People v. Averett

• Decision Date: 31 March 2008
• Docket Number: No. 1-05-3495.,1-05-3495.
• Citation: 886 N.E.2d 1123
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Warren AVERETT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

886 N.E.2d 1123

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Warren AVERETT, Defendant-Appellant.

No. 1-05-3495.

Appellate Court of Illinois, First District, Third Division.

March 31, 2008.

Richard A. Devine, State's Attorney of Cook County, Chicago, IL (Assistant State's Attorneys James E. Fitzgerald, Alan J. Spellberg and Sarah L. Simpson, of counsel), for Appellee.

Office of the State Appellate Defender, Chicago, IL (Deputy Defender Michael J. Pelletier and Assistant Appellate Defendant Debra Loevy-Reyes, of counsel), for Appellant.

Presiding Justice QUINN delivered the opinion of the court:

Following a jury trial, defendant Warren Averett was found guilty of possession of a controlled substance with intent to deliver. Defendant was sentenced to eight years in prison and ordered to pay fines and fees, including a $2,000 controlled substance assessment (720 ILCS 570/411.2 (West 2004)). On appeal, defendant contends that: (1) he is entitled to a new trial where the State diminished its burden of proof and the presumption of innocence by making improper arguments; (2) he is entitled to a new trial where the circuit court failed to answer the jury's request for clarification; (3) he is entitled to a new trial where the circuit court's failure to rule on defendant's motion in limine to exclude evidence of defendant's prior convictions prevented defendant from making a knowing waiver of his right to testify; (4) his sentence is excessive; and (5) he is entitled to a $5-per-day credit toward his controlled substance assessment for the 71 days defendant spent in pretrial custody. For the following reasons, we amend the cost and fees order and affirm defendant's conviction and sentence.

I. BACKGROUND

Defendant was arrested on June 24, 2004, and charged with possession of a controlled substance with intent to deliver. Prior to trial, defendant filed a motion to quash arrest and suppress evidence. Following a hearing, the circuit court denied defendant's motion. Defendant also filed a motion in limine to preclude the State from using his prior convictions for impeachment purposes should defendant choose to testify. Defendant specifically sought to bar evidence of his convictions in 1999 for delivery of a controlled substance; in 1999 for possession of a controlled substance; and in 2000 for delivery of a controlled substance. The circuit court noted that defendant's prior convictions had all occurred within the past 10 years and, pursuant to our supreme court's determination in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), defendant's prior convictions would be "admissible for impeachment purposes in regards to truth and veracity." The court then stated that "the court's policy here is, I will not make a decision in regards to that until I hear the testimony of [defendant] and determine whether or not it becomes relevant to those three convictions." The court then reserved its ruling on the admissibility of defendant's three prior convictions until after it heard defendant's trial testimony and determined whether the prior convictions would be relevant.

At trial, Chicago police officer Lenny Pierri testified that at about 7:30 p.m., on June 24, 2004, he and his partner, Officer Mike Herman, were conducting narcotics surveillance in the alley in the vicinity of 3555 West Grand Avenue in Chicago. Officer Pierri explained that the area included Grand, Central Park, and Drake Streets and was a neighborhood known to him for high narcotics sales. Officer Pierri testified that both officers were in plainclothes. Officer Pierri testified that he was the surveillance officer at the location and remained in radio contact with Officer Herman, who acted as the enforcement officer and waited in the police vehicle during the surveillance. Officer Pierri testified that he saw defendant standing alone in the middle of the alley. Officer Pierri testified that it was daylight and he had an unobstructed view of defendant. Officer Pierri observed an unidentified individual walk up to defendant and engage in a brief conversation with defendant. The unidentified individual then handed defendant money, which defendant placed in the front pocket of his pants. Defendant then walked over to a vehicle that was parked in the alley, opened the driver's-side door, and reached into the door panel. Defendant removed a small object from the door panel, walked back and handed the object to the unidentified individual. The unidentified individual then walked away from the area. Several minutes later, Officer Pierri observed a second unidentified individual walk up to defendant and engage in a similar transaction. Officer Pierri testified that these transactions lasted for about 1½ minutes and Officer Pierri conveyed the information to Officer Herman through the radio.

