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No. 3--02--0649

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Defendant and LaCrisha Davis were charged with possessingwith the intent to deliver more than 5,000 grams of a substancecontaining cannabis. Attorney Lawrence Dujsik entered anappearance on behalf of both defendant and Davis.

Dujsik subsequently moved to sever the cases for trial. Healso filed a motion to withdraw from defendant's case, citing aconflict of interest in representing both defendant and Davis. The court granted Dujsik's motion to withdraw from representingdefendant, and appointed a public defender to represent him.

Defendant's new attorney then filed a written motion tosever the cases for trial. In the motion, defendant asserted hisdefense was that he did not participate in the commission of thecrime. Defendant noted that Davis had made a statementindicating that the cannabis belonged to him. Defendant assertedthat if Davis did not testify at the joint trial, he would bedenied his right to cross-examine her regarding her priorstatement. Defendant sought severance of the trials, stating hebelieved that Davis' defense was antagonistic toward his defense.

At the hearing on the motion, the State informed the courtthat it would not introduce Davis' prior statement that thecannabis belonged to defendant. The State ensured the court thatthe witnesses would be instructed to make no mention of thestatement implicating defendant. The court then denieddefendant's motion to sever.

The State subsequently filed a motion seeking to introduceevidence of a pending criminal matter in Cook County, Illinois. In that case, the State alleged that defendant and Davispossessed 5,000 or more grams of cannabis with the intent todeliver. The court granted the State's motion, allowingintroduction of the pending criminal matter.

The next day, Dujsik, who continued to represent defendantin the Cook County matter, informed the court that he had filed amotion to suppress evidence and statements in the pending CookCounty case. In that motion, defendant claimed that the evidencewas obtained in violation of his constitutional rights. Dujsikstated that the court had not yet ruled on the motion tosuppress. The trial court reasserted its ruling allowing theState to introduce evidence with regard to the Cook County case.

At trial, Detective David Julian testified that he and otherpolice officers went to an apartment in Steger, Illinois, toexecute an arrest warrant that had been issued for defendant in anarcotics case. Julian observed defendant leave the apartmentbuilding and followed him as he drove to a grocery store. WhenJulian attempted to stop defendant, he fled on foot toward theapartment building. Julian chased defendant, but lost sight ofhim as he entered the building.

Julian proceeded to an apartment rented by Davis and knockedon the door. Davis allowed the officers to enter the apartmentto search for defendant. When he entered the master bedroom,Julian saw two Ziploc freezer bags containing a substance thatappeared to be cannabis, an electronic scale and smaller Ziplocbags located at the foot of the bed. There was a strawberrydecal on some of the packages that contained the smaller Ziplocbags.

Julian then spoke with Davis, and she signed a writtenconsent to search the apartment. In the search, Julian found 71bags of what appeared to be cannabis inside a small refrigeratorlocated in the master bedroom closet. He also found $600 in cashin a dresser drawer, and two envelopes that had been mailed todefendant at an address in Chicago Heights.

At some point during the search, Davis received a telephonecall. Davis informed the police officers that defendant was onthe phone, and that he wanted to speak with them. Juliantestified that he overheard the conversation in which defendantstated he owned the cannabis. Defendant also stated that hewould surrender to the police. Julian testified that herecognized defendant's voice from prior contacts.

Julian then testified concerning the pending Cook Countymatter. He stated that he and other officers executed a searchwarrant at defendant's apartment in Chicago Heights. When heentered the apartment, defendant and Davis were sleeping. Theywere arrested and placed in the living room of the apartment.

Police officers found three "bricks" of what appeared to becannabis inside the refrigerator. They also found $84,000 incash, a scale and Ziploc bags containing what appeared to becannabis. There was a red fruit decal on Ziploc bags found inone of the bedrooms. Defendant stated that the cannabis and cashbelonged to him, and that he sold marijuana as a source ofincome. Davis stated defendant had been selling cannabis foryears, he hid most of the money from her, and the apartment oftencontained cannabis packaged in bags that sold for ten dollars onthe street.

On cross-examination, Julian testified that defendant's namewas not on the lease of the apartment in Steger, but he found 50to 60 pairs of men's pants, 50 men's shirts and several pairs ofshoes in the master bedroom of the apartment. In response toquestioning by Davis' attorney, Julian testified that Davisstated the cannabis belonged to defendant. The State objected tothis testimony.

