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Appellate Court Date: 2017.10.16
15:56:10 -05'00'
People v. Church, 2017 IL App (5th) 140575
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALBERT D. CHURCH, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-14-0575
Filed June 15, 2017
Decision Under Appeal from the Circuit Court of Effingham County, No. 14-CF-25;
Review the Hon. Allan F. Lolie, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Ian C. Barnes, of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Bryan M. Kibler, State’s Attorney, of Effingham (Patrick Delfino,
David J. Robinson, and Patrick D. Daly, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Justices Cates and Barberis concurred in the judgment and opinion.
OPINION
¶1 After a stipulated bench trial in the circuit court of Effingham County, defendant, Albert
D. Church, was convicted of unlawful delivery of a controlled substance (heroin) under an
accountability theory (720 ILCS 570/401(d)(i) (West 2012)) and sentenced to three years and
six months in the Department of Corrections to be followed by two years of mandatory
supervised release. The issues raised on appeal are (1) whether defendant was proven guilty
of delivery of a controlled substance by accountability beyond a reasonable doubt and (2)
whether defendant knowingly and voluntarily waived his right to a jury trial. We affirm.
¶2 BACKGROUND
¶3 Jessica James, age 29, died as the result of a heroin overdose on February 5, 2014. Jay
Miller (Jay), defendant’s roommate, sold the heroin to James on February 4, 2014. On
February 12, 2014, defendant was charged by information with one count of delivery of a
controlled substance on a theory of accountability after a police investigation revealed that
defendant was involved in arranging the heroin purchase between James and Jay. Defendant
was later charged by indictment with the same count. Defendant entered a written plea of not
guilty and a demand for a speedy trial.
¶4 On June 27, 2014, the State filed a second count, charging defendant with criminal drug
conspiracy (720 ILCS 570/405.1 (West 2012)). On August 28, 2014, defendant stated on the
record that he waived his right to a jury trial as he simultaneously signed a waiver. The
prosecutor stated that as “part of the consideration that [defendant] used in waiving his jury
trial right was that the People were going to dismiss Count 2, and the trial before your Honor
will solely be on Count 1.” On September 17, 2014, the case proceeded via a stipulated
bench trial.
¶5 Defendant admitted that his roommate, Jay, supplied heroin to James. The only point of
contention during the stipulated trial was whether defendant was accountable for Jay’s
delivery of the heroin to James. The State submitted six exhibits.
¶6 People’s Exhibit No. 1 contains the stipulated facts. People’s Exhibit No. 2 is a series of
screen shots of Facebook conversations between a Facebook account in the name of Jessica
James and an account in the name of defendant. People’s Exhibit No. 3 shows incoming and
outgoing calls and text messages from defendant’s phone and includes communications
between him, James, Jay, and Jay’s girlfriend, Tomeka Price. People’s Exhibit No. 4 is a map
of central Illinois between Effingham and Decatur and shows the digital pinging of
Christopher Miller’s (Christopher) phone between the two cities on February 4, 2014.
Christopher gave a stipulated statement that he and Jay (no relation) went to Decatur on
February 4, 2014, purchased heroin, and then returned to Effingham. People’s Exhibit No. 5
is the transcript of defendant’s interview with police that took place on February 7, 2014.
People’s Exhibit No. 6 is a DVD copy of the interview.
¶7 The State introduced Facebook conversations that took place between defendant and
James, dating back to April 2013. Several of the conversations revolve around James’s
attempts to procure drugs. For example, in July 2013, the following conversation occurred
between defendant and James:
“[James:] can u get anything? Like pills, etc?
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[Defendant:] hold on let me ask some ppl
[James:] omg please
[Defendant:] wait what kind lol
[James:] dros
or anything reall[y]
vikes
downers
[Defendant:] right on I just didn’t know up or down
[James:] yep down
or h possibl? Ahh need something
do u still have my number also?
217-825-***
[Defendant:] yea I lost it when I got a new phone
[James:] whats your new one
[Defendant:] 217-663-***
Well the two ppl that responded 2 me cant get anything
[James:] i know... i cant find anyone either
Well let me know if u do please
[Defendant:] i will fo sho”
During his interview with police on February 7, 2014, defendant admitted that the initial “h”
set forth above was short for heroin and that James was asking specifically for heroin.
