Fourth Division
June 30, 1998
No. 1-97-1564
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
LARRY CARTER, ) HONORABLE
) VINCENT BENTIVENGA,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
A jury found Larry Carter (Carter) guilty of three varieties
of cocaine possession. It turns out the charge of possession of
a controlled substance with intent to deliver within 1,000 feet
of a school is fatally defective. Both sides agree. That
conviction must be reversed.
The issue we are left with when we review the remaining
possession charges is what to do about the State's evidence and
comments concerning the presence of schoolchildren and prior
police familiarity with the defendant.
We conclude the conviction for possession of a controlled
substance with intent to deliver should be reversed. However, we
affirm the conviction for possession of a controlled substance
and remand that cause for resentencing.
FACTS
On August 7, 1996, a two-count information was filed against
Larry Carter. In count I Carter was charged with possession of a
controlled substance (cocaine) with intent to deliver "within
1000 feet of the real property comprising a school." In count
II, Carter was charged with possession of a controlled substance
(the same cocaine as in count I) with intent to deliver.
The case was tried before a jury.
Chicago police officer Steven Bocconcelli testified he was a
tactical officer for the 23rd District. On May 9, 1996, he was
assigned to monitor a corner at the intersection of Ainslie and
Kenmore Avenues. At about 8:30 p.m. that evening Bocconcelli
began surveillance from an alleyway located about 150 feet away
from the intersection. Using binoculars, the officer observed
the activity occurring on the corner. Officers Timothy Glen and
Nick Spencer were positioned nearby in an unmarked police car,
providing back-up for Officer Bocconcelli.
Officer Bocconcelli said he saw a man wearing a green shirt
and dark-colored jeans standing on the corner. This man, later
identified as defendant Larry Carter, was approached by a young
black man. After a brief conversation, the man handed Carter
what appeared to be a single bill of U.S. currency. Carter then
reached into a plastic bag he was holding in his left hand and
gave the man a small plastic packet.
Shortly after the first man walked away, a second young man
approached Carter and the same type of exchange took place.
Officer Bocconcelli testified, based on his experience as a
police officer, he believed Carter was selling drugs.
Officer Bocconcelli radioed his two back-up officers to pick
him up. The officers drove to the alleyway. Officer Bocconcelli
got in the car. All three officers drove to the corner of
Ainslie and Kenmore. They got out of the car.
Officer Bocconcelli and his partners approached the
defendant. Bocconcelli testified:
"As we approached Officer Glenn [sic] says, that is Larry
Carter. *** As I approached, I said, Larry, I just saw you do
two drug deals."
Officers Glen and Spencer also testified at trial. Officer
Glen confirmed that he had been on duty the evening of May 9,
1996, and assigned to act as back-up for a surveillance being
performed by Officer Bocconcelli. Officer Glen said he
recognized the man "as Larry Carter" as soon as he drove up to
the corner of Ainslie and Kenmore. He told Officer Bocconcelli
that the man's name was Larry Carter: "I let him know that was
Larry Carter."
Officer Glen also testified that when Bocconcelli told
Carter he was being watched, Carter dropped a plastic bag and
took off running. Officer Glen said he ran after Carter,
apprehended him, and placed him under arrest. A search incident
to Carter's arrest revealed Carter was wearing a pager. Carter
also had $34 in U.S. currency, consisting of one $20 bill, one
$10 bill and four $1 bills.
Both Officers Glen and Spencer testified regarding the steps
they took to inventory the items recovered from Carter, including
the plastic bag retrieved by Officer Bocconcelli. They said the
plastic bag contained 13 smaller plastic packets which held a
white, rock-like substance believed to be crack cocaine.
It was stipulated that a forensic chemist examined the 13
packets and the substance contained in them. The substance in
the packets had a total weight of .91 grams. Three of the 13
packets were randomly-selected for chemical testing. The
substance in these packets tested positive for the presence of
cocaine.
Two other witnesses testified in regard to the enhancement
factor -- the principal of St. Thomas of Canterbury School and an
investigator for the Cook County State's Attorney's office.
The principal, Christine Boyd, testified that St. Thomas
of Canterbury School is located at 4827 N. Kenmore and the John
T. McCutcheon Branch School is located across the street from St.
Thomas School.
Principal Boyd said her school accepts students from age
three for preschool through eighth grade. About 272 children
attend the school. The school was in session on May 9, 1996.
Using photographs showing the intersection of Ainslie and Kenmore
and the area near the school, Principal Boyd was able to describe
the proximity of the intersection to her school.
