Opinion
1-19-1331
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TEODORO BASTIDA-DIAZ, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 10 CR 9183 Honorable Peggy Chiampas, Judge, presiding.
JUSTICE HARRIS delivered the judgment of the court. Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
HARRIS, JUSTICE
¶ 1 Held: The circuit court did not err by summarily dismissing defendant's postconviction petition despite his contention that appellate counsel was ineffective for failing to raise the trial court's noncompliance with Rule 431(b).
¶ 2 Defendant Teodoro Bastida-Diaz appeals the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). He contends that the circuit court erroneously dismissed his petition where he made an arguably meritorious claim of ineffective assistance of appellate counsel for failing to raise the trial court's noncompliance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) on direct appeal. For the following reasons, we affirm.
¶ 3 Following a jury trial, defendant was convicted of possession of a controlled substance with intent to deliver 900 grams or more of cocaine (720 ILCS 570/401(a) (2) (D) (West 2010)) and sentenced to 17 years' imprisonment. We set forth the facts of the case in defendant's direct appeal (People v. Bastida-Diaz, 2015 IL App (1st) 123248-U), and we recite them here to the extent necessary to our disposition.
¶ 4 During voir dire, the trial court told the prospective jurors that it wanted to "go over some basic principles of law and make sure everyone understands that, not only the fourteen in here but everyone else who is out in the gallery." The trial court then recited four principles separately and, after each recitation, asked the venire a variation of the following question: "Is there anyone who cannot follow that proposition of law? Please raise your hand." After its questions regarding the first and second principles, the court stated that no one raised their hands to the particular Zehr question. After the third question, it stated "the venire has indicated they do understand that principle and they indicate that they could follow that principle of law." After the fourth and final question, the trial court concluded by stating: "Let the record reflect the court has asked all the Zehr questions and all of the venire indicates they understand those principles of law and could follow it, and no one has raised their hand at anytime that I have asked those questions."
The court had called 14 names, but addressed its remarks to all the prospective jurors in the courtroom.
¶ 5 At trial, Drug Enforcement Administration (DEA) special agent Donald Wood testified he conducted a long-term narcotics investigation of Jose Diaz beginning in September 2009. On January 15, 2010, Wood followed Diaz and defendant as defendant drove them in a blue Mercury Mystique from his home to a condominium building in Oak Lawn. Defendant parked alongside the building, and, a short time later, a vehicle driven by Manuel Martinez arrived. Martinez walked to defendant's vehicle and conversed with Diaz and defendant before entering "his residence." The building's garage door then opened, defendant drove inside, and the door shut. Soon after, the door reopened and defendant's vehicle left the garage. Later, Martinez returned to his vehicle and drove away. Wood eventually pulled Martinez over and searched his vehicle, finding cocaine and marijuana. Wood then searched the building's garage, finding nine ounces of cocaine. ¶ 6 Martinez was not charged with an offense because he agreed to assist in the investigation of Diaz. Specifically, Martinez agreed to introduce undercover special agent Dave Zamora to Diaz in order to arrange a narcotics transaction. Zamora met Diaz in February, March, and April 2010, ultimately making a plan to sell Diaz cocaine in a garage in Berwyn.
¶ 7 On April 15, 2010, Zamora was inside the garage with five kilograms of cocaine, while Wood surveilled the garage through real-time video from inside an adjacent residence. The garage was an undercover garage equipped with audio and video equipment. Around 11:40 a.m., Diaz and Martinez pulled into the garage and Zamora showed them the cocaine. Diaz inspected the cocaine and agreed to purchase two kilograms for $27,500, but said he had to leave to obtain the money. Diaz and Martinez left without the cocaine.
¶ 8 Around 1 p.m., defendant drove into the garage in the blue Mystique, which Wood had seen him drive on numerous occasions during his investigation. Martinez arrived separately, parking his vehicle outside. Martinez exited his vehicle and walked into the garage. Defendant and Martinez stated they brought money for one kilogram of cocaine. They tendered the money to Zamora, and Zamora handed defendant the cocaine. Defendant got inside his vehicle. Officers entered the garage and arrested him. They found the cocaine in a hidden "trap compartment" located in the front bumper of defendant's vehicle. They had to break into the trap compartment as they were unable to locate the opening mechanism.
