Opinion
NO. 4-13-0211
01-21-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO SERRATO-PEREZ, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from
Circuit Court of
Champaign County
No. 09CF2028
Honorable
Harry E. Clem,
Judge Presiding.
PRESIDING JUSTICE APPLETON delivered the judgment of the court.
Justices Knecht and Harris concurred in the judgment.
ORDER
¶ 1 Held: (1) Trial counsel was not ineffective for failing to (a) argue additional bases in defendant's motion to suppress, (b) object to or conduct voir dire examination of the State's expert regarding his qualifications, or (c) tender a jury instruction on the lesser-included offense of unlawful possession of a controlled substance.
(2) The evidence was sufficient to prove defendant guilty beyond a reasonable doubt of the offense of unlawful possession with intent to deliver a controlled substance where the particular circumstances of this case, coupled with the amount of cocaine recovered, over 60 grams, indicated the cocaine was not intended for personal use. ¶ 2 Defendant, Antonio Serrato-Perez, appeals from the jury's verdict finding him guilty of unlawful possession with intent to deliver a controlled substance (more than 15 grams but less than 100 grams of a substance containing cocaine) (720 ILCS 570/401(a)(2)(A) (West 2008)). The trial court sentenced defendant to 12 years in prison. ¶ 3 Defendant appeals, arguing his trial counsel rendered ineffective assistance when he failed to (1) argue additional bases in his motion to suppress, (2) conduct voir dire examination of the State's expert witness or otherwise object to his status as an expert, and (3) tender a jury instruction on the lesser-included offense of simple possession. Defendant also claims the State failed to prove him guilty beyond a reasonable doubt when it presented no indicia of the intent to deliver. We affirm.
¶ 4 I. BACKGROUND
¶ 5 On September 22, 2009, defendant was driving on Interstate 57 in Champaign County when he was stopped by Deputy Mark McCallister of the Champaign County sheriff's department for his failure to properly display a front license plate on the vehicle. The University of Illinois canine officer also appeared at the traffic stop and conducted a walk-around search with his dog. The dog alerted to the presence of narcotics. McCallister and his partner searched defendant's vehicle and discovered a plastic bag containing 60.2 grams of cocaine. On December 1, 2009, the State charged defendant with unlawful possession with intent to deliver between 15 and 100 grams of cocaine, a Class X felony. 720 ILCS 570/401(a)(2)(A) (West 2008). ¶ 6 Defendant filed a motion to suppress evidence, claiming McCallister lacked probable cause to "seize defendant's vehicle and his person" since defendant's license plate was displayed horizontally against the front windshield in compliance with section 3-413(b) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/3-413(b) (West 2008)). At the suppression hearing, defendant presented the testimony of McCallister, who testified he and Deputy Lucas Munds conducted a traffic stop of defendant's vehicle. The officers, members of the Street Crimes Unit, were anticipating defendant's presence at that location based on information they had received as part of an ongoing drug investigation. The officers were notified defendant would be traveling on the interstate transporting narcotics. When McCallister spotted defendant's vehicle, he did not see a license plate affixed to the outside front of the vehicle. In fact, McCallister did not recall seeing a license plate anywhere in the vehicle. Two University of Illinois police cars and two additional unmarked police cars arrived immediately at the location of the traffic stop. ¶ 7 Defendant also testified at the hearing. He said he had his license plate "on top of the dash by the windshield *** on the right side on the front of the dash" inside the vehicle with the letters on the plate facing out. No other evidence was presented. ¶ 8 After considering the evidence and arguments of counsel, the trial court denied defendant's motion to suppress. The court noted "numerous cases" indicating an officer can have more than one purpose for stopping a motor vehicle, "as long as proper probable cause for the stop exists." Defendant failed to satisfy the requirements for properly displaying a front license plate and thus, the officers "acted reasonably in that regard sufficient to stop the vehicle in question." The court continued:
