People v. Carter
| Citation | 905 N.E.2d 874,329 Ill.Dec. 36 |
| Decision Date | 13 March 2009 |
| Docket Number | No. 1-07-2872.,1-07-2872. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Morris E. CARTER III, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Following a jury trial, defendant Morris E. Carter III, who appeared pro se at trial, was convicted for possession with intent to deliver more than 100 grams, but less than 400 grams of cocaine and possession with intent to deliver more than 500 grams, but less than 2,000 grams of cannabis. The trial court subsequently sentenced him to concurrent terms of 12 years' imprisonment on the cocaine conviction and 6 years for the cannabis conviction.
Defendant appeals, arguing that he was denied a fair jury trial because the trial court gave the jury an improper pattern instruction about the verdict forms, refused to answer the jury's question about its confusion over the verdict forms, and accepted multiple and conflicting verdicts for the offenses when only one verdict should have been entered.
In November 2005, defendant was charged with (1) possession with intent to deliver more than 100 grams, but less than 400 grams of a substance containing cocaine; (2) two counts of possession with intent to deliver more than 15 grams, but less than 100 grams of a substance containing cocaine; (3) possession of more than 100 grams, but less than 400 grams of a substance containing cocaine; (4) possession with intent to deliver more than 500 grams, but less than 2,000 grams of a substance containing cannabis; and (5) possession of more than 500 grams, but less than 2,000 grams of a substance containing cannabis.
Initially, defendant was appointed a public defender, but later, defendant opted to represent himself pro se. The trial court admonished defendant pursuant to Supreme Court Rule 401(a) (134 Ill.2d R. 401(a)) and warned him about the disadvantages of representing himself. Defendant told the court that he still wished to represent himself and he had not been promised anything or threatened to give up his right to counsel. The court warned him that he would not appoint a lawyer for defendant to consult with at trial.
Prior to trial, defendant filed several motions with the trial court, including motions to suppress evidence found pursuant to a search warrant, to suppress his statements and to quash the search warrant. The trial court considered each motion, but all were denied.
The following evidence was admitted at defendant's August 2007 jury trial.
At around 9:30 a.m. on November 11, 2005, Sergeant James Burdett and Detective Paul Lanzi with the Major Case Assistance Team (MCAT) obtained a search warrant for defendant's apartment at 8516 West 47th Street, Apartment 8 in Lyons, Illinois. The MCAT officers then went to defendant's apartment to execute the search warrant. Detective Lanzi knocked and announced the police presence several times, but there was no response. The officers used a battering ram to force open defendant's door, which was heavily fortified.
Defendant and a woman named Erin Spromack were in the living room of the apartment. The officers checked to make sure there were no other people in the apartment. Then, Officer Joseph DiGangi of the K-9 unit and his dog, Dago, performed a systematic search of defendant's apartment for drugs and items that had been in contacts with drugs. Dago alerted the officers to several locations in defendant's living room, kitchen and bedroom. Sergeant Burdett and Officer Lanzi followed up on the K-9 search and recovered many items throughout the apartment. They found cocaine, cannabis, and a large amount of United States currency hidden in various places around defendant's apartment. Specifically, the officers recovered 60.2 grams of a substance containing cocaine from a sandwich box found in a kitchen cabinet, 52.4 grams of a substance containing cocaine from a white robe hanging in a closet, and over 600 grams of cannabis in a duffel bag in the bedroom. They also found a digital scale with white powder residue, which is typically used by drug dealers to weigh out amounts of narcotics, plastic bags, and other drug paraphernalia. In a closet, the officers found a white Sentry safe. They also found defendant's lease with his name listed as the lessee of the apartment.
The recovered cocaine and cannabis were inventoried and sent to the Illinois State Police crime lab. The suspected cocaine tested positive for 112.6 grams of cocaine. The suspected cannabis tested positive for 640 grams of cannabis. The officers also found over $10,000 in various locations in defendant's apartment.
Following the search, defendant was arrested and taken to the Brookfield police department. Detective Lanzi advised defendant of his Miranda rights and had defendant initial a form that he understood each of those rights. Defendant waived his rights and agreed to give a statement to the officers. Defendant was questioned by Detective Lanzi with Sergeant Burdett present as a witness.
