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People v. Cooper
State: Illinois
Court: 1st District Appellate
Docket No: 1-01-1715, 1-01-2823 cons. Rel
Case Date: 01/24/2003
1-01-1715, 1-01-2823 (Cons.)

THE PEOPLE OF THE STATE OF ILLINOIS,

                         Plaintiff-Appellee,

          v.

SAM COOPER,

                         Defendant-Appellant.

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Appeal from the
Circuit Court of
Cook County.

No. 00 CR 5617

Honorable
William Lacy,
Judge Presiding.


JUSTICE REID delivered the opinion of the court:

Following a jury trial, the defendant, Sam Cooper, was foundguilty of possession of a controlled substance with intent todeliver and was sentenced to serve six years' imprisonment. Onappeal,(1) Cooper argues that he is entitled to a new trial as aresult of: (1) the State's failure to show beyond a reasonabledoubt that he knowingly possessed heroin with the intent todeliver, (2) ineffective assistance of counsel, (3) the trialcourt improperly admitting evidence of his prior drug-relatedconvictions, and (4) the State making improper remarks duringclosing argument. For the reasons that follow, we affirm inpart, reverse in part, and remand this matter for resentencing.

BACKGROUND

At trial, Officer Cathlene McKenna testified that, onJanuary 22, 2000, at approximately 7:45 p.m., she was conductingsurveillance in an unmarked van. While there, she observed thedefendant standing alone near a vacant lot, and on four separateoccasions, she saw an individual approach the defendant and,after holding a short conversation, the individual handed thedefendant currency. The defendant then walked a short distanceto a fence post, where he retrieved a small item or items from aclear plastic bag. He then gave the item or items to theindividual, who then walked away. After the fourth transaction,Officer McKenna radioed her tactical team and described thedefendant.

Officer Benjamin Almazan testified that on the day inquestion he and Officer Ken Yakes were also members of OfficerMcKenna's tactical team. Officer Almazan testified that while heand Officer Yakes were waiting in a separate vehicle, they wereradioed by Officer McKenna and informed to approach the areawhere the defendant was located. When the officers arrived, theywere informed by Officer McKenna to detain Cooper. OfficerAlmazan testified that Officer McKenna then directed him to afence post, where he found at its base a clear plastic bagcontaining nine tinfoil packets. It was stipulated by theparties that if called to testify a forensic chemist wouldtestify that the total estimated weight of the nine packets was0.6 to 0.7 grams, and that one of the packets was tested and wasshown to be positive for the presence of heroin.

Cooper testified that on the night in question, he walked tothe store. As he was returning home, he ran into his friend,Jerry Winn. As the two men were walking together, Winn tried tosell the defendant a thermal suit. At this time, a yellowunmarked police car approached. Three officers in plainclothesexited the vehicle and detained the men.

Cooper testified that he recognized one of the policeofficers, Officer Amato. Cooper said that he recognized OfficerAmato because he had been arrested by the officer in the past. Officer Amato then searched Cooper and asked him to sit in thebackseat of the unmarked vehicle. Officer Amato informed Cooperthat the police officers were looking for narcotics.

Officer Amato asked Cooper if he had a case with him in thepast. Cooper replied "yes." Officer Amato asked about thecase's result and Cooper responded by telling the officer that hehad beat it. However, Cooper admitted that his response was nottrue because the case resulted in a conviction. Cooper testifiedthat he lied because he believed Officer Amato was harassing him.

Winn was searched and told to go on his way. Cooperremained in the yellow vehicle for approximately 15 minutes, then was told to enter a blue vehicle that had pulled alongside theyellow vehicle. Cooper testified that the blue vehicle wasoccupied by Officers Almazan and Yakes. At this time, Cooper wasinformed that the police officers found drugs, and he was placedunder arrest.

ANALYSIS

I

Cooper maintains the State failed to prove beyond areasonable doubt that he knowingly possessed heroin with theintent to deliver. Cooper argues that his conviction must bereversed because the State failed to present evidence whichshowed beyond a reasonable doubt that he had the requisiteknowledge, possession or intent to deliver.

