People v. Jones

• Decision Date: 09 March 1998
• Docket Number: No. 1-95-2924,1-95-2924
• Citation: 229 Ill.Dec. 773,692 N.E.2d 762,295 Ill.App.3d 444
• Parties: , 229 Ill.Dec. 773 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry JONES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 762

692 N.E.2d 762

295 Ill.App.3d 444, 229 Ill.Dec. 773

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry JONES, Defendant-Appellant.

No. 1-95-2924.

Appellate Court of Illinois,

First District, First Division.

March 9, 1998.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Patricia, A. Wrona, of counsel), for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Alan J. Spellberg and Scott Herbert, of counsel), for Plaintiff-Appellee.

Justice FROSSARD delivered the opinion of the court:

Defendant, Larry Jones, was charged with possession of a controlled substance (14.02 grams of cocaine) with intent to deliver. Following a jury trial, defendant was found guilty as charged and sentenced to 14 years in the Illinois Department of Corrections. On appeal, defendant raises the following issues for review: (1) whether the trial court erred in granting the People's motion in limine to prevent the defendant from inquiring into Officer Jose DeJesus' pending indictment; (2) whether the trial court erred in denying defendant's request to issue an instanter subpoena for Officer DeJesus; (3) whether the trial court erred in denying defendant's motion for a mistrial; (4) whether defendant was proved guilty beyond a reasonable doubt; and (5) whether the trial court abused its discretion in sentencing defendant to 14 years imprisonment. For the reasons that follow, we affirm.

At trial, Chicago police officer Angel Lorenzo testified that around 1 p.m. on August 5, 1993, as a result of community complaints about drug dealing in the area of Cortland and Drake Streets, he and his partner, Officer Jose DeJesus, conducted a surveillance of possible narcotics transactions at that location. The officers were in plain clothes. They parked their vehicle a distance away and returned to the scene on foot. Using binoculars from a vacant lot approximately 50 feet away, Officer Lorenzo observed defendant, Lee Baker and a juvenile named Bobby Mackey in the vicinity of 1910 N. Drake. Officer Lorenzo testified that he knew defendant by the nickname "Lunchmeat" from previous encounters.

During the surveillance, Officer Lorenzo observed an individual he would later discover was named Kenneth Marras, engage in a brief conversation with defendant Jones then hand defendant an unknown amount of money. Defendant accepted the money and placed it in his pocket. Defendant then looked in the direction of Baker and Mackey, his two assistants, nodded his head and motioned with his right hand. Officer Lorenzo observed Baker cross the street, walk to a fence, bend over and pick up a rock the size of a softball. While Baker was going to the rock, Mackey looked east and west down the alley. Baker next retrieved a plastic bag from under the rock. Baker removed an object from the plastic bag and went back across the street. While Baker was retrieving the object from under the rock, Marras waited next to the defendant. Baker handed the object to Marras, who was still standing next to defendant Jones. Marras then placed the object in the right front pocket of his pants and walked away.

Officer Lorenzo radioed to the assisting officers the description of the individual he observed purchasing the object, the direction the individual was walking, and that the individual placed the object in his right pants pocket. After Marras left the scene, Officer Lorenzo observed that Baker, Mackey and defendant remained in the area.

A minute or less passed when Officer Lorenzo observed another individual approach defendant. This individual, an Hispanic female, engaged in a brief conversation with defendant Jones then handed defendant an unknown amount of currency. Defendant again turned his head and pointed in the direction of Baker and Mackey. This time, Mackey crossed the street and went to the fence where the rock was located. Mackey lifted the rock, removed the plastic bag from under the rock, removed an object from the plastic bag and replaced the rock. Mackey then crossed the street and handed the object to the Hispanic female. The Hispanic female stood near defendant until she received the object from Mackey.

Officer Margarita Rodriguez testified that she was a few blocks from Officer Lorenzo when she saw an individual who matched the description of Marras. Officer Rodriguez followed Marras for two blocks then ordered him to stop and put his hands in the air. Marras became irate, began to yell profanities and flung his hands in the air. Officer Rodriguez then called for backup over the citywide police radio band. Shortly thereafter, Officer Rodriguez heard sirens, and Officer Gregg Swiderek arrived to assist her. Swiderek patted down Marras and recovered .16 grams of crack cocaine from the right pocket of Marras's pants.

