People v. Ellison

• Citation: 2013 IL App (1st) 101261,370 Ill.Dec. 71,987 N.E.2d 837
• Decision Date: 28 March 2013
• Docket Number: Docket No. 1–10–1261.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Bennie ELLISON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 101261
987 N.E.2d 837
370 Ill.Dec. 71

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Bennie ELLISON, Defendant–Appellant.

Docket No. 1–10–1261.

Appellate Court of Illinois,
First District, Fourth Division.

March 28, 2013.

[987 N.E.2d 839]

Michael J. Pelletier, Alan D. Goldberg, and Michael H. Orenstein, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Sarah L. Simpson, Assistant State's Attorneys, of counsel), for the People.

OPINION
Justice EPSTEIN delivered the judgment of the court, with opinion.

[370 Ill.Dec. 73]¶ 1 Defendant Bennie Ellison was charged by indictment with possession of a controlled substance with intent to deliver less than 1 gram of heroin and possession of a controlled substance with intent to deliver 1 or more but less than 15 grams of cocaine. Following a jury trial, defendant was found guilty on both charges and sentenced to 10 years in prison. On appeal, defendant argues that (1) the evidence was [370 Ill.Dec. 74]

[987 N.E.2d 840]

insufficient to show that he intended to deliver the drugs; (2) the trial court erred in finding that the officers who arrested defendant had probable cause to believe that defendant committed a crime; (3) the trial court improperly refused to allow defendant to impeach a witness by omission; and (4) the trial court erred in denying standby counsel and did not do enough to ensure defendant had law library access.

¶ 2 Prior to trial, defendant, acting pro se, filed a motion to quash arrest and suppress evidence. The motion judge heard testimony from two officers of the Chicago police department. Officer Robert Darko testified that late on March 18, 2009, he was watching for drug activity at a house at 7759 South Euclid Avenue in Chicago. From 30 feet away, using binoculars, he saw Ellison approach the house, exchange an unknown amount of money for a “small object,” and leave. Based on his experience, which included hundreds of drug arrests, Officer Darko thought he had seen a drug deal. He radioed a description of defendant to other officers on surveillance.

¶ 3 Officer Vladen Milenkovic testified that he and his partner were waiting in a vehicle in an alley near the surveillance location at 7:20 p.m. The officers were conducting surveillance after receiving information that narcotics were being sold out of 7759 South Euclid, which was in “an area of high narcotics activity.” After receiving Officer Darko's call, Officer Milenkovic and his partner drove to the location and saw defendant, who matched Darko's description. Officer Milenkovic and his partner got out of the car, announced their office, and approached defendant. His partner asked defendant if they could talk with defendant, and defendant responded, “Let me show you what I got.” When defendant made that statement, he pointed with his right hand to his right front pants pocket. His partner then recovered plastic bags of suspect heroin from defendant's pocket and placed defendant under arrest. Officer Milenkovic testified that he and his partner did not surround defendant or prevent him from leaving in any way. If defendant had chosen not to answer their questions, he would have been free to walk away.

¶ 4 At the conclusion of the testimony, the court denied defendant's motion. The court found that Officer Darko observed defendant conduct a narcotics transaction and when the other officers approached defendant to investigate, he “volunteered the drugs.” On those facts, the court concluded that the officers had probable cause to arrest defendant.

¶ 5 At trial, Officer Malinowski, the officer working with Officer Milenkovic, testified for the State. Officer Malinowski stated that just shortly after 7 p.m., he received a radio transmission from Officer Darko with a physical and clothing description of a person engaged in a narcotics sale that Officer Darko had just witnessed. Officers Malinowski and Milenkovic drove a short distance and saw defendant.

¶ 6 Officer Malinowski testified that when he told defendant he was a police officer and asked if he could speak with him, defendant “put his hands up” and said “let me show you what I got.” Defendant then moved his hand toward his pocket. Malinowski stopped him because he “didn't know what he's going for safety reasons.” Officer Malinowski then performed a pat down search and felt a plastic bag in defendant's pants pocket. He found two small white bags in defendant's pocket with a white powder he suspected to be heroin. Malinowski later searched Ellison at the police station. In defendant's sock, Malinowski found one more bag of white powder suspected to be heroin and a large [370 Ill.Dec. 75]

[987 N.E.2d 841]

bag with 17 smaller bags, each with a white, rock-like substance suspected to be cocaine.

