People v. Moore, 1-05-0948.

• Court: United States Appellate Court of Illinois
• Writing for the Court: Hall
• Citation: 847 N.E.2d 829
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy MOORE, Defendant-Appellant.
• Docket Number: No. 1-05-0948.,1-05-0948.
• Decision Date: 31 March 2006

847 N.E.2d 829 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Timothy MOORE, Defendant-Appellant. No. 1-05-0948. Appellate Court of Illinois, First District, Second Division. March 31, 2006.

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Michael J. Pelletier, Deputy Defender, Darrel F. Oman, Assistant Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, Cook County, James E. Fitzgerald, Mary L. Boland, Laura M. Boedeker, Assistant State's Attorneys, Chicago, for Appellee.

Justice HALL delivered the opinion of the court:

The defendant, Timothy Moore, and the codefendant, Joseph Caldwell, were indicted and charged with the offenses of possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2002)) and possession of a controlled substance with intent to deliver within 1,000 feet of a park (720 ILCS 570/401(c)(2), 407(b)(1) (West 2002)). Following a joint bench trial, both the defendant and Mr. Caldwell were acquitted of possession of a controlled substance with intent to deliver within 1,000 feet of a park but found guilty of possession of a controlled substance with intent to deliver. The defendant was sentenced to six years' imprisonment in the Department of Corrections.

The defendant appeals, raising the following issues: (1) whether the evidence was sufficient to prove him guilty beyond a reasonable doubt; (2) whether trial counsel's stipulation violated the defendant's constitutional right to confrontation; and (3) whether the defendant's Class X sentence was unconstitutional.

The sole witness at the defendant's bench trial was Chicago police officer Killeen. Officer Killeen had been a police officer for 3 1/2 years and had made over 100 narcotics arrests.

On June 25, 2003, at approximately 5:15 p.m., Officer Killeen was conducting a narcotics surveillance operation in the vicinity of 6229 South Carpenter Street in Chicago. While conducting the surveillance, he observed two individuals whom he identified as the defendant and Mr. Caldwell. From his position approximately 20 to 30 feet aboveground, Officer Killeen observed Mr. Caldwell walking in the vicinity of the Carpenter Street address and heard him yelling "Rocks," which is slang for crack cocaine.

At three different times, black male pedestrians walked up to Mr. Caldwell and engaged him in conversation. Mr. Caldwell motioned the pedestrian toward the defendant by nodding his head in the defendant's direction. The pedestrian would approach the defendant, who was standing on the west side of the street, and hand him an unknown amount of money. Almost simultaneously, Mr. Caldwell would go to a leaf pile at the Carpenter Street address and retrieve a "small item," which he covered with his hand. Mr. Caldwell gave the item to the pedestrian after the money was given to the defendant.

At the time Officer Killeen observed the defendant and Mr. Caldwell, it was daylight,

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and he was approximately 50 feet from them. The defendant and Mr. Caldwell were no more than 15 to 20 feet apart. The defendant was about 30 feet from the leaf pile.

After the third transaction, Officer Killeen radioed Officer Fitzpatrick, his partner, and gave him a physical description of the defendant and Mr. Caldwell. After Officer Fitzpatrick picked him up, both officers and officers from the "beat" car approached the defendant and Mr. Caldwell and conducted a field interview. Officer Killeen went to the leaf pile that Mr. Caldwell had been retrieving items from and recovered one clear bag containing eight smaller bags, each with a white rock-like substance. The defendant and Mr. Caldwell were arrested. A custodial search of the defendant revealed $95. According to Officer Killeen, Carpenter Park is nearby, at the intersection of Carpenter Street and 62nd Street.

Officer Killeen acknowledged that the only contact between the defendant and Mr. Caldwell was the "head motion," demonstrated by the officer as "nodding the head in a forward motion." The defendant never went to the leaf pile and never exchanged anything with Mr. Caldwell. The defendant did not have any drugs on his person. The defendant did not attempt to flee when Officer Killeen approached him.

Thereafter, the parties stipulated to the chain of custody of the recovered substance and that chemical testing established that the recovered substances contained cocaine. The parties further stipulated that an investigator from the State's Attorney's office measured the distance between Carpenter Park and the Carpenter Street address as being 345 feet.

Following arguments, the defendant was found not guilty of possession of a controlled substance with intent to deliver within 1,000 feet of a park but guilty of possession of a controlled substance with intent to deliver. A presentencing investigation report (PSI) was ordered, and the case was continued to March 19, 2004, for sentencing. On March 19, 2004, the public defender requested leave to file a posttrial motion on behalf of the defendant. The court was also advised that Carl Washington, a private attorney, would be representing the defendant. On March 23, 2004, Mr. Washington appeared and requested time to refile the posttrial motion.