When defendant Jones, Baker and Mackey heard the police sirens, they walked northbound on Drake. Once they left the area, Officer Lorenzo went to the location where the suspected narcotics transactions occurred. Lorenzo looked under the rock and recovered a plastic bag containing 77 packets of cocaine weighing 14.02 grams.

Officer Lorenzo then went to the area of Drake and Armitage, where he last saw defendant. Defendant was inside a clothing store at the time. Lorenzo brought defendant back to the area where the suspected narcotics transactions had occurred. Officer Lorenzo searched defendant once he learned that the other officers had arrested Marras and found a bag of cocaine in the possession of Marras similar to the bags found under the rock. Officer Lorenzo recovered $78 United States currency from the defendant's pants pocket.

Defendant testified that on August 5, 1993, he went to the area of Cortland and Drake Streets in Chicago, where he saw his friends Bobby Mackey, Lee Baker and Demetrius Cole. Defendant stated that he had a brief conversation with Cole, shook Cole's hand and went to a clothing store at the corner of Armitage and Drake. Defendant stated that during his conversation with Cole, Baker was across the street by the rock.

Approximately 15 to 20 minutes later, Mackey, Baker and Cole entered the store. After Cole left the store, Officer Lorenzo went in the store, took defendant outside and told him to lie on the ground. Defendant refused and was handcuffed and arrested.

Defendant also testified that he had never met Officer Lorenzo before. Defendant stated that his nickname was "Pint" rather than "Lunchmeat." Defendant also testified that he received the money that the officers found on him from his fiancee.

Defendant then called Laura Kang, the owner of the clothing store. Ms. Kang testified that defendant came into the store alone but that three or four other males came in later. Ms. Kang stated that defendant had been in her store for 10 to 15 minutes before he was arrested. Ms. Kang further testified that defendant's nickname is "Pint."

The jury found defendant guilty of possession of a controlled substance with the intent to deliver. The trial court then sentenced defendant to 14 years in the Illinois Department of Corrections.

Defendant first contends that it was reversible error to grant the State's motion in limine concerning inquiry into Officer DeJesus' indictment. Officer DeJesus was indicted on a sexual molestation charge. Anticipating that the defense would question DeJesus about the indictment, the State filed a motion in limine requesting that the court bar any inquiry into the indictment. The court granted the motion.

Assuming arguendo that defendant had properly preserved the issue, there was no error. Defendant could not have inquired into Officer DeJesus' pending indictment even if he had testified since it was not an actual conviction. A witness may be impeached by attacking his character, but only convictions may be proved for this purpose; proof of arrests, indictments, charges or actual commission of a crime is not admissible. People v. Franklin, 167 Ill.2d 1, 21, 212 Ill.Dec. 153, 656 N.E.2d 750 (1995).

Defendant argues that the trial court erred in granting the motion in limine because Officer DeJesus' credibility was a key factor in the case. However, since Officer DeJesus did not testify at trial, his credibility never became a factor impacting on the trial outcome. The defendant could have called Officer DeJesus as a witness but chose not to do so. The State is not required to call a witness to testify in order for defendant to have an opportunity to cross-examine the witness. People v. Dotson, 263 Ill.App.3d 571, 576-77, 200 Ill.Dec. 220, 635 N.E.2d 559 (1994).

Defendant's second contention is that it was reversible error for the trial judge to deny the request by the defense for an instanter subpoena to command Officer DeJesus's presence at trial and to order the sheriff's department to serve him. Defendant contends that the cross-examination of Officer DeJesus would have lent support to defendant's alibi that defendant had been at the store for some time when the officers arrived. Defendant asserts that this may have been sufficient to raise a reasonable doubt as to defendant's guilt and, as such, denying defendant's request for the instanter subpoena violated his right to confront and cross-examine his accuser. In support of this contention, defendant raises many of the same arguments made regarding the trial court's granting of the People's motion in limine.

We agree with the trial court that defendant had an ample opportunity to subpoena Officer DeJesus, particularly since the case had been pending since August of 1993. There was no evidence that any investigator for Jones' attorney ever tried to subpoena Officer DeJesus. Furthermore, the defense was on notice that the State would not be calling Officer DeJesus at trial as indicated in the State's motion in limine.

We note that the use of subpoenas is a judicial process and the trial judge is granted wide...