People v. Starks

• Decision Date: 28 June 2019
• Docket Number: No. 2-16-0871,2-16-0871
• Citation: 2019 IL App (2d) 160871,130 N.E.3d 556,432 Ill.Dec. 1014
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith L. STARKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 160871

130 N.E.3d 556

432 Ill.Dec. 1014

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

v.Keith L. STARKS, Defendant-Appellant.

No. 2-16-0871

Appellate Court of Illinois, Second District.

Opinion filed June 28, 2019

James E. Chadd, Thomas A. Lilien, and R. Christopher White, of State Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, David J. Robinson, and Marshall M. Stevens, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Keith L. Starks, was convicted of one count of unlawful possession of a controlled substance with intent to deliver within 1000 feet of a church ( 720 ILCS 570/407(b)(1) (West 2014)) and one count of driving while his license was revoked ( 625 ILCS 5/6-303(a) (West 2014)). Following a simultaneous bench trial, defendant was also convicted of one count of aggravated unlawful possession of a weapon by a felon ( 720 ILCS 5/24-1.1(a) (West 2014)). The trial court sentenced defendant to eight years' imprisonment on the drug conviction and five years' imprisonment on the weapon conviction, to be served concurrently. Defendant argues that his drug conviction should be reduced to simple possession, because the evidence did not prove beyond a reasonable doubt defendant's intent to deliver. Defendant also argues that his weapon conviction should be reversed because a baton does not qualify as a "bludgeon" within the meaning of the statute. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On May 6, 2016, defendant was charged in a four-count indictment relating to actions alleged to have occurred on February 24, 2015. Count I alleged unlawful possession of a controlled substance with intent to deliver within 1000 feet of a church, in that, "while within 1000 feet of a Church, Elgin Community Church, [defendant] knowingly and unlawfully possessed with the intent to deliver to another, one or more grams, but less than 15 grams of a substance containing cocaine [ (a Class X felony) ]." Count II alleged aggravated unlawful possession of a weapon, in that defendant, "who has been convicted of a felony[,] knowingly possessed a bludgeon, being a metal expandable baton [ (a Class 3 felony) ]." Count III alleged unlawful possession of a controlled substance, in that defendant "knowingly and unlawfully possessed less than 15 grams of a substance containing cocaine [ (a Class 4 felony) ]." Count IV alleged that defendant "operated a motor vehicle at a time when [defendant's] driver's license was suspended or revoked [ (a Class A misdemeanor) ]."

¶ 4 On April 6, 2016, a "reindictment" was issued. Counts I, III, and IV were realleged as in the original indictment, but count II was elevated to a Class 2 felony, based on defendant's prior Class-2-or-greater drug conviction.

¶ 5 On April 8, 2016, the trial court granted defendant's motion to sever count II. Defendant waived a jury trial on count II, and the State nol-prossed count III.

¶ 6 On April 11, 2016, a bench trial was held on count II, aggravated unlawful use of a weapon, and a jury trial was held on counts I and IV, alleging unlawful possession of a controlled substance with intent to deliver within 1000 feet of a church and driving while his license was revoked, respectively.

¶ 7 Detective Tom Wolek of the Elgin Police Department testified as follows. Wolek had worked for the department for 20 years and was a detective with the "special investigations division." On February 24, 2015, Wolek conducted in a narcotics investigation with Officer Shaun Schroeder, Detective Gorcowski, and Sergeant Bianchi. Wolek drove an unmarked sport-utility squad vehicle and the others rode along as passengers. Wolek wore a bulletproof vest with police markings on the front and back. Wolek drove to the area of Mark Avenue and Mildred Avenue and began following a Honda Civic. The Civic turned onto Mildred Avenue and then proceeded to McLean Boulevard. The driver of the Civic did not activate the car's turn signal at least 100 feet before turning onto McLean. Wolek continued to follow the Civic and then attempted to conduct a traffic stop by activating his vehicle's flashing lights. But the Civic did not pull over; instead it continued on McLean and turned into Hooper's Sports Bar's parking lot. "Basically, [the Civic] drove around the entire bar, the front, the side and the back and then came back out to the front." When the Civic was near the back of the bar, Wolek activated his vehicle's spotlight and siren. But the Civic did not stop. Instead, it returned to the area in front of the bar, started heading back toward McLean, and then stopped.

