The People Of The State Of Ill. v. Hammonds

• Court: United States Appellate Court of Illinois
• Citation: 339 Ill.Dec. 809,399 Ill.App.3d 927,927 N.E.2d 649
• Docket Number: No. 1-08-0194.,1-08-0194.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Terrell HAMMONDS, Defendant-Appellant.
• Decision Date: 15 May 2010

399 Ill.App.3d 927
927 N.E.2d 649
339 Ill.Dec. 809

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Terrell HAMMONDS, Defendant-Appellant.

No. 1-08-0194.

Appellate Court of Illinois,
First District, Sixth Division.

Feb. 11, 2010.
Rehearing Denied May 15, 2010.

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Michael J. Pelletier, State Appellate Defender, (Patricia Unsinn, Deputy Defender, and Scott Main, Assistant Appellate Defender, of Counsel) for Appellant.

Anita Alvarez, State's Attorney, County of Cook (James E. Fitzgerald, Douglas Harvath, Joseph Alexander, Assistant State's Attorneys, of Counsel) for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

On August 29, 2007, defendant Terrell Hammonds was convicted by a jury of delivering a controlled substance (720 ILCS 570/401(d) (West 2006)). On December 10, 2007, the trial court sentenced defendant to seven years imprisonment and denied defendant's posttrial motion. On this direct appeal, defendant seeks a reversal of his conviction and a new trial, due to five alleged errors. Defendant claims that the trial court erred:(1) by giving the third paragraph of Illinois Pattern Jury Instructions, Criminal, No. 17.05A (4th ed.) (hereinafter IPI Criminal 4th) which specified that a drug “ delivery” did not require a transfer of money or consideration; (2) by allowing police officers to testify, over defendant's hearsay objection, about radio messages received from other officers, who were also trial witnesses; (3) by failing to ask potential jurors whether they understood and accepted certain principles of law listed in

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Illinois Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (4) by refusing to rule, until after defendant testified, on defendant's motion in limine concerning the admissibility of defendant's prior convictions for impeachment purposes. Defendant also claims that (5) prosecutorial misconduct during the State's rebuttal closing denied defendant a fair trial. After considering carefully each of defendant's claimed errors, we find that a new trial is not warranted.BACKGROUND

Defendant's two-day trial commenced on August 28, 2007 with jury selection, and culminated in a guilty verdict on August 29, 2007.

Voir Dire

Following the swearing-in of the pool of potential jurors, the trial court informed the venire of certain principles of law, namely: (1) that a defendant is presumed innocent; (2) that he is not required to offer any evidence in his own behalf; and (3) that he must be proved guilty beyond a reasonable doubt. However, the trial court did not inform the potential jurors of a fourth principle of law, namely (4) that a defendant's failure to testify in his own behalf cannot be held against him. The trial court also failed to ask the prospective jurors whether they understood and accepted these four principles of law.

With respect to these principles of law, the trial court stated, in pertinent part:

“Under the law, a defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during the deliberation on a verdict. It is not overcome from [sic] unless from all of the evidence in this you are convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilty of the defendant beyond a reasonable doubt. And this burden remains on the State throughout the case. The defendant is not required to prove his innocence nor is he required to present any evidence on his own behalf. He may rely on the presumption of innocence. You are the judges of the facts in this case * * *.”

The trial court did later inform the jury of all four principles of law during the jury instructions after the close of evidence.Evidence at Trial

After jury selection and opening statements, the State presented its evidence. Defendant did not testify or call witnesses. On this appeal, defendant did not claim that the evidence at trial was insufficient to convict him. Nonetheless, we will still describe in detail the State's evidence at trial, since we will need to decide whether this evidence was overwhelming and whether the effect of any alleged error was rendered harmless by overwhelming evidence.

At trial, the State called four witnesses in its case-in-chief. Three witnesses were Chicago police officers, Marco DiFranco, Boonserm Srisuth, and Detective William Smith, who were members of the undercover narcotics investigation team that arrested defendant. The remaining witness was Paula Bosco Szum, a chemist with the Illinois State Police Crime Laboratory, who analyzed the evidence recovered after defendant's arrest.

