People v. Naylor, No. 104414.
| Court | Supreme Court of Illinois |
| Writing for the Court | Freeman |
| Citation | 893 N.E.2d 653,229 Ill.2d 584 |
| Parties | The PEOPLE of the State of Illinois, Appellant, v. John NAYLOR, Appellee. |
| Decision Date | 24 July 2008 |
| Docket Number | No. 104414. |
v.
John NAYLOR, Appellee.
[893 N.E.2d 656]
Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Michael M. Glick, Assistant Attorney General, Chicago, James E. Fitzgerald, Alan J. Spellberg and Kathleen Warnick, Assistant State's Attorneys, of counsel), for the People.
Michael J. Pelletier, Deputy Defender, and Patrick F. Cassidy, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellee.
Justice FREEMAN delivered the judgment of the court, with opinion:
Following a bench trial in the circuit court of Cook County, defendant, John Naylor, was convicted of several offenses relating to the sale of heroin. Finding a violation of People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), the appellate court reversed defendant's convictions and remanded the cause for a new trial. 372 Ill.App.3d 1, 309 Ill.Dec. 477, 864 N.E.2d 718. We allowed the State's petition for leave to appeal (210 Ill.2d R. 315(a)) and now affirm the appellate court.
In April 2000, defendant was indicted on six counts relating to possession of heroin with intent to deliver and delivery of heroin. On August 11, 2004, the State entered a nolle prosequi as to two counts, and defendant was tried on the remaining four: possession of heroin with intent to deliver, delivery of heroin, possession of heroin with intent to deliver while on Chicago Housing Authority (CHA) property, and delivery of heroin on CHA property. 720 ILCS 570/401(d), 407(b)(2) (West 2000). Defendant waived a jury and the court conducted a bench trial.
The State's case in chief consisted of the testimony of two Chicago police officers and an evidence stipulation. Chicago Police Officer John Lewis testified as follows. On March 9, 2000, Officer Lewis was assigned to the narcotics and gang investigation section of the Chicago police department. He was working at 4429 South Federal Street, which is part of the Robert Taylor Homes, a CHA property. Officer Lewis and other police officers were conducting "Operation Corridor," which was an operation to suppress narcotics activity
in the Robert Taylor Homes. Officer Lewis' role was to make a controlled narcotics purchase.
At approximately 10:20 a.m., Officer Lewis, in civilian dress, entered 4429 South Federal Street and proceeded to the fourth floor of the north stairwell with three other police officers in civilian dress: Officers Boggan, Boyd, and Espinosa. The officers met three individuals standing in the stairwell, one of whom asked Officer Lewis if he wanted "white." Based on his undercover experience, Officer Lewis understood "white" to refer to heroin. Officer Lewis identified defendant in court as the individual with whom he spoke. In response to defendant's solicitation, Officer Lewis said, "Yeah, one." He tendered to defendant a $10 bill from the department's "1505 fund." This refers to a fund of United States currency with prerecorded serial numbers, which the department uses to purchase illegal narcotics in a controlled environment. In return for the $10, defendant gave to Officer Lewis one tinfoil packet. Officer Boyd stood behind Officer Lewis in line for a purchase. All four officers made purchases. Officer Lewis did not know from whom the other officers made their purchases.
After the officers made their purchases, they retraced their steps down the stairwell and immediately exited the building together. They returned to their vehicles and radioed the descriptions of defendant and the other two individuals who were standing in the stairwell. Police officers subsequently brought them out of the building. Officer Lewis saw defendant 10 to 15 minutes later, when Chicago Police Officer William McKenna led defendant out of the building. Officer McKenna gave to Officer Lewis the prerecorded $10 bill. Officer Lewis did not see Officer McKenna recover the prerecorded $10 bill from defendant. At some point Officer Lewis opened the packet and saw a white powder he suspected was heroin. He inventoried the packet with the prerecorded $10 bill.
Chicago Police Detective Deon Boyd testified as follows. At the beginning of every month, officers using the prerecorded fund personally record the serial numbers of the currency they use to make undercover drug purchases. On March 9, 2000, Detective Boyd was working as an undercover police officer with Officer Espinosa at 4429 South Federal Street, and he saw Officers Lewis and Boggan at that location. At least 20 Chicago police officers were involved in the operation. When Detective Boyd entered the building, several persons directed him to take the north stairwell to the fourth floor. When Detective Boyd reached the fourth floor, he saw a line of individuals purchasing narcotics. Officer Lewis was leaving when Detective Boyd got in line. When Detective Boyd reached the front of the line, he came into contact with a man whom Boyd identified in court as defendant. Detective Boyd said to defendant, "Let me get two." Defendant reached into a clear plastic bag, retrieved two tinfoil packets, and handed them to Detective Boyd. In exchange, Detective Boyd gave to defendant a prerecorded $20 bill. Detective Boyd did not see from whom Officers Lewis and Boggan bought drugs.
