People v. Hammonds

• Decision Date: 06 May 2011
• Docket Number: No. 1–08–0194.,1–08–0194.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Terrell HAMMONDS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

354 Ill.Dec. 70

957 N.E.2d 386

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Terrell HAMMONDS, Defendant–Appellant.

No. 1–08–0194.

Appellate Court of Illinois, First District, Sixth Division.

May 6, 2011.

Michael J. Pelletier, State Appellate Defender (Patricia Unsinn, Deputy Defender, Scott Main, Assistant Appellate Defender, of counsel), for Appellant.

Anita Alvarez, State's Attorney, County of Cook (James E. Fitzgerald, Douglas Harvath, Joseph Alexander, Assistant

State's Attorneys, of counsel), for Appellee.

OPINION

Justice ROBERT E. GORDON delivered the judgment of the court, with opinion.

On August 29, 2007, defendant Terrell Hammonds was convicted by a jury of delivering a controlled substance (720 ILCS 570/401(d) (West 2006)). On December 10, 2007, the trial court sentenced defendant to seven years' imprisonment and denied defendant's posttrial motion.

On direct appeal, defendant sought a reversal of his conviction and a new trial, due to five claimed errors. Defendant claimed that the trial court erred: (1) by giving the third paragraph of Illinois Pattern Jury Instructions, Criminal, No. 17.05A (4th ed.2000) (hereinafter IPI Criminal 4th), which specified that a drug “delivery” did not require a transfer of money or consideration; (2) by allowing police officers to testify, over defendant's hearsay objection, about radio messages received from other officers, who were also trial witnesses; (3) by failing to ask potential jurors whether they understood and accepted certain principles of law listed in Illinois Supreme Court Rule 431(b) (Ill.S.Ct. R. 431(b) (eff. May 1, 2007)); and (4) by refusing to rule, until after defendant testified, on defendant's motion in limine concerning the admissibility of defendant's prior convictions for impeachment purposes. Defendant also claimed that (5) prosecutorial misconduct during the State's rebuttal closing denied defendant a fair trial. In an opinion filed February 11, 2010, we considered carefully each of defendant's claimed errors and found that a new trial was not warranted. People v. Hammonds, 399 Ill.App.3d 927, 339 Ill.Dec. 809, 927 N.E.2d 649 (2010)

In People v. Thompson, 238 Ill.2d 598, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010), the Illinois Supreme Court addressed one of the issues raised by defendant, namely, how an appellate court should review alleged violations of Supreme Court Rule 431(b). Ill. S.Ct. R. 431(b) (eff. May 1, 2007). In Thompson, the Hammonds decision was the only appellate court case on this issue which was discussed and cited with approval. Thompson, 238 Ill.2d at 615–16, 345 Ill.Dec. 560, 939 N.E.2d 403.

On January 26, 2011, in the exercise of its supervisory authority, our supreme court directed us to vacate our Hammonds decision, so that we could reconsider our judgment in light of Thompson, to determine if a different result is warranted. Thus, we subsequently vacated our prior Hammonds judgment.

Having reviewed Thompson, as well as defendant's other claims, we still find that a new trial is not warranted.

BACKGROUND

Defendant's two-day trial began with jury selection on August 28, 2007, and culminated in a guilty verdict on August 29, 2007.

I. Voir Dire

Following the swearing in of the pool of potential jurors, the trial court informed the venire of certain principles of law, namely: (1) that a defendant is presumed innocent; (2) that he is not required to offer any evidence in his own behalf; and (3) that he must be proved guilty beyond a reasonable doubt. However, the trial court did not inform the potential jurors of a fourth principle of law, namely, (4) that a defendant's failure to testify in his own behalf cannot be held against him. The trial court also failed to ask the prospective jurors whether they understood and accepted these four principles of law. With respect to these principles of law, the trial court stated, in pertinent part:

“Under the law, a defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during the deliberation on a verdict. It is not overcome from [ sic ] unless from all of the evidence in this you are convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. And this burden remains on the State throughout the case. The defendant is not required to prove his innocence nor is he required to present any evidence on his own behalf. He may rely on the presumption of innocence. You are the judges of the facts in this case * * *.”

The trial court did later inform the jury of all four principles of law during the jury instructions after the close of evidence.

