People v. Nelson

• Docket Number: 1-18-1483
• Decision Date: 18 May 2021
• Citation: People v. Nelson, 2021 IL App (1st) 181483, 197 N.E.3d 666, 459 Ill.Dec. 12 (Ill. App. 2021)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Eugene NELSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 181483

197 N.E.3d 666

459 Ill.Dec. 12

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

v.Eugene NELSON, Defendant-Appellant.

No. 1-18-1483

Appellate Court of Illinois, First District, Second Division.

Filed May 18, 2021

James E. Chadd, Patricia Mysza, and Christofer R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Douglas P. Harvath, and Matthew E. Thrun, Assistant State's Attorneys, of counsel), for the People.

JUSTICE COBBSdelivered the judgment of the court, with opinion.

¶ 1 Following a 2015 jury trial, defendantEugene Nelson was convicted of delivery of a controlled substance and sentenced to seven years in the Illinois Department of Corrections.On appeal, defendant seeks reversal of his conviction or, in the alternative, remand for a new trial because (1) the jury was not properly sworn before trial and (2) there was insufficient evidence to convict him.For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3Defendant was charged by indictment with delivery of a controlled substance ( 720 ILCS 570/401(c)(1)(West 2014)).The indictment alleged that on June 20, 2014, defendant, along with codefendant Travaris Stevenson, delivered "1 gram or more but less than 15 grams" of heroin to an undercover police officer.In February 2015, defendant was tried before a jury, which resulted in a hung jury.¹In November 2015, defendant was tried in a second jury trial.

¶ 4 A. Instructions and Voir Dire Proceedings

¶ 5 Prior to jury selection on November 2, 2015, the trial court provided preliminary instructions to the jurors.The court advised the jurors that the instructions were "neither [their] final nor [their] complete instructions" as "those [would] come after [they] heard all the evidence and the closing arguments of the attorneys."The court then instructed the jurors that defendant was presumed innocent of the charges against him, that the presumption remained with him at every stage of the trial, and that "it is not overcome unless *** they are convinced beyond a reasonable doubt that the defendant is guilty" after hearing all the evidence.The court noted that the prosecution had the burden of proof and defendant was not required to prove his innocence or present evidence on his own behalf.The court then informed the jurors that their role was to be "judges of facts."The court noted that "[i]n considering the testimony of any witness, [they] may take into account [the witness's] opportunity and ability to observe, their memory, their manner while testifying, any interest, bias or prejudice they may have, and the reasonableness of their testimony considered in light of all the evidence."The court emphasized that the "verdict must be based only on the law and the evidence in this case" as "[s]ympathy, bias, or prejudice have no place in this trial" and their "oath as juror requires [that they] set aside any sympathy, bias, or prejudice [they] may have."Lastly, the court stated that defendant did not have to testify.The court then instructed the jurors to raise their hand if they did not understand these instructions or "basic propositions of law."No hands were raised.

¶ 6 Following individual voir dire , 12 jurors and 2 alternates were selected.The jury was then instructed to return the next day for trial.

¶ 7 On November 3, 2015, all parties appeared, and outside the presence of the jury, the court granted a motion to exclude witnesses.The court then gave Illinois Pattern Jury Instructions, Criminal, No. 1.01A(approved July 26, 2013)(hereinafter IPI CriminalNo. 1.01A) to the jury, and the State proceeded with its opening statement.²The jury was not sworn in.

¶ 8 B. Jury Trial

¶ 9 Following opening statements, the State called Chicago police officer Armando Ugarte to testify.Officer Ugarte was assigned to the police department's narcotics unit.On June 20, 2014, he was on duty as an undercover "buy officer."Others on his unit team worked as surveillance and enforcement officers.Prior to the date in question, he served as an undercover buy officer on approximately 30 occasions.

¶ 10 Officer Ugarte testified that he was instructed by another officer on the team to go to the area of 1546 South Ridgeway Avenue in Chicago.He drove in an unmarked vehicle and was dressed in civilian clothes.After arriving at the location, Officer Ugarte observed a man sitting on the front porch of an abandoned building.Officer Ugarte identified that man as defendant in open court.He testified that he pulled his car to the curb and asked defendant, "You up, Bro?"According to Officer Ugarte, this phrase was used to inquire if an individual had narcotics for sale.