Detective Boyd and Officer Espinosa retraced their steps, exited the building, and returned to their undercover vehicle. They radioed the enforcement team that they completed the transactions and they described defendant. The enforcement team entered the building, converged on the fourth-floor stairwell, and arrested defendant "and several other individuals." Detective Boyd knew specifically that one of the individuals arrested was Kohler Parks, from whom he saw Officer Espinosa buy drugs. The enforcement team
brought them all down. Detective Boyd saw Officer McKenna bring defendant out of the building. Officer McKenna gave to Detective Boyd the prerecorded $20 bill. Detective Boyd never saw Officer McKenna recover the prerecorded $20 bill from defendant. At some point Detective Boyd opened the packet and saw a white powder he suspected was heroin. He inventoried the packet with the prerecorded $20 bill.
After Detective Boyd testified, the State offered a stipulation. If called as a witness, Timothy Tripp would testify as follows. He is a forensic chemist with the Illinois State Police Crime Laboratory. Tripp tested the powder from each of the tinfoil packets that Officer Lewis and Detective Boyd inventoried and submitted for analysis. The substance in the packet inventoried by Officer Lewis tested positive for the presence of 0.1 gram of heroin, and the substance in one of the packets inventoried by Detective Boyd tested positive for the presence of 0.1 gram of heroin. Defendant affirmatively agreed to the stipulation.
Defendant testified on his own behalf. On March 9, 2000, defendant was living in a ninth-floor apartment at 4429 South Federal Street. Sometime after 10 a.m., defendant left his apartment to pick up his son from kindergarten, which ended at 10:45 a.m. Defendant was walking down the stairs from his apartment when police officers attacked him, announced their office, and sprayed mace in his face. He denied selling drugs that day, and he denied possessing money from drug sales. Defendant did not remember on which floor he encountered the officers. Defendant could remember only being arrested with "a lot of people" and placed in a police wagon with five or six others. Defendant knew of Kohler Parks only as a neighbor in the building. Defendant testified: "I don't know him [Parks] personally." At the close of defendant's testimony, the defense rested its case.
In rebuttal, the State offered as evidence a certified copy of defendant's December 1990 conviction for aggravated battery. Defendant's trial counsel objected to its admission because the prior conviction was more than 10 years old. The trial court overruled defendant's objection, finding that defendant's prior conviction was less than 10 years old from when defendant allegedly committed the charged offenses. The court admitted into evidence the certified copy of defendant's prior conviction. The State rested its case.
At the close of arguments, the trial court found defendant guilty on all counts. The court subsequently sentenced defendant to six years' imprisonment and imposed $2,720 in fines, fees, assessments, and costs.
Before the appellate court, defendant contended, inter alia, that the State violated People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), by admitting into evidence a prior conviction that was over 10 years old at the time of trial to impeach his credibility. The appellate court observed that defendant's trial counsel failed to preserve the issue for appellate review by including it in a posttrial motion. However, the court concluded that the evidence was closely balanced and reviewed the issue. See 134 Ill.2d R. 615(a). The court originally found no error. It held that defendant's prior conviction was admissible for impeachment because it was less than 10 years old at the time defendant allegedly committed the charged offenses. Defendant filed a petition for rehearing, and the appellate court withdrew its opinion.
The appellate court filed a new opinion, holding that defendant was erroneously impeached with his prior conviction. 372 Ill.App.3d 1, 309 Ill.Dec. 477, 864 N.E.2d 718. Again observing that defendant procedurally
forfeited the issue, the court reviewed the issue pursuant to the plain-error doctrine of Supreme Court Rule 615(a) (134 Ill.2d R. 615(a)). The court agreed "with the case law that applies the 10-year time period in Montgomery as running from the date of conviction or release from confinement, whichever is later, to...
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...defendant raises his claim under the doctrine of plain error, there can be no plain error if an error is harmless. People v. Naylor, 229 Ill.2d 584, 602, 323 Ill.Dec. 381, 893 N.E.2d 653 (2008). We thus consider whether the trial court's exclusion of Ternoir's statement as substantive evide......
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