People v. Coleman

• Decision Date: 17 June 2009
• Docket Number: No. 4-07-0921.,4-07-0921.
• Citation: 909 N.E.2d 952,391 Ill. App. 3d 963
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cassian T. COLEMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

909 N.E.2d 952

391 Ill. App. 3d 963

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Cassian T. COLEMAN, Defendant-Appellant.

No. 4-07-0921.

Appellate Court of Illinois, Fourth District.

June 17, 2009.

Rehearing Denied July 16, 2009.

Justice APPLETONdelivered the opinion of the court:

A jury found defendant, Cassian T. Coleman, guilty of three offenses: count VII, unlawful possession of a controlled substance with intent to deliver it (720 ILCS 570/401(a)(2)(D)(West 2006)); count VIII, unlawful delivery of a controlled substance (720 ILCS 570/401(a)(2)(D)(West 2006)); and count X, criminal drug conspiracy (720 ILCS 570/405.1(West 2006)).All three counts related to the same 926 grams of cocaine, People's exhibit No. 2.The trial court sentenced him to three concurrent prison terms of 25 years, with credit for 117 days and a $3,000 mandatory drug treatment assessment with $585 credit for time served.The court also imposed a street-value fine of $92,600 and another fine of $1 million.

Defendant appeals on six grounds.First, he argues that the defense cast doubt on the chain of custody and, therefore, the trial court erred in (a) admitting People's exhibit No. 2 into evidence and (b) barring the defense from arguing to the jury that the State failed to prove the illegal substance weighed 926 grams.We find that a stipulation at trial defeats this argument.

Second, defendant argues that if, by entering into the stipulation, defense counsel waived objections to the chain of custody, he thereby rendered ineffective assistance.We decline to consider this argument because it requires evidence external to the record and, thus, is better suited for postconviction proceedings.

Third, defendant argues he is entitled to a new trial because defense counsel"waived" his presence during discussions of notes from the deliberating jury—a waiver that, according to case law, was ineffectual.We find this error to be harmless.

Fourth, defendant argues we should vacate the convictions of counts VII and X because it is impermissible to convict a defendant both of the inchoate offense (count X) and the principal offense (count VIII) and of the greater offense (count VIII) and the included offense (count VII).The State agrees, and so do we.

Fifth, defendant argues the trial court lacked authority to impose more than one fine or a fine greater than $500,000.We conclude that the fines were authorized by section 401(b) of the Illinois Controlled Substances Act(720 ILCS 570/401(b)(West 2006)) and section 5-9-1.1(a) of the Unified Code of Corrections(Unified Code)(730 ILCS 5/5-9-1.1(a)(West 2006)).

Sixth, defendant argues he is entitled to eight additional days of presentence credit.The State agrees, and so do we.

Therefore, we vacate the convictions of counts VII and X and modify the judgment so as to allow eight more days of presentence credit and an additional credit of $40 against the mandatory drug treatment assessment.Otherwise, we affirm the judgment as modified and remand with directions.

I.BACKGROUND

A.The Charges

On July 27, 2006, the State filed an additional information, which charged defendant with committing four offenses in Macon County during the period of March 21 to 22, 2006.Count VII charged him with unlawfully possessing, with the intent to deliver, 900 grams or more of a substance containing cocaine.720 ILCS 570/401(a)(2)(D)(West 2006).(The record does not appear to contain the original information, and, in any event, only the convictions of counts VII, VIII, and X of the additional information are at issue in this appeal.)

Count VIII charged defendant with unlawfully delivering to Genaro Hendrix 900 grams or more of a substance containing cocaine.720 ILCS 570/401(a)(2)(D)(West 2006).

Count IX charged defendant with unlawfully possessing 900 grams or more of a substance containing cocaine.720 ILCS 570/402(a)(2)(D)(West 2006).

Count X charged defendant with a criminal conspiracy in that, with the intent that the offense of unlawful possession of a controlled substance with intent to deliver it be committed, he agreed with Hendrix to unlawfully possess, with the intent to deliver, 900 grams or more of a substance containing cocaine.720 ILCS 570/405.1(a)(West 2006).

All four counts alleged that in Cook County caseNo. 98-C-55048701, defendant was previously convicted of unlawful possession of a controlled substance.See720 ILCS 570/408(a)(West 2006)("Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both").