"Once the vehicle was stopped, at least at the moment, and those matters, of course, are on argument as we speak at the United States Supreme Court but, as the state of the law is at the moment, there is no allegation of privacy out—in the air outside of the vehicle and one can bring a dog along as long as the traffic stop isn't unduly prolonged to take a sniff to see if anything that smells¶ 9 Defendant's jury trial began on January 31, 2013, and continued on February 1, 2013. In her opening statement, the prosecutor outlined the evidence she intended to introduce to satisfy the State's burden of proof. She explained as follows: "I believe you're going to learn how people consume cocaine. I believe you're also going to find out that during the search of this vehicle, no drug paraphernalia was found. I believe you'll learn the significance of that as well, as well as the significance of the weight and the significance of the packaging." Defendant's opening statement focused on "serious holes" in the State's case and reminding the jurors to hold the State to its burden. ¶ 10 The State called Deputy McCallister, who testified that, once he had stopped defendant, he sought the assistance of the University of Illinois canine unit. Officer Doug Beckman and his dog, Quinty, conducted a walk-around sweep of the outside of defendant's vehicle. Quinty alerted to the presence of narcotics. The officers removed defendant from the vehicle and McCallister and Munds conducted a search of the interior. Inside the center console, they found a plastic bag with paper towels wrapped around it. Inside the plastic bag were "chunks in a powder form," which appeared to be powder cocaine. No other drug or drug paraphernalia was located. ¶ 11 McCallister stated, based upon his training and experience, people typically consume "maybe a gram" at a time of cocaine, or at least in "small, very small amounts." The following exchange occurred:
like narcotic is there. That's apparently what happened here and the length of the stop is not questioned, nor anything about the credentials of the dog.
The basis for the motion is insufficient and the motion is—as indicated is denied."
"Q. And based upon your training and experience, did you have a concern when you recovered this amount of cocaine?¶ 12 The State also called Douglas Beckman, the University of Illinois canine officer, who testified the Champaign County sheriff's department requested his assistance at the traffic stop. The State extensively questioned Beckman regarding his training, expertise, and that of his canine, Quinty. In particular, Beckman testified he had worked as a canine handler for 14 years and had been a police officer for 18 years. He had received specific training in narcotics interdiction, beyond that required for a canine handler. He continues to receive training updates related to narcotics investigations. Based on his training, he said he is familiar with how cocaine is consumed, concealed, and packaged. Thereafter, without objection, the State tendered Beckman as an expert witness in narcotics interdiction and narcotics packaging. Beckman said the deputies asked him to walk Quinty around defendant's vehicle. During the walk-around, the canine alerted to the presence of narcotics. ¶ 13 Beckman testified that, in his opinion, the plastic bag of cocaine recovered from defendant's vehicle "would be considered an amount for distribution or sales." He said: "It's large enough amount that it would be highly unlikely that it would be [for] personal use." He said users generally consume one-tenth to two-tenths of a gram of cocaine at a time. Thus, according to Beckman, the amount found in defendant's vehicle was approximately 300 to 600 doses of cocaine. The prosecutor asked Beckman to describe the nature of the cocaine found in the vehicle. He said: "That would be cocaine that was taken off a brick and use would be for sale." ¶ 14 Hope Erwin, the State's expert on forensic chemistry, testified that she analyzed the evidence seized. She determined the "chunky white substance" constituted 60.2 grams of cocaine. ¶ 15 The State rested. Defendant did not testify or present any evidence. He moved for a directed verdict, but the trial court denied his motion. At the jury instruction conference, responding to the court's inquiry, defense counsel indicated he would not present any "additional instructions," and had no objection to those presented by the State. ¶ 16 In defense counsel's closing argument, he reminded the jury of the "holes in the evidence." He said, referring to the State's exhibit: "That's a bag of cocaine. We don't dispute that at all, but it's not [defendant's] cocaine." He continued: "[T]here was no drug paraphernalia in the car, no smoking device. Is it possible that there is none of that because [defendant] doesn't use cocaine and this is not his cocaine? *** They haven't proven that it is his cocaine." After closing arguments and the instructions from the trial court, the jury retired to deliberate. Later, the jury found defendant guilty of unlawful possession with intent to deliver a controlled substance. ¶ 17 On March 4, 2013, the trial court sentenced defendant to 12 years in prison. Defendant filed a motion to reconsider his sentence, which the trial court denied. This appeal followed.
