People v. Wilkerson

63 N.E.3d 929

407 Ill.Dec. 497

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Torray WILKERSON, Defendant–Appellant.

No. 1–15–1913.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 26, 2016.

Mitchell D. Kreiter and Abbey Rosen, both of Kreiter & Rosen & Associates, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Tasha–Marie Kelly, and Sara McGann, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant was convicted of being an armed habitual criminal, possession with the intent to deliver 900 grams or more of heroin, and unlawful use of a weapon by a felon, but found not guilty of armed violence. Defendant was sentenced on June 24, 2015, to the minimum sentence of 15 years for possession of a controlled substance with intent to deliver, and 7 years for being an armed habitual criminal with the unlawful use of a weapon count to merge into that count. The court ordered both sentences to run concurrently.

¶ 2 On this appeal, defendant claims (1) that he was denied effective assistance of trial counsel where trial counsel (a) had a conflict of interest, (b) stipulated to the laboratory analysis, (c) failed to cross-examine a police officer about his vantage point in viewing defendant throw a gun out a window, and (d) failed to inquire about defendant's employment history; (2) that the State failed to establish guilt beyond a reasonable doubt that defendant possessed 900.5 grams of drugs with the intent to deliver; (3) that the conviction must be reversed due to inconsistent findings between defendant and codefendant where the State presented more evidence of guilt against codefendant, who was found not guilty, than against defendant, who was found guilty; and (4) that defendant's convictions for armed habitual criminal and unlawful use of a weapon by a felon should be reversed because the police officer's testimony concerning his view of the gun disposal was incredible. For the following reasons, we affirm defendant's convictions and sentence.

¶ 3 BACKGROUND

¶ 4 Defendant Torray Wilkerson was indicted on six felony counts including armed violence, armed habitual criminal, a Class X possession of a controlled substance with the intent to deliver, two counts of unlawful use of a weapon by a felon, and aggravated unlawful use of a weapon. The State dismissed one of the unlawful use of a weapon by a felon counts, as well as the aggravated unlawful use of a weapon count, before trial.

¶ 5 The evidence at trial established that on May 1, 2014, a nine-man team of police officers executed a search warrant of a three-story building on West Ogden Avenue in Chicago, which consisted of five apartments and a storefront. The target of the search warrant was an individual named Todd Jones. The team did not find Todd Jones at the location but instead found defendant and codefendant as well as drugs that were recovered in the storefront. At trial, the State called police officers Kyle Mingari, Bill Murphy, and Mark Gutkowski. Defendant did not testify. The parties stipulated to the findings of forensic chemist Lenetta Watson. After trial, the trial court held a posttrial evidentiary hearing regarding defendant's claim of ineffective assistance of trial counsel.

¶ 6 I. Evidence at Trial

¶ 7 A. Direct Examination of Officer Kyle Mingari

¶ 8 On October 22, 2014, Officer Kyle Mingari testified that he is a police officer assigned to the bureau of organized crime, narcotics division. He has been a Chicago police officer for eight years; he had been assigned to his unit for 2 ½ years; and he had executed search warrants in the past and had received training for firearms, both with the Chicago police department (CPD) and the Marine Corps.

¶ 9 Officer Mingari testified that on May 1, 2014, at 12:51 p.m., he, along with his supervisor and seven other police officers, executed a search warrant at an apartment building located on West Ogden Avenue in Chicago. The three-story building contained three apartments in the rear and an empty storefront with two apartments above it. The search warrant was confined to the first-floor rear apartment.

¶ 10 Officer Mingari testified that, while standing in a hallway between the front door of the rear apartment and the rear door to the storefront, he heard the sounds of a television coming from the storefront and knocked on the door. A male voice responded asking who it was, and Officer Mingari announced that he was a Chicago police officer, at which time he heard a second male voice respond “hold on.” Officer Mingari then heard a distinct sound that he believed to be a gun slide being racked¹ and simultaneously heard “a front door opening to the front.” At that time Officer Mingari heard one of his team members, Officer McKenna, yell from his position in the gangway on the east side of the building that codefendant Senica Wilkerson was climbing over the gate and running out from the front. At that point Officer Mingari moved toward the front of the building and observed another team member, Officer Mark Gutkowski, pursuing codefendant Senica Wilkerson. Officer Mingari made an in-court identification of codefendant as the individual he observed Officer Gutkowski pursuing.

