People v. Dexter

• Decision Date: 21 March 2002
• Docket Number: No. 2-00-1279.,2-00-1279.
• Citation: 328 Ill. App.3d 583,768 N.E.2d 753,263 Ill.Dec. 672
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rashaad J. DEXTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

768 N.E.2d 753

328 Ill. App.3d 583

263 Ill.Dec. 672

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rashaad J. DEXTER, Defendant-Appellant.

No. 2-00-1279.

Appellate Court of Illinois, Second District.

March 21, 2002.

G. Joseph Weller, Deputy Defender, Darren E. Miller, Office of the State Appellate Defender, Elgin, for Rashaad J. Dexter.

Paul A. Logli, Winnebago County State's Attorney, Rockford, Martin P. Moltz, Deputy Director, Peggy F.J. Bradford, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

After a bench trial, defendant, Rashaad J. Dexter, was found guilty of unlawfully possessing, with the intent to deliver, 1 gram or more but less than 15 grams of a substance containing cocaine, a Class 1 felony (720 ILCS 570/401(c)(2) (West 1998)). However, because the trial court found that defendant committed the offense while he was on a public way within 1,000 feet of a public park, defendant was convicted of a Class X felony under section 407(b)(1) of the Illinois Controlled Substances Act (section 407(b)(1)) (720 ILCS 570/407(b)(1) (West 1998)). The trial court sentenced defendant to six years and six months in prison.

Defendant appeals, arguing that the State failed to prove beyond a reasonable doubt that he committed the offense while he was on a "public way." We agree, reduce defendant's conviction to the lesser included Class 1 felony, and remand for resentencing.

We summarize those facts needed to frame the issue on appeal. The State's first witness, Rockford police officer Brian Shimaitis, testified as follows. At about 11:50 p.m. on November 14, 1999, Shimaitis and fellow officer Douglas Palmer were positioned directly west of and across the street from a privately owned apartment building at 1028 Kishwaukee. A police tactical team was nearby. The police suspected that the building was a drug house. A sidewalk about 20 feet long ran from the public sidewalk toward the building; two or three steps then led to a concrete porch pad which in turn led to the main door, which was made of glass and was located between two apartments. Plants were also on either side of the door about two feet out from the building.

When Shimaitis first arrived, four men, including defendant, were in the "stairwell area" of the building. Within about 20 minutes, 8 people came up one at a time to the building. Each spoke to one of the four men, made a hand-to-hand exchange, and left. As the tactical team moved in, Shimaitis and Palmer started across the street toward the house.

Shimaitis testified on direct examination that, when the tactical team started to move, defendant was standing outside the doorway at 1028 Kishwaukee. On cross-examination, Shimaitis added that, just before he and Palmer got across the street, defendant was standing left of the front door, leaning against a window. Shimaitis then testified that defendant was standing "up on the concrete pad [and] leaning against the building."

After Shimaitis and Palmer crossed the street, Shimaitis saw that defendant was on the ground, fighting with two other officers. Shimaitis, Palmer, and three other officers entered the building and escorted people from the stairway foyer to the outside. When Shimaitis exited the building, defendant was handcuffed outside.

Officer Randy Berke testified as follows. At about 11:50 p.m. on November 14, 1999, he was with the tactical unit on the northeast corner of the apartment building. Berke could not see the front of the building. Palmer and Shimaitis radioed that the target of the surveillance was standing in the doorway. After about 20 minutes, the tactical officers approached the building. Two officers entered. Four or five seconds later, Berke and two other officers approached the front entrance. Defendant was standing "right by the doorway." Berke said "Rockford police." Defendant ran south, dropping a paper bag. Berke soon helped to tackle defendant and retrieved the bag, which defendant had dropped "more towards the building side" of the bushes than to the "street side." Later, Berke ascertained that a sign marking a public park was 420 feet from where defendant was arrested.

Officer Palmer testified that, from his surveillance post, he saw about eight people approach the apartment building, "go into the stairwell foyer area," and make hand-to-hand transactions with defendant while defendant stood "in front of a little side window next to the door." After Palmer and Shimaitis crossed the street, Palmer saw defendant on the ground being subdued.

The State introduced expert testimony that the bag defendant dropped contained 6.8 grams of a substance containing cocaine and that the amount of cocaine, the packaging, and the presence of $100 cash on defendant showed that he intended to deliver the drugs.

Defendant introduced testimony Julius Ross gave at an earlier hearing. Ross testified that, when he arrived at 1028 Kishwaukee, nobody was outside the building. Ross entered a hallway or porch-like area but did not enter an apartment. Defendant was in the hallway. As Ross started up the stairs to the second floor, the police entered and arrested defendant and others in the hallway.

