People v. Graham

• Decision Date: 20 July 2009
• Docket Number: No. 1-08-0444.,1-08-0444.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lyndell GRAHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

913 N.E.2d 99

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lyndell GRAHAM, Defendant-Appellant.

No. 1-08-0444.

Appellate Court of Illinois, First District, First Division.

July 20, 2009.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Michael J. Wilson, Assistant Appellate Defender, Chicago, IL, for Appellant.

Anita Alvarez, Cook County State's Atty., James Fitzgerald, Kathleen Warnick, Mary Needham, Amanda Warmington, Assistant State's Attorneys, Chicago, IL, for Appellee.

Justice HALL delivered the opinion of the court:

The defendant, Lyndell Graham, was charged by indictment with possession of a controlled substance with intent to deliver within 1,000 feet of a public park (720 ILCS 570/401(c)(2), 407(b)(1) (West 2006)). Following a jury trial, the defendant was found guilty and sentenced to 10 years' imprisonment in the Department of Corrections. In addition, the defendant was assessed $1,735 in monetary penalties. The defendant appeals, raising the following issues: (1) whether the trial judge violated Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), and if so, whether the error requires that he receive a new trial; (2) whether the trial court erred in failing to award the defendant his statutory credit of $5 per day toward the monetary penalties assessed; and (3) whether the mittimus must be corrected. As the defendant has not raised a challenge to the sufficiency of the evidence, a brief summary of the trial evidence will suffice.

On the morning of September 28, 2006, Chicago police officer Peter Medina and his partner were driving an unmarked police vehicle in the vicinity of 15th Street and Kostner Avenue, when Officer Medina observed the defendant loitering in an alley and looking around nervously. After establishing a surveillance post from where he could observe the defendant, Officer Medina observed two transactions in which a man would approach the defendant and hand him money. After placing the money in his pocket, the defendant would walk to a nearby garbage can, bend down and retrieve a small object from the rear of the can. The defendant then gave the object to the man who had given him the money. After observing the second transaction, Officer Medina suspected that the defendant was selling narcotics and radioed other officers, instructing them to approach the defendant. After substances suspected of being crack cocaine were discovered behind the garbage can, the defendant was placed under arrest. A search of the defendant revealed $73 in his right pocket. The defendant made an inculpatory statement to the officers to the effect of "`I am not going down for these rocks,'" and that he had younger persons who could sell the crack cocaine for him.

According to the trial testimony, the substances recovered by the police tested positive for cocaine. The trial testimony also established that the distance from where the defendant was arrested to Franklin Park was 269 feet.

In his defense, the defendant presented the testimony of Alice Franklin. Ms. Franklin testified that the defendant was her boyfriend. In the late morning of September 28, 2006, the defendant and she walked to a store located at 15th Street and Kostner Avenue. They were returning to their residence when a police car came up and stopped in front of them, blocking their way into an alley. For about 10 minutes, the defendant and she discussed why the police had stopped there. When the defendant's uncle drove up in a van, Ms. Franklin walked on to their residence. The defendant and his uncle drove past her. She never saw the defendant sell drugs that morning, and she did not see him talking to anyone other than his uncle. Ms. Franklin had given the defendant $73 to pay the gas bill.

Following deliberations, the jury found the defendant guilty of possession of a controlled substance with intent to deliver within 1,000 feet of a public park. The trial judge imposed a 10-year sentence. The trial court also imposed certain monetary penalties, among them a $1,000 controlled substance assessment (720 ILCS 570/411.2(i) (West 2006)), a $10 mental health court assessment (55 ILCS 5/5-1101(d-5) (West 2006)) and a $5 youth diversion/peer group assessment (55 ILCS 5/5-1101(e) (West 2006)). According to the mittimus, the defendant was convicted of "MFG/DEL COCAINE/SCH/PUB HS/PK."

This appeal followed.

ANALYSIS

I. Compliance with Supreme Court Rule 431(b)

The defendant contends that the trial judge violated Rule 431(b) when she failed to ask the potential jurors whether they accepted the principles set forth in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984). He further contends that the error requires that he receive a new trial.