A. It appeared to me that it was a large amount, yes.
Q. Did the amount suggest anything to you?
A. That is wasn't just for personal smoking or use. I mean it was—it wasn't individually packaged or anything like that; it was just a big bulk, so—
Q. And based on your training and experience, is that—could that be considered a user amount?
A. That would be more than what I would—than my experience shows me would be a user amount.
Q. Was that also—was your opinion also enhanced by the lack of drug paraphernalia?
A. That's correct."
¶ 18 II. ANALYSIS
¶ 19 Defendant poses two main contentions of error. First, he claims his trial counsel rendered ineffective assistance (1) during the hearing on his motion to suppress, (2) by not challenging the State's expert witness, (3) when he failed to request a jury instruction on a lesser-included offense, and (4) based on the combination of these errors, in a cumulative effect. Second, defendant claims the State failed to prove the intent-to-deliver element beyond a reasonable doubt. We address each claim in turn and affirm on all bases.
¶ 20 A. Ineffective Assistance of Counsel
¶ 21 Claims of ineffective assistance of counsel are evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove counsel rendered ineffective assistance, the defendant must first demonstrate that counsel's performance was deficient and fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Next, defendant must demonstrate he suffered prejudice as a result of counsel's deficient performance. Strickland, 466 U.S. at 687. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687.
¶ 22 1. Motion To Suppress
¶ 23 Defendant's first ineffective-assistance-of-counsel claim relates to the grounds alleged in his motion to suppress evidence. He contends counsel "failed to properly investigate the law applicable" to his motion, and subsequently failed to address "pertinent issues during the hearing." Those issues allegedly omitted, defendant claims, include the duration of the traffic stop and the credentials and reliability of the canine involved. ¶ 24 To establish the prejudice prong of the ineffective-assistance-of-counsel claim in the context of a motion to suppress, the defendant must demonstrate (1) the trial court would have granted the motion, and (2) the outcome of the trial would have been different had the court suppressed the evidence. People v. Bew, 228 Ill. 2d 122, 128-29 (2008). Because we find the record before us sufficient to make this determination (as well as the determination on the remaining allegations of ineffective assistance), we proceed to dispose of the issue on the merits. Cf. Massaro v. United States, 538 U.S. 500, 504-05 (2003) (ineffective assistance of counsel claims are preferably brought on collateral review because typically the record on direct appeal is insufficient and is not developed for the purpose of litigating such a claim). ¶ 25 In his motion to suppress, defendant argued only that the police lacked probable cause to stop his vehicle when, he claimed, he had his front license plate sufficiently displayed in accordance with the applicable section of the Vehicle Code. Defendant now claims counsel should have contested the duration of the stop and challenged the canine's credentials and reliability. Had counsel done so, defendant claims, the result of the hearing would have been different and the evidence most likely would have been suppressed. ¶ 26 First, we note the United States Supreme Court has held that a seizure that is lawful at its inception can become unlawful "if it is prolonged beyond the time reasonably required" to complete the purpose of the stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005). See also People v. Harris, 228 Ill. 2d 222, 235 (2008). In this case, no evidence suggests the stop was unreasonably prolonged and, in fact, defendant does not frame a substantive argument to this extent. He states only that counsel failed to raise any question regarding the duration of the stop and he cites authority requiring reasonableness in that regard. However, he does not advance his cause by claiming or proposing the traffic stop exceeded that time which would be reasonably required to effectuate its initial purpose. In other words, defendant failed to demonstrate a reasonable probability that, but for counsel's failure to raise the issue, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. ¶ 27 McCallister testified at the suppression hearing Beckman was either at the scene at the time of the stop or arrived shortly thereafter. Defendant presented no evidence to suggest the traffic stop was delayed until Beckman appeared or that the officers unreasonably prolonged the stop for the purpose of conducting the narcotics sweep. As such, it is unlikely this argument would have been successful had it been included in defendant's motion to suppress. ¶ 28 Second, defendant claims counsel should have challenged