The first officer to testify, Officer Srisuth, stated that he was part of a nine-person narcotics investigation team. In the late morning of November 11, 2006, he and other members of his team arrived in the neighborhood of Lamon Avenue and Thomas Street in Chicago, Illinois. Srisuth

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explained that, when his team anticipates making a controlled buy, the duties of the officers are divided among an “enforcement officer, [a] surveillance officer and [a] buy officer.” On this particular day, Srisuth was the buy officer; and thus he wore civilian clothes and drove an unmarked vehicle. The second witness, Officer DiFranco, was the surveillance officer; and Detective Smith, one of the enforcement officers, was the fourth witness to testify at trial.

Officer Srisuth testified that he responded to a radio transmission from the surveillance officer, Officer DiFranco. At that point in the testimony, defendant objected on hearsay grounds. Over defendant's hearsay objection, Srisuth testified that he heard DiFranco state over the radio that “ a male black wearing a black skull cap, black jacket, black sweatpants with a white stripe and white gym shoes * * * was selling drugs” in the vicinity of 1057 North Lamon Avenue.

Officer Srisuth testified that, at approximately 11:14 a.m., he drove northbound on Lamon Avenue toward 105 North Lamon Avenue and observed defendant, who was the only person present in the area matching DiFranco's description. Srisuth parked his unmarked vehicle on Lamon Avenue, and defendant approached Srisuth's passenger window. Srisuth asked defendant if he had any “rocks,” which Srisuth testified was “street terminology for crack cocaine.” Srisuth testified that defendant asked him how many he wanted, to which Srisuth responded that he wanted only one. Srisuth testified that defendant removed a small, green-tinted zip-lock bag from his mouth. Srisuth testified that the bag contained a white, rock-like substance. Defendant gave Srisuth the bag, and Srisuth gave defendant a pre-recorded ten dollar bill.

Officer Srisuth testified that, after the transaction was complete, he left the area and radioed the other officers that “a positive narcotics transaction” had occurred. He also provided the other officers with a physical description of defendant, including defendant's clothing and location. Srisuth testified that the surveillance officer later instructed him to drive by the vicinity of 1031 North Lamon. At that location, Srisuth observed defendant “being detained by the enforcement officer” and Srisuth identified defendant as “the individual that sold [Srisuth] the narcotics.”

The State's second witness was Officer DiFranco, the surveillance officer. He testified that, at approximately 11:10 a.m. on November 11, 2006, he established a surveillance position on North Lamon Avenue where he had observed defendant loitering on the corner. DiFranco explained that as a surveillance officer, it was his responsibility to “monitor” the location and to keep the team informed. DiFranco testified that, on the day in question, he had “converted [himself] into a utility worker” and that he was driving an undercover vehicle. From his surveillance position, which was approximately “two-and-a-half car lengths” from defendant, he observed an unknown male approach defendant and hold a brief conversation with him. Defendant then pulled a small item from his mouth and gave it to the unknown male. DiFranco observed the unknown male hand defendant money and leave the area. Based on his experience, DiFranco suspected that a narcotics sale had just occurred.

Officer DiFranco testified that he radioed the other officers on his team and informed them of what he had observed. Specifically, DiFranco testified that in his radio transmission, he described defendant as “a male black wearing a black skull cap, a black jacket, black sweatpants with a white stripe, and white gym shoes” and he

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informed the team of defendant's location. DiFranco testified that, in response to this radio call, Officer Srisuth arrived in “less than a minute.” DiFranco observed Srisuth approach in an unmarked vehicle, which Srisuth “curbed” near 1057 Lamon Avenue. At that moment, DiFranco was positioned approximately “two-and-a-half car lengths” behind Srisuth's vehicle, and there were no other vehicles between his and Srisuth's vehicle. He testified that nothing blocked his view of either Officer Srisuth or defendant.

Officer DiFranco testified that, after Srisuth stopped his vehicle, DiFranco observed defendant approach the passenger side of the undercover vehicle. DiFranco observed defendant and Srisuth hold a brief conversation, after which defendant retrieved a small item from his mouth and handed it to the buy officer. DiFranco testified that, during the exchange, a “late model Grand Am * * * curbed right in front of [DiFranco] and behind the [buy] officer.” DiFranco then observed Srisuth's vehicle drive away, and he informed his team by radio that a narcotics transaction had occurred.

Officer DiFranco testified that he “stayed in constant surveillance” of defendant after Srisuth's vehicle departed....