People v. Terrell

2022 IL App (1st) 192184

220 N.E.3d 1134

468 Ill.Dec. 355

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

v.Tino TERRELL, Petitioner-Appellant.

No. 1-19-2184

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed March 31, 2022

Jennifer L. Blagg, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham and Paul E. Wojcicki, Assistant State's Attorneys, of counsel, and Samuel J. Cundari, law student), for the People.

OPINION

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

¶ 1 Petitioner, Tino Terrell, appeals from the denial of his petition for a certificate of innocence filed pursuant to section 2-702 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-702 (West 2018) ). In 2013, petitioner was charged with 11 counts of unlawful possession of a weapon by a felon, 2 counts of possession with intent to deliver a controlled substance, 1 count of possession of cannabis with intent to deliver, and 1 count of possession with intent to deliver methamphetamine. Petitioner was found guilty on all counts except for possession with intent to deliver methamphetamine and was sentenced to 15 years’ imprisonment. Petitioner appealed, arguing that the State's evidence was insufficient to prove him guilty beyond a reasonable doubt. This court agreed with petitioner and reversed his convictions. People v. Terrell , 2017 IL App (1st) 142726, ¶¶ 31, 33, 412 Ill.Dec. 751, 76 N.E.3d 817.

¶ 2 Thereafter, petitioner filed the petition for a certificate of innocence in the case at bar. Petitioner asserted he was innocent of the charges. After the matter was fully briefed, the circuit court conducted a hearing on the petition. Ultimately, the circuit court found that petitioner had not proven he was innocent of the criminal charges by a preponderance of the evidence and denied the petition.

¶ 3 Petitioner argues on appeal that the circuit court abused its discretion in denying his petition, as it applied an improper burden of proof and that the petitioner did, in fact, demonstrate his innocence so as to warrant granting the petition. For the following reasons, we affirm the circuit court's judgment.

¶ 4 BACKGROUND

¶ 5 At the bench trial, Officer Robert Gallas testified that on January 17, 2013, he was assigned to a gang unit tasked with executing a search warrant at 6809 South Laflin Street, which was a two bedroom first floor apartment in Chicago, Illinois (apartment). At approximately 9 p.m., his unit entered the apartment. The apartment door was barricaded with a "scissor gate" with a large padlock. While police attempted to open the door, the lessee of the premises, who was later determined to be Edward McDaniel, came to the door. As McDaniel would not promptly open the door and the padlock was too large to be cut with large bolt cutters, the team used a "Chicago bar" and sledgehammer to pull the scissor gate from its hinges and enter the apartment.¹ Upon entering, Officer Gallas noted that the rear door was barricaded with two-by-fours. According to Officer Gallas, the only two doors used to enter the apartment were barricaded.

¶ 6 Officer Gallas further testified that he could not recall recovering any evidence which would indicate that petitioner or McDaniel resided at the apartment. In addition, no drugs were found on petitioner when he was searched by officers, and nothing was found on his person which indicated petitioner resided in the apartment.

¶ 7 Officer Dan Pacelli testified that he was also assigned to the team executing the search warrant. He testified that he searched the dining room and front living room area of the apartment. While conducting his search, Officer Pacelli found two prescription bottles with petitioner's name on them in the living room next to the couch.² The trial court noted that the address on the pill bottles differed from that of the apartment. One of the bottles had a "use by" date of August 24, 2013, and the date August 24, 2012, was also written on the same bottle. The other bottle had a date of issuance of May 23, 2012. One of the bottles still contained pills, while the other was empty. While in the living room, Officer Pacelli also recovered alongside the prescription bottles an adult probation card that bore petitioner's name. Petitioner's passport was also found in the same area as the bottles and the probation card.

¶ 8 Officer Pacelli additionally recovered two duffel bags from atop the dining room china cabinet. The bags contained clothing that appeared to fit a male larger than himself. Officer Pacelli described himself as six feet, one inch tall and weighing 250 pounds. The trial court noted that petitioner was larger in size than Officer Pacelli and was wearing a size 4XL tan Department of Corrections uniform. Officer Pacelli also noted that McDaniel was of smaller proportions, approximately six feet tall and 160-165 pounds.