¶8 In September 2013, James again contacted defendant via Facebook and asked, “Do u
know anyone that has pills right now[?]” Defendant did not respond online to James’s
request. On February 1, 2014, James contacted defendant about getting drugs, and the
following online conversation occurred:
“[Defendant:] yes I wont get it tonight but my buddy goes up 2 decator [sic] and
gets some prity [sic] frequently
....u lookin 4 h again?
[James:] omg I love u and yes
Ill [sic] be getting a big check soon
Tell him u know me I have lost all my connects it sucss [sic]
[Defendant:] I got a new phone text me your number 217 240 ***”
James then texted defendant her number and asked defendant whether he received her text.
¶9 The police searched defendant’s cell phone pursuant to a search warrant and found a
number of texts between James’s phone and defendant’s phone. There were also a number of
telephone calls corresponding with text messages from James. Between 10 p.m. on February
1, 2014, and 12:34 a.m., there were several text messages between defendant’s phone and
James’s phone. Many of the texts were from James, informing defendant that he was her only
hope for obtaining drugs. At 11:18 p.m., defendant texted James that his drug connection
“[d]oes not have the money to get it[;] you would have to pay for it.” James replied that she
would give him the money but would feel better going with the connection so she would not
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get cheated out of her money. At 12:34 a.m., James texted defendant and asked him to let her
know when the contact wanted to go. At 12:37, defendant responded, “I will tomorrow.”
¶ 10 At 8:42 a.m. on February 2, 2014, defendant sent a text to “Doober” and stated, “Hey
what’s up man? Do you know where I could score a gram of k.” At 10:34 a.m., defendant
texted a phone number with a 217 area code and stated, “Hey whats up Blake this is church
can I get a gram[?]” James texted defendant a few more times throughout the day in an
attempt to get a drug connection through him.
¶ 11 On February 3, 2014, at 2:07 p.m., defendant sent James a phone number via text
message and told her to “talk to this guy its jay.” James responded, “Does he know ill [sic] be
calling.” Defendant replied, “Yes.” At 8:30 p.m., James texted defendant, “I texted him hvent
[sic] heard nuthin [sic].” At 11:10 p.m. defendant texted James asking her if she got in
contact with Jay.
¶ 12 The stipulated facts indicate that Tomeka Price had been dating Jay for a few of weeks at
the time of James’s death. While Price was aware Jay used heroin, she did not approve of it.
Price said Jay either spent time with her or lived at an apartment with defendant. According
to Price, Jay did not have a valid license, a vehicle, or a cell phone, and he frequently used
her cell phone while she was at work.
¶ 13 On February 4, 2014, Price took lunch to Jay at the apartment he shared with defendant.
Jay told Price he had to help a girl, which turned out to be James. Price took Jay to 507
Illinois Avenue where James exited the residence and got into Price’s car. Price drove James
and Jay to a bank. James entered the bank alone and returned a short time later.
¶ 14 Bank records show James withdrew $50 from her account. James did not have sufficient
funds, so the bank accepted a counter check after James agreed to pay an overdraft fee. The
counter check was time stamped at 2:15 p.m. After James exited the bank, Price drove James
and Jay back to James’s residence. Jay and James went inside the house. While Price was
waiting for Jay to return, she received a text from defendant, asking her to take him to work.
Price complied. When she returned to James’s house, Jay exited, and he was sweating. From
past experience, Price knew Jay sweated when he used heroin.
¶ 15 The stipulated facts show that Christopher would testify that text messages on his phone
from Tomeka Price’s phone were actually communications between him and Jay.
Christopher drove Jay to Decatur numerous times to buy heroin because Jay did not have a
driver’s license. Christopher drove Jay to Decatur to purchase heroin on February 4, 2014.
Christopher saw the heroin Jay purchased. Christopher had a previous conviction for heroin
delivery with a pending petition to revoke probation and a pending charge of home invasion.
For his cooperation with the case against defendant, the State promised Christopher the
minimum sentence for a guilty plea in the home invasion case.
¶ 16 The police interviewed defendant on February 7, 2014, after James died. After police
showed defendant Facebook messages and text messages, defendant acknowledged that he
gave James the phone number of a guy who travels to Decatur to purchase drugs. Defendant
refused to identify the purchaser of the heroin. Defendant said the police could look at his
phone and figure it out, but he did not want to be “a snitch.” Officer Stephens specifically
asked defendant, “So how did you hook her up to the guy? If you didn’t go along how did
you hook her up to him?” Defendant replied, “I called the guy, I called [James] and told her
who to call.” Later in the interview defendant specifically stated, “Well, I was involved
because I introduced [James] to a heroin dealer.”
