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SIXTH DIVISION

March 1, 2002

No. 1-00-4218

JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial defendant was found guilty of four counts of possession of acontrolled substance with intent to deliver and sentenced to 10 years in prison. On appeal defendantcontends that the class X sentence was improper because it was based on a defective indictment; thestate failed to prove the offenses were committed on a public way; the state failed to prove defendantpossessed with intent to deliver the cocaine found in the apartment; and defense counsel wasineffective for not presenting various pre-trial motions. We find ineffective assistance of trialcounsel and reverse defendant's convictions and sentence. We remand for retrial.

BACKGROUND

On October 18, 1999, around 11:20 p.m. Chicago police officer Michael Stack wasconducting a residential safety check of the Chicago Housing Authority building at 2430 South StateStreet. The location was known to be an area of high narcotic activity. Upon entering the back ofthe building, he saw the defendant on the front steps receive an unknown quantity of United Statescurrency from an unidentified individual in exchange for an item that defendant retrieved from insidehis mouth. Where the defendant was standing was well lighted, but the vestibule that Officer Stackwas coming through was dark. Officer Stack approached the defendant and observed what appearedto be a chunk of suspect crack cocaine in a plastic bag in defendant's mouth. He told defendant tospit it out and defendant complied. Officer Stack recovered the bag and arrested defendant. Bothparties stipulated that a chemist would testify the substance recovered from defendant's mouthweighed three grams and tested positive for cocaine.

Officer Stack testified that defendant told him at the police station that he resided at twoaddresses, one of which was apartment 302 at 2430 South State Street for which he had a key in hispossession. Defendant told the officer that he paid rent there and he stayed there with his girlfriendand her child. When Officer Stack asked if defendant had anything at the apartment that he shouldnot have, defendant answered in the negative. Officer Stack asked if defendant was willing to signa consent to search form and defendant agreed. Stack entered the apartment with defendant's keyand found 12 plastic bags of suspect cocaine and $1,260 in U.S. currency. Both parties stipulatedthat a chemist would testify the substance recovered from the apartment weighed 3.6 grams andtested positive for cocaine.

Defendant did not testify. The court found defendant guilty of four counts of possession ofa controlled substance with intent to deliver one gram or more but less than fifteen grams of asubstance containing cocaine. Defendant was sentenced to 10 years in prison. Defendant appeals.

INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal defendant argues that his trial counsel was ineffective because he failed to presentvarious pre-trial motions. The sixth amendment to the United States Constitution guarantees acriminal defendant the assistance of counsel. U.S. Const., amend. VI. In Strickland v. Washington,466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the United States Supreme Court establisheda two-prong test that a defendant must meet in order to prove that trial counsel was ineffective. Strickland requires the defendant to show deficient performance and that the deficient performanceprejudiced defendant. Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064,2068.

Applying Strickland, we must examine the "fundamental fairness of the proceeding andconsider whether *** the result of the particular proceeding is unreliable because of a breakdownin the adversarial process that our system counts on to produce just results." Strickland, 466 U.S.at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069. "At a minimum, defense counsel must act as a trueadvocate for the accused, subjecting the prosecutor's case to meaningful adversarial testing." Peoplev. Shelton, 281 Ill. App. 3d 1027, 1037 (1996).

Under the first prong of the Strickland test, the defendant must demonstrate that "counsel'srepresentation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687, 80L. Ed. 2d at 693, 104 S. Ct. at 2064. The reviewing court, without engaging in hindsight, mustpresume that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U. S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. The defendant is required toovercome the strong presumption that the challenged action was the product of sound trial strategyand not the result of incompetence. People v. Harris, 129 Ill. 2d 123, 156 (1989). Under the secondprong of the Strickland test, the defendant must show there is a reasonable probability that but forcounsel's deficient performance, the results of the proceeding would have been different. Strickland,466 U. S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Specifically, the defendant must show thatdefense counsel's deficiencies so prejudiced the defendant as to deprive him of a fair trial with areliable result. People v. Caballero, 126 Ill. 2d 248, 259-60 (1989).