On cross-examination, she said she could not identify Larry
Carter as someone who sold drugs near the school. On redirect
examination, over objection, she told about the type of activity
she would see on the street during morning hours:
"Activity is the selling of drugs, using children
under the ages of 12 on bicycles up and down our street
with older people as the main sellers that station
themselves at the corner of Ainslie and Kenmore."
Neither Principal Boyd nor any other witness testified
children were present in the area when the defendant was
arrested, at about 8:30 p.m.
Investigator Sullivan testified he measured the distance
from 4859 N. Kenmore (a location near the intersection of Ainslie
and Kenmore) to three area schools, including St. Thomas and
McCutcheon. He found all three schools were within 1,000 feet of
4859 N. Kenmore. A diagram he had prepared, which showed the
schools in relation to 4859 N. Kenmore, was admitted in evidence.
Sullivan testified he had taken the photographs which
Principal Boyd used in her testimony. Sullivan identified the
photos and said they were a true and accurate depiction of the
area near the intersection of Ainslie and Kenmore.
The defendant offered no evidence.
The jury found Carter guilty of both counts in the
information and of the lesser-included offense of possession of a
controlled substance. The State had offered instructions and
verdict forms on the lesser-included offense during the
instructions conference. The convictions were merged and Carter
was sentenced to a single term of five years imprisonment.
DECISION
1. The within 1,000 feet of a school count
Before, during, and after trial the defense contended the
school distance count (I) was defective for failure to allege the
possession of cocaine took place "on any public way." 725 ILCS
570/407(b)(2) (West 1996).
The State acknowledged it had to prove the "public way"
element, but denied it had to allege it. The trial judge agreed
with the State. Defendant's motion to dismiss the indictment was
denied.
After this trial, we decided People v. Jones, 288 Ill. App.
3d 293, 681 N.E.2d 537 (1997). There, we held the "on any public
way" element was essential to the offense and failure to allege
it was fatal to the charge.
Now, the State, because of Jones, agrees count I is void.
We so hold.
2. Comments and evidence concerning schoolchildren
There can be no question that Larry Carter was within 1,000
feet of a school when his activities were observed by police
officers. That fact never was contested by the defense.
Larry Carter was seen by the officers at about 8:30 p.m.
No one said a child was anywhere near Carter or a school at that
time.
Yet, from opening statement to rebuttal closing argument,
the prosecution made this a case about schools and
schoolchildren.
In its opening statement, the prosecution said:
"This is a very simple case, it is about a drug
dealer and elementary school children. It is about an
individual who makes his trade on a street line[d] with
elementary school children ***"
The State's first witness was Christine Boyd, principal of
the St. Thomas school. On direct examination, she said 272
children attend her school. The children ranged from
preschoolers three years of age to eighthgraders. Slightly to
the north is the McCutcheon school, which, she said, serves
children in kindergarten through second grade.
During direct examination, Ms. Boyd identified several State
photographs. People's Exhibit 1 is an eight-by-ten color photo
of the St. Thomas school. It shows about 15 children standing on
the steps of the school. Other than showing the school exists,
an undisputed fact, the photo has no apparent probative value.
Defense counsel did not object to admission of the photo.
He did object to Ms. Boyd's testimony on redirect examination.
She told of seeing drug dealers using children under 12 on
bicycles for the selling of drugs. She told of patrolling nearby
streets in the early afternoon and prohibiting nighttime
activities at the school to ensure the safety of the school
children.
In rebuttal closing argument the prosecution, over
objection, elaborated:
"Children don't get to go to their school, they
don't get to play at their school at night, they don't
get to have PTA meetings, they don't get to live like
civilized citizens because of the defendant because
people like the defendant have invaded their neighborhood."
Again, over objection, using Ms. Boyd's testimony, the
prosecution drew a picture of Carter that extended far beyond
the charges against him:
"Because individuals such as Larry Carter are out
there selling drugs. He, as you heard from Christine
Boyd, and his counterpart are out there all day running
up and down in bicycles, standing out in traffic as bold
and as big as life, they have no respect for the law,
they have no respect for the kids who are trying to get
an education at this school, they have no respect for this
Court."
A prosecutor may dwell on the evil of crime and exhort the
jury to fearlessly administer the law. People v. Hairston, 46
Ill. 2d 348, 375, 263 N.E.2d 840 (1970). But where statements
made in closing argument serve no purpose except to inflame the
jury, the statements constitute error. People v. Tiller, 94 Ill.
2d 303, 321, 447 N.E.2d 174 (1982) (error for State's Attorney to
characterize three murders as a holocaust, similar to the Nazi
holocaust depicted in a television show broadcast the night
before).