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¶ 17 After considering the stipulated evidence, the trial court found defendant guilty beyond a
reasonable doubt of delivery of a controlled substance by accountability. Defendant filed a
motion for acquittal or, in the alternative, a new trial. The trial court denied the motion. The
parties made a joint sentencing recommendation of three years and six months in prison. The
trial court sentenced defendant to that amount of time to be followed two years mandatory
supervised release. Defendant now appeals his conviction.
¶ 18 ANALYSIS
¶ 19 I. Sufficiency of the Evidence
¶ 20 The first issue raised on appeal is whether defendant was proven guilty of delivery of a
controlled substance by accountability beyond a reasonable doubt. Defendant contends the
evidence was insufficient to prove beyond a reasonable doubt that he aided, abetted,
solicited, agreed, or attempt to aid another in the commission of the crime. He further
contends the State failed to prove he possessed the concurrent, specific intent to promote or
facilitate the commission of the offense. We disagree.
¶ 21 Where, as here, a defendant argues that the evidence was insufficient to sustain his
conviction, the question is whether, after viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found the defendant guilty beyond a reasonable
doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005). In reviewing the sufficiency of the
evidence, it is not our job to retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999).
It is the function of the finder of fact to assess the credibility of the witnesses, weigh and
resolve any conflicts in the evidence, and draw reasonable conclusions from the evidence.
People v. Williams, 193 Ill. 2d 306, 338 (2000).
¶ 22 In the instant case, defendant was tried under the theory that he was accountable for the
actions of Jay, who sold James the heroin that ultimately killed her. In order for a defendant
to be convicted under an accountability theory, the State must prove beyond a reasonable
doubt that he or she (1) solicited, aided, abetted, agreed, or attempted to aid another person in
the planning or the commission of the offense; (2) did so before or during the commission of
the offense; and (3) did so with the concurrent, specific intent to promote or facilitate the
commission of the offense. 720 ILCS 5/5-2(c) (West 2012); People v. Snowden, 2011 IL App
(1st) 092117, ¶ 58. A defendant may be found guilty on an accountability theory if the State
establishes beyond a reasonable doubt that the defendant shared the criminal intent of the
principal or that there was a common design or scheme. People v. Perez, 189 Ill. 2d 254, 266
(2000).
¶ 23 A defendant’s intent may be inferred from the nature of his or her actions and the
circumstances surrounding the criminal conduct. Id. “Accountability focuses on the degree of
culpability of the offender and seeks to deter persons from intentionally aiding or
encouraging the commission of offenses.” (Emphasis in original.) Id. at 268. “Thus, ‘[u]nless
the accomplice intends to aid in the commission of a crime, no guilt will attach.’ ” (Emphasis
in original.) Id. (quoting People v. Shaw, 186 Ill. 2d 301, 322 (1998)).
¶ 24 In finding defendant guilty, the trial court specifically stated as follows:
“The Court must find beyond a reasonable doubt that Jay Miller did deliver a
controlled substance, that being heroin ***, to [James]. Based on all the evidence the
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Court reviewed, the Court does find that delivery, beyond a reasonable doubt did
occur.
The next issue is whether this Defendant, before or during the offense with the
intent to promote or facilitate this offense, knowingly solicited, aided, abetted, agreed
to aid, or attempted to aid the person in the commission of the offense. That person,
of course, being Jay Miller.
Defense counsel argues that this is a situation where his friend merely called him
and said, help me find some heroin[ ]. And he just said he was doing a friend a favor.
Of course, I’m paraphrasing.
The Defendant received no money. It’s un-rebutted and stipulated for this
transaction. It’s also not in dispute that the Defendant never touched the heroin[ ] at
issue in this case.
Had the Defendant simply told Miss James my friend has heroin[ ]. Go talk to
him. I may agree with the Defendant. That may not have been enough to make him
accountable. That is not the case here. The Defendant told Miss James that Jay Miller
frequently had heroin[ ] and, in fact, called Jay Miller to tell him to expect Miss
James’s call.
The stipulated evidence in this case was that the phone calls between Defendant’s
phone and Miss James’s phone were made by Jay Miller using Defendant’s phone,
and I accept that being true that that was the case. That it was actually Mr. Miller
using Defendant’s phone. However, I see that that does nothing to mitigate the
culpability of the Defendant. The Defendant was aware that the two were engaging
and arranging a delivery of a controlled substance.
