People v. Anderson

NO. 4-95-0879

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Logan County
MICHAEL D. ANDERSON, ) No. 95CF44
Defendant-Appellant. )
) Honorable
) W. Charles Witte,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:
In February 1995, the State charged defendant, Michael
D. Anderson, with unlawful possession with intent to deliver a
controlled substance (more than 900 grams of a substance
containing cocaine) (720 ILCS 570/401(a)(2)(D) (West 1994)).
Defendant filed motions to suppress certain evidence and his
statements pertaining thereto, which the trial court denied. In
August 1995, defendant waived his right to a jury trial and
submitted to a stipulated bench trial. The court found him
guilty as charged and, in October 1995, sentenced him to 30 years
in prison and ordered him to pay various fines.
Defendant appeals, arguing that the trial court
improperly considered his refusal to implicate others as an
aggravating factor at sentencing. We affirm.
I. BACKGROUND
In February 1995, the Illinois State Police received a
tip that a maroon Nissan carrying six kilograms of cocaine left
Chicago around 12:30 p.m. en route to St. Louis. The driver of
the vehicle was described as male, black, and paraplegic. An
Illinois State trooper who was patrolling Interstate 55 received
that message and watched for the described automobile. When it
drove by, the officer noticed that the driver was wearing
headphones. The officer then made a traffic stop of the vehicle
for that reason.
Defendant was the driver and sole occupant of the
vehicle, and a license check revealed that his driver's license
had been suspended. Defendant was also male, black, and
paraplegic. The officer arrested defendant for driving with a
suspended license, and a later search of the Nissan revealed
three kilograms of a powdery substance containing cocaine in a
duffel bag in the trunk. Subsequent testing showed the cocaine
to be 88% pure.
In August 1995, defendant filed a motion to suppress
the physical evidence obtained from the stop of the vehicle, but
the trial court denied that motion. Defendant also moved to
suppress statements he made at the scene; the court denied the
motion in part and granted it in part.
Later in August 1995, defendant indicated he wished to
proceed on the basis of a stipulated bench trial. The trial
court admonished him in accordance with Supreme Court Rule 402(a)
(134 Ill. 2d R. 402(a)), accepted his waivers of various
procedural rights, and found him guilty as charged. The court
ordered a presentence investigation and allotted the matter for
sentencing in October 1995. Because of the quantity of the
substance involved, defendant was convicted of a "super Class X"
offense, meaning that the court was required to sentence
defendant to prison for not less than 15 years and not more than
60 years. See 720 ILCS 570/401(a)(2)(D) (West 1994).
Prior to the sentencing hearing, defendant's lawyer
filed a document entitled "defendant's commentary on sentencing
factors," which contained both an assessment of various
sentencing factors and an argument regarding why the court should
impose a lesser sentence upon defendant. At one point in that
document, defendant wrote that, "[g]iven the facts of the case,
the [c]ourt, [d]efendant and [p]rosecution fully recognized that
a stipulated bench trial was tantamount to a guilty plea.
However, it was necessary to follow that procedure in order to
preserve defendant's appellate rights as to the motion to sup-
press." In that document, defendant further argued the follow-
ing:
"Probably more than any other factor the
[c]ourt must consider is the [d]efendant's
acceptance of responsibility. His actions in
the stipulated bench trial are the first step
toward rehabilitation. These actions demon-
strate an attitude deserving of lesser pun-
ishment."
At the sentencing hearing, defendant's counsel contin-
ued with that same theme, claiming defendant's willingness to
proceed by a stipulated bench trial constituted "[i]n a very real
sense [his] acceptance of responsibility by preserving his
constitutional right on the appeal in terms of the suppression."
The State's Attorney disagreed with this view of the
case and argued that because defendant possessed with intent to
deliver three kilograms (or six pounds and six ounces) of cocaine
with a purity level of 88%, the trial court should sentence him
to the maximum term of 60 years in prison. The State's Attorney
also suggested that the court should infer, from the amount of
cocaine involved, that defendant was "a player" in the "game of
delivery of narcotics and cocaine." The prosecutor argued as
follows:
"He's a hauler. You cannot get entrusted
with over six pounds of a substance this pure
containing cocaine unless you have developed
a position of trust within whatever community
it is that deals in this category of co-
caine."
