{ "id": 4265436, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE POLLARDS, Defendant-Appellant", "name_abbreviation": "People v. Pollards", "decision_date": "2006-08-15", "docket_number": "No. 1\u201405\u20140451", "first_page": "17", "last_page": "24", "citations": [ { "type": "official", "cite": "367 Ill. App. 3d 17" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "639 N.E.2d 1369", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887227 ], "year": 1994, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0595-01" ] }, { "cite": "666 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 1003", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75401 ], "year": 1996, "pin_cites": [ { "page": "1005-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/1003-01" ] }, { "cite": "763 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "327 Ill. App. 3d 180", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79313 ], "year": 2001, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0180-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 12, "year": 1984, "pin_cites": [ { "page": "694-95" }, { "page": "698-99" }, { "page": "2068-69" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "687" }, { "page": "693" }, { "page": "2064" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "133 Ill. Dec. 148", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1989, "opinion_index": 0 }, { "cite": "540 N.E.2d 1014", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639152 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "708" }, { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0703-01" ] }, { "cite": "51 Ill. Dec. 681", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1981, "opinion_index": 0 }, { "cite": "421 N.E.2d 189", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "85 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469128 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "100" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0092-01" ] }, { "cite": "139 Ill. Dec. 358", "category": "reporters:state", "reporter": "Ill. Dec.", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "548 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 387", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506336 ], "weight": 7, "year": 1989, "pin_cites": [ { "page": "393" }, { "page": "393-94" }, { "page": "393" }, { "page": "389-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0387-01" ] }, { "cite": "176 Ill. Dec. 627", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1992, "opinion_index": 0 }, { "cite": "601 N.E.2d 1325", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "235 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5785355 ], "weight": 6, "year": 1992, "pin_cites": [ { "page": "1079" }, { "page": "1079" }, { "page": "1080" }, { "page": "1081" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/1076-01" ] } ], "analysis": { "cardinality": 681, "char_count": 16105, "ocr_confidence": 0.749, "pagerank": { "raw": 6.279320214378747e-08, "percentile": 0.38708878394068535 }, "sha256": "7a5e262dd8f87e91272e0b77cdf029f834411ccc96db9fb08bf1900ef891e802", "simhash": "1:26363cdc3a8f6cd0", "word_count": 2724 }, "last_updated": "2023-07-14T20:55:49.400377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE POLLARDS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Willie Pollards was convicted of possession of a stolen motor vehicle and sentenced to five years in prison.\nOn appeal, defendant contends the trial court erred in failing to instruct the jury on the definitions of stolen property and theft, in accord with Illinois Pattern Jury Instructions, Criminal, Nos. 13.33G and 13.01 (4th ed. 2000) (hereinafter IPI Criminal 4th). Alternatively, defendant contends his counsel was ineffective for failing to request the instructions. We reverse and remand.\nFACTS\nAt trial, Harry Harrison testified he owned and drove a taxicab with license plate number 2723 TX. The number assigned to the cab was 2723. On August 1, 2004, Harrison pulled into a gas station on the corner of Fullerton and Western Avenues in Chicago. He went inside to pay for the gas and left his keys on the passenger seat. When he returned, he saw someone driving away in his cab. He did not see the driver. After the gas station owner called the police, Harrison called the American United Cab Company to report the stolen cab. He authorized the company to offer a $100 reward.\nCharles Turner, an American United dispatcher, said he sent out four messages directing other cabdrivers to look for the missing cab. He sent a fifth message announcing a $100 reward for reporting the location of the cab. Following the fifth message, Turner received \u201can instant response from Vehicle 2723\u201d saying the caller had found the cab. The caller said the cab was at Carol and Sacramento. Turner heard wind and traffic in the background. Turner told the caller to stay with the vehicle and said someone would be there shortly with the reward. He then dialed 911 and reported the cab\u2019s location to the police.