People v. Clinton

• Decision Date: 05 February 2010
• Docket Number: No. 1-08-0720.,1-08-0720.
• Citation: 922 N.E.2d 1118
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence CLINTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

922 N.E.2d 1118

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence CLINTON, Defendant-Appellant.

No. 1-08-0720.

Appellate Court of Illinois, First District, Sixth Division.

December 11, 2009.

Rehearing Denied February 2, 2010.

As Modified Upon Denial of Rehearing February 5, 2010.

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Anita Alvarez, Cook County State's Attorney, Chicago, IL (James E. Fitzgerald, Allan J. Spellberg and Miles J. Keleher, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Patricia Unsinn, Deputy Defender of Cook County, Chicago, IL (Lindsey J. Anderson, Assistant Appellate Defender), for Defendant-Appellant.

Justice McBRIDE delivered the modified opinion of the court upon denial of rehearing:

Following a January 2008 jury trial, defendant Lawrence Clinton was found guilty of possession with intent to deliver more than 1 gram but less than 15 grams of a substance containing heroin. Subsequently, the trial court sentenced defendant to 10 years in the Illinois Department of Corrections.

Defendant appeals, arguing that: (1) the State failed to prove him guilty beyond a reasonable doubt because (a) it failed to prove that he possessed more than one gram of heroin where the forensic chemist combined multiple packets to determine weight before testing for the presence of a controlled substance, and (b) the evidence was insufficient to prove him guilty of possession of a controlled substance with intent to deliver where defendant was arrested with 13 packets of suspected narcotics and $40 in cash; and (2) the prosecutor's closing arguments were improper and deprived him of a fair trial.

The following evidence was presented at defendant's jury trial.

Officer Lloyd Mock testified that he is a Chicago police officer assigned to the 11th district. The 11th district's boundaries are south to Roosevelt Road, north to Division Street, east to Western Avenue and west to Cicero Avenue. On December 17, 2006, Officer Mock reported for work at 7 a.m. He was working with three other officers, Officer Purvis, Officer Rosito and Officer Gallegos. They were assigned to patrol a high-crime area within the district, near Springfield and Grenshaw. The officers were in an unmarked vehicle and were not in uniform, but had their "stars" displayed around their necks. Officer Mock was in the front passenger seat of the vehicle while Officer Purvis was driving. Officer Rosito was seated behind Officer Mock and Officer Gallegos was behind Officer Purvis.

The vehicle was headed southbound on Pulaski and Officer Purvis made a left turn onto Grenshaw. The 3900 block of West Grenshaw is a residential neighborhood. When they made the left turn, Officer Mock observed defendant present on the street. Officer Mock identified defendant in court as the man he saw that day. Officer Mock estimated that he was approximately 100 to 150 feet away from defendant when he first saw him. There were no other pedestrians nor any cars being driven on the street at that time. The car continued eastbound, which was closer to defendant. Officer Mock stated that as the car moved closer, defendant "looked in our direction, gave us eye contact and immediately turned around." Officer Mock said that the lights had not been activated on the car.

Officer Purvis stopped the car and Officer Mock got out. Officer Mock testified that he was approximately 40 to 50 feet from defendant when he exited the vehicle. As Officer Mock got out of the vehicle, defendant started to run down an alley and Officer Mock ran after him. As he was running behind defendant, Officer Mock saw defendant "drop, actually throw to the ground with his right hand a piece of paper." Officer Mock stopped and immediately recovered the piece of paper while the other officers continued to pursue defendant. When Officer Mock recovered the piece of paper, he observed that it contained a plastic bag with "several shiny objects." Based on his experience, Officer Mock believed it was heroin. Meanwhile, Officers Purvis and Rosito detained defendant in the alley. Officer Mock further inspected the bag and saw that the plastic bag contained 13 tinfoil packets containing a white powder suspected to be heroin. Officer Mock retained control of the suspected narcotics until his return to the 11th district when he gave it to Officer Rosito, who entered it into inventory.

