Illinois Brief on Possession of Drugs - Insufficient Proof

GENERAL NO. 2-07-0446

APPELLATE COURT OF THE STATE OF ILLINOIS

SECOND JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

-vs-

MATTHEW KUCINSKI,

Defendant-Appellant.

Appeal from DuPage County
Circuit Court 18^th District
Circuit Court Case No: 04 CF 2143
Honorable Mark W. Dwyer
Judge Presiding
Date of Notice of Appeal: 04-23-07 

BRIEF AND ARGUMENT OF DEFENDANT - APPELLANT

NOW COMES, MATTHEW KUCINSKI, Defendant-Appellant, by his Attorneys, RAMSELL and for his Brief and Argument herein, states as follows:

POINTS AND AUTHORITIES

Page(s)

I. Standard Of Review..............................................................................................5

People v. Ortiz, 196 Ill 2d. 236, (2001)..........................................................5

2. The State failed to prove beyond a reasonable doubt, that the defendant knowingly possessed drugs, when the items were found in a locked center console, the key to the console was not located, he did not own the car, there were no other items in the console or car that were connected to the Defendant, and the officer had to 'jimmy' the locked console in order to open it. Further, there was no evidence that the item used to open the console (a non-conforming key) had previously been used as a device to open the console.

People v. Ortiz, 196 Ill 2d. 236, (2001)............................................................8,9

People v. Bell, 53 Ill. 2d 122, (1972)...............................................................8

People v. Stevenson, 25 Ill. 2d 361, (1962)......................................................8

People v. Wells, 241 Ill. App. 3d 141, (3^rd. Dist. 1993)...........................................9, 10

People v. Hamblin, 107 Ill. App. 3d, (4^th Dist. 1982)...............................................10, 11

People v. Bolden, 53 Ill. App. 3d 848, (4^th Dist. 1977)............................................11

 

NATURE OF ACTION

Defendant was charged with DUI; Unlawful Possession of a Controlled Substance; and Unlawful Possession of Cannabis on July 31st, 2004. The case proceeded to a bench trial on January 4^th, 2007. The trial court found Defendant not guilty of DUI but guilty of Unlawful Possession of a Controlled Substance and Unlawful Possession Cannabis. Defendant then filed a Motion for Judgment Notwithstanding the Verdict or for a New Trial on January 5th, 2007. This Motion was subsequently denied by the trial court at a hearing on March 28th, 2007 and Defendant was sentenced to 24 months of probation. Defendant then filed the instant appeal.

ISSUE PRESENTED FOR REVIEW

Whether the trial court erred in finding Defendant guilty beyond a reasonable doubt of Unlawful Possession of a Controlled Substance and Unlawful Possession of Cannabis.

 

JURISDICTION

On January 4^th, 2007, the trial court found Defendant guilty of Unlawful Possession of a Controlled Substance and Unlawful Possession of Cannabis. On March 28^th, 2007, Defendant=s Motion for a New Trial and/or Judgment Notwithstanding the Verdict was denied. The appellate court has jurisdiction pursuant to Supreme Court Rule 604 (b).

STATEMENT OF FACTS

 

On July 31^st, 2004, Officers from the Burr Ridge, Willowbrook, Woodridge, Darien and Downers Grove Police Departments, along with Deputies from the DuPage County Sheriff's Department, were conducting a Roadside Safety Checkpoint on Southbound Route 83 and Honey Suckle. ( R. C 142-43, 213-14). Every fourth car was being stopped and the Officers were looking for license and equipment violations along with intoxicated drivers. ( R. C 142, 215). Officer John Helms of the Burr Ridge Police Department testified at the trial. He was working the checkpoint and at some point, came into contact with Defendant Kucinski. (R. C 214-15). Kucinski was driving a 1992 GMC SUV which belonged to his father. (R. C 276). Kucinski had his window rolled down and Officer Helms asked for his license and proof of insurance. (R. C 216). Kucinski provided these items without any difficulty. (R. C 216). The Officer noticed a strong odor of an alcoholic beverage and observed Kucinski's eyes to be bloodshot and glassy. (R. C 216). Kucinski admitted having a couple of beers. (R. C 217). Officer Helms had Kucinski exit his vehicle for field sobriety tests. (R. C 217-18). After administering the tests, Officer Helms arrested Kucinski for DUI. (R. C 234-35).