"[T]he State carries the burden of proving beyond areasonable doubt each element of the offense and the defendant'sguilt." People v. Maggette, 195 Ill. 2d 336, 353 (2001), citingPeople v. Ware, 23 Ill. 2d 59, 62 (1961). "A reviewing courtwill not set aside a criminal conviction on grounds ofinsufficient evidence unless the proof is so improbable orunsatisfactory that there exists a reasonable doubt of thedefendant's guilt. When considering the sufficiency of theevidence, it is not the function of a reviewing court to retrythe defendant. Rather, the relevant question is whether, afterreviewing all of the evidence in the light most favorable to theprosecution, any rational fact finder could have found beyond areasonable doubt the essential elements of the crime." Maggette,195 Ill. 2d at 353, citing People v. Tye, 141 Ill. 2d 1, 13-14(1990); People v. Phillips, 127 Ill. 2d 499, 509-10 (1989).

To support a finding of possession of a controlledsubstance, the State must prove that the defendant had knowledgeof the presence of the narcotics and that the narcotics were inhis immediate and exclusive control. People v. Smith, 288 Ill.App. 3d 820, 823-24 (1997), citing People v. Ray, 232 Ill. App.3d 459, 462 (1992). Constructive possession may be establishedby proof that the defendant knew the contraband was present andthat it was in his immediate and exclusive control. Smith, 288Ill. App. 3d at 824, citing People v. Feazell, 248 Ill. App. 3d538, 545 (1993). Knowledge may be shown by evidence of conductfrom which it may be inferred that the defendant knew thecontraband existed in the place where it was found. Smith, 288Ill. App. 3d at 824, citing Feazell, 248 Ill. App. 3d at 545. The elements of knowledge and possession are questions of factthat are rarely susceptible to direct proof. Smith, 288 Ill.App. 3d at 824, citing Feazell, 248 Ill. App. 3d at 545.

In Smith, two police officers, who were in an unmarkedvehicle, were conducting surveillance. The officers werewatching the defendant and his codefendant who were standing in avacant lot. The officers observed an individual approach thedefendant, who then walked a short distance and retrievedsomething from the ground. The defendant then returned to thelocation where the individual was standing with the codefendant. The defendant handed an object to the codefendant, who handed itto the individual for cash. After the second transaction, thedefendant and codefendant were arrested. When the officersinvestigated the area where the defendant retrieved somethingfrom the ground, they found a bottle cap which contained plasticbags of what was determined to be cocaine.

On appeal, the defendant argued that the State had failed toprove that he had knowledge and constructive possession of thecocaine. Considering the officers' observations, the Smith courtheld that the defendant had knowledge and possession of thecocaine. Smith, 288 Ill. App. 3d at 824. The defendant inSmith did not challenge the sufficiency of the evidence withregard to his intent to deliver. Smith, 288 Ill. App. 3d at 824.

Here, Cooper allegedly possessed the heroin that was foundnear the fence post. Like the defendant in Smith, Cooper wasobserved handing unidentified objects to individuals. Cooperrecovered these objects from the clear plastic bag near the fencepost. During the period in which Officer McKenna watched Cooper,no other person went to the fence post. When Officer Almazanrecovered the plastic bag, he testified that there were no otheritems in the surrounding area. It was later determined that oneof the objects in the clear plastic bag contained heroin. Assuch, like the defendant in Smith, Cooper knowingly possessed theheroin.

In a case involving unlawful possession with intent todeliver a controlled substance, "intent is a mental state seldomsusceptible of direct proof but which must be inferred fromcircumstantial evidence." People v. Neylon, 327 Ill. App. 3d300, 310 (2002). "'This issue involves the examination of thenature and quantity of circumstantial evidence necessary tosupport an inference of intent to deliver. In controlledsubstances prosecutions, many different factors are probative ofintent to deliver. Such factors include whether the quantity ofcontrolled substance in defendant's possession is too large to beviewed as being for personal consumption, the high purity of thedrug confiscated, the possession of weapons, the possession oflarge amounts of cash, the possession of police scanners, beepersor cellular telephones, the possession of drug paraphernalia, andthe manner in which the substance is packaged. [Citation.] Thequantity of controlled substance alone can be sufficient to provean intent to deliver. This is the case only where the amount ofcontrolled substance could not reasonably be viewed as designedfor personal consumption.'" Neylon, 327 Ill. App. 3d at 310,quoting People v. Beverly, 278 Ill. App. 3d 794, 799 (1996), andciting People v. Robinson, 167 Ill. 2d 397, 408 (1995).

