Appendix — Williams v. Illinois

(a) | oe

02 957 DE 1 7208

NAFFIOE OF THE GLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2002

TYRESE WILLIAMS,

Petitioner,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

Petition for Writ of Certiorari to the

Illinois Appellate Court, First District

SEPARATE VOLUME APPENDIX

PURSUANT TO SUPREME COURT RULE 14.1.(i)

RELATIVE TO:

PETITION FOR WRIT OF CERTIORARI

DENNIS DOHERTY

150 N. Wacker Drive

Suite 2020

Chicago, Illinois 60606

(312) 580-0935

Attorney for Petitioner

APPENDICES |

App. i

TABLE OF CONTENTS TO SEPARATE

VOLUME APPENDIX PURSUANT TO

SUPREME COURT RULE 14.1.(i)

Page of App.

1. The Order entered in conjunction with the

judgment sought to be reviewed (Supreme Court Rule

14.1(i) (i)) -

APPENDIX A: Order of the Supreme Court of Illinois,

entered October 2, 2002, People v. Williams, No.

94136, denying petition for leave to appeal...App. 1

2. The Order entered in conjunction with the |

judgment sought to be reviewed (Supreme Court Rule i

14.1@)(@)) -

APPENDIX B: Order of the Appellate Court of Illinois,

First Judicial District, entered June 10, 2002,

People v. Williams, No. 1-00-0570, denying

petition for rehearing.....................cccccssssssees App. 2

3. The Order entered in conjunction with the

judgment sought to be reviewed (Supreme Court Rule

14.1(i)(i)) -

APPENDIX C: Order of the Appellate Court of

Illinois, First District, No. 1-00-0570 , April 15,

2002, affirming petitioner’s conviction and

SOTIETIOR.... .csvecresckninesesnsonalanesenibanamntltl App. 3

App. ii

4. Material required by subparagraph 1(f)

(Supreme Court Rule 14.1(i)(v)) -

APPENDIX D: The Due Process Clause of the

Fourteenth Amendment to the United States

NN ccccnsnosdsivvonsnessenensovesesonntnvncnseneees App. 20

5. Material required by subparagraph 1(g) (i)

(Supreme Court Rule 14.1(i)(v)) -

APPENDIX E: Raising the Federal Question......App. 21

* * * *

———— ee

App. 1

APPENDIX A

94136 SUPREME COURT OF ILLINOIS

CLERK OF THE COURT

SUPREME COURT BUILDING

SPRINGFIELD, ILLINOIS 62701

(217) 782-2035

October 2, 2002

Mr. Dennis Doherty

Attorney at Law

601 South LaSalle St., Suite 700

Chicago, IL 60605

No. 94136 - People State of Illinois, respondent, v.

Tyrese Williams, petitioner. Leave to

appeal, Appellate Court, First District.

The Supreme Court today DENIED the petition

for leave to appeal in the above entitled cause.

The mandate of this Court will issue to the

Appellate Court on October 24, 2002.

App. 2

APPENDIX B

IN THE APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE

STATE OF ILLINOIS,

)

)

J )

| Plaintiff-Appellee, )

)

V. ) No. 1-00-0570

)

TYRESE WILLIAMS, )

)

)

Defendant-Appellant.

ORDER

Upon consideration of defendant-appellant’s

petition for rehearing,

IT IS HEREBY ORDERED that said petition for

rehearing is DENIED.

ORDER ENTERED Presiding Justice

JUN 10 2002 Judith Cohen

APPELLATE COURT,

FIRST DISTRICT

Justice William Cousins

Justice Jill K. McNulty

App. 3

APPENDIX C

FIRST DIVISION

April 15, 2002

NOTICE

The text of this order may be changed

or corrected prior to the time for filing

of a Petition for Rehearing or the

disposition of the same.

No. 1-00-0570

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

PEOPLE OF THE ) Appeal from the

STATE OF ILLINOIS, ) Circuit Court of

) Cook County.

Plaintiff-Appellee, )

)

v. ) No. 98 C6 61478

)

TYRESE WILLIAMS, ) Honorable

) George Morrissey,

Defendant-Appellant. ) Presiding.

