No. 2--02--1142

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court

Following a trial by jury, defendant, Kemo D. Whirl, was convicted of two counts ofresidential burglary (720 ILCS 5/19--3(a) (West 2000)) and one count of possession of a controlledsubstance (720 ILCS 570/402(c) (West 2000)) and sentenced to the Illinois Department ofCorrections. Defendant now appeals his convictions. We reverse his convictions and remand in partfor a new trial.

Defendant first contends that the trial court erred in allowing the State to use all of his priorconvictions for impeachment at trial. Before trial, defendant moved in limine to exclude fromevidence,"or at least limit the manner in which they are introduced and the number introduced," 10convictions that he had received between 1993 and 1999. Included in this list were a conviction ofresidential burglary, two of burglary, several of theft, and two involving controlled substances. Thetrial court noted that both defendant's criminal history and the current case included controlledsubstance charges and "the same type of charge in here, I mean the same word of 'burglary.' " Thecourt then denied the motion, explaining:

"These are all within a 10-year period of the alleged commission in [sic] this offense,and I think that's one of the things people bring to the stand. They bring the entire past to thestand."

At trial, defendant testified during his case in chief that he had been convicted of some crimes,including felonies and "charges of a theft nature." On cross-examination, the State asked specificallyif he had been convicted of "theft of a stolen [sic] motor vehicle," burglary, residential burglary,possession of a controlled substance, delivery of a controlled substance, deceptive practices, andtheft. After each charge listed by the State, defendant answered, "Correct."

The State argues that this issue is waived because defendant did not object at trial to theState's use of the prior convictions. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (defendantwaives an issue on appeal unless he objects at trial and includes the issue in a posttrial motion). However, an issue is preserved for appeal if there has been either an objection at trial or it has beenraised in a motion in limine, and it is also raised in a posttrial motion. People v. Hudson, 157 Ill. 2d401, 434-35 (1993); People v. Barajas, 322 Ill. App. 3d 541, 553 (2001). As defendant moved inlimine and raised the issue in his posttrial motion, the issue is properly preserved for appeal.

Evidence of prior convictions is admissible for impeachment purposes if (1) the witness'scrime was punishable by death or by imprisonment for more than one year, or the crime involveddishonesty or false statement regardless of the punishment; (2) the witness's conviction or releasefrom confinement, whichever date is later, occurred less than 10 years before the date of trial; and(3) the danger of unfair prejudice does not substantially outweigh the probative value of theconviction. People v. Montgomery, 47 Ill. 2d 510, 516 (1971). This last element involves abalancing of probative value and prejudicial effect. People v. Cox, 195 Ill. 2d 378, 383 (2001). Inbalancing these factors, the trial court should consider the nature of the prior crimes, the length ofthe criminal record, the age and circumstances of the witness, and, most importantly, the extent towhich it is more important to the search for truth in a particular case for the jury to hear thedefendant's story than to know of a prior conviction. Cox, 195 Ill. 2d at 383. Convictions of thesame crime for which a defendant is on trial should be admitted sparingly. Cox, 195 Ill. 2d at 384. The trial court has discretion in the balancing test and in determining whether a prior conviction isadmissible. Cox, 195 Ill. 2d at 383. However, the trial court should not apply the balancing testmechanically (Stokes v. City of Chicago, 333 Ill. App. 3d 272, 279 (2002)), and the record mustinclude some indication that the trial court was aware of its discretion to exclude a prior conviction(People v. Elliot, 274 Ill. App. 3d 901, 907 (1995)).

The record in this case reveals a complete abdication by the trial court of its role in balancingthe probative value and prejudicial effect of defendant's prior convictions. The court simply notedthat the convictions were within 10 years of the trial, then ruled that defendant's entire history wasfair game. If anything, the only real consideration the court seemed to give to any factor was thatprior convictions of the crimes for which defendant was on trial should especially, rather thansparingly, be used. We cannot find that the trial court abused its discretion, because the court failedto exercise its discretion. This is the type of mechanical application of a rule, without the exerciseof discretion, that a trial court is to avoid. In the absence of an exercise of discretion, we cannotdefer to the trial court and assume that the probity of the admitted convictions of possession of astolen motor vehicle, burglary, residential burglary, possession of a controlled substance, delivery ofa controlled substance, deceptive practices, and theft outweighed their prejudice to defendant.

