People v. Young

• Decision Date: 30 September 1991
• Docket Number: No. 1-88-1729,1-88-1729
• Citation: 220 Ill.App.3d 488,581 N.E.2d 241,163 Ill.Dec. 290
• Parties: , 163 Ill.Dec. 290 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick YOUNG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 241

581 N.E.2d 241

220 Ill.App.3d 488, 163 Ill.Dec. 290

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Derrick YOUNG, Defendant-Appellant.

No. 1-88-1729.

Appellate Court of Illinois First District, First Division.

Sept. 30, 1991.

Law Office of Stuart V. Goldberg, Chicago (Robert F. Nemzin, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., Chicago (Inge Fryklund, James E. Fitzgerald and Kevin T. Noonan, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice MANNING delivered the opinion of the court:

Defendant, Derrick Young, appeals his conviction for possession of a controlled substance with intent to deliver (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(b)(2)), and raises the following issues for review: (1) whether the indictment should have been dismissed because of prosecutorial misconduct in the presentation of evidence to the grand jury; (2) whether defense counsel's failure to seek dismissal of the indictment on the grounds of prosecutorial misconduct constitutes ineffective assistance of counsel; (3) whether he was substantially prejudiced because of preindictment delay; (4) whether he was denied due process of law because of the State's failure to inform the defense prior to trial that the suspect controlled substance had been destroyed prior to the indictment; (5) whether he was denied effective assistance of counsel where defense counsel failed to conduct an independent inspection and chemical analysis of the suspect controlled substances and thereafter stipulated to the results of the State's chemical tests; and (6) whether the State proved him guilty beyond a reasonable doubt of the offense of possession with intent to deliver more than 10 but not more than 30 grams of a controlled substance containing cocaine.

It is uncontroverted that pursuant to a search warrant of a single family residence on September 25, 1986, the police recovered from the basement a brown paper bag containing three plastic bags and 58 white paper packets the State claimed was cocaine and two small handguns. In an upstairs bedroom where defendant, his girlfriend and son were present, the police recovered an Illinois Bell telephone bill in the defendant's name.

Defendant was arrested and released on bond after a hearing. Defendant demanded a trial on October 22, 1986; however, on that date the court granted a continuance until December 10, 1986. On December 10, the State acknowledged that the lab report on the suspect controlled substance was unavailable and requested a continuance. The preliminary hearing court denied the State's request for a continuance, but granted them leave to nolle prosequi.

On January 30, 1987, the lab report was completed and on July 1, 1987, defendant was indicted by the grand jury. Thereafter, defendant filed a motion to dismiss the indictment which was denied by the trial court on November 20, 1987 following lengthy arguments on the ground of preindictment delay. On December 31, 1987 counsel for defendant filed a motion to inspect the physical evidence and to conduct an independent analysis of the substances; however, he later withdrew the request.

During the bench trial which began in February, 1988, Chicago police officers testified about the details of the search of defendant's home and the items that were recovered. Officer Wozniak stated that when confronted with the contraband, defendant admitted to him that all of the items belonged to the defendant and that no one else on the premises was involved.

The parties stipulated to the testimony of Chicago police chemist Moka that on January 30, 1987, she analyzed the contents of the brown paper bag by chemically examining the contents of one of the three plastic bags and one of the 58 paper packets. In her expert opinion, an amount of 1.86 grams tested positive for the presence of cocaine and the weight of the entire amount of the substance received by her was 16.87 grams. It also was stipulated to by the parties that the entire amount of the substance confiscated from defendant's house had been incinerated by the police on April 21, 1987 pursuant to a Chicago police department procedure to "[d]ispose of (the substances) according to law." The trial court then denied defendant's motion for a directed verdict.

In his own defense, defendant denied knowledge and possession of the controlled substance and stated that he never told the police that it was his. Following closing arguments and the sentencing hearing, defendant was sentenced to eight years imprisonment.

Defendant's first contention on appeal asserts error by the trial court in denying his motion to dismiss the indictment. Defendant argues that he suffered prejudice because of prosecutorial misconduct in presenting false and misleading evidence to the grand jury, because of defense counsel's failure to seek dismissal on the basis of the prosecution's misconduct and because of preindictment delay.

