Opinion
No. 1-11-2699
02-28-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SYLVESTER TRUITT, Defendant-Appellant.
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
Cook County.
No. 09 CR 22001
Honorable
John T. Doody, Jr.,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lavin and Justice Epstein concurred in the judgment.
ORDER
¶ 1 Held: Defendant's claim that he received ineffective assistance of trial counsel where counsel told the jury that defendant and another man were old friends and that their handshake was mistaken for a drug transaction, but then failed to introduce any evidence at trial to support this theory, is rejected. ¶ 2 Following a jury trial, defendant Sylvester Truitt was convicted of delivery of a controlled substance. Based on his criminal history, defendant was sentenced to a Class X term of seven years and six months in prison. On appeal, defendant contends that he received ineffective assistance of trial counsel when counsel told the jury that defendant and another man were old friends and that their handshake was mistaken for a drug transaction, but then failed to introduce any evidence at trial to support this theory. ¶ 3 For the reasons that follow, we affirm. ¶ 4 Defendant's conviction arose from the events of August 25, 2009. During opening statements at trial, the State explained its theory of the case: that defendant and two cohorts, working together, sold crack cocaine to an undercover officer. Defense counsel countered with a scenario in which defendant simply went to get his car washed, saw and waved to an old acquaintance, and then shook hands and chatted with this friend while his car was being washed. According to counsel's opening argument, the friend may have sold cocaine to an undercover officer, but defendant was not involved in the transaction. Counsel asserted that nothing was seen being exchanged between defendant and his acquaintance. Further, counsel argued that the State's version of events would not make sense. In particular, counsel questioned why defendant would leave the privacy of a car wash "where nobody can see inside" in order to conduct a drug transaction in plain sight in public. Finally, counsel noted that although the jury was going to hear that a professional team of officers was involved in the arrest, they would not hear or see evidence that they might expect, such as videotape, photographs, audio recordings, or fingerprints. ¶ 5 Chicago police officer Shayon Harris testified that he worked as an undercover "buy officer" as part of a narcotics unit. At about 1:13 p.m. on the day in question, he was in the area of Concord and Cicero because his team had received information that drug sales were taking place there. Officer Harris approached Verlisha Willis, who was sitting in front of a liquor store, and asked her, "Is the spot up?" He explained that he was asking whether drugs were being sold at a location where she had previously sent him. Willis responded affirmatively and asked how many "rocks," meaning how much crack cocaine, he wanted. Harris said that he wanted three. ¶ 6 Officer Harris testified that as he was speaking with Willis, Rufus Johnson approached and asked Willis, "Is this guy looking for some stones?" Officer Harris explained that "stones" was street terminology for crack cocaine. According to Officer Harris, Johnson told him, "My buddy got some stones. I'm going to call him. He'll bring it over." Johnson made a call on his cell phone during which he gave his location and said that he needed three stones. ¶ 7 At some point after Johnson's phone call, defendant drove up, honked his car horn, motioned to Johnson to go across the street to a car wash, and pulled into the car wash. Johnson crossed the street and met defendant, who was no longer in his car, in the car wash doorway. From a distance of about 25 feet away, Officer Harris observed defendant and Johnson have a brief conversation. Defendant then extended his right hand toward Johnson's right hand, which was cupped, and put "small items" into Johnson's hand. Johnson clenched his fist around the items and did not put them in his pocket. ¶ 8 Officer Harris testified that Johnson walked back across the street with his hand still clenched. Officer Harris and Johnson had a brief conversation and then went into the mouth of an alley next to the liquor store. There, Johnson handed Officer Harris three small, clear, knotted plastic bags, each containing a rock-like substance that Officer Harris suspected to be crack cocaine. Officer Harris put the bags in his pocket and gave Johnson $30 in prerecorded funds. Johnson took the money and went back across the street to the car wash. He approached defendant, who was still in the car wash doorway, and handed him the money. ¶ 9 Officer Harris left the area on a bicycle. He went to his