People v. Orsby
Annotate this Case
No. 2--95--1286
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--CF--167
)
JESSIE J. ORSBY, JR., ) Honorable
) Henry C. Tonigan III,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, the defendant, Jessie J. Orsby, Jr.,
was found guilty of the offenses of unlawful possession of a
controlled substance, unlawful possession of a controlled substance
with intent to deliver, and armed violence. The trial court
imposed concurrent sentences of 20 years' imprisonment on the
offense of unlawful possession of a controlled substance with
intent to deliver and 10 years' imprisonment on the offense of
armed violence. No conviction was entered and no sentence was
imposed on the possession offense. The defendant appeals.
On appeal, the defendant raises the following issues: (1)
whether the stop and search of his vehicle violated his rights
under the fourth amendment; (2) whether the trial court's denial of
his motion for production of the informant and an in camera
inspection of certain police records pertaining to the defendant
and the informant violated his rights under the sixth amendment;
(3) whether the defendant was proved guilty of armed violence
beyond a reasonable doubt; (4) whether the strip search of the
defendant violated his rights under the fourth amendment and
article 1 of the Illinois Constitution; (5) whether the defendant
was denied the effective assistance of counsel; and (6) whether the
defendant's sentence is excessive. The State also raises an issue
as to whether the defendant was properly sentenced for the offense
of armed violence. We affirm the defendant's convictions but
vacate his sentence and remand for a new sentencing hearing.
On January 18, 1995, Trent Robinson and Morris Wade, officers
with the narcotics division of the North Chicago police
department's anti-crime unit, were on duty, driving an unmarked
police vehicle. It is not disputed that the defendant had been a
target of an ongoing narcotics investigation being conducted by
these officers. Officer Robinson had utilized a confidential
informant to execute controlled narcotics buys from the defendant.
One such buy had occurred earlier on January 18, 1995.
At approximately 7:15 p.m., Officers Robinson and Wade
recognized the defendant driving a green Chevrolet automobile. The
officers proceeded to follow the defendant's vehicle. After
following the defendant for 2« blocks, they observed the
defendant's vehicle swerve, fail to signal for a turn and that the
vehicle had only one headlight. The officers requested assistance
from Officer Darcy Brown for the purposes of effecting a traffic
stop. Officer Brown effected a traffic stop of the defendant's
vehicle. As Officer Brown approached the driver's side of the
vehicle, she observed the handle of a small caliber handgun located
next to the defendant's right thigh. Officer Brown confiscated the
weapon while Officer Robinson secured the defendant and placed him
under arrest. At the scene, the defendant's vehicle was searched
by a police dog trained in narcotics detection. The dog bit or
scratched at an area near the steering column. The officers seized
the gun and some ammunition but found no narcotics.
The defendant and the vehicle he was driving were transported
to the North Chicago police department. A further search of the
vehicle revealed cocaine in a plastic bag in an area behind the
dashboard to the right of the steering column. A pat-down search
of the defendant revealed cocaine. A further search of the
defendant's clothing revealed packaged cocaine in the left side of
the defendant's underwear.
According to the defendant, at the time of the stop, he told
the officers that he was taking his handgun to the practice range
for target shooting. He denied having possessed or sold narcotics.
The defendant further testified that he had been harassed by
Officer Robinson over a long period of time.
The defendant contends, first, that the stop of his vehicle
and his subsequent arrest were a pretext to search his vehicle and
his person and violated his rights against unreasonable search and
seizure pursuant to the fourth amendment of the United States
Constitution. The defendant argues that where the purpose of a
traffic stop is a pretext for a search or detention rather than a
traffic violation, such a search or detention is improper. People
v. Mendoza, 234 Ill. App. 3d 826, 837 (1992). He further argues
that evidence discovered and seized by means of a search subsequent
to a pretextual arrest is inadmissible, excluded in order to deter
police misconduct and prevent law enforcement officers from being
rewarded for their subterfuge. People v. Alvarez, 243 Ill. App. 3d
933, 937 (1993).
In Whren v. United States, 517 U.S. ___, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), the United States Supreme Court rejected the
argument that traffic offenders may challenge probable cause stops
generated by hidden reasons unrelated to enforcing the rules of the
road. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 101, 116 S. Ct. at
1777. Ulterior motives do not invalidate police conduct that is
justified on the basis of probable cause to believe that a
violation of the law has occurred. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 98, 116 S. Ct. at 1774; People v. Thompson, 283 Ill. App.
3d 797, 798 (1996). The constitutional reasonableness of a traffic
stop does not depend on the actual motivations of the police
officers involved. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 98,
116 S. Ct. at 1774; Thompson, 283 Ill. App. 3d at 798.
In the case before us, Officers Robinson and Wade observed
that defendant's vehicle swerved, failed to signal for a turn, and
had only one headlight. Minor violations to be sure but violations
sufficient enough to give the officers probable cause to believe
that traffic laws of this State were being violated. See Thompson,
283 Ill. App. 3d at 798.
A similar situation occurred in Thompson. In that case, the
police effected a stop of the Thompsons' van for a defective rear
brake light. As the reviewing court acknowledged, the stop was not
motivated by a desire to enforce the rules of the road but rather
by an anonymous tip that the van contained alcohol and drugs. On
the basis of the decision in Whren, the Thompson court held as
follows:
"Even though the traffic offense masked other reasons for the
stop unsupported by probable cause, ulterior motives cannot
make otherwise lawful conduct illegal. The pretextual nature
of the stop did not invalidate it. The police had probable
cause for the stop. The inquiry ends there." Thompson, 283
Ill. App. 3d at 798-99.