Here, it appears to us the prosecutor's purpose was to
inflame the passion or arouse the prejudice of the jury against
the defendant "without shedding any light on the paramount
question presented to the jury, to-wit, its decision." People v.
Lurry, 77 Ill. App. 3d 108, 114, 395 N.E.2d 1234 (1979) (error to
make argument based on racial overtones and racial problems);
People v. Blackman, 44 Ill. App. 3d 137, 140, 358 N.E.2d 50
(1976) (improper appeal to juror fears for prosecutor to argue
that jurors, if they acquit, should avoid the area of 81st and
Western and should not let Ruth beat them back to their parked
cars). Also see, People v. Threadgill, 166 Ill. App. 3d 643, 520
N.E.2d 86 (1988) (error to repeatedly say the jurors' decision
would indicate whether they supported the police who were out
protecting them).
There was no evidence in this case that this defendant
possessed or sold drugs anywhere in the vicinity of children.
Nor was there any evidence that he was part of a band of drug
dealers plying their trade in the neighborhood. The prosecutor's
remarks served no purpose other than inflaming the jury. People
v. Rogers, 187 Ill. App. 3d 126, 138, 543 N.E.2d 300 (1989)
(error for prosecutor to say, without evidentiary support: "I
guess we are all supposed to hope and believe that drug dealers
who sell drugs to grade school and high school kids are just
pretending.").
In People v. Watkins, 220 Ill. App. 3d 201, 210, 581 N.E.2d
145 (1991), where the defendant was charged with possession of a
controlled substance, we said we do not condone a prosecutor
arguing: "Ladies and Gentlemen, how can we ever face our
children, how can we ever tell them to say no to drugs, if we let
somebody like Lonnie Watkins back out on the street?"
The argument in this case resembles the one made in People v.
Ford, 113 Ill. App. 3d 659, 447 N.E.2d 564 (1983), where the
defendant was charged with unlawful delivery of cannabis. The
prosecutor argued:
"*** because if we're talking about sympathies and
prejudice when we're talking about the elicit [sic]
business of selling drugs, then I would suggest that
the Defense look to the poor, innocent, susceptible
children in our community who are tempted and forced by
peer pressures ***." Ford, 113 Ill. App. 3d at 662.
The Court said:
"It is clear that the prosecutor was making an
inflammatory appeal to the fears of the jury, and such
remarks cannot be condoned." Ford, 113 Ill. App. 3d at
662.
We do not consider the prosecution's final argument remarks
in isolation. They were part of a theme heard and seen
throughout the trial, not the single comment we permitted in
People v. Peterson, 248 Ill. App. 3d 28, 618 N.E.2d 388 (1993).
The State proved distance from the school through its
investigator and the diagram he prepared. Distance was an
enhancing factor and had little or nothing to do with the
defendant's behavior on May 9, 1996, at Ainslie and Kenmore. See
Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117
S. Ct. 644 (1997). While the extensive comments and evidence
concerning schools and children would represent prosecutorial
excess in the trial of count I, they have no arguable relevance
to count II or the lesser-included possession charge.
The trial judge made no effort to confine schools and
school children evidence to count I. True, he was not asked to
do so, but there are times when a trial judge's uninvited action
can cure unfair prejudice. For example, in People v. Marshall,
165 Ill. App. 3d 968, 978, 521 N.E.2d 538 (1988), the trial judge
sua sponte struck a prosecutor's comment that the defendant
intended to deliver the cocaine to the neighborhood, addicts,
children, and other members of the community. Potential error
was avoided.
We do not deprecate the potential dangers of drug traffic in
the vicinity of children. Principal Boyd's concern for her
students is real and justified. Because the matter is
emotionally charged, however, care must be taken to abide by
principles of relevance, lest improper considerations direct the
conduct of the jury.
2. Police familiarity with Larry Carter
Another theme sounded by the State was police familiarity
with Larry Carter before the day he was arrested.
In opening, the prosecutor said:
"Officer Glen is going to tell you that he knows the
defendant, he knows him by name, that is, Larry
Carter."
The promise was kept. On direct examination of Officer
Glen:
"Q: *** did you recognize the defendant?
A: Yes, I recognized him as Larry Carter.
Q: Had you seen the defendant previous to that day?
A: Yes.
***
Q: As you approached, did you say anything to
any of the other officers in the vehicle?
A: Yes. I let them know that was Larry Carter."
Glen had testified that his duties included "narcotics
surveillance, gang surveillance."
The point was made again when Officer Bocconcelli testified:
"A: My partners, they approached also. As we approached,
Officer Glenn (sic) says that is Larry Carter.
Q: What did you do if anything?