Defendant argues that his trial attorney's failure to present a motion to suppress the cocainerecovered was ineffective assistance of counsel. We note the record in this case consisted of eightpages of direct examination of Officer Stack by the State, followed by two and one-half pages ofcross-examination by defense counsel and a one and one-half page stipulation by both the State anddefense to the testimony of the forensic scientist regarding the inventoried cocaine. Defense counselpresented no pre-trial motions, no opening statement, no witnesses, and no evidence.

The decision whether to bring a motion to quash arrest and suppress evidence is consideredtrial strategy, and trial counsel enjoys the strong presumption that failure to challenge the validityof the defendant's arrest or to exclude evidence was proper. People v. Rodriguez, 312 Ill. App. 3d920, 925 (2000). To overcome that presumption, the defendant must demonstrate a reasonableprobability that the motion would have been granted and that the outcome of the trial would havebeen different. Rodriguez, 312 Ill. App. 3d at 925. Reasonable probability is defined as a probabilitysufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.

In connection with a residential safety check of the building at 2430 South State Street,Officer Stack testified that the defendant was on the front steps of the Ickes Home Development atthat address. He testified as follows:

"STATE: As you observed the defendant, what did you see?

OFFICER: I observed the defendant receive a quantity ofUnited States currency. In turn he took an item from his mouth andtendered it to an individual who then walked into a crowd of peopleand appeared to have gone northbound from the location.

STATE: After you made that observation, what did you do?

OFFICER: Waited a couple of seconds and then approachedMr. Spann.

STATE: When you approached Mr. Spann, did you observeanything at that time?

OFFICER: Yes, I was able to observe what appeared to be alarge chunk of a white rock substance suspect crack cocaine in Mr.Spann's mouth, and I ordered him to spit that out because it was whatI believed to be crack cocaine.

STATE: When you ordered him to spit out that item, did hein fact do that?

OFFICER: Yes

STATE: You recovered that item?

OFFICER: Yes.

STATE: Judge, it will be stipulated by and between the partiesthat that item was subsequently inventoried under 2244133 andsubmitted to the Illinois State Police. So stipulated?

DEFENSE COUNSEL: Yes

STATE: After the defendant spit that item out, did you placehim under arrest?

OFFICER: Yes, ma'am."

On cross-examination, Officer Stack testified as follows:

"DEFENSE: Officer Stack you indicated that you were doinga safety check, is that right?

OFFICER: Yes.

DEFENSE: And you indicated that you saw a person approachmy client and that person gave my client money, is that yourtestimony?

OFFICER: Yes, sir.

DEFENSE: From your vantage point as you were observingthis, you couldn't tell what if anything my client gave to that personcould you?

OFFICER: No. He just picked something out of his mouthand gave it to him.

DEFENSE: At any time did you attempt to stop the personthat you say you saw approach my client?

OFFICER: No.

DEFENSE: At some point you indicated that you walked upto my client and you asked him to spit out what was in his mouth, isthat correct?

OFFICER: Yes, sir."

A police officer may make a valid investigatory stop absent probable cause for an arrest,provided that the officer's decision is based on specific, articulable facts which warrant theinvestigative stop. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 889, 906, 88 S. Ct. 1868, 1879-80 (1968). The stop is proper if a person of reasonable caution believes the action taken was proper knowing thefacts available at the time of the stop. People v. Rivera, 212 Ill. App. 3d 502, 504-05 (1995).

Here, at 11:20 p.m. Officer Stack knew the following: (1) defendant was on the front stepsof the Ickes Home Development at 2430 South State Street; (2) he was conducting a residential safetycheck of the building and that location was an area of high narcotic activity; (3) defendant received money from an individual, took an item from his mouth, and gave it to that individual who thendisappeared into a crowd of people; (4) he could not see what the defendant gave to that individual;and (5) he could not tell the amount of money that individual gave the defendant.

There was no challenge by defense counsel to Officer Stack's ability or opportunity to observethe transaction he described. There was no cross-examination as to the nature, extent, or duration ofthat observation. Moreover, the State failed to demonstrate Officer Stack's experience regardingnarcotics investigations or arrests. Officer Stack never testified that based on his experienceconducting narcotic surveillance, he suspected the defendant had been involved in a narcotictransaction. There was no testimony by Officer Stack that during previous narcotic surveillance he observed the sale of drugs to take place in the manner described here, with the seller storing the drugsin his mouth. There was no testimony by Officer Stack that previously he had seen similartransactions that led to arrests for unlawful delivery of a controlled substance. See People v. Stewart,217 Ill. App. 3d 373, 374 (1991).

