People v. Price
| Decision Date | 30 September 2016 |
| Docket Number | No. 1-14-1054,1-14-1054 |
| Citation | 2016 IL App (1st) 141054 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY PRICE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
The Honorable Rickey Jones, Judge Presiding.
ORDER
¶ 1 Held: (1) The trial court did not abuse its discretion by admitting drug evidence, despite slight variations in the descriptions of the ziplock bags in which the drugs were sold, where the State demonstrated a sufficient chain of custody through reasonable protective measures, and matching identifiers, such as inventory numbers, number of bags, and heat-sealing; (2) the State's rebuttal did not contain any error; (3) the trial court's error in scheduling the jury instruction conference after closing arguments did not rise to the level of plain error; (4) defendant's counsel was not ineffective; and (5) defendant's 12-year sentence was not an abuse of the discretion by the trial court.
¶ 2 Defendant, Terry Price, age 56, was convicted after a jury trial of one count of delivery of less than one gram of heroin to an undercover police officer and was sentenced to 12 years in the Illinois Department of Corrections (IDOC). On this appeal, defendant claims: (1) that the State's chain of custody for the controlled substance was not "intact"; (2) that he was denied a fair trial when the State made improper comments in closing arguments; (3) that he was denied a fair trial when the trial court held the jury instruction conference after closing arguments; (4) that he was denied effective assistance of counsel when his assistant public defender (APD) (a) introduced and elicited other crimes evidence, (b) failed to object to repeated improper arguments by the State during closing arguments, and (c) failed to preserve defendant's issues for appellate review; and (5) that his 12-year sentence is excessive. For the following reasons, we affirm.
¶ 5 At trial, the evidence established that, on September 8, 2011, Chicago police officers on a narcotics team including officers Lazaro Altamirano and Donald Clark and Sergeant Andrew Dakuras, conducted an undercover heroin purchase from defendant in the area of Iowa Street and Harding Avenue in Chicago. Officer Clark acted as the surveillance officer, Officer Altamirano was the buy officer, and Sergeant Dakuras acted as an enforcement officer.
¶ 7 Officer Donald Clark testified that he has been a Chicago police officer for 19 years. On September 8, 2011, at 9:30 a.m., he drove to the area of Iowa Street and Harding Avenue and parked his vehicle on Harding Avenue. Officer Clark originally opined that he was 25 to 50 feet away from defendant, but agreed on cross-examination that his actual distance was 100to 150 feet from where defendant was standing. From his parked vehicle, Officer Clark observed defendant shouting "rocks and blows" to vehicles that drove by. Clark testified that "rocks" is a street term meaning crack cocaine, and "blows" is a street term meaning heroin. Clark then reported what he observed by radio to the rest of the narcotics team and provided a physical description of defendant. Clark observed Officer Altamirano approach the intersection of Iowa Street and Harding Avenue on foot and engage defendant in a conversation, which Clark could not hear. Defendant and Altamirano then walked northbound on Harding Avenue, where, from a distance of about 20 feet, Officer Clark observed Altamirano and defendant engage in a hand-to-hand transaction. Clark could not observe what defendant handed to Altamirano, but he observed that Officer Altamirano handed defendant money. While the transaction was occurring, Officer Clark radioed back to his team concerning the transaction and defendant's location. After the exchange, Officer Clark testified that defendant walked back to the corner of Iowa Street and Harding Avenue, and Officer Altamirano left the area and radioed the rest of the team in order to report both a positive transaction for heroin and a physical description of defendant.
¶ 8 Officer Clark maintained surveillance of defendant until the enforcement team arrived. Officer Clark testified that he observed Sergeant Dakuras and Officer Chinchilla arrive in the area soon after he radioed and detain defendant, engage him in a brief conversation, and then let him go. Officer Clark testified that he did not take any photographs, videos, or audio transcriptions on that day, and does not recall preparing a contact card for the person the enforcement officers detained. Officer Clark testified that defendant was not arrested at that time because the buy was part of an ongoing investigation into the open-air drug market in that area, and arresting defendant would have compromised the operation.