Police dogs were then walked around the vehicle during a search and alerted to the vehicle's center console. (R. C 235-36). The console was locked so Officer Helms asked Kucinski whether he had a key for it and Kucinski did not have the console key. ( R. C 257-58). Kucinski was searched after his arrest and the console key was not found during the search. (R. C 286). The Officer was able to open the console with another smaller key found on the key ring in the ignition that "did not exactly fit" the lock, which according to the officer "was not completely intact" and "looked like it had been tampered with previously." (R. C 258-59, 280-81). He further described the lock as "scratched," (R. C 281, 284), and looking like "something had been jammed into the keyhole prior." (R. C. 280). However, he also stated the console could not have been opened without use of a key or some other device. (R. C 259). The Officer also could not recall anything about the key ring other than there were more than two keys and could have been anywhere from three to a hundred keys on it. (R. C 283).

Officer Helms found a small baggy containing a white, powdery substance and another containing a green, leafy substance in the console. (R. C 236). Helms described Kucinski as polite and cooperative throughout his encounter except for being "upset" when he accused Kucinski of possessing drugs. (R. C 257). Kucinski never made any admissions concerning the drugs found in the vehicle. The Officer did not smell the odor of burnt cannabis nor did he find any evidence of burnt cannabis in the vehicle. (R. C 270). He also did not observe Kucinski's eyes to be pinpointed. (R. C 270).

The Officer could not recall finding any items in the console or the car that bore Kucinski's name or what other items were located in the console. (R. C 260-61). By the location of the baggies in relation to the other contents of the console, Officer Helms stated the baggies could not have been the last items placed in the console. (R. C 268-69). The items that were found in the car were never fingerprinted. (R. C 265-66). The console and interior of the vehicle were never checked for fingerprints. (R. C 267). There were no markings on either of the baggies that were attributed to Kucinski. (R. C 265). While being interviewed at the station, Kucinski advised the Officer that the vehicle was his father's and that his younger brother used the vehicle. (R. C 263).

The trial court found Kucinski guilty of possession of the cocaine and cannabis finding

that he was in exclusive control of the vehicle as he was alone at the time and that since the Officer was able to open the lock, the drugs were therefore also accessible to Kucinski. (R. C 305-06). Kucinski's Post-trial motion was also denied by the trial court. (R. C. 314).

This appeal follows.

ARGUMENT

I. Standard Of Review

 

In reviewing the sufficiency of evidence, the appropriate standard is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the State. ­People v. Ortiz, 196 Ill 2d. 236, (2001).

2. The State failed to prove beyond a reasonable doubt, that the defendant knowingly possessed drugs, when the items were found in a locked center console, the key to the console was not located, he did not own the car, there were no other items in the console or car that were connected to the Defendant, and the officer had to 'jimmy' the locked console in order to open it. Further, the item used to open the console (a non-conforming key) did not appear to have been previously used as a device to open the console.

In this case, the only connection of any kind between Kucinski and the drugs he was

found guilty of knowingly possessing was that they were found inside a locked center console of a vehicle he was driving. The vehicle was owned by Kucinski's father, and was also driven by his younger brother as well as his father. (R. C 263, 276). Kucinski did not have the key for the console on his person. ( R. C 257-58). It was not found on his person later when he was searched at the police station, (R. C 286), and apparently wasn't found in the car when it was searched. (R. C 235).

Officer Helms was only able to open the console by using a smaller key found on the key ring in the ignition that he testified "did not exactly fit" the lock. (R. C 258-59). He also testified the lock itself "was not completely intact" and "looked like it had been tampered with previously." (R. C 258-59, 280-81). Helms also said the lock was both scratched, (R. C 281, 284), and looked like "something had been jammed into the keyhole prior." (R. C. 280). He also stated the console could not have been opened without use of a key or some other device. (R. C 259). Helms could not recall anything about the ring on which the key was found other than there were more than two keys and could have been anywhere from three to a hundred keys on it. (R. C 283).

