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1-99-1144

First District
December 17, 2001

PRESIDING JUSTICE COHEN delivered the opinion of the court:

On April 28, 1998, following a jury trial, defendant VictorChavez was convicted in the circuit court of Cook County ofpossessing 2,002 grams of a controlled substance (cocaine) withintent to deliver and sentenced to 17 years' imprisonment. 720ILCS 570/401(a)(2)(D)(West 1998). Defendant raises five mainissues on appeal. Defendant first challenges the sufficiency ofthe evidence supporting his conviction. Defendant next allegesprosecutorial misconduct in the form of mischaracterization ofevidence, improper argument and inflammatory comments. Defendantalso alleges the circuit court erred in denying his motion toquash the arrest and suppress evidence. Defendant furtheralleges the circuit court erred in allowing expert testimony onthe street value of the cocaine. Finally, defendant alleges thecircuit court erred in denying his motion to disclose theidentity of the State's confidential informant.

We hold that: (1) the evidence was sufficient to supportdefendant's conviction; (2) any misconduct on the part of theprosecution was de minimus and harmless; and (3) the circuitcourt did not err in its other rulings. We affirm.

BACKGROUND

On January 25, 1996, the Chicago police department receivedinformation from a known confidential informant (CI) that a"Latino male" named Victor, who weighed 180 pounds and was 5 feet10 inches tall, would drive a Ford automobile to a tavern on 30thStreet and Kostner Avenue around 8 p.m. that same evening to pickup two kilograms of cocaine. The police officer who received theinformation from the CI knew that his team had receivedinformation from the same CI on nine prior occasions, eight ofwhich resulted in the seizure of contraband. The policedepartment maintained a record, or "package," of all priordealings with each of its CIs, containing information about theinformant's identity and degree of involvement in each case.

Acting on the information obtained from the CI, two teams ofpolice officers began surveillance of the tavern around 7:30 p.m. that same evening. At approximately 7:50 p.m., the first team ofpolice officers observed defendant park a Ford Taurus at 2958Kostner, exit the car, cross the street and enter the tavern. The officers did not enter the tavern nor could they observe anyactivity inside the tavern. Approximately five minutes later,defendant exited the tavern carrying a brown envelope wrapped inthe shape of a brick under his left arm. The officers observedthe defendant return to the Ford Taurus and place the package inthe backseat on the passenger side. The first team of officersradioed to the second team of officers, parked on 31st andKostner, that the defendant was leaving the tavern and theyneeded assistance from the second team in stopping defendant.

Defendant drove one block south on Kostner before the secondteam of officers stopped defendant's car by blocking his pathwith their police cruiser. The first team of officers, parked on30th and Kostner, then drove their cruiser to block defendant'scar from behind. Officer Ramirez approached the driver's sidewindow from the second team's cruiser and asked defendant inSpanish for identification. Defendant responded that his namewas Victor Chavez and produced a driver's license. After Ramireztold Officer Alfred Pappalito, who had approached the car fromthe rear on the passenger side, that the driver's name wasVictor, Pappalito opened the rear passenger side door and removedthe brown envelope package. Pappalito attempted to open thetightly wrapped package with his hands but failed. WhenPappalito opened the package with a knife from his policecruiser, he found a white powdery substance inside the package. The officers placed defendant under arrest, advised him of hisrights and transported him and the package to police headquarterson 3540 South Normal.

The package and the white powdery substance were inventoriedat police headquarters and sent to the Illinois State Policecrime lab for testing. The lab determined that the packagecontained two separately wrapped kilograms of cocaine with atotal combined weight of 2,002 grams. The first kilogram ofcocaine had a purity of 87% and the second kilogram had a purityof 86%.

Following a jury trial, defendant was convicted ofpossessing a controlled substance with intent to deliver andsentenced to 17 years' imprisonment. 720 ILCS 570/401(a)(2)(D)(West 1998). This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence

The standard of review of a challenge to the sufficiency ofthe evidence supporting a criminal conviction is whether, afterviewing the evidence in the light most favorable to theprosecution, any reasonable fact finder could have found theessential elements of the crime beyond a reasonable doubt. People v. Schmalz, 194 Ill. 2d 75, 80 (2000). To upset acriminal conviction, defendant "must show that the evidence[educed at trial] is so improbable or unsatisfactory that itcreates a reasonable doubt as to the defendant's guilt." Peoplev. Jones, 295 Ill. App. 3d 444, 452 (1998).

