People v. Reed

• Decision Date: 12 March 1993
• Docket Number: No. 1-91-3938,1-91-3938
• Citation: 611 N.E.2d 1343,243 Ill.App.3d 598,183 Ill.Dec. 695
• Parties: , 183 Ill.Dec. 695 The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Gerald REED, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1343

611 N.E.2d 1343

243 Ill.App.3d 598, 183 Ill.Dec. 695

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Gerald REED, Defendant-Appellant.

No. 1-91-3938.

Appellate Court of Illinois First District, Fifth Division.

March 12, 1993.

Rehearing Denied March 26, 1993.

Michael J. Pelletier, Deputy Defender, Office of State Appellate Defender, Todd Avery Shanker, Panel Atty. for State Appellate Defender, Chicago, for defendant-appellant.

Jack O'Malley, State's Atty., County of Cook (Renee Goldfarb, James Fitzgerald, Asst. State's Attorneys, of counsel) Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

On December 16, 1990, defendant Gerald Reed (Reed) was arrested and charged under indictment No. 91 CR 2439 with possession of a controlled substance (.51 grams of heroin) with intent to deliver. (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(d).) While Reed was released on bond pending trial on the case, he was arrested on April 30, 1991, and charged under indictment No. 91 CR 13210 with a separate instance of possession of a controlled substance with intent to deliver. A jury trial was held on the first indictment on September 25, 1991, and Reed was found guilty. Prior to sentencing on this conviction, Reed pled guilty to the charge in the second indictment and was then sentenced on both convictions to six years' imprisonment, sentences to run consecutively.

Reed now appeals from the judgment and sentence entered on the jury conviction only. In his appeal Reed raises these three issues: (1) whether he was denied a fair trial because the trial court admitted into evidence a $20 bill despite certain defects in the chain of custody, (2) whether the prosecutor's closing argument evidenced misconduct because he referred to Reed as a drug dealer and misstated the law, and (3) whether Reed was denied effective assistance of trial counsel. For reasons that follow, we affirm Reed's conviction and sentence.

Two Chicago police officers, Ronald Baez and Scott Chambers, testified that on the afternoon of December 16, 1990, they were assigned to routine patrol duty. Around 4:30 p.m. they began surveillance of the southeast corner of Bowen and Vincennes, which is located within their beat and known to the officers to be a high crime area. While sitting in their marked patrol car about a block and a half away, they surveyed the corner using binoculars (or field glasses). Doing so, they observed four or five men standing on the corner in front of a liquor store. One man, who was later identified as Reed, was standing near two telephones located on the same corner. He was wearing a suit, had a trench coat draped over his shoulders and a fedora on his head.

Through the binoculars the officers witnessed what they believed to be drug transactions taking place between Reed and other persons. First Officer Chambers and then Officer Baez, used the binoculars. Each officer, in turn, observed someone approach Reed and pass what appeared to be currency to Reed. Reed then reached into his right pants pocket and passed something back to the person. After each officer witnessed an exchange, they decided to make a street stop.

As Officer Chambers drove the marked patrol car to the corner, he and Baez could see that a third person had approached Reed. From their position now, the officers could see that this person was passing money to Reed. Baez jumped out of the patrol car as someone yelled "Police." Immediately the person, having been made aware of the police officers' presence, turned and walked hurriedly away. Reed, who had been in the process of withdrawing an item from his right pants pocket to pass to the person, crumpled the bill that he received and placed it into his left pants pocket and replaced the item he had in his right pocket. Reed, too, began to walk off and, as he did so, dropped a plastic bag.

Baez stopped Reed and placed him under arrest while Chambers retrieved the plastic bag, which now could be seen to contain four smaller knotted plastic bags, each containing a tan colored powder. Reed was patted down and placed into the patrol car.

As the officers arrested Reed, two or three verbally belligerent men approached the officers and told the officers not to take Reed away. These men, who appeared to have been drinking, were told to disperse. When they refused, they were arrested and taken with Reed to 2nd district police station.

