People v. Long

2018 IL App (4th) 150919

115 N.E.3d 295

425 Ill.Dec. 740

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Timothy W. LONG, Defendant-Appellant.

NO. 4-15-0919

Appellate Court of Illinois, Fourth District.

Filed August 20, 2018

Rehearing denied September 17, 2018

James E. Chadd, Patricia Mysza, and Gilbert C. Lenz, of State Appellate Defender’s Office, of Chicago, for appellant.

Richard Ringhausen, State’s Attorney, of Hardin (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Timothy W. Long, was convicted of methamphetamine conspiracy ( 720 ILCS 646/65(a) (West 2012) ) and sentenced to 30 years in prison. He appeals, arguing (1) the evidence was insufficient to prove him guilty of conspiring to manufacture the amount of methamphetamine charged by the State, (2) he was denied a fair trial by the admission of highly prejudicial other-crimes evidence, (3) he was denied a fair trial due to prosecutorial misconduct, (4) his trial counsel provided ineffective assistance, (5) the trial court erred by denying his posttrial request for a continuance to investigate whether an impaneled juror testified falsely during voir dire , (6) his sentence was excessive, and (7) the court abused its discretion by ordering a $5000 reimbursement for his court-appointed counsel. We reduce defendant's conviction and remand for resentencing but otherwise affirm the court's judgment.

¶ 2 I. BACKGROUND

¶ 3 On April 29, 2015, the State charged defendant by a second amended information with unlawful methamphetamine conspiracy. Id. Specifically, it alleged that, on or about November 22, 2014, defendant and an individual named Michael Blumenberg agreed to manufacture methamphetamine. It further alleged defendant delivered Coleman fuel, a methamphetamine manufacturing material, to Blumenberg for that purpose, resulting in the manufacture of 486 grams of methamphetamine.

¶ 4 On May 11 and 12, 2015, defendant's jury trial was conducted. The State's evidence showed that on November 26, 2014, law enforcement officers executed a search warrant on a trailer owned by Dennis Burge. The officers discovered a "shake[-]and[-]bake meth lab" and methamphetamine manufacturing materials, including Coleman fuel. The State's evidence showed two containers of Coleman fuel were found in the trailer—one half-empty, one gallon container that was found on the bathroom sink area and one empty, 32 ounce container that was found in a bathroom cabinet. Additionally, methamphetamine was discovered in three separate containers. Specifically, 285.5 grams of methamphetamine were found in a Gatorade bottle in the trailer's bathroom sink and two bottles containing 133 grams and 268.2 grams of methamphetamine were found in a bedroom. Both Burge and Blumenberg were present when the search warrant was executed and were arrested.

¶ 5 Sean King testified he was a special agent with the Illinois State Police and was assigned to its Meth Response Team. He participated in cleaning up the methamphetamine lab discovered in Burge's trailer and took photographs of the scene, which were admitted into evidence. King described the scene in the trailer and the process for manufacturing methamphetamine using the "shake[-]and[-]bake" method. He testified the trailer contained evidence of three "meth cooks," one in the bathroom sink and two in the trailer's bedroom. King was unable to state when the "meth cooks" occurred.

¶ 6 Sheriff's deputy Kyle Jacobs testified he investigated the "bust" of the meth lab in Burge's trailer and, on December 30, 2014, interviewed defendant. Their interview was recorded and portions of the recording were played for the jury. The record reflects that, during the interview, defendant acknowledged providing a can of Coleman fuel to Blumenberg on the day that the search warrant was executed. Defendant also acknowledged using methamphetamine in the past, previously purchasing methamphetamine from Blumenberg, and being aware that Burge and Blumenberg had been manufacturing methamphetamine. He also admitted purchasing Sudafed, a methamphetamine manufacturing material, and discussed actions he took to make the purchase of such an item appear unrelated to the manufacture of methamphetamine. Finally, defendant acknowledged that code words were used between individuals to discuss drug-related topics.

¶ 7 On direct-examination, Jacobs testified that defendant never asserted that he gave the Coleman fuel to Blumenberg for cooking or heating purposes. On cross-examination, he acknowledged that he never specifically asked defendant why he brought the Coleman fuel to Blumenberg. However, on redirect, Jacobs also testified that defendant had been told that he was being charged with providing the Coleman fuel for "meth purposes."