Here, approximately 0.7 grams of suspected contraband wasrecovered from the clear plastic bag found near the fence post.(2) This is an amount that reasonably could be viewed as intended forpersonal consumption. See People v. Delgado, 256 Ill. App. 3d119, 122-23 (1993). When the amount of substance seized is anamount that may be considered consistent with personal use, ourcourts have properly required additional evidence of intent todeliver to support a conviction. Robinson, 167 Ill. 2d at 411. When the additional evidence in this case is considered, theState has failed to prove beyond a reasonable doubt that Cooperpossessed the requisite intent to deliver the heroin.

Initially, we first observe that there are two rather recentdecisions with factual situations similar to this matter wherethe respective courts determined that the evidence sufficientlyshowed that the defendant had the requisite intent to deliver. The first decision is People v. Little, 322 Ill. App. 3d607, 620 (2001). In Little, police officers were conductingsurveillance, and on two separate occasions, the officersobserved an unidentified person approach the defendant and handhim money. Each time, the defendant accepted the money,retrieved an object from another pocket, and handed the object tothe individual, and the individual then walked away. The officercould not specifically identify the object that the defendanthanded to the unknown individuals. After the defendant wasdetained and searched, he was found to be in possession of sixseparate small bags containing 1.5 grams of cocaine and a $10bill. He was then ultimately arrested and taken to a policestation.

Initially, the Little court reversed the trial court becausethe defendant was deprived of effective assistance of counsel asa result of his trial counsel's failure to pursue a pretrialmotion to quash and suppress. Little, 322 Ill. App. 3d at 613-14. The Little court found that there was a question as towhether the arresting officers lacked the requisite probablecause to search and arrest the defendant. Little, 322 Ill. App.3d at 613. As such, the court determined that the defendantreceived ineffective assistance when defense counsel failed tofile a pretrial motion to quash and suppress.

The Little court then had to determine whether the evidenceestablished that the defendant had the requisite intent todeliver the cocaine. The court held that evidence, when viewedin a light most favorable to the State, was sufficient to supportthe defendant's intent to deliver beyond a reasonable doubt. Little, 322 Ill. App. 3d at 619-20.

The Little court based its decision primarily on theobservations of the police officers. The Little court stated:

"The circumstances presented by the evidence heresupport a reasonable inference that the unknown objectspassed by defendant to the two individuals werecocaine. Most notable is the fact that the objectsexchanged were retrieved from the same part ofdefendant's clothing in which the packets of cocainewere recovered. We find a rational trier of fact couldhave drawn the reasonable inference that the objectsretrieved and exchanged by defendant were cocainepackets." Little, 322 Ill. App. 3d at 618.

The second decision is People v. Williams, 331 Ill. App. 3d662 (2002). In Williams, the court held that the evidence attrial sufficiently supported the defendant's conviction ofpossession of more than a gram of cocaine with the intent todeliver within a 1,000 feet of a public park. Williams, 331 Ill.App. 3d at 668, citing People v. Jackson, 318 Ill. App. 3d 321,325-26 (2000). There, the arresting officer testified that "hewatched four separate transactions in which defendant tooksomething from persons who walked up to him. Each time defendantthen removed an object from a bag and handed it to the person whogave him money." Williams, 331 Ill. App. 3d at 668. Theremaining items in the bag were determined to contain cocaine.