II. Evidence at Trial

After jury selection and opening statements, the State presented its evidence. Defendant did not testify or call witnesses. On this appeal, defendant did not claim that the evidence at trial was insufficient to convict him. Nonetheless, we will still describe in detail the State's evidence at trial, since we will need to decide whether this evidence was closely balanced, when we consider the plain-error doctrine. (See section III(C) of this opinion.)

At trial, the State called four witnesses in its case-in-chief. Three witnesses were Chicago police officers, Marco DiFranco, Boonserm Srisuth, and Detective William Smith, who were members of the undercover narcotics investigation team that arrested defendant. The remaining witness was Paula Bosco Szum, a chemist with the Illinois State Police crime laboratory, who analyzed the evidence recovered after defendant's arrest.

The first officer to testify, Officer Srisuth, stated that he was part of a nine-person narcotics investigation team. In the late morning of November 11, 2006, he and other members of his team arrived in the neighborhood of Lamon Avenue and Thomas Street in Chicago, Illinois. Srisuth explained that, when his team anticipates making a controlled buy, the duties of the officers are divided among an “enforcement officer, [a] surveillance officer and [a] buy officer.” On this particular day, Srisuth was the buy officer, and thus he wore civilian clothes and drove an unmarked vehicle. The second witness, Officer DiFranco, was the surveillance officer, and Detective Smith, one of the enforcement officers, was the fourth witness to testify at trial.

Officer Srisuth testified that he responded to a radio transmission from the surveillance officer, Officer DiFranco. At that point in the testimony, defendant objected on hearsay grounds. Over defendant's hearsay objection, Srisuth testified that he heard DiFranco state over the radio that “a male black wearing a black skull cap, black jacket, black sweatpants with a white stripe and white gym shoes * * * was selling drugs” in the vicinity of 1057 North Lamon Avenue.

Officer Srisuth testified that, at approximately 11:14 a.m., he drove northbound on Lamon Avenue toward 105 North Lamon Avenue and observed defendant, who was the only person present in the area matching DiFranco's description. Srisuth parked his unmarked vehicle on Lamon Avenue, and defendant approached Srisuth's passenger window. Srisuth asked defendant if he had any “rocks,” which Srisuth testified was “street terminology for crack cocaine.” Srisuth testified that defendant asked him how many he wanted, to which Srisuth responded that he wanted only one. Srisuth testified that defendant removed a small, green-tinted ziplock bag from his mouth. Srisuth testified that the bag contained a white, rock-like substance. Defendant gave Srisuth the bag, and Srisuth gave defendant a prerecorded $10 bill.

Officer Srisuth testified that, after the transaction was complete, he left the area and radioed the other officers that “a positive narcotics transaction” had occurred. He also provided the other officers with a physical description of defendant, including defendant's clothing and location. Srisuth testified that the surveillance officer later instructed him to drive by the vicinity of 1031 North Lamon. At that location, Srisuth observed defendant “being detained by the enforcement officer” and Srisuth identified defendant as “the individual that sold [Srisuth] the narcotics.”

The State's second witness was Officer DiFranco, the surveillance officer. He testified that, at approximately 11:10 a.m. on November 11, 2006, he established a surveillance position on North Lamon Avenue, where he had observed defendant loitering on the corner. DiFranco explained that, as a surveillance officer, it was his responsibility to “monitor” the location and to keep the team informed. DiFranco testified that, on the day in question, he had “converted [himself] into a utility worker” and that he was driving an undercover vehicle. From his surveillance position, which was approximately “two-and-a-half car lengths” from defendant, he observed an unknown male approach defendant and hold a brief conversation with him. Defendant then pulled a small item from his mouth and gave it to the unknown male. DiFranco observed the unknown male hand currency to defendant and leave the area. Based on his experience, DiFranco suspected that a narcotics sale had just occurred.

Officer DiFranco testified that he radioed the other officers on his team and informed them of what he had observed. Specifically, DiFranco testified that in his radio transmission, he described defendant as “a male black wearing a black skull cap, a black jacket, black sweatpants with a white stripe, and white gym shoes,” and he informed the team of defendant's location. DiFranco testified that, in response to this radio call, Officer Srisuth arrived in “less than a minute.” DiFranco observed Srisuth approach in an unmarked vehicle, which Srisuth “curbed” near 1057 Lamon Avenue. At that moment, DiFranco was positioned approximately “two-and-a-half car lengths” behind Srisuth's vehicle, and there were no other vehicles...