¶ 11 In response, defendant stood up and approached Officer Ugarte's vehicle.Defendant walked to the driver's side window and spoke to him from an arm's length distance.Defendant asked him, "How many D do you want?"Officer Ugarte explained that the term "D" referred to heroin.Officer Ugarte told defendant that he wanted "three."Defendant then walked away from the vehicle, headed "north" on Ridgeway Avenue, and "engaged" with another individual who was later identified as Stevenson.Defendant and Stevenson were about four buildings away from him.Officer Ugarte testified that there was nothing obstructing his view of the individuals.He observed defendant and Stevenson engage in a "hand-to-hand transaction."Defendant then returned to the vehicle with a closed fist.At that point, defendant put his hand into the car, opened his fist, and dropped three blue-tinted plastic bags containing what Officer Ugarte believed to be heroin.In exchange for the bags, Officer Ugarte gave defendant $30 in prerecorded funds.

¶ 12 Officer Ugarte then drove away from the scene, contacted the other officers on his team, and informed them that a narcotics transaction had taken place.He gave a detailed description of defendant's clothing, including his hat, shirt, pants, and shoes.Officer Ugarte returned to the scene 5 to 10 minutes later and saw that enforcement officers had detained defendant.Officer Ugarte told the officers that defendant was the one who sold him the heroin.Officer Ugarte testified that it was "well-lit" around that time, he had an unobstructed view of defendant's face, and he had no trouble recognizing defendant as the person who sold him the heroin.He testified that the three bags containing the suspected heroin were placed into a large inventory bag, which was provided by the police department.Information such as "the date, the time, location, *** [and] substance of the evidence is filled out on that bag."Officer Ugarte testified that his name and star number was on the bag.Additionally, his "signature, *** description of [the evidence], address, the defendant's name" was also included.He filled out this information shortly after receiving it from defendant.Officer Ugarte testified that, using the police department's I-CLEAR program, he was able to generate a unique inventory number for the evidence.The inventory number was 13201611.The bags were heat-sealed and later submitted to the Illinois State Police(ISP) crime lab.

¶ 13 On cross-examination, Officer Ugarte testified that he had never seen defendant nor had any information that he had been involved in the sale of narcotics prior to June 2014.On the day in question, Officer Ugarte did not see defendant"involved in any narcotics transactions" nor did he"suspect" it.He also did not observe any narcotics activity on the block that day.Nevertheless, he asked defendant if he was selling drugs.He testified that there was no recording of his conversation with defendant.He did not see defendant"specifically hand anything to [Stevenson]," but he did observe them "grabbing each other[’s]" hands.He did not see defendant give the prerecorded funds to Stevenson or "see what [defendant] did with [it]," as he had driven away at that point.The prerecorded funds were never recovered, and the heroin bags were not submitted for fingerprints or DNA testing.

¶ 14 Chicago police officer William Lepine testified that he was assigned to the narcotics unit.On the day in question, he was working on the same team with Officer Ugarte.His role was that of a surveillance officer.He was dressed in civilian clothes and was in an unmarked vehicle.His team had formulated a plan to make a control purchase, and the operation was to be conducted near the area of 15th Street and Ridgeway Avenue in Chicago.He instructed Officer Ugarte to come to that location, and shortly thereafter, Officer Ugarte arrived at the scene.Officer Lepine had an unobstructed view of Officer Ugarte's interaction with defendant.He described the sequence of events in a similar manner as Officer Ugarte.He also identified defendant in open court.

¶ 15 After Officer Ugarte had driven away, Officer Lepine remained at the scene.He observed defendant walk back towards Stevenson and give him what appeared to be money.He could tell it was money because it was "green paper."He never lost sight of defendant's hand from the time he received the money from Officer Ugarte until he handed what appeared to be "green paper" to Stevenson.Officer Lepine continued to watch as Stevenson approached another individual and gave him the money.This third individual took the money, "walked a little bit east out of [Officer Lepine's] view," and left the scene.Officer Lepine continued to observe the scene to see if the other person would come back.The man did not return.Shortly thereafter, Officer Lepine terminated the operation and radioed for enforcement officers.Both defendant and Stevenson were detained.Officer Lepine then observed Officer Ugarte return to the scene.Officer Ugarte did not exit his vehicle but was "continuously slowly driv[ing] by."Officer Ugarte radioed Officer Lepine regarding defendant and Stevenson.The...