Docket No. 88833-Agenda 13-September 2000.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWIN ORTIZ, Appellant.
Opinion filed May 24, 2001.
JUSTICE FREEMAN delivered the opinion of the court:
Following a bench trial in the circuit court of Bureau County,defendant Edwin Ortiz was convicted of drug trafficking (720ILCS 570/401.1 (West 1994)) and sentenced to 35 years'imprisonment. Defendant appealed, and in December 1995 theappellate court filed with its court clerk a document whichpurported to reverse defendant's conviction on the grounds ofinsufficiency of the evidence. The State's petition for rehearingwas denied, and we denied leave to appeal in June 1996.Subsequently, in August 1997, the State moved for a writ ofmandamus or a supervisory order, directing the appellate court tovacate its December 1995 order and issue a "valid opinion." Weissued a supervisory order to that effect, and denied defendant'smotion for reconsideration. Defendant's subsequent petition for awrit of certiorari in the United States Supreme Court was alsodenied. In January 1999, the appellate court issued a document inthe form of an opinion to be published, which denied defendant'smotion to have that court declare its December 1995 filing a finalorder. In December 1999, the appellate court affirmed defendant'sconviction. No. 3-95-0261 (unpublished order under SupremeCourt Rule 23).
We thereafter granted defendant's petition for leave to appeal(155 Ill. 2d R. 315) from the appellate court's December 1999order affirming his conviction. For the reasons that follow, wereverse.
BACKGROUND
Defendant's conviction arose out of the events of December9, 1994. On that date, pursuant to a consensual search after atraffic stop, police discovered 100 kilograms of cocaine inside asecret compartment in the truck tractor semi-trailer whichdefendant was driving.
At defendant's trial, the following evidence was adducedduring the State's case in chief. The State's first witness wasIllinois State Trooper John Balma, who testified as follows. OnDecember 9, 1994, Balma observed a blue tractor trailer travelingeastbound on Illinois Route 80. The vehicle was moving at a speedof 63 miles per hour, which was 8 miles per hour in excess of theposted speed limit. Balma stopped the truck to issue a trafficcitation.
Defendant was driving the truck, and there was a femalepassenger in the cab with him. Upon Balma's request, defendantproduced his license and registrations. Balma testified thatdefendant produced his driver's license from his pocket; he did notremember where the registrations had been kept. Defendant's NewJersey driver's license was valid and the registrations for thetractor and the trailer matched the VIN numbers for the vehicles.The vehicles were registered to a Danny Estrella, which Balmaconfirmed by radio. Balma testified that even though thispaperwork was in order, defendant seemed "extremely nervous,"more so than was in his experience ordinary for a traffic stop.
Defendant told Balma that he was hauling oranges fromFillmore, California, to New Jersey, and produced a bill of lading.The bill of lading indicated that the truck contained 630 cases oforanges, which were owned by Star Produce. "Star Produce" waswritten on the side of the truck, as well.
Balma requested defendant's log books, in which were keptthe records of every stop made by the truck. The books indicatedthat defendant's trip had actually begun in Tennessee, notCalifornia. When Balma asked defendant why he had begundriving in Tennessee, defendant told him that he and a codriver,Juan Colon, had driven together from New Jersey to California;Colon had driven from New Jersey to Tennessee and defendantbegan driving in Tennessee. Balma also determined from the logbooks that this was the second cross-country trip defendant hadmade in the recent past, and on the other trip Colon was with himthe entire way as a codriver. Defendant told Balma he was paid$900 to $1,000 for each trip, even though he had a codriver on theprevious trip.
Balma testified that this was an abnormal pay arrangement.Balma had been a truck driver for approximately 15 years beforebecoming a law enforcement officer. Based on his priorexperience, he believed driving pay was based either on mileageor an hourly rate, but in either event the total amount of moneywas split between the drivers if there was more than one. For adriver to receive the same pay regardless of whether he had acodriver was "very unusual." However, Balma admitted that timewas sometimes of the essence in delivery and that a truck wouldbe able to make better time more safely with two drivers sleepingin shifts than with a single driver.