\nTurner contacted vehicle 2723 and repeated his direction to stay with the cab. A few minutes later, the person called back and said he had thought about the situation and wanted $200 for the reward. Turner told him it was no problem. He said someone would be right there with the money.\nChicago police officer Darlene Rodriguez said she received a call about a stolen taxicab being located. She and her partner were wearing civilian clothes and driving in an unmarked car. When the officers found the cab, it was located about 20 blocks from where it was stolen. The defendant was sitting inside the cab in the driver\u2019s seat. He exited the cab with the keys in his hand. Defendant asked the officers where his reward was. The officers informed defendant of his rights and placed him into custody. Harrison identified the cab at the police station.\nOfficer Ranada Keating said she had a conversation with the defendant at the station. He said if he had not asked for $200, they would not have called the police. He said he had a \u201crock\u201d habit, meaning a crack cocaine habit. He said $100 was a lot of money.\nThe defendant testified he was leaving a scrapyard on August 1, 2004, when he noticed a cab with its passenger door open and its windows down. The engine was not on, but the auxiliary lights were on. There were papers and things \u201cthrown all over the place\u201d inside the cab. He thought it looked unusual. As he approached the cab, the defendant heard an announcement on the CB radio offering a $100 reward. He picked up the radio and told the dispatcher the location of the cab. He waited about 20 minutes, then called the dispatcher back and asked for $200. The dispatcher said that was fine and told him to stay there, that someone was on the way. Defendant said he did not steal or move the cab. He did not threaten anyone when he asked for $200.\nThe State introduced into evidence proof of defendant\u2019s prior burglary conviction. Following closing arguments, the jury found defendant guilty of possession of a stolen motor vehicle. The court sentenced defendant to five years\u2019 imprisonment.\nDECISION\nThe court instructed the jury in accord with IPI Criminal 4th Nos. 23.35 and 23.36:\n\u201cA person commits the offense of possession of a stolen or converted vehicle when that person possesses a vehicle when not entitled to possession of the vehicle and when knowing it to have been stolen or converted.\u201d IPI Criminal 4th No. 23.35.\n\u201cTo sustain the charge of possession of a stolen or converted vehicle, the State must prove the following propositions:\nFirst: That the Defendant possessed of a vehicle [sic]; and\nSecond: That the Defendant was not entitled to possession of the vehicle; and\nThird: That the Defendant knew that the vehicle was stolen or converted.\nIf you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the Defendant guilty.\nIf you find from your consideration of all of the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.\u201d\nSee IPI Criminal 4th No. 23.36.\nThe Committee Note to IPI Criminal 4th No. 23.35 states:\n\u201cWhen the defendant is charged with possessing stolen vehicles or essential parts of vehicles, give Instructions 13.33G (Definition of Stolen Property) and 13.01 (Definition of Theft). Because stolen property is defined as \u2018property over which control has been obtained by theft,\u2019 the definition of theft must accompany the definition of stolen property. (Emphasis added.) See People v. Cozart, 235 Ill. App. 3d 1076, 601 N.E.2d 1325, 176 Ill. Dec. 627 (2d Dist. 1992). Although the court in People v. Bradley, 192 Ill. App. 3d 387, 548 N.E.2d 743, 139 Ill. Dec. 358 (1st Dist. 1989), held that the word \u2018stolen\u2019 implies the definition of theft and the intent to permanently deprive \u2014 and that the jury therefore need not be instructed on those terms \u2014 Bradley did not hold it impermissible or error to do so. Therefore, in part to comply with Cozart, the Committee decided that the instructions should include the definitions of stolen property and theft.\u201d (Emphasis added.) IPI Criminal 4th No. 23.35, Committee Note, at 214.\nThe Committee Note to IPI Criminal 4th No. 23.36 states:\n\u201cWhen a defendant is charged with possession of a stolen or converted vehicle and it is alleged, or the evidence shows, that he participated in the actual talcing of the vehicle, it may be necessary to include the phrase \u2018intent to permanently deprive\u2019 in the definition and issues instructions. See People v. Cramer, 85 Ill. 2d 92, 421 N.E.2d 189, 51 Ill. Dec. 681 (1981); People v. Washington, 184 Ill. App. 3d 703, 540 N.E.2d 1014, 133 Ill. Dec. 148 (2d Dist. 1989). But see People v. Bradley, 192 Ill. App. 3d 387, 548 N.E.2d 743, 139 Ill. Dec. 358 (1st Dist. 1989), wherein it was held that the word \u2018stolen\u2019 implies an intent to permanently deprive.