Police Officer David Basile testified that during the searchof the Steger apartment he spoke with a person on the telephonewho identified himself as defendant. Defendant stated "[t]hat'smy dope. Please don't mess with my children." Defendant thenstated that he would turn himself in to the police. Basiletestified that Julian also listened to this telephoneconversation.

Davis testified that she had lived at the apartment inSteger with defendant and their three children. She informed thepolice that the cannabis was not hers, and that any cannabisfound in the apartment must have belonged to defendant. Defendant brought the refrigerator in which the cannabis wasfound into the apartment the night before the search. Davis didnot know the refrigerator contained cannabis. On cross-examination, Davis stated the lease, bills and a subscription fordelivery of a newspaper to the apartment were in her name. Defendant's name did not appear on any of those items.

Forensic scientist Pamela Wilson testified that she testedthe substance found in the apartment in Steger. One of thepackages weighed 862.5 grams and another one weighed 4,717.1grams. Wilson testified that she first analyzed the substance bylooking at it with a microscope. She stated that cannabis can beidentified by the presence of "cover hair" and "little whiteclaw-like hairs" called cystolytes on the leaf. Additionally,she conducted a Duquenois Levine test on the substance. Wilsontestified that a substance tests positive for cannabis when twopurple layers of liquid are produced in the Duquenois Levinetest, and the two separate types of hairs are found on the leafof the substance. Based on these two tests, Wilson testifiedthat the substance contained cannabis.

Forensic scientist Alan Greep testified that he analyzed thesubstance recovered in the apartment in Chicago Heights. Inanalyzing the substance, Greep performed the microscopic test inwhich he looked for cystolic hairs and cover hairs on the plantmaterial. Greep then performed the Duquenois Levine test. Hetestified that cannabis produces a purple layer of liquid over apink layer. Based on these two tests, Greep testified thesubstance he analyzed tested positive for cannabis.

In his closing argument, the prosecutor compared defendant'sdefense to that of an octopus, stating:

"when the octopus is challenged or frightened or threatenedit pulls back and releases an inky fluid in the water tocloud its predator and slips away. There was plenty of inkyfluid spilled across this courtroom during the cross-examination and during a point attempted to be made by thedefendant."

The prosecutor later argued that "[j]ust as the octopus hasno real defense against its predators and has to release the inkyfluid, they don't have a defense against this case either."

In rebuttal, another prosecutor stated a trial was like ahighway to a destination which is a guilty or not guilty verdict. The prosecutor went on to state:

"that road is a very bumpy road. And there is a lot of dustbeing thrown up on that road. And all that dust, you know,their hopeless helpless efforts to try to punch holes intothe State's case."

The jury found defendant guilty of unlawful possession ofcannabis with intent to deliver. At sentencing, the trial courtnoted that defendant had a lengthy criminal record and hadreceived probation on several prior occasions. The court alsofound defendant was more culpable than Davis in this offense. Based on these circumstances, the trial court sentenced defendantto 25 years' imprisonment.

On appeal, defendant first contends that the State failed toprove him guilty beyond a reasonable doubt because the evidencewas not sufficient to show that the substance seized from theapartment was cannabis. In support of this argument, defendantclaims that the Duquenois Levine test is not sufficientlyreliable to prove the substance was cannabis. He also assertsthat the expert witnesses could not agree on the correct colorsto look for in determining whether the substance was cannabiswhen performing that test.

When assessing reasonable doubt, we view the evidence in alight most favorable to the prosecution and determine whether anyrational trier of fact could have found the elements of the crimeproven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d237, 478 N.E.2d 267 (1985). We do not reassess the witnesses'credibility or reweigh their testimony, since these functionsbelong to the trier of fact. People v. Jimerson, 127 Ill. 2d 12,535 N.E.2d 889 (1989). A reversal is warranted only if theevidence is so improbable or unsatisfactory that it leaves areasonable doubt regarding the defendant's guilt. People v.Flowers, 306 Ill. App. 3d 259, 714 N.E.2d 577 (1999).

In a controlled substance case, the State is required topresent sufficient evidence to show that the substance is in facta controlled substance. People v. Hagberg, 192 Ill. 2d 29, 733N.E.2d 1271 (2000) (citing People v. Park, 72 Ill. 2d 203, 380N.E.2d 795 (1978)). Our supreme court has noted that microscopicexamination combined with the Duquenois Levine test is highlyreliable, and sufficient to accurately determine whether aparticular substance contains cannabis. Park, 72 Ill. 2d 203,380 N.E.2d 795.

