People v. Cochran

• Decision Date: 18 July 2001
• Docket Number: No. 2-00-0059.,2-00-0059.
• Citation: 257 Ill.Dec. 529,753 N.E.2d 1155,323 Ill. App.3d 669
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dean E. COCHRAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

753 N.E.2d 1155

323 Ill. App.3d 669

257 Ill.Dec. 529

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dean E. COCHRAN, Defendant-Appellant.

No. 2-00-0059.

Appellate Court of Illinois, Second District.

July 18, 2001.

G. Joseph Weller, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Elgin, Mark A. Lyon (Court-appointed), Chicago, for Dean E. Cochran.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Robert E. Davison, DePaepe & Davison, Springfield, for the People.

Justice GROMETER delivered the opinion of the court:

Following a bench trial, defendant, Dean E. Cochran, was found guilty of possession with intent to deliver a look-alike substance (720 ILCS 570/404(b) (West 2000)). Because the offense was committed within 1,000 feet of a school, it was elevated from a Class 3 felony to a Class 2 felony (720 ILCS 570/407(b)(3) (West 2000)) and was nonprobationable (730 ILCS 5/5-5-3(c)(2)(D) (West 2000)). Defendant appeals and contends that he is entitled to the reversal of his conviction because (1) the statutes creating and penalizing the offense, as applied to him, violated his right to due process, and (2) the evidence was insufficient to prove him guilty beyond a reasonable doubt. We affirm.

At trial, Douglas Palmer, a Rockford police officer assigned to the tactical unit, testified that on April 23, 1999, at about 10:50 p.m., he was on duty and was engaged in an undercover drug operation in front of 524 Gregory Street in Rockford. Officer Palmer observed defendant whistling and attempting to flag down passing vehicles.

Officer Palmer and two other police officers, who were also in plainclothes, walked toward defendant. According to Officer Palmer, as the officers approached, defendant asked Officer Palmer if he was "straight." Based on his training and his experience in over 100 drug investigations, Officer Palmer understood defendant's question to mean that defendant wanted to sell him drugs. Officer Palmer responded to defendant's question by stating "Sure."

Officer Palmer further testified that defendant then spit a plastic bag out of his mouth onto the street, pointed to the plastic bag with his toe, and asked him to drop some money on the ground. Thereafter, Officer Palmer arrested defendant.

After arresting defendant, Officer Palmer picked up the plastic bag. The plastic bag contained an off-white, chalky, rock-like substance. Officer Palmer concluded that the packaging of the item was very similar to the usual packaging of cocaine for sale on the street and that the substance in the bag was very similar to crack cocaine.

Officer Palmer was aware that he could not establish that the substance in the bag was cocaine without testing the substance. Officer Palmer recalled that, after defendant's arrest, defendant stated that the substance was "nothing" and was "garbage." Officer Palmer subsequently gave the plastic bag containing the substance to a fellow officer, Officer Shimaitis.

On cross-examination, Officer Palmer acknowledged that he did not observe defendant conduct any transactions other than spitting out the plastic bag; that defendant never asked for a specific amount of money; and that he, Officer Palmer, never gave defendant any money. The only item, other than the plastic bag, that Officer Palmer recovered from defendant after defendant's arrest was a crack pipe.

Brian Shimaitis, a Rockford police officer assigned to the tactical unit, testified that he was on duty on April 23, 1999, at about 11 p.m. and was involved in an undercover drug operation with Officer Palmer. Officer Shimaitis recalled that Officer Palmer gave him a silver metal tube and a plastic bag that contained an off-white substance. Officer Shimaitis later tagged the plastic bag containing the substance into evidence and identified it in court as People's exhibit No. 2. Based on his experience in more than 50 drug investigations, Officer Shimaitis concluded that the substance in the plastic bag had the appearance of crack cocaine and was packaged in the way that crack cocaine was usually packaged for sale on the street.

The State presented evidence showing that the police encounter with defendant occurred within 1,000 feet of the real property of a Rockford public school. Defendant does not dispute this evidence. The State also presented a lab report showing that the substance in the plastic bag that was introduced into evidence as People's exhibit No. 2 was not found to be a controlled substance. Defendant stipulated to the lab report.