The defendant responds that this case differs from Whren in
that in Whren the officers stopped the vehicle in which Whren was
a passenger for a traffic violation and then discovered the
presence of contraband in plain view. Thus, in Whren, the sole
motivation for the stop was the traffic violation, whereas in the
present case the officers' motivation in stopping the defendant's
vehicle was the information they had received regarding the
defendant's drug-related activities. However, the reasonableness
of the traffic stop does not depend on the actual motivations of
the individual officers involved. Whren, 517 U.S. ___, 135 L. Ed
2d 89, 116 S. Ct. 1769.
Since Officers Robinson and Wade had probable cause to effect
a traffic stop of the defendant's vehicle, the defendant's rights
under the fourth amendment were not violated.
Next, the defendant contends that the trial court erred in
denying his motion for production of the informant and for an in
camera inspection of the police records of the investigation of the
defendant and prior transactions involving the confidential
informant. The defendant argues that the denial of the production
request impaired his ability to present a defense. Specifically,
the defendant argues that production of the confidential informant
would have given the defendant an opportunity to impeach the
officers' testimony that there was an independent basis for
stopping and searching the defendant's vehicle, as well as showing
the extreme bias and prejudice of the officers against the
defendant. The defendant also argues that such information would
have enabled him to rebut testimony as to previous controlled drug
buys involving him.
It is well settled that strong public policy reasons favoring
the nondisclosure of an informant must be balanced against a
defendant's need for the disclosure in order to prepare his defense
or where the disclosure is essential for a fair determination of a
cause. People v. McBee, 228 Ill. App. 3d 769, 773 (1992).
However, if the issue is one of probable cause, and guilt or
innocence is not at stake, the nondisclosure of an informer's
identity is not error. McBee, 228 Ill. App. 3d at 773. Whatever
the circumstances, the defendant must show a need for the
disclosure. McBee, 228 Ill. App. 3d at 773.
We have previously held that, so long as the officers had
probable cause to effect a stop of the defendant's vehicle, an
ulterior motive on their parts does not effect the validity of the
stop of the vehicle. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 98,
116 S. Ct at 1774; Thompson, 283 Ill. App. 3d at 798-99. Thus,
there would be no basis for any impeachment of the officers on that
point. Moreover, the jury was made aware that the officers might
have been biased or prejudiced against the defendant based upon the
officers' own testimony that there was an ongoing investigation of
possible drug dealing by the defendant. It was also clear that the
officers were seeking an opportunity to search the defendant and
his vehicle.
Finally, the defendant does not offer any explanation as to
how production of the police records or the confidential informant
would allow him to rebut the testimony about the prior drug
transactions involving the defendant. Even if the police records
or the confidential informant would somehow cast doubt on the
previous drug transactions involving the defendant, they in no way
affect the validity of the stop which was based upon probable
cause, regardless of additional motives in the minds of the
officers.
As the defendant has failed to show a need for the disclosure
of the informant or the police records of any investigation of the
defendant, the trial court did not err in denying the defendant's
motion for production of the police records and the confidential
informant.
Next, the defendant contends that he was not proved guilty of
armed violence beyond a reasonable doubt.
"A person commits armed violence when, while armed with a
dangerous weapon, he commits any felony defined by Illinois Law."
720 ILCS 5/33A--2 (West 1994). "A person is considered armed with
a dangerous weapon *** when he or she carries on or about his or
her person or is otherwise armed with a Category I, Category II, or
Category III weapon." 720 ILCS 5/33A--1(a) (West 1993). A
handgun, such as the one seized from the defendant's vehicle, is a
"Category I weapon." 720 ILCS 5/33A--1(b) (West 1994).
The defendant argues that he could not be found guilty of
armed violence beyond a reasonable doubt because the weapon was
unloaded and there was no evidence that he attempted to access or
use the weapon.
The armed violence statute was enacted in 1967 as a response
to the growing incidence of violent crime. People v. Condon, 148 Ill. 2d 96, 109 (1992); People v. Alejos, 97 Ill. 2d 502, 507-08
(1983). The intended purpose of the armed violence statute is to
deter felons from using dangerous weapons so as to avoid the deadly
consequences which might result if the felony victim resists.
Condon, 148 Ill. 2d at 109. For the purpose of the statute to be
served, it is necessary that the defendant have some immediate
access to or timely control over the weapon. Condon, 148 Ill. 2d
at 110. Thus, where the defendant was found in the kitchen where
there were no guns, the fact that guns were located in other parts
of the house did not support a conviction of armed violence since
the defendant did not have immediate access to the guns. See
Condon, 148 Ill. 2d at 110.
In this case, Officer Brown observed the handgun located next
to the defendant's thigh. Thus, the defendant here had immediate
access to the weapon. However, defendant suggests that an unloaded
weapon does not grant the immediate access or timely control
envisioned by the legislature when enacting the armed violence
statute. This precise question has never previously been
addressed. However, prior cases provide a basis for resolving this
issue.
We observe, first, that the statute makes no requirement that,
for a handgun to qualify as a dangerous weapon, it must be loaded.
See 720 ILCS 5/33A--1 (West 1994). However, the defendant argues
that the mere physical presence of a weapon is not within the
meaning of the armed violence statute. See People v. Bond, 178
Ill. App. 3d 1020, 1023 (1989). The vast majority of cases
interpreting this statute involve either loaded weapons or a
combination of loaded and unloaded weapons. See Condon, 148 Ill. 2d 96; Alejos, 97 Ill. 2d 502; People v. Hernandez, 229 Ill. App.
3d 546 (1992); Bond, 178 Ill. App. 3d 1020.
Although not directly on point, People v. King, 155 Ill. App.
3d 363 (1987), does provide some guidance. In that case, the
police were admitted by King to her apartment for purposes of
executing a search warrant. Upon entering a bedroom, the police
discovered contraband and a gun on a coffee table three feet from
the bed. The gun was unloaded, and no ammunition was found. King
was convicted of armed violence based upon the presence of the
weapon. On appeal, King argued that a jury instruction that stated
that the mere presence of the pistol was sufficient to find that
she was armed with a dangerous weapon misstated the law and should
not have been given. King, 155 Ill. App. 3d at 368.