The State argues that, even if admission of the convictions was error, it was harmless error,as the outcome of the trial would not have been different. Without detailing the evidence in this case,we decline to conclude that forcing defendant to admit to seven different felonies, including someprior convictions of the crimes for which defendant was on trial, did not adversely affect the integrityof the criminal process. That much information regarding defendant's criminal history provides littlemore information to the jury than the fact that defendant likes to commit crime. The trial court hadthe opportunity to weigh the factors and explain its reasoning in allowing all the convictions to beused. However, the court demonstrated no evidence that it weighed the factors or exerciseddiscretion. Therefore, defendant's convictions must be reversed and the cause remanded for a newtrial.

The trial court's abdication of its responsibilities is further demonstrated by its actions in thenext two issues raised by defendant. On October 15, 2001, defendant filed a motion claimingineffective assistance of counsel on the part of Senior Assistant Public Defender Steve Dalton. Defendant alleged that Dalton would not return his telephone calls, had seen defendant only two orthree times, refused to talk about the case, and failed to file any motions; thus, there was a completebreakdown in communication. Dalton requested "some sort of finding on the merits of the motion. Granting it. Appoint another counsel, or find it has no merits." The court continued the case for twoweeks and told defendant that, if he was still dissatisfied, they would talk again.

On January 4, 2002, Dalton informed the court that he had received three communicationsfrom defendant asking him to withdraw from the case. Dalton filed a motion to withdraw as counsel,which the court granted without comment. The court then gave the public defender one week todetermine if another assistant could be appointed without a conflict. On the next court date, TheresaRioux of the office of the public defender appeared on defendant's behalf. The court told defendantthat he would have "two counsels who will be first chair." The court also refused defendant's requestfor appointment of a private attorney. Ms. Rioux appeared on the next court date but never againappeared on the case. Dalton continued his representation through the remainder of the case, evenafter defendant filed a complaint against him with the Attorney Registration and DisciplinaryCommission and another motion alleging ineffective assistance of counsel, by both Dalton and Rioux. After trial, defendant filed a pro se motion to amend his previous motion alleging ineffectiveassistance of counsel, adding 13 new allegations, and a five-page motion claiming ineffectiveassistance of counsel--posttrial. While the trial court denied a motion for a new trial that Dalton filed,the court never ruled on defendant's motions.

The court was aware of defendant's dissatisfaction with Dalton and eventually allowed Daltonto withdraw. However, the court never gave explicit reasons as to why it granted Dalton's motionto withdraw. Although the trial court allowed Dalton's withdrawal and appointed Rioux, Riouxappeared only twice and provided no substantive representation. The court then allowed Dalton tocontinue what was in essence his solo representation of defendant. The court made no effort toensure that the attorney that it appointed actually represented defendant, and it allowed a withdrawnattorney, whom defendant accused several times of ineffective assistance, to represent him througha jury trial and sentencing.

After trial, defendant filed two pro se motions alleging ineffective assistance of counsel, yetthe court neither investigated the claims nor ruled on the motions. A trial court must conduct sometype of inquiry into the underlying factual basis, if any, of a defendant's pro se posttrial claim ofineffective assistance of counsel. People v. Moore, 207 Ill. 2d 68, 79 (2003). Some interchangebetween the court and trial counsel is usually necessary, but the court may also base its decision ona discussion with the defendant and its own knowledge of counsel's performance at trial. Moore, 207Ill. 2d at 78-79. On appeal, where no such investigation occured, a case must be remanded to thetrial court for that purpose. Moore, 207 Ill. 2d at 79.

In these instances, the trial court again abdicated its role, allowing Dalton's continuedrepresentation after he was removed from the case and never addressing defendant's pro se allegationsof ineffective assistance of counsel. The trial court's dereliction of duty in its failure to address theposttrial motions is magnified by the history of Dalton's representation before, during, and after trial,even after he had withdrawn from the case. We are in no way determining that Dalton'srepresentation was ineffective; however, the trial court failed in its duty to provide defendant withappointed counsel when it removed Dalton from the case yet allowed him to represent defendantthroughout the case, and then it compounded its failure when it failed to even address defendant'smotions after trial. On remand, the trial court must address the issue of defendant's representationin the previous trial and how it will be handled on retrial.

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt ofpossession of a controlled substance. When a defendant challenges the sufficiency of the evidence,this court must determine whether, after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the essential elements of the crime beyond areasonable doubt. People v. Cowans, 336 Ill. App.3d 173, 175 (2002).

