People v. Anderson

• Decision Date: 30 May 2018
• Docket Number: NO. 4–16–0037,4–16–0037
• Citation: 102 N.E.3d 260,2018 IL App (4th) 160037
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Tyyuan ANDERSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (4th) 160037

102 N.E.3d 260

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Tyyuan ANDERSON, Defendant–Appellant.

NO. 4–16–0037

Appellate Court of Illinois, Fourth District.

Filed May 30, 2018

Rehearing denied June 19, 2018

Michael J. Pelletier, Patricia Mysza, and Eric E. Castaneda, of State Appellate Defender’s Office, of Chicago, for appellant.

Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Tyyuan Anderson, appeals from his convictions of armed violence, unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance with intent to deliver. In his direct appeal, defendant challenges the sufficiency of the State's evidence, the comments of the prosecutor during closing argument, the constitutionality of his sentence, whether there was a violation of the one-act, one-crime doctrine, and the imposition of fines and associated credits. We affirm defendant's convictions and sentence but vacate the improperly imposed fine and remand for the trial court to amend the sentencing judgment and impose the fine authorized by statute with the application of the appropriate per diem credit.

¶ 2 I. BACKGROUND

¶ 3 On July 1, 2015, the State charged defendant with (1) armed violence ( 720 ILCS 5/33A–2(a), 33A–3(a) (West 2014) ) (count I), a Class X felony, for knowingly possessing cocaine ( 720 ILCS 570/402 (West 2014) ) while armed with a handgun; (2) unlawful possession of a weapon by a felon ( 720 ILCS 5/24–1.1(a) (West 2014) ) (count II), a Class 3 felony, for knowingly possessing a firearm after having been convicted of possession of a stolen motor vehicle in Macon County case No. 14–CF–783; (3) unlawful possession of a controlled substance with intent to deliver ( 720 ILCS 570/401(c)(2) (West 2014) ) (count III), a Class 1 felony, for knowingly possessing with the intent to deliver between 1 and 15 grams of cocaine; (4) unlawful possession of a controlled substance ( 720 ILCS 570/402(c) (West 2014) ) (count IV), a Class 4 felony, for knowingly possessing less than 15 grams of cocaine; (5) unlawful possession of cannabis with intent to deliver ( 720 ILCS 550/5(b) (West 2014) ) (count V), a Class A misdemeanor, for knowingly and unlawfully possessing with the intent to deliver between 2.5 and 10 grams of cannabis; and (6) unlawful possession of cannabis ( 720 ILCS 550/4(b) (West 2014) ) (count VI), a Class B misdemeanor, for knowingly and unlawfully possessing between 2.5 and 10 grams of cannabis.

¶ 4 The charges against defendant stem from a June 24, 2015, encounter between detectives from the Decatur Police Department's street-crimes unit and three males, one of whom was defendant. The three males were walking in the middle of a street at approximately 11:30 p.m. According to the officers' sworn statements, one officer asked defendant to come toward him. Rather than comply with the officer's request, defendant fled on foot in the opposite direction. Both officers gave chase and were able to take defendant into custody after he fell over a brush pile in a nearby residential backyard. Officers found a black Glock 27 handgun lying approximately two to three feet in front of defendant. In defendant's right pocket, officers found seven bags of cannabis and a separate bag containing nine individually packaged bags of suspected crack cocaine. At the time of his arrest, defendant was on probation for a stolen-vehicle conviction (Macon County case No. 14–CF–783).

¶ 5 Defendant's jury trial began on November 10, 2015. Detective Scott Rosenberry testified he and Detective James Callaway were on a "proactive enforcement operation" at approximately 11:30 p.m. on June 24, 2015, in cooperation with other Decatur police officers focusing on high-crime areas within the city. The detectives were dressed in plain clothes and black tactical vests with "police" written on the front and back. They were in a white unmarked Chevrolet Impala equipped with interior red and blue lights, a siren, and a driver-side mounted spotlight. As they traveled westbound in the 400 block of West Leafland Avenue, they observed three males walking in the roadway. Rosenberry used his spotlight to "light up the area," and the officers got out of the vehicle to approach the subjects. Rosenberry called to one of the subjects, later identified as defendant, to come to him. Defendant, who was wearing shorts and a hooded sweatshirt with the hood up and pulled tightly to reveal only the front portion of his face, fled on foot. Rosenberry said he yelled, " ‘Police. Stop,’ " but defendant disregarded his commands and continued to run. Defendant ran through the backyards of nearby houses but fell over a large brush pile and ended up on his stomach. Rosenberry said he noticed defendant kept his hands "tucked inside towards the front of his waistband near his stomach" as he ran. Rosenberry put defendant's arms behind his back as defendant lay on the ground until Callaway arrived and secured defendant in handcuffs. Upon illuminating the area with a flashlight, the officers saw a Glock 27 handgun with a 15–round magazine lying two to three feet in front of defendant. The gun was secured and later sent to the Illinois State Police (ISP) crime lab for fingerprint testing.