The reviewing court reversed King's conviction and ordered a
new trial. The court agreed with King that the legislature did not
intend that a defendant be convicted of armed violence simply
because a weapon was located anywhere in the home. The court
further explained as follows:
"Presence of the weapon, for purposes of the armed violence
statute, denotes not only physical existence of the weapon,
but characterizes the relationship between the weapon and the
person. Although the statute does not require the use or even
the threatened use of the weapon, it does require that the
person carry the weapon on or about his person or be otherwise
armed. This requirement emphasizes the quality of the
relationship between the person and the weapon or the
potential hazard which exists when a person is armed while
committing a felony. The mere physical existence of the
weapon without knowledge or control, including immediate
access to the weapon, is not within the meaning of the armed
violence statute." King, 155 Ill. App. 3d at 369.
We note that the decision in King did not turn on whether or not
the weapon was loaded.
As we have previously observed, the legislature could have but
did not require that a weapon, such as a handgun, be loaded in
order to qualify as a dangerous weapon. It is not our function to
declare that the legislature did not mean what the plain language
of the statute imports. People v. Haron, 85 Ill. 2d 261, 268
(1981). In the present case, the handgun was located next to the
defendant's thigh, giving him immediate access and control over the
weapon. In addition, Officer Brown testified that the handgun
recovered from the defendant was a Raven 25-caliber and that in the
defendant's coat pocket was a clip with six 25-caliber rounds in
it. Thus, the defendant had immediate access to an unloaded weapon
and immediate access as well to ammunition capable of discharge
from the weapon in question. Together, these two facts establish
that the defendant had immediate access to a weapon as contemplated
by the legislature in enacting the armed violence statute.
Therefore, we conclude that the defendant was found guilty of armed
violence beyond a reasonable doubt.
Next, the defendant contends that he was subjected to a strip
search that was not performed according to Illinois law and,
therefore, his rights were violated under the both the United
States and Illinois Constitutions.
The State argues that the defendant failed to raise this
argument in his post-trial motion, and, therefore, the argument is
waived. However, the motion for a new trial does raise an issue as
to police procedures followed in the "strip search" of the
defendant at the police station. Further, during the hearing on
the post-trial motions, defense counsel advised the trial court
that the defendant wished to argue pro se the appropriateness of or
unlawfulness of the strip search in this case. We therefore will
not consider the issue waived.
Illinois law defines a "strip search" in part as "having an
arrested person remove or arrange some or all of his or her
clothing so as to permit a visual inspection of the ***
undergarments of such person." 725 ILCS 5/103--1(d) (West 1994).
The statute further prescribes the proper procedure to be followed
when a strip search is performed as follows:
"(f) Every peace officer or employee of a police
department conducting a strip search shall:
(1) Obtain the written permission of the police
commander or an agent thereof designated for the purposes
of authorizing a strip search in accordance with this
Section.
(2) Prepare a report of the strip search. This
report shall include the written authorization required
by paragraph (1) of this subsection (f), the name of the
person subjected to the search, the names of the persons
conducting the search, and the time, date and place of
the search. A copy of the report shall be provided to
the person subject to the search." 725 5/130 (f)(1),
(f)(2) (West 1994).
Strip searches are not per se illegal or unconstitutional.
See People v. Seymour, 84 Ill. 2d 24, 39-40 (1981); United States
v. Klein, 522 F.2d 296, 300-01 (1st Cir. 1975). The defendant
alleges only that the strip search in this case was not performed
according to the above-stated statutory provisions. While we do
agree that the defendant here was subjected to a strip search, we
agree with the State that the defendant has failed to establish in
what way the strip search of the defendant failed to comply with
Illinois law. At the hearing for the defendant's post-trial
motion, defense counsel enumerated several violations indicating
that the record reflected these violations. In his brief, the
defendant cites to several places in the record in support of these
alleged violations. However, a review of these cited portions of
the record does not support the defendant's argument that the strip
search in this case was improperly conducted.
We, therefore, conclude that the defendant has waived any
issue as to the validity of the strip search since he has failed to
specify how the statute was violated in this case. See 155 Ill. 2d
R. 341(e).
Next, the defendant contends that he was denied the effective
assistance of counsel. The defendant argues that defense counsel
was ineffective in that he failed to challenge the
constitutionality and the conformity to Illinois law of the strip
search performed on the defendant.
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel's representation fell below an
objective standard of reasonableness, measured by reference to
prevailing professional norms and that the substandard
representation so prejudiced the defendant as to deny him a fair
trial. People v. Palmer, 162 Ill. 2d 465, 475 (1994). A
defendant's failure to make the requisite showing of either
deficient performance or sufficient prejudice defeats an
ineffectiveness claim. Palmer, 162 Ill. 2d 465. The effective
assistance of counsel refers to competent, not perfect,
representation, and there is a strong presumption that counsel's
performance fell within a wide range of reasonable professional
assistance. Palmer, 162 Ill. 2d at 476.
" '[A] court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. *** If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed.' " People v. Albanese, 104 Ill. 2d 504,
527 (1984), quoting Strickland v. Washington, 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069-70 (1984).
To demonstrate prejudice, a defendant must show a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceedings would have been different. People v.
Owens, 129 Ill. 2d 303, 309 (1989); Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Even had defense counsel challenged the strip search of the
defendant and successfully moved to suppress the evidence of the
cocaine found as a result of that search, the result here would not
have been different. Apart from the cocaine found during the strip
search of the defendant, the police seized 1.61 grams of a
substance containing cocaine from the defendant during an
unchallenged pat-down search at the police station and 25.38 grams
of a substance containing cocaine from the defendant's vehicle.
Even without the substance containing cocaine seized from the
defendant during the strip search, there was still sufficient
evidence of the presence of cocaine to support the defendant's
convictions.
