People v. Hill

932 N.E.2d 173, 402 Ill. App. 3d 920, 342 Ill. Dec. 282, 2010 Ill. App. LEXIS 647
Appellate Court of Illinois·Decided June 30, 2010·No. 1-08-2420·Published·Cited by 8 cases

Opinion

JUSTICE STEELE

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant James Hill was found guilty of possession of a controlled substance with intent to deliver and delivery of a controlled substance. Based on Hill’s criminal history, the trial court sentenced Hill as a Class X offender (730 ILCS 5/5 — 5—3(c)(8) (West 2006)) to two concurrent 12-year terms in prison. On appeal, Hill argues: (1) his conviction should be reversed, because the circuit court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); (2) the circuit court denied Hill’s knowing right to testify by refusing to rule on his motion in limine to bar the introduction of his prior convictions for impeachment purposes; (3) his sentences are excessive; (4) the mittimus should be corrected to reflect two extra days of credit; and (5) the mittimus should be corrected to reflect a conviction for possession of a controlled substance with intent to deliver, not manufacture or delivery of a controlled substance. For the following reasons, we affirm Hill’s conviction and modify the mittimus.

BACKGROUND

The record on appeal discloses the following facts. During jury selection, the trial judge asked the first and second panels of prospective jurors whether they had a problem with the principles of law that the defendant is presumed innocent, that the presumption remains until the State proves the defendant guilty beyond a reasonable doubt, and that the defendant is not required to present any evidence on his behalf. Defense counsel asked the first panel whether it would affect their verdict if Hill chose not to testify. Defense counsel asked the second panel if Hill chose not to testify, “would that fact prevent you from giving him a fair and impartial trial?” The trial judge asked a prospective juror on the second panel about following the instruction that a defendant’s decision not to testify should not be considered in reaching a verdict.

The trial judge asked the third panel of prospective jurors whether they understood the defendant is presumed innocent, that the presumption remains until the State proves the defendant guilty beyond a reasonable doubt, and that the defendant is not required to present any evidence. The trial judge also asked whether they could follow the law as he issued it, even if they personally disagreed with it. The prosecutor asked jurors in this panel whether they could follow the judge’s instruction that, if Hill did not testify, they could not consider that fact in reaching a verdict.

The trial judge asked the fourth and fifth panels of prospective jurors whether they had any problem with the principles of law that applied to this case that he mentioned earlier.

Prior to the introduction of evidence, defense counsel moved in limine to bar Hill’s prior convictions from being introduced as impeachment evidence if Hill testified. The trial court barred use of four convictions, finding them unduly prejudicial. The trial court deferred ruling on the use of four other convictions, stating that the convictions were within the past 10 years, but that the rulings would depend on the nature of Hill’s testimony, if any.

At trial, Chicago police officer Saud Haidari testified that on September 22, 2007, he was working as a surveillance officer for an undercover narcotics team assigned to the corner of Francisco Avenue and Flournoy Street. From a distance, Officer Haidari observed Hill engage in several hand-to-hand transactions where Hill tendered an unknown item in exchange for cash. Officer Haidari radioed his observations to his team, after which he observed Hill engage in a transaction with Chicago police detective Rhonda Anderson.

Detective Anderson testified that after she received a description of Hill from Officer Haidari, she drove up to Hill in an unmarked car and told him she needed “two blows,” which was a street term for heroin. Hill gave Anderson two pink-tinted Ziploc bags containing a white, powdered substance, in exchange for a $20 bill, which had a prerecorded serial number. Anderson then radioed her team that she had engaged in a positive narcotics transaction.

Chicago police officer Konior testified that he and two other enforcement officers received confirmation of Detective Anderson’s buy and, based on Anderson’s description, apprehended Hill. Detective Anderson drove by and confirmed that Hill was the man involved in the transaction. Officer Konior testified that the officers conducted a custodial search of Hill, which resulted in the discovery of five pink-tinted Ziploc bags containing suspected heroin and $97, including the $20 bill used in Detective Anderson’s transaction.

Illinois State Police forensic scientist Thomas Halloran testified that the two pink-tinted Ziploc bags Anderson bought from Hill contained 0.5 grams of heroin. Halloran also testified that the five pink-tinted Ziploc bags discovered in the custodial search contained 1.5 grams of heroin.

Hill chose not to testify on his behalf.

The jury found Hill guilty of possession with intent to deliver 1 to 14 grams of heroin and delivery of heroin. Hill filed a motion for new trial, which the trial court denied on July 21, 2008. After hearing evidence in aggravation and mitigation, the trial court sentenced Hill as a Class X offender (730 ILCS 5/5 — 5—3(c)(8) (West 2006)) to two concurrent 12-year terms in prison. On August 21, 2008, the trial court denied Hill’s motion to reconsider his sentence. Hill filed a notice of appeal to this court the same day. On August 22, 2008, the trial court denied Hill’s pro se motion to reduce his sentence. Hill filed a second notice of appeal on September 4, 2008. On November 12, 2009, the Illinois Supreme Court entered a supervisory order directing this court to allow the notice of appeal to stand as validly filed.

DISCUSSION

I

On appeal, Hill first argues that the circuit court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) for failing to establish that each prospective juror understood and agreed with the four principles enunciated by our supreme court in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). The State correctly notes that Hill forfeited this issue by failing to make a contemporaneous objection at trial and raising it in his posttrial motion. E.g., People v. Banks, 161 Ill. 2d 119, 143, 641 N.E.2d 331, 342 (1994). Nevertheless, “[pllain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). The plain error doctrine operates when:

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People v. Hill, 932 N.E.2d 173, 402 Ill. App. 3d 920, 342 Ill. Dec. 282, 2010 Ill. App. LEXIS 647 (Ill. Ct. App. 2010).

932 N.E.2d 173 (People v. Hill) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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