We disagree with the holdings in these cases because wherethe police surveillance fails to describe the object that isallegedly "sold" and the defendant is found only in possession ofa very small amount of contraband and very little money, wecannot rely on circumstantial evidence to fill in the blanks. InPeople v. Jones, 174 Ill. 2d 427 (1996), the defendant wasarrested for the possession of five packets containing a whiterocky substance that police believed to be cocaine. The contentsof two of the packets tested positive for cocaine; however, theremaining three packets were not tested. The two tested packetsweighed only .59 grams together, while the combined weight of allfive packets was 1.4 grams. The defendant was convicted ofpossession with intent to deliver 1.4 grams of cocaine.

The Jones court held that the defendant could only beconvicted of possession with intent to deliver .59 grams ofcocaine because the other three packets had not been identifiedas cocaine and no inference could be drawn that the three packetscontained cocaine based on the mere fact that the other twopackets did. The court reasoned that while "it is not difficultto speculate, as did the trial judge, that the remaining threepackets may have contained cocaine, such a finding must be basedon evidence and not upon guess, speculation or conjecture."Jones, 174 Ill. 2d at 429-30.

Here, when Cooper was arrested, none of the alleged fourbuyers was arrested as well. As such, the State is asking thiscourt to assume or to speculate that the items which Cooperhanded to the individuals contained heroin. Taking the Jonesdecision into consideration, we do not believe it proper tospeculate that Cooper gave the four alleged buyers heroin, whenit is possible that the four items that he handed to theindividuals were innocuous.

This was not a case where the defendant was found with alarge quantity of drugs. In this matter, the amount of drugsrecovered was a small amount that reasonably could be viewed tobe intended for personal consumption. Consequently, Robinson hasinstructed us to look at additional factors to determine whethera defendant possessed the requisite intent to deliver. We are toconsider if the defendant was in possession of weapons, largeamounts of cash, beepers, cellular phones or drug paraphernaliaat the time of the arrest, and also the purity of the drug andthe manner in which the substance is packaged. Robinson, 167Ill. 2d at 408.

When we take these additional facts into consideration, theevidence does not strongly suggest that Cooper had an intent todeliver. When Cooper was arrested he did not posses any weapons,nor did he have a large amount of money, he did not possess apolice scanner, beeper, cellular phone or any drug paraphernalia. The alleged heroin was packaged in nine tinfoil packages (onlyone of which was tested). However, if Cooper had purchased theheroin for his own personal use, it may have been packaged inthat manner at the time he purchased it. See People v. Scott,256 Ill. App. 3d 844, 851-52 (1993).

Officer McKenna could not state specifically that Cooperhanded the four alleged buyers heroin or that she saw him handover tinfoil packages. The only thing that Officer McKenna couldtestify to was that Cooper handed the individuals an item. Here,the State wants this court to assume that the four items thatCooper handed out to the four unknown individuals were heroin. Yet, it is possible that the items which Cooper handed out wereinnocuous. Because neither of the individuals was stopped, we donot know what Cooper handed to them. If only one of the unknownindividuals had been stopped, we would not have to guess,speculate or conjecture on whether the defendant had in factdelivered the subject heroin.

Cooper was found to be in possession of an amount of herointhat could be used for personal consumption. When the additionalfactors delineated in Robinson are considered, they also do notstrongly evidence an intent to deliver. As such, when theholding in Jones is taken into consideration, we refuse to assumethat the untested items, including those allegedly sold to fourunknown buyers, were heroin, and as such, we hold that the Statefailed to prove intent to deliver beyond a reasonable doubt. Wehold, however, that the State did prove beyond a reasonable doubtthat Cooper was guilty of possession of the one tinfoil packagethat tested positive for the presence of heroin.

II

Cooper maintains that he is entitled to a new trial as aresult of ineffective assistance of counsel. Specifically,Cooper contends he was denied effective assistance of counselwhen his defense attorney cross-examined Officers McKenna andAlmazan, and Cooper also avers that he was denied effectiveassistance when his attorney did not formally subpoena alibiwitness Jerry Winn.