Thus, the defendant has failed to establish that "but for
trial counsel's errors," the result reached by the jury in this
cause would have been different. We conclude therefore that the
defendant was not denied the effective assistance of counsel.
Finally, the defendant contends that his concurrent sentences
of 20 years' imprisonment for the offense of unlawful possession of
a controlled substance with intent to deliver and 10 years'
imprisonment for the offense of armed violence are excessive. The
defendant argues that, in imposing the above sentences, the trial
court focused only on the deterrent factor and never considered the
defendant's rehabilitative potential. The defendant points to his
age, 22 years, his relatively minor previous criminal history, the
success he achieved as a high school athlete, his pursuit of higher
education, and his good relationship with his family, all of which
he argues were ignored by the trial court. We disagree.
In imposing the sentences in this case, the trial court noted
that the defendant's prior record of criminal offenses was
relatively minor compared with the instant offenses. It further
noted that the defendant had stated that he had no drug or alcohol
abuse problem that might have accounted for the defendant's
commission of these crimes. The trial court then stated as
follows:
"It is surprising on the plus side for the defendant he
should have everything going for him in the world in terms of
being a good student and an excellent athlete, continuing on
and finding his way through college. I've considered the age
of the defendant, his support system at home, considered that
in determining his likelihood for committing these offenses in
the future and his likelihood for rehabilitation in the
future. Certainly whatever sentence the Court impose [sic]
must be a significant sentence. ***
This is not a standard story of someone who's down and
out and has nothing going for him or her. You are an
intelligent, astute person before the court. And I've
considered that in terms of the likelihood to learn from what
in fact will be a severe lesson for him to serve. To impose
a sentence at the minimum range, given the background and the
prior police contacts, would not be appropriate to merely
impose a 15-year sentence. At the same time I don't believe
that the upper range argued by the State is appropriate or
necessary in this case."
Thereupon, the trial court imposed the sentences indicated above.
A trial court's sentencing decisions are entitled to great
deference and weight. People v. Streit, 142 Ill. 2d 13, 18-19
(1991). A trial judge is in a far better position than an
appellate court to fashion an appropriate sentence because such
judge can make a reasoned judgment based upon firsthand
consideration of such factors as the defendant's credibility,
demeanor, general moral character, mentality, social environment,
habits, and age. Streit, 142 Ill. 2d at 19.
The discretion of a trial court in making sentencing decisions
is not totally unbridled. The standard of review is whether a
trial court has abused its discretion in imposing a sentence; if it
has, the sentence may be altered upon review. Streit, 142 Ill. 2d
at 19; 134 Ill. 2d R. 615(b)(4). When reviewing courts examine the
propriety of sentences imposed by trial courts, they should proceed
with great caution and care. Streit, 142 Ill. 2d at 19. A
reviewing court must not substitute its judgment for that of a
sentencing court because it would have weighed the factors
differently. 142 Ill. 2d at 19.
The remarks of the trial court in this case indicated that,
contrary to the defendant's argument, it did contemplate the
defendant's rehabilitation potential in fashioning the sentences in
this case. Therefore, we will not disturb those sentences on that
basis.
However, we observe that, during the sentencing hearing in
this case, both the parties and the trial court referred to a
minimum sentence of 15 years' imprisonment. However, it is not
entirely clear from the record to which offense the parties
believed the minimum 15-year sentence applied. Further, the State
now argues that the trial court erred in imposing a 10-year
sentence for the offense of armed violence since a conviction of
armed violence while possessing a Category I weapon, in this case
a handgun, carries a minimum sentence of 15 years' imprisonment.
720 ILCS 5/33A--3(a) (West 1994).
We agree with the State that the defendant was improperly
sentenced for the offense of armed violence. The State requests
that we correct the sentencing order to reflect a sentence of 15
years' imprisonment on the charge of armed violence. See People v.
Arna, 168 Ill. 2d 107, 113 (1995) (a sentence that does not conform
to a statutory requirement is void, and the appellate court has the
authority to correct it at any time); see also People v. Richmond,
278 Ill. App. 3d 1042, 1048 (1996).
We decline merely to correct the sentencing order in this case
because it appears that the trial court may have been under the
impression that the minimum sentence of imprisonment for possession
of not less than 15 nor more than 100 grams of a substance
containing cocaine with intent to deliver was 15 years. The State
acknowledges in its brief that that offense carries a sentencing
range of between 6 and 30 years' imprisonment. 720 ILCS
570/401(a)(2)(A) (West 1994). While the State argues that the 20-
year sentence imposed was within the sentencing range, we are not
convinced that the 20-year sentence imposed was not the result of
the trial court's misapprehension that the minimum for that offense
was 15 years' imprisonment.
Clearly the trial court intended to impose a sentence of more
than the minimum. But, assuming it believed that the minimum was
15 years' imprisonment, the 20-year sentence it imposed was much
closer to what it may have believed was the minimum sentence than
it would be to the actual minimum of 6 years' imprisonment.
Although it is not quite clear from the record which offense the
parties and the trial court were referring to as having a minimum
sentence of 15 years, it seems unlikely that the trial court was
referring to the armed violence offense as it then imposed, albeit
erroneously, a 10-year sentence of imprisonment for that offense.
We therefore affirm the defendant's convictions of armed
violence and possession of a controlled substance with intent to
deliver. However, we vacate the sentences imposed in this case and
remand for a new sentencing hearing. At this sentencing hearing,
it would be helpful for all concerned if the appropriate statutory
sentencing ranges, including any applicable enhancement or extended
term provisions, would be set forth for each offense for which the
defendant is to be sentenced.
The defendant's convictions are affirmed; his sentences are
vacated and the cause remanded for a new sentencing hearing in
accordance with this court's instructions.
Affirmed in part and vacated in part; cause remanded.