Balma further noted from his review of the log books thatafter defendant and Colon had driven to California they had stayedthere approximately a week before beginning the return trip toNew Jersey. When he asked defendant why he had been there solong, defendant stated that he was "waiting for them to pick theiroranges." When Balma asked if his trailer was full, defendantstated that it was only half-full, which Balma also found veryunusual, because it was not cost-effective to transport half-loadsof products across the country. Balma stated that defendant saidthat Colon had loaded first and filled his trailer, and defendant justtook what was left of the load. Balma admitted that during hisyears in the industry he had sometimes thought that an employerwas not making the best use of his truck or his time, but he stilldid what his employer asked because that was what he was beingpaid for.
When Balma asked about the female passenger in the vehicledefendant said that she was his wife. He said that she had notdriven out with him to California from New Jersey. Balmatestified that defendant told him that the truck owner, Estrella, hadflown her out from New Jersey to California to be with him. Atthis point Balma observed that defendant "was becomingextremely nervous." Defendant was "constantly rubbing his hair,"tapping his foot, and "wiggling" his leg. Balma admitted that hedid not know defendant and had no idea of his general demeanor.
Balma inspected the truck and issued defendant a writtenwarning. Shortly before Balma gave defendant the warning,defendant volunteered that it had been "a bad trip, he got stuck inCalifornia. He was searched three times in Utah. And now this."After giving defendant the warning and returning his documents,Balma advised him that he was free to go. However, Balma thenasked defendant if he had anything illegal in his vehicle. Balmatestified that defendant turned his head away and replied, "No, doyou want to look?" Balma told defendant that he would like to,and produced a voluntary consent form, which defendant signed.
Balma called for backup and Troopers Kathy Miroux andMichael Ketter responded. Defendant retrieved a key for a padlockon the trailer portion of the truck and opened it. Balma proceededto search the truck while defendant sat in Balma's patrol car in thecustody of the other troopers.
The truck was approximately half-full of boxes, which werelabeled as containing oranges. The entire load was towards thefront half of the trailer. Balma climbed on top of the boxes andcrawled approximately 20 to 25 feet over the top of them to thefront of the trailer. When he shone his flashlight down he saw asheet of aluminum "diamond plate" affixed to the front wall of thetrailer which appeared to be fairly new. He testified that it wasobvious as soon as he saw it that the plate was not part of theoriginal makeup of the trailer, but admitted that the plate was notvisible from the rear of the truck.
When Balma shone his flashlight between the plate and thefront wall of the trailer he saw a yellow wrapped package. Furtherobservation revealed that there was more than one package. Hepunctured one of the packages and the material inside appeared tobe cocaine. Balma exited the vehicle and placed defendant underarrest, telling him that there was cocaine in the vehicle. Accordingto Balma, defendant "just basically submitted to the arrest. Hedidn't ask why or where or who or anything. He just showed verylittle emotion."
Balma testified that after arresting defendant he seized $561from defendant's person. Balma also identified two pagers whichwere found on the visor above the driver's seat in the cab of thetruck. He stayed with the truck while it was towed to a locationwhere the oranges could be unloaded and then watched as the plateat the front of the truck was removed. Behind the plate were 61packages of cocaine, containing what was stipulated to be 100kilograms of 76.9% pure cocaine, with an estimated street valueof $30,760,000.
Trooper Balma also testified over objection that on September28, 1994, he had arrested two men, Pedro Then and OrlandoFernandez, when he found 67 kilograms of 88.1% pure cocaine ina Ryder truck in which they were traveling eastbound on I-80.
Balma admitted on cross-examination that when he was adriver he had hooked his tractor to preloaded trailers withoutobserving the loading process. He stated that although he wouldlook inside the trailer before leaving, the inspection was limited tomaking sure that the load was secure. If things appeared to beloaded correctly he did nothing further. He also testified that atsome point during the stop, defendant had told him that Colon wasin another truck and was also hauling oranges and was somewherebehind him.
Illinois State Trooper Kathy Miroux verified Balma'stestimony that after she and Trooper Ketter arrived on the scenethey took custody of defendant while Balma entered the trailer andconducted the search. She testified that defendant looked verynervous while Balma was in the truck and that he mostly watchedthe rear of the truck during the six- or seven-minute search.
The State next called Ottawa Police Officer John Malone,who was assigned to the District 17 State Police Drug Task Forceat the time of defendant's arrest. He interviewed defendant afterhis arrest. Defendant was advised of his constitutional rights andwaived them. Malone testified that defendant was very calmduring the interview. He told Malone that all he knew was that hewas hauling oranges from the west coast. He stated that when hepicked up his load at the Sunkist Corporation in Fillmore,California, the trailer was already loaded. He merely hooked upthe tractor and headed out.
