People v. Harrell

2021 IL App (1st) 190992-U

Opinion

2021 IL App (1st) 190992-U No. 1-19-0992 Order filed June 1, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CR 6577 ) JERRY HARRELL, ) Honorable ) James M. Obbish, Defendant-Appellant. ) Judge, presiding.

JUSTICE PIERCE delivered the judgment of the court. Presiding Justice Walker and Justice Coghlan concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for delivery of a controlled substance where the State proved beyond a reasonable doubt that he delivered 1 gram or more but less than 15 grams of heroin.

¶2 Following a bench trial, defendant Jerry Harrell was convicted of delivery of a controlled

substance (1 gram or more but less than 15 grams of any substance containing heroin) (720 ILCS

570/401(c)(1) (West 2018)) and sentenced to six years’ imprisonment. On appeal, defendant

argues his conviction should be reduced to the Class 2 felony for simple delivery of heroin because No. 1-19-0992

the State failed to prove beyond a reasonable doubt that the heroin he delivered weighed more than

one gram. We affirm.

¶3 Defendant was charged with one count of delivery of 1 gram or more but less than 15 grams

of heroin stemming from an April 17, 2018, narcotics investigation in the area of Van Buren Street

and Pulaski Road in Chicago.

¶4 At trial, Chicago police officer Daniel Prskalo testified that on that date, he was working

as part of a team of officers conducting a “buy bust” which he described as “when an undercover

[officer] goes into an area, buys narcotics from the individual and the same day they are arrested.”

Prskalo was working as the undercover officer that day and saw defendant, whom he identified in

court, standing on the corner of two intersections. Prskalo drove past defendant, who shouted

“blows,” which Prskalo understood to mean the sale of heroin. Prskalo informed the rest of his

team, including a description of defendant and the location where this occurred. After surveillance

had been established in the area, which took approximately two minutes, Prskalo returned to the

area to observe defendant.

¶5 When he saw defendant again, Prskalo asked him “for the blows,” to which defendant

responded “this is not a drive-up service, that you had to call for service in order to purchase

heroin.” Prskalo asked defendant for his cell phone number, which defendant gave to him. Prskalo

dialed the phone number and then informed defendant in person he wanted to buy “two.”

Defendant told Prskalo to park his vehicle behind a car “about four houses to the west,” and then

walked out of Prskalo’s sight.

¶6 Approximately after a minute or less, Prskalo saw defendant again when he walked to the

passenger side of Prskalo’s vehicle. Defendant informed Prskalo “this is the good stuff,” and

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“dropped two clear capsules” on the passenger seat. Prskalo handed defendant two $10 bills, which

were prerecorded funds used by the police to purchase narcotics. Defendant then walked away

from the vehicle, and Prskalo did not see where he went. Prskalo informed the surveillance team

of a positive heroin purchase and gave a description of defendant’s clothing and where he last saw

him. The officers detained defendant, and Prskalo identified him as the person who had sold him

the heroin.

¶7 At the station, Prskalo inventoried the heroin according to police inventory procedures. He

identified a copy of his prerecorded fund sheet for April 2018, showing the funds he used on the

day of the incident, along with a photocopy of the bills. Prskalo also identified photographs

depicting the heroin he purchased, a screenshot of his cell phone with defendant’s phone number,

defendant at the scene, and his vehicle parked with defendant crossing the street. After Prskalo

inventoried the heroin, it was sent to the crime lab in a sealed package.

¶8 On cross-examination, Prskalo stated that he was not specifically looking for defendant on

the day of the “bust buy” and first encountered defendant when he yelled “blows” once. The

surveillance vehicle was parked approximately 30 feet from Prskalo. Prskalo did not have a

telephone conversation with defendant. Prskalo did not record the interaction with defendant, who

had been standing within four feet of him. After Prskalo parked his vehicle he lost sight of

defendant for approximately “a minute or less.” After the sale, Prskalo lost sight of defendant and

radioed his team with his description. Prskalo then conducted a show-up “about four minutes later”

and did not recall whether defendant was in handcuffs at that time, but recalled he was not in a

squad car.

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¶9 On redirect examination, Prskalo testified that Officer Byrd took the photographs but he

did not know the vantage point from which Byrd took the photographs.

¶ 10 Chicago police officer Sau Haidari testified that he was part of the surveillance team

conducting a narcotics investigation on April 17, 2018. Haidari was working as a surveillance

officer in a “covert capacity.” Shortly after 1:00 p.m., he received radio communications from

Prskalo about “contact with an individual.” Haidari followed Prskalo and saw Prskalo speak with

a person whom he identified in court as defendant. Haidari saw Prskalo park his vehicle “[a]cross

the street,” and observed defendant walk past the vehicle and enter a gangway approximately 80

to 100 feet from his surveillance point where Haidari lost sight of him.