Forensic scientist Pamela Wilson tested the substance foundin the apartment in Steger using microscopic examination and theDuquenois Levine test. Based on these tests, Wilson found thatthe substance contained cannabis. Under Park, this evidence issufficient to prove that the substance seized in this casecontained cannabis.

The fact that the experts offered slightly differingtestimony as to the colors of liquid that are present whentesting for cannabis simply goes to the credibility of theiropinions that the substance contained cannabis. As noted, wewill not reassess the credibility of witnesses on review becausethat is the function of the jury. Viewed in the light mostfavorable to the prosecution, the evidence was sufficient for arational jury to conclude that the substance contained cannabis. Accordingly, defendant's claim in this regard must fail.

Defendant also contends that the trial court erred indenying his motion to sever his trial from Davis' trial.

Generally, defendants jointly indicted may be tried togetherunless fairness to one of the defendants requires a separatetrial. People v. Lee, 87 Ill. 2d 182, 429 N.E.2d 461 (1981). Adefendant moving for severance must state how he would beprejudiced by a joint trial. People v. Harris, 123 Ill. 2d 113,526 N.E.2d 335 (1988). Mere apprehension of prejudice is notenough. Harris, 123 Ill. 2d 113, 526 N.E.2d 335 (1988). Thetrial court's decision to deny a motion to sever will not bereversed absent an abuse of discretion. People v. Daugherty, 102Ill. 2d 533, 468 N.E.2d 969 (1984).

Courts have recognized two independent sources of potentialprejudice that are each likely to require separate trials forjointly indicted defendants. People v. Bean, 109 Ill. 2d 80, 485N.E.2d 349 (1985). The first is interference with theconstitutionally protected right to confront witnesses. Bean,109 Ill. 2d 80, 485 N.E.2d 349 (1985). This occurs when acodefendant's out-of-court statements that implicate thedefendant are admitted at trial. Bean, 109 Ill. 2d 80, 485N.E.2d 349; People v. Clark, 17 Ill. 2d 486, 162 N.E.2d 413(1959). A severance should be granted in these circumstancesunless the prosecution declares that the codefendant's admissionsor confessions will not be offered at trial, or if offered, thatall reference to the moving defendant will be eliminated from thestatements. Clark, 17 Ill. 2d 486, 162 N.E.2d 413; People v.McVay, 98 Ill. App. 3d 708, 424 N.E.2d 922 (1981).

The second source of potential prejudice occurs when thecodefendants' defenses are so antagonistic that one of themcannot receive a fair trial jointly with the others. Bean, 109Ill. 2d 80, 485 N.E.2d 349; Daugherty, 102 Ill. 2d 533, 468N.E.2d 969. Allegations that a codefendant's theory of the caseis inconsistent or contradictory to the defendant's is notsufficient to warrant severance. People v. Rodriguez, 289 Ill.App. 3d 223, 680 N.E.2d 757 (1997). Defenses are antagonisticwhen each codefendant implicates the other in the offense, andprofesses his own innocence. People v. Adams, 176 Ill. App. 3d197, 530 N.E.2d 1155 (1988).

In this case, the State declared at the hearing on themotion to sever that it would not use any part of Davis' priorstatement that implicated defendant. The State assured the courtthat the witnesses would be instructed to avoid mentioning thisstatement. This was sufficient to resolve the concern regardingdefendant's right to confront witnesses.

During the trial, Davis' statement implicating defendant wasmentioned by Detective Julian in response to cross-examination byDavis' attorney. However, a reviewing court cannot decide themerits of a motion for severance based on subsequent events thatoccurred during the trial. Bean, 109 Ill. 2d 80, 485 N.E.2d 349;Daugherty, 102 Ill. 2d 533, 468 N.E.2d 969. Here, the Stateassured the trial court that the statement implicating defendantwould not be used at trial. We also note that the State objectedto the testimony offered by Julian on cross-examination. Giventhe facts that existed at the time of the hearing, we concludethat the trial court did not abuse its discretion in denyingdefendant's motion to sever.

