People v. Neal

2020 IL App (4th) 170869

150 N.E.3d 984

440 Ill.Dec. 136

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

v.Christopher L. NEAL, Defendant-Appellee.

NO. 4-17-0869

Appellate Court of Illinois, Fourth District.

Filed June 29, 2020

Rehearing denied August 3, 2020

James E. Chadd, John M. McCarthy, Catherine K. Hart, and Edward J. Wittrig, of State Appellate Defender's Office, of Spring-field, for appellant.

Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and James C. Majors, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 In September 2015, the State charged defendant, Christopher L. Neal, with four felony offenses involving illegal drugs. In November 2016, a jury convicted defendant on two of the drug charges. The trial court later sentenced him to 18 years in prison on one charge and 2 years in prison on the other, and it ordered those sentences to be served concurrently.

¶ 2 Defendant appeals and makes the following arguments.

¶ 3 First, defendant contends he was denied his right to the effective assistance of counsel because his trial counsel failed to object to the admission of certain incriminating documents that constituted inadmissible hearsay. Specifically, defendant claims that (1) a phone bill with his name and the address of the residence where the drugs were found and (2) an unopened envelope addressed to him at that same residence were hearsay statements used to prove he lived at the residence. As a matter of first impression in Illinois, we hold that implied assertions of fact contained within mail and other documents are not hearsay.

¶ 4 Second, defendant argues the prosecutor's improper closing argument denied him a fair trial. However, after reviewing the arguments made by defense counsel, we conclude that (1) her argument clearly invited a response and (2) the prosecutor's rebuttal arguments were appropriate.

¶ 5 Third, defendant asserts the trial court erred because it did not properly admonish potential jurors as required by Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant recognizes he did not object to the improper admonishments but maintains the court committed plain error. We reject defendant's argument because the evidence against him was overwhelming.

¶ 6 Fourth, defendant argues that the trial court improperly conducted a Krankel hearing. See People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). We conclude that the trial court (1) properly conducted the hearing and (2) committed no error when it declined to appoint new counsel.

¶ 7 Accordingly, we affirm the trial court's judgment.

¶ 8 I. BACKGROUND

¶ 9 A. The Charges Against Defendant

¶ 10 In September 2015, the State filed the following drug charges against defendant:

Count I: Unlawful possession of a controlled substance with intent to deliver with a prior unlawful possession of a controlled substance with intent to deliver (specifically, more than 600 but less than 1500 objects containing Methylenedioxymethamphetamine (Ecstasy)) ( 720 ILCS 570/401(a)(7.5)(C)(ii), 408 (West 2014)).

Count II: Unlawful possession of a controlled substance with intent to deliver with a prior unlawful possession of a controlled substance with intent to deliver conviction (more than 15 grams but less than 100 grams of a substance containing heroin) (id. §§ 401(a)(1)(A), 408 ).

Count V: Unlawful possession of a controlled substance with a prior unlawful possession of a controlled substance with intent to deliver conviction (specifically, more than 600 but less than 1500 objects containing Ecstasy) (id. §§ 402(a)(7.5)(C), 408).

Count VI: Unlawful possession of a controlled substance with a prior unlawful possession of a controlled substance with intent to deliver conviction (15 grams or more, but less than 100 grams of a substance containing heroin) (id. §§ 402(a)(1)(A), 408).

The State's original charges also included two charges of unlawful possession of a weapon by a felon, but prior to trial, the trial court granted defendant's motion to sever those counts from the drug counts. After defendant was convicted of the drug charges, the State dismissed the gun charges.

¶ 11 In November 2016, the State filed a motion to amend counts I and V of the information, explaining that it had originally filed those counts under the belief that the controlled substance in question was Ecstasy but later received a lab report stating the substance in question was identified as a different illegal controlled substance under Illinois law, namely, 4-chloro-2, 5-dimethoxy-N-((2-methoxyphenyl)methyl)-benzeneethanamine, otherwise known as 25C-NBOMe.