Defendant testified that on April 23, 1999, at about 10 p.m., he was trying to purchase crack cocaine to smoke. Defendant had already smoked "quite a bit" of crack cocaine earlier that day. Defendant recalled encountering a man named "E"; giving E some money; getting a bag from E; noticing E drive off; biting the bag at the bottom; and tasting the contents of the bag. Defendant testified that the contents "tasted like—I called it rice, but some kind of grain. I didn't know what it was."

Defendant further testified that after he determined that the bag did not contain crack cocaine he began to chase E and saw E's vehicle make a turn. Defendant then moved to Gregory Street, where he was standing when he saw E drive by. Defendant began hollering and screaming in an effort to get E to stop so that defendant could either get his money back from E or get some real drugs for his money. E did not stop.

Defendant further testified that somebody then walked up to him and asked him if he was "straight." Defendant understood this to mean that the person wanted to either buy or sell drugs. Defendant decided that he "wasn't gonna deal with this guy." According to defendant, when the man walked up to him, he was holding the bag containing the substance that he had purchased from E in his hand. After being asked if he was "straight," defendant threw the bag on the ground. Defendant denied that the bag was in his mouth. Defendant testified that he threw the bag on the ground because it was no use to him and because he had been startled by the person who walked up to him. Defendant testified that he knew that the man was a police officer because he saw the man's badge and side arm.

Defendant further testified that the police officer arrested him after an argument developed. According to defendant, the argument developed because defendant stated that the man was a police officer even though the man denied it, and because defendant had thrown the bag where the police could not see it. Defendant theorized that the police arrested him because he interfered with some operation that they were trying to run.

Following defendant's testimony, the State recalled Officer Palmer as a rebuttal witness. Officer Palmer testified that when he recovered the bag that defendant spit out it was in perfect condition. According to Officer Palmer, there were no holes in the bag until he made a hole to field test the contents of the bag. Officer Palmer also testified that his badge was clipped in his left rear pocket and his side arm was tucked into the small of his back under his belt. Officer Palmer wore a large sweatshirt that covered his badge and gun. Officer Palmer testified that while he was conversing with defendant he never turned his back to defendant.

The State also called as a rebuttal witness Bruce Scott, a Rockford police sergeant who supervised the tactical unit. Sergeant Scott testified that he was one of the three plainclothes police officers who encountered defendant on Gregory Street at about 10:50 p.m. on April 23, 1999. According to Scott, as the three officers approached defendant, none of the officers identified himself as a police officer; defendant asked Officer Palmer if he was "straight"; defendant spit an object that appeared to be narcotics out of his mouth onto the ground; and defendant then pointed to the object with his toe and said, "There it is. There it is. Put some money down."

The trial court found defendant guilty of possession with intent to deliver a look-alike substance within 1,000 feet of a school. The trial court commented that it "[m]ay very well have been that Mr. Cochran received a bad batch from the seller; but then the evidence is clear that he attempted to sell this, if not to passersby, certainly to Officer Palmer."

After denying defendant's posttrial motion, the trial court sentenced defendant to six years' incarceration plus various fines, fees, and costs. The trial court later denied defendant's motion to reconsider the sentence. Defendant's timely notice of appeal followed.

On appeal, defendant first contends that he is entitled to a reversal of his conviction and sentence because the statute that created the offense of possession with intent to deliver a look-alike substance and the statutes that established the penalties for the offense, as applied to him, violated the due process clause of the Illinois Constitution (Ill. Const 1970, art. I, § 2). The specific statutes that defendant challenges are (1) section 404(b) of the Illinois Controlled Substances Act (Act), which creates the offense of possession with intent to deliver a look-alike substance (720 ILCS 570/404(b) (West 2000)); (2) section 407(b)(3) of the Act, which elevates the offense of possession with intent to deliver a look-alike substance from a Class 3 felony to a Class 2 felony when, inter alia, the offense is committed within 1,000 feet of a school (720 ILCS 570/407(b)(3) (West 2000)); and section 5-5-3(c)(2)(D) of the Unified Code of Corrections (Code), which makes the offense of possession with intent to deliver a look-alike substance within 1,000 feet of a school a nonprobationable offense (730 ILCS 5/5-5-3(c)(2)(D) (West 2000)).

We first address defendant's challenges to section 404(b) of the Act (720 ILCS 570/404(b) (West 2000)). Defendant correctly...