Officer Stack admitted that he did not see what was transferred from defendant to the otherunidentified person. Officer Stack failed to testify as to what factors he found significant regardinghis decision to approach defendant and conduct further investigation. See People v. Steels, 277 Ill.App. 3d 123, 124 (1995). Officer Stack's testimony lacks specific, articulable facts which justify aninvestigative stop. Based on the record, there is a reasonable question whether at that point OfficerStack had sufficient grounds to make an investigatory Terry stop of defendant.

We further note that the conduct of Officer Stack which followed his observations raises thequestion of whether Officer Stack conducted a Terry search when as he testified upon observing"what appeared to be a large chunk of a white rock substance suspect crack cocaine in Mr. Spann'smouth, *** I ordered him to spit that out because it was what I believed to be crack cocaine." Therecord further raises the question as to whether the facts known to Officer Stack at that point legallyjustified a Terry stop and search.

This court has previously stated that the sole legal justification for a "search" incident to aTerry stop is the protection of the officer and others nearby, not to gather evidence. People v.Morales, 221 Ill. App. 3d 13, 17-18 (1991). Here, the officer testified that he ordered defendant tospit out what was in his mouth "because it was what I believed to be crack cocaine." There was notestimony that the officer was concerned about his safety, the safety of others, or concerned that whathe believed to be cocaine would be destroyed when he ordered defendant to spit out what was in hismouth.

In connection with this testimony, defense counsel did not test the credibility of Officer Stack'sstatement that he observed what he believed to be cocaine in defendant's mouth. There was nochallenge by defense counsel to Officer Stack's ability or opportunity to observe the contents insidedefendant's mouth. There was no cross-examination regarding the nature, extent, or duration of thatobservation. We are mindful that contraband in plain view of a police officer, who has a right to stopa subject or a right to be in a position to have that view, is subject to seizure and may be introducedinto evidence. People v. Jackson, 149 Ill. App. 3d 156, 159 (1986). Here, the record does notindicate whether defendant was standing with his mouth gaping wide open exposing the whitesubstance in the bag to plain view or whether he voluntarily revealed the presence of the whitesubstance in the bag to Officer Stack in some other way. Considering the fact that the white substancewas illegal contraband, either of these actions would be curious and contrary to common sense andeveryday experience. The circumstances surrounding Officer Stack's observation of the contentsinside defendant's mouth should have been tested by cross-examination.

The State's entire case was based on the testimony of Officer Stack. The testimony of OfficerStack was not so clear and convincing that it would have been futile for defense counsel to havechallenged it. We do not believe that this testimony was so improbable or unsatisfactory that norational trier of fact could have believed it. However, the testimony, as previously noted, raisedseveral legal and factual questions. Defense counsel through cross-examination and closing argumentcould have made a strong case that the circumstances surrounding defendant's arrest were not asOfficer Stack had described.

People v. Love, 318 Ill. App. 3d 534 (2000), oral argument heard No. 90806 (January 15,2002), is factually similar. In Love, the officer observed a pedestrian hand money to a bicyclist. Thebicyclist directed the pedestrian toward the defendant who removed an item from her mouth andhanded it to the pedestrian. The officer approached the defendant and asked her name. The defendanthad difficulty answering so the officer ordered her to spit out what was in her mouth. The defendantcomplied and spit out 16 baggies, which the officer testified he believed contained cocaine. Thedefendant argued that the trial court erred in finding that the officer engaged in a proper Terry searchwhen he told the defendant to spit out what she had in her mouth. Love, 318 Ill. App. 3d at 536.

In Love, the State, similar to its position in this case, argued that the officer never "searched"defendant. Love, 318 Ill. App. 3d at 537. In rejecting that position the appellate court in Love notedthat people have a legitimate privacy interest in protecting themselves from "searches involvingintrusions beyond the body's surfaces." Love, 318 Ill. App. 3d at 537-38, citing Schmerber v.California, 384 U.S. 757, 769-770, 16 L. Ed. 2d 908, 919, 86 S. Ct. 1826, 1835 (1966). The courtin Love concluded that the officer intruded upon defendant's body by ordering her to spit out what wasin her mouth and such conduct was a sufficient intrusion upon defendant's privacy interest toconstitute a search under the fourth amendment. Love, 318 Ill. App. 3d at 538.

