People v. Brown

• Decision Date: 25 February 2009
• Docket Number: No. 1-07-1699.,1-07-1699.
• Citation: 904 N.E.2d 139
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Marlon BROWN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

904 N.E.2d 139

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Marlon BROWN, Defendant-Appellant.

No. 1-07-1699.

Appellate Court of Illinois, First District, Third Division.

February 25, 2009.

Anita Alvarez, State's Attorney, James E. Fitzgerald, Samuel Shim, Michael Colonna, Assistant State's Attorneys, Chicago, for Plaintiff-Appellee.

Patricia Unsinn, Deputy Defender, David T. Harris, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Defendant-Appellant.

Justice THEIS delivered the opinion of the court:

Following a jury trial, defendant Marlon Brown was convicted of the unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2006)), and sentenced to 10 years in prison. On appeal, he contends that: (1) the State failed to prove him guilty of the offense beyond a reasonable doubt; (2) the trial court erred in delaying its ruling on his motion in limine; (3) the trial court erroneously made comments and rulings before the jury indicating bias towards the prosecution; (4) certain fines and fees were imposed in error; and (5) the trial court failed to afford defendant a $5 per day credit for his presentence incarceration. For the following reasons, we affirm the judgment of the circuit court, but modify the fines, fees and costs order.

BACKGROUND

Defendant's conviction stems from his delivery of .1 gram of heroin to an undercover police officer. The following facts were adduced at defendant's trial. Chicago police officer Keith Harris testified that on July 14, 2006, he was acting as an undercover narcotics "buy officer" in the area of 56th Street and Normal at 12:20 p.m. Officer Harris approached defendant on the street and asked defendant for some "blows," a street term for heroin. When defendant asked him how many he wanted, Harris indicated that he wanted two pieces, which cost $20. Harris stated that he gave defendant two prerecorded $10 bills.

According to Harris, defendant then walked across the street from a vacant lot and handed codefendant Theron Blackmond the money. Harris was about 50 feet away from defendant during this exchange. Blackmond then went inside a van outside of Harris's view, while defendant stood alongside the van. At that point, Blackmond handed defendant an object. Defendant then walked back over to Harris and handed Harris a white piece of paper with a white powder substance inside it. Defendant told him it was raw heroin that had not been mixed with anything yet. According to Harris, defendant "broke some off" and gave Harris an amount equal to $20. Harris testified that he never lost sight of defendant during the transaction.

Harris placed the piece of paper in his pocket and left the scene. He radioed his team members that there had been a positive purchase of narcotics and gave them a physical description of defendant. After defendant was detained, Harris positively identification defendant as the man who sold him the narcotics. Harris then went to the police station, inventoried the evidence and sent it to the crime lab for analysis. Harris acknowledged that the prerecorded money he used in the transaction was never recovered and that no narcotics were found on defendant.

Chicago police officer Charles Person testified that on July 14, 2006, he was assigned to conduct narcotics surveillance from a vehicle located about two houses away from the transaction. Person saw Officer Harris having a conversation with defendant and saw them walk down the street to the middle of the block. Defendant then walked across the street up to the rear of a van where he met with Blackmond. Person saw defendant give Blackmond some money, saw Blackmond take the money and enter the van. A few seconds later, Blackmond handed an item to defendant. Defendant then walked back towards Harris with a clenched fist and Blackmond walked into a house located by the van. Person testified that defendant then had another conversation with Harris and handed Harris an item. Harris then walked away and defendant walked back across the street as Blackmond was coming out of the house.

After getting confirmation from Harris that there was a positive narcotics transaction, Person informed the enforcement officers as to defendant's location and description. After a few minutes, defendant was detained until Harris came back to identify him. Person acknowledged in cross-examination that his report indicated that Harris purchased the narcotics for $30 instead of $20 and that he did not note the clenched fist in his report. Person was present when defendant was searched, and no narcotics or money was found on defendant and no money was found on Blackmond. No narcotics were recovered from the van.