McLAREN, P.J., and GEIGER, J., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 95--CF--167
)
JESSIE J. ORSBY, JR., ) Honorable
) Henry C. Tonigan III,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, the defendant, Jessie J. Orsby, Jr.,
was found guilty of the offenses of unlawful possession of a
controlled substance, unlawful possession of a controlled substance
with intent to deliver, and armed violence. The trial court
imposed concurrent sentences of 20 years' imprisonment on the
offense of unlawful possession of a controlled substance with
intent to deliver and 10 years' imprisonment on the offense of
armed violence. No conviction was entered and no sentence was
imposed on the possession offense. The defendant appeals.
On appeal, the defendant raises the following issues: (1)
whether the stop and search of his vehicle violated his rights
under the fourth amendment; (2) whether the trial court's denial of
his motion for production of the informant and an in camera
inspection of certain police records pertaining to the defendant
and the informant violated his rights under the sixth amendment;
(3) whether the defendant was proved guilty of armed violence
beyond a reasonable doubt; (4) whether the strip search of the
defendant violated his rights under the fourth amendment and
article 1 of the Illinois Constitution; (5) whether the defendant
was denied the effective assistance of counsel; and (6) whether the
defendant's sentence is excessive. The State also raises an issue
as to whether the defendant was properly sentenced for the offense
of armed violence. We affirm the defendant's convictions but
vacate his sentence and remand for a new sentencing hearing.
On January 18, 1995, Trent Robinson and Morris Wade, officers
with the narcotics division of the North Chicago police
department's anti-crime unit, were on duty, driving an unmarked
police vehicle. It is not disputed that the defendant had been a
target of an ongoing narcotics investigation being conducted by
these officers. Officer Robinson had utilized a confidential
informant to execute controlled narcotics buys from the defendant.
One such buy had occurred earlier on January 18, 1995.
At approximately 7:15 p.m., Officers Robinson and Wade
recognized the defendant driving a green Chevrolet automobile. The
officers proceeded to follow the defendant's vehicle. After
following the defendant for 2« blocks, they observed the
defendant's vehicle swerve, fail to signal for a turn and that the
vehicle had only one headlight. The officers requested assistance
from Officer Darcy Brown for the purposes of effecting a traffic
stop. Officer Brown effected a traffic stop of the defendant's
vehicle. As Officer Brown approached the driver's side of the
vehicle, she observed the handle of a small caliber handgun located
next to the defendant's right thigh. Officer Brown confiscated the
weapon while Officer Robinson secured the defendant and placed him
under arrest. At the scene, the defendant's vehicle was searched
by a police dog trained in narcotics detection. The dog bit or
scratched at an area near the steering column. The officers seized
the gun and some ammunition but found no narcotics.
The defendant and the vehicle he was driving were transported
to the North Chicago police department. A further search of the
vehicle revealed cocaine in a plastic bag in an area behind the
dashboard to the right of the steering column. A pat-down search
of the defendant revealed cocaine. A further search of the
defendant's clothing revealed packaged cocaine in the left side of
the defendant's underwear.
According to the defendant, at the time of the stop, he told
the officers that he was taking his handgun to the practice range
for target shooting. He denied having possessed or sold narcotics.
The defendant further testified that he had been harassed by
Officer Robinson over a long period of time.
The defendant contends, first, that the stop of his vehicle
and his subsequent arrest were a pretext to search his vehicle and
his person and violated his rights against unreasonable search and
seizure pursuant to the fourth amendment of the United States
Constitution. The defendant argues that where the purpose of a
traffic stop is a pretext for a search or detention rather than a
traffic violation, such a search or detention is improper. People
v. Mendoza, 234 Ill. App. 3d 826, 837 (1992). He further argues
that evidence discovered and seized by means of a search subsequent
to a pretextual arrest is inadmissible, excluded in order to deter
police misconduct and prevent law enforcement officers from being
rewarded for their subterfuge. People v. Alvarez, 243 Ill. App. 3d
933, 937 (1993).
In Whren v. United States, 517 U.S. ___, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), the United States Supreme Court rejected the
argument that traffic offenders may challenge probable cause stops
generated by hidden reasons unrelated to enforcing the rules of the
road. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 101, 116 S. Ct. at
1777. Ulterior motives do not invalidate police conduct that is
justified on the basis of probable cause to believe that a
violation of the law has occurred. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 98, 116 S. Ct. at 1774; People v. Thompson, 283 Ill. App.
3d 797, 798 (1996). The constitutional reasonableness of a traffic
stop does not depend on the actual motivations of the police
officers involved. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 98,
116 S. Ct. at 1774; Thompson, 283 Ill. App. 3d at 798.
In the case before us, Officers Robinson and Wade observed
that defendant's vehicle swerved, failed to signal for a turn, and
had only one headlight. Minor violations to be sure but violations
sufficient enough to give the officers probable cause to believe
that traffic laws of this State were being violated. See Thompson,
283 Ill. App. 3d at 798.
A similar situation occurred in Thompson. In that case, the
police effected a stop of the Thompsons' van for a defective rear
brake light. As the reviewing court acknowledged, the stop was not
motivated by a desire to enforce the rules of the road but rather
by an anonymous tip that the van contained alcohol and drugs. On
the basis of the decision in Whren, the Thompson court held as
follows:
"Even though the traffic offense masked other reasons for the
stop unsupported by probable cause, ulterior motives cannot
make otherwise lawful conduct illegal. The pretextual nature
of the stop did not invalidate it. The police had probable
cause for the stop. The inquiry ends there." Thompson, 283
Ill. App. 3d at 798-99.
The defendant responds that this case differs from Whren in
that in Whren the officers stopped the vehicle in which Whren was
a passenger for a traffic violation and then discovered the
presence of contraband in plain view. Thus, in Whren, the sole
motivation for the stop was the traffic violation, whereas in the
present case the officers' motivation in stopping the defendant's
vehicle was the information they had received regarding the
defendant's drug-related activities. However, the reasonableness
of the traffic stop does not depend on the actual motivations of
the individual officers involved. Whren, 517 U.S. ___, 135 L. Ed
2d 89, 116 S. Ct. 1769.