Officer Atilo Rosito testified at trial that he is a Chicago police officer assigned to the 11th district. His testimony was substantially similar to Officer Mock's testimony regarding the officers' assignment for December 17, 2006. Officer Rosito was approximately 40 to 50 feet away when he noticed an individual on the street. Officer Rosito identified that individual as defendant. Once Officer Purvis stopped the vehicle, Officer Rosito got out and defendant began to run. Officer Rosito was behind Officer Mock while chasing defendant. Officer Rosito testified that he did not see defendant drop anything, but saw something "when it struck the ground." It landed about a foot away from defendant. He continued with Officer Purvis to pursue defendant as Officer Mock stopped to recover the item. After defendant was detained, Officer Rosito saw Officer Purvis recover $40 in United States currency from defendant's person. When they returned to the 11th district, Officer Rosito completed the inventory for the suspected narcotics and the $40. Officer Rosito admitted on cross-examination that no cell phones, pagers or narcotics packaging material was found on defendant.

David Boler testified that in December 2006, he was employed by the Illinois State Police crime lab as a forensic chemist. Boler left the crime lab in August 2007. Boler stated that on December 20, 2006, he received the suspected narcotics recovered from defendant's arrest. Boler initially verified that the contents of the bag matched the inventory sheet. Boler then testified on how he weighed the contents.

"These samples were weighed on what we call a balance. We take a plastic weigh boat and tare it, which means we negate its weight, and place all the samples, I placed all the samples into the weigh boat to get a gross weight for all 13 items.

What I did after that was I took out one item at a time and empty the contents of the foil packet into a separate weigh boat and place the foil back onto the balance so that the foil was always taken into account and so that the weight difference that I was getting was only the substance that was being tested. I did that until I reached the maximum weight class for the substance."

Boler stated that "the total weight was 1.336 grams of substance to be tested." Boler then performed a color test which indicated a possible presence of heroin. Boler conducted a second test called a gas chromatography mass spectrometry (GCMS), which breaks down the substance into individual components that Boler was able to determine the presence of heroin. Boler estimated the weight from all packets to be 2.8 grams.

On cross-examination, Boler stated that he performed the two tests from the amount contained in 6 of the 13 packets. He testified that he did not test the remaining seven packets. He also admitted that those remaining packets were not weighed and his estimate of the total weight was based on an average of the six packets that he tested.

Following Boler's testimony, the State rested. Defendant moved for a directed verdict, arguing that the State failed to prove an intent to deliver, which the trial court denied. Defendant rested without presenting any additional evidence. During the jury instruction conference, the trial court granted, over defendant's objection, the State's request to submit the lesser-included offense of possession of more than 1 gram but less than 15 grams of a substance containing heroin to the jury. Following closing arguments, the jury began deliberations and eventually found defendant guilty of possession with intent to deliver more than 1 gram but less than 15 grams of a substance containing heroin, a Class 1 felony. At his sentencing hearing, the trial court sentenced defendant to a term of 10 years in prison.

This appeal follows.

First, defendant argues that the State did not prove him guilty of possession with intent to deliver more than 1 gram but less than 15 grams of a substance containing heroin beyond a reasonable doubt. Specifically, defendant asserts that the State failed to establish that the weight was more than one gram because the chemist combined six packets into one mixture before testing for the presence of narcotics and therefore the evidence did not prove that each packet contained heroin. The State maintains that the evidence at trial sufficiently established that defendant possessed more than one gram of heroin.

"When a defendant makes a challenge to the sufficiency of the evidence, his or her claim is not subject to the waiver rule and may be raised for the first time on direct appeal." People v. Woods, 214 Ill.2d 455, 470, 293 Ill.Dec. 277, 828 N.E.2d 247 (2005). When this court considers a challenge to a criminal conviction based upon the sufficiency of the evidence, it is not our function to retry the defendant. People v. Hall, 194 Ill.2d 305, 329-30, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). Rather, our inquiry is limited to "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); accord People v. Cox, 195 Ill.2d 378, 387, 254 Ill.Dec. 720, 748 N.E.2d 166 (2001). It is the responsibility of the trier of fact to "fairly * * * resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at...