the canine's credentials and reliability. He relies on the Supreme Court's decision in Florida v. Harris, ___ U.S. ___, 133 S. Ct. 1050 (2013), decided after the trial in this case. In Harris, the Supreme Court addressed how a court should evaluate probable cause based on an alert from a drug-detection dog when the defendant has challenged the dog's reliability. Harris, ___ U.S. ___, 133 S. Ct. at 1052. The Court rejected Florida's rigid test that required the prosecutor in every case to present evidence of reliability in favor of a more flexible approach that would simply examine the dog's training. Harris, ___ U.S. ___, 133 S. Ct. at 1052. The Court held that "evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert." Harris, ___ U.S. ___, 133 S. Ct. at 1057. The Court noted, however, that a defendant "must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses." Harris, ___ U.S. ___, 133 S. Ct. at 1057. The Court believed that "even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not)." Harris, ___ U.S. ___, 133 S. Ct. at 1057-58. ¶ 29 Again, defendant fails to set forth a valid argument demonstrating either an objective error on counsel's part or that he suffered prejudice when counsel failed to challenge Quinty's credentials and reliability. Defendant states, in a conclusory manner, that counsel's failure "to request discovery regarding the canine's training, or questioning Officer Beckman as a witness in support of his motion to suppress evidence, severely prejudiced the defendant." However, he fails to set forth any basis for this statement or point to anything in the record to suggest a potential issue. He fails to explain how the results of the suppression hearing would have been different had counsel raised the issue and fails to support his claim that counsel rendered ineffective assistance by not including the issue in defendant's motion to suppress. If the State presents evidence which demonstrates the dog has been certified, there is sufficient reason to trust his alert. Harris, ___ U.S. ___, 133 S. Ct. at 1057. Here, Beckman testified he and Quinty had been properly certified. Counsel is not incompetent when he fails to file a motion to suppress that would have been futile. People v. Givens, 237 Ill. 2d 311, 331 (2010).
¶ 30 2. Voir Dire of Expert Witness
¶ 31 Defendant next contends his counsel was ineffective for failing to challenge Beckman's qualifications regarding his expertise and training in the field of narcotics packaging and interdiction. In particular, defendant contends the State failed to establish a foundation that Beckman was qualified to make an expert opinion on whether the cocaine packaging indicated the cocaine was intended for distribution, rather than personal use. In light of defendant's claim, we must determine whether counsel's failure to object and conduct voir dire established ineffective assistance of counsel. ¶ 32 Indeed, "the admission of an expert's testimony requires an adequate foundation establishing that the information upon which the expert bases his opinion is reliable." People v. Bush, 214 Ill. 2d 318, 333 (2005). Defendant insists his counsel should have cross-examined Beckman on his qualifications. At trial, the State spent a considerable amount of time questioning Beckman about his training and qualifications. Beckman first testified about his training as a canine officer. He said he had been a narcotics canine officer for 14 years. He had been working with Quinty for approximately five years. Quinty was trained and certified as a "passive alert canine," meaning the dog alerts in a manner that is not aggressive or physical. He sits, "locks on," or just stares at the source of the odor. ¶ 33 Beckman further testified to his individual training as a narcotics officer. He said he had been trained by several entities on issues such as analyzing a suspect's behaviors, learning various concealment and packaging methods, as well as general information related to the current trends in the narcotics trade. He said he had been trained by federal, state, and local agencies on "narcotics and narcotics interdiction." Additionally, he indicated he conducts training within his department and for other agencies on "packaging, concealment methods, how to look for things, [and] where to look at in vehicles." ¶ 34 After this testimony, the State moved to qualify Beckman as an expert in the area of "narcotics interdiction and narcotics packaging." Defendant's counsel had no objection, so the trial court tendered Beckman to the jury as an expert "within those two fields." Defendant relies on Bush in support of his claim. We conclude, however, this case differs from Bush in that here the State set forth an adequate foundation before defendant's counsel stipulated to Beckman's qualifications. In Bush, the defendant's counsel entered into a stipulation without requiring the State to present any foundation as to