¶ 9 On cross-examination, Wood confirmed he conducted surveillance on Diaz 20 times between January 2010 and the time of the arrest on April 15, 2010. Martinez agreed to act as an informant, but Wood did not tell him "he had to get a certain number of defendants." Wood did not promise Martinez anything for his cooperation, but did speak to two assistant state's attorneys regarding Martinez.
¶ 10 Zamora testified consistently with Wood's account of events, confirming he acted as an undercover officer in the drug traffic investigation starting in February 2010. Martinez initially introduced Zamora to Diaz as someone who would buy cocaine from Diaz. However, in March, when Diaz's drug shipment did not arrive, Zamora offered to sell Diaz cocaine. Zamora next met with Diaz and Martinez on April 15, 2010, in the garage. Zamora narrated video footage recorded in the garage during Diaz's visit. English translations of the Spanish conversations in the video were provided to the jury and read into the record.
¶ 11 Approximately an hour after Diaz left the garage to get the money to purchase two kilograms of cocaine from Zamora, Martinez arrived, followed by defendant driving a blue Mercury Mystique. Defendant pulled his vehicle into the garage. Zamora narrated video footage recorded in the garage. He stated that, although not shown in the footage, he saw defendant activate a trap in the front compartment of his vehicle. Martinez took three packets of money from the trap and handed them to Zamora. Martinez and defendant were working together to buy from Zamora, but only wanted one kilogram of cocaine. English translations of the Spanish conversations in this footage were again provided to the jury and read into the record.
¶ 12 On cross-examination, Zamora acknowledged that, when he asked defendant whether he wanted one or two kilograms, defendant stated he did not know how many. Martinez then told Zamora" [h]e said just *** one, and then he would come back for another one." By "he," Zamora understood Martinez to mean Diaz.
¶ 13 Testimony from Chicago police officer Michael Tate and Illinois State Police forensic scientist Angela Nealand showed the compressed, brick-like object recovered from the garage weighed 1004.6 grams and tested positive for the presence of cocaine.
¶ 14 The State entered several exhibits, including photographs of the "trap compartment" containing the recovered cocaine, video footage taken in the garage of Diaz's visit and defendant's visit, and translated English transcripts of the Spanish conversations in the two videos. The State also presented a certified vehicle record showing the Mercury Mystique was registered to defendant.
¶ 15 Defendant testified through an interpreter that Diaz was his older brother. On April 15, 2010, he owned a Ford Mystique that his brother had bought for him. That day, he was at his home with Diaz and Martinez. After a conversation between Diaz and Martinez, Martinez told defendant that he "had to do it" and, if he did not, Diaz "was in danger." Thereafter, Martinez directed defendant to a garage. Prior to going to the garage, defendant saw Martinez put money somewhere. Defendant testified he was in the second video played for the jury.
¶ 16 On cross-examination, defendant testified that the Mystique was registered to him. Prior to defendant's arrest he knew Martinez for six months or less and had seen him only two or three times, but had been to his house. Diaz informed defendant of the drug deal, but did not tell him how many kilograms to "get." Defendant did not know Diaz had been to the garage earlier to look at the cocaine. Prior to going to the garage, defendant was working on a vehicle as he was a mechanic. Defendant admitted he went to the garage with the intent to buy drugs and that he retrieved money out of the "trap" of his vehicle and gave it to Martinez, but did not know how much. At the time, he believed his brother was in danger, but did not go to the police for help. Instead he bought a kilogram of cocaine.
¶ 17 In closing, the State argued, inter alia, defendant was legally accountable for Diaz's part in negotiating the terms of the sale and defendant was not entrapped into committing the offense. It asserted he was neither incited nor induced but rather was predisposed to commit the offense. Defendant argued that, although he did drive his vehicle to the garage, he should not be convicted as he was induced to do so. He argued Martinez had to "do something for the agent to get off his quarter kilo" of cocaine found in his possession. Defendant contended the English language transcript showed Martinez, the informant, had "all the answers" and defendant "knew nothing" and was "entrapped by that agent." The trial court instructed the jury on accountability and entrapment.
