People v. Bailey

SECOND DIVISION
June 26, 2007

No. 1-05-2913

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
HENRY BAILEY, ) Honorable
) William G. Lacy,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

Following a bench trial, the defendant, Henry Bailey, was

convicted of possession of a controlled substance with intent to

deliver. He raises several issues, most prominently the

contention that his lawyer’s cross-examination of the State’s

primary witness produced persuasive evidence of his intent to

deliver.

Defendant contends: (1) the State failed to prove him guilty

beyond a reasonable doubt of possession of a controlled substance

with intent to deliver; (2) his defense counsel provided

ineffective assistance where counsel elicited inculpatory

evidence on cross-examination; (3) the court abused its

discretion in sentencing him to 12 years in prison; (4) the trial

court erred in imposing a $20 penalty for the Violent Crime

Victims Assistance Fund; (5) he is entitled to a $150 credit
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against his mandatory drug assessment for the time he spent in

custody; and (6) the statute mandating a $5 fee for deposit in

the Spinal Cord Injury Paralysis Cure Research Trust Fund is

unconstitutional.

Because we agree that defendant’s lawyer provided

ineffective assistance that prejudiced the defendant, we reverse

his conviction and remand this cause for a new trial.

FACTS

Since prejudice to the defendant is an issue raised by his

ineffective assistance claim, we will set out the testimony in

some detail.

On February 26, 2005, at 10 a.m., Chicago police officer

Fron was conducting surveillance in the vicinity of 4449 West

Jackson Street. It was daylight. He was using binoculars from

an elevated position. He saw the defendant pacing back and forth

in an alley approximately 30 to 35 feet away. An unknown person

was standing on the corner of Gladys and Kilbourn, about 50 feet

from the alley. The unknown person on the corner was yelling the

word "Rocks" at passing cars. When cars pulled up, he would

speak with the occupants and direct the cars to the alley where

defendant was standing.

Fron lost sight of the cars for about 10 to 15 seconds

before they pulled into the alley. When the cars pulled up next

to the defendant, the defendant spoke to the occupants. One of

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the occupants would hand defendant what appeared to be United

States currency. The defendant then reached in his jacket pocket

and pulled out a 3/4 inch by 3/4 inch white item. He handed the

item to the person who gave him the money. Officer Fron believed

he had witnessed narcotics transactions. After the third such

transaction, he called his partner, Officer Purvis, and

instructed him to approach his surveillance point on foot so they

could detain the defendant.

Officer Fron switched to another position at ground level.

He could see the defendant, who was about 30 to 40 feet away. He

observed a fourth transaction similar to the first three. Fron

lost sight of the defendant for approximately 30 seconds. The

defendant reappeared and walked west to the mouth of the alley.

Officer Purvis approached. The officers ran towards the

defendant. The defendant turned, looked in the officers’

direction, and began running north on Kilbourn. They chased the

defendant for about a minute. They did not lose sight of the

defendant. The defendant cut into a vacant lot at 4448 West

Adams. He reached into his jacket pocket, pulled out an item,

and threw it in front of him. He dropped to the ground.

Officer Fron handcuffed the defendant and retrieved the

item. It was a ziplock baggie containing a substance he

suspected was crack cocaine. The officers advised the defendant

of his Miranda rights and transported him to the police station.

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Officer Fron gave the ziplock bag to Officer Purvis, who

inventoried the item in his presence. During a custodial search

of the defendant, Fron recovered $63 from under the arch of

defendant’s foot between two layers of socks.

On cross-examination, defense counsel asked Fron if he ever

saw the defendant speak with the unknown person on the corner.

Fron said he saw the unknown person speak to the defendant and

accept money from the defendant. Defense counsel continued

questioning Fron about the interaction between the defendant and

the unknown person. Fron said, "I’m not sure if it was between

transaction two or three, but I listed in there throughout the

surveillance, I think he came there twice and accepted money from

[defendant]." Fron said he wrote in the vice case report,

"periodically the subject on the corner would walk to where the

offender was and accept U.S.C. from the offender."

