People v. McKenzie

2020 IL App (4th) 180109-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERANCE McKENZIE, Defendant-Appellant.

NO. 4-18-0109

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

June 5, 2020

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Adams County

No. 16CF591

Honorable Debra L. Wellborn, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court.

Justices DeArmond and Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding defendant forfeited his argument that the trial court erred in denying his request for funds to obtain an expert witness.

¶ 2 Defendant, Terance McKenzie, appeals directly from his conviction of unlawful possession of a controlled substance. On appeal, defendant argues the trial court erred in denying his request for funds to obtain an expert witness to test the alleged narcotic. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On October 4, 2016, defendant was arrested and charged with one count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2012)), alleging that he "knowingly and unlawfully had in his possession less than 30 grams of a substance containing heroin ***." Defendant posted bond the same day and requested that the trial court appoint the public defender's office to represent him. He filed an affidavit of assets and liabilities along with his request, in which he reported that he was unemployed and had no income or disabilities. Defendant further reported total assets valued at $223 and monthly expenses of $100. The trial court found defendant to be indigent and appointed the public defender's office.

¶ 5 At a March 3, 2017, pretrial conference, defendant informed the court that he had retained private counsel. Counsel entered his appearance two weeks later. Defense counsel subsequently indicated that in March 2017, defendant had paid him a $1500 retainer and signed an attorney-client agreement whereby defendant promised to pay $195 per hour for counsel's services.

¶ 6 In June 2017, defendant filed a "motion for defendant[']s testing of alleged contraband/illegal substances." He acknowledged that the Illinois State Police crime lab had already tested the substance and found "a residue amount of heroin," but, nonetheless, he alleged that the substance did not contain heroin and "request[ed] the opportunity to have the alleged drug tested by an independent lab at [d]efendant[']s cost." The State did not object to defendant's motion, stating at a pretrial conference: "And as far as the motion goes, I have no problem with it. He has the right to independent testing. If he wants to have independent testing, he's going to pay for it."

¶ 7 Defense counsel subsequently moved to withdraw his representation due to an illness in his family, and on August 29, 2017, at a hearing on his motion to withdraw, the following exchange occurred between defense counsel, the court, and defendant:

"[DEFENSE ATTORNEY]: The situation here is that if you review the file, [defendant] wanted and still wants this alleged drug to be tested by an independent lab. That was granted, but it was granted at his cost. He sent me a place that he wanted it tested and it was the same lab that already tested it for the State of Illinois. I told him that, and he says[,] [']I want the State to pay for it.['] Well, the State is not going to pay for that. And I don't know what I'm supposed to do. But he wants it tested, you know, he—I'll have it tested any place he wants it tested, but I'm not going to pay for it.

THE COURT: Right.

DEFENDANT: Your Honor.

THE COURT: Yes.

DEFENDANT: This didn't end up in an argument. When I told him over the phone, I made myself clear. We were both happy. He said he would ask if the State could pay for it but then I get to court and he wants to withdraw. You know, that's a blind side. I didn't—you know, I paid him.

THE COURT: Well, I would tell you that the State is not going to pay for additional testing—

DEFENDANT: Understood.

THE COURT: —in this case so.

DEFENDANT: I mean, in that case, I would have hoped he would have just simply told me that, but, you know, since they won't pay for it, I would like to move on with him." (Emphases added.)

¶ 8 Following the hearing, the court allowed defense counsel to withdraw, and defendant again requested that the public defender's office be appointed to represent him. The trial court made the following inquiry into defendant's request for representation:

"THE COURT: Okay. [Defendant], just on the record, let me ask you a couple of questions.

Like, do you own your own home?

DEFENDANT: No.

THE COURT: Do you own any vehicles outright?

DEFENDANT: No.

THE COURT: Are you employed at this time?

DEFENDANT: No, due to this case alone, is why I lost my job.

THE COURT: Okay. All right. Okay. So you don't have—you're telling me you don't have any sources of income—

DEFENDANT: Right.

THE COURT: —to pay a down payment now for an attorney?

