People v. Magallanes

921 N.E.2d 388

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aaron MAGALLANES, Defendant-Appellant.

No. 1-07-2826.

Appellate Court of Illinois, First District, Third Division.

December 23, 2009.

Michael J. Pelletier, State Appellate Defender, of Chicago (Deputy Defender Patricia Unsinn and Assistant Appellate Defender Katherine M. Donahoe, of counsel), for Appellant.

Anita Alvarez, State's Attorney of Cook County, of Chicago (Assistant State's Attorney's James E. Fitzgerald and Peter Fischer, of counsel), for Appellee.

Justice QUINN delivered the opinion of the court:

Following a jury trial, defendant was found guilty of burglary and sentenced, based on his criminal history, as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 2006)), to seven years in prison. On appeal, defendant contends that: (1) the circuit court erred in failing to grant his motion to quash arrest and suppress evidence where the police officer who stopped defendant lacked a reasonable suspicion that defendant was engaged in unlawful activity; (2) his conviction should be reversed where the circuit court failed to comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); and (3) he received ineffective assistance of counsel where trial counsel during opening remarks said it was defendant's "side of the story" that defendant merely found the items in the alley, but counsel failed to present defendant's testimony or any other evidence, thereby opening the door for the State to comment during closing arguments on defendant's lack of evidence. For the following reasons, we affirm defendant's conviction and sentence.

I. BACKGROUND

Prior to trial, defendant filed a motion to quash arrest and suppress evidence, arguing that defendant's warrantless arrest was invalid because the off-duty police officer lacked reasonable suspicion of criminal activity that would have justified a brief stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendant argued that because the police officer lacked reasonable suspicion to conduct a Terry stop, defendant's statements to police, the discovery of the items in his pickup truck, and the identification of the items by the alleged owner should be suppressed.

At the hearing on defendant's motion, Chicago police sergeant Mark Nottoli testified that at 1 a.m., on June 30, 2006, he was off duty and on his way home from work. Sergeant Nottoli was driving home in his personal vehicle, a convertible with the roof down, and wearing his police uniform. At about 1:30 a.m., Sergeant Nottoli observed defendant driving on 129th Street, near Saginaw and Marquette Avenues. Defendant was driving a pickup truck with a 24-foot extension ladder protruding from the back, and a lawnmower, leaf blower and other lawn equipment in the back of the pickup truck. Sergeant Nottoli testified that he decided to initiate a stop of defendant's vehicle because the condition of the ladder protruding from the back of the pickup truck created an unsafe condition and violated a city ordinance. Sergeant Nottoli testified that he also decided to initiate a stop of defendant's vehicle because the sergeant lived in the area, did not recognize defendant's truck, and there had been a rash of garage burglaries in that neighborhood during that time. Sergeant Nottoli explained that defendant's vehicle had been "[e]xiting from an alley at that time of night with such a load with garages on both sides and [defendant's] load being things that are usually kept in the garage."

Sergeant Nottoli also testified that under the rules of the Chicago police department, even when off duty, he was required to take action when he saw what he believed to be illegal activity occurring. Sergeant Nottoli testified that he stopped defendant's vehicle at 130th Street and Saginaw Avenue. Sergeant Nottoli exited his vehicle and asked defendant for his driver's license and insurance card, which defendant failed to produce. Sergeant Nottoli then placed defendant into custody, advised him of his Miranda rights, and called "911" from his cellular phone to request the assistance of on-duty police officers. Sergeant Nottoli asked defendant where the materials in the back of his truck came from and defendant provided a statement. Sergeant Nottoli testified that he eventually learned that the items in the truck where taken from a garage in the 12800 block of Saginaw Avenue.

Based on the above evidence, the circuit court found that Sergeant Nottoli's testimony was credible and that he had the authority to initiate a stop of defendant's vehicle despite being off duty at the time. The circuit court noted that Sergeant Nottoli testified that his primary purpose for stopping defendant's vehicle was the unsafe condition of the ladder protruding from the rear of the truck. The court also noted that Sergeant Nottoli testified that he lived in the neighborhood, that he did not recognize defendant or his truck, that there had been many garage burglaries in the area, and that defendant was driving down an alley in a truck that contained items commonly kept in garages. The circuit court explained that was "a secondary reason that gave rise to some suspicion that maybe the defendant had been involved in criminal activity." The circuit court then denied defendant's motion to quash arrest and suppress evidence.