Helms didn't recall finding any items anywhere in the car that bore Kucinski's name on them. (R. C 260-61). Officer Helms stated the baggies containing the drugs could not have been the last items placed in the console because of their location, though he was unable to recall what other items were in the console. (R. C 260-61, 268-69). Neither the baggies found in the car nor the console or interior of the vehicle were ever checked for fingerprints. (R. C 265-67). There were nothing found on either of the baggies to connect them to Kucinski. (R. C 265).

Kucinski was polite and cooperative throughout his encounter with Helms except for becoming "upset" when Helms accused him of possessing drugs. (R. C 257). Kucinski never made any admissions concerning the drugs found in the vehicle. Helms didn't smell any odor of burnt cannabis nor did he find any evidence it had been smoked in the vehicle. (R. C 270). Kucinski's eyes were not pinpointed. (R. C 270). Thus, there was simply no evidence connecting Kucinski to the drugs, nor was there any evidence to indicate he knew the drugs were located in the vehicle's console. In spite of all of this, the trial court found him guilty solely because he was driving the vehicle and Helms was able to open the console with a key found on the vehicle's key ring, even though it was not the correct key for the console lock.

An appellate court can reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt as to defendant's guilt. People v. Ortiz, 196 Ill. 2d 236, (2001). Trial court determinations as to both witness credibility and the weight of the testimony; resolutions as to conflicts in the evidence, and reasonable inferences drawn from the evidence are entitled to great deference, but are not conclusive. Ortiz at 259. (Emphasis supplied). Here the credibility of Officer Helms is not in dispute. His testimony did not in any way link Kucinski to the drugs found in the vehicle. Rather, it was limited to how and where he discovered the drugs. Thus there is no conflict in the evidence adduced which clearly justified both the existence of reasonable doubt and thus, findings of not guilty. The trial court's findings of guilty were so unreasonable, improbable and unsatisfactory that reversal of Kucinski's conviction is warranted.

In Ortiz, defendant was stopped for speeding while driving a tractor-trailer he neither owned nor was the sole driver of. The trooper checked defendant's license; registration, and travel logs and sought information about the trip, the owner, other drivers and the cargo. He testified defendant appeared to be "extremely nervous." After issuing defendant a warning and returning his documents, the trooper advised he was free to leave but then asked whether defendant had anything illegal in the vehicle. Defendant said no and asked the trooper whether he wanted to search. A secret compartment was discovered hidden behind the cargo in the trailer containing a large amount of cocaine. Other troopers testified defendant also appeared very nervous while the truck was being searched and that he showed very little emotion when arrested after being advised of the cocaine's discovery.

The trial court found Ortiz guilty, primarily because as the driver, he was deemed in control of the truck, giving rise to a presumption that he had knowledge of its contents. Ortiz, supra at 249. Here, the trial court made the same finding. The trial court in Ortiz expressly relied on People v. Bell, 53 Ill. 2d 122, (1972), which set forth the presumption as follows:

"Where narcotics are found on premises under the defendant's control, it may be inferred that he had requisite knowledge and possession, absent other facts and circumstances which might leave a reasonable doubt as to guilt in the minds of the jury." Bell at 122.

However, after carefully examining the evidence, the Ortiz court found the evidence was insufficient to establish defendant's guilt beyond a reasonable doubt. Ortiz at 267.

"A Judgment of conviction can be sustained only upon credible evidence that removes all reasonable doubt of guilt, and where the evidence of the prosecution is improbable, unconvincing or contrary to human experience, we will not hesitate to reverse that conviction. People v. Stevenson, 25 Ill. 2d 361, (1962). We cannot sustain defendant's conviction on the evidence adduced in this case. The circumstantial evidence was scant at best, and appears even weaker in light of the evidence supporting a not guilty finding." People v. Ortiz, 196 Ill. 2d at 267.