On October 13, 2004, after numerous continuances at the request of Mr. Washington, the parties appeared for argument on the defendant's motion for a new trial filed by the public defender. The trial court overruled the State's objection to the motion, finding that it was timely filed. Mr. Washington elected not to present any argument on the motion for a new trial. The trial court denied the motion and commenced the defendant's sentencing hearing.

During the sentencing hearing, the following colloquy occurred:

"MS. ALIOTO (the prosecutor): Judge, we would just point out the defendant is class X by background. He was found guilty on a class one, count 2. In his background he has a 1999 PCS with I. He received probation, which was violated, and another two '99 cases that were concurrent; both narcotics related.

THE COURT: Counsel, do you wish to add anything?

MR. WASHINGTON: I don't know if he is eligible or is it mandatory? I am hoping that he is not.

THE COURT: He is class X by background based on the criminal convictions he has, counsel.

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MR. WASHINGTON: He has two of them.

THE COURT: If one of them was class X by background, then that would automatically make this class X.

MS. ALIOTO: Judge, he has two convictions that are class 2 or above."

The trial court then advised the defendant that because of his previous convictions for two Class 2 or higher felonies, the court was required to sentence him as a Class X offender. Thereupon, the trial court imposed the mandatory minimum sentence of six years' imprisonment, with credit for time served.

ANALYSIS I. Reasonable Doubt A. Standard of Review

When faced with a challenge to the sufficiency of the evidence, the relevant inquiry is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Campbell, 146 Ill.2d 363, 374, 166 Ill. Dec. 932, 586 N.E.2d 1261 (1992). In this case, the defendant maintains that since he does not dispute Officer Killeen's testimony, the de novo standard of review applies. People v. Smith, 191 Ill.2d 408, 411, 247 Ill.Dec. 458, 732 N.E.2d 513 (2000) (where the facts are not in dispute, a defendant's guilt is a question of law, which the court reviews de novo.)

"`An inference is a factual conclusion that can rationally be drawn by considering other facts.' (Emphasis added.)" People v. Rizzo, 362 Ill.App.3d 444, 449, 299 Ill.Dec. 690, 842 N.E.2d 727 (2005) quoting People v. Funches, 212 Ill.2d 334, 340, 288 Ill.Dec. 654, 818 N.E.2d 342 (2004). If divergent inferences could be drawn from undisputed facts, a question of fact remains. Rizzo, 362 Ill.App.3d at 449, 299 Ill.Dec. 690, 842 N.E.2d 727, citing In re Marriage of Kneitz, 341 Ill.App.3d 299, 303, 276 Ill.Dec. 229, 793 N.E.2d 988 (2003). "Where the evidence presented is capable of producing conflicting inferences, it is best left to the trier of fact for proper resolution." Rizzo, 362 Ill.App.3d at 449, 299 Ill.Dec. 690, 842 N.E.2d 727.

The elements of knowledge and possession which the State was required to prove in this case are questions of fact that are rarely susceptible to direct proof. People v. Cooper, 337 Ill.App.3d 106, 110, 271 Ill.Dec. 435, 785 N.E.2d 86 (2003). The State may establish these elements through circumstantial evidence. People v. Jones, 295 Ill.App.3d 444, 453, 229 Ill. Dec. 773, 692 N.E.2d 762 (1998) (Larry Jones). Since conflicting inferences could be drawn from the undisputed but circumstantial evidence in this case, questions of fact rather than law are presented. Therefore, we apply the sufficiency of the evidence test set forth above.

B. Discussion

To convict the defendant of the crime of unlawful possession of a controlled substance with the intent to deliver, the State was required to prove the following: that the defendant had knowledge of the presence of the narcotics, that the controlled substance was in the immediate possession or control of the defendant, and that the defendant intended to deliver the controlled substance. People v. Burks, 343 Ill.App.3d 765, 768, 278 Ill.Dec. 880, 799 N.E.2d 745 (2003); see 720 ILCS 570/401 (West 2002). As noted above, these elements may be proved by circumstantial evidence.

The defendant maintains that the evidence failed to establish that he had possession of the controlled substance recovered

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in this case or that he had knowledge of its presence in the leaf pile. The defendant acknowledges that the possession may be actual or constructive. "`A defendant has constructive possession of drugs where there is no actual control of the...