Defendant told Malone that Danny Estrella owned the tractortrailer he was driving. He had met Estrella only once, at arestaurant in New York. Juan Colon, a codriver and a friend of his,had introduced them, and defendant had agreed to drive forEstrella. Defendant told Malone that Colon was also driving atractor-trailer containing oranges to New Jersey, but the last timedefendant had seen him was near the Iowa border, becauseColon's truck had broken down.
Malone testified that he found a photograph in the cab ofdefendant's truck. The photograph showed defendant and Colonstanding in front of two trucks. Colon had what appeared to be alarge gun tucked into the waistband of his pants. Malone alsofound several truck parking receipts from Ship-side Service, Inc.,in Elizabeth, New Jersey. Each one listed the name of the driverwho had picked up a truck on a particular date. The most recentreceipt, dated November 24, 1994, listed defendant as the driver.An earlier receipt listed Colon, while two others listed the driversimply as "Pedro" and another receipt was issued to "Danny."Malone testified that the receipts had been found in the cab of thetruck defendant was driving, but he did not know wherespecifically, whether on the floor of the cab or among defendant'sbelongings. He admitted that it would make sense that whoeverhad picked up the truck would simply drop the receipt in the cab.
Additionally, Malone found a bill from a New Jersey truckstop in the name of Orlando Fernandez in a blue binder or folderholding the registrations for the tractor and trailer in the cab of thetruck defendant was driving. Malone admitted that it would makesense that the folder belonged with the truck, rather thandefendant, since the registration had to be kept with the vehicle.
Malone was also permitted to testify that he had found areceipt for a repair bill signed by Pedro Then among Colon'sbelongings in the truck Colon was driving when he was arrestedlater that day.
Malone admitted that defendant answered all of the questionswhich were posed to him. However, when Malone askeddefendant to "cooperate with [the police] in terms of bringing thetruck to New Jersey and following through," defendant refused,telling Malone that Colon got the job for him. Malone understooddefendant to be saying that Colon knew Estrella better thandefendant did.
Illinois State Trooper Larry Thomas made a traffic stop ofColon later that day. After a consensual search of his truck, policediscovered 285 kilograms of 88.4% pure cocaine, a shipment witha street value of over $100 million. Thomas testified that he hadbeen specifically advised to look for the trailer Colon was drivingas a result of Malone's interrogation of defendant.
At the conclusion of the State's case in chief, the defensemoved for a directed verdict, which the circuit court denied. Thejudge stated that
"[t]he main thing is the inference that arises fromnarcotics being found in the premises or in this case atruck within the control of the defendant. Gives rise to apresumption of knowledge that's not overcome unlessthere are other facts and circumstances which might leadto reasonable doubt as to the guilt in the minds of the jury.And I'm citing People v. Bell, 53 Ill. 2d 122."
Defendant testified on his own behalf. Defendant was aresident of New Jersey. Of all the names the State had mentionedduring its case in chief, the only person he knew was Colon, withwhom he had been good friends for about 20 years. Before hisarrest he had never heard of Pedro Then or Orlando Fernandez,and the only time he had met Estrella was in early November1994. Defendant was having engine trouble with his own truck,and Colon introduced him to Estrella at a restaurant. On cross-examination defendant maintained that he did not know Colon'saddress, beyond the town in which he lived. Until two or threemonths before his arrest, he had never visited Colon's homeduring the 20 years that they had been friends.
Defendant only made two trips for Estrella. The first time heflew out to California with Colon in early November and theydrove a single truck back together. The second time was the trip onwhich he was stopped.
On this later trip, defendant and Colon had driven a truckfrom New Jersey to California together. When they arrived inCalifornia, they had to wait four or five days before starting backbecause they had to wait for the oranges to be picked. While there,defendant called Estrella to ask if his girlfriend could fly out tojoin him. She flew out and stayed with him for the last two days hewas there, in a different hotel, for which defendant paid.
Defendant and Colon drove back to New Jersey in separatetrucks. Colon's truck was loaded before his, and defendant was noteven present when Colon's truck was loaded. Nor did defendantparticipate in or observe the subsequent loading of his truck. Hemerely looked in the truck after it had been loaded to determinewhether the oranges were stable and he saw that they were.