The charge of possession of a controlled substance withintent to deliver consists of three elements: (1) the defendanthad knowledge of the presence of the controlled substance; (2)the controlled substance was within the immediate control orpossession of the defendant; and (3) the defendant had intent todeliver the controlled substance. Jones, 295 Ill. App. 3d at452. These elements can be proved by circumstantial evidence. People v. Clemons, 277 Ill. App. 3d 911, 923 (1996). The elementof knowledge is, by nature, difficult to establish by directevidence. People v. Butler, 304 Ill. App. 3d 750, 755 (1999). Thus, knowledge may be established by evidence of acts,declarations or conduct of the defendant from which it may beinferred that the defendant knew of the existence of thenarcotics. People v. Nwosu, 289 Ill. App. 3d 487, 494 (1997),appeal denied, 183 Ill. 2d 587 (1999); Butler, 304 Ill. App. 3dat 755; People v. Rivas, 302 Ill. App. 3d 421, 430 (1998); Peoplev. Sanchez, 292 Ill. App. 3d 763, 771 (1997); Clemons, 277 Ill.App. 3d at 923.

Direct proof of intent to deliver narcotics is equally as elusive to prove as direct proof of knowledge; thus, intent todeliver is usually proved through circumstantial evidence. People v. Robinson, 167 Ill. 2d 397, 408 (1995). Our supremecourt has outlined seven relevant factors that support aninference of an intent to deliver: (1) whether the quantity ofcontrolled substance possessed is too large to be reasonablyviewed as being for personal consumption; (2) the degree ofpurity of the controlled substance; (3) the possession of anyweapons, (4) possession of large amounts of cash; (5) possessionof police scanners, beepers, or cellular phones; (6) possessionof drug paraphernalia; and (7) the manner in which the controlledsubstance is packaged. Robinson, 167 Ill. 2d at 408. We aremindful of protecting the interests of justice and examine thepropriety of inferring intent to deliver on a case-by-case basis. When deciding whether to uphold a conviction, we note that as thequantity of controlled substance in the defendant's possessionincreases, our need for additional circumstantial evidence ofintent to deliver decreases. Robinson, 167 Ill. 2d at 412-13.

Defendant concedes in his reply brief that "the core factsare not largely disputed; the fact of physical possession [is]not in issue." As possession of the cocaine is not disputed, wefocus our analysis only on whether defendant had knowledge of thepresence of the cocaine and whether he had the intent to deliverthe cocaine.

Defendant argues that no evidence was presented at trial tosupport an inference that he knew the tightly wrapped packagecontained cocaine. Defendant analogizes his case to threenarcotics cases in which convictions were reversed because theprosecution failed to prove the element of knowledge.

In two of the cases defendant cites, the narcotics werecontained in packages delivered to the accused through theestablished channels of mail delivery. People v. Ackerman, 2Ill. App. 3d 903 (1971); People v. Hodogbey, 306 Ill. App. 3d 555(1999). In Ackerman, the court stated that "[a]ll the evidenceshows is that defendant received a package in the course ofnormal mail delivery and placed the package under his arm forabout five seconds." Ackerman, 2 Ill. App. 3d at 905-06. InHodogbey, the court stated the evidence proved only that afterthe accused accepted a package delivery addressed to him, he didnot open or hide the package after receipt, and when approachedby the officers, he did not flee or resist them. Hodogbey, 306Ill. App. 3d at 561. The facts presented in both Ackerman andHodogbey were insufficient to support an inference of knowledgethat the respective packages contained narcotics. Ackerman, 2Ill. App. 3d at 906; Hodogbey, 306 Ill. App. 3d at 560.

Defendant attempts to convince this court that driving to atavern located on 31st and Kostner to obtain a tightly wrappedbrown paper package on Thursday, January 25, 1996, at 7:50 p.m.is analogous to receiving an addressed package delivered throughnormal mail delivery channels during regularly accepted businesshours (as in Hodogbey and Ackerman). We are not persuaded. Therecord is devoid of any indication that the package defendantobtained at the tavern was received as part of a normal maildelivery.

Defendant also attempts to draw an analogy between his caseand People v. Binns, 27 Ill. App. 3d 978 (1975), in which thecourt reversed a conviction for possession of marijuana becausethe State failed to prove that Binns knew the sealed envelopesfound in her apartment contained marijuana. In Binns, the courtheard testimony from a neighbor's 15-year-old son who stated thathe had planted the envelopes and called the police to Binns' homeas revenge for informing the teenager's mother of his theft fromBinns' home. 27 Ill. App. 3d at 980. Once again, defendant'sanalogy fails.