Since Officers Robinson and Wade had probable cause to effect
a traffic stop of the defendant's vehicle, the defendant's rights
under the fourth amendment were not violated.
Next, the defendant contends that the trial court erred in
denying his motion for production of the informant and for an in
camera inspection of the police records of the investigation of the
defendant and prior transactions involving the confidential
informant. The defendant argues that the denial of the production
request impaired his ability to present a defense. Specifically,
the defendant argues that production of the confidential informant
would have given the defendant an opportunity to impeach the
officers' testimony that there was an independent basis for
stopping and searching the defendant's vehicle, as well as showing
the extreme bias and prejudice of the officers against the
defendant. The defendant also argues that such information would
have enabled him to rebut testimony as to previous controlled drug
buys involving him.
It is well settled that strong public policy reasons favoring
the nondisclosure of an informant must be balanced against a
defendant's need for the disclosure in order to prepare his defense
or where the disclosure is essential for a fair determination of a
cause. People v. McBee, 228 Ill. App. 3d 769, 773 (1992).
However, if the issue is one of probable cause, and guilt or
innocence is not at stake, the nondisclosure of an informer's
identity is not error. McBee, 228 Ill. App. 3d at 773. Whatever
the circumstances, the defendant must show a need for the
disclosure. McBee, 228 Ill. App. 3d at 773.
We have previously held that, so long as the officers had
probable cause to effect a stop of the defendant's vehicle, an
ulterior motive on their parts does not effect the validity of the
stop of the vehicle. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 98,
116 S. Ct at 1774; Thompson, 283 Ill. App. 3d at 798-99. Thus,
there would be no basis for any impeachment of the officers on that
point. Moreover, the jury was made aware that the officers might
have been biased or prejudiced against the defendant based upon the
officers' own testimony that there was an ongoing investigation of
possible drug dealing by the defendant. It was also clear that the
officers were seeking an opportunity to search the defendant and
his vehicle.
Finally, the defendant does not offer any explanation as to
how production of the police records or the confidential informant
would allow him to rebut the testimony about the prior drug
transactions involving the defendant. Even if the police records
or the confidential informant would somehow cast doubt on the
previous drug transactions involving the defendant, they in no way
affect the validity of the stop which was based upon probable
cause, regardless of additional motives in the minds of the
officers.
As the defendant has failed to show a need for the disclosure
of the informant or the police records of any investigation of the
defendant, the trial court did not err in denying the defendant's
motion for production of the police records and the confidential
informant.
Next, the defendant contends that he was not proved guilty of
armed violence beyond a reasonable doubt.
"A person commits armed violence when, while armed with a
dangerous weapon, he commits any felony defined by Illinois Law."
720 ILCS 5/33A--2 (West 1994). "A person is considered armed with
a dangerous weapon *** when he or she carries on or about his or
her person or is otherwise armed with a Category I, Category II, or
Category III weapon." 720 ILCS 5/33A--1(a) (West 1993). A
handgun, such as the one seized from the defendant's vehicle, is a
"Category I weapon." 720 ILCS 5/33A--1(b) (West 1994).
The defendant argues that he could not be found guilty of
armed violence beyond a reasonable doubt because the weapon was
unloaded and there was no evidence that he attempted to access or
use the weapon.
The armed violence statute was enacted in 1967 as a response
to the growing incidence of violent crime. People v. Condon, 148 Ill. 2d 96, 109 (1992); People v. Alejos, 97 Ill. 2d 502, 507-08
(1983). The intended purpose of the armed violence statute is to
deter felons from using dangerous weapons so as to avoid the deadly
consequences which might result if the felony victim resists.
Condon, 148 Ill. 2d at 109. For the purpose of the statute to be
served, it is necessary that the defendant have some immediate
access to or timely control over the weapon. Condon, 148 Ill. 2d
at 110. Thus, where the defendant was found in the kitchen where
there were no guns, the fact that guns were located in other parts
of the house did not support a conviction of armed violence since
the defendant did not have immediate access to the guns. See
Condon, 148 Ill. 2d at 110.
In this case, Officer Brown observed the handgun located next
to the defendant's thigh. Thus, the defendant here had immediate
access to the weapon. However, defendant suggests that an unloaded
weapon does not grant the immediate access or timely control
envisioned by the legislature when enacting the armed violence
statute. This precise question has never previously been
addressed. However, prior cases provide a basis for resolving this
issue.
We observe, first, that the statute makes no requirement that,
for a handgun to qualify as a dangerous weapon, it must be loaded.
See 720 ILCS 5/33A--1 (West 1994). However, the defendant argues
that the mere physical presence of a weapon is not within the
meaning of the armed violence statute. See People v. Bond, 178
Ill. App. 3d 1020, 1023 (1989). The vast majority of cases
interpreting this statute involve either loaded weapons or a
combination of loaded and unloaded weapons. See Condon, 148 Ill. 2d 96; Alejos, 97 Ill. 2d 502; People v. Hernandez, 229 Ill. App.
3d 546 (1992); Bond, 178 Ill. App. 3d 1020.
Although not directly on point, People v. King, 155 Ill. App.
3d 363 (1987), does provide some guidance. In that case, the
police were admitted by King to her apartment for purposes of
executing a search warrant. Upon entering a bedroom, the police
discovered contraband and a gun on a coffee table three feet from
the bed. The gun was unloaded, and no ammunition was found. King
was convicted of armed violence based upon the presence of the
weapon. On appeal, King argued that a jury instruction that stated
that the mere presence of the pistol was sufficient to find that
she was armed with a dangerous weapon misstated the law and should
not have been given. King, 155 Ill. App. 3d at 368.