¶ 12 The trial court granted the State's motion over defendant's objection, and both counts were amended accordingly. When granting that motion, the court noted that a factual issue may arise for the jury to decide "if there is one lab report that says one thing, and then a year later, another lab report that says something different." Accordingly, the court informed defendant's counsel, who was privately retained, that if she "[wished] to have an independent investigation or independent lab [examine the drugs], I certainly think that is also something that should be allowed."

¶ 13 In February 2017, defense counsel informed the trial court that she had looked into an independent lab to test the pills that were at issue in this case. She had found a lab, but because (1) it did not have a proper certification and (2) the cost was "just going to be prohibitive," she was going to announce ready for trial.

¶ 14 B. The Evidence at Defendant's Trial

¶ 15 In June 2017, defendant's case proceeded to a jury trial. The charges in this case arose from the execution of a search warrant on August 26, 2015, in Decatur, Illinois. The search warrant authorized the search of defendant's person as well as the building at 1344 East Division Street in Decatur (hereinafter, "the residence"), which was a single-family residence.

¶ 16 1. The Search of Defendant

¶ 17 On the afternoon of August 26, 2015, several Decatur police officers watched the residence. They had seen defendant come and go from the residence earlier that day, as well as the day before. Around 2:30 that afternoon, the officers watched defendant get into his vehicle, which was parked in the residence driveway, and drive away. They followed him for a few minutes and then made a traffic stop. Defendant was the only one in the vehicle.

¶ 18 The police explained to defendant that they had a warrant to search both his person and the residence. They searched him for any weapons or contraband, found none, and then handcuffed his hands behind his back. They then told defendant they were going to transport him to the Decatur police station.

¶ 19 One of the officers who stopped defendant, Detective Jason Hesse, had a body camera, which was operating during the traffic stop, and the footage from that camera was admitted into evidence and shown to the jury. Hesse explained to defendant that they had a search warrant both for his person and the residence. Hesse told defendant, "You were at 1344 East Division." Defendant responded, "No, I wasn't. No, I wasn't."

¶ 20 Defendant had clipped to his pants on his right hip, near his pocket, a "phone holster" that contained a cell phone. Although the officers saw the phone in the holster, they did not seize it at the traffic stop, and it remained on defendant's person until he arrived at the Decatur police station.

¶ 21 The video from Hesse's body camera showed that defendant was placed in handcuffs and seated in the front seat of their squad car. The front passenger door of the squad car was open for several minutes as the officers conversed with defendant. The video showed defendant adjusting himself in the front seat. Of importance for later events, the video also clearly showed that although defendant's hands were handcuffed behind his back, he was able to move his right hand to the area of the holstered cell phone, and he almost completely covered the holster when he did so.

¶ 22 Detective Jonathan Roseman transported defendant in Roseman's squad car from the traffic stop to the Decatur police station. They were the only ones in the car during the 11-minute ride, and what happened was captured with audio and video recording equipment in the vehicle. The video was played for the jury, and at one point Roseman can be heard saying to defendant, "What are you looking at?" Roseman testified that he made that statement because he could hear a clicking noise that he believed was coming from defendant's handcuffs, given that defendant was "moving around quite a bit."

¶ 23 Roseman also testified that, because defendant was looking down at his right thigh area at the same time Roseman heard the clicking noises, Roseman was concerned that defendant was slipping out of his handcuffs. Roseman explained that defendant had earlier complained about the handcuffs being too tight, but Roseman testified he had properly fit them on defendant.

¶ 24 During the drive to the police station, defendant told Roseman that the residence was not his but that he knew children were present in the house, and he provided their ages.

¶ 25 After they arrived at the police station, Roseman did not search defendant again or remove any property from his person. Roseman did not remove the cell phone from the holster, nor did he put the cell phone in defendant's right front pants pocket. However, Roseman did not recall seeing defendant do that either.

¶ 26 At the police station, Hesse removed the cell phone from defendant's person, which was a black "flip phone," but when Hesse did so, the phone was then located in defendant's front right pants pocket. Only Hesse, Roseman, and defendant had had access to that cell phone from the time of the traffic stop until Roseman delivered defendant to the police station, at which point Hesse took...