Defendant testified that, at about 11:20 p.m. on November 14, 1999, he and two friends walked to 1028 Kishwaukee to buy marijuana. Defendant went in through the front door, saw some people inside, and stepped back onto the front porch. At that point, police raided the house. While at 1028 Kishwaukee, defendant never possessed the paper bag that had cocaine.

Defendant contends that the foregoing evidence does not prove beyond a reasonable doubt that he was guilty of possessing a controlled substance with the intent to deliver while he was on any public way as section 407(b)(1) uses that term. According to defendant, the State proved only that, when he possessed the cocaine, he was either inside a private apartment building or on the building's stoop and that neither location was a "public way." The State responds that the stairwell, foyer, and sidewalk of the privately owned apartment building were "public ways" because they were accessible to the public.

In evaluating a reasonable doubt claim, we must affirm the conviction as long as all the evidence, when viewed most favorably to the prosecution, is sufficient to convince any rational fact finder that the elements of the offense have been proved beyond a reasonable doubt. People v. Perez, 189 Ill.2d 254, 265-66, 244 Ill.Dec. 371, 725 N.E.2d 1258 (2000). However, to decide whether the evidence in this case proved that defendant committed his offense while he was on a "public way," we must first define that term as it is used in section 407(b)(1).

The meaning of a statute is a question of law that we review de novo. Yang v. City of Chicago, 195 Ill.2d 96, 103, 253 Ill.Dec. 418, 745 N.E.2d 541 (2001). We aim to ascertain and effectuate the legislature's intent. In re Marriage of Kates, 198 Ill.2d 156, 163, 260 Ill.Dec. 309, 761 N.E.2d 153 (2001). The best evidence of this intent is the statute's language itself. Paris v. Feder, 179 Ill.2d 173, 177, 227 Ill.Dec. 800, 688 N.E.2d 137 (1997). Statutory terms that are not specifically defined should receive their ordinary and popularly understood meanings. People v. Hicks, 101 Ill.2d 366, 371, 78 Ill.Dec. 354, 462 N.E.2d 473 (1984). The dictionary is one guide to these meanings. People v. Barash, 325 Ill.App.3d 741, 745, 259 Ill. Dec. 810, 759 N.E.2d 590 (2001).

As section 407(b)(1) does not define "public way," we must give that term its plain meaning if that is possible. Fortunately, "public way" does indeed have a well established popularly understood meaning. According to the dictionary, a "way" is "a thoroughfare used or designed for traveling or transportation from place to place: path, road, street" (Webster's Third New International Dictionary 2587 (1993)). Therefore, as logically follows, a "public way" is defined as "any passageway (as an alley, road, highway, boulevard, turnpike) or part thereof (as a bridge) open as of right to the public and designed for travel" (Webster's Third New International Dictionary 1836 (1993)). By contrast, a "private way" is privately owned, controlled, and maintained. Webster's Third New International Dictionary 1805 (1993).

The distinction between a public way and a private way is equally well established in legal lexicography. Although a private way is necessarily located on private property (Black's Law Dictionary 1587 (7th ed.1999)), a highway is not public unless it is "controlled and maintained by governmental authorities for general use." Black's Law Dictionary 734 (7th ed.1999)¹ A "private way" does not become a public way merely because it is accessible to the public.

The distinction of which we write was firmly established in the time of Blackstone, who carefully distinguished the latter from "the king's highways" and "common ways" (see 1 W. Blackstone, Commentaries 129-30 (Ehrlich ed.1959)). The limited definitions of "public way" and "public highway" persist into the present era in judicial rulings from a variety of jurisdictions. See, e.g., Brown v. Wal-Mart Stores, Inc., 11 F.3d 1559, 1566 (10th Cir.1993) (under Oklahoma law, private parking lot was not "public way" absent clear evidence that owner intended to dedicate lot to public use); McKinney v. Ballard, 352 S.W.2d 200, 202-03 (Ky.App.1961) (private driveway not "public way"); Lucianelli v. City of Newton, 288 Mass. 535, 193 N.E. 354 (1934) (grass plot next to roadway was not "public way" merely because public used it permissively); W.D. Cowls, Inc. v. Woicekoski, 7 Mass.App.Ct. 18, 385 N.E.2d 521 (1979) ("private way" did not become "public way" merely because owner allowed public to use it); Osburn v. Supreme Express & Transfer Co., 590 S.W.2d 360, 363 (Mo.App.1979)(at common law, quitclaim deed did not create "public way").

At least until...