Chicago police officer Trevor Stotts testified that on July 14, 2006, he was working as an enforcement officer with the narcotics unit. He was assigned to the area of 56th Street and Normal. At about 12:20 p.m., he received a description of the offenders and a location of 436 West 56th Street. He saw that defendant matched the description and detained him until Harris arrived and positively identified him as the one who sold him the suspect narcotics. Stotts indicated that defendant resided at 437 West 56th Street.

The parties stipulated that if Nancy McDonagh, a forensic chemist at the Illinois State Police crime lab, were called to testify, she would state that in her expert opinion, within a reasonable degree of scientific certainty, the content of the item tested was positive for the presence of heroin and that the actual weight of the item was .1 gram. They further stipulated that the van belonged to Wanda Blackmond of 434 West 56th Street.

Defendant did not testify. The jury found defendant guilty of the unlawful delivery of a controlled substance. Based on prior convictions, the trial court sentenced defendant as a Class X offender to a 10-year prison term. Defendant filed this timely appeal.

ANALYSIS

Defendant contends that the evidence presented at trial was insufficient to prove him guilty of the offense beyond a reasonable doubt. Specifically, defendant argues that Officer Harris's testimony was inherently unbelievable because the State failed to produce corroborating evidence of narcotics and the prerecorded funds. Additionally, defendant maintains that inconsistencies in Officer Person's testimony rendered his testimony unworthy of belief, requiring a reversal of his conviction.

When reviewing challenges to the sufficiency of the evidence in a criminal case, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime upon which the defendant was convicted beyond a reasonable doubt. People v. Ross, 229 Ill.2d 255, 272, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008). The reviewing court may not substitute its judgment for that of the trier of fact. People v. Jones, 219 Ill.2d 1, 33, 300 Ill.Dec. 709, 845 N.E.2d 598 (2006). "The weight to be given the witnesses' testimony, the credibility of the witnesses, resolution of inconsistencies and conflicts in the evidence, and reasonable inferences to be drawn from the testimony are the responsibility of the trier of fact." People v. Sutherland, 223 Ill.2d 187, 242, 307 Ill.Dec. 524, 860 N.E.2d 178 (2006). We will reverse a conviction only where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. People v. Smith, 185 Ill.2d 532, 542, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999).

To sustain a conviction for the unlawful delivery of a controlled substance, the State must prove that defendant knowingly delivered a controlled substance. 720 ILCS 570/401(d) (West 2006). Delivery is defined as "the actual, constructive, or attempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship." 720 ILCS 570/102(h) (West 2006); People v. Trotter, 293 Ill.App.3d 617, 619, 228 Ill.Dec. 69, 688 N.E.2d 767 (1997).

In the present case, the evidence, when taken in the light most favorable to the prosecution, established that defendant knowingly delivered .1 gram of heroin. Defendant indicated to Officer Harris that he had heroin for purchase, walked across the street to a van, handed some money to Blackmond, retrieved an item, then gave Harris a white powdery substance which was ultimately found to be .1 gram of heroin, and Harris identified defendant shortly after the transaction as the person from whom he purchased the narcotics. "The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict." Smith, 185 Ill.2d at 541, 236 Ill.Dec. 779, 708 N.E.2d 365. Harris's testimony was corroborated by Officer Person who saw defendant have a conversation with Harris, walk across the street to the van where he handed Blackmond some money, retrieve an item from Blackmond, and then hand an item to Harris. There was no dispute that the item tested was heroin.

Defendant takes issue with Harris's testimony, that defendant "broke some [heroin] off" and gave him an amount equal to $20, because no remaining heroin was recovered from defendant and he was immediately detained. Additionally, defendant maintains that Harris's testimony that he gave defendant $20 was unbelievable because the prerecorded $20 was never recovered. Any infirmities perceived in Harris's testimony went to its weight and to his credibility as a witness. People v. Hall, 194 Ill.2d 305, 332, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). It was for the jury to judge whether there were unresolved questions and, if so, how those flaws affected the witnesses' credibility as a whole. People v. Cunningham, 212 Ill.2d 274, 285, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). The jury may "accept or reject as much or as little of a witness's testimony as it pleases." People v....