Here, the argument could have been made that Officer Stack lacked legal justification for aTerry stop of defendant and engaged in an improper Terry search by ordering defendant to spit outwhat was in his mouth. Defense counsel failed to present by way of a motion to quash arrest andsuppress evidence the question of whether the plastic bag inside defendant's mouth was in fact inplain view and whether there was probable cause to associate that property with criminal activity. Jackson, 149 Ill. App. 3d at 159.

We are well aware that in order to avoid the "distorting effects of hindsight" reviewing courtsindulge in a "strong presumption" that defense counsel's performance "fell within the wide range ofreasonable professional assistance." People v. Patten, 240 Ill. App. 3d 407, 413, (1992), citingStrickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065. However, Illinois courts ofreview have found ineffective assistance of counsel, as opposed to trial strategy, when the pretrialmotion which counsel failed to present was defendant's strongest defense or "patently meritorious." People v. McPhee, 256 Ill. App. 3d 102, 107 (1993).

Regarding that principle, we find People v. Stewart, 217 Ill. App. 3d 373 (1991), instructive. In Stewart, two police officers observed two men talking on the sidewalk. They observed one manhand the other man an unidentified object. When the officers approached, the men ran. The officersstopped the two men and found cocaine in the defendant's possession. The Stewart court found thatthe question of probable cause was "a close one" and the failure to file a motion to suppress could nothave been "trial strategy" where defendant's only defense was to contest the arrest. Stewart, 217 Ill.App. 3d at 376.

Here, the failure to present a motion to quash the arrest and suppress evidence does not appearto have been a matter of trial strategy. One of defendant's only viable defenses was to contest thelegality of the arrest. For the reasons previously discussed, upon application of the Terry principlesregarding the legal prerequisites for a stop and search, we find that based on this record, a motion toquash arrest and suppress evidence would have had a reasonable probability of success. We note thathad the motion to quash arrest and suppress evidence succeeded, evidence needed for the State toprove possession with intent to deliver would have been eliminated from consideration by the trialcourt. We find the prejudice prong of the Strickland test satisfied because the deficient performanceof defense counsel in failing to present a motion to quash arrest and suppress evidence was sufficientto undermine confidence in the outcome of the trial. Our holding is limited to the conclusion that amotion to quash arrest and suppress evidence would have had a reasonable probability of success. We leave for resolution by the trial court the question as to whether the State has sufficient facts basedupon the totality of the circumstances to prevail on a motion to quash arrest and suppress evidence.

Defendant further contends that trial counsel provided ineffective assistance by failing topresent motions to suppress the key to the apartment, the consent to search, the cocaine found in theapartment, and defendant's statements regarding renting and using the apartment. The importance ofthe evidence recovered from the apartment in proving the element of intent to deliver was noted bythe trial court in reaching the conclusion that defendant was guilty. In response to defense counsel'sargument that there was insufficient evidence of intent to deliver the trial court stated as follows:

"[Defense counsel], I would normally agree with you with regard tothe possession with intent issue if all I heard today was that the officersaw what he believed was one transaction, but taking the totality ofthe circumstances of the event that occurred on that night, not onlythe transaction that was observed by the officer which is unrefuted butthe recovery of more narcotics packaged in a way that we knowanybody who works here knows is used to sell on the street togetherwith the recovery of $1200, I believe the State has established thatintent element.

With regard to the possession, the constructive possession orcontrol of the apartment, what I have before me is an unrefutedstatement by the officer that Mr. Spann said he not only stayed there,but he paid rent and stayed with his girlfriend and her kid onoccasions.

Further he had a key to the apartment which certainly isindicia of control and residence.

Based on the unrefuted evidence that I heard, I feel I have nochoice but to find the defendant guilty as charged."

To successfully suppress evidence of the key and the cocaine, defendant needed todemonstrate that his arrest was unlawful and the key and cocaine found in the apartment were thefruits of the arrest. People v. Williamson, 319 Ill. App. 3d 891-898 (2001). For the reasonspreviously discussed, the circumstances surrounding defendant's arrest raise questions concerningits legality. We conclude that the motion to quash arrest and suppress evidence would have had areasonable probability of success. We make no determination regarding defendant's ultimate successon such a motion.