¶ 11 “Within a minute,” defendant returned and approached Prskalo’s vehicle on the passenger

side. Haidari saw defendant lean into the vehicle, step back, and Prskalo drive away. Prskalo

alerted the team to the “positive transaction” and gave a description of defendant which matched

Haidari’s observations of him. Haidari maintained surveillance of defendant and watched him

reenter the gangway. He informed the rest of the team where defendant was located and observed

the enforcement officers detain him. Haidari identified photographs taken of the incident and

indicated they truly and accurately depicted the events he observed on the date in question.

¶ 12 On cross-examination, Haidari stated he did not have a conversation with defendant and

first observed him when defendant followed Prskalo. Haidari did not see defendant place narcotics

into Prskalo’s vehicle or Prskalo tender currency to defendant because his view was obstructed by

Prskalo’s vehicle. Haidari did not hear the conversation Prskalo had with defendant. Haidari did

not use anything to enhance his vision nor did he record the incident.

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¶ 13 Chicago police officer Steven Laureto testified that he, along with his partner, Officer

Mellett, was working as an enforcement officer in an unmarked police vehicle as part of the

surveillance team on April 18, 2018. “Sometime a little bit before 1:18” in the afternoon, he

received a communication that Prskalo engaged in a “hand-to-hand transaction” with a person

Prskalo described, whom Laureto identified in court as defendant. On the scene, Laureto observed

defendant, who matched the description provided by Prskalo. Laureto and Mellett approached him

for a field interview. The officers detained defendant and Mellett performed a custodial search

with Laureto present at the time. Mellett recovered two $10 bills which were part of the

prerecorded funds used by Prskalo. The bills were commingled with defendant’s personal money.

¶ 14 On cross-examination, Laureto explained that he was not present for Prskalo’s interaction

with defendant, who matched the description relayed by Prskalo. After the officers placed

defendant in custody, Mellett performed a custodial search and recovered the prerecorded funds

but did not recover any narcotics from defendant’s person.

¶ 15 The parties then proceeded by way of stipulation. The parties first stipulated that, if called,

Officer Matthew Mellett would identify defendant in open court and testify that he arrested

defendant on April 17, 2018. He would further testify that he recovered two bills of prerecorded

fund money from defendant and inventoried the bills at the police station.

¶ 16 The parties next stipulated that, if called, Shandra Girtman would testify that she is a

forensic chemist employed by the Illinois State Police Crime Lab. Girtman opened Inventory No.

14150183, an envelope containing two items which she received from the Chicago Police

Department. She “performed tests commonly accepted in the area of forensic chemistry for

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ascertaining the presence of a controlled substance on the two items.” She would also testify as to

the following:

“that after performing the tests on the contents of Inventory No. 14150813 she

tested both of the items. It would be her opinion within – based on her education training,

[sic] and experience, that the contents of the two items were positive for the presence of

heroin and that the actual weight of the items was 1.2 grams.

The chemist would further testify that the total estimated weight of the two items

was also 1.2 – total actual weight was 1.2 grams; that after the testing and analysis of

Inventory No. 14150813 was completed she would further testify it was again sealed and

she would be able to identify it in open court as the same items that she tested and that they

are sealed.”

¶ 17 The court found defendant guilty of delivery of a controlled substance “in excess of a

gram.” In ruling, the court noted the officers were “extraordinarily credible” and “went to great

lengths” to ensure the correct individual who sold the heroin was the person who was arrested and

charged. The court also noted that defendant had the two $10 prerecorded bills on his person when

he was arrested, and stated “[t]he State has overwhelmingly proved their case beyond a reasonable

doubt.” After denying defendant’s motion for a new trial, the court sentenced defendant as a Class

X offender, due to his criminal history, to six years’ imprisonment.

¶ 18 On appeal, defendant challenges the sufficiency of the evidence to sustain his conviction,

arguing the State failed to prove the weight of the heroin he delivered. Specifically, he contends

that the stipulated testimony of Shandra Gitman “does not make clear that the weight included

only the heroin and not also the capsules containing the heroin,” so it is impossible to know the

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weight of the heroin alone. Defendant requests this court reduce his conviction from the Class 1

offense, to the lesser-included Class 2 offense of simple delivery of heroin.

¶ 19 The standard of review for a challenge to the sufficiency of the evidence to sustain a

conviction is “whether, viewing the evidence in the light most favorable to the State, ‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”

People v. Belknap, 2014 IL 117094, ¶ 67 (quoting People v. Collins, 106 Ill. 2d 237, 261 (1985)).