At the police station Reed was searched. Baez testified that a crumpled $20 bill was found in Reed's left pants pocket and another $1,300 was found in various locations on Reed's person. The $1,300, which consisted of one $50 bill, 23 $20 bills, 48 $10 bills, 48 $5 bills and 70 $1 bills, was grouped into $100 bundles and distributed in three locations on Reed's person, including Reed's shoe.

Officer Baez further testified that he inventoried the $1,300 that had been recovered from Reed, filling out an inventory slip for it personally. He also testified that he had inventoried the $20 bill, which was given its own inventory number and kept separate from the other currency. The plastic bag containing the four individual bags of tan powder was also inventoried at this time.

Craig Washington, a chemist for the Chicago police department, testified that he tested the tan powder that was recovered at the time of defendant's arrest. The powder contained in the four knotted baggies was determined to be a substance containing heroin with a total weight of .51 grams.

At the close of the State's case, the State moved to have exhibits 1 through 3 admitted into evidence. The defense objected to the admission of exhibit # 2, which was the $20 bill. The objection was overruled and the defense called its first witness, Keyon Moore.

Moore indicated that he had known Reed for four years and then testified that around 5:30 p.m. on December 16, 1990, he was walking to the store located on the corner of Bowen and Vincennes. As he was approaching the store he saw two police officers in a marked car pull up to the corner. The officers got out of the car and ordered everyone to place their hands on the police car.

Moore testified that he and Reed, who had been using one of two telephones on the corner, were among the persons who complied with the officers' demand. The officers then searched everyone twice and, in the second search, found some money in Reed's shirt pocket. Based upon this discovery the officers handcuffed Reed, placed him in the patrol car, and told the rest of the people they could leave.

According to Moore, after arresting Reed the officers did not drive away. Instead, they began to search the area, including a vacant lot across the street. In this vacant lot one of the officers found a plastic bag among the weeds. The officers then told the five or six persons who had remained in the area to again place their hands on the patrol car. Moore testified that these persons were searched and, after this third search, four more persons were handcuffed and taken into custody. Moore was not among those persons who were arrested and he gave no explanation for the arrest of these other persons.

The next defense witness was Squire Armstrong. He testified that on December 16, 1990, he lived at 517 East Bowen. When he looked out his window in the evening on that date he saw two police officers searching four or five people who were standing with their hands on a police car. Armstrong, who also knew Reed, claimed that Reed was on the telephone when the police interrupted him, searched him and then handcuffed him.

Armstrong further testified that he left his apartment and went to the liquor store. As he walked into the liquor store he noticed that the police officers were searching the vacant lot across the street. As he was leaving the liquor store he saw that the police grabbed his nephew, who had been standing on the corner. Armstrong went to see what the trouble was and the police arrested him and his nephew, as well as a couple of other persons, for mob action.

After this evidence was presented, the defense rested. The jury was instructed and, after deliberation, Reed was found guilty of possession of a controlled substance with the intent to deliver.

In Reed's first issue on appeal he contends that he was denied due process of law because the trial court admitted into evidence the $20 bill recovered from Reed although a proper chain of custody was not proven. He asserts that because an objection was made at trial to the admission of this evidence and because the admission of this evidence was "plain error," the issue is preserved for review despite the fact that the matter was not raised in a post-trial motion.

The State, on the other hand, contends that Reed waived this issue by failing to bring it to the court's attention in a post-trial motion. Alternatively, the State argues that the chain of custody was proper, but that even if the chain of custody was improper, any error was harmless beyond a reasonable doubt.

Before we resolve this issue, we first return to the testimony concerning the $20 bill. Officer Baez testified concerning the process he followed when inventorying the money recovered from Reed. Baez stated that he first counted the money in front of defendant, then had the desk sergeant recount the money. The $1,300 was then placed in a money envelope and inventoried in an inventory book, with a receipt being produced and signed by him. Baez identified the inventory slip in court.

In addition, Baez testified that he placed the $20 bill, which he inventoried separately, into a plastic bag, placed the $1,300 into another plastic bag and then placed both plastic bags into the same money bag. Baez also testified that money bags were generally placed in a bank for security purposes. However, at trial Baez was shown an envelope which contained a $20 bill. Although he identified the envelope, he indicated that the signature...