Regarding the statements made by defendant, if defendant's arrest was unlawful, the questionthen arises whether defendant's subsequent statements to the police were obtained by exploitationof the illegality of the arrest. People v. Foskey, 136 Ill. 2d 66, 85 (1990). To determine whetherthere is a reasonable probability that defendant's statements were obtained by exploitation of theillegality of the arrest and would have been suppressed as a "fruit of the poisonous tree," we mustapply the test established in Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). The factors to be considered in order to determine whether the confession was a product of the arrestare the temporal proximity of the arrest and the statements, the presence of interveningcircumstances, and the purposefulness and flagrancy of the alleged official misconduct. Brown, 422U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62.

Applying the Brown factors to the facts of this case, we conclude that there is a reasonableprobability that a motion to suppress statements as the result of an illegal arrest would have beensuccessful. Defendant made the incriminating statements regarding residency immediately after hewas brought to the police station, and there were no intervening circumstances. He told the officerthat he resided at two addresses, one of which was apartment 302 at 2340 South State Street. He toldthe officer that he paid rent there and he stayed there with his girlfriend and her child. He gave theofficer a key to that apartment. Those statements elicited from defendant arguably could be foundto have been the result of "an expedition for evidence." Brown, 422 U.S. at 605, 45 L. Ed. 2d at 428,95 S. Ct. at 2262. We stress, however, that we do not resolve the question of whether such a motionto suppress statements would have been granted. We limit our finding to the conclusion that basedon this record, a motion to suppress statements would have had a reasonable probability of success.

Alternatively, to successfully challenge the consent to search and suppress defendant'sstatements, the defendant needed to demonstrate that neither the consent nor the statements weregiven voluntarily. People v. Williams, 181 Ill. 2d 297, 309 (1998). Voluntariness of consent tosearch, as well as the voluntariness of a defendant's statements, is determined by consideration ofthe totality of the circumstances. People v. Wegman, 101 Ill. App. 3d 634, 637 (1981). Factors toconsider when determining voluntariness include the defendant's age, education, and intelligence,the length of the detention and the duration of the questioning, whether the defendant was advisedof his constitutional rights, and whether the defendant was subjected to any physical mistreatment. People v. Brown, 169 Ill. 2d 132, 144 (1996).

Here, the record does not reflect that defendant was advised of his Miranda rights at any timebefore consenting to the search of the apartment, or before making the incriminating statementsregarding paying rent and staying at the apartment. We note that Officer Stack testified thatdefendant agreed to sign the consent to search form, but there was no testimony that defendant everread the consent form or had the form read to him. The voluntariness of the consent to search andthe voluntariness of the statements was never explored because defense counsel made no motionregarding the consent to search the apartment or the defendant's statements. The test forvoluntariness includes whether the statement or consent was given freely, without compulsion orinducement, and whether defendant was informed of his constitutional rights. People v. Martin, 102Ill. 2d 412, 427 (1984). The record does not indicate that defendant was informed of hisconstitutional rights. The record reflects no evidence of the circumstances surrounding the consentto search and the statements given by defendant.

Here, we find that based on the totality of the circumstances, the failure to present a motionto suppress the key, cocaine, consent to search, and the statements made by defendant was noteffective representation by defense counsel. For the reasons previously discussed, the record raisesquestions as to whether the key, cocaine, statements, and consent to search were subject tosuppression. The deficient representation prejudiced defendant because had this evidence beensuppressed, defendant could have successfully defeated the element of intent to deliver and therebyreduced his criminal liability.

In addition, there were other trial errors which cast doubt on the effectiveness of defensecounsel during the entire proceeding and undermined confidence in the outcome of the trial. Amotion could have been made to dismiss two counts of the indictment based on failure to satisfystrict statutory pleading requirements. The second two counts of the four-count indictment chargeddefendant with Class 1 possession of controlled substance with intent to deliver. The first twocounts charged defendant with possession of controlled substance with intent to deliver and trackedlanguage from section 407(b)(1), which provided a Class X penalty. See 720 ILCS 570/407(b)(1)(West 1998). However, the first two counts referenced a violation of section 401(c)(2) in theindictment, which provided only a Class 1 penalty. See 720 ILCS 570/401(c)(2) (West 1998). Although the aggravating factor requiring the offense to be committed on a public way within 1000feet of Chicago Housing Authority property was charged in the indictment, the incorrect section andsubsection alleging a Class 1 rather than a Class X felony was indicated in the body of the first twocounts of the indictment. Defendant did not object in the trial court to the erroneous citations, whichalleged incorrectly a Class 1 rather than a Class X violation.

