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People v. Ash
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-0838 Rel
Case Date: 02/23/2004

NO. 4-02-0838
 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT
  

THE PEOPLE OF THE STATE OF ILLINOIS,
                       Plaintiff-Appellee,
                       v.
RUSSELL S. ASH,
                       Defendant-Appellant.
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Appeal from
Circuit Court of
Adams County
No. 02CF51

Honorable
Scott H. Walden,
Judge Presiding.


JUSTICE APPLETON delivered the opinion of the court:

A jury found defendant, Russell S. Ash, guilty ofpossession of a controlled substance (less than 15 grams) (720ILCS 570/402(c) (West 2002)). Ash appeals on four grounds: (1)the trial court violated Supreme Court Rule 608(a)(9) (177 Ill.2d R. 608(a)(9)) and his right to due process by allowing voirdire to proceed off the record; (2) defense counsel renderedineffective assistance by waiving the reporting of voir dire; (3)the trial court erroneously admitted evidence of an unchargedcrime, possession of drug paraphernalia (720 ILCS 600/3.5(a)(West 2002)); and (4) the evidence was too weak and improbable tosupport the conviction. We affirm.

I. BACKGROUND

The State charged that on February 4, 2002, Ashknowingly and unlawfully possessed methamphetamine.

A Quincy police officer, Shannon Pilkington, testifiedthat at 1:20 a.m. that day, he was patrolling the city in hissquad car when he noticed a state trooper had pulled someoneover. He stopped and got out to help. The trooper arrested thedriver for driving under the influence and asked the passenger, awoman in a miniskirt, to step outside so he could search thevehicle. It was icy out and close to zero, and Pilkington toldher she could wait in his squad car, if she liked, where it waswarm. She accepted. "I did a quick pat[-]down of her person,"Pilkington testified, "I didn't actually search her pockets." She climbed into the backseat. When the trooper said it was allright for the woman to leave, Pilkington let her out of the squadcar and "searched the [backseat] area *** and underneath both thedriver's and passenger seats," shining his flashlight, "to see ifthat female" (as he called her) had "left any contraband." Hesaw nothing.

A little over an hour later, Pilkington helped toarrest a man, wanted on a warrant, who was standing in the bay ofan automatic car wash, beside a Chevrolet Blazer. Ash, apassenger in the Blazer, got out and gave Pilkington permissionto search his person. (Because the search and seizure of Ash'sperson are not at issue in this appeal, we express no opinionthereupon.) He searched the front and back pockets of Ash'spants as well as his coat pockets. In the right jeans pocket, hefound "a nylon pouch that contained a glass vial and a glasstube. It also contained a *** small metal tin. *** It appearedthat the glass tube was a snort tube *** [f]or ingestingmethamphetamine or cocaine." Users of methamphetamine commonlyplaced the drug "on the foil" and "plac[ed] the lighterunderneath *** it[,] *** heating it up and then ingesting thefumes from the foil through a tube." Pilkington arrested Ash forpossession of drug paraphernalia, handcuffed his hands behind hisback--securely, so he could not get his hands loose--and put himin the backseat of the squad car, where he sat for 10 to 15minutes. No one else had been in the backseat since the woman inthe miniskirt left.

Pilkington testified he then drove Ash to policeheadquarters, three blocks away, for booking. After parking thesquad car in the police parking garage and walking around to thebackdoor of the squad car to get Ash out, Pilkington saw, throughthe window, a white object on the back passenger floorboard. Hepretended not to see it. "I did not know if he had anything elseon him[,] and I didn't want any problems at this time," hetestified. "I didn't want the evidence to be destroyed by [his]stepping on it or pushing it far underneath the seat." He tookAsh out of the squad car, locked the car, and escorted him to aninterview room.