¶ 10 Officer Lazaro Altamirano testified that he had been a Chicago police officer for over 10 years, and had been assigned to the narcotics unit for five years. When he approached, defendant asked him what he needed and Altamirano asked for "two blows." The money that Officer Altamirano handed defendant consisted of two $10 bills that were prerecorded 1505 funds provided to him by the Chicago police department (CPD). Defendant handed him two clear ziplock bags with a Superman logo on them. After the transaction, Altamirano returned to his vehicle and radioed the rest of the team. When Officer Altamirano received word that the enforcement officers had detained defendant, he returned to the intersection of Iowa Street and Harding Avenue to identify defendant as the individual who had sold him the ziplock bags.
¶ 11 Officer Altamirano then returned to Homan Square, a CPD facility, with the drugs and placed the two ziplock bags into a green CPD inventory narcotics bag. Officer Altamirano testified that Officer McNeela inventoried the two bags into the system. Officer Altamirano then brought the heat-sealed bag to the evidence safe in Homan Square. Officer Altamirano testified that the heat-sealed evidence was then transported to the Illinois State Police Crime Lab for testing and analysis. While at Homan Square, about an hour after the undercover buy occurred, Altamirano testified that he was shown a photo array by Officer McNeela and Sergeant Dakuras, in which he identified defendant as the individual who sold him the two ziplock bags that day.
¶ 12 At trial, Officer Altamirano described the ziplock bags as clear in the back with a red Superman logo on them. Upon cross-examination, Officer Altamirano conceded that the bags were clear on one side, and that the other side had a red Superman logo with a bluebackground; he had not noted the blue background in his supplemental report. Officer Altamirano testified that DNA and fingerprint testing was not conducted on the bags that he gave to Officer McNeela.
¶ 14 Sergeant Andrew Dakuras testified that he and Officer Chinchilla served as the enforcement officers for the narcotics team on September 8, 2011, and were in an unmarked police vehicle with an "M" plate, but no lights on top of the vehicle or markings on it. Dakuras and Chinchilla patrolled the area until Officer Altamirano made a positive buy and identified the individual. Sergeant Dakuras was then directed by Officer Clark to the corner of Iowa Street and Harding Avenue, where he observed an individual matching the description that he received from Officer Altamirano, who he identified in court as defendant. Sergeant Dakuras testified that, on the morning of September 8, 2011, Officer Altamirano informed him of the 1505 funds he planned to use in the buy and gave Dakuras the serial numbers of the two $10 bills, which Sergeant Dakuras wrote down on the palm of his hand. Once Sergeant Dakuras identified defendant, he exited his vehicle and called defendant over to him, where defendant provided his name and date of birth. Dakuras found two $10 bills in defendant's pockets with serial numbers that matched the numbers on his hand, and then he returned the money and allowed defendant to leave. He did not recover a state ID or driver's license, or fill out a contact card for defendant. Sergeant Dakuras explained that defendant was not arrested because it could prevent Officer Altamirano from later purchasing narcotics at that location, and so they waited for a period of time and arrested several individuals at the conclusion of the investigation. After defendant left thelocation, Sergeant Dakuras returned to Homan Square and prepared the photo array for Officer Altamirano.
¶ 16 Kathy Regan, a forensic scientist in drug chemistry at the Illinois State Police Forensic Science Center, testified that she received the drugs on September 13, 2011. She recognized the bag by its case exhibit number "5" and label: "Lab Case 1138954." The bag was heat-sealed when she received it. Regan concluded from her examination that the weight of the substance was 0.433 grams and the substance in both bags was heroin. The scale on which she weighed the powder had been tested and calibrated two days earlier. After conducting these tests, Regan resealed and repackaged the evidence, and marked it with the case exhibit number and the date that she sealed the inner package. She then placed it in the evidence bag which she marked with her initials and the date that she sealed the outer bag. In her report, Regan described the exhibit as "two clear plastic bags." At trial, she identified the packages as "clear on one side and blue on the other." Regan...
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