B.The Jury Trial

In the jury trial on September 5 and 6, 2007, the State adduced the following evidence.Zundra Cotton lived at 353 North 18th Street, Decatur, Illinois, with Hendrix, a cocaine dealer.On March 22, 2006, the police raided the house.Defendant was standing on the steps of the front porch, and they arrested him.They searched his person, and he had a key to the front door.Cotton's purse was on the kitchen table, and inside her purse were 15 bags of white powder.Two black plastic bags were crumpled up on the table, beside the purse, and inside those bags was a clear plastic wrapper.Such materials commonly were used for packaging cocaine in kilograms.Defendant's fingerprints were on the black plastic bags.Cotton testified that defendant was Hendrix's supplier and that earlier in the morning, the day of the raid, defendant brought over a package of cocaine and she helped break it up and put it in the 15 bags.

The parties entered into the following stipulation:

"(1) * * * Dan Ashenfelter is a[p]olice [o]fficer for the City of Decatur and is assigned as [e]vidence [o]fficer for the department.

* * * [O]n March 30[ ], 2006, he retrieved People's [e]xhibit[ ] N[o.] * * * 2 * * * from the evidence locker at the Decatur [p]olice [d]epartment. * * * [M]embers of the public are not allowed access to the evidence locker.* * * People's [e]xhibit N[o.] * * * 2 * * * [was] then in a sealed condition.

* * * [O]n that date[,]Dan Ashenfelter transported and delivered People's [e]xhibit N[o.] * * * 2 * * * to the Illinois State Police[c]rime [l]ab in Springfield, Illinois.* * * Ashenfelter made no changes or alterations to the exhibit[ ] and did not tamper with the contents of the exhibit[ ] in any way.

* * * People's [e]xhibit[ ][No.] * * * 2 * * * [is] now in the same or substantially the same condition as [it was] on March 30[ ], 2006.

* * *

(4) * * * Michael Cravens was employed as a[f]orensic [s]cientist with the Illinois State Police[c]rime [l]ab in Springfield * * *.[He] is qualified as an expert witness in the identification of controlled substances.

* * * [O]n March 30[ ], 2006, he received People's [e]xhibit N[o.] 2 * * * from Dan Ashenfelter at the [c]rime [l]ab. * * * People's [e]xhibit N[o.] 2 * * * [was] then in a sealed condition[,] and the exhibit[ ][is] now in the same or substantially the same condition as when he received [it].

* * * [H]e subsequently performed tests on People's [e]xhibit N[o.] 2 * * *.* * * [B]ased upon the tests he performed [and] his expertise[,]Michael Cravens was able to determine[,] to a reasonable degree of scientific certainty[,] that the white powder in People's [e]xhibit N[o.] 2 was 926.0 grams of cocaine."

Immediately after reading that stipulation to the jury, the State called David Dailey, a detective with the Decatur police.He testified he assisted in executing the search warrant on March 22, 2006.At the scene of the raid, he weighed the 15 bags from the purse.Nine of the bags weighed 63 grams apiece, and the other six bags weighed 64 grams apiece.He field-tested only one of the 15 bags: it tested positive for cocaine.Then he emptied the 15 bags into a larger evidence bag, People's exhibit No. 2; sealed it; and took it to the evidence vault.

When the State rested, defense counsel objected to the admission of People's exhibit No. 2, and moved for a directed verdict, because before commingling the 15 bags, Dailey field-tested only 1 of the bags, i.e., 63 or 64 grams.Defense counsel argued there was no evidence that the other 14 bags contained any cocaine at all and, therefore, the State not only failed to prove a sufficient chain of custody for the admission of People's exhibit No. 2 but also failed to prove that defendant possessed 900 grams or more of a substance containing cocaine, as alleged in the charges.The trial court overruled the objection and denied the motion for a directed verdict, for the parties had stipulated that "Cravens was able to determine[,] to a reasonable degree of scientific certainty[,] that the white powder in People's [e]xhibit N[o.] 2 was 926.0 grams of cocaine."

Before closing arguments, the State moved to prohibit defense counsel from making to the jury the argument that the trial court previously rejected, namely, that because Dailey field-tested only 1 of the 15 bags before commingling them, the State had failed to prove that defendant possessed 900 grams or more of a substance containing cocaine.The court granted the motion.

The jury retired to deliberate at 3:37 p.m. on September 6, 2007.At 8:40 a.m. on September 7, 2007, the trial court told the parties:

"THE COURT: * * * We're outside the presence of the jury.* * * The [c]ourt received a note from the jurors at 4:50 p.m. last night as they were leaving for the evening.It reads as follows: [']Can we get any type of court report from testimonies?['] Okay.I will take suggestions from the parties as to how to respond to that."

Both the prosecutor and defense counsel recommended telling the jurors to rely on their memories.The court said: "Okay.Then I will send that response back to the jurors.You'll show all parties present as well as the defendant."

At 8:50 a.m. on September 7, 2007, the trial court received a...