A: As I approached, I said, Larry I just saw you do two
deals."
The obvious inference is that Carter had been engaged in
prior illicit drug or gang activity, an implication that has been
criticized by our supreme court. People v. Stover, 89 Ill. 2d
189, 196, 432 N.E.2d 262 (1982). Even where a prosecutor does
not argue prior familiarity with a defendant is evidence of
criminal conduct, the implication may be conveyed by testimony
and "is better avoided, unless somehow relevant." People v.
Bryant, 113 Ill. 2d 497, 514, 499 N.E.2d 413 (1986).
We have examined the record to determine whether there was
any relevant purpose for repeated references to a narcotics and
gang surveillance officer knowing Larry Carter by name. We find
none.
Contrary to the State's contention, there never was an issue
concerning whether Larry Carter was the man observed by Officer
Bocconcelli. Defense counsel's cross-examination of the officers
and his final argument were directed at the police account of
what Carter was doing, not at his presence. In final argument
defense counsel's only point was that there was not enough
evidence Larry Carter passed or possessed cocaine.
The police familiarity evidence should not have been
admitted.
3. The impact of the improper comments and evidence
The State contends Carter failed to preserve for review the
issues he now raises. It is true that defense objections were
hit and miss during the trial, although, as we have pointed out,
defense counsel did periodically object to Principal Boyd's
testimony, testimony and comments about Officer Glen's
familiarity with Carter, and final argument concerning
schoolchildren. It also is true that defense counsel made no
effort to preserve any of these errors in his post-trial motion,
a blatant disregard of his client's interests.
Ordinarily, failure to present an issue in a post-trial
motion results in a procedural default. People v. Enoch, 122
Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). We are persuaded,
however, that a plain error analysis is appropriate in this case.
We believe the errors we have discussed, as they apply to count
II and the lesser-included possession offense, are worrisome
enough to invoke the plain error exception to the waiver rule.
134 Ill. 2d R. 615(a); People v. Brandon, 162 Ill. 2d 450, 457-
58, 643 N.E.2d 712 (1994). Substantial rights are affected.
People v. Threadgill, 166 Ill. App. 3d at 650; People v. Lurry,
In addition, our supreme court has observed that "the waiver
rule is a rule of administrative convenience rather than
jurisdiction, and the goals of obtaining a just result and
maintaining a sound body of precedent may sometimes override
considerations of waiver." People v. Hicks, 181 Ill. 2d 541,
545, 693 N.E.2d 373 (1998).
Our decision to address the merits of the defendant's
contentions requires us to examine the admissible evidence heard
and seen by the jury, then determine whether the errors we have
identified could have made any difference.
There is no litmus test that allows us to scientifically
measure the impact of impropriety on a jury. At times, when we
engage in a weighing process, we conclude the errors did not
prejudice the defendant. Reversal, then, is not required. See
People v. Davis, 285 Ill. App. 3d 1039, 1044, 675 N.E.2d 194
(1996).
In other cases, confidence in the outcome is shaken. Strong
evidence or not, "*** a fair trial, in all its stages, is a
fundamental requirement in a criminal prosecution ***." People
v. Rega, 271 Ill. App. 3d 17, 24, 648 N.E.2d 130 (1995). Our
responsibility to provide a just result has caused us to examine
an issue not raised by the defendant on appeal. People v.
Thomas, 277 Ill. App. 3d 214, 218, 660 N.E.2d 184 (1995).
Here, all error aside, no rational jury could have found the
defendant not guilty of the lesser-included possession charge.
Evidence of possession was uncontradicted and unchallenged. The
possession conviction is affirmed.
Whether the defendant possessed the cocaine with intent to
distribute it is a closer question. While one officer testified
to seeing two exchanges, at night, from a distance of 100 to 130
feet, through binoculars, neither of the two purported buyers was
stopped. Carter possessed less than a gram of cocaine.
We conclude the entirety of improper comments and evidence
well might have tainted the jury's deliberations on the intent to
distribute charge. That conviction cannot stand.
CONCLUSION
We reverse the defendant's conviction under count I, which
defectively charged him with possession of a controlled substance
within 1,000 feet of a school. We reverse the defendant's
conviction for possession of a controlled substance with intent
to distribute. We affirm the defendant's conviction for
possession of a controlled substance and remand that cause to the
trial court for resentencing.
Because the simple possession conviction that stands is a
lesser-included offense, there is no reason to remand the greater
offense of possession of a controlled substance with intent to
distribute.
REVERSED IN PART, AFFIRMED AND REMANDED IN PART.
McNAMARA and SOUTH, JJ., concur.