¶ 18 The jury found defendant guilty of possession of a controlled substance with intent to deliver 900 grams of cocaine or more. The trial court denied defendant's motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial, and sentenced defendant to 17 years' imprisonment. Defendant appealed, contending that trial counsel was ineffective for failing to request a jury instruction on the affirmative defense of necessity; we affirmed. Bastida-Diaz, 2015 IL App (1st) 123248-U, ¶¶ 10, 19.
¶ 19 On November 19, 2018, defendant filed a pro se postconviction petition raising claims of ineffective assistance of trial and appellate counsel. Relevant here, defendant claimed appellate counsel was ineffective for failing to raise that trial counsel was ineffective for not objecting to the manner in which the trial court conducted the voir dire. Defendant asserted the trial court's questioning of the prospective jurors did not comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).
¶ 20 On February 15, 2019, the circuit court summarily dismissed the petition as frivolous and patently without merit. It found the evidence of defendant's guilt was "overwhelming" where the State presented uncontroverted evidence he was in possession of one kilogram of cocaine, and the evidence did not support his entrapment defense. The court thus concluded that defendant was "not even arguably prejudiced" by trial counsel's alleged deficiencies in not objecting to the trial court's questioning of the venire or by the trial court's alleged failure to comply with Rule 431(b). The court also found defendant was not prejudiced by appellate counsel's failure to raise the meritless claims, and his ineffective assistance of appellate counsel claim was therefore also without merit.
¶ 21 On appeal, defendant argues the circuit court erred in dismissing his postconviction petition because he pleaded the gist of a constitutional claim that appellate counsel was ineffective for failing to raise the trial court's noncompliance with Rule 431(b). Under Rule 431 (b), the trial court must question prospective jurors, individually or in a group, if they understand and accept the principles outlined in People v. Zehr, 103 Ill.2d 472 (1984). People v. Sebby, 2017 IL 119445, ¶ 49. Defendant contends the trial court did not adequately comply with Rule 431(b) because it did not ask the jurors whether they understood the principles of law set forth in the rule.
¶ 22 The Act provides a three-stage process for a defendant to collaterally attack a criminal conviction by asserting it resulted from a "substantial denial" of his constitutional rights. 725 ILCS 5/122-1 (West 2018); People v. Hodges, 234 Ill.2d 1, 9 (2009). The circuit court summarily dismissed defendant's postconviction petition at the first stage of proceedings. At the first stage, the circuit court may summarily dismiss a postconviction petition within 90 days if it "determines the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2018). A petition is frivolous or patently without merit only when it has no arguable basis in either fact or law. Hodges, 234 Ill.2d at 11-12. A petition has no arguable basis in fact or law where it is "based on an indisputably meritless legal theory or a fanciful factual allegation." Id. at 16. All well-pled allegations are taken as true unless contradicted by the record. People v. Thomas, 2014 IL App (2d) 121001, ¶ 47. But broad conclusory allegations are insufficient to survive the low "gist" of a constitutional claim threshold applicable at the first stage. See People v. Delton, 227 Ill.2d 247, 258 (2008). We review the summary dismissal of a defendant's postconviction petition de novo. People v. Allen, 2015 IL 113135, ¶ 19.
¶ 23 Claims of ineffective assistance of appellate counsel claims are governed by the same two-prong standard for assessing claims of ineffective assistance of trial counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Harris, 206 Ill.2d 1, 34 (2002). In order to prevail on a claim of ineffective assistance of appellate counsel, a defendant must demonstrate that the failure to raise an issue on direct appeal was objectively unreasonable, and that the decision prejudiced the defendant. People v. Childress, 191 Ill.2d 168, 175 (2000).