the expert's qualifications. See Bush, 214 Ill. 2d at 333 (the defendant stipulated to both the expert's qualifications and the admission of his conclusion). Here, defendant's counsel held the State to its burden of establishing the requisite foundation for Beckman's qualifications and conclusion. Because the State thoroughly examined Beckman on his training and qualifications, it was a reasonable strategy for counsel to simply accept Beckman as the State's expert, rather than allow the jury to consider the same any further and risk bolstering his training, credentials, and expertise. ¶ 35 Based on the record before us, we conclude counsel's performance did not fall below an objective standard of reasonableness when he chose not to cross-examine Beckman with regard to the extent of his training or expertise. Counsel did subject Beckman to cross-examination regarding the conduct of the canine walk-around and subsequent alert. We conclude Beckman's testimony adequately established him as an expert in the field of narcotics and, thus, we find defendant failed to demonstrate that (1) counsel engaged in substandard performance, and (2) defendant suffered prejudice from counsel's representation.
¶ 36 3. Lesser-Included Offense
¶ 37 Defendant also claims his counsel rendered ineffective assistance by failing to tender a jury instruction on the lesser-included offense of possession of a controlled substance. Illinois law suggests the jury should be given an instruction on a lesser-included offense if the lesser-included offense supports the defendant's theory of the case. See People v. Serrano, 286 Ill. App. 3d 485, 492 (1997) (counsel's performance was deficient because he failed to offer an instruction on the theory of defense argued at trial). ¶ 38 Before defendant can demonstrate ineffective assistance of counsel, he must first overcome a strong presumption that counsel's actions were the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327 (2011). Generally, counsel's strategic decisions are immune from a claim of ineffective assistance of counsel. Manning, 241 Ill. 2d at 327. ¶ 39 In People v. McIntosh, 305 Ill. App. 3d 462 (1999), the defendant was convicted of criminal sexual assault. His defense theory was that his encounter with the victim was consensual. On appeal, the defendant argued his trial counsel was ineffective for failing to instruct the jury on the lesser-included offense of criminal sexual abuse. The appellate court disagreed:
"[T]he decision of whether to submit an instruction on a lesser-included offense is typically considered to be one of trial strategy, which has no bearing on the competency of counsel. *** Defendant's attorney may have strategized that it was better for the jury not to have the choice of the lesser-included offense in the hope that they would be more inclined to acquit ***." McIntosh, 305 Ill. App. 3d at 471.See also People v. Nunez, 319 Ill. App. 3d 652, 659 (2001) ("Defense counsel's decision not to pursue a lesser included offense was part of a cohesive trial strategy and did not constitute ineffective assistance."). ¶ 40 Here, according to counsel's closing argument, defendant's theory of the case was that the cocaine found in the vehicle was not his. In support, he relied on the lack of fingerprint evidence on the plastic bag or on the brick of cocaine itself found in the vehicle, as well as the lack of evidence of any conversation between the officers and defendant. Defendant did not concede possession or argue the cocaine was for his own personal use. Instead, he argued only that (1) he knew nothing about the drugs being in the vehicle, (2) he does not use cocaine, and therefore, (3) the drugs were not his. ¶ 41 Although an instruction on the lesser-included offense of possession without the element of "intent to deliver" could have applied to the facts of this case, such an instruction would not have been consistent with defendant's theory presented to the jury. That is, because counsel argued defendant was not aware the cocaine was in the vehicle, instructing the jury on simple possession would run afoul of his strategy. Counsel could have reasonably believed the instruction on the lesser-included offense of possession may "have converted a likely acquittal into a likely conviction of the lesser crime. The strategy may have failed, but so must defendant's claim that counsel was ineffective." People v. Dominguez, 331 Ill. App. 3d 1006, 1015 (2002). ¶ 42 Contrary to defendant's arguments, our review of the record indicates he did not receive objectively unreasonable representation from his trial counsel. Viewing his arguments in light of the applicable standard, we cannot say " 'counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " People v. Peeples, 205 Ill. 2d 480, 511 (2002) (quoting Strickland, 466 U.S. at 686). Our decision applies to each contention of error individually as well as cumulatively.