It is well settled that trial courts are authorized to dismiss an indictment where there is a clear denial of due process, even though this is not a statutorily authorized ground for dismissal. (People v. Lawson (1977), 67 Ill.2d 449, 455, 10 Ill.Dec. 478, 367 N.E.2d 1244.) In ascertaining due process violations on a motion to dismiss an indictment, a court must proceed with restraint and dismiss the indictment only when the violation is clear and has been found with certainty. (People v. Shaw (1985), 133 Ill.App.3d 391, 88 Ill.Dec. 534, 478 N.E.2d 1142.) A defendant who seeks dismissal of the indictment bears a heavy burden of showing actual and substantial prejudice to him. (People v. Haag (1979), 80 Ill.App.3d 135, 140, 35 Ill.Dec. 450, 399 N.E.2d 284.) Defendant here contends that the suspect controlled substances which formed the basis of the July 1, 1987 indictment were destroyed by the police on April 21, 1987 and that prior to the destruction, only a portion thereof, 1.86 grams, had ever tested positive for the presence of cocaine. Thus, he urges that in presenting its evidence to the grand jury, the prosecution knowingly and willingly misrepresented that the chemical analysis conducted by the chemist determined the substances to be positive for cocaine in the amount of 16.87 grams. Moreover, the prosecution failed to inform the grand jury that the substances had been previously destroyed and were unavailable for use as evidence at trial.

Defendant asserts that he was prejudiced because the return of the indictment compelled him to defend against adverse evidence without ever having any opportunity for meaningful confrontation of the evidence by way of an independent inspection and chemical analysis. He further urges that the State's failure to inform defense prior to trial that the substance had been destroyed denied him due process of law where he had filed a motion for discovery requesting a list of physical evidence that the State intended to use at trial. He continues that because the State suppressed evidence in the face of a defense request for production, he was deprived of an opportunity to defend his case on the basis of reasonable doubt as to possession of more than 10 grams and to seek plea negotiations with respect to a lesser offense. With respect to further error, defendant claims that defense counsel's failure to seek dismissal of the indictment on the basis of prosecutorial misconduct constitutes ineffective assistance of counsel.

We have reviewed the grand jury transcription and the record below and find that the presentation of the evidence to the grand jury did not deprive defendant of his rights of due process. Officer Wozniak testified before the grand jury on the charge against defendant for the offense of possession of a controlled substance with intent to deliver; cocaine, more than 10 grams but less than 30 grams, a Class 1 felony. The Officer stated that a brown paper bag containing 58 "pony pak papers" and three small plastic bags, all containing white powder, suspect cocaine, and two small caliber guns were recovered from the basement of the location where defendant was arrested and the substances were sent to the crime lab. When asked by the prosecutor: "Did you find that chemist Moka, Chicago Police Department, analyzed those substances on January 30th, 1987 [sic] found those substances to be positive for cocaine in the amount of 16.87 grams," Officer Wozniak stated: "That is true." The grand jury then returned a true bill against defendant. In determining whether to dismiss an indictment, a court will not consider the adequacy or sufficiency of the evidence. (Costello v. United States (1956), 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397), except a challenge on the basis of wholly inadequate or incompetent evidence. (People v. Consago (1988), 170 Ill.App.3d 982, 120 Ill.Dec. 807, 524 N.E.2d 989.) Our courts have determined that it is unnecessary that evidence be presented before the grand jury for each element of the offense charged in the indictment (People v. Shaw, 133 Ill.App.3d 391, 88 Ill.Dec. 534, 478 N.E.2d 1142) as long as there is some evidence relative to the charge (People v. Rodgers (1982), 92 Ill.2d 283, 290, 65 Ill.Dec. 929, 442 N.E.2d 240) and the indictment is valid on its face. (People v. Schulz (1987), 154 Ill.App.3d 358, 107 Ill.Dec. 288, 506 N.E.2d 1343.) Guilt or innocence is to be determined at trial. People v. Creque (1978), 72 Ill.2d 515, 22 Ill.Dec. 403, 382 N.E.2d 793.

When the sufficiency of an indictment has been challenged at trial, the standard of review is whether the indictment states the nature of the offense and adequately sets forth each of the elements of that offense. (People v. Clutts (1976), 43 Ill.App.3d 366, 371, 2 Ill.Dec. 80, 356 N.E.2d 1367.) The record discloses that defendant here was charged with possession of more than 10 and less than 30 grams of cocaine. The record also discloses that the police chemist conducted a random...