In the well-lit police headquarters, Pilkingtonrealized, for the first time, that Ash was wearing not one buttwo jackets, one on top of the other. He had searched the outerjacket but not the inner one. He then searched the inner jacketand in the right front pocket found a stack of coffee filters. "Coffee filters," he testified, "are commonly used in themanufacture of methamphetamine. The product is poured throughthe filters to filter out the ingredients that you don't want." He then returned to the squad car and picked up the white objectfrom the floorboard. "It was *** a small plastic bag thatcontained another plastic bag that had a white powdery substance[resembling] methamphetamine. The outer [B]agg[ie] looked [asif] it had been ripped open."

The powder in the plastic bags field-tested positivefor methamphetamine, and the crime laboratory confirmed, by morethorough testing, that it was indeed methamphetamine, 2.5 gramsof it. The laboratory saw no residue, however, on any of theitems that Pilkington had found in Ash's pants pocket andtherefore did not test those items. Testing of the coffeefilters proved inconclusive. On the plastic bags, the laboratoryfound no fingerprints "suitable for comparison."

The jury found Ash guilty of possessingmethamphetamine, a Class 4 felony, for which the trial courtsentenced him to three years' imprisonment. This appealfollowed.

II. ANALYSIS

A. Waiving the Reporting of Voir Dire

Before trial, the trial court asked both the prosecutorand defense counsel if they wanted voir dire to be reported. Both declined. Ash argues that by allowing voir dire to proceedwithout a court reporter, the trial court violated Rule 608(a)(9)and his right to the due process of law. He also argues hisdefense counsel rendered ineffective assistance by waiving thereporting of voir dire. He cites Entsminger v. Iowa, 386 U.S.748, 18 L. Ed. 2d 501, 87 S. Ct. 1402 (1967), among otherauthorities.

Unlike the Iowa statute in Entsminger, 386 U.S. at 749-50, 18 L. Ed. 2d at 503, 87 S. Ct. at 1402-03, Illinois SupremeCourt Rule 608(a) requires that the record on appeal beexhaustively inclusive. See 177 Ill. 2d R. 608(a) (listing thenumerous items that "[t]he record on appeal must contain"). Iowalaw required the compilation of merely a skeletal record onappeal, unless the defense counsel affirmatively requested afuller record. Entsminger, 386 U.S. at 749-50, 18 L. Ed. 2d at503, 87 S. Ct. at 1402-03. Not so with Illinois law. See 177Ill. 2d R. 608(a). For that reason alone, Entsminger isdistinguishable.

Rule 608(a) requires, among other things, that "thecourt reporter *** take full stenographic notes of theproceedings regarding the selection of the jury." 177 Ill. 2d R.608(a)(9). To our knowledge, no court has ever interpreted Rule608(a) to require trial courts to second-guess defense counselwhen they expressly waive any of the requirements of that rule. It was the responsibility of Ash, not the trial court, topreserve an adequate record for this appeal. See People v.Leonard, 171 Ill. App. 3d 380, 389, 526 N.E.2d 397, 403 (1988);People v. Smith, 106 Ill. 2d 327, 334-35, 478 N.E.2d 357, 361(1985). The trial court asked defense counsel if he wanted voirdire reported, and he said no. Ash spoke and acted through hisattorney, and the trial court could rely on that answer. SeePeople v. Tucker, 183 Ill. App. 3d 333, 335, 539 N.E.2d 243, 244(1989).

If defense counsel made objectively demonstrable errorsthat were sufficiently prejudicial to the defense, Ash has aconstitutional right to a new trial. See Strickland v.Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698,104 S. Ct. 2052, 2064, 2068 (1984). Ash must show, however,"that counsel's errors were so serious as to deprive [him] of afair trial, a trial whose result is reliable." See Strickland,466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Failing to memorialize voir dire does not deprive adefendant of "'all hope of any [adequate and effective] appeal atall.'" (Emphases added.) Entsminger, 386 U.S. at 752, 18 L. Ed.2d at 504, 87 S. Ct. at 1404, quoting Lane v. Brown, 372 U.S.477, 485, 9 L. Ed. 2d 892, 898, 83 S. Ct. 768, 773 (1963). Therecord in this appeal is hardly comparable to the bare-bones"'clerk's transcript'" in Entsminger, which lacked even atranscript of the trial or the attorneys' briefs and arguments(Entsminger, 386 U.S. at 749, 18 L. Ed. 2d at 503, 87 S. Ct. at1402-03). Excusing the court reporter from taking notes of voirdire is not, in and of itself, ineffective assistance (People v.Thompkins, 121 Ill. 2d 401, 448, 521 N.E.2d 38, 59 (1988)) or aviolation of due process (People v. McClurg, 195 Ill. App. 3d381, 388, 552 N.E.2d 290, 294 (1990); People v. Culbreath, 343Ill. App. 3d 998, 1005, 798 N.E.2d 1268, 1273 (2003)).