¶ 8 Wolek approached the driver's window of the Civic with his gun out of its holster for "safety," because it was suspicious that the vehicle had not stopped immediately. Wolek ordered the driver, defendant, to exit the vehicle. Wolek handcuffed defendant because Wolek knew that defendant's driver's license had been revoked. Gilberto Feliciano was in the front passenger seat of the Civic. After Wolek and Officer Jordan Rapacz handcuffed defendant, they searched him and found "a box of plastic [sandwich] baggies [and] several loose plastic baggies." Defendant was then taken to the Elgin Police Department.

¶ 9 When Wolek searched the Civic, he found a large Ziploc sandwich bag on the driver's-side floorboard and a sandwich bag "containing suspect[ed] drugs [appearing] white in color" on the passenger's-side floorboard. Wolek also recovered a dark-colored jacket on the driver's seat, near the center console. Inside the jacket, Wolek found a metal, expandable baton. The baton was similar to batons issued to police officers "for use of force [and] protection." All the items Wolek found were given to Officer Schroeder.

¶ 10 At the police station, Wolek advised defendant of his Miranda rights and defendant signed a Miranda waiver form, which the trial court admitted into evidence. Wolek testified that defendant told him that he had been with Feliciano at a relative's house shortly before the traffic stop. Defendant told Wolek that he was driving Feliciano's car because Feliciano was experiencing a medical issue that prevented Feliciano from driving. Defendant also told Wolek that he did not immediately stop the car because he was scared and that the drugs were not his. But defendant admitted to Wolek that the plastic bags found on his person belonged to him, as well as the jacket and the baton.

¶ 11 On April 5, 2016, Wolek and Detective Craig Tucker, a narcotics investigator, went back to the parking lot where the traffic stop had occurred and they measured the distance between the location of defendant's Civic and the nearby Elgin Community Church, using a measuring wheel. The distance measured was less than 1000 feet.

¶ 12 The police video of the traffic stop was played in court. The trial court admitted into evidence all the items found at the scene of the traffic stop and a certified copy of defendant's driver's abstract, which showed that defendant's license was revoked at the time of his arrest.

¶ 13 Schroeder testified as follows. Schroeder assisted Wolek with the traffic stop of defendant. Schroeder approached the passenger side of defendant's car, had Feliciano exit the car, and, upon searching him, discovered five "fake" $20 bills in Feliciano's possession. After Schroeder completed his search of Feliciano, Feliciano started to shake and convulse. Feliciano told Schroeder that he had epilepsy and that he had not taken his medication. Feliciano was taken to the Elgin police station and then to the hospital.

¶ 14 After Feliciano left the scene, Schroeder looked inside the passenger side of the Civic and saw "a medium-size clear plastic knotted bag" on the floor. The bag contained "various clear plastic knotted bags containing an off-white rocky substance." Schroeder took the bag to the police station and gave it to Tucker. Wolek had given Schroeder a jacket, a collapsible baton, and a medium Ziploc bag, all of which Schroeder also gave to Tucker.

¶ 15 Feliciano testified as follows. On the day of the incident, he drove the Civic, picked defendant up in the Civic, and asked defendant to drive, explaining that he was not feeling well. Allan Fox owned the Civic. When defendant saw the police lights, he handed Feliciano "what looked like a bag of drugs * * * [i]t was like a sandwich, sandwich-like bag, and there was a bunch of other little baggies inside of it. It was clear plastic." Feliciano did not take the bag of drugs. Feliciano had two retail theft cases pending—one in McHenry County and the other in Kane County—in which he pleaded guilty and had been placed in treatment alternative court. Feliciano had not been offered anything from the prosecutor in this case for his testimony.

¶ 16 Tucker testified as follows. On the night in question, he received from Schroeder "one baggy that contained another plastic baggy that contained several little plastic baggy corners, each filled with suspect[ed] cocaine." There were 20 little plastic bag corners. Tucker weighed all 20 plastic bag corners; they weighed 15.2 grams. Tucker field-tested the contents, placed the evidence into an envelope, sealed it, and brought it to a locked evidence storage room. He followed the same procedure for the other evidence he received from Schroeder.

¶ 17 Illinois State Police forensic scientist Martin Skelcy testified as follows. He received 20 hand-tied small plastic bags from officer Jim Malone. These 20 bags, which contained a rock-like substance, weighed 9.9 grams. The contents of 15 of the bags weighed 6.1 grams. Skelcy did not weigh the contents of the remaining five bags. After testing the contents of each of the 15 bags, Skelcy concluded that the bags contained cocaine.

¶ 18 Over defendant's objection, James Bisceglie of the ...