In reversing defendant's conviction, the Ortiz court found there was sufficient facts adduced to overcome the presumption that defendant knew the cocaine was in the truck simply because he was in control as the driver. "We agree that we would be dubious of a result based solely on a presumption of knowledge in a case such as the instant one, where drugs were found in a secret compartment in the trailer of a vehicle driven for hire, which the driver did not own." Ortiz at 259.

In People v. Wells, 241 Ill. App. 3d 141, (3^rd. Dist. 1993), defendant and a passenger were stopped at a safety check roadblock similar to that in the case at bar. Upon seeing an open bottle of beer on the passenger side floor board and learning that defendant didn't have a driver's license, officers had defendant and his passenger exit the car. Upon searching, officers found 2 bags containing cannabis in the vehicle, one of which was also on the vehicle's floor. They also found small pieces scattered about the interior and detected the odor of cannabis throughout the interior of the car. After arresting both defendant and the passenger, an inventory search of the trunk revealed cannabis plants for which defendant was convicted. He then appealed asserting the State failed to present sufficient evidence that he had knowledge of the cannabis in the trunk.

Defendant, who had borrowed the car from a friend earlier that evening, testified he did not know about the beer bottle, or the bags of cannabis in the vehicle and did not see the cannabis pieces found throughout the vehicle. He also testified he never looked in the vehicle's trunk. However, the passenger testified that defendant had stated he was going to pick some cannabis and make some money. Later, defendant stopped and left the vehicle for approximately 10 to 15 minutes. He returned stating he had cannabis. The passenger did not see defendant place it in the trunk but testified he didn't get into the front of the vehicle with it.

The appellate court upheld the conviction. "In deciding whether defendant had knowledge of the cannabis in the trunk, the jury was essentially faced with a credibility question. The jury chose to believe [the passenger] instead of the defendant. Wells at 147. Obviously, the Wells case is distinguishable because of the passenger's testimony that defendant picked the cannabis found in the trunk. However, the two bags of cannabis found in the vehicle along with the open beer, the cannabis pieces and odor of cannabis throughout the vehicle were also factors which would support the presumption that defendant knew the cannabis plants were in the trunk. In the present case, there was no evidence of any kind adduced to support this blanket presumption.

The evidence in the case at bar, like that in Ortiz, is likewise more than sufficient to overcome the presumption Kucinski knew the drugs were in the locked console. There simply is no evidence to suggest Kucinski was aware of their presence. Nor was there any evidence adduced that would corroborate the presumption of knowledge solely because the drugs were found in a locked compartment of a vehicle he was driving. In fact, much of the evidence at least casts doubt upon, if not directly rebuts the presumption of knowledge which formed the basis for the trial court's finding of guilty.

For example, Helms described Kucinski as polite and cooperative throughout his encounter, except for becoming upset when accused of possessing the drugs. Kucinski did not become upset earlier when asked to take field sobriety tests or when he was later arrested for DUI. Nor was he ever described as nervous. In Ortiz, factors relied on by the trial court to support the presumption of knowledge included the defendant's being extremely nervous throughout his encounter and then expressing virtually no emotion at all when told of the discovery. In People v. Hamblin, 107 Ill. App. 3d, (4^th Dist. 1982), Defendant was arrested after being found asleep at the wheel of a van with the engine running. He struggled with the police when he was arrested. A search of the van, of which he was the driver and sole occupant, revealed an envelope and a metal box which each contained cannabis, and a pistol found in a knapsack. Defendant appealed his convictions alleging the evidence was insufficient to establish actual or constructive possession of the contraband.

The Hamblin court upheld the convictions, finding defendant's act of resisting arrest corroborated the presumption that he had knowing control of the contraband. Hamblin at 111. Similarly, in People v. Bolden, 53 Ill. App. 3d 848, (4^th Dist. 1977), defendant was known to have a suspended driver's license and fled when officer's attempted to stop him resulting in a high speed chase. A small packet of heroin was found on the driver's seat of the car which was owned by defendant's wife. In upholding his possession conviction, the court stated that his leading police in a high speed chase was evidence that he knew he was committing a serious crime. Bolden, supra at 854.

