People v. Milton

Citations: 211 Ill. App. 3d 1006; 570 N.E.2d 865; 156 Ill. Dec. 389; 1991 Ill. App. LEXIS 488Docket: No. 1—88—2290

Court: Appellate Court of Illinois; March 28, 1991; Illinois; State Appellate Court

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Darrell Milton was convicted by a jury for delivering between 1 and 15 grams of a controlled substance, specifically cocaine, and received an 8½-year prison sentence, which runs concurrently with another related charge for which he pleaded guilty. He was also fined $11,500. Milton's appeal raises three primary issues: (1) the trial court's requirement for him to submit an affidavit to support his entrapment defense regarding police informant information; (2) the potential ineffective assistance of counsel due to failure to object to the State's use of the affidavit for impeachment; and (3) the contention that the State’s closing argument improperly shifted the burden of proof onto him. The case involved testimony from special agent Willie Davis, who participated in drug transactions with Milton on March 12 and March 24, 1987, during which Milton sold Davis cocaine. The March 24 transaction, where Milton sold Davis seven grams for $500, was the basis for the charge at trial. Additionally, a subsequent sale of eight ounces of cocaine on March 27, 1987, for $11,600, led to Milton's guilty plea on that charge. Milton testified about his employment history and a disability leave he took in 1986, which affected his income.

Defendant applied for disability benefits, receiving partial approval after returning to work. He testified about working "odd jobs" during his leave and that his car was repossessed, prompting him to seek either higher-paying work or a second job. Upon returning to work, he inquired with McDuff about job opportunities, to which McDuff offered to help him connect with an employee at Brown and Lambert, a construction company. During their interactions, McDuff persistently requested that defendant introduce him to a cocaine source, despite defendant's initial refusals. Eventually, on March 12, 1987, defendant admitted to meeting Davis and selling him cocaine, justifying his actions by claiming he was returning excess cocaine to his source due to Davis asking for less. 

Defendant acknowledged subsequent cocaine sales to Officer Davis on March 24 and March 27, 1987, asserting he was merely a "middle man" in these transactions. He stated he earned approximately $25,000 annually upon returning to work and lived with his mother. The assistant State’s Attorney used a signed affidavit from defendant, which indicated he was tempted by potential extra income from McDuff, to impeach his credibility, despite defense counsel's objections being overruled. Defendant affirmed he was neither coerced nor threatened by McDuff and had no further contact with him post-initial drug transaction.

Defense witness Michael Turpeau testified that McDuff had repeatedly solicited him for cocaine during late 1986 and early 1987. Carl Bodnar, another defense witness, recounted a past joint criminal history with McDuff, including a car theft conviction, contrasting their sentences. He revealed McDuff had retained a different lawyer and was to be placed on probation. Bodnar admitted to being on probation for a similar offense at his sentencing. Major Charles Doerr, a State Police area commander, provided a letter to the Will County State’s Attorney advocating for leniency towards McDuff in exchange for his cooperation with law enforcement.

Philip Mock, an assistant State’s Attorney, testified in favor of the defendant, McDuff, after previously prosecuting him. Mock agreed to recommend a maximum five-year imprisonment term in exchange for a guilty plea. Following the jury's guilty verdict, McDuff pleaded guilty to a delivery charge and was sentenced to concurrent terms of 8½ years. McDuff argued that the trial court erred by requiring him to submit a signed affidavit regarding his entrapment defense to obtain information about a police informant, claiming it forced him to self-incriminate. While the State contended that this issue was not preserved for appeal, the court considered it under the plain error rule.

In a pretrial motion, McDuff sought documents and evidence concerning the informant, McDuff, including his criminal history and assistance in investigations. The trial court denied these requests but allowed McDuff to file a motion to reconsider. The court ultimately cited prior cases indicating that the disclosure of an informant was unnecessary without adequate justification from McDuff, as the informant was not involved in the relevant transactions. Additionally, the court referenced a procedure allowing McDuff to submit an affidavit to establish the relevance of the requested information. At a subsequent hearing, McDuff submitted an affidavit admitting to cocaine deliveries and outlining his entrapment defense, prompting the court to order the State to provide most requested information. The court concluded that the initial denial of discovery requests was justified due to insufficient basis, and the process did not compel McDuff to submit an affidavit, rendering his claims unsubstantiated.

Defendant claims ineffective assistance of counsel, asserting that his attorney failed to object to the State’s use of his affidavit to impeach his trial testimony. Under the Strickland v. Washington standard, to prove inadequate representation, a defendant must demonstrate that counsel's performance was below an objective standard of reasonableness and that this deficiency likely altered the trial's outcome. The Illinois Supreme Court adopted this standard in People v. Albanese. 

Defendant, as a witness, was subject to cross-examination and could be impeached. During cross-examination, he made inconsistent statements regarding his affidavit, which allowed the State to use it for impeachment purposes. Therefore, the defense counsel's failure to object to this impeachment was not ineffective assistance. Additionally, the strategy of filing the affidavit was not a basis for claiming ineffective assistance, as it had previously been successful in other cases.

The defense counsel demonstrated zealous representation, filing motions, presenting witnesses, and effectively participating in post-trial proceedings. Therefore, the representation was not inadequate.

Defendant also contends that the State's closing argument improperly shifted the burden of proof. While the State argued that the defendant's actions were motivated by greed rather than financial difficulty, the court acknowledged that the prosecution must not shift the burden of proof to the defense. However, it clarified that questioning the relevance of the defense's evidence does not constitute burden-shifting. The court concluded that the State's comments did not impermissibly shift the burden of proof and affirmed the judgment of the circuit court of Cook County.