People v. Love

584 N.E.2d 189, 222 Ill. App. 3d 428, 165 Ill. Dec. 10
Appellate Court of Illinois·Decided November 19, 1991·No. 1-89-1815, 1-89-1920·Published·Cited by 5 cases

Opinion

584 N.E.2d 189 (1991)
222 Ill. App.3d 428
165 Ill.Dec. 10

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
James D. LOVE (Impleaded), Percy Jenkins (Impleaded), Defendants-Appellants.

No. 1-89-1815, 1-89-1920.

Appellate Court of Illinois, First District, Second Division.

November 19, 1991.

*191 Randolph N. Stone, Public Defender of Cook County, Chicago (Cheryl K. Lipton and Karen E. Tietz, of counsel), for defendants-appellants.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Kathleen F. Howelett, and Laura L. Morrison, of counsel), for plaintiff-appellee.

Justice HARTMAN delivered the opinion of the court:

Defendants, James D. Love and Percy Jenkins, were each convicted by a jury of two counts of possession of a controlled substance with intent to deliver. (Ill.Rev. Stat.1987, ch. 56½, par. 1401.) They appeal, arguing that (1) they were denied a fair trial due to alleged errors in jury selection; (2) the "one act-one crime" rule requires vacature of their lesser convictions and sentences; and (3) the cumulative effect of alleged trial errors denied them a fair trial. We affirm in part, and vacate defendants' lesser convictions and sentences, for reasons which follow.

Defendants were arrested with Doris Atkins (Doris) and Ivory Atkins (Ivory) on September 29, 1988, in connection with a narcotics investigation. Ivory obtained a severance; defendants and Doris were tried together.

The four officers involved in the investigation, David Lemieux, Rendella Taylor, Quadir Dawan, and Daniel Willis, all testified about the events leading to defendants' arrests. Lemieux, Taylor, and Dawan entered an apartment building at 1027-29 E. 62nd Street, and Willis went around to the rear entrance. Lemieux and Dawan stationed themselves in the stairwells adjacent to the second floor, and Taylor knocked on the front door of the apartment in question. Someone inside said "what do you want," and Taylor responded "give me a bag of caine." Doris opened the door and Taylor gave her a pre-marked ten-dollar bill. Doris handed Taylor a small bag of cocaine, and Taylor signalled her fellow officers. The three officers ran into the apartment. Lemieux saw defendants and Ivory seated at a round glass table, on which was a large bag of cocaine, 387 small bags of cocaine, and a quantity of phencyclidine (PCP). Lemieux also saw drug paraphernalia on the table, including a scale, sifter, grinder, small spoon, small empty packages, a sealing machine, and a bottle of manitol, which is used to extend the volume of cocaine. The apartment smelled of PCP. In a bedroom closet, Lemieux *192 found empty plastic bags and another sealing machine; he also discovered five sifters and three measuring spoons, all of which were covered with white powder. Taylor searched Doris and found $840 in cash on her person, including the pre-marked ten-dollar bill. None of the officers saw either defendant handle the recovered items, nor was any evidence found in their actual possession.

The recovered narcotics consisted of 11.23 grams of PCP and 101.01 grams of cocaine.

Both defendants rested without offering any evidence. Doris testified and denied involvement in a drug transaction. She claimed that the recovered narcotics were from a suitcase which was found in her son Ivory's bedroom closet.

The jury found both defendants guilty of the two counts of possession of narcotics with intent to deliver. (Ill.Rev.Stat.1987, ch. 56½, par. 1401.) Jenkins was sentenced to concurrent terms of 16 and 12 years in custody of the Department of Corrections, and Love was sentenced to concurrent terms of 12 and 10 years in custody of that same institution.

I.

Defendants first claim that they were denied a fair and impartial jury due to the remarks of a prospective juror. During voir dire, one panel member, who was identified as a Chicago police sergeant, stated that he "couldn't be fair and impartial in any trial." When the judge sought the basis of that statement, the panel member replied:

"Do you want me to answer that? All right. When the trial reaches the stage of prosecution I believe that 99 of a hundred percent—."

Defense counsel immediately objected. The circuit court excused the prospective juror for cause but refused to strike the entire panel.

This case is similar to People v. Frantz (1986), 150 Ill.App.3d 296, 103 Ill.Dec. 649, 501 N.E.2d 966, in which a venireperson said that he could not be fair and impartial due to his prior employment as a police officer and his association with testifying officers and defense counsel. When asked if he would favor an officer's testimony, the panel member responded:

"Having worked with the guys here and knowing what they have to go through to get a case through the State's Attorney's Office, I would have to go along with them." (Frantz, 150 Ill.App.3d at 303, 103 Ill.Dec. 649, 501 N.E.2d 966.)

It was held that that response did not taint the panel; the circuit court's thorough voir dire and the speculative nature of any prejudice did not require reversal of the lower court's refusal to strike the entire panel. Frantz, 150 Ill.App.3d at 303-304, 103 Ill. Dec. 649, 501 N.E.2d 966.

Similarly, there is no abuse of discretion in this case. The purpose of voir dire is to select a fair and impartial jury. (People v. Teague (1982), 108 Ill.App.3d 891, 894, 64 Ill.Dec. 401, 439 N.E.2d 1066.) The circuit court's examination of potential jurors was thorough, and no other venireperson indicated any prejudice due to the officer's statement. The court asked panel members both before and after the contested remark whether a policeman's testimony would affect their ability to be fair and impartial, and each person responded negatively. Defendants' contention that the entire panel was tainted is purely speculative. See People v. Newbury (1972), 53 Ill.2d 228, 241, 290 N.E.2d 592.

Defendants also contend that they were denied a fair trial based on the State's use of information in a prospective juror's rap sheet. In response to the State's question about his criminal history, one prospective juror stated that he was on probation for eluding a police officer and had committed several "moving violations," including driving without a license. He indicated that he served time for a "couple weeks" as a result of his violation of probation. Later, the State sought to strike this venireperson for cause because his rap sheet showed that he had been convicted of attempted auto theft. The court excused him for cause based upon his untruthfulness in responding to the court's inquiry.

*193 Defendants have waived this issue for failure to include it in their post-trial motions. (People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124.) Were we to consider their arguments, however, they would fail on their merits.

In People v. Franklin (1990), 135 Ill.2d 78, 95, 142 Ill.Dec. 152, 552 N.E.2d 743, our supreme court held that the State's failure to tender police records of venirepersons did not deny defendant his right to an impartial jury.

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People v. Love, 584 N.E.2d 189, 222 Ill. App. 3d 428, 165 Ill. Dec. 10 (Ill. Ct. App. 1991).

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