App. 4

ORDER

Following a bench trial, defendant Tyrese

Williams was convicted of possession of a controlled

substance with intent to deliver and sentenced to a

prison term of 12 years. On appeal, defendant

contends that: (1) the State failed to prove his guilt

beyond a reasonable doubt; (2) he received ineffective

assistance of trial counsel; and (3) the court erred in

denying his motion for scientific testing of certain

evidence.

Harvey police officer T. Brooks testified that at

about 6:30 p.m. on July 21, 1998, he observed a

vehicle obstructing traffic at 146th Street and Myrtle.

Brooks stated that there were two individuals inside

the vehicle and identified defendant as the passenger.

Brooks stopped the vehicle, and moments later Officer

Annette Avant arrived to assist Brooks. At that time,

the driver informed Brooks that his driver’s license was

suspended and that [p. 2] the vehicle was uninsured.

Brooks handcuffed the driver and put him in a police

vehicle. Brooks then walked back to the stopped

vehicle and asked defendant for a valid driver’s license

so that Brooks could release the vehicle-to defendant.

Defendant stated that he did not have a driver’s

license. Brooks then instructed him to exit the vehicle.

As defendant exited the vehicle, Brooks noticed that

“from his right pocket was a clear plastic bag with a

green leafy substance sticking out of his pants.”

Brooks retrieved the bag from defendant’s pocket,

informed defendant that he was under arrest and

App. 5

instructed Avant to handcuff defendant.

Thereafter, Brooks conducted an inventory

search of the vehicle before it was towed. Brooks

recovered a pager, cellular telephone, $4,000, and a

scale with traces of a white powdery residue.

Additionally, Avant recovered two plastic bags from

defendant’s person. Brooks secured the items in his

vehicle.

On cross-examination, Brooks testified that the

driver asked him to release the vehicle to defendant.

Brooks told the driver that he would release the

vehicle to defendant if he could produce a valid

driver’s license. He testified that defendant did not

produce a driver’s license but stated that he was from

Texas.

Harvey police officer Annette Avant testified

that at about 6:38 p.m. on July 21, 1998, she was

dispatched to assist Officer [p. 3] in a traffic stop at

146th Street and Myrtle. When Avant arrived, she

positioned herself at the passenger’s side of the

stopped vehicle while Brooks spoke to the driver. The

driver was arrested after he informed Brooks that his

license was suspended. Avant further testified that the

driver asked Brooks to release the vehicle to _

defendant. Avant stated that Brooks walked back to

the vehicle and asked defendant whether he had a

valid driver’s license. She stated that defendant was

asked to exit the vehicle after he told Brooks that he

did not have a valid driver’s license. Avant stated that

° App. 6

she was standing by the bumper when defendant

stepped out of the vehicle. Avant stated that Brooks

was standing by the driver’s side of the vehicle at that

time. As defendant exited the vehicle, Brooks

instructed Avant to “hook him up,” which meant to

place defendant under arrest. Meanwhile, Brooks

approached defendant, retrieved the plastic bag from

defendant’s pocket and informed him that he was

under arrest. Avant testified that she noticed a plastic

bag “hanging out of the left pants pocket” as

defendant stepped out. However, Avant admitted that

she did not see the bag before Brooks instructed her to

handcuff defendant.

The parties stipulated that Officers Avant and

Brooks recovered and inventoried a plastic bag

containing a green leafy substance (Item 1), a plastic

bag containing four smaller bags of a white substance

(Items 2-A, B, C, and D), and a plastic bag [p. 4]

containing a white powder (Item 3). The parties

further stipulated that a forensic scientist received the

items in a sealed condition and that a proper chain of

custody was maintained at all times. The parties

stipulated that Item 1 was tested and determined to

contain 1.7 grams of cannabis. Items 2A and 2B were

tested and determined to contain 248.7 grams of

cocaine. Items 2C and 2D weighed a total of 95.4

grams but no chemical analysis was performed.

Lastly, Item 3 was tested and determined to contain

251 grams of cocaine.