B. Evidence of Another Crime, Possession of Drug Paraphernalia

The State charged Ash with possessing a controlledsubstance (720 ILCS 570/402(c) (West 2002)), not with possessingdrug paraphernalia (720 ILCS 600/3.5(a) (West 2002)). Nevertheless, over defense counsel's objection, the trial courtallowed Pilkington to testify that he found drug paraphernalia inAsh's pockets. Ash argues the court thereby violated the ruleagainst evidence of other crimes. See People v. Heard, 187 Ill.2d 36, 58, 718 N.E.2d 58, 71 (1999).

Ash had to do more than object to Pilkington'stestimony; he had to renew the objection in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130(1988). Having failed to do that, he invokes the doctrine ofplain error. See 134 Ill. 2d R. 615(a); People v. Vargas, 174Ill. 2d 355, 363, 673 N.E.2d 1037, 1041 (1996). We find no errorat all in the trial court's ruling, let alone plain error.

Evidence of other crimes is admissible for any relevantpurpose other than proving the defendant had a propensity tocommit crime. Heard, 187 Ill. 2d at 58, 718 N.E.2d at 71. Toillustrate: if the State charged a defendant with theft,evidence that the defendant possessed drug paraphernalia wouldserve no apparent purpose other than proving the defendant was abad person and, therefore, just the type of person who wouldsteal. The evidence would be inadmissible. Cf. People v.Barnes, 182 Ill. App. 3d 75, 83-84, 537 N.E.2d 949, 954 (1989)(lack of relationship between the charged offense of unlawful useof a weapon and the possession of a large amount of cash).

Obviously, in the present case, proving that Ash was abad person was not the State's purpose in presenting evidencethat he possessed drug paraphernalia. The paraphernalia had agreater significance. Because it was precisely the type ofparaphernalia one would use to smoke methamphetamine, theparaphernalia was arguably related to the packet ofmethamphetamine Ash was charged with possessing.

"Relevant" evidence is evidence having any tendency tomake the existence of a fact that is important to the verdictmore or less probable than it would otherwise be. People v.Capporelli, 148 Ill. App. 3d 1048, 1056, 502 N.E.2d 11, 16(1986). The State had to prove that Ash "knowingly possessed"the packet of methamphetamine that Pilkington found on thefloorboard of his squad car. See 720 ILCS 570/402 (West 2002). If Pilkington found, in Ash's jeans pocket, the equipment forsmoking methamphetamine and, in his jacket pocket, a stack ofcoffee filters, would those facts have any tendency to make itmore probable, in the mind of a reasonable person, that Ashknowingly possessed the methamphetamine that Pilkington found athis feet? Of course it would. One would naturally be moreinclined to believe the methamphetamine belonged to Ash if hehad, in his pockets, the equipment for using it as well as coffeefilters for making it--not because Ash is a "bad egg" butbecause, in common experience, people do not normally carryaround this peculiar assortment of items unless they handlemethamphetamine. See Norville v. State, 83 S.W.3d 112, 115 (Mo.Ct. App. 2002) (evidence of contemporary possession of drugparaphernalia relevant to show the defendant knowingly possessedcontrolled substance).

