People v. Rivera

602 N.E.2d 66, 235 Ill. App. 3d 536, 176 Ill. Dec. 759, 1992 Ill. App. LEXIS 1558
Appellate Court of Illinois·Decided September 25, 1992·No. No. 1-89-1303·Published·Cited by 10 cases

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Francisco Rivera, was found guilty of possession of heroin, cocaine and cannabis with intent to deliver, and was sentenced to 10 years’ imprisonment. Defendant appeals, contending that the State bolstered its witnesses’ testimony through inadmissible evidence and improper statements in closing arguments. Defendant also asks that the sentencing order be corrected.

The pertinent evidence is as follows. On August 1, 1986, at approximately 10:45 a.m., Chicago police officers John Mason, Charles Bowers, Steven Chasen, John Matthews and four other police officers executed a search warrant at an apartment located at 1263 North Springfield, Chicago. Three officers went to the rear entrance of the apartment building, knocked on the door, and stated that they had a search warrant. After receiving no response, the officers gained entry into the building by using a sledge hammer.

Officer Matthews went into the kitchen of the apartment followed by the other officers, and observed defendant stepping out of the bedroom into the hallway. Matthews identified himself and stated that he had a search warrant. Defendant was escorted into the living room of the apartment, where the officers saw defendant’s 18-year-old wife and 14-year-old brother. Upon entering the bedroom, Matthews discovered a plastic bag containing crushed green plant leaves that he suspected to be marijuana on top of the dresser. Further search of the bedroom uncovered seven clear plastic bags containing a powder substance between the mattress and box spring.

Matthews informed defendant that he was under arrest, and the officers read his Miranda rights to him. Defendant stated that he understood his rights. Matthews further testified that defendant acknowledged that the “stuff belongs to me” and that his wife had no knowledge of the presence of narcotics. Defendant had lived in the apartment since February 1986. All of the foregoing conversations were conducted with defendant in English.

A subsequent search of the apartment revealed a triple beam scale and men and women’s clothing in a bedroom closet. A suitcase containing $2,000 in denominations of $10, $20, and $100 bills was found behind the sofa in the living room. Defendant told the officers that the money in the suitcase belonged to him. Prior to transporting defendant to the police station, the officers permitted him to go to the bedroom, where he retrieved a pair of socks from the dresser and his shoes which were next to the bed.

At the police station, Matthews completed a case report. Defendant provided the information requested by the officers in English, and again stated that he lived in the apartment where the narcotics were found.

At trial, Arlene Koszykz, a chemist with the Chicago police department, testified that she received the envelope containing the contraband confiscated in the search of defendant’s apartment. Koszykz tested two bags of a brown chunky substance which indicated the presence of heroin in the amount of 45.97 grams. The bag containing a white chunky substance was found to contain 3.5 grams of cocaine. Koszykz also tested the plant substance and found the presence of 29.99 grams of marijuana. On March 2, 1989, Koszykz performed a confirmatory analysis of one of the bags previously tested, which again indicated the presence of cocaine.

Defendant presented the testimony of two witnesses who testified that they had known defendant for several years, and that they had never heard anyone suggest that he was involved in selling drugs or other illegal activities.

In rebuttal, the State offered the testimony of Officer Mason, who had since retired from the police force. The parties stipulated that if called, Mason would testify that he was one of the officers who effectuated a search warrant at defendant’s apartment. During the search, the officers found a suitcase containing a large amount of money, which defendant stated belonged to him. After finding several bags of narcotics in the bedroom, Matthews informed defendant that he was under arrest and escorted him to the kitchen. Officer Bowers advised defendant of his constitutional rights and read Miranda warnings to him. Defendant stated that the narcotics belonged to him and that his wife was not involved. Mason would further testify that defendant told the police on two separate instances that he lived in the apartment.

On appeal, defendant first asserts that he was denied a fair trial because the State improperly bolstered the testimony of Matthews with prior consistent statements contained in the police report. Defendant complains Matthews testified that prior to transporting defendant to the police station, he went into the bedroom where he retrieved a pair of socks and defendant’s shoes. On cross-examination, defense counsel sought to impeach Matthews’ credibility on this point by eliciting an admission from Matthews that he failed to mention this fact in his police report. In its attempt to rehabilitate Matthews on redirect examination, defendant contends that the State improperly questioned Matthews again about the contents of the police report.

However, while defendant objected at trial to questions concerning the contents of the police report, he failed to include this issue in his post-trial motion. Error in the admission of evidence is waived if the objection to the evidence is not properly designated by the objector (People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227), and error properly raised at trial is waived if not set forth in the post-trial motion of the defendant. (People v. Woith (1984), 126 Ill. App. 3d 817, 467 N.E.2d 614.) While the plain error rule can be invoked in instances where the error complained of is so egregious that it deprives defendant of a fair trial, we do not find that the circumstances of this case warrant its application. The evidence amassed against defendant in this case did not consist exclusively of Matthews’ testimony, and proof of defendant’s guilt was also adduced through the testimony of Officers Chasen and Bowers concerning the circumstances of defendant’s arrest.

Defendant next assigns as reversible error certain improper comments made by the State during its closing argument. Defendant points to the following comments made about the police chemist as improper and compromised his right to a fair trial:

“Now you saw defense attorney also had [Arlene Koszykz] on the witness stand for two hours or more. You saw the cross-examination. You saw that this defense attorney knows what he is talking about when he talks about narcotics. And you better believe if she was wrong in her analysis that although they do not have to prove anything, they do not have to call witnesses. If that expert was wrong, you better believe they would have had an expert in here to say that she was wrong.”

Defendant points out that such argument is improper because it permits an inference that defendant is under a duty to present evidence and call witnesses on his behalf.

In addition, defendant argues that the following comment about Mason’s stipulation constitutes reversible error:

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People v. Rivera, 602 N.E.2d 66, 235 Ill. App. 3d 536, 176 Ill. Dec. 759, 1992 Ill. App. LEXIS 1558 (Ill. Ct. App. 1992).

602 N.E.2d 66 (People v. Rivera) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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