Shortly thereafter, Officer Pierri observed a white vehicle drive down the alley and stop near defendant. Defendant walked up to the driver and the driver handed defendant money. Defendant placed the money in the front pocket of his pants then walked over to the driver's-side door of the parked vehicle. Officer Pierri radioed Officer Herman and directed him to approach defendant. Officer Pierri then ran toward defendant, and the white vehicle drove away from the alley. As Officer Pierri approached, defendant was standing at the driver's door of the parked vehicle with his back toward Officer Pierri. Defendant shut the vehicle's door, turned around and looked at Officer Pierri. Officer Pierri testified that defendant appeared startled and dropped a shiny, tinfoil object to the ground, which Officer Pierri believed to be packaged heroin.

Officer Herman drove up in the police vehicle and detained defendant. Officer Pierri recovered the item from the ground. Officer Pierri testified that the tinfoil contained a "tannish" colored powder that he believed to be heroin. Officer Herman approached the driver's door of the parked vehicle. Officer Pierri then walked over to the car door and recovered six tinfoil packet of suspected heroin, which appeared similar to the item he retrieved from the ground.

Officer Pierri noted that in his experience as a police officer, he came in contact with heroin most frequently during his 400 to 600 previous narcotics arrests. Officer Pierri testified that based on his experience in the area of Grand and Central Park, in June of 2004, heroin was packaged in tinfoil packets and usually sold for $20 a tinfoil packet. Officer Pierri testified that he kept the items that he recovered from the ground and from the parked vehicle driver's door on his person until he arrived at the police station. Officer Pierri then gave the items to Officer Herman, who inventoried them.

Officer Mike Herman testified in a similar manner as Officer Pierri, adding that after defendant was placed into custody, he performed a custodial search and recovered $60 from the pocket of defendant's pants. Officer Herman testified that he inventoried the recovered money. Officer Herman then explained the inventory process. The parties stipulated that Officer Herman inventoried the recovered seven items of suspected heroin and that a proper chain of custody was maintained at all times over the recovered items. The parties also stipulated that forensic chemist Penny Evans from the Illinois State Police crime laboratory would qualify as an expert in the area of forensic chemistry and that she found the total estimated weight of the seven items to be 3.9 grams. The parties further stipulated that Evans tested three items and found them positive for the presence of heroin in the amount of 1.7 grams.

Defendant made a motion for a directed finding, which the circuit court denied. Defendant did not present any witnesses or evidence. Defense counsel informed the circuit court that defendant was waiving his right to testify. Defense counsel stated:

"The defendant does not want to avail himself of his legal right to testify in light of not having some assurance up front that his prior [convictions] won't be used to impeach him. He doesn't want to take the risk that the ruling will be adverse, three priors will come in and he will testify in front of the jury and they will be informed that he has three prior felony convictions. He doesn't want to run the risk of them discovering that, so he's not going to testify in the first instance."

The circuit court then admonished defendant that it was his decision alone whether or not to testify and asked defendant if he understood that he had the right to testify. Defendant indicated that he understood his right to testify, was satisfied with his discussion with defense counsel regarding his right, and his decision was not to testify.

Following closing arguments, the circuit court instructed the jury as to the law. The jury began deliberations at 6:30 p.m., on July 19, 2005. At 7:15 p.m., the jury sent a note to the court asking, "Where is the $60 found on the defendant? Why was this not submitted as evidence?" and "Clarify the charges of intent to sell defined by the Court?" With the parties' agreement, the circuit court sent the jury a response stating, "You have heard all of the testimony and received all of the evidence and the instructions on the law. Please continue to deliberate." At 8:30 p.m., the jury returned a verdict of guilty of possession of a controlled substance with intent to deliver.

At defendant's sentencing hearing, the State argued in aggravation that defendant should be sentenced as a Class X offender based on the fact that two of his prior four narcotics convictions were for Class 2 felonies. In mitigation, defense counsel argued that defendant was 47 years old and had done productive things in his life. Defense counsel argued that defendant was temporarily separated from his wife, but lived with her on and off, and that defendant had four children. Defense counsel argued that defendant had...