Relevance does not end the inquiry. Even if theevidence of another crime is relevant to some purpose other thanproving a propensity to commit crime, the trial court still mustdecide whether the prejudicial effect of the evidencesubstantially outweighs its probative value. People v. Placek,184 Ill. 2d 370, 385, 704 N.E.2d 393, 400 (1998). We will deferto the trial court on that question unless the trial courtclearly abused its discretion (Placek, 184 Ill. 2d at 385, 704N.E.2d at 400), i.e., unless it is clear that no reasonableperson could agree with the trial court (People v. Harper, 251Ill. App. 3d 801, 804, 623 N.E.2d 775, 777 (1993)).

Ash argues that for the following reasons, theparaphernalia was "far more prejudicial than probative": (1) thepolice found no residue of methamphetamine on the paraphernalia,(2) the State never charged him with possession of drugparaphernalia, (3) possession of drug paraphernalia andpossession of methamphetamine were "so similar," and (4) theevidence that he possessed the methamphetamine was "scant." Theconclusion does not logically follow from those premises.

A court should not exclude evidence of other crimesmerely because the evidence is prejudicial; one may expect theState to introduce evidence prejudicial to the defendant. Rather, the prejudicial effect of the evidence must beconsiderably greater than the ability of the evidence to shedlight on any issue in the case. See Placek, 184 Ill. 2d at 385,704 N.E.2d at 400. We do not see how the absence of drug residuedetracted significantly from the probative value of theparaphernalia. Residue or no residue, the items were plainlydrug paraphernalia and could not have been anything else. Equally plainly, they were paraphernalia suitable for the use andmanufacture of methamphetamine, the type of illegal drug theState had charged Ash with possessing.

As for the second premise--that the State never chargedAsh with possession of drug paraphernalia--that is, of course,always true of evidence of other crimes: "other" crimes are, bydefinition, crimes other than those charged in the present case.See People v. Houston, 288 Ill. App. 3d 90, 97, 679 N.E.2d 1244,1248 (1997). To hold that evidence of other crimes is moreprejudicial than probative simply because the crimes areuncharged would be tantamount to barring all evidence of othercrimes. The two-part analysis in Placek (relevance and then theweighing of probative value against prejudicial effect) would bean exercise in futility because "the snake would always eat itstail" in the second part of the analysis.

We agree that possessing methamphetamine and possessingthe paraphernalia for smoking it are logically related (or, touse Ash's word, "similar"). That "similarity" increases ratherthan decreases the probative value of the paraphernalia. Infact, "to be admissible" at all, "other-crimes evidence must have'some threshold similarity to the crime charged.'" (Emphasisadded.) People v. Donoho, 204 Ill. 2d 159, 184, 788 N.E.2d 707,722 (2003), quoting People v. Bartall, 98 Ill. 2d 294, 310, 456N.E.2d 59, 67 (1983).

If, as Ash argues, the evidence of his possession ofmethamphetamine was "scant," that could not have been a reason toexclude the evidence of his possession of the drug paraphernalia. The State has a right to present evidence that, in the view ofcommon sense, tends to bolster its case. Constructive possessionof a controlled substance often rests upon circumstantialevidence, and possession of drug paraphernalia tends tocorroborate the knowing possession of the drug itself lyingnearby. See People v. Harris, 52 Ill. 2d 558, 561, 288 N.E.2d385, 387 (1972) (possession of needle, tie rag, and eyedropperwere relevant to the question of knowing possession of heroin);People v. Whalen, 145 Ill. App. 3d 125, 129, 132, 495 N.E.2d 122,125, 127 (1986); People v. Walton, 221 Ill. App. 3d 782, 786-87,583 N.E.2d 28, 32 (1991).

We find no clear abuse of discretion in the trialcourt's decision to admit the evidence that Ash possessed drugparaphernalia.

