No. 2-08-0599 Filed: 6-10-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 07--CF--3565
)
JERRY B. HOLMAN, ) Honorable
) Christopher R. Stride,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
Defendant, Jerry B. Holman, was convicted by a jury of possession of a controlled substance
with intent to deliver (720 ILCS 570/401(c)(2) (West 2006)). He was sentenced to 14 years'
imprisonment plus a 3-year term of mandatory supervised release (MSR). On appeal, defendant
argues that: (1) the trial court erred in failing to grant his motion to suppress evidence; (2) he was
denied his right to due process when the trial court prohibited defense counsel from using
demonstrative evidence during cross-examination; (3) the trial court erred in imposing a fee for
reimbursement of court-appointed counsel; and (4) the trial court erred in sentencing defendant to
a three-year term of MSR where he was convicted of a Class 1 felony that carries only a two-year
MSR term. We affirm in part, vacate in part, and remand.
I. BACKGROUND
No. 2--08--0599
Prior to trial, defendant's attorney left the public defender's office but was granted leave to
continue to represent defendant pro bono as private counsel. The succeeding assistant public
defender was then allowed to withdraw as counsel. After a short exchange between the trial court
and the attorneys present, the trial court assessed a public defender fee of $1,200.
The following evidence was adduced at trial. Waukegan police officer Joshua Amann testified
that on September 15, 2007, he was patrolling a bike path in Waukegan that he described as an area
having "a lot of graffiti" and "activity." At 9 p.m., Amann saw two men walking toward his parked
squad car. One man, Donald Dagen, was carrying what Amann believed was a 40-ounce bottle of
alcohol. The other man, defendant, was not carrying anything. Amann announced he was a police
officer and turned on his squad car's spotlight. He ordered them loudly to "come here." Dagen put
the bottle down near the bike path. Then he and defendant veered off the path and crouched behind
some bushes. At this point, Amann could see only the tops of their heads. Amann called for backup
and again ordered the two men to come over and talk to him. After "a few seconds," defendant and
Dagen emerged from the bushes and approached the squad car. Amann had them stand with their
hands on the squad car until two other police officers arrived approximately a minute or two later.
The officers then patted down both men. Amann testified that they did not find any weapons or
contraband on either man.
While the backup officers watched defendant, Amann searched the bushes in the area where
he saw Dagen and defendant crouch down. He found a bag containing 20 individually wrapped
"crack" cocaine rocks sitting on a leaf that was growing underneath the bushes. Dagen and defendant
were placed under arrest and handcuffed. They were transported to the police station in separate
squad cars. Amann noticed defendant moving around in the backseat of his squad. He told defendant
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he always searched his car after transporting anyone. Amann testified that defendant replied that he
was "throwing crack rocks in the back of [his] squad car." After defendant was brought into the
station for booking, Amann searched the car while it was in the police garage and found 10
individually packaged crack rocks on the floor of the car.
Three officers then conducted a "strip search" of defendant and found seven individually
wrapped "crack" cocaine rocks in the elastic of his underwear.
Waukegan police department Lieutenant Jon Oliver, the State's expert witness in narcotics,
testified regarding the packaging and the weight of the packages of cocaine. During cross-
examination of Oliver, defense counsel used a whiteboard to record Oliver's responses regarding
factors that he routinely considered in determining whether a person possessed narcotics with the
intent to sell them. Initially, the trial court allowed defense counsel to proceed over the State's
objection to the use of the board. When defense counsel wrote "facts are better than assumptions"
on the board, the trial court sustained the State's objection on the ground that the phrase was
argumentative. The trial court allowed defense counsel to continue using the board to record a few
more of Oliver's responses such as "cell phone," "money," and "scales," until the State renewed its
objection. After ruling that the use of the board unfairly highlighted the officer's testimony during his
cross-examination and was unfairly prejudicial, the trial court told defense counsel that he could:
"make a list of all the things the officer testifies to that are factors and those things that are
not, and in his closing argument he is certainly entitled to produce an exhibit which reflects
those items. But I find that in cross-examination, before the State has rested its proofs, and
before we have even gotten to a defense case, [sic] that the effect of this exhibit is purely
prejudicial."
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Defendant was convicted of one count of unlawful possession of a controlled substance with
intent to deliver. 720 ILCS 570/401(c)(2) (West 2006).
II. ANALYSIS
A. Denial of Motion to Suppress Evidence
Defendant first argues that the trial court erred by denying his motion to suppress the evidence
because the cocaine was recovered as a result of his unconstitutional seizure. Courts of review apply
a two-part standard of review when faced with a challenge to a trial court's ruling on a motion to
suppress evidence. People v. Luedemann, 222 Ill. 2d 530 (2006). First, the trial court's findings of
historical fact are reviewed only for clear error, and deference is afforded to any inferences the
factfinder drew from those facts. Luedemann, 222 Ill. 2d at 542. We will not disturb the trial court's
factual findings unless they are against the manifest weight of the evidence. Luedemann, 222 Ill. 2d
at 542. "A finding is against the manifest weight of the evidence only if the opposite conclusion is
clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence
presented." People v. Deleon, 227 Ill. 2d 322, 332 (2008). This deferential standard of review is
grounded in the reality that the trial court is in a superior position to determine and weigh the
credibility of the witnesses, observe the witnesses' demeanor, and resolve conflicts in their testimony.