Emphasizing the cocaine's purity and that it could be further
diluted three times or more, the prosecutor contended that the
cocaine seized from defendant's car had a street value of
$900,000.
Noting that 15 years was the minimum sentence required
by law, defendant's counsel responded that the trial court should
impose a sentence closer to the minimum than the sentence the
prosecutor recommended. Defendant's counsel also asked the court
to consider defendant's unfortunate physical condition, where he
became a paraplegic after being shot in his neighborhood some
years earlier.
Defendant, who was 31 years old at the sentencing
hearing, had informed the probation office during its presentence
investigation that he had used marijuana on a regular basis for
many years but that he did not use cocaine or other "harder
drugs."
This was the context in which defendant exercised his
right of allocution. As he did so, the trial court asked him
certain questions. Because the sole issue defendant presents on
appeal concerns those questions, we quote at length from the dia-
logue between defendant and the court, as follows:
"[Defendant]: I understand what I am
being charged with and what I have been found
guilty of. *** It was a one-time thing ***
and I am sorry for making that bad decision
that I did make.
THE COURT: You indicated it is a one-
time thing. What does that mean?
A. That that was it. I have never done
it before and it most likely won't happen
again.
THE COURT: Why did you do it?
A. Pressure.
THE COURT: What was the pressure?
A. Trying to maintain my family.
THE COURT: In what way?
A. Support. Finances.
THE COURT: What were you to be paid for
this?
A. What were [sic] I being paid for
this? It wasn't like what the state's attor-
ney is saying it is. It wasn't that at all.
THE COURT: What was it?
A. $1,000.
THE COURT: You were going to be paid
$1,000 upon your delivery of these drugs?
A. And for one thing, I didn't know the
quantity that was in the car. I didn't know
that because I didn't put it in the car.
THE COURT: But you knew that the co-
caine was in the car?
A. Yes.
* * *
THE COURT: Who asked you or who was
offering to pay you $1,000 to drive it?
A. Well, I would like to tell you, but
I am scared for my family. If I say that,
something will happen to them.
THE COURT: Well, that is a convenient
excuse for hiding the truth.
A. This is true. I am not hiding the
truth. I don't want anything to happen to my
family.
THE COURT: What makes you believe that
they will be harmed?
A. Because I know. I truly know.
THE COURT: That is your conclusion that
you have come to, but frankly I can't accept
a conclusion like that.
A. Well, I have been told.
THE COURT: What have you been told by
who?
A. That I would have to take the re-
sponsibility for what I have done.
THE COURT: You mean somebody visited
you in the jail and told you you would have
to take the responsibility?
A. No, this is beforehand.
THE COURT: So you went to Chicago to
pick up these drugs for somebody who told you
you were going to be responsible[,] and all
you were going to get was $1,000[,] and you
were risking a substantial number of years in
prison?
A. I didn't know the years or the quan-
tity that was in the car.
* * *
THE COURT: Now how is it that somebody
would approach you--who was not known for
involvement with drugs--and entrust to you
this kind of value in drugs?
A. I can't answer that. I don't know.
I guess maybe they seen [sic] something in
me. I don't know.
THE COURT: Maybe they knew about your
marijuana use?
A. Maybe. That could be a possibility.
THE COURT: And you have chosen now to
protect the person who contracted with you
orally[,] apparently[,] to deliver those
drugs[,] as opposed to telling the truth
about who was involved in that?
A. For the sake of my family, yes.
THE COURT: Everybody has got to stand
up.
A. I don't want anything to happen to
my family. I made a bad mistake[,] and I am
willing to be punished, but they shouldn't
also be punished for the mistake I made. ***
[T]hey are being punished now for me going to
prison, but why should they be punished dou-
ble for [my] saying what happened?
THE COURT: To the extent that you don't
say that, that individual can continue to
deliver drugs in your neighborhood and affect
those kids that you were supposed to be pro-
tecting [by the various community activities
defendant claimed to be involved in].
A. That is not what is going on.
THE COURT: Where is the cocaine?
A. Just because I live in a bad area
doesn't mean I am going to participate in
messing my area up. It wasn't going into my
neighborhood. It was going to a better class
neighborhood than what I live in.
THE COURT: How do you know that?
A. How do I know?
THE COURT: Uh-huh.
