amount of cannabis. And like I say, that was
an appreciable amount."
The trial court found that it was "more or less conceded" that
defendant was guilty on count II, which was unlawful possession
of cannabis.
The plain language of Rule 402 requires defendant to be
admonished when he stipulates that the evidence is sufficient to
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convict. The rule states, "The court shall not accept a plea of
guilty or a stipulation that the evidence is sufficient to
convict without first, by addressing the defendant personally in
open court, informing him of and determining that he understands
the following." (Emphasis added.) 177 Ill. 2d R. 402(a). The
rule than lists the various admonitions defendant is entitled to,
including the right to confront the witnesses against him.
I agree with the majority that defendant did not
stipulate the evidence was sufficient to convict on count I, the
knowing possession of cocaine. However, because defense counsel
stipulated the evidence was sufficient on count II, such stipula-
tion was tantamount to a guilty plea on count II and required
Rule 402 admonishments. The supreme court cases addressing this
issue cite two situations where defendant is entitled to admon-
ishments: (1) when the State's entire case is to be presented by
stipulation and defendant does not present or preserve a defense;
or (2) the stipulation includes a statement that the evidence is
sufficient to convict. See Phillips, 217 Ill. 2d at 283, 840
N.E.2d at 1202 ("[W]e held that a defendant must personally
[(emphasis omitted)] waive the right of confrontation 'when the
State's entire case is to be presented by stipulation and the
defendant does not present or preserve a defense ***, or [(empha-
sis added)] where the stipulation includes a statement that the
evidence is sufficient to convict the defendant.' Campbell, 208
Ill. 2d at 218[, 802 N.E.2d at 1213]"). The majority relies
heavily on Horton, which was decided in 1991. The court's later
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decision in Campbell cites Horton only insomuch as it supports
the first instance in which defendant is entitled admonishments.
The court's subsequent decisions in Campbell and Philips make
clear that the defendant is entitled to admonishments when the
stipulation contains a statement that the evidence is sufficient
to convict. Therefore, in addition to the plain language of Rule
402, the prevailing case law supports finding that defendant in
this case was entitled to admonishments.
I also disagree with the majority when it states that
defendant's sixth-amendment right to confront the witnesses
"against him" was exercised during the motion-to-suppress hear-
ing. During a hearing on a motion to suppress, defendant's
liberty is not at stake, the issue of guilt is not before the
trier of fact, and the witnesses do not testify "against him."
See United States v. Andrus, 775 F.2d 825, 836 (7th Cir. 1985)
("The right to confrontation applies when the ability to confront
witnesses is most important--when the trier of fact determines
the ultimate issue of fact"). Rather, a motion-to-suppress
hearing has a singular purpose of determining the propriety of
the search that led to the State's physical evidence in the case.
In Andrus, the Seventh Circuit held that a hearing to determine
the admissibility of hearsay statements did not entitle defendant
to confrontation rights under the sixth amendment because the
issue was not before the jury and did not determine the defen-
dant's guilt. Andrus, 775 F.2d at 836. Like Andrus, the hearing
on defendant's motion to suppress in this case did not afford
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defendant the opportunity to cross-examine. In fact, because a
motion to suppress is almost always going to be filed by a
defendant, the witnesses are usually called by the defendant and
questioned on direct examination by defense counsel. Cross-
examination during such motions is usually the province of the
State.
For these reasons, I specially concur in the majority's
decision affirming the trial court's decision on defendant's
motion to suppress, but I dissent as to defendant's conviction of
possession of cannabis when he stipulated the evidence was
sufficient to convict and was not admonished under Rule 402.
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