People v. Smith

SECOND DIVISION
August 5, 2008
No. 1-06-1187
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
) Cook County.
Plaintiff-Appellee, )
)
v. )
)
KENNETH SMITH, ) Honorable
) Marjorie Laws,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE SOUTH delivered the opinion of the court:
Following a jury trial, defendant, Kenneth Smith, was convicted of possession of a
controlled substance with intent to deliver and sentenced to 12 years in the Illinois Department of
Corrections. The Cook County public defender’s office represented him throughout the entire
proceedings.
A motion to quash arrest and suppress evidence was filed on defendant’s behalf and
heard on August 23, 2005. The report of these proceedings reflects that defendant was
represented by Lakshmi Jha, an assistant public defender, and John Borras “pursuant to Supreme
Court Rule 711.” See 210 Ill. 2d R. 711. Mr. Borras conducted the direct examination of
defendant, who testified that on March 1, 2005, at about 8:50 p.m., he was walking down the
street when police officers pulled up behind him, got out of their car, stopped him, and asked him
if he knew anything about a gun. At that time, according to defendant, the police officers
1-06-1187
searched him, and after finding two packets of heroin on him, placed him under arrest.
Defendant further testified that the police officers did not have a warrant for his arrest or a search
warrant, and he was not engaging in any criminal activity which would have justified the stop.
The cross-examination by the assistant State’s Attorney merely established that defendant
was in the area to visit his son, and he did not know the officers prior to March 1, 2005.
Additionally, it was brought out by the prosecutor that another male, whom defendant did not
know, was in the vicinity and was also arrested at the same time.
With that, the defense rested.
The State called Officer Griggs of the Chicago police department who testified that on
March 1, 2005, he was conducting a narcotics surveillance when he observed defendant in the
company of an individual known as Antonio Rollins. During the surveillance, defendant and
Rollins engaged in what appeared to be several narcotics transactions with a number of cars that
pulled up to them. At various times, either defendant or Rollins would go up to a car, engage in
a conversation with the occupant, and receive what appeared to be United States currency from
the individuals in the cars. On the last such transaction, Officer Griggs observed Rollins take
money from the female driver of a car, walk over to defendant and hand him an object, at which
time defendant took the object and handed it to the female driver, who then drove away. After
observing this transaction, Officer Griggs radioed for enforcement officers to detain defendant,
Rollins, and the female driver. Defendant was arrested, and after a pat-down search,
approximately three or four packets of heroin were recovered from his person. Griggs testified
that based upon his experience and knowledge as a narcotics police officer, he had observed
-2-
1-06-1187
defendant engaging in what appeared to be a series of narcotic transactions, which constituted
probable cause to arrest and search him.
Assistant Public Defender Jha conducted the cross-examination of Officer Griggs. The
State then rested, and both sides presented closing arguments. Mr. Borras, the 711 student, gave
the closing argument on behalf of defendant.
In its ruling, the trial court denied the motion, stating essentially that she found the
testimony of the police officer to be more credible than that of the defendant.
During the actual trial, defendant was represented by assistant Public Defenders Jha and
Timothy King. The State called five witnesses: three Chicago police officers who participated in
the narcotics surveillance, the forensic chemist who tested the substance recovered from
defendant, and the principal of a nearby elementary school where the transactions occurred. All
of the State’s witnesses were cross-examined by either Jha or King. Additionally, Jha argued
against the motions in limine presented by the State and for the motions in limine on behalf of
defendant. She also submitted the jury instructions, made opening statements and closing
argument, participated during the side-bar discussions, and interposed all or most of the
objections during the trial. The 711 student never participated during the trial proceedings. The
defense did not present any witnesses.
On appeal, defendant contends he was denied counsel because he was represented by an
unlicensed law student without his knowledge or consent during the motion to quash and
suppress, in violation of Supreme Court Rule 711.
Illinois Supreme Court Rule 711 provides, in pertinent part:
-3-
1-06-1187
“(a) Eligibility. A student in a law school approved by the
American Bar Association may be certified by the dean of the
school to be eligible to perform [services] *** if he/she satisfies
the following requirements[.]:
***
(c) Services Permitted. Under the supervision of a member
of the bar of this State, and with the written consent of the person
on whose behalf he/she is acting, which shall be filed in the case
and brought to the attention of the judge or presiding officer, an
eligible law student or graduate may render the following services:
***
(2) He/She may appear in the trial courts and
administrative tribunals of this State, subject to the
following qualifications:
***
(ii) In criminal cases, in which the penalty
may be imprisonment, *** the student or graduate
may participate in pretrial, trial, and posttrial
proceedings as an assistant of the supervising
member of the bar, who shall be present and
responsible for the conduct of the proceedings.”