"[T]he mere presence of illegal drugs on premises which areunder the control of the defendant gives rise to an inference ofknowledge and possession sufficient to sustain a convictionabsent other factors which might create a reasonable doubt as tothe defendant's guilt." People v. Smith, 191 Ill. 2d 408, 413(2000), citing People v. Nettles, 23 Ill. 2d 306, 308-09 (1961),cert. denied, 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939 (1962). Defendant's reliance on Binns is misplaced. The Binns court hadcredible and irrefutable testimony from a vengeful teenager thathe had placed the marijuana in Binns' home and called the police.Binns, 27 Ill. App. 3d at 980. The teenager's testimony wassufficient to refute the inference that Binns knew the envelopescontained marijuana. Here, there is nothing in the recordanalogous to the testimony in Binns to refute the inference ofdefendant's knowledge from his undisputed and exclusive controlof the cocaine bricks in the car.

When drugs are found in a car, it is control of the vehiclerather than ownership of the vehicle which is pertinent to proofof control of the area in which drugs are found. People v.Whalen, 145 Ill. App. 3d 125, 130-31 (1986). Defendant'sundisputed control of the car, as he drove away from the tavern,gives rise to an inference of defendant's knowledge of thecocaine sufficient to sustain his conviction. There are no otherfacts in the record which could create a reasonable doubt as todefendant's guilt. Smith, 191 Ill. 2d at 413. Accordingly, wefind that the jury was entitled to infer that defendant knew thetightly bound, two kilogram, brick-like package in his possessioncontained cocaine.

We next turn our review to whether defendant intended todeliver the cocaine. Our supreme court has stated that "thequantity of controlled substance alone can be sufficient evidenceto prove an intent to deliver beyond a reasonable doubt" "onlywhere the amount of controlled substance could not reasonably beviewed as designed for personal consumption." Robinson, 167 Ill.2d at 410-11. Defendant stipulated at trial that the packagecontained 2,002 grams of cocaine which ranged in purity between86% and 87%. At trial, Officer Montgomery of the Chicago policedepartment testified that in 1996 a typical user would purchasetwo-tenths of a gram of powder cocaine with a purity level ofbetween 12% to 15% for personal use. Officer Montgomery alsotestified that large amounts of cocaine are brought into Chicagoin a brick-like form weighing approximately 1,000 grams each. The manner in which the defendant's cocaine was packaged fits thedescription of drug-trafficking practices recounted by veterannarcotics Officer Montgomery. Given the large amount of cocaineinvolved, our need for additional circumstantial evidence ofintent to deliver abates. Robinson, 167 Ill. 2d at 412-13. Considering the gross weight of powder cocaine taken fromdefendant in addition to the cocaine's 86% to 87% purity, as wellas the cocaine's packaging, we require no further circumstantialevidence of intent to deliver. We are certain that the twokilogram bricks of cocaine were not for defendant's personal usebut for delivery. Accordingly, we find that the jury wasentitled to infer that defendant intended to deliver the cocainebricks.

For the reasons stated above, we find that when viewing theevidence in the light most favorable to the prosecution, anyreasonable fact finder could have found the essential elements ofthe crime beyond a reasonable doubt. Schmalz, 194 Ill. 2d at 80. Defendant's challenge to the sufficiency of the evidencesupporting his conviction fails.

II. Prosecutorial Misconduct

This court will not reverse a trial court's determinationconcerning the propriety of a prosecutor's closing remarks absentan abuse of discretion. People v. Hudson, 157 Ill. 2d 401, 441(1993). It is improper for a prosecutor to misstate the evidenceor argue facts not in evidence. People v. Albanese, 104 Ill. 2d504, 519 (1984). However, our supreme court has stated that"'[a]s a general rule, reversal and remandment are unnecessarywhere the trial court has sustained a defense objection, therebycuring the potential for improper influence from the comment,especially where the jury is instructed that closing argument ofthe attorneys should not be considered as evidence in the case." People v. Emerson, 189 Ill. 2d 436, 488 (2000), quoting People v.Enis, 163 Ill. 2d 367, 407 (1994). "Improper remarks will notmerit reversal unless they result in substantial prejudice to thedefendant, considering the context of the language used, itsrelationship to the evidence, and its effect on the defendant'srights to a fair and impartial trial. [Citations.]" People v.Smith, 141 Ill. 2d 40, 60-61 (1990).

While prosecutors are afforded wide latitude in closingargument and may argue reasonable inferences from the facts inevidence (People v. Williams, 192 Ill. 2d 548, 573 (2000)), "itis improper for the prosecutor to do or say anything in argumentthe only effect of which will be to inflame the passion or arousethe prejudice of the jury against the defendant, without throwingany light on the question for decision" (Smith, 141 Ill. 2d at60). It is incumbent upon the prosecution under general ethicalprinciples to "'refrain from argument which would divert the juryfrom its duty to decide the case on the evidence, by injectingissues broader than the guilt or innocence of the accused underthe controlling law, or by making predictions of the consequencesof the jury's verdict.'" People v. Martin, 29 Ill. App. 3d 825,829. (1975), quoting 1 ABA Standards for Criminal Justice