Defendant, testifying in his own behalf, stated

—_——_~

App. 7

that he lived with his father in Mesquite, Texas. He

stated that on July 21, 1998, he went to visit his

grandmother in Harvey, Illinois. He arrived at his

grandmother’s house at about 3:30 p.m. Shortly

thereafter, defendant’s cousin, Sherone Watkins,

‘invited him to visit his girlfriend’s apartment.

Defendant agreed and the two drove to Watkins’

apartment. After about 45 minutes, they left the

apartment to drive back to their grandmother’s house.

A few moments later, they were stopped by

Officer Brooks. Watkins attempted to step out of the

vehicle but Brooks instructed him to remain inside.

Brooks approached the driver’s side of the vehicle and

asked Watkins for his driver’s license. Meanwhile,

Officer Avant arrived at the scene and stood by the

passenger's side of the vehicle, where defendant was

seated. Watkins was asked to step out of the vehicle

after he said that [p. 5] he did not have a driver’s

license. As Brocks searched Watkins, Avant instructed

defendant to exit the vehicle. Avant did not handcuff

defendant but asked him to stand by the passenger’s

side door. According to defendant, Avant then

reached behind the passenger’s seat and retrieved a

bag containing “cigar paper” and leaves. Defendant

told Avant that the bag did not belong to him.

Thereafter, Avant escorted defendant to the rear of the

stopped vehicle and performed a pat-down search of

defendant.

Defendant further testified that on that day he

wore a red T-shirt and basketball shorts underneath

App. 8

white windbreaker pants. He testified that he had

about $160 and his Texas driver’s license in his right

pants pocket. According to defendant, Officer Avant

asked whether he had a valid driver’s license.

Defendant responded affirmatively but denied being

asked whether he wanted to drive the vehicle home.

Defendant further denied that Avant found cocaine

hidden in his pants and stated that only money was

recovered from his person.

At the police station, Avant showed defendant a

grocery bag and said, “Look what we found.”

According to defendant, he then overheard Avant tell

an officer that she found the bag under the seat of her

police car. Defendant stated that he was then strip

searched by Officer Brooks.

In finding defendant guilty, the trial court

expressly found the testimony of the officers to be

credible. The court reasoned [p. 6] that the two

officers did not work together as partners, that one

was a community service officer and the other was a

patrol officer. The court found that the officers

testified truthfully and that their descriptions of the

events were “straight forward”.

On appeal, defendant first contends that he was

not proved guilty beyond a reasonable doubt because

there were defects in the chain of custody. In

particular, defendant asserts that the evidence seized

and inventoried did not match the evidence analyzed

by the forensic scientist. Defendant argues that

App. 9

Officers Avant and Brooks testified that a clear plastic

bag containing 1.7 grams of cannabis was recovered

from defendant’s pocket, whereas the laboratory

report indicated that the bag contained “1.7 grams of

plant material and one cigar.” Further, defendant

notes that on cross-examination, Avant testified that

she recovered a bag containing four separate bags of

rocky substance, but on direct examination, she

testified that she recovered a clear plastic bag

containing three bags of white rocky substance and

one bag of green leafy substance.

When a defendant challenges the sufficiency of

the evidence, the relevant question on review is

whether, after considering the evidence in the light

most favorable to the State, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt. People v. Jimerson, 127

Ill. 2d [p. 7] 12, 43-44 (1989). We will not substitute

our judgment for that of the trial court regarding

witness credibility. People v. Digirolamo, 179 Ill. 2d

24, 46 (1997). Rather, it is the responsibility of the

trier of fact to determine the credibility of witnesses,

the weight to be given to their testimony, and the

reasonable inferences to be drawn from the evidence.

People v Brisbon, 106 Ill. 2d 342, 360 (1985). A

criminal conviction will not be set aside on review

unless the evidence is so unlikely or inadequate that a

reasonable doubt of defendant’s guilt remains.

Jimerson, 127 Ill. 2d at 43.