-4-
1-06-1187
210 Ill. 2d R. 711(a), (c)(2)(ii).
Initially, the State acknowledges that no written consent was ever obtained from
defendant. Furthermore, our reading of the record indicates that defendant was never apprised,
verbally or in writing, of Mr. Borras’ Rule 711 status at any time during the proceedings. The
question then becomes whether this clear violation of Rule 711 mandates an automatic reversal
of defendant’s conviction and remand for a new trial.
Judicial review regarding ineffective assistance of counsel is performed on a case-by-case
basis in an attempt to comprehend counsel’s perception and integration of the combination of
facts, circumstances, and law unique to that case. People v. Truly, 230 Ill. App. 3d 948, 956
(1992). The situation in one case may not easily be analogized to the situation in another. To
hold that an attorney’s failure to obtain defendant’s written consent is per se ineffective
assistance of counsel would handicap and restrict judicial review of such violations in other cases
where ineffective assistance of counsel is alleged. Truly, 230 Ill. App. 3d at 957.
In People v. Schlaiss, 174 Il. App. 3d 78 (1988), the defendant was represented during a
bench trial on the charge of battery by a law school graduate who was working with the Lake
County public defender’s office pursuant to Supreme Court Rule 711. Immediately prior to trial,
the graduate student advised the trial court that he was “operating under the supervision of [a
licensed assistant public defender and that this attorney] was present at the trial.” Schlaiss, 174
Ill. App. 3d at 79. On appeal, the court noted that the only mention of the student’s Rule 711
status was a brief statement at the beginning of the trial when he said he would be operating
under the supervision of the licensed assistant public defender and was an assistant public
-5-
1-06-1187
defender. The court went on to state:
“There is no affirmative indication from the record that defendant
acquiesced in such representation, or that anyone informed
defendant that [the Rule 711 student] was not a licensed attorney.
Because the conditions necessary for [his] representation of
Schlaiss were not met, he cannot be considered ‘counsel’ for
constitutional purposes. Therefore, under these facts, we conclude
that the defendant was denied counsel in violation of the sixth
amendment to the Constitution of the United States, and his
conviction must be reversed and the cause remanded for a new
trial.” Schlaiss, 174 Ill. App. 3d at 81-82.
In In re Moore, 63 Ill. App. 3d 899 (1978), the respondent was found to be in need of
mental treatment and hospitalized at a mental health facility following a jury trial. Moore, 63 Ill.
App. 3d at 899. Prior to trial, respondent elected to represent himself but selected a Rule 711
student to act as second chair during his trial after being advised by the court that he should do
so. Moore, 63 Ill. App. 3d at 900. In reversing and remanding to vacate the judgment which
found respondent in need of mental treatment, this court noted that the record failed to disclose
any affirmative signal that either respondent or the trial judge was aware of the student’s Rule
711 status, and no written consent form by respondent appeared in the record. Moore, 63 Ill.
App. 3d at 904. Furthermore, this court noted that the trial judge mistakenly believed that the
Rule 711 student was an assistant public defender and therefore a licensed attorney. Moore, 63
-6-
1-06-1187
Ill. App. 3d at 904.
In the instant case, we are presented with a situation where Supreme Court Rule 711 was
not complied with during the proceedings on the motion to quash and suppress. No one would
dispute that such a motion is a critical stage of any criminal proceeding because it determines
whether crucial evidence will be admissible at trial. In this case, had the motion been granted
and the heroin suppressed, the State would have been rendered powerless to proceed against
defendant.
However, each case must be evaluated on its own unique set of facts. In the case at bar,
Borras, the Rule 711 student, never participated at the trial and only conducted the direct
examination of defendant and closing argument at the hearing on the motion to quash and
suppress. The testimony which Borras elicited during defendant’s direct examination merely
established what was alleged in the written motion, i.e., that he was not committing a crime
immediately prior to or at the time of his arrest and that, therefore, the police lacked probable
cause to detain and search him. Furthermore, it was assistant public defender Jha who conducted
the cross-examination of the State’s sole witness, Officer Griggs. Furthermore, Borras’ closing
argument merely exhorted the court to find defendant’s testimony more credible than that of
Officer Griggs.
However, during the trial itself, defendant was at all times fully represented by two
licensed attorneys who conducted every aspect of the proceedings, which included the cross-
examination of all State witnesses, objections, motions in limine, jury instructions, opening
statements, and closing arguments. Borras never participated, and it is unclear whether he was
-7-
1-06-1187
even present.
While we agree that a defendant is entitled to competent representation in court, this case
cannot support a charge of ineffective assistance of counsel or a deprivation of counsel based
upon counsel’s failure to obtain defendant’s consent allowing a Rule 711 law student to
participate in the motion to quash and suppress. Under the unique set of facts of this case, the
violation of Supreme Court Rule 711 does not mandate a reversal of defendant’s conviction since
he was represented by two licensed attorneys and never deprived of counsel during his trial.
Accordingly, the judgment of the circuit court is affirmed.
Affirmed.
HALL and KARNEZIS, JJ., concur.
-8-