People v. Thomas

• Decision Date: 25 March 2019
• Docket Number: No. 2-16-0767,2-16-0767
• Citation: 127 N.E.3d 1080,2019 IL App (2d) 160767,431 Ill.Dec. 547
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jeffrey L. THOMAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (2d) 160767

127 N.E.3d 1080

431 Ill.Dec. 547

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

v.Jeffrey L. THOMAS, Defendant-Appellant.

No. 2-16-0767

Appellate Court of Illinois, Second District.

Opinion filed March 25, 2019

James E. Chadd and Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, and Richard Dvorak, of Dvorak Law Offices, LLC, of Willowbrook, for appellant.

Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman and Steven J. Lupa, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE ZENOFFdelivered the judgment of the court, with opinion.

¶ 1Defendant, Jeffrey L. Thomas, appeals his convictions of delivery of a controlled substance ( 720 ILCS 570/401(c)(2)(West 2016) and possession of a controlled substance with intent to deliver (id.§ 01(d)(i).Defendant contends that the trial court plainly erred in proceeding to a bench trial when he orally waived a jury trial but refused to sign a written waiver and that the State failed to prove him guilty beyond a reasonable doubt of possession with intent to deliver.We affirm.

¶ 2 I. BACKGROUND

¶ 3 In October 2015, defendant was charged with delivery of a controlled substance in that he delivered 13.73 grams of cocaine to an undercover officer.Defendant was also charged with possession with intent to deliver because, during the same incident, nine individually wrapped bags of cocaine were found in defendant's sock, one of which contained 0.138 grams of cocaine.

¶ 4 Before trial, on April 28, 2016, defense counsel told the court that he had not specifically discussed a jury waiver with defendant.On May 20, 2016, counsel told the court that defendant had indicated that he wanted a bench trial but that he would decide after the court ruled on certain motions.On May 24, 2016, after the court ruled on the motions, counsel told the court that defendant wanted a bench trial but that he was very reluctant to sign a written waiver.Counsel asked the court to give defendant an oral admonishment.

¶ 5The court stated that it found defendant's refusal to sign a written waiver concerning and the following colloquy occurred:

"THE COURT: * * *

Let me ask you this, Mr. Thomas: Why don't you want to sign it?

THE DEFENDANT: Because I ain't pick no jury, [Y]our Honor.

THE COURT: Because you don't want a jury trial?

THE DEFENDANT: No, I don't want a jury trial.

THE COURT: But the form that you would be asking [sic ] to sign would be saying exactly that, that you're giving up the right to a jury trial.

THE DEFENDANT: Yes, but I still don't want to sign nothing, because I don't know what type of paper, don't understand what type of paper they're giving me and stuff like that.So I don't want to sign it.I will say orally I'm requesting a bench trial, instead of signing a piece of paper.

THE COURT: Has anyone ever shown you the piece of paper?

THE DEFENDANT: No.

THE COURT: I'm going to pass it, so you can take a look at it, and then we'll recall the case and discuss it.Thank you."

A recess was held, after which the following colloquy occurred:

"THE COURT: All right.Mr. Thomas, did you have a chance to look at that form that we were talking about?

THE DEFENDANT: Yes.

THE COURT: And do you still have concerns about signing it?

THE DEFENDANT: Yes.

THE COURT: I need you to—well, I'm going to go in a slightly different order.Let me, first of all, do this: [defense counsel] has informed me, and you have seen him say it, that you wish to wave [sic ] or give up your right to a jury trial and have a trial in front of a judge, or in this case me.

Is that correct?

THE DEFENDANT: Yes.

THE COURT: Let me talk to you about what a jury is.A jury trial is a trial where 12 members from the community are selected with the assistance of [defense counsel].They would have the [sic ] listen to the evidence, and they would have to, unanimously, all 12 of them agree, that you're guilty beyond a reasonable doubt before a finding of guilty could enter.

Do you understand that that is what a jury trial is?

THE DEFENDANT: Yes.

THE COURT: Do you understand that—now, let me tell you that—let me talk about what a trial is.A trial is where 12 members from the community—strike that.

A trial is where the State calls witnesses.You can question those witnesses.You could call your own witnesses or testify on your own behalf if you chose, but you wouldn't have to.And that is the evidence that this jury, these 12 people, will hear and base their decision on.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you understand that if you give up that right to a jury, instead it's the Court, or in this case me, who hears the evidence and decides whether there's enough evidence to prove you guilty beyond a reasonable doubt[?]

THE DEFENDANT: Yes.

