People v. Averett

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People v. Averett

State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3495 Rel

Case Date: 03/31/2008

Preview:THIRD DIVISION March 31, 2008

No. 1-05-3495

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN AVERETT, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County.

Honorable John Kirby, Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court: Following a jury trial, defendant Warren Averett was found guilty of possession of a controlled substance with intent to deliver. Defendant was sentenced to eight years in prison and ordered to pay fines and fees, including a $2,000 controlled substance assessment (720 ILCS 570/411.2 (West 2004)). On appeal, defendant contends that: (1) he is entitled to a new trial where the State diminished its burden of proof and the presumption of innocence by making improper arguments; (2) he is entitled to a new trial where the circuit court failed to answer the jury's request for clarification; (3) he is entitled to a new trial where the circuit court's failure to rule on defendant's motion in limine to exclude evidence of defendant's prior convictions prevented defendant from making a knowing waiver of his right to testify; (4) his sentence is excessive; and (5) he is entitled to a $5-per-day credit toward his controlled substance assessment

1-05-3495 for the 71 days defendant spent in pretrial custody. For the following reasons, we amend the cost and fees order and affirm defendant's conviction and sentence. I. BACKGROUND Defendant was arrested on June 24, 2004, and charged with possession of a controlled substance with intent to deliver. Prior to trial, defendant filed a motion to quash arrest and suppress evidence. Following a hearing, the circuit court denied defendant's motion. Defendant also filed a motion in limine to preclude the State from using his prior convictions for impeachment purposes should defendant choose to testify. Defendant specifically sought to bar evidence of his convictions in 1999 for delivery of a controlled substance; in 1999 for possession of a controlled substance; and in 2000 for delivery of a controlled substance. The circuit court noted that defendant's prior convictions had all occurred within the past 10 years and, pursuant to our supreme court's determination in People v. Montgomery, 47 Ill. 2d 510 (1971), defendant's prior convictions would be "admissible for impeachment purposes in regards to truth and veracity." The court then stated that "the court's policy here is, I will not make a decision in regards to that until I hear the testimony of [defendant] and determine whether or not it becomes relevant to those three convictions." The court then reserved its ruling on the admissibility of defendant's three prior convictions until after it heard defendant's trial testimony and determined whether the prior convictions would be relevant. At trial, Chicago police officer Lenny Pierri testified that at about 7:30 p.m., on June 24, 2004, he and his partner, Officer Mike Herman, were conducting narcotics surveillance in the alley in the vicinity of 3555 West Grand Avenue in Chicago. Officer Pierri explained that the area

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1-05-3495 included Grand, Central Park, and Drake Streets and was a neighborhood known to him for high narcotics sales. Officer Pierri testified that both officers were in plainclothes. Officer Pierri testified that he was the surveillance officer at the location and remained in radio contact with Officer Herman, who acted as the enforcement officer and waited in the police vehicle during the surveillance. Officer Pierri testified that he saw defendant standing alone in the middle of the alley. Officer Pierri testified that it was daylight and he had an unobstructed view of defendant. Officer Pierri observed an unidentified individual walk up to defendant and engage in a brief conversation with defendant. The unidentified individual then handed defendant money, which defendant placed in the front pocket of his pants. Defendant then walked over to a vehicle that was parked in the alley, opened the driver's-side door, and reached into the door panel. Defendant removed a small object from the door panel, walked back and handed the object to the unidentified individual. The unidentified individual then walked away from the area. Several minutes later, Officer Pierri observed a second unidentified individual walk up to defendant and engage in a similar transaction. Officer Pierri testified that these transactions lasted for about 1

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