In stark contrast, Kucinski's remaining polite and cooperative while being arrested for DUI and only becoming upset when he was accused of possessing drugs would rebut, rather than support the presumption he had no knowledge there were drugs in the console. The inference is further rebutted by a variety of other factors. The car belonged to Kucinski's father and was also driven by his brother. Nothing belonging to Kucinski was found in the vehicle. The console lock appeared to have been tampered with previously. Officer Helms testified the baggies containing the drugs "could not have been the last items placed in the console because of their location." If Kucinski had "easy access" to the locked console without the correct key, as stated by the trial court, and placed the drugs there before driving, the drugs would have been the last items placed in the console. But the testimony of the State's witness clearly rebuts this inference. Kucinski and the vehicle were both searched thoroughly without turning up the actual key for the console lock. Kucinski took the field tests and admitted drinking but never admitted possessing the drugs. There was no evidence or odor of drug use found in the vehicle. In summary, there was no direct evidence Kucinski knew the drugs were in the locked console. The only circumstantial evidence was in the form of a common law presumption, which itself is disfavored unless corroborated by other evidence. Here, all other evidence rebutted, rather than corroborated this presumption. The scant evidence of the prosecution was "improbable, unconvincing, and contrary to human experience." Kucinski's conviction should be overturned.

 

CONCLUSION

 

WHEREFORE, Defendant-Appellant, MATTHEW KUCINSKI, prays that This Court reverse the trial court=s findings of guilty for the reasons set forth herein.

Respectfully Submitted,

_______________________________

One of Defendant-Appellant=s Attorneys

128 S. County Farm Road

Suite F

Wheaton, IL 60187

(630) 665-8780

APPENDIX

 