\u201d IPI Criminal 4th No. 23.35, Committee Note, at 217.\nDespite the language in the Committee Notes, the court did not instruct the jury on the definitions of stolen property (IPI Criminal 4th No. 13.33G) or theft (IPI Criminal 4th No. 13.01). Neither the State nor defense counsel requested the instructions, nor did defense counsel object to the failure to give IPI Criminal 4th No. 13.33G or 13.01.\nThe absent instructions would have defined stolen property as \u201cproperty over which control has been obtained by theft\u201d (IPI Criminal 4th No. 13.33G), and theft as knowingly obtaining or exerting unauthorized control over property with the intent \u201cto deprive the owner permanently of the use or benefit of the property\u201d (IPI Criminal 4th No. 13.01).\nDefendant contends we should review the court\u2019s failure to give the instructions under the plain error standard. We need not decide whether plain error occurred because we find defense counsel was ineffective in failing to request the instructions.\nIn analyzing a claim of ineffective assistance of counsel, we use the two-part test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and recognized by our supreme court in People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). We ask: (1) whether counsel\u2019s performance fell below an objective standard of reasonableness; and (2) whether defendant was prejudiced. To satisfy the second prong, the defendant must show a reasonable probability that, but for defense counsel\u2019s deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 694-95, 80 L. Ed. 2d at 698-99, 104 S. Ct. at 2068-69. \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nUnder the first Strickland prong, counsel\u2019s failure to request the instructions was an error serious enough for us to say that \u201ccounsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment.\u201d Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Under the circumstances in this case, the Committee Notes for IPI Criminal 4th Nos. 23.35 and 23.36 plainly require the instructions for the definitions of stolen property and of theft.\nThe language in the note for IPI Criminal 4th No. 23.35 is mandatory, i.e., \u201cgive Instructions 13.33G (Definition of Stolen Property) and 13.01 (Definition of Theft),\u201d and \u201cthe definition of theft must accompany the definition of stolen property.\u201d (Emphasis added.) IPI Criminal 4th No. 23.35, Committee Note, at 214.\nThe note for IPI Criminal 4th 23.36 states that where \u201cit is alleged, or the evidence shows, that [defendant] participated in the actual taking of the vehicle, it may be necessary to include the phrase \u2018intent to permanently deprive\u2019 in the definition and issues instructions.\u201d (Emphasis added.) IPI Criminal 4th No. 23.36, Committee Note, at 217. Although the note says \u201cmay be necessary,\u201d we believe the instruction was necessary under the factual circumstances. The prosecutor alleged during his opening statement and closing argument that defendant was the person who stole the taxicab and drove off with it. The prosecutor argued defendant was driving the car when he called the dispatcher, based on Turner\u2019s testimony that he heard traffic noise and wind in the background while he was talking to the defendant. The State\u2019s contention that defendant\u2019s intent to permanently deprive the owner of his vehicle was not at issue in this case is belied by the prosecutor\u2019s approach at trial. The State made it an issue when it introduced evidence and argued that defendant had stolen the vehicle.\nIn People v. Cozart, 235 Ill. App. 3d 1076, 601 N.E.2d 1325 (1992), the trial court refused three instructions offered by the defendant. The instructions included the definitions of theft, the phrase \u201cexerts control,\u201d and the phrase \u201cpermanently deprive.\u201d Cozart, 235 Ill. App. 3d at 1079. The defense theory was that defendant took the car, but either the car was taken with the driver\u2019s permission or, at worst, that the defendant took the car for a joyride. Cozart, 235 Ill. App. 3d at 1079. A person may be charged with possession of a stolen motor vehicle even if he is the one who has stolen it. In such a case, the \u201cdefendant would have to know he had stolen the vehicle, that is, he would have to have stolen it before he could be found guilty.\u201d (Emphasis added.) Cozart, 235 Ill. App. 3d at 1080, citing People v. Cramer, 85 Ill. 2d 92, 100, 421 N.E.2d 189 (1981). The court held the trial court erred in refusing the proffered instructions. Because the evidence showed defendant was the person who stole the car, the State was required to prove intent to permanently deprive the owner of the use of her car. Cozart, 235 Ill. App. 3d at 1081.