A. Standard of Review

Where an issue concerns compliance with a supreme court rule, the court reviews the issue de novo. People v. Garner, 347 Ill.App.3d 578, 583, 283 Ill.Dec. 460, 808 N.E.2d 10 (2004).

B. Waiver

The defendant failed to object at trial to the error he now claims and failed to raise the claim of error specifically in his motion for a new trial. Therefore, the alleged error has not been preserved for our review. People v. Nolan, 332 Ill. App.3d 215, 228, 265 Ill.Dec. 743, 773 N.E.2d 105 (2002). The defendant maintains that we should review his claim pursuant to the plain error doctrine (134 Ill.2d R. 615(a)). The first step in the plain error analysis is to determine if error occurred. People v. Walker, 232 Ill.2d 113, 124-25, 327 Ill.Dec. 570, 902 N.E.2d 691 (2009).

C. Discussion

The trial judge commenced voir dire by addressing the entire venire. Pertinent to the defendant's claim of error, the trial judge told the venire:

"In fact, under our law, a defendant is presumed to be innocent of all of the charges against him. The presumption of innocence remains with him during the entire stage of the trial and even during the deliberations on a verdict, and it must be kept in your mind at all times during the presentation of the evidence in the case.

The presumption of innocence in a criminal case is not overcome unless, based on all of the evidence in the case, you are convinced beyond a reasonable doubt, that's the standard, beyond a reasonable doubt that the defendant is guilty.

The defendant is never required to prove his innocence, and the defendant is never required to testify or to call any witnesses at all on their own behalf. That's because it's always the State that has the burden of proving an individual guilty."

The trial judge then questioned the first panel of potential jurors as follows:

"First of all, does everybody understand that the defendant in this case as well as every criminal case across the country is presumed innocent, and that means the defendant does not have to present any evidence on their own behalf. Raise your hand if you don't understand that. I'm assuming everybody is going to at least understand it.

Now, a slightly different question. Even though you all understand it, is there anybody that has a problem with it?

Okay. Indicating for the record nobody is raising their hand.

Now, when I say the defendant doesn't have to present any evidence, what that means is part and parcel of that is the defendant does not have to testify on his own behalf. He doesn't have to call any witnesses, but most importantly he doesn't have to testify himself. Does everybody understand that?

Okay. Nobody is raising their hand to indicate they don't.

Now, even though you all understand that, is there anybody out here who has a problem with that, that is one of the principles of our system of law?

Okay. Indicating for the record that nobody is raising their hand."

The trial judge then commenced questioning the potential jurors individually. The questions pertained generally to the jurors' backgrounds, interests and prior experience with the court system. The prosecutor and defense counsel then asked follow-up questions of the potential jurors pertinent to the facts of the case. Eleven jurors were selected from the first panel.

The trial judge addressed the second panel as follows:

"Everybody here understand the general principle that the State always has the burden of proof and the defendant doesn't have to call any witnesses at all. Most importantly, what that means is he doesn't have to testify himself. Do the six of you understand that?

Everyone is shaking their head yes. Nobody is raising their hand, if you don't.

Okay. Anybody out of the six of you, even though you understand it, anybody have a problem with that?

In other words, anybody take it out on the defendant if he chooses to exercise his right not to testify and not to present any witnesses? Raise your hand if you would take it out on them.

Okay. Nobody it raising their hand."

The trial judge then questioned the potential jurors individually about their backgrounds, interests and previous experiences with the court system. Again, the prosecutor and defense asked followup questions pertinent to the case. The twelfth juror and two alternates were selected from the second panel.

1. Did the Voir Dire Procedure Comply with Rule 431(b)?

In Zehr, our supreme court held that it was essential for jurors in a criminal case to know that the defendant was presumed innocent, that he was not required to produce any evidence on his own, that he must be proved guilty beyond a reasonable doubt and that his failure to testify on his own behalf could not be held against him. Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062. In response to Zehr, in 1997, Rule 431 was amended to provide that, if requested by the defendant, the trial court was required to ask the jurors, individually or in a group, whether they accepted the principles set forth in Zehr. See 177 Ill.2d R. 431(b). Because questioning the jurors with respect to the Zehr principles was contingent on a request by ...