Fron could not describe any of the vehicles or their

passengers. He did not recall what time each transaction

occurred, although they took place from 10 a.m. to 10:35 a.m.

The parties stipulated that a forensic chemist from the

Illinois State Police Crime Lab would testify she tested the

substance in the ziplock bag. The contents weighed .1 gram and

tested positive for the presence of cocaine.

The defendant testified he was in the alley doing janitorial

work for a man named Bruce Neville. He denied dealing drugs or

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having drugs in his possession. When he saw the police, he ran

because Officer Fron was constantly terrorizing him. Officer

Fron had used him as a snitch to inform the police about other

people in the neighborhood. The defendant said he did not drop

anything. After he fell to the ground, the officers did a full

body search. No drugs were found. At the station, the officers

found $50 wrapped up with a prescription for his grandmother’s

medication.

The parties stipulated to the defendant’s seven prior felony

convictions for possession of a controlled substance and one

conviction for possession of a controlled substance with intent

to deliver.

The trial judge found Officer Fron’s testimony credible and

unimpeached in any significant way. He found defendant’s

testimony contradictory and incredible. The judge noted the

evidence that an unknown person was standing on the corner

yelling, "Rocks." The cars would pull up, the people would talk

to the unknown person, then immediately go to where defendant was

standing in the alley. The judge said:

"Then there is testimony, and it is

unimpeached testimony, even bolstered by the

introduction that it is placed in the police

reports that this individual who was on the

corner twice on two occasions went to the

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defendant, Mr. Bailey, and accepted United

States currency from Mr. Bailey."

The judge also noted the evidence that defendant ran from the

scene after he saw the police. The judge found defendant guilty

of possession of a controlled substance with intent to deliver.

At the sentencing hearing, the State introduced evidence of

defendant’s 17 prior felony convictions beginning in 1981. The

defendant was found to be Class X-eligible. In mitigation,

defense counsel told the court the defendant aspires to get his

GED and become a youth counselor. Defendant’s mother and uncle

testified defendant is a good-hearted person who helps his mother

around the house. His uncle said he was going to try to get

defendant into a treatment program. The defendant’s father is

deceased. The defendant has a good relationship with his 23-

year-old daughter. The court, citing the defendant’s

"horrendous" criminal background, sentenced the defendant to 12

years in the Illinois Department of Corrections.

DECISION

I. Reasonable Doubt

Where a defendant challenges the sufficiency of the evidence

supporting his conviction, the relevant inquiry is whether, after

viewing all the evidence in the light most favorable to the

State, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. People v.

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Campbell, 146 Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). We will

not reverse a conviction on appeal "unless the evidence is so

unreasonable, improbable, or unsatisfactory as to justify a

reasonable doubt of the defendant’s guilt." People v. Smith, 288

Ill. App. 3d 820, 823, 681 N.E.2d 80 (1997).

To convict the defendant of unlawful possession of a

controlled substance with the intent to deliver, the State was

required to prove: defendant had knowledge of the presence of the

narcotics, the controlled substance was in the immediate

possession or control of the defendant, and the defendant

intended to deliver the controlled substance. People v. Burks,

343 Ill. App. 3d 765, 768, 799 N.E.2d 745 (2003); see 720 ILCS

570/401 (West 2002). The elements may be proved by

circumstantial evidence. People v. Moore, 365 Ill. App. 3d 53,

58, 846 N.E.2d 829 (2006).

The defendant challenges the evidence supporting the third

element, the defendant’s intent to deliver. Whether the State

proves intent to deliver in a given case "involves the

examination of the nature and quantity of circumstantial evidence

necessary to support an inference of intent to deliver." People

v. Robinson, 167 Ill. 2d 397, 408, 657 N.E.2d 1020 (1995).