Defendant admitted that he started selling cannabis in 2002 after he lost his commercial driver's license and his job as a semi-truck driver. He told the officers that he started selling cannabis to his friends and then later added cocaine. He mostly sells powder cocaine, but he said he would "cook up some rock cocaine for [his] friends that want it." Defendant stated that he kept the money and drugs in various places around his apartment, including a pound and a half of cannabis in a bag in his bedroom and about an ounce and a half of cocaine in a white robe. Defendant admitted he had scales in the apartment and explained that he used them to weigh the drugs for his customers. After giving his oral statement, defendant agreed to give a written statement. Sergeant Burdett prepared a written statement that summarized defendant's oral statement. Defendant reviewed the statement with Sergeant Burdett and was able to make any necessary revisions. The third page of the statement contained defendant's signature.
Defendant also gave the officers the combination to the Sentry safe that was in his closet. He admitted to having a safety deposit box at a Citibank branch in Brookfield and it contained money made from selling drugs. He told the officers that the key to the safe deposit box was on his kitchen counter. Defendant signed a consent to search form for his apartment.
The officers returned to defendant's apartment to get the key and the safe. The police officers opened the safe and found gift cards, travelers checks and over $2,000 in cash.
The next day, defendant signed a consent to search form for this safety deposit box. The officers went to a Citibank branch and entered the vault with bank personnel. They found defendant's box. They placed it in a room filled with other safety deposit boxes and then brought in Officer DiGangi and his dog. The dog searched the room and alerted the officers to defendant's box. The officers opened defendant's safety deposit box and found $2,700 inside the box.
When it was defendant's turn to present his case, he attempted to call Erin Spromack to testify, but she failed to appear in court. Defendant indicated that he wished to testify, but then changed his mind. Defendant rested without putting on any evidence. During closing arguments, defendant admitting possessing the drugs, but claimed he and some friends bought a large amount of drugs together for personal use. He denied selling or delivering drugs to anyone.
During the jury instruction conference, the trial court indicated that it was going to give Illinois Pattern Jury Instructions, Criminal, No. 26.01(4th ed.2000) (hereinafter IPI Criminal 4th No. 26.01). IPI Criminal 4th No. 26.01 is a concluding instruction relating to verdict forms. Defendant objected to this instruction because he was "never charged with a delivery, never arrested for delivery." The trial court considered the arguments and decided to give the instruction. When given to the jury, this instruction stated that the jury would "receive 12 forms of verdict," and, "[f]rom these 12 verdict forms you should select the one verdict form that reflects your verdict." The court further instructed it to "sign only one verdict form."
Immediately after being sent to deliberate, the jury sent out a question. It asked, "Can Carter be guilty for under 100 grams and over 100 grams using the same evidence?" After conferring with the parties, the trial court's response to the jury was, "You are to consider the evidence and the written instructions and continue to deliberate."
Following deliberations, the jury found defendant guilty of possession with intent to deliver more than 100 grams, but less than 400 grams of a substance containing cocaine and possession of cannabis with intent to deliver more than 500 grams, but less than 2,000 grams as well as the offenses of simple possession for each charge. However, the jury found defendant not guilty of the lesser included offense of possession with intent to deliver more than 15 grams, but less than 100 grams of a substance containing cocaine.
Defendant filed two posttrial motions, which the trial court denied. At sentencing, the trial court heard arguments in aggravation and mitigation from the parties. The court sentenced defendant to concurrent terms of 12 years on his conviction for possession with intent to deliver more than 100 grams, but less than 400 grams of cocaine and 6 years for his conviction of possession with intent to deliver more than 500 grams, but less than 2,000 grams of cannabis. The simple possession convictions merged with the possession with intent to deliver convictions.
This appeal followed.
On appeal, defendant argues that the trial court deprived him of a fair trial when it improperly instructed the jury on verdict forms by giving IPI Criminal 4th No. 26.01. The trial court compounded this error by refusing...
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People v. Clinton
...intent to deliver a lesser amount and possession of a lesser amount are lesser included offenses. See People v. Carter, 389 Ill.App.3d 175, 184, 329 Ill.Dec. 36, 905 N.E.2d 874 (2009) (a lesser included offense includes all elements of a greater offense in that it would be impossible to com......