Defendant raised this issue for the first time on appeal. The point in time at which theindictment is attacked determines what standard the indictment must satisfy in order to survivedismissal. When an indictment is attacked for the first time on appeal, the standard is whether theindictment informed the defendant of the offense charged with sufficient specificity to prepare hisdefense and plead a resulting conviction as a bar to future prosecutions based on the same conduct. People v. Thingvold, 145 Ill. 2d 441, 448 (1991); People v. Edmonds, 325 Ill. App. 3d 439, 443(2001). If the indictment is attacked before trial, the indictment must strictly comply with thepleading requirements of the Code of Criminal Procedure of 1963. 725 ILCS 5/111-3(a) (West1998); Thingvold, 145 Ill. 2d at 448. Defense counsel, by failing to bring a motion to dismiss theindictment before trial, deprived defendant of the benefit of the indictment being required to satisfythe strict statutory pleading standard.

Rather than strictly satisfying statutory pleading requirements, the State was only requiredto satisfy the less stringent standard because the indictment was attacked for the first time on appeal. Under that standard the State needed only to demonstrate that the indictment informed the defendantof the offense charged with sufficient specificity to prepare his defense and plead any resultingconviction as a bar to future prosecutions based on the same conduct.

There was a further defect in the indictment beyond the reference to the incorrect provisionof the Criminal Code. This defect was arguably substantive in nature. Defendant was found guiltyof possession with intent to deliver cocaine found in his apartment. However, both count I and countII alleged possession of cocaine with intent to deliver "*** on a public way within 1000 feet of thereal property comprising a residential property owned, operated and managed by a public housingagency, the Chicago Housing Authority ***." Each count used precisely the same language. Defendant's apartment was not located on a public way, but located inside the Chicago HousingAuthority building. Neither of the first two counts of the indictment referenced the correct languageof the enhanced penalty provision under section 407(b)(1) that the defendant violated "subsection(c) of Section 401 in any *** residential property owned, operated and managed by a public housingagency***." 720 ILCS 570/407(b)(1) (West 1998). No motion alleging this substantive defect wasever made.

Regarding that defect, we find People v. Jones, 288 Ill. App. 3d 293 (1997), instructive. InJones, the court addressed whether the term "on a public way" is an essential element under section407(b)(2) for charging the enhanced crime under section 401(d). Jones, 288 Ill. App. 3d at 296-98. The court in Jones found that "there are two relevant portions to the enhancements in section407(b)(2), namely, whether the violation of section 401(d) occurred: (1) in "any school *** the realproperty comprising any school *** public housing *** or public park" or (2) "on any public waywithin 1,000 feet of the real property comprising any school *** public housing *** or public park." Jones, 288 Ill. App. 3d at 298. Jones held that the term "on a public way" is an essential elementunder section 407(b)(2) for purposes of charging an enhanced crime under section 401(d) of theIllinois Controlled Substance Act. Jones, 288 Ill. App. 3d at 298; see also People v. Carter, 297 Ill.App. 3d 1028, 1032 (1998) (following Jones, the court held the "on any public way" element isessential to offense and failure to allege it is fatal to charge; State agreed count lacking that languageis void).

Using a similar analysis, for purposes of drafting a legally sufficient indictment in this case,the relevant portions to the enhancements in section 407(b)(1) include whether the violation ofsection 401(c) occurred: (1) "in any *** residential property owned, operated and managed by apublic housing agency," or (2) "on any public way within 1,000 feet of the real property comprisingany *** residential property owned, operated and managed by a public housing agency ***." 720ILCS 570/407(b)(1) (West 1998).