van and radioed his team members with descriptions of defendant and Johnson. About half an hour later, he saw defendant with Johnson and some other people about a block away from the car wash. He communicated to his fellow officers that defendant and Johnson were the individuals who conducted the narcotics transaction. Officer Harris then went to the station, where he identified defendant and Johnson in photo arrays. He also inventoried the suspect narcotics he received from Johnson. ¶ 10 On cross-examination, defense counsel elicited testimony from Officer Harris that on the day in question, his team did not use a video camera, a still camera, or any kind of audio equipment to record the transaction. Officer Harris acknowledged that he did not hear anything that defendant and Johnson were saying to each other, and admitted that what he saw and assumed was a "hand transaction" was simply "one hand come up and another hand underneath." He also acknowledged that he did not include in his police report that defendant honked his car horn and gestured to Johnson to cross the street. ¶ 11 Chicago police officer Jose Casteneda testified that he was the narcotics team's surveillance officer on the day in question. He was sitting in a parked car about 25 to 30 feet from the car wash when he saw Officer Harris strike up a conversation with Verlisha Willis in front of the liquor store across the street. Rufus Johnson walked up to the pair, joined their conversation, and then pulled out a cell phone and placed a phone call. Less than five minutes later, a car approached the area, pulled into the car wash, and parked. Defendant got out of the car and walked over to the doorway of the car wash exit, and Johnson crossed the street and approached defendant. Then, according to Officer Casteneda, "they conducted a hand-to-hand transaction where the defendant gave an unknown object to the other person." Officer Casteneda stated that he saw both men "stick out their hand" and defendant hand an object to Johnson, but then clarified that he did not see any item transferred between the men. He also stated that it did not appear to him that defendant and Johnson were shaking hands. ¶ 12 Officer Casteneda testified that Johnson walked across the street and had a short conversation with Officer Harris. Johnson and Harris walked over to the alley, and then after a couple of seconds, Officer Harris got on his bicycle and rode away. Johnson walked back across the street to the car wash and approached defendant. According to Officer Casteneda, defendant and Johnson engaged in conversation, "reached out their hands and exchanged objects." Officer Casteneda could not tell what object was being exchanged. Johnson returned to the liquor store and about 10 minutes later, defendant got in his car and drove away. ¶ 13 On cross-examination, Officer Casteneda acknowledged that he did not take any photographs, could not hear any of the conversations he observed, and did not hear defendant honk his car horn before turning into the car wash. He also reaffirmed that he did not see any objects being exchanged between defendant and Johnson. When defense counsel asked what exactly he saw during the first "hand-to-hand" transaction, Officer Casteneda said that "They put, extended out their hands and did the exchange." He did not recall which hand either of the men used, and when asked for further detail, said, "I mean, they just stuck their hand out. How much more detail you want me to do?" Counsel followed up by asking whether he saw the men's hands touching, to which Officer Casteneda answered, "The hands reaching out." Counsel also asked Officer Casteneda what exactly he saw during the second transaction between defendant and Johnson. Officer Casteneda answered, "A similar motion as the first time where they walk up close to each other, within a foot or so, and extend their hands out, say a few words -- I could tell by their mouths -- and then they part ways." Again, Officer Casteneda could not recall which hands the men extended toward each other. ¶ 14 On redirect, Officer Casteneda testified that he did not pay attention as to whether defendant and Johnson shook hands during their first interaction, and that they did not shake hands during their second interaction. He also stated that he did not see defendant and Johnson smiling, laughing, or hugging like old friends during either interaction. ¶ 15 Chicago police officer Abner Rodriguez testified that he was working as an enforcement officer on the narcotics team on the day in question. Some time after 1 p.m., he received a radio transmission indicating that a buy had taken place and describing the people involved. About half an hour later, he saw a group of people that included individuals who matched the description given over the radio. Officer Rodriguez