C. Sufficiency of the Evidence

Ash argues that Pilkington's "dropsy testimony" isinherently incredible. A "dropsy case" is one in which a policeofficer, to avoid the exclusion of evidence on fourth-amendmentgrounds, falsely testifies that the defendant dropped thenarcotics in plain view (as opposed to the officer's discoveringthe narcotics in an illegal search). G. Chin & S. Wells, The"Blue Wall of Silence" as Evidence of Bias and Motive to Lie: ANew Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 248-49(1998). This is not a "dropsy case." Because Ash had consentedto a search of his person, Pilkington had no reason to lie tocover up an illegal search. Ash appears to be arguing, however,that if, as some commentators suggest, police routinely lie in"dropsy cases" (A. McClurg, Good Cop, Bad Cop: Using CognitiveDissonance Theory to Reduce Police Lying, 32 U.C. Davis L. Rev.389, 400 (1999); People v. McMurty, 64 Misc. 2d 63, 65-66, 314N.Y.S.2d 194, 196 (N.Y. Crim. Ct. 1970)), they are not abovelying in other cases as well, including this one.

When Pilkington searched Ash at the car wash, thesearch was, Ash says, "so thorough that he found a small piece offolded-up aluminum foil in [his] pocket." Ash argues: "It ishighly unlikely that such a thorough search of Ash's person wouldhave failed to turn up a packet of drugs." We disagree. If thisso-called "thorough search" failed to turn up a thick stack ofcoffee filters in his coat pocket, one could readily conceive howit failed to turn up a Baggie of 2.5 grams of methamphetamine.

According to Ash, a reasonable jury would have had todisbelieve Pilkington when he testified that Ash, "with his handssecurely handcuffed behind his back, while seated in a policecar, and while wearing layers of thick winter clothes," could"contort himself," with "Houdinian flexibility and dexterity," soas to "reach some inner part of his clothing[,] where the[B]aggie was located, and *** remove those drugs from theclothing," only to "drop[] the drugs onto the floor of the policecruiser." Actually, Pilkington never stated the methamphetaminenecessarily came from Ash's inner jacket. He merely expressedhis opinion, on cross-examination, that if Ash were "limber"enough, he could have reached a pocket of his inner jacket whilesitting in the squad car with his hands cuffed behind him. Evenif one disagreed with that opinion, we do not see how it can befairly characterized as a lie.

Moreover, Pilkington's opinion does not strike us as soimplausible that one would have to reject it. Depending on howloose the clothing is, one can visualize someone, seated, handscuffed behind the back, reaching under the outer jacket, graspingthe back of the inner jacket, and pulling the side pocket aroundto the back. Perhaps the Baggie was ripped open because of thedifficulty of pulling it out of a pocket of the twisted innerjacket. Alternatively, Ash could have slipped off his shoe anddumped out the Baggie or pulled it out of the seat of his pants,without being a contortion artist. He had 10 to 15 minutes to doso.

Pilkington testified he thoroughly inspected the backof the squad car after letting the woman out. One might at firstfeel inclined to remark, "How convenient," but, on furtherreflection, one could understand why a police officer would, evenshould, make a point of inspecting the back of the squad carimmediately after letting passengers out. A passenger couldleave something of value and accuse the officer of theft orextortion. Often, passengers are associated with illegal drugsor other unsavory activities and, as the present casedemonstrates, pat-down searches are not foolproof.

In short, we will not retry Ash. Instead of askingourselves whether we ourselves would have returned the sameverdict, we will view the evidence in a light most favorable tothe prosecution and ask whether any rational jury could havefound Ash guilty, beyond a reasonable doubt, of possession of acontrolled substance. See People v. Hagberg, 192 Ill. 2d 29, 33-34, 733 N.E.2d 1271, 1273 (2000). To quote a case on which Ashrelies, we do not find the evidence to be "contrary to humanexperience and unworthy of belief." People v. Cunningham, 333Ill. App. 3d 1045, 1050, 777 N.E.2d 478, 483 (2002), appealgranted, 202 Ill. 2d 679, 787 N.E.2d 176 (2003) (No. 94971). Just because of the plenitude of "dropsy cases," we will notrequire, as a matter of law, the corroboration of a policeofficer's testimony.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.

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