A. I just know it wasn't going to my
neighborhood.
THE COURT: How do you know that?
A. Because I have never seen these
individuals in my neighborhood.
THE COURT: [Defendant], it is disap-
pointing to me that you would choose to pro-
tect an individual who would contract with
you to deliver that amount of drugs. To that
extent that you are protecting that person
and allowing the crime --
A. I am not protecting that person; I
am protecting my family.
THE COURT: That is your assumption[.]
A. Without me doing that -- I am going
to prison. If something happens to my fami-
ly, you are not going to be able to protect
my family.
THE COURT: Have they been injured?
A. The only way I can protect them is
doing what I am doing now. I am going to
prison[,] and then they get killed."
After this dialogue, the trial court immediately pro-
ceeded to impose sentence, remarking, in part, as follows:
"I have no reason to believe that any-
thing [defendant] said with regard to the use
of cocaine or his involvement with cocaine is
not accurate, but I am severely disappointed
by his choosing to protect the identity of
the people involved because that suggests
that those parties will now be free and have
been free since February, 1995, to continue
to transport, use, [and] sell illegal drugs.
***
Certainly the Defendant did not act
under strong provocation. He voluntarily
undertook to deliver the drugs, although he
says he did not know the full amount and
didn't know the potential liability, but we
are not talking about a young, inexperienced
kid; we are talking about a 31-year-old adult
who was not inexperienced in the use of
drugs, albeit perhaps not cocaine.
* * *
[Defendant has no prior record and] I don't
know that any of the other aggravating fac-
tors apply. *** He has apologized to his
family and thanked them for their support,
but I suspect that is somewhat hollow when he
is going to protect the person who is going
to be able to bring drugs to your community.
* * *
*** I am severely disappointed by [de-
fendant's] decision to protect his friend.
Perhaps friend is too inaccurate a word, to
protect the person who encouraged him to
participate in this crime, but I think that
the fact that he is protecting him must be
considered in the sentence the Court is going
to impose because to the extent that you
protect that individual, you allow that per-
son and those with whom he associates to
continue to deliver drugs to your community."
After these remarks, the court sentenced defendant to 30 years in
prison.
II. ANALYSIS
On appeal, defendant concedes that the trial court may
properly question a defendant at his sentencing hearing. See
People v. Iseminger, 202 Ill. App. 3d 581, 560 N.E.2d 445 (1990);
People v. Jones, 142 Ill. App. 3d 51, 491 N.E.2d 515 (1986).
However, defendant argues that if he had a legitimate reason for
refusing to respond to the court's inquiries (such as asserting
his fifth amendment privilege against self-incrimination or his
fear of retaliation), a court may not consider that refusal as an
aggravating factor when imposing sentence. In the present case,
defendant claims that the court improperly considered as an
aggravating factor defendant's refusal to implicate the others
involved in his crime. Defendant argues that the court's doing
so, among other reasons, led it to impose a 30-year prison sen-
tence. We disagree with defendant and hold that (1) the trial
court's inquiries were entirely proper; and (2) if the court
considered defendant's refusal to implicate others as an aggra-
vating factor at sentencing, the court would have been entirely
justified in doing so.
In an attempt to support his claim that the trial court
erred, defendant puts a narrow interpretation on Iseminger and
Jones, two decisions of this court. In Iseminger, this court
noted that numerous decisions of the United States Supreme Court
and the Supreme Court of Illinois have held that the trial court
at sentencing may search anywhere within reasonable bounds, for
facts tending to aggravate or mitigate the sentence. Further,
because the defendant to be sentenced is frequently the best
source for such information, "[i]t simply makes no sense to urge
trial courts to take every reasonable step to prepare themselves
appropriately for their important sentencing decisions, and then
to cut them off from the best source of information." Iseminger,
202 Ill. App. 3d at 599, 560 N.E.2d at 456. Thus, we held that
the trial court may properly ask questions of a defendant at his
sentencing hearing, and "whether the defendant testifies or
exercises his right of allocution is irrelevant to the need for
the sentencing judge to be fully informed." Iseminger, 202 Ill.