Defendant also contends that his defense was antagonistic toDavis' defense. According to his motion to sever, defendant'sdefense was that he did not participate in the commission of thecrime. Davis' defense was that she did not possess the cannabisor know it was present. These defenses were not directlyantagonistic as the codefendants were not implicating each other. Instead, both defendant and Davis claimed that they did notpossess the cannabis. This was not a situation where eachcodefendant implicated the other in the offense while professingtheir own innocence. See Adams, 176 Ill. App. 3d 197, 530 N.E.2d1155. Accordingly, the defenses were not so antagonistic thatone of the codefendants could not receive a fair trial.

Finally, defendant contends that his trial should have beensevered from Davis' because Dujsik continued to represent him inthe Cook County case while accusing him of being guilty of theoffense in this case. There was no showing that defendant wasprejudiced by Dujsik's representation of Davis in this case. Therefore, we conclude that the trial court was not required togrant severance on this ground. In sum, we conclude that thetrial court did not abuse its discretion in denying defendant'smotion to sever.

Next, defendant argues that the trial court erred inadmitting evidence with regard to the Chicago Heights arrest andcharges. Defendant contends that this evidence was notadmissible as evidence of other crimes. Defendant also assertsthat the trial court erred in allowing admission of the evidencewhile a motion to suppress was pending in the Cook County case.

Generally, evidence is not admissible in a criminalprosecution against an accused if it is seized in violation ofhis fourth amendment rights. United States v. Calandra, 414 U.S.338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); People v. Dowery, 62Ill. 2d 200, 340 N.E.2d 529 (1975). One of the purposes of theexclusionary rule is the protection of a defendant's fourthamendment rights against unreasonable searches and seizures. Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254(1975). The rule is intended to deter unlawful conduct by policeofficers, and prohibits the use at trial of evidence obtained inviolation of a defendant's constitutional rights. Brown, 422U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; People v. Villagomez,313 Ill. App. 3d 799, 730 N.E.2d 1173 (2000).

In determining whether the exclusionary rule should beextended to certain proceedings, courts employ a balancing testto limit application of the rule to areas where its remedialpurposes are most effectively served. Calandra, 414 U.S. 338, 38L. Ed. 2d 561, 94 S. Ct. 613. Specifically, courts must balancethe benefits of applying the exclusionary rule against the coststo "the societal interest of law enforcement." United States v.Janis, 428 U.S. 433, 448, 49 L. Ed. 2d 1046, 1058, 96 S. Ct.3021, 3029 (1976); McCullough v. Knight, 293 Ill. App. 3d 591,688 N.E.2d 1186 (1997).

Here, the same police officers were investigating controlledsubstance cases against defendant in both Will and Cook Counties. If the exclusionary rule were limited to only the case in whichthe contested evidence was seized, that evidence would beadmissible in other prosecutions despite any constitutionalviolation in obtaining the evidence. Therefore, the deterrenteffect of the exclusionary rule would be reduced in thesecircumstances. In fact, the State would receive a benefit fromthe constitutional violation because it could bolster the othercases against the defendant by admission of the other crimesevidence.

We note that, in a factually similar case, a federaldistrict court allowed a prior State charge to be admittedagainst a defendant in a federal prosecution despite questions asto the constitutionality of the seizure of the evidence. Peoplev. Hill, 898 F.2d 72 (7th Cir. 1990). The Seventh Circuit Courtof Appeals held that, with regard to evidence of other crimesseized by state officers, federal district courts must make anindependent inquiry concerning the constitutionality of theseizure before admitting the evidence. Hill, 898 F.2d 72 (citingElkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S.Ct. 1437 (1960)). The court did not address the issue of whetherthe other crimes evidence would necessarily be excluded if it wasseized in an unconstitutional search. However, the necessity ofconducting an inquiry into the constitutionality of the seizureindicates that there would be some consequence for aconstitutional violation. Accordingly, Hill provides additionalsupport for our finding that the exclusionary rule should applyin these circumstances. But see United States v. Knight, 185 F.Supp. 65 (D.C. 2002) (and cases cited therein) (exclusionary ruledoes not necessarily apply in these circumstances).

In sum, we conclude that the deterrent effect of theexclusionary rule would be greatly diminished if police officerswere allowed to obtain evidence in violation of defendant'sconstitutional rights in the Cook County case, and then introducethe evidence in the related Will County case as prior criminalconduct. The Will County circuit court was required to eithermake an independent determination of the admissibility of thisevidence, or continue the matter pending a resolution of thisissue by the Cook County circuit court. We conclude that thetrial court erred in admitting this evidence without adetermination as to the constitutionality of the seizure.

