People v. Hammonds

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People v. Hammonds

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0194 Rel

Case Date: 02/11/2010

Preview:SIXTH DIVISION February 11, 2010 No. 1-08-0194 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL HAMMONDS, Defendant-Appellant. ) ) ) ) ) ) ) ) Appeal from the Circuit Court of ) Cook County. No. 06 CR 26796 Honorable Marcus R. Salone Judge Presiding

JUSTICE ROBERT E. GORDON delivered the opinion of the court: On August 29, 2007, defendant Terrell Hammonds was convicted by a jury of delivering a controlled substance (720 ILCS 570/401(d) (West 2006)). On December 10, 2007, the trial court sentenced defendant to seven years imprisonment and denied defendant's posttrial motion. On this direct appeal, defendant seeks a reversal of his conviction and a new trial, due to five alleged errors. Defendant claims that the trial court erred : (1) by giving the third paragraph of Illinois Pattern Jury Instructions, Criminal, No. 17.05A (4th ed.) (hereinafter IPI Criminal 4th) which specified that a drug "delivery"did not require a transfer of money or consideration; (2) by allowing police officers to testify, over defendant's hearsay objection, about radio messages received from other officers, who were also trial witnesses; (3) by failing to ask potential jurors
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No. 1-08-0194 whether they understood and accepted certain principles of law listed in Illinois Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (4) by refusing to rule, until after defendant testified, on defendant's motion in limine concerning the admissibility of defendant's prior convictions for impeachment purposes. Defendant also claims that (5) prosecutorial misconduct during the State's rebuttal closing denied defendant a fair trial. After considering carefully each of defendant's claimed errors, we find that a new trial is not warranted. BACKGROUND Defendant's two-day trial commenced on August 28, 2007 with jury selection, and culminated in a guilty verdict on August 29, 2007. Voir Dire Following the swearing-in of the pool of potential jurors, the trial court informed the venire of certain principles of law, namely: (1) that a defendant is presumed innocent; (2) that he is not required to offer any evidence in his own behalf; and (3) that he must be proved guilty beyond a reasonable doubt. However, the trial court did not inform the potential jurors of a fourth principle of law, namely (4) that a defendant's failure to testify in his own behalf cannot be

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No. 1-08-0194 held against him. The trial court also failed to ask the prospective jurors whether they understood and accepted these four principles of law. With respect to these principles of law, the trial court stated, in pertinent part: "Under the law, a defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during the deliberation on a verdict. It is not overcome from [sic] unless from all of the evidence in this you are convinced beyond a reasonable doubt that the defendant is guilty. The State has the burden of proving the guilty of the defendant beyond a reasonable doubt. And this burden remains on the State throughout the case. The defendant is not required to prove his innocence nor is he required to present any evidence on his own behalf. He may rely on the presumption of innocence. You are the judges of the facts in this case ***." The trial court did later inform the jury of all four principles of law during the jury instructions after the close of evidence. Evidence at Trial

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No. 1-08-0194 After jury selection and opening statements, the State presented its evidence. Defendant did not testify or call witnesses. On this appeal, defendant did not claim that the evidence at trial was insufficient to convict him. Nonetheless, we will still describe in detail the State's evidence at trial, since we will need to decide whether this evidence was overwhelming and whether the effect of any alleged error was rendered harmless by overwhelming evidence. At trial, the State called four witnesses in its case-in-chief. Three witnesses were Chicago police officers, Marco DiFranco, Boonserm Srisuth, and Detective William Smith, who were members of the undercover narcotics investigation team that arrested defendant. The remaining witness was Paula Bosco Szum, a chemist with the Illinois State Police Crime Laboratory, who analyzed the evidence recovered after defendant's arrest. The first officer to testify, Officer Srisuth, stated that he was part of a nineperson narcotics investigation team. In the late morning of November 11, 2006, he and other members of his team arrived in the neighborhood of Lamon Avenue and Thomas Street in Chicago, Illinois. Srisuth explained that, when his team anticipates making a controlled buy, the duties of the officers are divided among an "enforcement officer, [a] surveillance officer and [a] buy officer." On this

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No. 1-08-0194 particular day, Srisuth was the buy officer; and thus he wore civilian clothes and drove an unmarked vehicle. The second witness, Officer DiFranco, was the surveillance officer; and Detective Smith, one of the enforcement officers, was the fourth witness to testify at trial. Officer Srisuth testified that he responded to a radio transmission from the surveillance officer, Officer DiFranco.. At that point in the testimony, defendant objected on hearsay grounds. Over defendant's hearsay objection, Srisuth testified that he heard DiFranco state over the radio that "a male black wearing a black skull cap, black jacket, black sweatpants with a white stripe and white gym shoes *** was selling drugs" in the vicinity of 1057 North Lamon Avenue. Officer Srisuth testified that, at approximately 11:14 a.m., he drove northbound on Lamon Avenue toward 105 North Lamon Avenue and observed defendant, who was the only person present in the area matching DiFranco's description. Srisuth parked his unmarked vehicle on Lamon Avenue, and defendant approached Srisuth's passenger window. Srisuth asked defendant if he had any "rocks," which Srisuth testified was "street terminology for crack cocaine." Srisuth testified that defendant asked him how many he wanted, to which Srisuth responded that he wanted only one. Srisuth testified that defendant