Here, the evidence, when viewed in the light

App. 10

most favorable to the State, was sufficient to prove

defendant guilty beyond a reasonable doubt. The

discrepancies noted by defendant are not sufficient to

create a reasonable doubt as the testimony of the

officers was consistent with the results of the

laboratory report. Any issues regarding the chain of

custody were properly attributed by the trial court to

weight and not admissibility. See People v. Herrero,

324 Ill. App. 3d 876, 883 (2001).

Additionally, defendant contends that the State

failed to prove his guilt beyond a reasonable doubt

because the testimony of the State’s witnesses was

inconsistent. Defendant asserts that the officers

testified inconsistently as to where they were standing

when defendant exited the vehicle and [in] which

pants pocket the clear plastic bag containing a green

leafy substance was [p. 8] first observed. The trial

court acknowledged that the crux of this case was an

issue of witness credibility and found the testimony of

the officers to be credible. Despite the inconsistencies

in the officers’ testimony, a rational trier of fact could

have found that defendant possessed a large amount

of narcotics and that he intended to sell them. We will

not substitute our judgment for that of the trial court.

Next, defendant contends that trial counsel was

ineffective for: (1) failing to file a motion to quash

arrest and suppress evidence; (2) failing to present

readily available evidence to corroborate his

testimony; and (3) stipulating to a defective chain of

custody.

App. 11

In Strickland v. Washington, 466 U.S. 668, 80

L. Ed. 2s 674, 104 S. Ct. 2052 (1984), the United

States Supreme Court set forth a two-prong test to

determine whether a defendant has been denied

effective assistance of counsel: first, the defendant

must show that counsel’s representation fell below an

objective standard of reasonableness and second, the

defendant must show that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687,

60 L Ed.2d at 693, 104 S. Ct. at 2064. Moreover, in

adopting Strickland, our supreme court observed that

the defendant bears a heavy burden to overcome the

strong presumption that counsel’s actions were a

matter of “sound trial strategy.” People v. Albanese,

104 Ill. 2d 504, 525-26 (1984). [p. 9]

Defendant contends that trial counsel was

ineffective for failing to file a motion to quash arrest

and suppress evidence because the police did not

possess the authority to ask for his identification. Trial

counsel’s failure to file a motion to suppress evidence

is not per se incompetence. People v. Gierbolini, 128

Ill. App. 3d 794, 797 (1984). Generally, whether to

file a motion to quash an arrest and suppress evidence

is considered a matter of trial strategy, and a

reviewing court “will not indulge in hindsight analysis

to determine whether counsel’s decision was adequate

under the circumstances.” People v. Rodriguez, 312

Ill. App. 3d 920, 925 (2000). Moreover, trial counsel

may reasonably consider a motion to suppress to be

futile where the arrest or search is proper; counsel is

not obligated to file futile motions to render effective

App. 12

assistance. People v. Robinson, 299 II]. App. 3d 426,

435 (1998). Thus, to establish that trial counsel was

different had the evidence been suppressed.

Robinson, 299 II}. pp. 3d at 434, Furthermore, a

claim of ineffective assistance of counsel] cannot be

based on mere speculation. Gierbolini, 128 1]. App.

3d at 797,

A defendant is lawfully stopped when he isa

Passenger in a [p. 10] vehicle Stopped for a traffic

violation. People v, Sorensen, 196 Ill. 2d 425, 433

(2001) (defendant Passenger lawfully stopped where

the officer observed a traffic violation). Moreover, an

officer may order the driver and any passengers out of

a lawfully stopped vehicle without raising fourth

amendment concerns. Sorensen, 196 Ill. 2d at 433.

This is true even where the officer does not Suspect

that the passenger has been involved in a crime.

People v. Gonzalez, 184 Ill, 2d 402, 415 (1998).

Maryland vy. Wilson, 519 U.S. 408, 137 L. Ed.

2d 41, 117S. Ct. 882 (1997), is factually similar to

the case at bar. In Wilson, an officer Stopped a vehicle

for traffic violations. The officer noted that the driver

and the defendant, who Was a passenger, appeared

nervous. When the officer instructed the Passenger to

exit the vehicle, a bag of cocaine fell to the ground as

he stepped out. The Passenger sought to suppress the

App. 13

evidence, contending that the officer ordered him out

of the vehicle in violation of the fourth amendment.

The Supreme Court held that a police officer, pursuant

to a valid traffic stop, may order a passenger to step

out of the vehicle even if he does not suspect that the

passenger has been involved in any wrongdoing.

Wilson, 519 U.S. at 413-14.