Where here, the defendant was found guilty of possessing with intent to deliver cocainerecovered from his apartment on Chicago Housing Authority property, the argument can be madethat one count of the indictment was fatally defective because for purposes of enhancing the offenseto a Class X, in connection with the cocaine recovered from the apartment, the indictment incorrectlycharged the element of "public way" when in fact the enhancing element was the fact that defendant's401(c) violation occurred "in *** residential property owned, operated and managed by a publichousing agency ***." 720 ILCS 570/407(b)(1) (West 1998).

By way of a motion to dismiss the indictment it could have been argued that in connectionwith the cocaine recovered from inside the apartment, the term "in any *** residential propertyowned, operated and managed by a public housing agency" was an essential element under section407(b)(1) for purposes of charging an enhanced crime under section 401(c), and its absence from theindictment was fatal to the count based on the criminal activity which occurred inside the apartment. The trial court could have found that the term "in *** residential property owned *** by a publichousing agency" was an element essential to the offense, the count lacking that language was void,and the failure to allege it was fatal to that count.

Based on these defects in the indictment, we find defense counsel was ineffective for failingto present a motion to dismiss various counts of the indictment before trial. Such a motion wouldhave had a reasonable probability of success. We do not, however, resolve the question of whetherthat motion would have been granted.

Finally, we note that in closing argument, that while defense counsel indicated that the recordwas insufficient to support a finding of intent to deliver, defense counsel misstated the evidence andconceded defendant's guilt regarding possession of a controlled substance. Specifically, defensecounsel summarized Officer Stack's testimony as follows:

"The officer's testimony is that when he approached my client, myclient spat from his mouth an item that he recovered. We wouldconcede based on that part of his testimony that my client possessednarcotics, but I believe the record before this Court at this time isinsufficient to support a finding of with intent."

That argument completely overlooked the fact that the defendant did not simply spit the item fromhis mouth, but rather, was ordered to do so by Officer Stack. As previously noted the circumstancessurrounding the observations made by Officer Stack immediately before he ordered the defendantto spit out what was in his mouth were never explored by defense counsel, either by way of a motionto quash arrest and suppress evidence, or during cross-examination of Officer Stack. Moreover,defense counsel went on to concede defendant's guilt for possession of narcotics.

We note that the competence of defense counsel is to be determined "from a considerationof the totality of counsel's conduct, not isolated incidents." People v. McKendrick, 138 Ill. App. 3d1018, 1025-26 (1985), citing People v. Mitchell, 105 Ill. 2d 1 (1984). We are mindful that adefendant is entitled to competent, not perfect, representation. People v. Eddmonds, 101 Ill. 2d 44,69 (1984). In making a determination of prejudice, the court must examine the totality of thecircumstances. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

A review of the record demonstrates that defense counsel did not test the credibility ofOfficer Stack, the only witness offered by the prosecution, and did not attack the strength of theevidence presented. Defense counsel failed to present a motion to dismiss the indictment, quash thearrest, suppress evidence, suppress statements, or contest defendant's consent to search. Defensecounsel failed to make an opening statement, conceded that defendant was guilty of possession ofa controlled substance in his closing argument, called no witnesses, presented no evidence, andconducted less than a two and one-half-page cross-examination of the State's only witness, OfficerStack.

While these types of motions and this type of conduct have been presumed to be matters oftrial strategy, we cannot conclude, after reviewing the totality of defense counsel's conduct in thiscase, that his decisions were valid trial strategy. For the reasons previously discussed, each of thesemotions had a reasonable probability of success. Defense counsel at a minimum failed to act as atrue advocate for the defendant and failed to subject the State's case to meaningful adversarialtesting. Based on the cumulative impact of the ineffective assistance of counsel, we concludedefendant was prejudiced. The deficient performance of defense counsel was sufficient toundermine confidence in the outcome of the trial. We reverse and remand for further proceedingsconsistent with this opinion.

SUFFICIENCY OF EVIDENCE

For purposes of double jeopardy, we address the sufficiency of the evidence and thearguments defendant raises regarding evidence sufficiency. People v. Digirolamo, 179 Ill. 2d 24,42 (1997). In reviewing the sufficiency of the evidence to support a criminal conviction, a reviewingcourt must determine whether the evidence, viewed in the light most favorable to the prosecution,could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). Thetrier of fact is to assess the credibility of the witnesses, the weight of the evidence, and the inferencesto be drawn therefrom. People v. Brown, 185 Ill. 2d 229, 250-51 (1998). Discrepancies in testimonydo not necessarily destroy witness testimony, but go to the weight to be afforded that testimony. People v. Tirado, 254 Ill. App. 3d 497, 513 (1993).