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No. 1-08-0194 removed a small, green-tinted zip-lock bag from his mouth. Srisuth testified that the bag contained a white, rock-like substance. Defendant gave Srisuth the bag, and Srisuth gave defendant a pre-recorded ten dollar bill. Officer Srisuth testified that, after the transaction was complete, he left the area and radioed the other officers that "a positive narcotics transaction" had occurred. He also provided the other officers with a physical description of defendant, including defendant's clothing and location. Srisuth testified that the surveillance officer later instructed him to drive by the vicinity of 1031 North Lamon. At that location, Srisuth observed defendant "being detained by the enforcement officer" and Srisuth identified defendant as "the individual that sold [Srisuth] the narcotics." The State's second witness was Officer DiFranco, the surveillance officer. He testified that, at approximately 11:10 a.m. on November 11, 2006, he established a surveillance position on North Lamon Avenue where he had observed defendant loitering on the corner. DiFranco explained that as a surveillance officer, it was his responsibility to "monitor" the location and to keep the team informed. DiFranco testified that, on the day in question, he had "converted [himself] into a utility worker" and that he was driving an undercover

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No. 1-08-0194 vehicle. From his surveillance position, which was approximately "two-and-ahalf car lengths" from defendant, he observed an unknown male approach defendant and hold a brief conversation with him. Defendant then pulled a small item from his mouth and gave it to the unknown male. DiFranco observed the unknown male hand defendant money and leave the area. Based on his experience, DiFranco suspected that a narcotics sale had just occurred. Officer DiFranco testified that he radioed the other officers on his team and informed them of what he had observed. Specifically, DiFranco testified that in his radio transmission, he described defendant as "a male black wearing a black skull cap, a black jacket, black sweatpants with a white stripe, and white gym shoes" and he informed the team of defendant's location. DiFranco testified that, in response to this radio call, Officer Srisuth arrived in "less than a minute." DiFranco observed Srisuth approach in an unmarked vehicle, which Srisuth "curbed" near 1057 Lamon Avenue. At that moment, DiFranco was positioned approximately "two-and-a-half car lengths" behind Srisuth's vehicle, and there were no other vehicles between his and Srisuth's vehicle. He testified that nothing blocked his view of either Officer Srisuth or defendant. Officer DiFranco testified that, after Srisuth stopped his vehicle, DiFranco

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No. 1-08-0194 observed defendant approach the passenger side of the undercover vehicle. DiFranco observed defendant and Srisuth hold a brief conversation, after which defendant retrieved a small item from his mouth and handed it to the buy officer. DiFranco testified that, during the exchange, a "late model Grand Am *** curbed right in front of [DiFranco] and behind the [buy] officer." DiFranco then observed Srisuth's vehicle drive away, and he informed his team by radio that a narcotics transaction had occurred. Officer DiFranco testified that he "stayed in constant surveillance" of defendant after Srisuth's vehicle departed. Defendant next approached the driver's side of the white Grand Am. DiFranco observed defendant and the driver of the Grand Am hold a brief conversation, after which defendant pulled a small item from his mouth and handed it to the driver. DiFranco testified that defendant reached into his left pants pocket and "pulled out an unknown amount of United States currency which he was holding." Defendant was "flipping them back, and he then pull[ed] out an unknown amount of denomination, USC [sc] currency, and he tender[ed[ it to the white male driver." DiFranco testified that the driver then handed defendant "an unknown amount" of United States currency, and that

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No. 1-08-0194 the Grand Am departed. Officer DiFranco testifed that, after the Grand Am's departure, defendant started walking south on Lamon Avenue. DiFranco informed his team by radio of defendant's location while maintaining constant surveillance of defendant. DiFranco then observed the enforcement officers, Detective Smith and Officer Pentimone, arrive and exit their vehicle. After the enforcement officers detained defendant, DiFranco informed the rest of the team by radio of the detention. DiFranco also instructed "the buy officer to drive around the immediate area" in order "to see if that was the actual seller." Officer DiFranco observed Officer Srisuth drive by four or five minutes later, and DiFranco heard Srisuth inform the team by radio that defendant was the person who had sold drugs to Srisuth. Immediately after DiFranco testified about Srisuth's radio confirmation, the defense objected1 and the objection was overruled. Officer DiFranco testified that the enforcement officers arrested defendant and conducted a search of defendant. DiFranco observed that the officers reached into defendant's left pants pocket and retrieved a bundle of United States

The trial court stated "overruled" immediately after defense counsel stated "objection." Thus, defense counsel did not state the basis for the objection. However, we presume from the context of the record that the basis was hearsay.
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No. 1-08-0194 currency. The State's third witness was Paula Bosco Szum, a chemist with the