¶ 24 Appellate counsel is not obligated to raise every conceivable claim, nor are they incompetent for not raising claims deemed without merit. People v. Easley, 192 Ill.2d 307, 329 (2000). Unless the underlying claim is meritorious, a defendant did not suffer prejudice from his appellate counsel's failure to raise it. Childress, 191 Ill.2d at 175. A reviewing court must therefore decide whether a defendant's underlying claims would have been successful if they had been raised on direct appeal. Id. At the first stage of postconviction proceedings applicable here, a petition alleging ineffective assistance of counsel may not be summarily dismissed if it is arguable that (1) counsel's performance fell below an objective standard of reasonable and (2) defendant was prejudiced by counsel's performance. Hodges, 234 Ill.2d at 17.
¶ 25 Defendant acknowledges trial counsel did not object to the trial court's admonishments, and thus, the issue was not preserved for review. See People v. Enoch, 122 Ill.2d 176, 186 (1988) (noting both a trial objection and a written posttrial motion raising the issue are required to preserve a claim for review). Defendant asserts, however, the issue could have been reviewed for plain error on direct appeal had appellate counsel raised it.
¶ 26 The plain-error doctrine allows a reviewing court to consider an unpreserved claim of error where a clear or obvious error occurred and (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error; or (2) the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill.2d 551, 564-65 (2007). A defendant bears the burden under both prongs of the analysis. People v. Wilmington, 2013 IL 112938, ¶ 43.
¶ 27 Generally, our initial analytical step under plain error review is to determine whether any error occurred. Sebby, 2017 IL 119445, ¶ 49. However, as defendant correctly points out, a trial court's violation of Rule 431 (b) is cognizable under the first prong of the plain-error doctrine. See People v. Birge, 2021 IL 125644, ¶ 24 (not yet released for publication in the permanent law reports). He therefore only argues the first prong of the doctrine, i.e., a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against him.
¶ 28 "Where the only basis for plain-error review is a claim that the evidence was closely balanced, we need not first look at whether an error occurred." People v. Robinson, 2013 IL App (1st) 102476, ¶ 97 (quoting People v. White, 2011 IL 109689, ¶ 148 (" 'When it is clear that the alleged error would not have affected the outcome of the case, a court of review need not engage in the meaningless endeavor of determining whether error occurred.' ")). Here, because we find the evidence was not closely balanced, we need not address defendant's argument that a clear and obvious error occurred. See White, 2011 IL 109689, ¶ 148.
¶ 29 In determining whether the evidence was closely balanced, we perform a commonsense and qualitative, rather than strictly quantitative, assessment of the entirety of the trial evidence in context against the elements of the charged offenses, "along with any evidence regarding the witnesses' credibility." Sebby, 2017 IL 119445, ¶ 53; Belknap, 2014 IL 117094, ¶¶ 50-53. This assessment deals not with the sufficiency of close evidence, but with "the closeness of sufficient evidence." Sebby, 2017 IL 119445, ¶ 60.
¶ 30 The question here is whether the evidence of entrapment was closely balanced because, by raising entrapment as an affirmative defense, defendant necessarily admits committing the offense, albeit with improper governmental inducement. See People v. Bonner, 385 Ill.App.3d 141, 145 (2008). Entrapment is a statutory defense, providing that "[a] person is not guilty of an offense if his *** conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person." 720 ILCS 5/7-12 (West 2010). "However, this Section is inapplicable if the person was pre-disposed to commit the offense and the public officer or employee, or agent of either, merely affords to that person the opportunity or facility for committing an offense." 720 ILCS 5/7-12 (West 2010).
¶ 31 Thus, entrapment requires a defendant to show both that the State improperly induced him to commit a crime and that he was not otherwise predisposed to commit the offense. People v. Sanchez, 388 Ill.App.3d 467, 474 (2009). "Once a defendant presents some evidence, however slight, to support an entrapment defense, the State bears the burden to rebut the entrapment defense beyond a reasonable doubt." (Internal quotation marks omitted.) Bonner, 385 Ill.App.3d at 145.