We are mindful that in a bench trial, the trial judge has the responsibility to determine thecredibility of the witnesses, to weigh the evidence and draw reasonable inferences therefrom, andto resolve any conflicts in the evidentiary record. People v. Slim, 127 Ill. 2d 302, 307 (1989). Accordingly, such determinations are granted substantial deference on review and we may notsubstitute our judgment for that of the trial judge on these matters. People v. Banks, 287 Ill. App.3d 273, 285 (1997).

Defendant contends that the evidence was insufficient to prove that defendant was inpossession of the drugs found in the apartment. Possession of a controlled substance may beconstructive, as long as the State can prove that defendant had the intent and ability to maintaincontrol over the substance. People v. Brown, 277 Ill. App. 3d 989, 997 (1996). Proof of adefendant's control may be demonstrated circumstantially by showing that defendant was aware ofthe presence of the narcotics at the time they were discovered. Brown, 277 Ill. App. 3d at 998.

The fact that defendant stayed in the apartment, payed rent there, and possessed a key to theapartment, demonstrates that defendant had possession of the drugs found in the apartment. Basedon the record, there was sufficient evidence to prove that defendant was in possession of the drugsfound in the apartment.

Defendant next argues that the evidence was insufficient to prove that there was intent todeliver the drugs found in the apartment. In People v. Robinson, 167 Ill. 2d 397, 408 (1995), oursupreme court noted that intent to deliver is usually proven through circumstantial evidence becausedirect evidence of intent rarely exists. A variety of factors have been considered as probative ofintent to deliver.

"Such factors include whether the quantity of controlledsubstance in defendant's possession is too large to be viewed as beingfor personal consumption (People v. Berry (1990), 198 Ill. App. 3d24), the high purity of the drug confiscated (People v. Torres (1990),200 Ill. App. 3d 253), the possession of weapons (People v. Dockery(1993), 248 Ill. App. 3d 59), the possession of large amounts of cash(People v. Jones (1991), 215 Ill. App. 3d 652), the possession ofpolice scanners, beepers or cellular telephones (People v. Lecour(1988), 172 Ill. App. 3d 1978; People v. Bradford (1993), 239 Ill.App. 3d 796), the possession of drug paraphernalia (People v. McDonald (1992), 227 Ill. App. 3d 92), and the manner in which thesubstance is packaged (People v. Banks (1992), 227 Ill. App. 3d950)." Robinson, 167 Ill. 2d at 408.

Mindful of these factors, in reviewing this record, including the direct and circumstantialevidence, we find sufficient evidence probative of intent to deliver. The drugs found inside theapartment were packaged separately and found alongside a large amount of money. Based on therecord, the evidence was sufficient to prove defendant guilty beyond a reasonable doubt ofpossession with intent to deliver.

Officer Stack observed defendant on the steps of the apartment building at 2430 South StateStreet. He saw defendant receive money from an individual in exchange for an item defendantretrieved from his mouth. Officer Stack recovered a bag that was inside defendant's mouth whichcontained a substance later confirmed to be cocaine. The defendant told the officer that he stayedin an apartment in that building. Using a key given to them by the defendant, Officer Stackrecovered 12 separate packets of cocaine and $1,260 in United States currency from the apartment.

Based on a complete review of the record, we conclude that the evidence viewed as a wholeand in a light most favorable to the State is sufficient to prove defendant's guilt for the chargedoffenses beyond a reasonable doubt. Therefore, principles of double jeopardy do not bar defendant'sretrial. People v. Porter, 168 Ill. 2d 201, 215 (1995). We note that we have made no finding as todefendant's guilt that would be binding on retrial. People v. Jones, 175 Ill. 2d 126, 134 (1997).

CONCLUSION

Whether any of the evidence will survive the motions we have previously discussed remainsto be determined upon remand. We make no determination regarding defendant's success on any ofthese motions.

We reverse defendant's convictions and sentence. We remand for further proceedingsconsistent with this opinion.

Reversed and remanded.

GALLAGHER, P.J., and BUCKLEY, J., concur.