¶ 9 Officer Michael O'Connor testified that he was also a member of the search warrant team on January 17, 2013. He stated that there were paintings and photographs "all over" the front living room and that he recovered a framed photograph that included petitioner.

¶ 10 Officer Gus Bedoy testified that he searched the whole house and found nothing in the bathroom, kitchen, or either bedroom demonstrating that petitioner lived in the apartment. According to Officer Bedoy, nothing in the bedrooms demonstrated petitioner resided at the apartment and nothing in the bathrooms appeared to indicate that petitioner or McDaniel resided in the apartment. Officer Bedoy, while searching a hallway closet, noticed U-shaped scratches on the side of each wall. Part of the panel on the wall was loose, which led him to look inside. Officer Bedoy found metal tracks inside the wall and uncovered a large, clear, plastic bag that he suspected contained cannabis. The hidden compartment, commonly referred to as a trap, was three feet wide, three feet high, and approximately two feet deep and was constructed using two-by-fours. The opening mechanism operated using common parts utilized for an automobile power window, which included metal rails, a battery, power motor, and plastic bands.³ The trap contained multiple weapons, United States currency, digital scales, and mixing containers and agents commonly used in the preparation of drugs.

¶ 11 Federal Bureau of Investigation Special Agent Christopher Weismantel testified that, during the search, he went out to his vehicle and observed a red pickup truck parked behind him. His vehicle was parked almost directly in front of the apartment, and Agent Weismantel had been previously informed that the pickup truck might belong to petitioner. After noticing petitioner sitting in the driver's seat of the pickup truck, Agent Weismantel approached him, engaged him in conversation, and asked him to come inside the apartment, where petitioner was ultimately arrested.

¶ 12 Officer Gallas searched petitioner and testified that he could not recall finding any drugs on him or anything indicating that petitioner lived at the apartment.

¶ 13 Sergeant Michael Karczewski testified that he read petitioner his Miranda rights at the apartment (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Sergeant Karczewski further testified that later, at the police station, petitioner gave the police a signed written consent to search the pickup truck.

¶ 14 Officer Bedoy testified that, while searching petitioner's vehicle, he discovered a trap hidden behind the radio compartment. The trap resembled the one found inside the hallway closet in the apartment. Specifically, he noted that the motorized bands and insulation in the two traps were similar in composition and nature; however, he could not tell whether the same person installed them. He also stated that the parts used were common and could be purchased at any electronics or auto parts store.

¶ 15 Officer Vincent Ciocci, an evidence officer, testified that he recovered seven firearms and eight boxes of ammunition from the trap inside the apartment. The parties stipulated that the weapons recovered consisted of the following firearms: a .45-caliber handgun, a loaded 9-millimeter Ruger, a loaded 9-millimeter Beretta, a .357-caliber handgun, a .765-caliber handgun, a loaded 9-millimeter CPX1, and a 9-millimeter Taurus. In addition, Officer Ciocci recovered multiple bags containing various substances that he inventoried and delivered to the Illinois State Police Crime Lab.

¶ 16 The parties stipulated that, if called to testify, Soretta Patton, a forensic chemist employed by the Illinois State Police Crime Lab, would testify that she received the inventory envelopes from the Chicago Police Department and found they contained a total of 428.2 grams of cocaine, 100.3 grams of heroin, 273.5 grams of cannabis, and 0.3 grams of methamphetamine.

¶ 17 At trial, the State introduced a certified copy of petitioner's previous conviction for possession of a controlled substance, under case number 11 CR 0855601, in which petitioner was sentenced to 24 months of probation on September 10, 2012. The State also submitted a certified vehicle record demonstrating petitioner's ownership of the pickup truck. The address listed on the vehicle record was 7224 South Marshfield Avenue, Chicago, Illinois.

¶ 18 Defense witness David Cole testified that he owned the building located at 6809 South Laflin Street for 14 years and described it as consisting of two floors; McDaniel had been the lessee of the first floor apartment since 2011. Cole testified that he did not know petitioner. In addition, Cole had been inside the apartment only once, and every month McDaniel would step outside of the apartment and hand Cole the rent.

¶ 19 After hearing closing arguments, the trial court found petitioner guilty on all counts except the methamphetamine charge. In so finding, the trial court articulated that the totality of the evidence demonstrated petitioner...