We review claims of ineffective assistance of counsel underthe two-pronged test set forth in Strickland v. Washington, 466U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068(1984), which our supreme court recognized in People v. Albanese,104 Ill. 2d 504, 526-27 (1984). To determine whether there hasbeen a violation of the defendant's sixth amendment right toeffective assistance of counsel, the defendant must show: (1)that his counsel's "representation fell below an objectivestandard of reasonableness"; and (2) that there is a "reasonableprobability that, but for counsel's unprofessional errors, theresult of the proceeding would have been different." Strickland,466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Peoplev. Shatner, 174 Ill. 2d 133, 144 (1996); People v. Consago, 170Ill. App. 3d 982, 987 (1988). "If an ineffective-assistanceclaim can be disposed of on the ground that defendant did notsuffer sufficient prejudice, the court need not decide whethercounsel's errors were serious enough to constitute less thanreasonably effective assistance under the deficiency prong."People v. Pacheco, 281 Ill. App. 3d 179, 183 (1996), citingPeople v. Eddmonds, 143 Ill. 2d 501, 512 (1991).

A. Cross-examination of Officers McKenna and Almazan 

Cooper argues that he was denied effective assistance ofcounsel when his defense attorney cross-examined Officer McKennaand Officer Almazan. Cooper complains that during the officers'direct examinations, neither officer was questioned about anidentification that Officer McKenna made of the defendant at thepolice station following his arrest. Yet, during theirrespective cross-examinations, defense counsel questioned eachofficer about McKenna's in-station identification of Cooper. Cooper maintains he was prejudiced by the officers' testimonybecause it had the effect of bolstering the State's case.

B. Failure of Jerry Winn to appear as a witness

Cooper maintains he was also deprived effective assistanceof counsel because his trial counsel did not secure theappearance of alibi witness Winn. Defense counsel entrustedCooper with a subpoena to serve on Winn. However, Cooper failedto serve the subpoena on Winn. When asked why he did not givethe subpoena to Winn when Cooper saw Winn before the start oftrial, Cooper testified that he forgot the subpoena and left itat home. Cooper maintains that Winn's failure to appear at trialand provide an alibi was prejudicial. Cooper argues that hisdefense counsel's failure to subpoena Winn constitutedineffective assistance.

We find that Cooper is unable to satisfy the second prong ofStrickland and subsequently has failed to show that he was deniedeffective assistance of counsel. Cooper cannot show that he wasprejudiced because the evidence was not closely balanced. Officer McKenna, who was a credible witness, testified that onfour occasions she saw Cooper retrieve an item from a clearplastic bag and then place the clear plastic bag near the base ofa fence post. Officer McKenna did not see any other individualnear the plastic bag during the time that she observed thedefendant. After Cooper was arrested, Officer Almazan crediblytestified that no other objects were found near the plastic bag. And, it was stipulated that one of the nine tinfoil packetstested positive for the presence of heroin. Cooper has failed toshow that but for his counsel's unprofessional errors the resultof the proceeding would have been different. As such, Cooper hasfailed to show that he suffered prejudice.

III 

Cooper contends that the trial court improperly admittedevidence of his prior drug related convictions.

Whether evidence of a prior conviction may be introduced asimpeachment is a question that lies within the sound discretionof the trial court. People v. Williams, 173 Ill. 2d 48, 81(1996). The State may not introduce evidence of a defendant'sprior convictions only to show his propensity to commit crimes. People v. Robinson, 299 Ill. App. 3d 426, 440 (1998).

Under the rule developed in People v. Montgomery, 47 Ill. 2d510 (1971), evidence of a witness' prior conviction is admissibleto attack the witness' credibility where: (1) the prior crime waspunishable by death or imprisonment in excess of one year, orinvolved dishonesty or false statement regardless of thepunishment, (2) less than 10 years have elapsed since the date ofconviction of the prior crime or release of the witness fromconfinement, whichever is later, and (3) the probative value ofadmitting the prior conviction outweighs the danger of unfairprejudice. People v. Atkinson, 186 Ill. 2d 450, 456 (1999),citing Montgomery, 47 Ill. 2d at 516; M. Graham, Cleary &Graham's Handbook of Illinois Evidence

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