Illinois State Police Crime Laboratory. The chemist was qualified as an expert in "the field of forensic chemistry and the analysis of narcotics" without objection from the defense. She testified that she analyzed evidence recovered in the case at bar2 and that the item tested positive for the presence of cocaine and weighed one-tenth of a gram. The State's fourth witness was Detective Smith, one of the enforcement officers who participated in defendant's arrest. Smith testified that, as an enforcement officer in an undercover operation, he was dressed in civilian clothes and drove an unmarked vehicle. Smith explained that, after the buy officer completes a narcotics purchase, the enforcement officer is notified and provided with a description of the seller. It is the role of the enforcement officer to detain the seller and place him into custody. Detective Smith testified that, on November 11, 2006, he was working with his partner, Officer Jerry Pentimone, when he received a radio transmission from the buy officer, Officer Srisuth. At this point in the testimony, the defense made a

This opinion omitted descriptions of the chain of custody since the defense raised no challenge to it, either at trial or on this appeal.
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No. 1-08-0194 hearsay objection, which was overruled. Over the defense's objection, Smith testified to the contents of the radio transmission. Smith testified that Srisuth stated that he had completed a controlled purchase of narcotics and that Srisuth provided a description of the seller's physical appearance and clothing. Detective Smith next testified that he received a radio transmission from the surveillance officer, Officer DiFranco. The defense objected again on hearsay grounds, and the objection was overruled. Detective Smith testified that, in the radio transmission, DiFranco confirmed that the buy officer had completed a transaction, and that DiFranco further stated that the seller had completed a second transaction and had started to walk southbound on Lamon. Detective Smith testified that, after receiving a description by radio from both the buy officer and the surveillance officer, he proceeded to the area of North Lamon and observed a person matching this description. Officer Pentimone, who was driving, stopped their vehicle; and both officers exited and approached. Detective Smith then announced that they were police officers, and they detained defendant. After detaining defendant, Smith testified that he received a radio transmission from the surveillance officer, Officer DiFranco. At

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No. 1-08-0194 this point in the testimony, the defense objected,3 and the objection was overruled. Smith then testified to the contents of the radio transmission, which was a confirmation from DiFranco that they had detained the "right" individual. Detective Smith further testified that he observed the buy officer, Officer Srisuth, drive by. Without defense objection, Smith testified that Srisuth radioed "confirming that [they did] have the right gentleman stopped." Smith's partner, Officer Pentimone, then performed a search of defendant and recovered $140 in United States currency from defendant's left front pants pocket. The money was in "different denominations, twenties, tens, fives and some singles." The officers looked for, but did not recover, the recorded ten dollar bill that was used in the undercover purchase. They also did not find any drugs present on defendant's person. Jury Instructions After the detective's testimony, the jury was excused from the courtroom

The witness had begun to answer the question when the defense counsel stated "objection." After the objection, the witness continued answering. Then the trial court interrupted the witness's answer to say "overruled," and the witness finished his answer. As a result, defense counsel did not have an opportunity to state the basis for his objection; however, we presume from the context of the record that the basis was hearsay.
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No. 1-08-0194 and the trial court held a conference on jury instructions. Defense counsel stated that there was only one jury instruction in dispute. The prosecutor requested the first and third paragraphs of IPI Criminal 4th No. 17.05A; and the defense objected. IPI Criminal 4th No. 17.05A provides in its entirety: "17.05A Definition of Deliver (1) The word `deliver' means to transfer possession or to attempt to transfer possession. (2) The word `deliver' includes a constructive transfer of possession which occurs without an actual physical transfer. When the conduct or declarations of the person who has the right to exercise control over a thing is such as to effectively relinquish the right of control to another person so that the other person is then in constructive possession, there has been a delivery. (3) A delivery may occur with or without the transfer or exchange of money, or with or without the transfer or exchange of other considertation."

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No. 1-08-0194 The prosecutor explained to the trial court that she did not ask for paragraph 2, "because this [was] not a constructive transfer situation." In his objection, the defense relied on the committee note accompanying the instruction. This note stated that "[g]enerally" when "the delivery in question was an actual physical transfer of possession, no definition of the term need be given to the jury, " since "[t]he term, in this sense, is commonly understood by the jury." IPI Criminal 4th No. 17.05A, Committee Note. However, the note also stated that "[p]aragraph (3) may be given when the Court believes it would help the jury understand the issue." IPI Criminal 4th No. 17.05A, Committee Note. Relying on the committee note, defense counsel explained her objection, as follows: "DEFENSE COUNSEL: If you look at the committee notes, your Honor, for 17.05A, it states that when an offense involves a delivery and the evidence indicates that the delivery in question was an actual, physical transfer of possession, no definition of the term may be given to the jury. The term in this sense is commonly understood by the layman. That would be the basis of our objection to the entire instruction."

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No. 1-08-0194 After listening to defense counsel, the trial court then ruled in defendant's favor, stating: "TRIAL COURT: Okay. It's out. It's out. Subject to the jury asking for a definition of delivery." Even though the trial court had just ruled, the prosecutor interjected: "PROSECUTOR: But, Judge, if I can just say this? The committee notes say it need not, which to me is not

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