Here, similar to Wilson, the drugs were found

“sticking out of’ defendant’s pants as he complied with

the officer’s lawful order to exit the vehicle. A motion

to suppress would have been [p. 11] futile because the

officer did not violate the defendant’s fourth

amendment rights by ordering him out of the vehicle.

Our holding does not conflict with our recent

decision in People v. Bunch, No. 1-00-3245 (2002).

There, the officer stopped the vehicle in which

defendant was a passenger after observing a traffic

violation. The officer instructed the defendant to exit

the vehicle, and he complied. Unlike the case at bar,

no evidence was recovered as a result of the

defendant’s compliance with the officer’s demand to

exit the vehicle. Instead, the officer then shined his

flashlight on the defendant’s face and asked the

defendant his name and where he was coming from

because the officer was “curious to find out exactly

who [the defendant] was.” When the defendant

answered, the officer saw a small clear plastic object

containing suspected drugs in the defendant’s mouth.

At that point, the officer arrested the defendant and

ordered him to spit out the object which turned out to

App. 14

be heroin. Relying on People v. Gonzalez, 324 Ill.

App. 3d 15 (2001), leave to appeal allowed, No.

92305 (December 5, 2001), we reversed the denial of

the defendant’s motion to suppress on the basis that

the officer had no authority to ask the defendant for

identification. -Here, it is clear that the contraband

was recovered as defendant exited the vehicle

pursuant to the officer’s lawful request and not as a

result of the officer’s request for identification. [p. 12]

Next, defendant contends that his trial counsel

was ineffective for failing to introduce defendant’s

Texas driver’s license to corroborate his testimony that

he had a driver’s license on the day in question.

However, defendant has failed to demonstrate that but

for counsel’s failure the result of the proceedings

would have been different. The officers did not

suspect defendant of any wrongdoing. Defendant was

merely asked for his driver’s license to determine

whether he could drive the vehicle away. He was free

to decline the officer’s request for identification.

Probable cause to arrest defendant did not arise until

the officers saw a clear plastic bag containing green

leafy substance in defendant’s pants pocket. Showing

that defendant actually had a driver’s license would

not have undermined the testimony of the officers to

the extent that the outcome of the proceedings would

have been different. We find no deficiency in trial

counsel’s performance. See People v. Kelley, 304 Ill.

App. 3d 628, 635 (1999) (counsel’s failure to

investigate depends upon the significance of the

evidence and the closeness of the case).

App. 15

Additionally, defendant contends that he

received ineffective assistance because his trial counsel

failed to present seven character witnesses. We find

defendant’s claim to be wholly without merit.

Counsel’s decision whether to present certain

witnesses is a matter of trial strategy and a reviewing

court will not substitute its judgment absent a showing

of [p. 13] substantial prejudice. People v. Bodoh, 200

Ill. App.3d 415, 423-24 (1990). Defendant has failed

to demonstrate that his counsel’s actions prejudiced

him to the extent that the outcome of the proceedings

would have been different. See Bodoh, 200 Ill. App.3d

at 424 (lack of proffered testimony did not prejudice

the defendant to the extent that the outcome of the

trial would have been different). In light of the police

officers’ testimony and the drugs and paraphernalia

recovered, testimony by character witnesses would not

likely have changed the outcome.

Next, defendant contends that he received

ineffective assistance because his trial counsel

stipulated to a defective chain of custody.

“Generally speaking, a defendant is precluded

from attacking or otherwise contradicting any facts to

which he has previously stipulated.” People v. Gibson,

287 Ill. App. 3d 878, 880 (1997).

Real evidence is admissible when a sufficient

foundation is laid to establish that the item is the one

involved in the alleged offense and is substantially

unchanged since its seizure by authorities. People v.

App. 16

Terry, 211 Ill. App. 3d 968, 972-73 (1991). However,

where the evidence is not readily identifiable or is

susceptible to alteration, the burden is upon the State

to establish a chain of custody that is sufficiently

complete to render it improbable that the item has

been tampered with, [p. 14] exchanged, or

contaminated. People v. Slaughter, 149 Ill. App. 3d

183 (1986). The rationale behind this rule is to

connect the object to the defendant and the crime.