The State asserts that admission of the evidence seized inthe Cook County case was harmless error.

As a general proposition, an error in the admission ofevidence does not automatically lead to the reversal of aconviction and may be analyzed using the harmless error rule. People v. Hobson, 169 Ill. App. 3d 485, 525 N.E.2d 895 (1988). The test for harmless constitutional error is whether the errorwas harmless beyond a reasonable doubt. People v. Wallace, 331Ill. App. 3d 822, 772 N.E.2d 785 (2002). An error may be deemedharmless beyond a reasonable doubt if there is overwhelmingevidence to support the conviction. Wallace, 331 Ill. App. 3d822, 772 N.E.2d 785.

In this case, the evidence of defendant's guilt wasoverwhelming. Defendant fled when police officers attempted tostop him. See People v. Ransom, 319 Ill. App. 3d 915, 746 N.E.2d1262 (2001) (flight may be considered by a jury as evidence ofguilt). In a search of the apartment, police officers found alarge amount of cannabis, an electronic scale and small Ziplocbags. Additionally, the officers found evidence that defendanthad been living in the apartment. Most importantly, defendantcalled Davis while the officers were still present at theapartment. Defendant informed the officers that the cannabisbelonged to him, and stated he would surrender to the police. Julian recognized defendant's voice from prior contacts. Basedon these facts, we find that the evidence supporting theconviction was overwhelming. Therefore, any error in admittingthe other crimes evidence was harmless.

Defendant also contends that he was deprived of a fair trialbecause the prosecutors disparaged his attorney by comparing himto an octopus releasing an inky fluid, and by accusing him ofthrowing dust on the road to justice. Defendant concedes that hedid not properly preserve these claims for review, but statesthat they should be reviewed as plain error.

Generally, a claim is waived on appeal if it was not raisedin the trial court through both a contemporaneous objection and awritten posttrial motion. People v. Enoch, 122 Ill. 2d 176, 522N.E.2d 1124 (1988). Plain error affecting a substantial right isan exception to the waiver rule. 134 Ill. 2d R. 615(a). Application of the plain error doctrine is limited tocircumstances where the evidence is closely balanced, or theerror is of such magnitude that the defendant was denied a fairtrial. People v. Nieves, 192 Ill. 2d 487, 737 N.E.2d 150 (2000).

As previously discussed, the evidence in this case was notclosely balanced. Moreover, the complained-of comments, whenviewed in the context and totality of the closing arguments, werebrief and isolated. See People v. Terrell, 185 Ill. 2d 467, 708N.E.2d 309 (1998) (brief and isolated comments were not soinflammatory as to constitute reversible error); People v.Cloutier, 178 Ill. 2d 141, 687 N.E.2d 930 (1997). We find thatthe comments in this case were not so prejudicial as to denydefendant a fair trial. Therefore, any improper comments werenot plain error.

Finally, defendant contends that his sentence is excessivewhen compared to the six-year sentence imposed on Davis.

Fundamental fairness is not violated simply because onedefendant is sentenced to a greater term than another. People v.Grisset, 288 Ill. App. 3d 620, 681 N.E.2d 1010 (1997). Adisparity in sentencing may be justified by differences in therelative degree of involvement by the codefendants in theoffense, or any differences in their criminal histories,character or potential for rehabilitation. Grisset, 288 Ill.App. 3d 620, 681 N.E.2d 1010 (1997). A trial court's sentencewill not be reversed absent an abuse of discretion. People v.Streit, 142 Ill. 2d 13, 566 N.E.2d 1351 (1991).

At the sentencing hearing, the trial court noted thatdefendant had a lengthy drug-related criminal record while Davisdid not have any prior criminal history. Defendant had receivedprobation on his prior drug offenses. The court also noted thatDavis had received very good grades in both high school andcollege, indicating a potential for rehabilitation. Finally, thecourt found that defendant was much more culpable than Davis inthis offense. Based on these considerations, we find that thedisparity in the sentences was justified. The trial court didnot abuse its discretion in sentencing defendant.

For the foregoing reasons, the judgment of the circuit courtof Will County is affirmed.

Affirmed.

MCDADE and SLATER, JJ., concur.