¶ 7 Officer Darko testified consistent with his testimony at the hearing on defendant's motion to quash arrest and suppress evidence. Officer Milenkovic also provided testimony consistent with his earlier testimony, though at trial he testified that when defendant pointed to his pants pocket, he said something that Milenkovic could not hear. Milenkovic testified that he then heard Malinowski tell defendant to stop. Both Milenkovic and Malinowski testified about the chain of custody for the recovered narcotics.

¶ 8 The State then presented the testimony of forensic chemist Martin Palomo. Palomo testified that the gross weight of the 17 items recovered from defendant's sock was 3.112 grams. After testing 8 of the 17 items, he found that those 8 items contained cocaine in the amount of 1.1 grams. With regard to the two items initially recovered from defendant's pocket, Palomo testified that they contained 0.3 grams of a substance containing heroin. The one additional item recovered from defendant's sock contained less than 0.1 grams of a substance containing heroin.

¶ 9 After the chemist's testimony, the State rested. The jury convicted defendant on both counts of possession with intent to deliver, and the judge sentenced him to 10 years in prison. Defendant now appeals.

¶ 10 ANALYSIS ¶ 11 Sufficiency of the Evidence as to Intent to Deliver

¶ 12 Defendant first argues that the evidence presented at trial was insufficient to support a conviction for possession with intent to deliver. Considering the evidence in the light most favorable to the State, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Ross, 229 Ill.2d 255, 272, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008). We will not substitute our judgment for that of the trier of fact with regard to the credibility of witnesses, the weight to be given to each witness's testimony, or the reasonable inferences to be drawn from the evidence. Ross, 229 Ill.2d at 272, 322 Ill.Dec. 574, 891 N.E.2d 865. A defendant's conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to his guilt. People v. Siguenza–Brito, 235 Ill.2d 213, 225, 336 Ill.Dec. 223, 920 N.E.2d 233 (2009).

¶ 13 To establish narcotics possession with intent to deliver, the State must prove three elements: that the defendant knew of the narcotics; that the narcotics were in the defendant's immediate possession or control; and that the defendant intended to deliver them. 720 ILCS 570/401 (West 2008); People v. Robinson, 167 Ill.2d 397, 407, 212 Ill.Dec. 675, 657 N.E.2d 1020 (1995). The focus in this case is on the third element: whether there was sufficient evidence to show that defendant intended to deliver the drugs found on his person.

¶ 14 Direct evidence of intent to deliver is rare, and intent is most often proven by circumstantial evidence. Robinson, 167 Ill.2d at 407, 212 Ill.Dec. 675, 657 N.E.2d 1020;People v. Sherrod, 394 Ill.App.3d 863, 865, 334 Ill.Dec. 368, 916 N.E.2d 1256 (2009). Our task is to examine the nature and quantity of circumstantial evidence to determine if it supports an inference of intent to deliver. Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. Factors relevant in this inquiry include: (1) whether the quantity of drugs possessed is too large to be reasonably[370 Ill.Dec. 76]

[987 N.E.2d 842]

viewed as being for personal consumption, (2) the degree of drug purity, (3) the possession of any weapons, (4) possession and amount of cash, (5) possession of police scanners, beepers or cellular telephones, (6) possession of drug paraphernalia commonly associated with narcotics transactions, and (7) the manner in which the drug is packaged. Id.;People v. Little, 322 Ill.App.3d 607, 615, 255 Ill.Dec. 828, 750 N.E.2d 745 (2001). The Robinson court, however, simply provided examples of the “many different factors that have been considered by Illinois courts as probative of intent to deliver.” Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020 (collecting cases); People v. White, 221 Ill.2d 1, 17, 302 Ill.Dec. 614, 849 N.E.2d 406 (2006), abrogated on other grounds by People v. Luedemann, 222 Ill.2d 530, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006); accord People v. Blakney, 375 Ill.App.3d 554, 558, 314 Ill.Dec. 77, 873 N.E.2d 1007 (2007). This list of “factors” is not “exhaustive” or “inflexible.” People v. Bush, 214 Ill.2d 318, 328, 292 Ill.Dec. 926, 827 N.E.2d 455 (2005) (stating that evidence that defendant was standing alone behind a fence at 2 a.m. selling small items from a brown paper bag that was later found to contain cocaine was as “equally probative of intent to deliver” as the Robinson factors).

¶ 15 In cases where the amount of the controlled substance cannot reasonably be viewed as designed for personal consumption, the quantity of the controlled substance alone can be sufficient to prove an intent to deliver beyond a reasonable doubt. Robinson, 167 Ill.2d at 410–11, 212 Ill.Dec. 675, 657 N.E.2d 1020. In this case,...