People v. Liberman

592 N.E.2d 575, 228 Ill. App. 3d 639, 170 Ill. Dec. 139, 1992 Ill. App. LEXIS 659
CourtAppellate Court of Illinois
DecidedApril 30, 1992
Docket4-91-0038
StatusPublished
Cited by30 cases

This text of 592 N.E.2d 575 (People v. Liberman) 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. Liberman, 592 N.E.2d 575, 228 Ill. App. 3d 639, 170 Ill. Dec. 139, 1992 Ill. App. LEXIS 659 (Ill. Ct. App. 1992).

Opinions

JUSTICE LUND

delivered the opinion of the court:

After a jury trial, defendant Joseph Liberman was convicted in absentia of trafficking of a controlled substance containing cocaine weighing more than 100 grams but less than 400 grams under the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. SGVa, par. 1100 et seq.). He thereafter appeared and was sentenced to 22 years’ imprisonment. Defendant appeals, contending (1) he was improperly charged under section 401.1 of the Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1) because the statute failed to provide a penalty for the amount of cocaine he was found to possess; (2) the trial court erred in asking a question of a key State witness; (3) the testimony of a State’s witness regarding a fight between witness and defendant was so prejudicial as to deprive him of his right to a fair trial; and (4) in sentencing him, the trial court improperly considered a factor inherent in the offense as a factor in aggravation.

I. Facts

The first witness at trial was Cindy Jameson, defendant’s girlfriend at the time of the offense. Defendant and Jameson lived together in Jameson’s home. Jameson testified that on September 12, 1988, she became upset with defendant because he was taking drugs in her home. Defendant and Jameson became engaged in a fight and she told him to leave. Defendant then went to a compartment where he had stored a tackle box, took this tackle box to a bedroom, and shut the door.

Jameson then testified that she heard noises coming out of the bedroom. She became suspicious and opened the door. She saw defendant “doing a line of cocaine.” She also saw a large bag of “powdery stuff” and cash.

Jameson asked what was going on and defendant replied it was “coke” (cocaine) and stated it was “what he made his living at.” Defendant slammed the tackle box shut and locked it. A struggle ensued for possession of the tackle box. Jameson managed to wrestle the tackle box away from defendant and she then took the box to a neighbor’s house for safekeeping.

Later, Jameson phoned defendant and told him to remove his possessions from her house. Defendant arrived at Jameson’s home to remove his possessions and begged Jameson to return the tackle box. When she refused, another fight began and Jameson called the police.

The police arrived and oversaw defendant removing his possessions from the home. Jameson then took the police officers to her neighbor’s home and gave the tackle box to the police.

The police took custody of the tackle box and obtained a search warrant. The tackle box contained $1,600 in cash, a bag containing cocaine mixed with other cutting agents, and miscellaneous items. An expert testified at trial that the cocaine mixed with other cutting agents weighed 164 grams. The expert also testified that this mixture was 64% pure (plus or minus 7%). (This translates into approximately 105 grams of cocaine.)

On October 8, 1988, defendant was taken into custody and given his Miranda warnings. Defendant admitted receiving shipments of cocaine from Rowan, a friend from Florida. Defendant would sell the cocaine and return the resulting money to Rowan. On October 26, 1988, defendant recounted these transactions in greater detail. Defendant specified amounts of cocaine that were shipped to him, as well as the amounts of money he returned to Rowan. Rowan testified at trial and verified the nature of the transactions which took place between himself and defendant. Upon this evidence, the jury found defendant guilty and this appeal followed.

II. Challenge To Charge And Conviction Under Section 401.1 Of The Act

On February 7, 1989, defendant was charged by complaint with controlled substance trafficking in violation of section 401.1 of the Act, in that on or about September 12, 1988, he knowingly and without lawful authority caused to be brought more than 100 grams but less than 400 grams of a substance containing cocaine, a controlled substance, into the State of Illinois with the intent to deliver it. At trial, the jury determined that defendant brought 105 grams of this controlled substance into the State with the requisite intent. By post-trial motion, defendant argued he was improperly charged under section 401.1 of the Act because that section does not provide a penalty for the amount of cocaine he was found to possess, i.e., 105 grams. The trial court denied defendant’s motions, and defendant renews this challenge to the conviction on appeal.

A. The Statutory Framework

The offense of controlled substance trafficking was added to the Act by Public Act 85-743 (Pub. Act 85-743, §2, eff. Sept. 22, 1987 (1987 Ill. Laws 3160, 3164)). Denominated section 401.1, it provided an enhanced penalties provision whereunder the sentencing range authorized by section 401 of the Act (Ill. Rev. Stat. 1987, ch. SGVa, par. 1401) was doubled:

“(b) A person convicted of controlled substance trafficking shall be sentenced to a term of imprisonment not less than twice the minimum term and fined an amount as authorized by Section 401 [(Ill. Rev. Stat. 1987, ch. 563/2, par. 1401)] of this Act, based upon the amount of controlled or counterfeit substance brought or caused to be brought into this State, and not more than twice the maximum term of imprisonment and fined twice the amount as authorized by Section 401 of this Act, based upon the amount of controlled or counterfeit substance brought or caused to be brought into this State.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1(b).

When section 401.1 was added to the Act, section 401 — making it unlawful for any person to knowingly manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance — defined the class of the offense, from the most to the least serious, based on the amount and type of drug involved. (See Ill. Rev. Stat. 1987, ch. 561/2, par. 1401 (text eff. until July 1, 1988).) As to substances containing cocaine, for example, section 401(a)(2) provided that commission of the offense involving “15 grams or more of any substance containing cocaine [(emphasis added)]” was a Class X felony (Ill. Rev. Stat. 1987, ch. 563/2, par. 1401(a)(2)); subsection (b)(2) made commission of the offense involving “more than 1 gram but not more than 15 grams” of such substance a Class 1 felony (Ill. Rev. Stat. 1987, ch. 563/2, par. 1401(b)(2)), and subsection (c) made commission of the offense based on “any other amount” of a Schedule II narcotic drug — which cocaine is (see Ill. Rev. Stat. 1987, ch. 563/2, pars. 1206(b)(4), 1102(aa)(4)) — a Class 2 felony (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(c)).

In Public Act 85-1003 (Pub. Act 85-1003, §3, eff. July 1, 1988 (1987 Ill. Laws 4710, 4716, 4719)), on November 6, 1987, the legislature added a provision providing in pertinent part for stiffer sentences for those convicted of violating section 401(a)(1) (heroin), (a)(2) (cocaine), (a)(3) (morphine), or (aX7) (lysergic acid diethylamide (LSD)), than those which could otherwise have been imposed under section 5 — 8—1 of the Unified Code of Corrections (Code) (see, e.g., Ill. Rev. Stat. 1987, ch. 38, par.

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Cite This Page — Counsel Stack

Bluebook (online)
592 N.E.2d 575, 228 Ill. App. 3d 639, 170 Ill. Dec. 139, 1992 Ill. App. LEXIS 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-liberman-illappct-1992.