¶ 8 At the time of defendant's trial, Blumenberg was an inmate in the Illinois Department of Corrections (DOC). He testified that he had been charged with manufacturing and possessing methamphetamine; however, he agreed to give a statement to the police regarding the circumstances underlying his charges, and in exchange for his statement, the manufacturing charge against him was dismissed, he pleaded guilty to an amended possession charge, and he received a six-year prison sentence. Blumenberg testified the police interviewed him three times, and he acknowledged that he provided more information each time he was interviewed. He stated he was trying to "[i]mprove [his] chances for a deal" by withholding information.

¶ 9 Blumenberg acknowledged that he was arrested at Burge's trailer and that "there was a meth cook going on at that time." He was shown a photograph of the inside of Burge's trailer and identified the "Coleman fuel jug" that was sitting on the bathroom sink as being given to him by defendant. He stated he called defendant the night before his arrest and told defendant that he "needed Coleman—[he] needed some fuel for [his] stove." Blumenberg testified he spoke in code because he was high on dope and paranoid.

¶ 10 Blumenberg stated he was living in a camper near Burge's trailer. The day of his arrest, defendant brought him the Coleman fuel and the two men went inside the camper and "smoked meth" or "ani-dope," which defendant had with him.

¶ 11 Blumenberg testified he suspected defendant had Coleman fuel because a day or two before the underlying offense defendant stated he had recently made methamphetamine. According to Blumenberg, defendant and an individual named Roy Connell went to Burge's trailer while only Blumenberg was present "to get some dope." Defendant reported that he "had just * * * made some dope" but was out and wanted to buy more. Blumenberg testified he sold dope to both defendant and Connell and discussed with them that he and Burge were planning to make more methamphetamine but were "waiting on a couple ingredients." Those ingredients included Coleman fuel, which Burge was attempting to acquire. Blumenberg testified he expressly told defendant that he and Burge did not have Coleman fuel and that it was one of the ingredients being gathered. Ultimately, Burge did not obtain any Coleman fuel.

¶ 12 Blumenberg testified he made methamphetamine with defendant 12 to 15 years earlier. However, defendant's counsel objected to the testimony as being "outside the scope of 10 years," and the trial court sustained his objection.

¶ 13 On cross-examination, Blumenberg testified he had a Coleman stove in his camper. However, he denied using the stove, stating he did not know if it worked. He further stated that he called defendant the night before his arrest as well as the following morning "to make sure [defendant] was still coming." Blumenberg stated he was "out of dope" on the day of his arrest but that Burge may have had some. He testified he generally obtained more methamphetamine by "[h]elping [Burge] make it." He acknowledged that, around the time of his arrest, he used methamphetamine "[e]very day, all day."

¶ 14 Blumenberg testified that, on the day of his arrest, he initially told the police that he was at Burge's residence because he was doing his laundry. He admitted that he lied to the police because he did not "want to get arrested for making dope." Blumenberg testified that he was aware "from the very beginning" that the police wanted information on Burge. He further admitted that he lied to the police during his second interview when he told them he had only "cooked" with Burge on one occasion.

¶ 15 Joseph Gettings testified he was currently in the custody of law enforcement. He recalled that, in December 2001, he was charged with intent to manufacture methamphetamine. Gettings testified regarding the circumstances underlying his charges, stating that he and defendant were stopped by the police while in Gettings's car. In the car, the police found methamphetamine manufacturing materials, including Coleman fuel that defendant had provided.

¶ 16 Defendant presented the testimony of Blumenberg's brother, Jeffrey, who asserted that Blumenberg owned a Coleman stove that he kept in his camper. Jeffrey identified the stove at trial and the stove was admitted into evidence. On cross-examination, Jeffrey stated he had never used the stove nor had he observed Blumenberg use the stove.

¶ 17 Sherrie Brandi Kieffer testified on defendant's behalf that she lived near Burge's trailer and could see it from her house. In November 2014, she and Burge were dating. On November 26, 2014, Kieffer went to Burge's trailer to help clean and observed Blumenberg exit a back bedroom with a Gatorade bottle that contained methamphetamine. She did not observe defendant around Burge's residence that day.

¶ 18 Defendant testified on his own behalf. He recalled that on the evening of November 25, 2014, he was working outside in his shed when Blumenberg visited...