People v. Brown

598 N.E.2d 948, 232 Ill. App. 3d 885, 174 Ill. Dec. 316, 1992 Ill. App. LEXIS 1366
Appellate Court of Illinois·Decided August 28, 1992·No. 1-91-0914·Published·Cited by 35 cases

Opinion

PRESIDING JUSTICE EGAN

delivered the opinion of the court:

Following a jury trial, defendant, Larry Brown, was convicted of possession of a controlled substance with intent to deliver and armed violence and was sentenced as an habitual offender to natural life imprisonment. Defendant has appealed his convictions, asserting that he was deprived of his right to a fair trial and that he was not proved guilty of these offenses beyond a reasonable doubt.

On appeal, defendant claims (1) the trial court improperly allowed testimony by Officer Patrick McCarthy as to the habits of drug sellers; (2) the trial court erred in refusing to answer a query from the jury regarding defendant’s alleged possession of a weapon; (3) the trial court erred in allowing rebuttal testimony introduced by the State; (4) he was deprived of his right to a fair trial by improper comments made by the prosecutor during closing argument; (5) the trial court erred in requesting that defendant identify a single juror for questioning in the presence of the entire jury; and (6) he was not proved guilty beyond a reasonable doubt.

The record indicates that defendant was charged by indictment with one count of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(bX2)), one count of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2), and one count of unlawful use of a firearm by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(A)). At trial, the State proceeded only on the charges of possession of a controlled substance with intent to deliver and armed violence. Following a jury trial, defendant was convicted of both offenses. Thereafter, the trial court determined that defendant was an habitual offender based upon his prior convictions for murder and armed violence, and the court sentenced defendant to natural life imprisonment. Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1.

At trial, Chicago police officer Steven Nowells testified that on January 12, 1990, he was assigned to a tactical unit and was on duty with his partner, Officer Elgin Holt. At approximately 6 p.m., Nowells and Holt were in their squad car near 75th Street and South Shore Drive in Chicago when they observed a new Nissan Infiniti with no license plates or temporary sticker. The officers stopped the car and saw the defendant get out of the driver’s seat as they exited their squad car. According to Nowells, defendant was wearing a long fur coat which swung open as he turned toward the officers, revealing a gun tucked into defendant’s waistband. Nowells testified that they immediately grabbed defendant, and Holt recovered defendant’s gun, which Nowells described as a blue-steel, nine-millimeter Smith and Wesson. The officers then placed defendant under arrest and conducted a search. Nowells stated that they recovered from defendant’s coat pocket a plastic bag containing cocaine, a plastic bag containing marijuana cigarettes, and $1,409 in cash. Nowells indicated that defendant told them that he was unemployed.

Nowells testified that he completed the necessary inventory slips for the recovered gun, controlled substances, and cash. On cross-examination, Nowells admitted that the inventory sheet which he signed indicated that he had recovered the gun from defendant. Nowells also acknowledged that he drove the Nissan to the police station following defendant’s arrest, but he denied that he searched the car and found the gun in the trunk. Nowells stated that he did not send the controlled substances out to be fingerprinted because they had been recovered from defendant’s person and were not taken from the scene of a violent crime. Nowells indicated that he thought he and Holt were working the evening shift on January 12, 1990, which would have been from 6 p.m. to 2:30 a.m.

Nowells stated further that he did not recall including in the police report a statement that the temporary license permit for the Nissan was not displayed, and he denied removing the permit from the rear window of the Nissan at the police station. Nowells testified that defendant was sober when they arrested him, and the officers did not request assistance. In addition, defendant had not violated any other traffic laws, had not made any furtive movements or gestures in the car, and had not attempted to speed away.

Officer Elgin Holt’s description of the arrest and search of defendant was substantially the same as that presented by Nowells. In addition, Holt testified that the gun recovered from defendant was loaded and that defendant made some movement toward his coat as the officers approached him. Holt stated that the cocaine recovered from defendant was chunky and rocky. Holt also stated that defendant had a valid driver’s license when he was arrested. Holt testified that he and Nowells worked from 11 a.m. to 7 p.m. on January 12, 1990.

Holt testified further that on March 12, 1990, he received an inventory tracer slip for the gun recovered from defendant. Holt explained that a tracer slip comes from the inventory department after a case has been disposed. Holt stated that upon receipt of the tracer slip, he learned that the case against defendant had been dismissed, and he then marked the slip to indicate that the gun should be destroyed.

Chicago police officer Patrick McCarthy was called as an expert ■witness for the prosecution to testify as to the street value of the cocaine recovered from the defendant. McCarthy testified that he was an experienced police officer who had been assigned to the Chicago department of the FBI. McCarthy stated that prior to his assignment to the FBI, he had worked for five years as an undercover officer in the police department’s gang crime unit and had made several hundred narcotics purchases from street gang members. While working in this capacity, McCarthy dealt with both dealers and buyers of narcotics.

The prosecutor then asked McCarthy how cocaine could be ingested. When defense counsel and the trial judge questioned the relevancy of this examination, one of the prosecuting attorneys responded that this testimony was foundation evidence of the street value of the cocaine, and the other prosecutor stated that this testimony was necessary as a foundation for McCarthy’s “expertise to testify to the underlying question.”

Thereafter, the trial court permitted McCarthy to testify as follows:

“Cocaine can be either snorted, smoked, it can be cooked up and put in a syringe and it can be injected into the body. It can also be smoked. What they do is they roll up a marijuana cigarette and before they seal it up they sprinkle powdered cocaine onto the marijuana cigarette then roll it up and smoke it.
* * *
A user would normally buy small quantities of cocaine. They would buy packages consisting of quarter grams, half grams or single gram packages.
* * *
[Packages of cocaine sold to users are] usually packaged in a tin foil packet or a paper packet, and they’re usually used real soon after they’re purchased.”

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People v. Brown, 598 N.E.2d 948, 232 Ill. App. 3d 885, 174 Ill. Dec. 316, 1992 Ill. App. LEXIS 1366 (Ill. Ct. App. 1992).

598 N.E.2d 948 (People v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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