and his partner approached the group, which included defendant and Johnson, for a field interview and a protective pat-down. While conducting the stop, Officer Harris drove by, as the purpose of the stop was to get a positive identification. Officer Rodriguez explained that defendant and Johnson were not arrested at that time because the investigation was still ongoing. ¶ 16 A forensic chemist with the Illinois State Police Forensic Science Center testified that she received three bags in relation to the instant case. She weighed the contents of one of the bags at less than 0.1 grams. Further testing indicated the presence of cocaine. ¶ 17 Defendant did not testify or present any evidence. When defense counsel indicated that the defense was resting, the trial court confirmed with defendant that he was not going to testify. The trial court then asked defendant whether he understood it was his right to testify, whether he had an opportunity to talk to his attorneys about this right, and whether it was his decision -- as opposed to his lawyers' -- not to testify. Defendant answered each of the trial court's questions in the affirmative. ¶ 18 In closing, defense counsel argued that "in this digital age, we should have cameras, we should have audio evidence, we should have some type of way that we record these cases"; noted the lack of phone records and DNA testing; and emphasized that instead of presenting such evidence, the State was relying on a "convoluted mess of testimony." Counsel then questioned the plausibility of the State's version of events. He asked whether, if drug dealing was a risky business, it made sense that defendant would pull up to his partner in crime, honk his horn, and wave his arm, thus drawing as much attention as possible to himself. Counsel noted that Officer Harris did not mention the horn honking and arm waving in his initial police report, and rhetorically asked why the officer was customizing his testimony two years later. With regard to Officer Casteneda, counsel observed that he testified freely when we was questioned by the State, but became defensive during cross-examination. Counsel also highlighted that Officer Casteneda did not hear defendant honk his car horn. ¶ 19 Counsel went on to question the State's evidence regarding where the drug transactions took place. He asked why defendant and Johnson would stand on the sidewalk outside the door to the car wash instead of meeting inside the building. In addition, counsel noted that no one saw what, if anything, was being exchanged between defendant and Johnson. ¶ 20 In rebuttal closing, the prosecutor pointed out that defense counsel had stated in opening that the jury was going to hear "a story of two friends who met up and shook hands and met up and had a reunion near the car wash. You were going to hear how close they were. You were going to hear about how they met up on the afternoon of August 25th, but you heard none of that." The prosecutor argued that the evidence showed a hand-to-hand transaction, not a reunion of friends. In addition, the prosecutor noted defense counsel's comment on the lack of photographic, video, and fingerprint evidence, and asserted, "This is not an episode of CSI" and "It is not Law and Order." The prosecutor argued that the officers did not use video cameras because they would be in danger if they were seen filming drug transactions. With regard to fingerprints, the prosecutor argued that a fingerprint would be too large to fit on one of the bags and asked the jury to imagine "your tax dollars if fingerprints are being tested on every single case." ¶ 21 During deliberations, the jury sent out a note that the trial court interpreted as asking for a transcript of Officer Harris' testimony. The trial court sent an answer indicating that a transcript was not available. Some time later, the jury sent a second note, stating, "I do not feel we will come to a unanimous decision." The trial court responded that the jury had all the evidence and instructions, and directed them to keep deliberating. Eventually, the jury found defendant guilty of delivery of a controlled substance. ¶ 22 The trial court entered judgment on the verdict and subsequently sentenced him, based on his criminal history, to a Class X term of seven years and six months in prison. ¶ 23 On appeal, defendant contends that he received ineffective assistance of counsel when his attorney told the jury that he and Johnson were old friends and that their handshake was mistaken for a drug transaction, but then failed to introduce any evidence to support this theory. Defendant argues that counsel's failure to support this theory of defense "left him arguing at closing about the lack of a photo or video recording, phone records, DNA, and fingerprint evidence." Noting that in rebuttal closing, the State