App. 3d at 599-60, 560 N.E.2d at 456. This court in Iseminger
reversed and remanded for the trial court to address the
defendant's after-the-fact fifth amendment claim regarding his
refusal to answer the court's questions. In doing so this court
implicitly agreed with the views Presiding Justice Knecht ex-
pressed in his specially concurring opinion that "[i]f defendant
has a legitimate fifth amendment claim then the refusal to answer
should not be considered in any way." Iseminger, 202 Ill. App.
3d at 605, 560 N.E.2d at 460 (Knecht, P.J., specially concur-
ring). Other than approving the trial court's practice of
questioning defendants at sentencing hearings, Iseminger did not
address the matter at issue in the present case because here
defendant claims he refused to testify out of fear for his
family, not out of any fifth amendment concerns.
In Jones, the defendant was convicted of burglary, and
the trial court sentenced him to four years in prison, as recom-
mended by the State's Attorney. Jones, 142 Ill. App. 3d at 52-
53, 491 N.E.2d at 516-17. At the sentencing hearing, the defen-
dant asked for intensive probation supervision and blamed his
criminal record of burglary and theft on his drug habit. The
court then asked the defendant--repeatedly--from whom he obtained
the drugs, and defendant consistently evaded the question.
Jones, 142 Ill. App. 3d at 54, 491 N.E.2d at 517-18. Finally, in
response to the court's seventh inquiry regarding from whom he
obtained the drugs, defendant stated that he did not want to say
because if he informed the court and the conveyors of his drugs
found out, they would likely try to kill him. After hearing that
last response, the trial court stopped its questioning of defen-
dant. This court in Jones, after concluding that the trial
court's inquiry as to the source of defendant's drugs was "quite
legitimate," noted this sequence and observed as follows:
"[H]ad the defendant been candid with the
trial court and stated in answer to the first
question that he feared untimely death should
he name his source, the questioning would
have terminated immediately." Jones, 142
Ill. App. 3d at 55, 491 N.E.2d at 518.
Based upon this observation by the appellate court and the fortu-
itous circumstance of when the trial court concluded its inqui-
ries, defendant here draws the following conclusions: (1) if a
defendant has a legitimate reason for refusing to respond to a
trial court's inquiries, that refusal cannot be held against him
at sentencing; (2) a defendant's fear of retaliation for himself
or his family constitutes a legitimate reason for refusing to re-
spond; and (3) a trial court errs if it considers such a refusal
to respond as a factor in aggravation of sentence. We reject
defendant's conclusions as applied to this case.
Assuming arguendo that a defendant who legitimately
asserts his fifth amendment protections in response to a trial
court's inquiry at his sentencing hearing may not be punished for
doing so (but see United States v. Frazier, 971 F.2d 1076, 1087
(4th Cir. 1992) ("conditioning the acceptance of responsibility
reduction [in sentencing] on a defendant's waiver of his Fifth
Amendment privilege against self-incrimination does not penalize
the defendant for assertion of his right against self-incrimina-
tion")), the situation presented in this case falls far short of
that. Here, all we have is defendant's claim that the people who
provided him with $900,000 worth of drugs will be aggrieved if he
identifies them to the court, and his doing so might put his
family in danger. We are unimpressed. Defendant's solicitude
comes too late. Trafficking in narcotics is a dirty business,
particularly in quantities like those involved here. The people
who engage in this nefarious business are reprobates of one
stripe or another, and one who deals with them places himself and
his family at risk by doing so. We have no doubt that this
defendant--and others who elect to become involved in narcotics
trafficking--know all this before they choose to deal with such
people. Thus, to the extent that defendant in this case (or the
defendant in Jones) fears the consequences of identifying the
people who supplied them with the narcotics, any such consequenc-
es would be due to defendant's behavior, not to the court's
actions. To be blunt, if defendant wished not to place his
family in jeopardy, he should have stayed out of this dirty
business to begin with. Having elected to get involved in it, he
should not now come into court complaining about being put in the
tough position of either identifying his accomplices or having
the court view his refusal to do so as an aggravating factor at
his sentencing.
In so holding, we add that we do not know--and we need
not know--what measures, if any, were offered (or could have been
offered) by the State in an effort to provide protection for
defendant's family. We will not require the trial courts or the
State to negotiate with convicted defendants on this point in an
attempt to somehow assuage their concerns about safety, with the
result that a defendant would be required to respond to a trial
court's inquiries at his sentencing hearing only after the
defendant's concerns had been mollified (or the record showed
sufficient representations to have reasonably mollified them).