¶ 32 In line with the above, defendant does not dispute that the evidence established he consummated the drug purchase and was found in possession of the cocaine as charged. Rather, he argues that the evidence was closely balanced as to his affirmative defense of entrapment. Defendant contends that, as presented via the State's witnesses, the State's theory of the case was that he, at Diaz's behest, completed the drug transaction prearranged by Diaz. In contrast, defendant testified he purchased the cocaine only because government informant Martinez told him Diaz was in danger if defendant did not do so, entrapping defendant into completing the deal. Defendant argues that the outcome of the trial depends on a "contest of credibility" between himself and the State's witnesses and therefore, under Sebby, 2017 IL 119445, ¶ 63, the evidence was closely balanced.
¶ 33 As an initial matter, we reiterate that defendant bears the burden to demonstrate the evidence was closely balanced. People v. Fort, 2017 IL 118966, ¶ 18. Yet, the entirety of defendant's argument regarding whether the evidence is closely balanced consists of his contention that, pursuant to Sebby, the evidence is closely balanced because there was a "contest of credibility" between defendant and the State's witnesses. Defendant does mention that the State described the case in closing argument as a credibility contest, but does not argue the specifics of the evidence. Nor does he acknowledge that Sebby found the "contest of credibility" therein rendered the evidence closely balanced only because both versions of events were credible and neither version was corroborated or contradicted by extrinsic evidence. See id. ¶¶ 61-63 (quoting People v. Naylor, 229 Ill.2d 584, 607 (2008) (" 'Given these opposing versions of events, and the fact that no extrinsic evidence was presented to corroborate or contradict either version, the trial court's finding of guilt necessarily involved the court's assessment of the credibility of the two officers against that of defendant.' ")). That is not the case here, because defendant's version of events was not credible and there was corroborative evidence to support the State's witnesses' accounts demonstrating defendant's predisposition.
¶ 34 Defendant testified he was a mechanic and completed the drug purchase only because Martinez told him that, if he did not, his brother Diaz would be "in danger." His testimony that government informant Martinez pressured or coerced him to purchase the cocaine presents some evidence of entrapment, and the burden then shifted to the State to rebut the defense.
¶ 35 In order to prove predisposition, the State's evidence must establish that the defendant was "ready and willing to commit the crime without persuasion and before his or her initial exposure to government agents." (Internal quotation marks omitted.) People v. Ramirez, 2012 IL App (1st) 093504, ¶ 38. Whether a defendant was predisposed to commit the offense rests upon the facts of the case, so the issue is one for the trier of fact, here the jury. Id. Factors to consider in making this determination include (1) the defendant's character; (2) whether the government initiated the alleged criminal activity; (3) the defendant's criminal activity for profit; (4) whether the defendant hesitated in committing the crime; (5) the type of inducement or persuasion applied by the government, and the way in which it was applied; and (6) the defendant's prior criminal record. Id.
¶ 36 Examining the entirety of the trial evidence, the only evidence of entrapment and lack of predisposition is defendant's uncorroborated, cursory testimony that he was a mechanic and completed the drug transaction only because Martinez told him that, if he did not, Diaz would be "in danger." Defendant also testified Diaz had told him about the drug transaction, but claimed Diaz did not tell him how much cocaine to buy, it was Martinez who put money "somewhere," and Martinez who directed him to the garage where the drug transaction occurred. Defendant acknowledged he owned the Mercury Mystique with the trap compartment, but asserted Diaz purchased it for him. He also acknowledged that, although he believed Diaz was in danger after Martinez's comments, he did not go to the police for help despite having the opportunity.
¶ 37 In contrast, DEA special agent Wood testified that while conducting a long-term narcotics investigation and surveillance of Diaz, he saw defendant driving in a blue Mercury Mystique on multiple occasions. Since Wood was surveilling Diaz, it is a reasonable inference that defendant was driving Diaz on those occasions. On one of those occasions, Wood observed defendant drive the Mystique with Diaz to meet Martinez outside a residential building, then drive into that building's garage. After defendant left the garage, DEA agents recovered cocaine from inside Martinez's vehicle and the garage. Martinez then agreed to assist with the investigation of Diaz by introducing DEA undercover officer Zamora to Diaz. Wood did not promise Martinez anything in exchange for his assistance. He did not tell Martinez "he had to get a certain number of defendants." Martinez introduced Zamora to Diaz, who later agreed to purchase cocaine from Zamora in the undercover garage. Defendant completed the purchase later the same day.
