People v. Adams

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People v. Adams

State: Illinois

Court: 3rd District Appellate

Docket No: 3-07-0060 Rel

Case Date: 03/05/2009

Preview:No. 3-07-0060 Filed March 5, 2009 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2009

THE PEOPLE OF THE STATE OF ILLINOIS,

) Appeal from the Circuit Court ) of the Tenth Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05-CF-1250 ) AARON ADAMS, ) Honorable ) Joe R. Vespa, Defendant-Appellant. ) Judge, Presiding. ________________________________________________________________ JUSTICE LYTTON delivered the opinion of the court:

Following a hearing determining that he was not indigent, defendant Aaron Adams proceeded to trial pro se and was convicted of unlawful possession with intent to deliver a controlled

substance and unlawful possession of a weapon by a felon (case No. 05-CF-1250) (720 ILCS 570/401(a)(2)(A), 720 ILCS 5/24-1.1(a) (West 2004)). He was sentenced to concurrent terms of eight and He appeals, alleging that (1) he was not

two and a half years.

proven guilty of either charge beyond a reasonable doubt, and (2) 1

his constitutional right to competent counsel was violated when the trial court found that he was not indigent. remand. STATEMENT OF FACTS Defendant was charged in case No. 05-CF-1250 with two counts of unlawful possession, two counts of unlawful possession with intent to deliver, and one count of unlawful possession of a weapon by a felon. In addition to case No. 05-CF-1250, defendant had been We reverse and

charged in two other unrelated cases, case No. 04-CF-220 and case No. 06-CF-934. Attorney William Loeffel represented defendant in Defendant was represented by attorney

the 2004 and 2006 cases.

Joel Brown in case No. 05-CF-1250 until September 20, 2006, when his motion to withdraw was granted. Defendant requested a

continuance to hire new counsel. the matter was postponed until

The continuance was granted and October 3. At that time, On

defendant was given until October 11 to find private counsel.

October 11, defendant stated that he had secured a meeting with an attorney for October 12. October 18 to allow for The matter was again continued to meeting. Defendant expressed

this

concern that any attorney he was able to retain would not have time to adequately defend him. At the October 18 hearing,

defendant requested a continuance because he was still unable to 2

find an attorney willing to take his case.

The motion was

denied, and defendant then understood that he was to proceed to trial without an attorney. The However, trial was scheduled Brown to begin to on October over 23, 2006.

Attorney

refused

turned

defendant's

records, stating that he was holding them until defendant paid him a certain amount of money. Defendant sought a continuance

until he could get the records but his request was denied. The trial was eventually delayed to December 11, 2006,

because there was no judge available.

Prior to the trial date,

defendant requested a public defender, and the court reconvened on November 29, 2006, for a hearing on the defendant's indigency. The record does not disclose a completed affidavit of indigency form. In questioning by the court, defendant stated that he had

been temporarily employed making $9 an hour but was currently unemployed, he had $300-400 saved, he did not have a house or an apartment, and he owned a 1975 Camaro. Defendant purchased the

Camaro for $1,700, restored it and believed it was now worth approximately $6,000. The judge found that since defendant could

use the equity in the car to hire private counsel, he did not qualify for the services of a public defender. He then

admonished defendant to find counsel to protect his rights and, over defendant's objection, set the matter for trial. 3

The

jury

trial

began

on

December

11,

2006.

Defendant

represented himself. November 2, 2005,

At the trial, the evidence showed that on several Peoria police officers executed a

search warrant at 2117 North Peoria Street.

Once inside the

house, the officer discovered defendant and two females in the kitchen. apprehended. Defendant Five attempted individually to flee the room of but was

wrapped

packets

powdered

cocaine, weighing more than 15 grams, and $2580 in cash were taken from his pants pocket. Officers found an off-white powder

containing cocaine on the kitchen counter, along with a scale cover. The police also discovered approximately 34 grams of In the drawer next to driver's license, a

cocaine in a bedroom nightstand drawer. the cocaine, officers found defendant's

utility bill in the name of Cheri Baricuatro, and a photograph of defendant with Baricuatro. On top of the nightstand, officers

recovered a scale, a video monitor and a loaded .32 caliber handgun. Cash totaling $800 was found in the top drawer of the Other items found nearby included plastic baggies, a

nightstand.