When Colon's truck broke down in Iowa, Colon gavedefendant his beeper so that defendant could continue on to NewJersey. Defendant explained that the other beeper found in thetruck was his own, but it was "strictly local" to New Jersey.Defendant took Colon's beeper because Estrella might want tocontact him during the trip outside of the area in which his beeperwould function. Also, his instructions were that upon arrival inNew Jersey he was supposed to bring the truck to Port Security, aparking lot with 24-hour security. He was then to contact Estrella.The beeper Colon gave him had the contact telephone numberwritten on it. Defendant had his own beeper because he was afreelance trucker and he needed employers to be able to contacthim with work.
When first asked, defendant testified that he did not tellTrooper Balma that Estrella had paid for his girlfriend to come toCalifornia. He believed that he told Balma that his girlfriend'smother had paid for the airfare and that he, defendant, was goingto reimburse her mother. Later, he said that he might have toldBalma that he had to call Estrella for permission, and finallydefendant admitted that he did not remember what he told Balma,and he may have told him that Estrella paid for the flight. Hestated that he was nervous when talking to Balma, because no onewas supposed to be in the truck with him and he was worriedabout getting fined. He also admitted that he had referred to hispassenger as his wife because they had been living together fornine years, but they were not actually married.
Defendant testified that the gun tucked into Colon'swaistband in the picture found in the cab of defendant's truck wasa bb gun. He stated that the blue folder in which the registrationswere found was kept in the truck, and it was not his folder. Duringthe trip he used the folder as a place to keep his receipts, becausein addition to his pay of $800 or $900 he would also bereimbursed for his personal expenses related to the trip. He did notpay any attention to any papers in the folder other than his receiptsand the registrations.
Regarding the log books, defendant stated that he wasunfamiliar with their format, despite his experience in the industry.He explained that he was almost exclusively a local trucker; otherthan his two deliveries for Estrella, the furthest he had ever drivenwas Pennsylvania. He did not use the long-distance driving typeof log books for local deliveries.
Defendant testified that he did not know about the secretcompartment in the truck and that he did not know that he washauling anything other than oranges.
The State called Trooper Balma as a rebuttal witness. Balmareaffirmed that in his conversation with defendant, defendant hadtold him that Estrella had flown defendant's girlfriend out toCalifornia to be with him. Defendant specifically named Estrellaas the vehicle owner. Balma denied having testified that defendantexplicitly stated that Estrella had paid her way out to California;he said that defendant simply "stated that she was flown out thereby Mr. Estrella." Upon inquiry by the court, Balma testified thatwhen he stopped defendant, defendant produced his driver'slicense from his person, but the registrations for the truck were inthe folder.
The court acknowledged that the case was "very close" andthat the evidence was wholly circumstantial, but convicteddefendant. The court stated that "possibly no one item *** orpossibly no two or three of them put together could convince mebeyond a reasonable doubt that the defendant is guilty. But all ofthem taken together, the totality of the circumstances in this caselead to that finding." The court stated with respect to People v.Bell,
"Naturally I would give less weight or it would be less ofan inference where the defendant is driving a tractortrailer and may pick it up without checking anything otherthan the stability. There's less of an inference there, atleast, in my mind than there is in deciding this case than[sic] if the drugs are found in his suitcase or glovecompartment or trunk or car. That would create a strongerinference. But, that inference stands under the law unlessas stated in People v. Bell[,] 53 Ill. 2d 122[, o]ther factsand circumstances might leave a reasonable doubt as tothe guilt in the minds of the jury."
The court stated that the light loads in the trucks driven by bothdefendant and Colon were
"one of the strongest things that's, that's [sic] of suspicionand imputed to the knowledge of the defendant is the factthat all of these oranges from looking at the pictures couldhave been put in one truck and there'd still be room foranother big load of oranges. Unless it somehow exceededthe weight. Which may, it, to drive an empty truck fromthe east coast to the west coast and then bring two trucksback with so few oranges in each one again is certainly asuspicious situation that the defendant knew what wasgoing on [sic]."
In convicting defendant, the court also focused on the fact thatdefendant was to deliver the truck to Port Security, a parking lot.The court stated that it found this unusual, and that althoughdefendant did not have to explain anything, he chose to explainthis and the explanation was unsatisfactory.
