People v. Marshall

629 N.E.2d 64, 256 Ill. App. 3d 310, 195 Ill. Dec. 756, 1993 Ill. App. LEXIS 1600
CourtAppellate Court of Illinois
DecidedOctober 19, 1993
Docket1-90-2399
StatusPublished
Cited by9 cases

This text of 629 N.E.2d 64 (People v. Marshall) 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. Marshall, 629 N.E.2d 64, 256 Ill. App. 3d 310, 195 Ill. Dec. 756, 1993 Ill. App. LEXIS 1600 (Ill. Ct. App. 1993).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Kevin Marshall was convicted after a bench trial for possession of a controlled substance, in this case 497.3 grams of cocaine, with intent to deliver. He was sentenced to 14 years in the custody of the Illinois Department of Corrections. On appeal he urges that the following grounds warrant reversal of his conviction: (1) that due to the trial court’s granting of the State’s oral motion for substitution of judges, a motion which did not comport with the procedural dictates of the statute, the court lacked jurisdiction over the cause thereafter; (2) that the court erroneously admitted evidence of defendant’s prior arrests for suspected possession of a controlled substance; (3) that the performance of his attorney at trial, by failing to present available witnesses who would buttress the testimony of his mother, was so professionally deficient as to amount to a deprivation of effective assistance of counsel; and (4) that he was not proven guilty beyond a reasonable doubt. He also argues that his sentence of 14 years’ incarceration is excessive and should be reduced to the statutory minimum of 12 years. We disagree and accordingly affirm both his conviction and sentence.

On May 19, 1989, a grand jury indicted defendant along with co-defendant Lynetta Jones for violating section 401(a)(2) of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2).) At his arraignment, after he pleaded not guilty and the case was assigned to a circuit court judge’s calendar, the State orally moved the court for a substitution of judges, which was granted. Defendant thereafter waived his right to a jury.

At trial, Chicago police officer Kevin Oakes testified that at approximately 7:45 p.m. on May 19, 1989, he and his partner, Officer David Friel, had the home of a suspected narcotics dealer, who resided on the city’s far southwest side, under surveillance. The officers went to that address because Friel had received a tip earlier in the day that narcotics were being stored and sold there. The tip indicated that the drugs were housed in the trunk of a 1980 Buick, parked behind the residence. Both officers testified that they were familiar with that address because they had made drug-related arrests there in the past, including multiple arrests of defendant.

The two officers took observation positions opposite each other and adjacent to the rear of the house, and kept in contact via radio. Oakes observed two vehicles parked in the backyard of that address, a van and a gray Buick. Sometime after the officers began their surveillance, defendant emerged from the rear of the home, proceeded to the Buick, unlocked its trunk with a key, and withdrew a large clear resealable plastic bag which held a sizable amount of a white powdery substance. He took a quantity of the powder out of the large bag and transferred it to a smaller, clear plastic bag. He then resealed the larger bag, returned it to the trunk of the Buick, and went back to the residence.

A short time later, defendant reappeared, this time accompanied by a woman whom Oakes identified as the codefendant. Defendant again retrieved the clear plastic bag from the trunk of the Buick, this time placing it in a brown paper bag, and headed toward the front of the residence with codefendant in tow. The officers elected to pursue the two and therefore drove their vehicle around to the front of the building, whereupon they again saw defendant holding a brown paper bag. As soon as defendant appreciated who, in fact, the officers were, he handed the bag to codefendant, shouted "Run, Lynetta, run,” and he himself then raced from the scene. Oakes pursued codefendant, who ran toward the back of the residence, and upon reaching the van parked there, opened its door and tossed inside the brown sack she carried. Oakes apprehended codefendant and secured the bag, wherein he observed a "zip-lock”-type clear plastic bag filled with a white powder. The parties stipulated that the powder was 497.3 grams of cocaine.

Officer Friel also testified and his narration of the events that took place on the evening of the incident was largely consistent with that of Oakes, adding only that he chased defendant when he fled from the scene after he had given the cocaine to codefendant, but the officer was unable to apprehend him. On cross-examination, defense counsel emphasized a discrepancy between Oakes’ statement that the cocaine was originally kept only in the plastic bag and later transferred to the paper sack and Friel’s recollection that the plastic bag was always housed in the paper sack.

After the State rested, defendant renewed his motion for a severance, which, this time, was granted. Defendant first called Valerie Beck whom he had been dating for approximately one month prior to the night in question. That night she went to defendant’s home in order to watch television with him. Around 7:30 p.m., while in the upstairs washroom, she overheard a conversation between defendant and codefendant being held by the side door. When she returned downstairs, she learned that while she had been out of the room, defendant’s friend Jeffrey had arrived. She also observed defendant as he stood just outside the side door of the home, apparently engaged in a conversation with codefendant. From this vantage point, Beck saw codefendant remove a clear plastic baggie from a paper sack and heard her ask defendant its value. She could not, however, hear defendant’s response because, upon hearing the question, she decided that whatever was unfolding between the two was none of her business. She therefore returned to the living room. About two or four minutes later, defendant raced into the home and informed her that the police were chasing codefendant.

Jeffrey Harris next testified for defendant and, after admitting that he and defendant had been friends since their youth, he related that on the evening of May 19, 1989, he visited defendant at his home. He came to the home from its front, walking through a vacant field to its east. He recalled that as he approached the home, he had a clear view of a woman he knew as Lynetta, as she exited an auto parked in front of defendant’s home and went to the side entrance of the residence. Harris reached the side entrance at about the same time as codefendant, and, after answering the door, defendant asked codefendant what she wanted and then invited Harris into his home. Harris recalled that codefendant told defendant that she had something to discuss with him and withdrew from her purse a brown paper bag. After witnessing these events, Harris went to the couch to watch television, where he was soon joined by a woman. Defendant rushed in a few minutes later, announcing that the police were chasing codefendant.

Defendant’s mother, Jean Marshall, testified that she owned the gray 1980 Buick which she kept parked behind her home, where she resided with defendant. She informed the court that on May 19, 1989, there was no trunk key for the Buick because in October 1988, she had had all the locks to the car removed with the exception of the one on the driver’s door. On cross-examination, the State elicited that the trunk was accessible on the day of the offense, but that it could be opened only by pressing an automatic release button located in the glove compartment. And on redirect, she clarified that the automatic release operated only if the ignition was turned on.

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Cite This Page — Counsel Stack

Bluebook (online)
629 N.E.2d 64, 256 Ill. App. 3d 310, 195 Ill. Dec. 756, 1993 Ill. App. LEXIS 1600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-marshall-illappct-1993.