bottle of inositol powder, various court documents in defendant's name and approximately $274 in cash in a safe. Officer Jerry Bainter established a chain of custody for several exhibits. Bainter stated that the use of "tear off"

baggies was "the most common way cocaine was packaged in Peoria." 4

According to his testimony, the discovery of scales, a video system and inositol, a chemical commonly used to "cut" cocaine, were all indicative of a drug operation. Defendant called two witnesses. Both testified that

defendant did not live at 2117 Peoria Street. The jury found defendant guilty of unlawful possession with intent to deliver and unlawful possession of a weapon by a felon. Defendant was sentenced to concurrent terms of eight years and two and one half years. Defendant filed a posttrial motion for a

new trial claiming insufficiency of the evidence, denial of his sixth amendment right to confront witnesses against him, and denial of his right to assistance of counsel. Defendant also

claimed that the trial court abused its discretion in finding him not indigent. The trial court denied defendant's motion for a new trial. The court then determined that he was indigent for purposes of the appeal and an appellate defender was appointed. ANALYSIS I. Defendant first argues that the State has presented

insufficient evidence to prove him guilty beyond a reasonable doubt of either unlawful possession with intent to deliver or unlawful possession of a weapon by a felon. 5

The

standard

of

review

for

claims

challenging

the

sufficiency of the evidence is whether, after viewing all 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. People v. Collins, 106 Ill. A court of review may

2d 237, 261, 478 N.E.2d 267, 277 (1985).

not substitute its own judgment for that of the trier of fact on matters of credibility or weight of the evidence. People v.

Beasley, 384 Ill. App. 3d 1039, 1046, 893 N.E.2d 1032, 1038 (2008). To convict defendant of unlawful possession with intent to deliver, the State must establish (1) the defendant had knowledge of the presence of the controlled substance, (2) the controlled substance defendant, was and in the immediate the possession or control to of the the

(3)

defendant

intended

deliver

controlled substance.

720 ILCS 570/401 (West 2004); People v.

Ballard, 346 Ill. App. 3d 532, 541, 805 N.E.2d 656, 663 (2004). Constructive possession may exist even when the defendant no longer physically controls the drugs, so long as defendant once had physical control over them with intent to exercise control, and he has not abandoned them and no one else possession. (1994). 6 had obtained

People v. Adams, 161 Ill. 2d 333, 641 N.E.2d 514

Here, defendant was found in the kitchen.

Cocaine and items

used to prepare cocaine for consumption were discovered on the kitchen counter. Further, he had five small packets of cocaine More cocaine

in his pants pocket and a significant sum of cash.

was found near defendant's personal items such as his driver's license, court documents, and photos. defendant controlled the cocaine These facts indicate that and establish both his

possession and knowledge. In addition, the cocaine was packaged in five individual baggies, a manner common for resale in the area. A scale,

bottles of inositol powder, plastic baggies, and large amounts of cash were also found in the home near defendant's personal items. This evidence infers that the cocaine was for sale, not personal use, and shows an intent to deliver. sufficient evidence at trial for the Thus, the State produced jury to find beyond a

reasonable doubt that defendant possessed the cocaine with intent to deliver. Defendant was also found guilty of unlawful possession of a weapon by a felon pursuant to section 5/24-1.1(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.1(a) (West 2004)). To prove

this offense, the State must show that the defendant had a prior felony conviction and knowingly possessed a firearm. 720 ILCS

5/24-1.1(a) (West 2004); People v. Stack, 244 Ill. App. 3d 393, 7

398, 613 N.E.2d 366, 370 (1993). State must and show that it defendant was in

To establish possession, the knew his of the presence and of the

firearm

that

immediate

exclusive

possession. People v. Drake, 288 Ill. App. 3d 963, 964, 683 N.E.2d 1215, 1219 (1997). Possession may be actual or

constructive.

Constructive possession may be inferred from the People

facts; evidence establishing it is often circumstantial. v. Neylon, 327 Ill. App. 3d 300, 762 N.E.2d 1127 (2002).

Here, the parties stipulated to defendant's prior felony conviction. The State presented evidence that the loaded handgun

was located on top of the bedroom nightstand near the drugs. That same nightstand also contained defendant's driver's license, his court documents and personal photos. Based on these facts, a

trier of fact could reasonably infer that the gun belonged to defendant. We therefore conclude that the jury's finding of

guilt beyond a reasonable doubt of possession of a firearm by a felon was supported by the evidence. II. Defendant also argues that his constitutional right to

counsel was violated because the trial court wrongly found that he was not indigent and therefore did not qualify for the

services of a public defender.