On defendant's motion for a new trial, the court allowed thedefense to introduce testimony and documents demonstrating thatPort Security was a storage facility where people could parktrailers or containers taken from ships. There was 24-hour securityin the lot and there were "plug-ins" which could run refrigeratedunits. The court acknowledged that any confusion regarding PortSecurity had "certainly been cleared up," but denied the motion fora new trial, stating that even disregarding everything with respectto the parking arrangement at Port Security, the evidence wouldstill support the conviction. The court reiterated that defendant'ssuspicions should have been aroused by being flown to Californiaon the first trip, his girlfriend coming out on the second trip, andthe light loads in both of the trucks.
Defendant appealed his conviction to the Third District of theappellate court. Justices Holdridge, Stouder, and Lytton comprisedthe three-judge panel assigned to the case. On December 12, 1995,a document was filed with the clerk of the appellate court for theThird District. This document was in the form of an order issuedby the appellate court, and purported to reverse defendant'sconviction on the basis of insufficiency of the evidence. It wasauthored by Justice Holdridge, and stated that it had theconcurrence of Justice Stouder. However, Justice Stouder had diedon December 7, 1995, before the document was filed. Thedocument also contained a writing in the form of a dissent,authored by the third member of the panel, Justice Lytton.
The State petitioned this court for leave to appeal pursuant toour Rule 315 (177 Ill. 2d R. 315(a)). The State argued that thedocument was not a valid order because Justice Stouder had diedbefore it was filed, and also contended that if it was a valid order,it erred in its resolution of the merits of the case. We denied leaveto appeal in June 1996. The appellate court's mandate was thenspread of record, and the defendant was released from custody.
In August 1997 the State filed with this court a motion forleave to seek a writ of mandamus or, in the alternative, for asupervisory order directing the appellate court to vacate thedocument filed in December 1995 and issue a "valid opinion."Defendant responded that the December 1995 "order" becamefinal when this court denied leave to appeal, and thus any orderdirecting the appellate court to reconsider his case would violatehis guarantees against double jeopardy. This court issued asupervisory order in which we directed the appellate court to"vacate its decision and order of December 12, 1995 ***, and allsubsequent orders in that appeal," and instructed the court to"proceed with the appeal in a manner not inconsistent with thiscourt's opinion in Proctor v. Upjohn, 175 Ill. 2d 396 (1997)." Wedenied defendant's motion for reconsideration. Defendant'ssubsequent petition for a writ of certiorari in the United StatesSupreme Court was denied. Ortiz v. Illinois, 522 U.S. 982, 139 L.Ed. 2d 380, 118 S. Ct. 444 (1997).
In the appellate court, defendant filed a motion for an order tothe effect that the December 1995 filing was a final order notsubject to review. In January 1999 the court filed with its clerk adocument in the form of an appellate court opinion designated forpublication. The filing solely addressed defendant's motion.Therein, the court stated that by denying the State's petition forleave to appeal from the December 1995 filing, this court "ineffect ruled on, and rejected," the arguments raised in the petition,specifically the arguments that the December 1995 filing was nota valid order and that if it was a valid order, it reached the wrongconclusion on the merits. Thus, the court reasoned, res judicatashould have prohibited the State from raising either of those issuesin its motion for a supervisory order. Accordingly, the courtconcluded, to vacate the December 1995 filing, as directed by thiscourt's August 1997 supervisory order, "clearly subjected thedefendant to double jeopardy." However, the court stated that itwas "powerless to act upon [its] conclusion" because it was boundto follow this court's supervisory order and consider the merits ofthe case "even though by doing so we are clearly violating thedefendant's constitutional rights by subjecting him to doublejeopardy." Accordingly, it directed the parties to brief the meritsof the case.
Subsequently, in December 1999, the appellate court affirmeddefendant's conviction in an unpublished order, holding that theevidence sufficed to prove him guilty beyond a reasonable doubt.No. 3-95-0261 (unpublished order under Supreme Court Rule23).
Defendant petitioned for leave to appeal (177 Ill. 2d R. 315),and alternatively requested an appeal as a matter of right (134 Ill.2d R. 317). We granted leave to appeal.
ANALYSIS
Defendant raises two issues in this appeal. He first contendsthat the vacatur of the appellate court's December 1995 filingviolated his guarantee against double jeopardy. Additionally, hecontends that the appellate court erred in affirming his convictionin December 1999. We shall address these contentions in turn.
A. Double Jeopardy
Defendant first contends that all of the proceedingssubsequent to this court denying the State's petition for leave toappeal in June 1996 have been in violation of his federal and stateconstitutional guarantees against double jeopardy. See U.S. Const.,amend. V; Ill. Const. 1970, art. I,