I do find, therefore, beyond a reasonable doubt, the Defendant’s actions under the
statute as read, do constitute aiding, agreeing to aid, and attempting to aid Mr. Miller
in the planning or commission of the offense at issue here and find him guilty of
Count I, delivery of a controlled substance.”
After careful consideration, we agree with the trial court’s analysis.
¶ 25 The stipulated evidence showed that Jay and defendant were roommates. Jay was a
known heroin addict. Defendant and James were friends who communicated not only by
Facebook, but also by text. As early as April 2013, James began asking defendant to help her
procure drugs, including heroin. In the days leading up to her death, James contacted
defendant numerous times, seeking his help in obtaining drugs. On February 1, 2014,
defendant and James participated in an online Facebook conversation during which
defendant specifically asked James if she was looking for heroin. James replied, “omg I love
u and yes.” Defendant told James about his friend who frequently drives to Decatur for
drugs. Defendant gave James his new phone number and asked James to text her phone
number to his new cell number. James complied.
¶ 26 Thereafter, defendant sent James a text message in which he explained that his drug
connection did not have the money to buy drugs, and the only way a deal could be worked
out if was James would pay before delivery. On February 3, 2014, defendant sent James a
text message in which he gave her Jay’s phone number and told her to “talk to this guy its
jay.” James then wanted to know if Jay was aware she would be calling, and defendant said,
“Yes.” Later that evening, James texted defendant and said she texted Jay, but she had not
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heard anything. A few hours later, defendant followed up with a text to James asking her
whether she was able to get in contact with Jay.
¶ 27 Pursuant to the stipulated facts, Christopher confirmed he drove Jay to Decatur on the
morning of February 4, 2014, where Jay purchased heroin. Jay’s girlfriend, Tomeka Price,
would testify that she drove James to the bank to withdraw money. Price left Jay at James’s
house, and when she returned, she believed that Jay had used heroin because he was
sweating, which he normally did after using heroin.
¶ 28 When defendant was interrogated by the police, he refused to give the police Jay’s name
because he did not want to be a “snitch.” However, he knew the police could determine who
sold the heroin to James by looking at his phone and reviewing his text messages, phone
calls, and Facebook messages. When all the evidence is considered in the light most
favorable to the State, it shows that the drug transaction that ended up costing James her life
could not have occurred without defendant’s involvement.
¶ 29 Defendant talked to both Jay and James and arranged for James to call Jay. If defendant
had not supplied James with Jay’s phone number, the drug transaction would not have
occurred. Contrary to defendant’s assertions, his involvement goes beyond the courtesy of
informing his roommate that he had given his telephone number to someone with whom he
was not acquainted, and she might be calling.
¶ 30 The evidence shows James was frantic to find a drug connection. Defendant was well
aware that he was connecting James and Jay for the sole purpose of James purchasing drugs,
specifically heroin. Defendant admitted to police he was involved in the crime, specifically
stating, “Well, I was involved because I introduced [James] to a heroin dealer.” Under these
circumstances, there was sufficient evidence for any rational trier of fact to find defendant
guilty.
¶ 31 II. Waiver of Jury Trial
¶ 32 The other issue raised by defendant on appeal is whether he knowingly and voluntarily
waived his right to a jury trial. Defendant argues we should reverse and remand for a new
trial because he did not make a knowing and intelligent waiver of his right to a jury trial as he
only agreed to waive his right to a jury trial in exchange for the dismissal of a criminal drug
conspiracy count and was not informed he could not be convicted of that count. The State
replies that the benefit defendant derived from having one count dismissed was not illusory
as defendant asserts; rather, defendant received a tangible benefit in exchange for his jury
waiver. The State further replies that even if defendant’s jury trial waiver was illusory, the
record fails to show that the “concession” was the principal or motivating factor for waiving
the jury.
¶ 33 Before we address the merits of this issue, we note that defendant acknowledges he
waived the issue by failing to object during the trial or failing to raise the issue in a posttrial
motion; nevertheless, defendant’s forfeited claim is reviewable under a plain error analysis.