Because direct evidence of intent to deliver is rare, the

defendant’s intent usually must be proved through circumstantial

evidence. Robinson, 167 Ill. 2d at 407.

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Factors that may be probative of intent to deliver include:

whether the quantity of controlled substance in defendant’s

possession is too large to be viewed as being for personal

consumption; the high purity of the confiscated drugs; the

possession of weapons; the possession of large amounts of cash;

the possession of police scanners, beepers, or cellular

telephones; the possession of drug paraphernalia; and the manner

in which the substance is packaged. Robinson, 167 Ill. 2d at

408. The list of Robinson factors is not exhaustive; other

factors may provide evidence of an intent to deliver. People v.

Bush, 214 Ill. 2d 318, 327-28, 827 N.E.2d 455 (2005).

The defendant contends the State failed to prove an intent

to deliver because none of the Robinson factors is present in

this case. The very small amount of drugs found on the

defendant, .1 gram of cocaine, could easily be viewed as being

for personal consumption. There was no evidence about the purity

of the drugs, and no weapons, beepers, cell phones, or drug

paraphernalia were found on the defendant. Only $63 in cash was

retrieved from the defendant’s sock. There was no testimony that

police saw the defendant take off his shoe and sock or put money

in his sock. There was nothing about the packaging that would

support an intent to deliver, given the fact that only one

ziplock bag was found.

As the court stated in Robinson, however, the factors listed

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are merely examples of factors considered by Illinois courts as

probative of an intent to deliver. Robinson, 167 Ill. 2d at 408.

"In light of the numerous types of controlled substances and the

infinite number of potential factual scenarios in these cases,

there is no hard and fast rule to be applied in every case."

Robinson, 167 Ill. 2d at 414.

A reviewing court must allow all reasonable inferences from

the record in favor of the prosecution. Bush, 214 Ill. 2d at

326. Although the evidence was far from overwhelming, we believe

a rational trier of fact could have inferred from the evidence

that defendant had an intent to deliver the drugs found in the

ziplock bag. We find the evidence was sufficient to convict the

defendant beyond a reasonable doubt of possession of a controlled

substance with intent to deliver.

II. Ineffective Assistance

The defendant contends his counsel was ineffective for

eliciting the evidence from Officer Fron that the unknown person

on the corner approached him and received money from him

throughout the transactions. The State did not elicit this

evidence during its direct examination.

To establish a claim of ineffective assistance of counsel, a

defendant must demonstrate that his counsel’s representation was

deficient, and he was prejudiced by the deficiency. Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

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(1984). Both prongs of the Strickland test must be satisfied to

establish an ineffective assistance of counsel claim. People v.

Albanese, 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246 (1984).

Counsel’s performance is deficient if it fails to satisfy an

objective standard of reasonableness. Strickland, 466 U.S. at

687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must

overcome a strong presumption that the challenged action or

inaction was the product of trial strategy. People v. Evans, 186

Ill. 2d 83, 93, 708 N.E.2d 1158 (1999). A defendant is

prejudiced if there is a reasonable probability that the outcome

of the trial would have been different, or the result of the

proceeding was unreliable or fundamentally unfair. Strickland,

466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; People

v. Evans, 209 Ill. 2d 194, 220, 808 N.E.2d 939 (2004).

This court has held a defense attorney who elicits damaging

testimony that proves an element of the State’s case may be found

to have provided ineffective assistance. In People v. Orta, 361

Ill. App. 3d 342, 836 N.E.2d 811 (2005), defense counsel brought

out damaging and inadmissible evidence through cross-examination,

evidence not offered by the State. Specifically, defense counsel

elicited testimony that police officers recovered from an

apartment cellular phone bills with defendant’s name on them,

articles of male clothing, and pre-recorded funds from a prior

drug sale. Orta, 361 Ill. App. 3d at 346. We said the most

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damaging evidence was the pre-recorded funds. Orta, 361 Ill.

