Ineffective Assistance of Counsel

INEFFECTIVE ASSISTANCE OF COUNSEL/failure to present a Motion to Quash and Suppress

People v. Graham, No. 86382 (June 19, 2003) Appeal, 1st Dist. Affirmed
Illinois Supreme Court.

Defendant’s attorney was not operating under a conflict of interest
merely because, on night of defendant’s arrest inquiring about
prosecution witness; because he never entered into attorney-client
relationship or even talked to the witness. Further, he was not
ineffective for failure to object to certain trial testimony and closing
argument comments, it being potential trial strategy.

1st Dist. BROSHUNE SPANN, No. 1-00-4218, Sixth Div.
(JUSTICE O'MARA FROSSARD) Remanded for retrial, March 1, 2002

Following a bench trial defendant was found guilty of four counts of
possession of a controlled substance with intent to deliver and
sentenced to 10 years in prison. On appeal defendant contends that the
class X sentence was improper because it was based on a defective
indictment; the state failed to prove the offenses were committed on a
public way; the state failed to prove defendant possessed with intent to
deliver the cocaine found in the apartment; and defense counsel was
ineffective for not presenting various pre-trial motions. The court found
ineffective assistance of trial counsel and reversed defendant's
convictions and sentence. The court remanded for retrial.

Here, at 11:20 p.m. Officer Stack knew the following: (1) defendant was
on the front steps of the Ickes Home Development at 2430 South State
Street; (2) he was conducting a residential safety check of the building
and that location was an area of high narcotic activity; (3) defendant
received money from an individual, took an item from his mouth, and gave
it to that individual who then disappeared into a crowd of people; (4)
he could not see what the defendant gave to that individual; and (5) he
could not tell the amount of money that individual gave the defendant.

There was no challenge by defense counsel to Officer Stack's ability or
opportunity to observe the transaction he described. There was no
cross-examination as to the nature, extent, or duration of that
observation. Moreover, the State failed to demonstrate Officer Stack's
experience regarding narcotics investigations or arrests. Officer Stack
never testified that based on his experience conducting narcotic
surveillance, he suspected the defendant had been involved in a narcotic
transaction. There was no testimony by Officer Stack that during
previous narcotic surveillance he observed the sale of drugs to take
place in the manner described here, with the seller storing the drugs in
his mouth. There was no testimony by Officer Stack that previously he
had seen similar transactions that led to arrests for unlawful delivery
of a controlled substance. See People v. Stewart, 217 Ill. App. 3d 373,
374 (1991).

Officer Stack admitted that he did not see what was transferred from
defendant to the other unidentified person. Officer Stack failed to
testify as to what factors he found significant regarding his decision
to approach defendant and conduct further investigation. See People v.
Steels, 277 Ill. App. 3d 123, 124 (1995). Officer Stack's testimony
lacks specific, articulable facts which justify an investigative stop.
Based on the record, there is a reasonable question whether at that
point Officer Stack had sufficient grounds to make an investigatory
Terry stop of defendant.

Here, the argument could have been made that Officer Stack lacked legal
justification for a Terry stop of defendant and engaged in an improper
Terry search by ordering defendant to spit out what was in his mouth.
Defense counsel failed to present by way of a motion to quash arrest and
suppress evidence the question of whether the plastic bag inside
defendant's mouth was in fact in plain view and whether there was
probable cause to associate that property with criminal activity.
Jackson, 149 Ill. App. 3d at 159. People v. Love, 318 Ill. App. 3d 534
(2000)

Here, the failure to present a motion to quash the arrest and suppress
evidence does not appear to have been a matter of trial strategy. One of
defendant's only viable defenses was to contest the legality of the
arrest. Upon application of the Terry principles regarding the legal
prerequisites for a stop and search, the court held that based on this
record, a motion to quash arrest and suppress evidence would have had a
reasonable probability of success. It noted that had the motion to quash
arrest and suppress evidence succeeded, evidence needed for the State to
prove possession with intent to deliver would have been eliminated from
consideration by the trial court. The court found the prejudice prong of
the Strickland test satisfied because the deficient performance of
defense counsel in failing to present a motion to quash arrest and
suppress evidence was sufficient to undermine confidence in the outcome
of the trial.