TABLE OF CONTENTS TO APPENDIX

Document Page

Copy Of Judgment Appealed From A1

Notice Of Appeal and Notice of Filing A2 & 3

Table Of Contents of Record on Appeal A4 thru

TABLE OF CONTENTS OF RECORD ON APPEAL

AND SUPPLEMENTAL RECORD ON APPEAL

Document Page

4 Count Complaint for DUI, UPCS, Unlawful

Possession of Cannabis, Unlawful Possession of

Drug Paraphernalia C- 1-3

Mittimus C- 4

Warning To Motorist C- 5

Notice of Summary Suspension C- 6

Notice to the Secretary of State of Hearing

Disposition C- 7-8

Bail Bond C- 9

Notice of Filing C- 10

Petition to Rescind Summary Suspension C- 11

Motion for Discovery C- 12-15

Notice to Produce at Summary Suspension Hearing C- 16-17

Appearance C- 18

Confirmation of Summary Suspension C- 19

Court Order dated 8/23/04 C- 20

Disclosure to Defendant C- 21-23

Indictment Identification Information C- 24

Indictment C- 25

People's Motion to Continue with Affidavit C- 26-27

Court Order dated 8/30/04 C- 28

Court Order on Summary Suspension dated 8/30/04 C- 29

Notice of Filing - Motion to Quash Arrest C- 30

Motion to Quash Arrest & Suppress Evidence C- 31-32

Notice of Summary Suspension Recission C- 33

Supplemental Disclosure II (lab) C- 34

State's Petition to Strike Defendant's Motion to

Quash Arrest & Suppress Evidence C- 35-36

Court Order dated 9/27/04 C- 37

Court Order dated 9/27/04 C- 38

Supplemental Disclosure I (Grand Jury Transcript) C- 39

Supplemental Disclosure II (Convictions and Videos) C- 40

Supplemental Disclosure III (Convictions) C- 41

Court Order dated 11/09/04 C- 42

Supplemental Disclosure V (Crime lab notes) C- 43-44

Court Order dated 12/03/04 C- 45

Appearance C- 46
Court Order dated 1/05/05 C- 47

Court Order dated 3/16/05 C- 48

Court Order dated 3/25/05 C- 49

Supplemental Disclosure VI (Correct Video) C- 50

Court Order dated 5/02/05 C- 51

Criminal Subpoena to Claire Donaghey C- 52

Sheriff's Return C- 53

Criminal Subpoena to Sgt. DeYoung C- 54

Criminal Subpoena to Officer O'Connor C- 55

Defendant's Supplemental Disclosure to State C- 56

Notice of Filing - Supplemental Disclosure C -57

Criminal Subpoena to Detective Barnes C- 58

Criminal Subpoena to Officer Helms C- 59

Court Order dated 8/22/05 C- 60

Motion for Continuance C- 61

Notice of Motion for Continuance C- 62

Affidavit C- 63

Court Order dated 9/07/05 C- 64

Criminal Subpoena to Sgt. DeYoung C- 65

Criminal Subpoena to Officer Helms C- 66

Criminal Subpoena to Officer O'Connor C- 67

Criminal Subpoena to Detective Barnes C- 68

Criminal Subpoena to Claire Donaghey C- 69

Sheriff's Return C- 70

Court Order dated 11/16/05 C- 71

Court Order dated 12/06/05 C- 72

Criminal Subpoena to Sgt. DeYoung C- 73

Criminal Subpoena to Officer Helms C- 74

Criminal Subpoena to Detective Barnes C- 75

Criminal Subpoena to Officer O'Connor C- 76

Court Order dated 03/13/06 C- 77

Notice of Motion for Continuance C- 78

Motion for Continuance C- 79

Affidavit C- 80

Court Order dated 05/05/06 C- 81

Court Order dated 06/21/06 C- 82

Court Order dated 09/06/06 C- 83

Court Order dated 09/18/06 C- 84

Court Order dated 10/11/06 C- 85

Notice of Motion for Additional Disclosure C- 86

People's Motion for Additional Disclosure by Defendant C- 87-88

Court Order dated 12/28/06 C- 89

Supplemental Disclosure VII C- 90-91

Court Order dated 01/04/07 C- 92

Presentence Report Order C- 93

Stipulation dated 01/04/07 C- 94

Evidence Receipt C- 95

Jury Trial Waiver C- 96

Supplemental Disclosure VII C- 97-98

Motion for New Trial and/or Judgment

Notwithstanding the Verdict C- 99

Notice of Motion for New Trial C- 100

Presentence Report (sealed) C- 101

Court Order dated 02/08/07 C- 102

Criminal Sentence Order - Count 2 C- 103-104

Criminal Sentence Order - Count 3 C- 105-106

Conditions of Probation C- 107

Order for DNA testing C- 108

Court Order dated 03/28/07 C- 109

Court Order dated 03/28/07 C- 110

Receipt for Fines and Costs C- 111

Order for DNA testing C- 112

DNA Indexing Laboratory-Sample Information C- 113

Writ of Praecipe C- 114

Notice of Appeal C- 115

Notice of Filing C- 116

Appellate Court Order dated 05/31/07 C- 117

Report of Proceedings from March 16th, 2005 C- 118 thru 192

Direct Examination-Matthew Kucinski- C119 thru 122

Cross Examination-Matthew Kucinski- C122 thru 123

Direct Examination- Sgt Brian DeYoung- C126 thru 150

Cross Examination- Sgt. Brian DeYoung- C150 thru 166

Redirect Examination- Sgt. Brian DeYoung- C166 thru 170

Report of Proceedings from March 25th, 2005 C- 193 thru 202

Report of Proceedings from January 4th, 2007 C- 203 thru 307

Direct Examination- Officer John Helms- C212 thru 248

Cross Examination- Officer John Helms- C248 thru 272

Redirect Examination- Officer John Helms- C272 thru 283

Recross Examination- Officer John Helms- C283 thru 286

Report of Proceedings from March 28th, 2007 C- 308 thru 323

Unnumbered Evidence Envelope