THE COURT: And is that what you wish to do, give up the right to 12 citizens and instead have the Court decide?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about giving up that right?

THE DEFENDANT: No.

THE COURT: So may I see the jury waiver form?On this jury waiver form, it says that you have been advised of your right to a trial by jury, and that you want to waive or give up that right to a jury.

Is that what you want to do?

THE DEFENDANT: Yes.

THE COURT: And you seem intelligent, and you seem to understand what I'm saying.So I'm still—I'm a little confused.I don't want to coerce you or force you, but I want to make sure for the record.Can you tell me again why it is you do not want to sign the paper that says what you're saying orally?

THE DEFENDANT: Because, [Y]our Honor, my name got up on the statement.And I don't even know how my name got up on the statement when I ain't sign no statement.So I'm not going to sign no jury waiver, and I ain't signing no statement.

THE COURT: So your concern is, you don't want to give your signature to them, because you say you never gave it to them in the first place?

THE DEFENDANT: Yes.

THE COURT: So your—I don't know anything about the case or the evidence.But your concern is based upon the evidence of something you say didn't happen?

THE DEFENDANT: Yes.

THE COURT: Well, as I've indicated, I think that this signing of a jury waiver is a safeguard, it's not required under the law.And I believe that the Defendant has been admonished and he does understand.So at this point I will accept the Defendant's waiver of the trial by jury, and I think his explanation for why he didn't want to sign the waiver is spread of record, and the Court is satisfied."

On June 7, 2016, a bench trial was held.The court did not further admonish defendant about his jury waiver, and defendant never executed a written waiver.

¶ 6 Evidence at trial showed that, in August 2015, Special Agent Wojtek Kowal received information that defendant was a suspected cocaine dealer.Kowal communicated with defendant by telephone on several occasions over a few weeks.On September 3, 2015, defendant delivered multiple plastic bags of cocaine to Kowal.

¶ 7 On October 5, 2015, Kowal sent defendant a text message advising that he would be coming back later that weekend.On October 6, 2015, Kowal asked defendant about meeting on a Thursday, and defendant asked Kowal what he was looking for.Kowal replied that he wanted to "pick up more" and inquired whether defendant could handle that.Kowal added that he had "approximately 15 to 16 to play with," which meant $ 1500 or $ 1600.Defendant asked Kowal if he"was the police" and said that he was checking for his own safety.Kowal denied being a police officer.Kowal spoke to defendant again on October 7, 2015, and they arranged to meet the next day.

¶ 8 On October 8, 2015, Kowal called defendant, reminded him that he had $ 1500 to $ 1600 to spend, and asked if they could meet that evening.Defendant told Kowal that he could supply 60 small bags of cocaine for each $ 500 that Kowal spent.They later agreed that defendant would supply 200 bags for $ 1600.Kowal met defendant at a gas station while other officers monitored the conversation.When Kowal arrived, defendant exited the gas station carrying a popcorn bag.Defendant gave the bag to Kowal, who found a substance in it that later tested positive for 13.73 grams of cocaine.Defendant was arrested, and a search recovered a cell phone and nine knotted bags hidden in defendant's sock.One of the bags tested positive for 0.138 grams of cocaine.

¶ 9 Special Agent Greg Pirtle interviewed defendant at the police station.Defendant admitted that he traveled to Du Page County three times in 2015 to sell cocaine.He said that he had one customer in Du Page County and six total.

¶ 10The State also introduced evidence about defendant's sale of cocaine to Kowal on September 3, 2015, as other-crimes evidence to prove his intent to deliver the cocaine that was found in his sock.Kowal testified that, on September 3, 2015, he met defendant at the same gas station.Defendant approached Kowal's vehicle carrying a grocery bag and a cell phone.Defendant got into Kowal's vehicle, leaned forward, and appeared to remove something from either his sock or his shoe.He then handed Kowal two plastic bags that later tested positive for cocaine.Kowal gave defendant $ 200, and defendant told Kowal to call him anytime if Kowal needed more.

¶ 11The trial court found defendant guilty on both counts.In regard to defendant's intent to deliver the cocaine found in his sock, the court found the other-crimes evidence significant.The court found that, while Kowal was not sure whether defendant had the cocaine in his sock or in his shoe on September 3, 2015, it was clearly in the same area as was the cocaine on October 8, 2015.The court also remarked that it did not think that people who use cocaine typically store it in their socks.The court further found that, even if cocaine might be stored in a sock for personal use, the packaging here, being similar to the packaging on September 3, 2015, indicated defendant's intent to deliver.

¶ 12Defendant's motion for a new...