App. 3d at 347. The trial court tried to discourage counsel from

presenting the evidence, and the State objected to the evidence

as irrelevant. Undeterred, defense counsel persisted in asking

about the prerecorded bills during cross-examination of police

officers, referring to them again during final argument. The

evidence prejudiced the defense case with no legitimate tactical

purpose. Orta, 361 Ill. App. 3d at 347. In addition, the trial

court mentioned the evidence in its finding of intent to deliver.

We held the evidence was sufficiently damaging to satisfy both

Strickland prongs. Orta, 361 Ill. App. 3d at 350.

See also People v. Jackson, 318 Ill. App. 3d 321, 328, 741

N.E.2d 1026 (2000) ("For defense counsel to elicit testimony

which proves a critical element of the State’s case where the

State has not done so upsets the balance between defense and

prosecution so that defendant’s trial is rendered unfair.")

Here, defense counsel asked Officer Fron if he saw the

defendant speak with the unknown person on the corner. When Fron

responded that he saw the defendant speak with the unknown person

and saw the defendant give money to the man, defense counsel did

not move to strike the nonresponsive answer. Instead, she

continued questioning the witness, digging the hole deeper,

eliciting damaging testimony not presented as part of the State’s

case. We cannot find a valid trial strategy in defense counsel’s

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pursuit of this line of questioning.

The State contends defense counsel was attempting to impeach

the witness by showing the officer had not included certain facts

in the police report, such as whether he saw defendant speak to

the unknown corner person. This could have been accomplished

without allowing the witness to testify three times that he saw

the defendant tender money to the corner person. Fron also was

allowed to testify to the contents of the vice case report where

he reported seeing the unknown corner person "periodically"

approach the defendant and accept money from the defendant.

Apparently, defense counsel did not know what was in the vice

case report. Either that, or she gave it no thought. The

defense attorney’s continued questioning of the witness about the

evidence, coupled with the failure to move to strike the

nonresponsive answer, and the presumed lack of awareness of the

contents of the vice case report, was an error satisfying the

first prong of the Strickland test.

We believe the defendant also satisfies the second prong

because he was prejudiced by the admission of the evidence. The

testimony was a key piece of evidence. It connected the

defendant to the man on the corner yelling, "Rocks." It also

explained why no money was found in defendant’s pockets, and the

only money found on the defendant was $63 between two layers of

socks. The trial judge clearly relied on the evidence in finding

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defendant guilty. He said so. The police did not arrest the

unknown man on the corner, nor did they arrest any of the

passengers in the cars. There was no testimony describing any of

the cars or the passengers. As we have stated, none of the

factors usually associated with an intent to deliver, i.e., the

amount of the drugs, paraphernalia, or packaging, was present.

We find defense counsel’s elicitation of this evidence was so

damaging as to render defendant’s trial unfair. See Jackson, 318

Ill. App. 3d at 328.

Because both prongs of the Strickland test were satisfied,

we reverse the defendant’s conviction and remand for a new trial.

Given our decision to reverse and remand the defendant’s

conviction, we see no need to discuss the sentencing issues he

has presented.

CONCLUSION

We find defense counsel was ineffective in eliciting

evidence that proved an important part of the State’s case. We

reverse and remand for a new trial.

Reversed and remanded.

HALL, J., concurs.

JUSTICE HOFFMAN, dissenting:

The majority concludes that the defendant received

ineffective assistance of counsel because his attorney elicited

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testimony on cross-examination of Officer Fron that was damaging

to the defendant's interests and which had not been presented as

part of the State's case. The majority also finds that the

defendant was prejudiced by the actions of his attorney because

the trial judge relied upon the cross-examination testimony of

Officer Fron in finding the defendant guilty. I dissent because

I believe that the evidence against the defendant was

overwhelming and that there is no reasonable probability that the

outcome of the trial would have been different if the defendant's

attorney had never elicited the damaging testimony from Officer

Fron.