The reviewing court reversed King's conviction and ordered a
new trial. The court agreed with King that the legislature did not
intend that a defendant be convicted of armed violence simply
because a weapon was located anywhere in the home. The court
further explained as follows:
"Presence of the weapon, for purposes of the armed violence
statute, denotes not only physical existence of the weapon,
but characterizes the relationship between the weapon and the
person. Although the statute does not require the use or even
the threatened use of the weapon, it does require that the
person carry the weapon on or about his person or be otherwise
armed. This requirement emphasizes the quality of the
relationship between the person and the weapon or the
potential hazard which exists when a person is armed while
committing a felony. The mere physical existence of the
weapon without knowledge or control, including immediate
access to the weapon, is not within the meaning of the armed
violence statute." King, 155 Ill. App. 3d at 369.
We note that the decision in King did not turn on whether or not
the weapon was loaded.
As we have previously observed, the legislature could have but
did not require that a weapon, such as a handgun, be loaded in
order to qualify as a dangerous weapon. It is not our function to
declare that the legislature did not mean what the plain language
of the statute imports. People v. Haron, 85 Ill. 2d 261, 268
(1981). In the present case, the handgun was located next to the
defendant's thigh, giving him immediate access and control over the
weapon. In addition, Officer Brown testified that the handgun
recovered from the defendant was a Raven 25-caliber and that in the
defendant's coat pocket was a clip with six 25-caliber rounds in
it. Thus, the defendant had immediate access to an unloaded weapon
and immediate access as well to ammunition capable of discharge
from the weapon in question. Together, these two facts establish
that the defendant had immediate access to a weapon as contemplated
by the legislature in enacting the armed violence statute.
Therefore, we conclude that the defendant was found guilty of armed
violence beyond a reasonable doubt.
Next, the defendant contends that he was subjected to a strip
search that was not performed according to Illinois law and,
therefore, his rights were violated under the both the United
States and Illinois Constitutions.
The State argues that the defendant failed to raise this
argument in his post-trial motion, and, therefore, the argument is
waived. However, the motion for a new trial does raise an issue as
to police procedures followed in the "strip search" of the
defendant at the police station. Further, during the hearing on
the post-trial motions, defense counsel advised the trial court
that the defendant wished to argue pro se the appropriateness of or
unlawfulness of the strip search in this case. We therefore will
not consider the issue waived.
Illinois law defines a "strip search" in part as "having an
arrested person remove or arrange some or all of his or her
clothing so as to permit a visual inspection of the ***
undergarments of such person." 725 ILCS 5/103--1(d) (West 1994).
The statute further prescribes the proper procedure to be followed
when a strip search is performed as follows:
"(f) Every peace officer or employee of a police
department conducting a strip search shall:
(1) Obtain the written permission of the police
commander or an agent thereof designated for the purposes
of authorizing a strip search in accordance with this
Section.
(2) Prepare a report of the strip search. This
report shall include the written authorization required
by paragraph (1) of this subsection (f), the name of the
person subjected to the search, the names of the persons
conducting the search, and the time, date and place of
the search. A copy of the report shall be provided to
the person subject to the search." 725 5/130 (f)(1),
(f)(2) (West 1994).
Strip searches are not per se illegal or unconstitutional.
See People v. Seymour, 84 Ill. 2d 24, 39-40 (1981); United States
v. Klein, 522 F.2d 296, 300-01 (1st Cir. 1975). The defendant
alleges only that the strip search in this case was not performed
according to the above-stated statutory provisions. While we do
agree that the defendant here was subjected to a strip search, we
agree with the State that the defendant has failed to establish in
what way the strip search of the defendant failed to comply with
Illinois law. At the hearing for the defendant's post-trial
motion, defense counsel enumerated several violations indicating
that the record reflected these violations. In his brief, the
defendant cites to several places in the record in support of these
alleged violations. However, a review of these cited portions of
the record does not support the defendant's argument that the strip
search in this case was improperly conducted.
We, therefore, conclude that the defendant has waived any
issue as to the validity of the strip search since he has failed to
specify how the statute was violated in this case. See 155 Ill. 2d
R. 341(e).
Next, the defendant contends that he was denied the effective
assistance of counsel. The defendant argues that defense counsel
was ineffective in that he failed to challenge the
constitutionality and the conformity to Illinois law of the strip
search performed on the defendant.
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel's representation fell below an
objective standard of reasonableness, measured by reference to
prevailing professional norms and that the substandard
representation so prejudiced the defendant as to deny him a fair
trial. People v. Palmer, 162 Ill. 2d 465, 475 (1994). A
defendant's failure to make the requisite showing of either
deficient performance or sufficient prejudice defeats an
ineffectiveness claim. Palmer, 162 Ill. 2d 465. The effective
assistance of counsel refers to competent, not perfect,
representation, and there is a strong presumption that counsel's
performance fell within a wide range of reasonable professional
assistance. Palmer, 162 Ill. 2d at 476.
" '[A] court need not determine whether counsel's performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. *** If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed.' " People v. Albanese, 104 Ill. 2d 504,
527 (1984), quoting Strickland v. Washington, 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069-70 (1984).
To demonstrate prejudice, a defendant must show a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceedings would have been different. People v.
Owens, 129 Ill. 2d 303, 309 (1989); Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Even had defense counsel challenged the strip search of the
defendant and successfully moved to suppress the evidence of the
cocaine found as a result of that search, the result here would not
have been different. Apart from the cocaine found during the strip
search of the defendant, the police seized 1.61 grams of a
substance containing cocaine from the defendant during an
unchallenged pat-down search at the police station and 25.38 grams
of a substance containing cocaine from the defendant's vehicle.
Even without the substance containing cocaine seized from the
defendant during the strip search, there was still sufficient
evidence of the presence of cocaine to support the defendant's
convictions.