8

Under the sixth amendment to the United States Constitution, as well as Illinois law, a defendant has the right to appointed counsel if he is indigent and charged with a crime that could result in imprisonment. (West 2004). U.S. Const., amend. VI; 725 ILCS 5/113-3

A finding of indigency is generally left to the People v. Kennedy, 204 Ill. Ap. 3d 681

trial court's discretion. (1990).

Such a determination should be based on as complete a People v. Ellis, 309 Ill. App. 3d

financial picture as possible. 443 (1999). People v.

A defendant need not be entirely without funds. Miller, 23 Ill. App. 3d 149 (1974). Rather, a

defendant may be indigent if he lacks financial resources on a "practical basis" to retain counsel. 446. Ellis, 309 Ill. App. 3d at

The method of arriving at a determination of a defendant's to pay must include a balancing of assets against

ability

liabilities and also the defendant's income. 108 Ill. App. 3d 73 (1982). Whether court-appointed counsel is

People v. Penermon,

appropriate

must

be

carefully considered.

In a close case, trial courts should favor

appointment of counsel to assure protection of the defendant claiming indigence. Ellis, 309 Ill. App. 3d at 446; see also

People v. Gustavson, 131 Ill. App. 2d 887 (1971) (noting that courts view failure to appoint counsel as a serious deprivation).

9

In this case, defendant was not employed, did not have any significant Camaro. savings and owned only one sizeable asset, his

The record does not indicate his monthly expenses for That defendant

groceries, utilities or other necessary expenses.

had in his possession a 1975 Camaro, which he estimated was worth $6,000, does not, ipso facto, render him ineligible for courtappointed counsel. (1976) (possession See People v. Wright, 41 Ill. App. 3d 364 of car worth $1,400 did not establish

defendant was not indigent). is generally left must to

While a determination of indigency trial a court's of discretion, assets income. a

the

determination liabilities

include

balancing of

against Here,

and

consideration

defendant's

defendant was not required to provide reliable information in the form of an affidavit of assets and liabilities. 5/113.3(b) (West 2006). Moreover, the trial See 725 ILCS court did not See

conduct a specific inquiry into defendant's ability to pay. Penermon, 108 Ill. App. 3d at 77.

Without an affidavit or the

consideration of other facts regarding defendant's liabilities, we cannot say there was a meaningful balancing of defendant's financial status. We therefore find the trial court abused its

discretion in determining defendant was not indigent. However, the State argues that even without an affidavit defendant's car alone was a sufficient 10 asset to preclude a

finding of indigency, citing People v. Marreti, 61 Ill. App. 3d 762 (1978). We disagree. In Maretti, the defendant owned two and a 1975 Plymouth. The trial

vehicles, a $2,200 motorcycle

court held that defendant was not indigent because he could sell or encumber the motorcycle to pay for an attorney and still have a vehicle to use for transportation and to support his family. The defendant refused to sell his motorcycle and chose instead to represent himself. On those facts, the appellate court declined

to find an abuse of discretion and summarily affirmed the trial court's ruling. Defendant in this case owned only one vehicle, The record does

not two, and he did not refuse to sell the car.

not show that he had any other vehicle to use for transportation or to actively seek employment opportunities. not apply. Moreover, if a proper balancing had occurred in this case and the trial court had determined that the car was a sufficient asset, we would still reverse. The defendant should have been Thus, Marreti does

given an adequate opportunity to liquidate that asset in order to procure counsel. We fully appreciate the trial court's desire to

bring this case to trial after numerous delays, but given the severity of the charges and ultimate sentencing, defendant needed access to an attorney's skill and knowledge to afford him the representation to which he is entitled. 11 See generally Strickland

v. Washington, 466 U.S. 668, 685 (defendants should be afforded "ample opportunity to meet the case of the prosecution"). To

obtain that access, defendant needed to sell or lien his Camaro and then use those funds to hire an attorney. When a defendant

owns a potentially valuable but illiquid asset, he should be given a reasonable time to turn the asset into cash with which to hire counsel. amount of time. We therefore remand this cause for a new indigency hearing to allow the court to enter proper findings consistent with this opinion. On remand, we note that our decision does not foreclose In this case, twelve days was not a reasonable

a hearing under section 113-3.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-3.1 (West 2006)) for payment of courtappointed counsel. See Ellis, 309 Ill. App. 3d at 447. CONCLUSION The judgment of the circuit court of Peoria County is

reversed and remanded for further proceedings. Reversed and remanded. McDADE and WRIGHT, JJ., concur.

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