People v. Lach, 302 Ill. App. 3d 587, 593 (1998).

A chain of custody requires proof of delivery,

presence, and safekeeping. Gibson, 287 Ill. App. 3d at

882. To succeed, the State need not exclude every

possibility of tampering. People v. Ziehm, 120 Ill.

App. 3d 777, 782 (1983). Rather, the State need only

demonstrate that reasonable protective measures were

taken to maintain a chain of custody, and that it was

probable the evidence was not altered or substituted.

Lach, 302 Ill. App. 3d at 594. Significantly, absent

any actual evidence of tampering or substitution,

deficiencies in the chain of custody go to the weight

and not the admissibility of the evidence. Lach, 302

Ill. App. 3d at 594. Even where there is a missing link

in the chain of custody, evidence is properly admitted

where testimony that sufficiently described the

condition of the evidence when delivered matches the

description of the evidence when examined. Bynum,

257 Ill. App. 3d at 510.

In our earlier discussion of the sufficiency of the

evidence, we concluded that there was no defect in the

App. 17

chain of custody. Defendant has therefore failed to

establish that his trial counsel was ineffective for

stipulating to the chain of custody. [p. 15]

Finally, defendant contends that the trial court

erred in denying his posttrial motion for scientific

testing of the cigar that was recovered based upon his

claim of actual innocence.

Section 116-3 of the Code of Criminal

Procedure of 1963 provides in pertinent part:

[“] (b) The defendant must

present a prima facie case that:

(1) identity was the issue

in the trial which resulted in his

or her conviction; and

(2) the evidence to be

tested has been subject to a chain

of custody sufficient to establish

that it has not been substituted,

tampered with, replaced, or

altered in any material aspect.

(c) The trial court shall allow the

testing under reasonable

conditions designed to protect the

State’s interests in the integrity of

the evidence and the testing

process upon a determination

Pas ERT? YO

App. 18

that:

(1) the result of the testing

has the scientific potential to

produce new, noncumulative

evidence materially relevant to

the defendant’s assertion of actual

innocence; [p. 16]

(2) the testing requested

employs a scientific method

generally accepted within the

relevant scientific community.”

725 ILCS 5/116-3 (West. 1998).

Concededly, section 116-3 is not limited to instances

that would completely exonerate the defendant.

People v. Savory, 197 Ill.2d 203, 214 (2001).

However, section 116-3 requires that the evidence at

issue be “materially relevant to the defendant’s

assertion of actual innocence.” Savory, 197 Ill.2d at

214.

Here, defendant has failed to establish the

significance of scientific testing of the cigar with

regard to his claim of actual innocence. Defendant’s

identity was not at issue. Testimony indicated that a

clear plastic bag was observed hanging out of

defendant’s pocket and that a subsequent search of the

vehicle revealed a bag containing cigar paper and

leaves. We find that the trial court properly denied

defendant’s motion because scientific testing of the

App. 19

cigar would not have produced any relevant

information as to defendant’s guilt or innocence.

Accordingly, the judgment of the circuit court is

affirmed.

Affirmed.

McNULTY, J., with COHEN, P.J. and COUSINS,

J., concurring.

App. 20

APPENDIX D

The Due Process Clause of the Fourteenth Amendment

to the United States Constitution

U.S. Const., amend. XIV, Section 1:

",..nor shall any State deprive any

person of... liberty. . . without due

process of law... ."

App. 21

APPENDIX E

RAISING THE FEDERAL QUESTION

The federal question relative to DNA analysis

was raised by petitioner in the trial court, the Illinois

Appellate Court, and Illinois Supreme Court.

Petitioner’s post-trial motion for DNA analysis

was couched and argued in federal due process terms.

(R 162-69; 172-89; C 59)

In the Appellate Court of Illinois, First District,

petitioner raised the issue of DNA analysis at Point 6

of petitioner’s Brief. Federal due process was argued

in said Point, with federal cases cited in support

thereof.

In the Supreme Court of Illinois, petitioner

raised the issue of DNA analysis at Point 1 of

petitioner’s Petition For Leave To Appeal. Federal due

process was argued in said Point, with federal cases

cited in support thereof.

* * * *