not only explicitly reminded the jury about counsel's unfulfilled promise, but also commented that this case was not "CSI" or "Law and Order," defendant argues that defense counsel's opening remark about defendant and Johnson's friendship "left a vacuum in the face of the defendant's burden to produce the evidence and the jury's heightened expectations," and that the unfulfilled expectations produced by the opening statement created a negative inference against defendant generally, thus causing prejudice against him. Defendant maintains that the jury had no choice but to reject the defense theory, as they were given no reason to credit it. Finally, noting that the jury was at one point deadlocked during deliberations, defendant argues that the jurors may have come to a different conclusion had they been presented some evidence to support the theory that a handshake between old friends was mistaken for a drug transaction. ¶ 24 The standard for a claim of ineffective assistance of counsel has two prongs: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 685 (1984). First, a defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. In order to establish this prong, the defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy. People v. Smith, 195 Ill. 2d 179, 188 (2000). Second, a defendant must establish prejudice by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. ¶ 25 Given the circumstances of the instant case, we find People v. Manning, 334 Ill. App. 3d 882 (2002), informative. In Manning, the defendant was charged with child abduction. In opening arguments, defense counsel stated that the defendant would testify that he took his daughter to Iowa because he was concerned his wife was mistreating her. Manning, 334 Ill. App. 3d at 884, 892. At trial, the defense provided no evidence of any mistreatment and the defendant informed the court he did not wish to testify. Manning, 334 Ill. App. 3d at 884. ¶ 26 On appeal, the defendant contended his trial counsel was ineffective for not delivering promised testimony. Manning, 334 Ill. App. 3d at 886. This court noted that an attorney's failure to provide promised testimony is not per se ineffective assistance of counsel. Manning, 334 Ill. App. 3d at 892. Rather, we explained that a defendant must show that his counsel's decisions were unreasonable and that there was a reasonable probability counsel's errors affected the outcome of the proceedings. Manning, 334 Ill. App. 3d at 892, citing Strickland, 466 U.S. at 694. ¶ 27 In Manning, we observed that the defendant was not alleging that his attorney advised him not to testify, or that counsel made his opening remark without first asking the defendant whether he wished to testify. Manning, 334 Ill. App. 3d at 893. We noted that the defendant could have informed his attorney prior to trial that he wished to testify, and subsequently changed his mind. Manning, 334 Ill. App. 3d at 893. In Manning, we could not determine from the record presented whether defense counsel's decision to abandon the defense of necessity was due to the defendant's choice not to testify, sound trial strategy, or incompetence. Manning, 334 Ill. App. 3d at 893. Accordingly, we were required to presume it was the result of trial strategy and we rejected the claim of ineffectiveness. Manning, 334 Ill. App. 3d at 893. ¶ 28 Here, defendant has not suggested what evidence of a long-standing friendship counsel could have offered; he has not asserted that he should have testified on his own behalf, that Johnson should have been called as a witness, or that counsel should have elicited certain testimony from the police. In fact, it appears from the record that defense counsel did cross-examine the officers regarding whether they saw a hand-to-hand transaction or a handshake. While defendant is not explicitly asserting that counsel should have called him or Johnson as a witness, such an argument is implied. As such, the instant case is similar to Manning. And, as in Manning, we cannot determine from the record whether counsel's failure to put defendant or Johnson on the stand to testify as to their friendship was due to sound trial strategy or incompetence. These are matters outside the record that cannot be addressed on direct appeal. See Manning, 334 Ill. App. 3d at 894. As this juncture, we must presume counsel's decision was the result of trial strategy. Manning, 334 Ill. App. 3d at 893. Thus, defendant's claim of ineffectiveness fails. ¶ 29 In light of our determination, we need not address the prejudice prong of the Strickland test. Strickland, 466 U.S. at 697 (a reviewing court need not address both prongs of the inquiry if the defendant makes an insufficient showing as to one prong). ¶ 30 For the reasons explained above, we affirm the judgment of the circuit court of Cook County. ¶ 31 Affirmed.