\nIn People v. Washington, 184 Ill. App. 3d 703, 708, 540 N.E.2d 1014 (1989), the court held intent to permanently deprive is not an element of the offense of possession of a stolen or converted motor vehicle. However, where a conviction for possession of a stolen motor vehicle is predicated on possession by the same person who committed the theft, proof of the person\u2019s mental state inconsistent with that required for theft would prevent conviction. Washington, 184 Ill. App. 3d at 708, citing Cramer, 85 Ill. 2d at 100.\nThe State relies on People v. Bradley, 192 Ill. App. 3d 387, 548 N.E.2d 743 (1989), where the defendant argued the jury should have been instructed on intent to permanently deprive. The court held the defendant waived the issue by failing to tender the instruction. Bradley, 192 Ill. App. 3d at 393. The court went on to consider the merits of the argument and found that the concept of a stolen car implies the perpetrator of the crime intended to permanently deprive the owner of its use and benefit, and no additional definition is necessary. Bradley, 192 Ill. App. 3d at 393-94. The court held this is especially true where the Illinois pattern jury instructions do not suggest that an additional definition is necessary. Bradley, 192 Ill. App. 3d at 393.\nIt is obvious the Committee Notes for IPI Criminal 4th Nos. 23.35 and 23.36 were changed in response to the Cozart and Bradley decisions. The circumstances of this case are different from those in Bradley. In that case, the owner of the car did not know the defendant or where he lived, and the defendant was still using the car three days after it was reported stolen. Bradley, 192 Ill. App. 3d at 389-91. Here, the defendant called about the reward a short time after the cab was taken.\nDefense counsel recognized the defendant\u2019s intent was an issue in the case. During final argument, counsel said:\n\u201cThey haven\u2019t proven that it was a stolen vehicle. They haven\u2019t proven either that he was intending to keep this vehicle and deprive anybody else from getting it.\u201d\nWhether the defendant possessed the intent to deprive the owner permanently of the use and benefit of the cab was made a pivotal issue in this case. His intent was not clearly established. Even a casual reading of the Committee Notes to IPI Criminal 4th Nos. 23.35 and 23.36 should have led defense counsel to the realization that the jury required guidance on the issue of the defendant\u2019s intent. Had counsel offered the instructions pursuant to the mandate of the Committee Notes, we are confident they would have been given. Trial counsel has a duty to conduct both factual and legal investigations on behalf of a client. People v. Montgomery, 327 Ill. App. 3d 180, 185, 763 N.E.2d 369 (2001). This court has held a defense counsel\u2019s ignorance of the law may be objectively unreasonable and fall below the standard of representation required by Strickland where that ignorance results in harm to the client. See People v. Siedlinski, 279 Ill. App. 3d 1003, 1005-06, 666 N.E.2d 42 (1996); People v. Kozlowski, 266 Ill. App. 3d 595, 601, 639 N.E.2d 1369 (1994). This is such a case.\nAs for the second Strickland prong, the State contends the defendant was not prejudiced by the alleged error because the defense theory was that the defendant never had possession of the car. True, the issue of possession was not close. However, the State made an issue of defendant\u2019s intent to permanently deprive when it alleged at trial that defendant stole the car. On that issue, the evidence was close. There is a reasonable probability the trial would have had a different outcome had the jury received the instructions on the definitions of stolen property and of theft. That probability is sufficient to undermine confidence in the outcome of the case.\nAccordingly, we reverse defendant\u2019s conviction and sentence. Because the evidence is sufficient to support a guilty verdict, we remand for a new trial.\nReversed and remanded.\nGARCIA, EJ., and HALL, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Michael J. Pelletier and Steven W. Becker, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James Fitzgerald, Matthew Connors, and Himika Shergill, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE POLLARDS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201405\u20140451\nOpinion filed August 15, 2006.\nMichael J. Pelletier and Steven W. Becker, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James Fitzgerald, Matthew Connors, and Himika Shergill, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0017-01", "first_page_order": 35, "last_page_order": 42 }