The trier of fact, in this case the trial judge, has the responsibility of resolving conflicts in the

testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate

facts. People v. Brown, 2013 IL 114196, ¶ 48. The reviewing court must allow all reasonable

inferences from the evidence to be drawn in favor of the State. People v. Martin, 2011 IL 109102,

¶ 15. “ ‘In weighing evidence, the trier of fact is not required to disregard inferences which flow

normally from the evidence before it, nor need it search out all possible explanations consistent

with innocence and raise them to a level of reasonable doubt.” People v. Hardman, 2017 IL

121453, ¶ 37 (quoting People v. Jackson, 232 Ill. 2d 246, 281 (2009)). A reviewing court will not

reverse a criminal conviction unless the evidence is “unreasonable, improbable, or so

unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” Jackson, 232 Ill. 2d at 281.

For the following reasons, we find the evidence sufficient to support defendant’s conviction.

¶ 20 To sustain defendant’s conviction for delivery of heroin as charged in this case, the State

had to prove beyond a reasonable doubt that he knowingly delivered 1 gram or more but less than

15 grams of any substance containing heroin to Officer Prskalo. 720 ILCS 570/401(c)(1) (West

2018). Because the State charged defendant with delivering a specific amount of heroin—1.2

grams—and there is a lesser-included offense for simple delivery of heroin, the weight of the

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heroin was an essential element of the offense that the State had to prove beyond a reasonable

doubt. People v. Jones, 174 Ill. 2d 427, 428-29 (1996).

¶ 21 In this court, defendant does not dispute that he delivered heroin to Prskalo. Rather, he

argues that the State failed to prove beyond a reasonable doubt that the heroin weighed more than

1 gram.

¶ 22 Viewing the evidence in a light most favorable to the State, and allowing all reasonable

inferences drawn in favor of the State, we find a rational trier of fact could find beyond a reasonable

doubt that defendant delivered 1.2 grams of heroin. In reaching this conclusion, this court’s

decision in People v. Lashley is instructive. In Lashley, a police officer performing narcotics

surveillance observed the defendant conduct transactions with people in vehicles. 2016 IL App

(1st) 133401, ¶ 7. Another officer recovered 10 items containing suspect heroin from the

defendant’s person and 83 items containing suspect heroin from a nearby gangway, which were

tested by a forensic chemist. Id., ¶¶ 10-12. At trial, the parties stipulated that the forensic chemist

would testify that 65 of the 83 items were tested and were positive for the presence of heroin, the

“actual weight of those items was 15.2 grams,” and the actual weight of the items recovered from

defendant was 3.9 grams. Id., ¶ 12. The court convicted the defendant of one count of possession

of between 15 and 100 grams of heroin and two counts of possession of less than 15 grams of

heroin. Id., ¶ 14.

¶ 23 On appeal, the defendant argued in part that the evidence was not sufficient to convict him

of possession of between 15 and 100 grams of heroin because the stipulation indicated the chemist

weighed both the heroin and the packaging and the packaging likely weighed more than .2 grams.

Id., ¶ 24. We rejected the defendant’s argument because while the stipulation is “not entirely clear”

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whether the chemist weighed both the powder and the bags, or subtracted the weight of the bags

from the overall weight of the tested items, “[i]t is more likely that the weight of the bags did not

factor into the chemist’s calculation,” as the chemist weighed the drugs “for the express purpose

of preparing evidence for the State’s prosecution.” Id., ¶ 28. We also explained that the defendant

was free to cross-examine the witness on these points but did not do so, thus “no contrary evidence”

was put forth by defendant, and the State presented sufficient evidence as to the weight of the

heroin. Id., ¶ 29.

¶ 24 Here, we find the State similarly presented sufficient evidence to prove that defendant

delivered 1 gram or more but less than 15 grams of heroin. As mentioned, we must view the

evidence in the light most favorable to the State, including reading all reasonable inferences in its

favor. See Brown, 2013 IL 114196, ¶ 48; Martin, 2011 IL 109102, ¶ 15. In this case, a reasonable

inference may be made that, when Girtman weighed the two items, she only weighed the heroin

and not the capsules, because she was doing so “for the express purpose of preparing evidence for

the State’s prosecution.” Lashley, 2016 IL App (1st) 133401, ¶ 28. In light of this reasonable

inference, a rational trier of fact could have found beyond a reasonable doubt that defendant

delivered 1.2 grams of heroin.

¶ 25 Defendant acknowledges this court’s holding in Lashley but argues that it is both

distinguishable and incorrectly decided. We disagree, and decline to depart from its well-reasoned

analysis. As in Lashley, the parties stipulated to this evidence, and defendant had the opportunity

to raise a challenge to the weight of the heroin at trial, but instead put forth “no contrary evidence.”

See id., ¶ 29; see also People v. Kane, 2013 IL App (2d) 110594, ¶ 19 (“A party who agrees to the

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admission of evidence through a stipulation is estopped from later complaining about that evidence

being stipulated into the record.”). Accordingly, we affirm defendant’s conviction.

¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 27 Affirmed.

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