Instead, we hold that a defendant has no right to refuse to
answer the trial court's questions at the sentencing hearing
except--perhaps--when fifth amendment concerns are legitimately
implicated. As Presiding Justice Knecht correctly pointed out in
his specially concurring opinion in Iseminger, a defendant who
fails to respond to a trial court's inquiries at his sentencing
hearing can appropriately be made to suffer the consequences when
the trial court imposes sentence, because the court may properly
consider such refusal an aggravating factor. Iseminger, 202 Ill.
App. 3d at 605, 560 N.E.2d at 459 (Knecht, P.J., specially
concurring).
In People v. Bond, 205 Ill. App 3d 515, 563 N.E.2d 1107
(1990), the defendant was also convicted of unlawful possession
of a large quantity of cocaine (although rather less than defen-
dant in this case) and similarly complained on appeal about his
30-year prison sentence. In rejecting that argument and affirm-
ing his sentence, this court noted "the blatant violation of the
drug laws of this State as shown in this record," and we quoted
approvingly the following observation: "'If narcotics traffic is
a social and health hazard, then every narcotics dealer is a
danger to society.'" Bond, 205 Ill. App. 3d at 519, 563 N.E.2d
at 1109-10. We reaffirm the views expressed in Bond and cite
them to encourage trial courts statewide to take the action that
the trial court took in this case: require defendants who plead
guilty (or who have admittedly pursued the equivalent of a guilty
plea, as here) and are seeking a reduced sentence because of
their "acceptance of responsibility" to fully accept that respon-
sibility by revealing everything regarding their use of--or
trafficking in--narcotics. We reaffirm what we stated in
Iseminger, as follows:
"Even if the defendant's revealing [the
sources of his narcotics] proved insufficient
(as is likely to be the case) to assist law
enforcement authorities in any way other than
to provide them with information as to cur-
rent drug trafficking in a particular area,
the fact that defendant revealed the names of
the people providing him with drugs is likely
to strain his relations with those people. A
benefit of these strained relations may be
that defendant in the future might have dif-
ficulty obtaining drugs, thereby making it
easier for him to 'go straight.'" Iseminger,
202 Ill. App. 3d at 600-601, 560 N.E.2d at
457.
We note that these views are fully in accord with those
expressed by the United States Supreme Court, as follows:
"By declining to cooperate, [defendant] re-
jected an 'obligatio[n] of community life'
that should be recognized before rehabilita-
tion can begin. [Citation.] Moreover,
[defendant's] refusal to cooperate protected
his former partners in crime, thereby pre-
serving his ability to resume criminal activ-
ities upon release." Roberts v. United
States, 445 U.S. 552, 558, 63 L. Ed. 2d 622,
629, 100 S. Ct. 1358, 1363 (1980).
In Roberts, the Court concluded that the trial court properly
considered, as an aggravating factor in imposing sentence, the
defendant's refusal to cooperate with officials investigating a
criminal conspiracy in which he was a confessed participant.
Roberts, 445 U.S. at 561-62, 63 L. Ed. 2d at 631, 100 S. Ct. at
1365.
Although the dialogue at issue in the present case
occurred when defendant exercised his right of allocution, that
fact makes no difference to our holding. Thus, we reaffirm what
this court wrote in People v. Noble, 201 Ill. App. 3d 1056, 1059,
560 N.E.2d 35, 37 (1990), as follows:
"Defendant contends the [court's] questioning
after he declined his right of allocution
could only hurt him. We disagree. ***
[Defendant's election not to exercise his]
right of allocution does not give defendant a
right to deny the court access to accurate
information needed for sentencing."
In conclusion, we note that the same judge presided in
Noble, Iseminger, and the present case, and we commend the active
role he has taken in the sentencing hearings in all three cases.
For the reasons we have already stated--and which the United
States Supreme Court has stated even better and stronger--inqui-
ries of defendants at sentencing hearings can play both a con-
structive and an important role, not only regarding that
defendant's rehabilitation, but also in bringing other criminals
to account. We urge this commendable practice to the consider-
ation of other trial judges as they preside at sentencing hear-
ings.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
GREEN and McCULLOUGH, JJ., concurring.