People v. Flores

Procedural entryThis page is a short order in People v. Flores. Read the opinion of the Court — 404 Ill. App. 3d 155 →

Appellate Court of Illinois·Decided March 31, 2008·No. 1-06-1950 Rel·Published

Opinion

THIRD DIVISION MARCH 31, 2008

No. 1-06-1950

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 04 CR 29550 ) JOSE FLORES, ) The Honorable ) John Kirby, Defendant-Appellant. ) Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial, defendant, Jose Flores, was convicted of possession with the intent

to deliver cocaine and possession with the intent to deliver cannabis and sentenced to concurrent

terms of 14 years’ and 3 years’ imprisonment, respectively. On appeal, defendant contends that

the trial court abused its discretion by failing to resolve jury confusion during deliberations.

Defendant further contends that the trial court improperly barred the jurors from discussing and

sharing their trial notes during deliberations. Defendant finally contends that his mittimus must be

corrected to accurately reflect the number of days credit he received for time spent in custody.

Defendant does not challenge the sufficiency of the evidence supporting his conviction;

therefore, we briefly summarize only those facts necessary for the disposition of the instant

appeal. On November 17, 2004, the police executed a search warrant at 4636 South Paulina

Avenue, Chicago, Illinois, based upon information from an informant that he had purchased

cocaine at that location. While executing the warrant, the police discovered defendant in the 1-06-1950

apartment with cocaine and cannabis and further recovered narcotics distribution materials and

over $3,000 in cash in a bedroom closet. Defendant was arrested and confessed that the drugs

belonged to him. Defendant was subsequently charged with one count of possession of 400 to

900 grams of cocaine with the intent to deliver (720 ILCS 570/401(a)(2)(C) (West 2004)) and

one count of possession of 30 to 500 grams of cannabis with the intent to deliver (720 ICLS

550/5(d) (West 2004)).

Upon commencement of defendant’s trial, the court advised the jurors that they were

allowed to take notes during the trial, but the notes should remain confidential. The court further

instructed the jurors to primarily rely on their own recollection of the evidence and not let their or

any other juror’s notes replace their memory. At the close of evidence, the jury ultimately found

defendant guilty of both charged counts; however, during deliberations, the jury asked, "if the

drugs are over 400 G and less than 900 G or over 30 G and less than 500, is it automatically

intent according to the law?” The trial court shared the jury’s question with defense counsel and

the State. The parties agreed with the court’s response that, "you have heard all the testimony

and received all the evidence and instructions, please continue to deliberate.” Defendant was later

sentenced as previously described. This timely appeal followed.

We review the legal issues presented in this appeal de novo. People v. Herron, 215 Ill. 2d

167, 174 (2005).

Defendant first contends that the trial court abused its discretion in failing to resolve jury

confusion during deliberations. In the alternative, defendant argues that his counsel was

ineffective for not objecting to the trial court’s suggested response to the jury’s inquiry. The

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State responds that defendant was waived review of this issue on appeal.

At the outset, we note that defendant concedes he did not preserve this issue for our

review because he did not object to the court’s proposed response at trial and did not raise the

issue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The State further

highlights the fact that defense counsel agreed with the trial court’s proposed answer to the jury’s

inquiry and, therefore, the State argues that defendant invited the alleged error. People v. Reid,

136 Ill. 2d 27, 38 (1990) ("[w]here a defendant acquiesces in the circuit court’s answer to the

jury’s question, the defendant cannot later complain that the circuit court abused its discretion”).

In situations where a defendant either invites or agrees with a procedure at trial and then later

challenges that procedure on appeal, the supreme court has determined that the circumstance

exceeds the bounds of waiver and has considered it an issue of estoppel. People v. Harvey, 211

Ill. 2d 368, 385 (2004). Accordingly, because defendant agreed with the suggested response to

the jury question and failed to raise this challenge in his posttrial motion, defendant has forfeited

review of the issue.

Notwithstanding, defendant urges this court to apply the plain error analysis to his claim.

Pursuant to the plain error rule, a reviewing court may consider an issue that was not properly

preserved if the evidence is closely balanced or where the error is so fundamental and of such

magnitude that it deprived the defendant of a fair trial. Harvey, 211 Ill. 2d at 387; see 134 Ill. 2d.

R. 615(a). The plain error rule is reserved for limited and narrow circumstances (Herron, 215 Ill.

2d at 177) and applies only where the plain error affected the defendant’s substantial rights

(People v. Smith, 321 Ill. App. 3d 523, 529 (2001)). Moreover, the burden of persuasion rests

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with the defendant. Herron, 215 Ill. 2d at 187.

We must first determine whether defendant’s complained-of "error” actually constitutes an

error because application of the plain error rule presumes that an error occurred in the trial court.

Herron, 215 Ill. 2d at 187. In general, even where the jury was properly instructed, the trial court

has a duty to instruct a jury when "it has posed an explicit question or requested clarification on a

point of law arising from facts about which there is doubt or confusion.” People v. Childs, 159

Ill. 2d 217, 229 (1994); citing Reid, 136 Ill. 2d at 39. Nevertheless, it is within the trial court’s

discretion to decline to answer a jury’s question where the readily ascertainable instructions

sufficiently explain the law; where further instruction would serve no useful purpose or would

potentially confuse the jury; when the jury’s inquiry involves a question of fact; or where

answering the jury’s question might cause the court to express an opinion that would likely direct

the jury’s verdict. Childs, 159 Ill. 2d at 228, citing Reid, 136 Ill. 2d at 39.

In the case at bar, the jury asked, "if the drugs are over 400 G and less than 900 G or over

30 G and less than 500, is it automatically intent according to the law?” and, after consulting with

both parties, the court responded that, "you have heard all the testimony and received all the

evidence and instructions, please continue to deliberate.” The jury was previously instructed with

the elements of possession with intent to deliver both cannabis and a controlled substance and was

further provided the legal definition of intent. Specifically, the jury received Illinois Pattern Jury

Instructions, Criminal, Nos. 17.06, 17.18 and 5.01A (4th ed. 2000) (hereinafter IPI Criminal (4th)

Nos. 17.06, 17.18 and 5.01A), where the jurors were instructed:

"To sustain the charge of possession with intent to deliver cannabis when the

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substance containing the cannabis weighed more than 30 grams but not more than 500

grams, the State must prove the following propositions:

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