Thus, the defendant has failed to establish that "but for
trial counsel's errors," the result reached by the jury in this
cause would have been different. We conclude therefore that the
defendant was not denied the effective assistance of counsel.
Finally, the defendant contends that his concurrent sentences
of 20 years' imprisonment for the offense of unlawful possession of
a controlled substance with intent to deliver and 10 years'
imprisonment for the offense of armed violence are excessive. The
defendant argues that, in imposing the above sentences, the trial
court focused only on the deterrent factor and never considered the
defendant's rehabilitative potential. The defendant points to his
age, 22 years, his relatively minor previous criminal history, the
success he achieved as a high school athlete, his pursuit of higher
education, and his good relationship with his family, all of which
he argues were ignored by the trial court. We disagree.
In imposing the sentences in this case, the trial court noted
that the defendant's prior record of criminal offenses was
relatively minor compared with the instant offenses. It further
noted that the defendant had stated that he had no drug or alcohol
abuse problem that might have accounted for the defendant's
commission of these crimes. The trial court then stated as
follows:
"It is surprising on the plus side for the defendant he
should have everything going for him in the world in terms of
being a good student and an excellent athlete, continuing on
and finding his way through college. I've considered the age
of the defendant, his support system at home, considered that
in determining his likelihood for committing these offenses in
the future and his likelihood for rehabilitation in the
future. Certainly whatever sentence the Court impose [sic]
must be a significant sentence. ***
This is not a standard story of someone who's down and
out and has nothing going for him or her. You are an
intelligent, astute person before the court. And I've
considered that in terms of the likelihood to learn from what
in fact will be a severe lesson for him to serve. To impose
a sentence at the minimum range, given the background and the
prior police contacts, would not be appropriate to merely
impose a 15-year sentence. At the same time I don't believe
that the upper range argued by the State is appropriate or
necessary in this case."
Thereupon, the trial court imposed the sentences indicated above.
A trial court's sentencing decisions are entitled to great
deference and weight. People v. Streit, 142 Ill. 2d 13, 18-19
(1991). A trial judge is in a far better position than an
appellate court to fashion an appropriate sentence because such
judge can make a reasoned judgment based upon firsthand
consideration of such factors as the defendant's credibility,
demeanor, general moral character, mentality, social environment,
habits, and age. Streit, 142 Ill. 2d at 19.
The discretion of a trial court in making sentencing decisions
is not totally unbridled. The standard of review is whether a
trial court has abused its discretion in imposing a sentence; if it
has, the sentence may be altered upon review. Streit, 142 Ill. 2d
at 19; 134 Ill. 2d R. 615(b)(4). When reviewing courts examine the
propriety of sentences imposed by trial courts, they should proceed
with great caution and care. Streit, 142 Ill. 2d at 19. A
reviewing court must not substitute its judgment for that of a
sentencing court because it would have weighed the factors
differently. 142 Ill. 2d at 19.
The remarks of the trial court in this case indicated that,
contrary to the defendant's argument, it did contemplate the
defendant's rehabilitation potential in fashioning the sentences in
this case. Therefore, we will not disturb those sentences on that
basis.
However, we observe that, during the sentencing hearing in
this case, both the parties and the trial court referred to a
minimum sentence of 15 years' imprisonment. However, it is not
entirely clear from the record to which offense the parties
believed the minimum 15-year sentence applied. Further, the State
now argues that the trial court erred in imposing a 10-year
sentence for the offense of armed violence since a conviction of
armed violence while possessing a Category I weapon, in this case
a handgun, carries a minimum sentence of 15 years' imprisonment.
720 ILCS 5/33A--3(a) (West 1994).
We agree with the State that the defendant was improperly
sentenced for the offense of armed violence. The State requests
that we correct the sentencing order to reflect a sentence of 15
years' imprisonment on the charge of armed violence. See People v.
Arna, 168 Ill. 2d 107, 113 (1995) (a sentence that does not conform
to a statutory requirement is void, and the appellate court has the
authority to correct it at any time); see also People v. Richmond,
278 Ill. App. 3d 1042, 1048 (1996).
We decline merely to correct the sentencing order in this case
because it appears that the trial court may have been under the
impression that the minimum sentence of imprisonment for possession
of not less than 15 nor more than 100 grams of a substance
containing cocaine with intent to deliver was 15 years. The State
acknowledges in its brief that that offense carries a sentencing
range of between 6 and 30 years' imprisonment. 720 ILCS
570/401(a)(2)(A) (West 1994). While the State argues that the 20-
year sentence imposed was within the sentencing range, we are not
convinced that the 20-year sentence imposed was not the result of
the trial court's misapprehension that the minimum for that offense
was 15 years' imprisonment.
Clearly the trial court intended to impose a sentence of more
than the minimum. But, assuming it believed that the minimum was
15 years' imprisonment, the 20-year sentence it imposed was much
closer to what it may have believed was the minimum sentence than
it would be to the actual minimum of 6 years' imprisonment.
Although it is not quite clear from the record which offense the
parties and the trial court were referring to as having a minimum
sentence of 15 years, it seems unlikely that the trial court was
referring to the armed violence offense as it then imposed, albeit
erroneously, a 10-year sentence of imprisonment for that offense.
We therefore affirm the defendant's convictions of armed
violence and possession of a controlled substance with intent to
deliver. However, we vacate the sentences imposed in this case and
remand for a new sentencing hearing. At this sentencing hearing,
it would be helpful for all concerned if the appropriate statutory
sentencing ranges, including any applicable enhancement or extended
term provisions, would be set forth for each offense for which the
defendant is to be sentenced.
The defendant's convictions are affirmed; his sentences are
vacated and the cause remanded for a new sentencing hearing in
accordance with this court's instructions.
Affirmed in part and vacated in part; cause remanded.
McLAREN, P.J., and GEIGER, J., concur.
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