People v. Richardson, 1-04-3686.

876 N.E.2d 303

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Calvin RICHARDSON, Defendant-Appellant.

No. 1-04-3686.

Appellate Court of Illinois, First District, Fifth Division.

September 21, 2007.

Rehearing Denied October 24, 2007.

Office of the State Appellate Defender, Chicago (Michael J. Pelletier, Jessica D. Pamon, of counsel), for Appellant.

Cook County State's Attorney, Chicago (Richard A. Devine, James E. Fitzgerald, Veronica Calderon Malavia, Andrea E. Forsyth, of counsel), for Appellee.

Justice GALLAGHER delivered the opinion of the court:

Following a bench trial, defendant Calvin Richardson was convicted of burglary and was sentenced to eight years in prison. On appeal, defendant contends that his trial counsel was ineffective in failing to move to suppress evidence obtained when police effectuated a Terry stop. Defendant also asks this court to remand his case to the trial court for a new fitness hearing because he was not admonished of his right to confront witnesses. In addition, defendant challenges the trial court's order that he provide a sample for inclusion in DNA identification databases.

The Illinois Supreme Court has directed us to vacate our previous Rule 23 order and reconsider this case in light of People v. Luedemann, 222 Ill.2d 530, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006). Because, upon reconsideration, we conclude that a motion to suppress likely would not have succeeded, we affirm defendant's conviction. We also reject defendant's additional contentions on appeal.

BACKGROUND

At trial, Stanley Puchalski testified that on the morning of December 30, 2003, he was employed by Why Not Iron, a company that specialized in ornamental and architectural ironwork. Puchalski testified that while completing a job at 1621 North Kenton, he went to his van at about 11:20 a.m. to find that it had been broken into and two of his toolboxes were gone.

Chicago police officer William Lehner testified that at about 11:25 a.m. on December 30, 2003, he and his partner observed defendant walking near 4609 West Grand Avenue carrying a power tool case in each hand. The officers were in plain clothes and driving an unmarked vehicle traveling in the opposite direction that defendant was walking.

Officer Lehner testified that after he observed defendant carrying the cases, he turned his vehicle around and pulled to the curb near defendant. As the officers got out of the car, defendant set the cases down on the ground and approached them. The officer further testified:

"Q. When the defendant came over to your vehicle, what happened?

A. I questioned him as to what he had in the cases and what they were.

Q. What did he tell you?"

The trial court sustained a defense objection to Officer Lehner's answer to that question and the officer was asked the question again:

"Q. Specifically what did he say, officer?

A. At first he stated that those were tools and they belonged to his dad. Then we asked again, and he stated he got them from his friend's house by Kostner and Division. Then he stated that they were his. Then after I asked him what kind of tools they were, he stated several different types of tools.

Q. Did you ask him what kind?

A. Yes, I did.

Q. What did he say?

A. He couldn't exactly state what they were. He didn't know."

Officer Lehner stated that he then noticed the letters WNI on the cases and asked defendant what those markings meant. Defendant did not respond; the officer stated it was "like [defendant] didn't know what I was talking about." Officer Lehner opened the cases and found an invoice bearing the company name of Why Not Iron. The officers arrested defendant and transported him to the station, where he admitted that he stole the tools for money to buy drugs. On cross-examination, Officer Lehner stated that during their conversation on the street, he asked defendant two or three times where he got the tools and that the questioning lasted one or two minutes. The defense presented no testimony.

After the trial court found defendant guilty of burglary, the court held a hearing on defendant's fitness to be sentenced, at which the parties stipulated that a staff psychiatrist for Forensic Clinical Services observed defendant and would testify to a reasonable degree of medical and psychiatric certainty that defendant was fit for sentencing while taking certain medications. The court found defendant fit for sentencing and imposed a term of eight years in prison. In addition, the court ordered defendant to submit a sample of blood, saliva or tissue for inclusion in a DNA database pursuant to section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2004)).

ANALYSIS

I. Effectiveness of Trial Counsel

On appeal, defendant first contends that he received ineffective assistance of trial counsel because his attorney did not move to suppress the contents of the toolboxes or his incriminating statements to police. He argues that his most promising defense involved the exclusion of that evidence, and he asserts his trial counsel did not follow a sound trial strategy by failing to move to suppress that evidence.