¶ 11 Officer Mingari testified that, after he observed Officer Gutkowski pursuing codefendant, he exited the building out of the side stairwell and was standing in front of the building where he observed, through the scissor gates, that the front glass door was open. Officer Mingari could see through the open glass door into the storefront, and he observed defendant exiting out of the back door and up the stairwell to the second floor. Officer Mingari made an in-court identification of defendant, who he observed running up the stairs. He pursued defendant through the gangway and into the center hallway. At that time, he heard a door slam on the second floor, but he waited for assistance until team member, Officer Matthews,² arrived.

¶ 12 Officer Mingari testified that, after Officer Matthews arrived, Officer Mingari knocked on the door to the second-floor rear apartment, and there was no response. Officer Mingari then heard his supervisor, Sergeant Steck, relaying over the radio that Officer Bill Murphy, who was outside, had observed an individual inside that apartment open a window and discard what he believed was a firearm onto an adjacent roof. During this time, Officer Mingari remained at the door until defendant opened it and allowed officers Mingari and Matthews to enter. The officers temporarily detained defendant and Officer Murphy positively identified defendant as the individual he had observed discard the firearm onto the roof.

¶ 13 Officer Mingari testified that he went back down to the first floor and observed the empty storefront from his position at the threshold of the open rear door. Officer Mingari observed what he perceived to be several packages of drugs and two dogs in a cage. Officer Mingari could observe the storefront through the open door without opening it any further. After waiting for additional officers, he conducted a security sweep of that storefront. During the search, Officer Mingari observed packages of heroin, 85 total, on the table and a large quantity of heroin in the bathroom on a mirror that was on a toilet. He also observed a large case containing the prescription drug Dormin, which Officer Mingari testified is a sleeping aid usually used as a cutting substance in the mixing of drugs, as well as several more packages of drugs. After conducting a more thorough search, he observed a clear white trash bag with ammunition in it, as well as a large clear knotted bag that contained heroin. Officer Mingari also recovered four digital scales, three mixers, and a sifter.

¶ 14 Officer Mingari identified the following photographs that were admitted into evidence: (1) a photograph of the storefront entrance with scissor gates and an open glass door; (2) a photograph of the rear of the storefront, depicting the table with the drugs, on which Officer Mingari circled the drugs recovered from the table and the location of the digital scale and the sifter; (3) a photograph of the table where 85 bags of drugs were found; (4) a photograph of a blue plastic bin that contains mixers; (5) a photograph of the bundled packages of drugs on the floor toward the front of the storefront; (6) a photograph of the front portion of the storefront; (7) a photograph of a clear plastic bag of drugs; and (8) a photograph of the toilet covered by a mirror covered in heroin in the bathroom of the storefront. Officer Mingari testified that the eighth photograph entered into evidence depicted “the mirror with the pile of heroin on top of the mirror which is on the toilet” in the bathroom of the storefront.

¶ 15 Officer Mingari testified that he placed all the evidence into a blue plastic Rubbermaid bin and gave it to Officer Gutkowski. Officer Mingari then went back to the Homan Square police headquarters and spoke with defendant and codefendant, who are brothers. The codefendant told him that, at the time the search warrant was executed, only he and defendant were in the storefront and that defendant's residence was the second-floor rear apartment, which was the same apartment where defendant answered the door for Officer Mingari and from which Officer Murphy observed defendant throw the gun onto the roof. The codefendant told him that he resided on West Congress Avenue in Chicago.

¶ 16 B. Cross–Examination of Officer Kyle Mingari

¶ 17 On cross-examination, Officer Mingari identified the search warrant, which he and his team executed at West Ogden Avenue on May 1, 2014. In the portion of the search warrant that indicated the premises to be searched, Officer Mingari testified that it indicated only the first floor. Officer Mingari testified that the individual that...