People v. Richardson, 234 Ill. 2d 233, 251 (2009). However, the reviewing court is free to assess
the facts in relation to the issues presented in the case and may draw its own conclusions when
deciding what relief should be granted. Luedemann, 222 Ill. 2d at 542. We review de novo the trial
court's ultimate legal ruling on the motion to suppress. Luedemann, 222 Ill. 2d at 542.
The fourth amendment to the United States Constitution and article I, section 6, of the Illinois
Constitution protect citizens from unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
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Const. 1970, art. I, §6. A person is "seized" within the meaning of the fourth amendment when, in
view of the surrounding circumstances, a reasonable person would believe he was not free to leave,
and the person submits to the police order. People v. Thomas, 198 Ill. 2d 103, 111 (2001).
In Thomas, the defendant did not submit to the police order and fled from the police, first on
a bicycle and then on foot, and prevented what would have been an unlawful stop: "Had the
defendant stopped when his path was obstructed, had he submitted to [the police officer's] show of
authority, a seizure of the kind offensive to our constitution would have occurred. [The officer]
would have effected an investigatory stop absent the requisite degree of suspicion to support it. The
stop would have constituted an unreasonable seizure of the defendant's person. However, [the
officer's] attempt to effect an unlawful stop did not implicate the fourth amendment because the
defendant took flight and prevented it." Thomas, 198 Ill. 2d at 112, quoting People v. Thomas, 315
Ill. App. 3d 849, 857 (2000).
In this case, Amann was patrolling a bike path in an area that was known for "a lot of graffiti"
and "activity." At 9 p.m., Amann saw two men walking toward his parked squad car. One of them
was carrying what Amann believed was a 40-ounce bottle of alcohol. The second man, defendant,
was not carrying anything. Amann announced he was a police officer and turned on his squad car's
spotlight. He ordered them loudly to "come here." It was at this point that defendant's companion
put down the bottle he was carrying and he and defendant "veered" off the path and into the bushes.
Amann could still see where they were, and when they emerged from the bushes 5 to 10 seconds
later, they approached his squad car. Moments later, backup officers had arrived. The search of the
bushes where Amann observed defendant and his companion stoop down revealed cocaine "resting
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on a leaf." Immediately after the cocaine was found in the bushes, Amann placed defendant under
arrest.
Defendant argues that Amann had no justifiable basis for initiating a Terry stop, because the
facts of this case establish only a mere hunch on the part of the officer, rather than specific articulable
facts that, when taken together with rational inferences, warranted the intrusion. See Terry v. Ohio,
392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80 (1968). However, the stop
itself did not produce any "fruit of the poisonous tree." Therefore, the cases cited by defendant are
inapposite, as the circumstances differ in that this search was not the product of an improper Terry
stop.
We must point out that we do not agree with the State's argument that the police were
justified in making a Terry stop because defendant "evaded" the police officer. This does not appear
to be an "unprovoked flight" on the part of defendant, as asserted by the State. However, a perimeter
search by an experienced officer led to the discovery of the cocaine. A reasonable inference is that
defendant, who later was found to possess 17 similar packages of cocaine, placed it on the leaf in the
area where he had been observed spending a few moments during his evening stroll.1 See People v.
Long, 369 Ill. App. 3d 860, 869 (2007) (police officers had probable cause to arrest defendant for
possession of baggies of cocaine found on floor under bar table near defendant's feet, despite presence
of 35 to 40 patrons in the bar).
The amount of time that had passed and the proximity of defendant to the bushes render
reasonable the inference that defendant possessed the cocaine. Defendant abandoned the drugs
1
Common sense would indicate that the positioning of a bag of crack rocks "on a leaf" was
somewhat precarious and would not have remained as placed for very long.
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before he was seized. He was not seized until he returned to the path, approached the squad car, and
submitted to the order. The allegedly unlawful seizure at the time of submission did not result in the
recovery of any evidence. Thus, the arrest based on the drugs found during the perimeter search was
proper, and the search incident to that arrest was valid.
B. Denial of Use of Demonstrative Evidence
Defendant next contends that the trial court's decision to prohibit the use of the whiteboard
during cross-examination of the State's expert witness was an abuse of discretion that denied
defendant his right to due process and a fair trial. The use of demonstrative evidence lies within the
sound discretion of the trial court, and we review the trial court's decision for an abuse of that
discretion. People v. Williams, 275 Ill. App. 3d 242, 248 (1995). "