¶ 43 B. Sufficiency of the Evidence
¶ 44 Finally, defendant claims the State failed to prove the intent-to-deliver element beyond a reasonable doubt. He insists the State failed to prove that the amount of cocaine recovered was inconsistent with personal use. When a defendant challenges the sufficiency of the evidence, the test is whether, after viewing 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. Ward, 215 Ill. 2d 317, 322 (2005). The trier of fact has the responsibility to determine the weight to be given witnesses' testimony, their credibility, and the reasonable inferences to be drawn from the evidence. People v. Steidl, 142 Ill. 2d 204, 226, (1991). It is not the function of the appellate court to retry the defendant. People v. Slinkard, 362 Ill. App. 3d 855, 857 (2005). A conviction will not be set aside unless evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of defendant's guilt. People v. Wheeler, 226 Ill. 2d 92, 115 (2007). ¶ 45 Intent to deliver is often proved by circumstantial evidence. People v. Robinson, 167 Ill. 2d 397, 408 (1995). "[T]he quantity of controlled substance alone can be sufficient evidence to prove an intent to deliver beyond a reasonable doubt." Robinson, 167 Ill. 2d at 410-11. However, that "is the case only where the amount of controlled substance could not reasonably be viewed as designed for personal consumption." Robinson, 167 Ill. 2d at 411. "As the quantity of controlled substance in the defendant's possession decreases, the need for additional circumstantial evidence of intent to deliver to support a conviction increases." Robinson, 167 Ill. 2d at 413. "The question of whether the evidence is sufficient to prove intent to deliver must be determined on a case-by-case basis." People v. Beverly, 278 Ill. App. 3d 794, 799-800 (1996). ¶ 46 As defendant accurately argues, the police did not recover any weapons, cash, cutting agents, scales, or Baggies to indicate distribution. However, perhaps just as convincingly, they also did not recover any paraphernalia associated with the personal use of cocaine. See Beverly, 278 Ill. App. 3d at 802 (intent to deliver proved by evidence indicating possession of cocaine packaged for sale, large amount of cash, and lack of drug paraphernalia for personal use). Viewing the above evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt defendant had the intent to deliver the cocaine. This finding was not so unreasonable, improbable, or unsatisfactory as to cause a reasonable doubt of defendant's guilt. According to Beckman, the typical individual dose of cocaine is between 0.1 to 0.2 grams. The difference between a typical individual dose of 0.1 and the 60 grams found in defendant's vehicle at least reduces, if not eliminates, the necessity of finding other indicia of distribution. The State's evidence clearly supported the reasonable implication that defendant possessed the cocaine with intent to deliver. It was unlikely defendant would purchase $6,000 worth of cocaine, the equivalent of between 300 and 600 typical individual doses, for his personal use. We find the evidence sufficient to prove defendant guilty of possession with intent to deliver.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, we affirm the trial court's judgment. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal. ¶ 49 Affirmed.