People v. Bracey, 213 Ill. 2d 265, 270 (2004). However, before considering defendant’s
claim under a plain error analysis, we must first determine whether error occurred. People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 34 Our federal and state constitutions both guarantee a criminal defendant’s right to a trial
by jury. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. A defendant may
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waive this right by knowingly and understandingly waiving it in open court. 725 ILCS
5/103-6 (West 2012); Bracey, 213 Ill. 2d at 269-70. There is no specific admonishment or
advice the court must provide prior to accepting a waiver. People v. Bannister, 232 Ill. 2d 52,
66 (2008). The effectiveness of a defendant’s waiver depends on the particular facts and
circumstances of each case. Id. The critical determination is whether the waiving defendant
understood his case would be decided by a judge rather than a jury. Id. at 69. Whether a
defendant knowingly waived his right to a jury trial is subject to de novo review. Bracey, 213
Ill. 2d at 270.
¶ 35 In support of his contention that he did not knowingly waive his right to a jury trial,
defendant specifically relies on Bracey. In Bracey, the defendant knowingly waived his right
to a jury trial after extensive admonishments by the trial court. Id. at 267. Following a trial,
the trial court granted the defendant’s motion for a new trial. Id. at 267-68. Before the
defendant’s second trial, the court announced it was ready to begin a second bench trial, and
neither the defendant nor his attorney objected. Id. at 272-73. Our supreme court reasoned
that the defendant’s initial waiver ended with the first trial, and he was erroneously led to
believe his initial waiver obligated him to a bench trial in the second trial. Id. Bracey,
therefore, stands only for a limited proposition that when a defendant is retried, he must make
a new waiver of his right to a jury trial. People v. Reed, 2016 IL App (1st) 140498, ¶ 10.
Because the instant case does not present a retrial situation, defendant’s reliance on Bracey is
misplaced.
¶ 36 Additionally, we are unconvinced by defendant’s argument that he received no benefit
from having one of the charges dropped. Even though defendant could not have been
convicted of both the inchoate offense (criminal drug conspiracy) and the principal offense
(delivery of a controlled substance), he could have been found guilty of one or both of the
charges. The charges, while similar, are not identical. See 720 ILCS 570/401(d)(i), 405.1
(West 2012). As the State points out, a conflicted jury might decide to find defendant guilty
of one charge and not the other. Thus, defendant’s chances of an acquittal were better facing
only one charge rather than two.
¶ 37 Even assuming arguendo that defendant received no benefit from the State dropping the
criminal drug conspiracy charge, defendant has failed to convince us that he would not have
waived a jury trial. In support of our determination, we first point to the prosecutor’s
statement on the record that the dismissal of one count was only “part of the consideration”
defendant relied on in waiving his right to a jury trial. (Emphasis added.) Neither defense
counsel nor defendant objected to that characterization.
¶ 38 Second, there are clearly benefits to having the case tried before the court rather than a
jury. For example, defendant moved for a change of venue based on pretrial publicity.
Defendant alleged extensive pretrial publicity prevented him from receiving a fair trial in
Effingham County. Attached to that motion were 36 news articles concerning not only
James’s overdose, but also the resulting charges against defendant and others. In light of the
trial court’s denial of that motion, defendant may have considered a bench trial more
advantageous because a bench trial, rather than a jury trial, would tend to reduce any
prejudice caused by pretrial publicity.
¶ 39 Finally, the record shows the trial court specifically asked defendant whether, after
consulting with his attorney, it was his desire to give up his right to a jury trial, and defendant
stated on the record it was his desire. Defendant acknowledged that he was not threatened by
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anyone nor was he promised anything in addition to what the judge told him in order to get
him to waive his right to a jury trial. As defendant was signing a jury waiver form, the trial
court stated, “One other thing, sir, before you finish signing that, once you’ve waived your
jury trial, you can’t come back and say Judge, I wish I wouldn’t have done that, I really want
a jury trial. Do you understand that?” Defendant replied in the affirmative. Thus, the record
before us clearly shows that defendant was well aware his case would be decided by a judge
rather than a jury.
¶ 40 Considering defendant’s waiver, his colloquy with the trial court, and the particular facts
and circumstances surrounding this case, we find defendant knowingly and voluntarily
waived his right to a jury trial. Because we find no error occurred, there can be no plain error.
See People v. Lopez, 2012 IL App (1st) 101395, ¶ 64.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we find sufficient evidence in the record for the trial court to
find defendant guilty of unlawful delivery of a controlled substance under an accountability
theory. We further find defendant’s waiver of a jury trial was knowing and valid.
Accordingly, we affirm the judgment of the circuit court of Effingham County.
¶ 43 Affirmed.
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