During opening remarks to the jury, defense counsel argued that she would present defendant's "side of the story." Defense counsel argued that defendant had not committed the offense of burglary but, rather, that defendant had found the items in his truck when he was driving through the alley collecting junk discarded by others.

At trial, Sergeant Nottoli provided testimony similar to that during defendant's motion to quash arrest and suppress evidence. Sergeant Nottoli also testified that after he placed defendant into custody and advised him of his Miranda rights, defendant stated that he bought the items in his truck from "Murray's." Sergeant Nottoli testified that he did not believe defendant because the ladder and lawn trimmer had "Menard's" stickers on them. After other police officers arrived, Sergeant Nottoli accompanied them to look at garages in the area. Sergeant Nottoli testified that the gate and side garage door were open at 12805 South Saginaw Avenue. Sergeant Nottoli testified that he spoke to the resident of the house at that address, Frank Farro. Farro identified a sports chair, extension ladder and lawn mower in the back of defendant's truck as belonging to him.

Frank Farro testified that he lived at 128th Street and Saginaw Avenue. At about 1:30 a.m., on June 30, 2006, Farro was awakened by police officers knocking on his door. Farro told the police officers that he did not leave his gate or side door to his garage open. Farro went out to his garage with the officers and noticed that the gate and side garage door were open. Farro also observed that his lawnmower was no longer in his garage. After looking in defendant's pickup truck, Farro identified his lawnmower, an extension ladder, and a sports chair. Farro testified that these items had been in his garage, that he did not know defendant, and that he had not given defendant permission to enter his garage or take any of the items.

Detective Daniel O'Connor testified that he was on patrol with his partner on the morning in question and responded to Sergeant Nottoli's call for assistance. Officer O'Connor and his partner arrived at the scene, took defendant into custody, and transported defendant to the police station. Detective O'Connor testified that he advised defendant of his Miranda rights as defendant was processed for the burglary charge. Defendant then stated, "The door was open. I didn't break in."

After the State rested its case, defendant indicated that he did not want to testify. The circuit court admonished defendant about his right to chose whether or not to testify, and despite defense counsel's prior indication that defendant's "side of the story" was that he had merely found the items in the alley, defendant stated that he was choosing not to testify.

Based on this evidence, the jury found defendant guilty of burglary and defendant was subsequently sentenced to seven years in prison. Defendant now appeals.

II. ANALYSIS

A. Defendant's Motion to Quash Arrest and Suppress Evidence

Defendant argues that the circuit court erred in denying his motion to quash arrest and suppress evidence where the police officer who stopped defendant's vehicle lacked reasonable suspicion to believe that defendant was engaged in unlawful activity.

Review of a trial court's ruling on a motion to quash arrest and suppress evidence presents mixed questions of fact and law. People v. Bennett, 376 Ill.App.3d 554, 563, 315 Ill.Dec. 256, 876 N.E.2d 256 (2007). "`The trial court's factual and credibility determinations are accorded great deference, and we reverse only if the findings are against the manifest weight of the evidence.'" Bennett, 376 Ill.App.3d at 563, 315 Ill.Dec. 256, 876 N.E.2d 256, quoting People v. Novakowski, 368 Ill.App.3d 637, 640, 306 Ill.Dec. 417, 857 N.E.2d 816 (2006). "`Legal conclusions, however, are reviewed de novo.'" Bennett, 376 Ill. App.3d at 563, 315 Ill.Dec. 256, 876 N.E.2d 256, quoting Novakowski, 368 Ill.App.3d at 640, 306 Ill.Dec. 417, 857 N.E.2d 816. "`Therefore, we review the ultimate determination of whether the evidence should have been suppressed de novo.'" Bennett, 376 Ill.App.3d at 563, 315 Ill.Dec. 256, 876 N.E.2d 256, quoting Novakowski, 368 Ill. App.3d at 640, 306 Ill.Dec. 417, 857 N.E.2d 816.

Defendant argues that the police officer lacked reasonable suspicion to justify an initial stop of defendant's vehicle, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), based on the officer's belief that defendant's truck violated a city ordinance and...