To support a claim of ineffective assistance of counsel, a defendant must show that counsel's representation fell below an objective standard of reasonableness and, furthermore, that counsel's actions resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). We note that counsel's decision not to file a motion to suppress evidence involves trial strategy and therefore is generally beyond the scope of appellate review. People v. Medrano, 271 Ill.App.3d 97, 101, 207 Ill.Dec. 762, 648 N.E.2d 218, 222 (1995). In determining whether a defendant suffered substantial prejudice in a situation involving a motion to suppress, a reviewing court considers whether a reasonable probability exists that: (1) the motion to suppress would have been granted; and (2) the outcome of the trial would have been different had the evidence been suppressed. People v. Orange, 168 Ill.2d 138, 153, 213 Ill.Dec. 589, 659 N.E.2d 935, 942 (1995).

Defendant argues that a motion to suppress likely would have succeeded because the officers lacked a reasonable suspicion to stop and question him and, furthermore, because the officers lacked probable cause to search the toolboxes. Moreover, defendant asserts that because his most viable defense was the suppression of the contents of the tool cases and the suppression of his inculpatory statements, he would not have been convicted absent that evidence.

The fourth amendment to the United States Constitution and article I, section 6, of the Illinois Constitution protect citizens from unreasonable searches and seizures by the government. U.S. Const., amends. IV, XIV; Ill. Const.1970, art. I, § 6. Three types of police-citizen interaction are not considered seizures under the fourth amendment: (1) an arrest, which must be supported by probable cause; (2) brief investigative detentions, or Terry stops, which must be accompanied by a reasonable, articulable suspicion of criminal activity; and (3) "encounters that involve no coercion or detention and thus do not implicate fourth amendment interests." Luedemann, 222 Ill.2d at 544, 306 Ill.Dec. 94, 857 N.E.2d at 196.

In its recent opinion in Luedemann, the Illinois Supreme Court analyzed what it termed the historically "imprecise" classification of the third tier of police-citizen encounters as "community caretaking." Luedemann, 222 Ill.2d at 544, 306 Ill.Dec. 94, 857 N.E.2d at 196. Abrogating its decisions in People v. White, 221 Ill.2d 1, 21, 302 Ill.Dec. 614, 849 N.E.2d 406, 418 (2006), and other cases, the supreme court clarified the difference between a consensual officer-citizen encounter and a police act of "community caretaking," which involves the performance of a "task unrelated to the investigation of crime." Luedemann, 222 Ill.2d at 545, 306 Ill.Dec. 94, 857 N.E.2d at 197; see also People v. Robinson, 368 Ill.App.3d 963, 973-74, 307 Ill.Dec. 232, 859 N.E.2d 232, 243-44 (2006) (noting Luedemann's analysis and finding that a police officer's "well-being" check of defendant, who was slumped over the steering wheel, was not initiated to detect, investigate or acquire evidence, and thus constituted "community caretaking," although the officer's subsequent observations supported DUI charge). The supreme court in Luedemann thus distinguished "community caretaking" from a consensual encounter between a police officer and a citizen. Luedemann, 222 Ill.2d at 548, 306 Ill.Dec. 94, 857 N.E.2d at 198-99.

In the instant case, when the officers stopped their vehicle at the curb and got out, defendant put the tool cases down on the ground and approached the officers. The parties agree that the initial contact was a consensual encounter, which does not implicate the fourth amendment. See Luedemann, 222 Ill.2d at 544, 306 Ill.Dec. 94, 857 N.E.2d at 196; see also People v. Gherna, 203 Ill.2d 165, 177, 271 Ill.Dec. 245, 784 N.E.2d 799, 806 (2003). "[N]ot every encounter between the police and a private citizen results in a seizure." Luedemann, 222 Ill.2d at 544, 306 Ill.Dec. 94, 857 N.E.2d at 196, citing Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 254 (1984). "The fourth amendment was not intended to prevent consensual encounters between the police and citizens. Thus, a police officer may approach a person on the street and ask questions if that person is willing to listen." People v. Tate, 367 Ill.App.3d 109, 114, 304 Ill.Dec. 883, 853 N.E.2d 1249, 1254 (2006).

Before we examine the next step of the encounter, this court wishes to clarify its previous characterization of the police officers' act of curbing their vehicle near defendant. It might be implied from this court's original order that the officers required a reasonable suspicion of criminal activity at the...