Deputy Joseph Korman of the Du Page County sheriff's office testified that he was on dutyat the Du Page County jail when defendant was brought in by police officers from Wheaton. Kormanwas in charge of receiving and searching inmates brought to the jail. Part of a search involvedremoving any items found in an inmate's mouth. Korman saw that defendant had something in hismouth. Defendant told him that it was gum and spit it out into a garbage can. Later, Korman'ssuperior asked him to search defendant's mouth again. Defendant eventually spit out "another pack." Korman recovered "two packs," which he described as two black baggies. Korman gave the baggiesto the transporting officers from Wheaton, and he assumed that the baggies were submitted to thecrime lab for testing. The baggies were not introduced into evidence; Korman identified them in aphotograph marked as People's Exhibit No. 24. According to Korman, the photograph showed thebaggies as they appeared on July 11, 2001, the date of defendant's arrest.

The parties then entered into a stipulation, which was read into the record as follows:

"MR. KENT [Assistant State's Attorney]: Judge, the stipulation would be that ifClaire Donaghey were called to testify, namely D-o-n-a-g-h-e-y, she would testify that shereceived two small black baggies from the Wheaton Police Department for testing in relationto the suspect Kemo Whirl. A crime lab report dated October 23, 2001 showed that one ofthose small baggies tested positive for the presence of cocaine, weighing less than 15 grams. The stipulation would also include that she would be qualified as an expert witness.

***

Judge, I believe that the stipulation would include that the two bags depicted in[People's Exhibit No.] 24 are the bags that were tested.

THE COURT: Correct? Correct, Mr. Dalton?

MR. DALTON [Defense counsel]: Yes."

During his testimony, defendant stated that he had some cocaine in his mouth when he waschased by the police and while he was at the Wheaton police department.

Before real evidence may be admitted at trial, the State must provide an adequate foundation,either through testimony or stipulation, that establishes that the item sought to be introduced is theactual item involved in the alleged offense and that its condition is substantially unchanged. Cowans,336 Ill. App. 3d at 176. Where an item possesses unique and readily identifiable characteristics andits substance is relatively impervious to change, an adequate foundation is laid by testimony that theitem sought to be admitted is the same one recovered and in substantially the same condition as whenrecovered; however, if the item is not readily identifiable or is susceptible to alteration by tamperingor contamination, its chain of custody must be established with sufficient completeness to render itimprobable that the original item has been exchanged, contaminated, or subjected to tampering. Cowans, 336 Ill. App. 3d at 176. A sufficiently complete chain of custody does not require that everyperson in the chain testify, nor must the State exclude all possibilities that the evidence may have beensubjected to tampering; however, the State must demonstrate that it took reasonable protectivemeasures from the time that the evidence was seized and that the evidence has not been changed inany important respect. Cowans, 336 Ill. App. 3d at 177. A sufficiently complete chain will includedelivery, presence, and safekeeping of the evidence. Cowans, 336 Ill. App. 3d at 178.

Here, the State has failed to provide a sufficient chain of custody. Deputy Korman testifiedthat he recovered "two packs," which he described as two black baggies. Defendant spit out only onepacket during the second search of his mouth; left unsaid was when and where the other pack wasfound. Korman gave these items to unidentified transport officers from Wheaton. It was stipulatedthat Claire Donaghey would testify that she received two black baggies from the Wheaton policedepartment, again with no delivering officer or time specified. While Korman testified that thephotograph showed the baggies as they appeared on the night they were recovered, there was noevidence as to where the second baggie was found, the length of time it was unaccounted for beforeit was found, who handled the baggies between the time Korman turned them over to the transportofficers and the time the baggies were delivered to the crime lab, when the baggies were deliveredto the crime lab, and which baggie tested positive for cocaine. While not all of this evidence mayhave been required, none was provided. This chain of custody is missing too many links, and it isinsufficient to sustain defendant's conviction. Where the State fails to prove its case, evidentiaryinsufficiency requires this court to reverse a conviction outright. Cowans, 336 Ill. App. 3d at 181. Thus, we must reverse defendant's conviction on the controlled substance count as against themanifest weight of the evidence.

For these reasons, we reverse defendant's convictions, and we remand for a new trial on thecharges of residential burglary.

The judgment of the circuit court of Du Page County is reversed, and the cause is remandedin part for further proceedings.

Reversed; cause remanded in part.

BOWMAN and HUTCHINSON, JJ., concur.