¶ 38 DEA special agent Zamora testified that Martinez introduced him to Diaz, he met with Diaz several times to arrange a drug transaction, and Diaz came to the undercover garage to test the cocaine prior to purchase. Approximately an hour after Diaz left, defendant arrived and consummated the purchase. Zamora saw defendant activate the hidden trap compartment located in the front bumper of his vehicle, retrieve the money he used to purchase the cocaine from the compartment, and put the cocaine into the compartment. In our review of the video footage corroborating Wood and Zamora's accounts of the transaction, defendant does not appear to be under duress; he drove himself to the garage, separately from Martinez, and interacted in an apparently calm manner with Zamora when he purchased the cocaine.
¶ 39 Unlike in Sebby, the uncorroborated version of events presented by the defendant here was not credible. It was for the jury to determine the credibility of the witnesses, and defendant's version of events would require the jury to believe that Diaz, less than an hour after carefully testing the proffered cocaine and agreeing to purchase two kilograms in the transaction he spent months coordinating, suddenly changed his mind. And that, in the same short time frame, Martinez was then somehow able to persuade defendant, a mechanic allegedly uninvolved in the drug trade, to complete the illegal transaction by ambiguously saying his brother would be in danger if he did not do so.
¶ 40 The jury would have to believe that defendant was not working together with his brother, despite the fact that: Wood saw defendant multiple times during his drug trafficking investigation of Diaz; defendant drove Diaz to the meeting with Martinez after which Martinez was found in possession of cocaine and another nine ounces was found in Martinez's garage; Diaz told defendant about the planned drug transaction with Zamora; and there was a trap compartment in defendant's car so well hidden the police had to break in to access it. It took the jury less than an hour to reject defendant's version of events, where it left the courtroom to deliberate at 6:50 p.m. and announced its guilty verdict at 7:50 pm. The record amply supports that credibility determination.
¶ 41 The record also shows the evidence that defendant was predisposed to commit the offense was not closely balanced. Defendant testified he made the drug purchase because Martinez ambiguously threatened that, if defendant did not go through with the drug transaction, his brother would be in danger. However, during Wood's surveillance of Diaz, he saw defendant in the blue Mystique on multiple occasions and saw defendant drive Diaz to meet Martinez to a location at which cocaine was found. Defendant admitted his vehicle was equipped with a trap compartment, which he used to store money and cocaine on the date of the drug transaction at issue. The trap was hidden behind the license plate in his front bumper and necessarily had to be installed in his vehicle well before the date of the drug purchase, leading to the logical inference that defendant knew it was there. This is reinforced by the fact that, although Zamora saw defendant operate the opening mechanism, it was so well hidden that police were unable to find it and had to break into the compartment.
¶ 42 Video evidence corroborates that defendant went to the undercover garage with Martinez, but this does not corroborate defendant only drove there under threat to his brother. The translated transcript of the conversation between Zamora, Martinez, and defendant in the garage shows defendant was unsure how much cocaine to purchase, but defendant admitted Diaz had not told him how much cocaine to purchase. We find the totality of the evidence clearly demonstrates defendant was ready and willing to engage in the cocaine transaction without persuasion and before his initial exposure to Martinez, the government informant.
¶ 43 Because the evidence at trial was not closely balanced, there can be no plain error from the trial court's alleged failure to comply with Rule 431 (b). See Naylor, 229 Ill.2d at 593. As there is no plain error, appellate counsel cannot be arguably ineffective for failing to raise the court's noncompliance with Rule 431(b) on appeal. See People v. Jaimes, 2019 IL App (1st) 142736, ¶ 58 (where there is no plain error, there can be no ineffective assistance of counsel). The circuit court therefore did not err in summarily dismissing defendant's postconviction petition as frivolous and patently without merit.
¶ 44 Based on the foregoing, we affirm the judgment of the circuit court.
¶ 45 Affirmed.