DEFENDANT: No.

THE COURT: Okay. All right. Based upon that, the court will appoint a—will find that [defendant] qualifies for the public defender's office."

¶ 9 In December 2017, defendant's case proceeded to a jury trial. During cross-examination of the forensic scientist who had tested the disputed substance, defense counsel asked how frequently independent labs found different results than the State when testing controlled substances. The trial court sustained the State's objection to this line of questioning. After presentation of the evidence, the jury found defendant guilty of unlawful possession of a controlled substance.

¶ 10 A presentence investigative report (PSI) was prepared for sentencing. According to the PSI, filed on January 29, 2018, defendant reported that he was diagnosed with sickle cell anemia in 2000 and "receives $1,003 per month in benefits." Defendant also reported that he worked for his uncle " 'on and off' from 2005 to 2016" and began working for Federal Express in November 2017, making $14 per hour; he paid between $300 and $800 each month in rent from 2012 to 2017; and he "pays over $1,000 per month in child support."

¶ 11 In January 2019, the trial court sentenced defendant to 18 months' probation. Defendant filed no posttrial or postsentencing motions.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, defendant argues the trial court erred in denying his request for funds to obtain an expert witness. "A trial court's denial of a motion for funds for an expert witness is generally reviewed for an abuse of discretion." In re T.W., 402 Ill. App. 3d 981, 986, 932 N.E.2d 125, 130 (2010).

¶ 15 A. The Right to Compulsory Process

¶ 16 In criminal prosecutions in Illinois, as in all states, defendants enjoy the right to compel the attendance of witnesses in their behalf. See U.S. Const., amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to *** have compulsory process for obtaining witnesses in his favor ***."); Ill. Const. 1970, art. I, § 8 ("In criminal prosecutions, the accused shall have the right to *** have process to compel the attendance of witnesses in his or her behalf ***."). While the right to compel the attendance of witnesses generally does not include the additional right to have the State pay for those witnesses, our supreme court has recognized that "in certain instances involving indigents, the lack of funds with which to pay for the witness will often preclude him from calling that witness and occasionally prevent him from offering a defense." (Emphasis added.) People v. Watson, 36 Ill. 2d 228, 233, 221 N.E.2d 645, 648 (1966); see also Ake v. Oklahoma, 470 U.S. 68, 77 (1985) ("[A] criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense."). Thus, to ensure indigent defendants are not deprived of the substance of their fundamental right to compulsory process, "Illinois has long recognized that a defendant may be entitled to funds to hire an expert witness where expert testimony is deemed critical to a proper defense." People v. Clankie, 180 Ill. App. 3d 726, 730, 536 N.E.2d 176, 179 (1989). To establish an entitlement to funds, the indigent defendant must demonstrate that (1) "the expert services sought are necessary to prove a crucial issue in the case" and (2) "the defendant's financial inability to obtain his own expert will prejudice his case." Id.; see also People v. Lawson, 163 Ill. 2d 187, 221, 644 N.E.2d 1172, 1188 (1994).

¶ 17 B. Defendant Forfeited His Argument

¶ 18 Initially, the State argues defendant forfeited his argument by failing to raise it in the trial court and include it in a posttrial motion. See People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675 ("To preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion."). Defendant, relying on People v. Djurdjulov, 2017 IL App (1st) 142258, ¶ 45-46, 86 N.E.3d 1139, responds that he properly preserved this issue for review despite the fact that he did not raise it in a posttrial motion "because it involves a constitutional issue that was addressed at trial."

¶ 19 In Djurdjulov, the defendant argued on appeal that the trial court had committed reversible error "when it denied his motion for fees so that he could hire an expert to analyze *** cell phone records." Id. ¶ 44. Although the defendant failed to include this argument in his motion for a new trial, the First District held that the defendant had not forfeited it, reasoning that "[c]onstitutional issues that were previously raised at trial and could be raised later in a postconviction petition are not subject to forfeiture on direct appeal." (Emphasis in original and internal quotation marks omitted.) Id. ¶ 45. We find defendant's...