People v. Berry

555 N.E.2d 434, 198 Ill. App. 3d 24, 144 Ill. Dec. 315, 1990 Ill. App. LEXIS 775
CourtAppellate Court of Illinois
DecidedMay 25, 1990
Docket2-89-0148
StatusPublished
Cited by36 cases

This text of 555 N.E.2d 434 (People v. Berry) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Berry, 555 N.E.2d 434, 198 Ill. App. 3d 24, 144 Ill. Dec. 315, 1990 Ill. App. LEXIS 775 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Larry Berry, was found guilty by a jury in the circuit court of Kane County of unlawful possession of a controlled substance with intent to deliver (cocaine), unlawful possession of a controlled substance (cocaine), and unlawful possession of cannabis. (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(b)(2), 1402(b), 704(b).) The court merged the three convictions and sentenced the defendant for the intent to deliver conviction to six months’ imprisonment in the Kane County jail and 48 months’ probation, the first 12 months to be served as intensive probation.

Defendant appeals, contending he was not proved guilty beyond a reasonable doubt where the amount of cocaine found on his person, which was stipulated to be 3.9 grams, was so small as to negate any intent to deliver. We affirm.

On December 9, 1987, between the hours of 9 and 11 p.m., Elgin police officers executed search warrants issued for the persons of the defendant, James Gatlin and two cars, a blue Datsun and a silver-blue Cadillac. The defendant and Gatlin were observed sitting in a maroon-colored car parked behind the blue Datsun in the area of Ann and Gifford streets in Elgin, an area where drug trafficking was known to the police to occur. The Cadillac was not in the area.

The defendant, who had been seated in the driver’s seat of the maroon car, was searched. In his left coat pocket, police discovered two sealed envelopes, each containing $1,000 in various denominations of United States currency. In his left rear pocket, police found a plastic bag containing a green leafy substance, stipulated to be marijuana, and $135 in United States currency. In his right rear pocket, police found $1,016 in United States currency. A hand-rolled cigarette was also recovered from the car.

The defendant was arrested and was strip searched at the Elgin police department. A small amount of marijuana in a plastic bag was recovered from the crotch area of his pants, and a plastic bag containing a white powdery substance was found in the crotch area of his underwear. It was stipulated that this white powdery substance was 3.9 grams of cocaine. No user paraphernalia was found on the defendant’s person, and no contraband was recovered in the search of James Gatlin.

At trial, Officer T.J. Strickland and Detective Sergeant David Gopher of the Elgin police department were qualified as experts in the area of narcotics. In Strickland’s opinion, the defendant was selling narcotics and not using them at the time he was arrested. Strickland based his opinion on the fact that the defendant had in excess of $3,100 in different locations on his person, the amount of cocaine the defendant possessed, and the lack of user paraphernalia such as a small straw, mirror, razor blade, small pipe or tube. Strickland testified cocaine is usually packaged for sale in quantities of one and three grams, one-quarter ounce, one-half ounce and ounces; the cost is about $100 a gram. The packages are usually fastened, but Strickland had also seen it for sale just loose in an open bag such as the one recovered from the defendant.

Detective Sergeant Gopher was also of the opinion that the defendant was selling drugs. His opinion was based on the fact that the defendant was carrying a large amount of currency, possessed a quantity of cocaine in excess of what the user in that area would have and did not have any user paraphernalia in his possession. Gopher testified the usual cocaine user would have anywhere from one-quarter to one-half to a gram of cocaine on his person. Gopher testified that when he approached the maroon car, he observed the defendant place a hand-rolled cigarette between the car seats and that Gatlin did not make any kind of a move. An additional quantity of cannabis was seized from the blue Datsun. It was stipulated that all the cannabis seized on December 9 was in fact cannabis with a total weight between 2.5 and 10 grams.

The defendant testified that when the police arrived, Gatlin shoved the later-recovered package of cocaine down the defendant’s pants. He further testified that he borrowed $2,000 from Gatlin and $1,000 from another friend, whom he did not identify, to assist his mother in getting her house out of foreclosure. She needed $4,500 or $4,600 to keep the house. He stated the police laughed when he told them the money was for his mother’s mortgage. He did not sign an IOU for the loan from Gatlin because he grew up with Gatlin and Gatlin trusted the defendant to pay him back. The defendant stated his mother lost the house and moved back down south to Parkin, Arkansas, because the police wouldn’t give him back the money and he did not meet the deadline.

The defendant, who in 1987 was employed as a patrolman in Parkin, Arkansas, admitted having the marijuana which was found in his back pocket for his personal use, but he denied having cannabis in the crotch area of his pants at the police station or seeing the cannabis recovered from the other car or having ever sold cocaine or other drugs. He testified he did not tell anyone until trial that James Gatlin shoved the cocaine down his pants because he knew of Gatlin’s violent character, was afraid of Gatlin, and Gatlin got out on bond before he did. He did not know Gatlin’s whereabouts at the time of trial. When Gatlin stuck the cocaine down his pants, the defendant did not move because the police might have thought he was going for a gun and shot him. As noted, the jury found the defendant guilty on all charges.

Defendant concedes he was found in actual possession of the drugs but argues there was insufficient circumstantial evidence to create an inference of intent to deliver. Defendant acknowledges that, in determining whether there was an intent to deliver, the threshold question is whether the amount of contraband is in excess of any amount that could be viewed as being for personal use. He further acknowledges that factors other than the amount of contraband possessed may support the inference that there was an intent to deliver. He argues, however, that the jury could not reasonably have inferred an intent to deliver from his possession of 3.9 grams of cocaine where a larger amount, 4.55 grams, was specifically described as “small” in People v. Kline (1976), 41 Ill. App. 3d 261, 264. Further, he discredits Officer Strickland’s opinion that he had the intent to deliver because it was based on a nonspecific amount of cocaine (i.e., “[B]ased on the amount of cocaine you [Officer Strickland] observed”), and Detective Sergeant Gopher’s opinion was based on 5.5 grams, which was the weight of the cocaine as measured by the police department scale, rather than the stipulated amount, 3.9 grams. He argues there was nothing to tie him to the area where he was arrested and that the possession of 5.5 grams of cocaine might have been typical of users in other areas. Assuming, arguendo, that Detective Sergeant Gopher’s estimate of how much the typical cocaine user would have on his person was correct (between one-quarter and one gram) defendant points out he was not found to be in possession of any packaging materials and, thus, no inference of an intent to deliver arises. Moreover, he asserts, the absence of drug paraphernalia in his possession should weaken, not strengthen, the intent to deliver inference against him.

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Cite This Page — Counsel Stack

Bluebook (online)
555 N.E.2d 434, 198 Ill. App. 3d 24, 144 Ill. Dec. 315, 1990 Ill. App. LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-berry-illappct-1990.