Clearly, the defense attorney rendered deficient

representation when her cross-examination of Officer Fron

elicited testimony that he witnessed the unknown person, who was

standing on the corner and yelling "rocks" at passing vehicles,

speak to the defendant and accept money from him on several

occasions. That evidence was never brought out by the State, and

it connected the defendant with the unknown individual. It is

also true, as the majority notes, that the trial judge relied

upon that evidence in finding the defendant guilty. However, the

trial judge also found the defendant's testimony "wholly

incredible and hardly merit of commenting." The judge observed

that the defendant contradicted himself and that his testimony

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made no sense. Specifically, the trial judge stated:

"It doesn't seem to make sense that he [the defendant]

is telling this Court that he continuously helps

Officer Fron by providing him with information and

being a snitch for him, as he put it, and that this

officer is going to concoct this elaborate scenario in

order to put a case on him."

In contrast, the judge found that Officer Fron testified in a

"credible manner" and that he was "not impeached in any

significant way."

If one discounts the "incredible" story that the defendant

related, we are left only with the "credible" testimony of

Officer Fron. The majority states that the evidence against the

defendant was "far from overwhelming." I disagree.

On direct examination, Officer Fron testified that he

observed the unknown individual, who was yelling "rocks", direct

vehicles into the alley where the defendant was standing. He

observed the defendant engage in 4 transactions during which the

occupants of the vehicles gave the defendant money in exchange

for a three-quarter square-inch white article which the defendant

took from his jacket pocket. Officer Fron also observed the

defendant remove a similar object from his jacket pocket and

throw it on the ground as he was fleeing to avoid apprehension.

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That object tested positive for the presence of cocaine. Officer

Fron was never impeached in any significant manner.

The majority correctly notes that the trial court referenced

the damaging cross-examination testimony of Officer Fron, but he

did so only after finding Officer Fron's testimony credible and

after finding that the defendant's testimony was contradictory

and made no sense. Further, it was not the cross-examination of

Officer Fron that connected the defendant to the unknown

individual on the corner; it was his direct examination that

initially established their connection. On direct examination,

the officer testified that the unknown individual directed

vehicles into the alley where the defendant was positioned. The

cross-examination may have offered additional evidence linking

the defendant to the unknown individual, but it certainly was not

the only evidence that connected the two.

In order to establish a claim of ineffective assistance of

counsel, a defendant must demonstrate that his attorney's

performance was deficient, that is to say that counsel made

errors so serious that she was not functioning as

constitutionally guaranteed, and that counsel's deficient

performance prejudiced the defendant. Strickland v. Washington,

466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To

establish prejudice, a "defendant must prove that there is a

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reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

People v. Evans, 186 Ill. 2d 83, 93, 708 N.E.2d 1158 (1999).

Both prongs of the Strickland test must be satisfied in order to

establish ineffective assistance of counsel. Evans, 186 Ill. 2d

at 94.

Implicit in the majority's opinion is the notion that there

is a reasonable probability that, but for defense counsel's

having elicited the damaging testimony on cross-examination of

Officer Fron, the result of the defendant's trial would have been

different. I disagree. Officer Fron's cross-examination

testimony was not the basis for the trial court having found the

defendant's version of events incredible. Also, though that

testimony may have "bolstered" the officer's evidence on direct

examination, it certainly was not the corner stone of the trial

court's finding that Office Fron was both credible and

unimpeached. Based on the record in this case and the full text

of the trial judges's comments in finding the defendant guilty, I

do not believe that there is any reasonable probability that the

outcome of the defendant's trial would have been any different

had defense counsel never elicited the damaging testimony on

cross-examination of Officer Fron. Simply put, I do not believe

that the defendant has satisfied the second prong of the

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Strickland test.

For these reasons, I would affirm the defendant's conviction

and sentence to 12 years' imprisonment. However, in accordance

with the State's concession, I would vacate the $20 fine assessed

against the defendant for the Violent Crime Victims Assistance

Fund and grant him a $150 credit against his mandatory drug

assessment.

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