¶ 6 Rosenberry said the officers conducted a search incident to defendant's arrest and found a clear plastic Baggie in the pocket of defendant's shorts containing seven individually wrapped packages of a substance, which was field-tested positive for cannabis, and a separate knotted Baggie with nine individually packaged, field-tested-positive rocks of crack cocaine. The State introduced as exhibits photographs of the contraband and the contraband itself.

¶ 7 On cross-examination, Rosenberry testified the foot pursuit of defendant lasted no more than 20 seconds before he fell. He said defendant was wearing "basketball shorts," which, as far as he could remember, were not secured with a belt. Rosenberry did not see defendant holding a gun nor did he see defendant throw or drop a gun. Rosenberry said he was "still securing" defendant while Callaway searched him. Rosenberry saw Callaway take the drugs and a cellular telephone from defendant's pocket. Rosenberry identified the handgun during his testimony and testified it appeared the gun had dirt in the "checkering on the grip." The Baggie, containing all of the drugs found, was knotted at the top and tied shut. Inside the bag were seven individual knotted Baggies containing cannabis. An eighth bag was knotted closed and contained nine individual Baggie corners with a rock of crack cocaine in each.

¶ 8 Decatur police officer Steve Hagemeyer testified he was on patrol that evening and responded to the scene after the detectives' call for assistance. When he approached the backyard where defendant had been apprehended, he shown his flashlight around the area and saw a Glock semiautomatic handgun lying two to three feet from defendant. On cross-examination, Hagemeyer testified he did not know how the gun came to be in that location nor did he see defendant with the gun at any time.

¶ 9 Detective James Callaway testified, corroborating much of Rosenberry's testimony. He said they attempted to make contact with defendant and the two other males because they were "improperly walking in the roadway." He said when Rosenberry asked defendant to approach them, both officers were out of the vehicle and the word "Police" on their vests would have been visible. Callaway testified consistently with Rosenberry's testimony regarding the foot pursuit, apprehension of defendant, discovery of the gun, and search of defendant's pockets yielding the drugs.

¶ 10 Callaway spoke with defendant after his arrest. Defendant told Callaway he ran from them because he "thought someone was after him." He said "he guessed" he realized it was the police during the pursuit. Callaway identified the gun and the bags of drugs as those recovered at the scene.

¶ 11 On cross-examination, Callaway testified he secured a search warrant for the cellular phone found in defendant's pocket in an attempt to find information on the gun or drugs. Callaway did not find any incriminating photographs or text messages. On the night of the incident, Callaway did not see defendant with the gun, and defendant denied carrying it. However, in Callaway's opinion, defendant dropped the gun when he fell. The gun was tested for latent fingerprints but not deoxyribonucleic acid (commonly known as DNA). According to Callaway, defendant told him he ran because he thought "someone was trying to get him" because "of everything going on." Callaway confirmed there had been recent shootings in the area. When Callaway informed defendant he would be charged with armed violence, defendant stated he had not harmed anyone. Defendant said he knew nothing about a gun.

¶ 12 Kristin Stiefvater, a drug chemist with the ISP crime lab, testified she weighed the substance believed to be crack cocaine and then performed a color test and mass spectrometry. The total weight of the nine separate plastic bags was 0.7 grams and the contents tested positive for cocaine.

¶ 13 Gary Havey, a forensic scientist also with the ISP crime lab, testified he tested the handgun for latent fingerprints and could conclude only that the handgun had been touched. He found "ridge detail" on the handgun but nothing suitable to either identify or exclude any person.

¶ 14 Decatur police officer David Dailey testified as the State's expert in the field of narcotics distribution and use. Dailey said the majority of cocaine in Decatur comes from the source cities of Chicago and Indianapolis, whereas the majority of cannabis comes from California and Colorado. He said the typical dosage unit for crack cocaine is...