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People v. Brownstein





APPEAL from the Circuit Court of Cook County; the Hon. SYLVESTER C. CLOSE, Judge, presiding.


Following a bench trial, defendant was convicted of possession of cocaine (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(a)(2)); diazepam (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)); codeine (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)); and marijuana (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 704). He was sentenced to 6 years imprisonment for possession of cocaine, 5 years for possession of diazepam, 5 years for possession of codeine and 3 years for possession of marijuana, all to be served concurrently. On appeal, defendant asserts that (1) he was denied his right to a jury trial; (2) his conviction and sentence under count II and III are void because prior decisions have invalidated the statute on which these counts are based; (3) the legislature has improperly classified cocaine as a narcotic; (4) he was denied effective assistance of counsel; (5) he was not proven guilty beyond a reasonable doubt; and (6) his sentence was excessive for a person with no prior record. The pertinent facts follow.

Investigator Thomas Andricopoulos testified that on July 27, 1978, he obtained a search warrant for defendant's residence at 542 West Arlington. Christine Christopolous answered the door of defendant's residence, whereupon he entered and locked the door. Shortly thereafter, defendant and Jack Kellman knocked at the door and they were asked to step inside. Defendant dropped a coat as he entered the apartment, which contained 13 white paper packets of a white powder and a clear plastic bag containing a white powder. Defendant admitted that the jacket contained the white paper packets, but denied that there was a clear plastic bag in the coat.

All three floors of the apartment were searched; and in a third-floor bedroom a clear plastic bag containing plants and seeds was recovered. Next to the desk in the same bedroom, police officers recovered from a briefcase a plastic bag of white powder and a number of pills. Defense counsel stipulated to the chain of custody and to the chemical identity of the substances recovered, to wit: 99.9 grams of cocaine, including the 13 paper packets, 188 grams of marijuana seeds and plants, 18 diazepam pills and two pills containing codeine.

Defendant testified that during the month of July 1978 he lived with Christine and another female at 542 West Arlington. He shared the third-floor bedroom with Christine, but others had easy access to the room as well because it was the only place in the house where there was a television. He admitted that he had 13 paper packets in his jacket but denied having a plastic bag on his person, and denied that he was aware that there was any contraband in the bedroom.

New counsel filed and argued post-trial motions, enumerating, among other errors, that defendant was denied his right to a jury trial. On July 17, 1980, defendant filed a motion to reconsider denial of a new trial, in which he attached a transcript of the proceeding in which the State claimed he waived jury. The motion was considered by the trial judge on July 22, 1980, who did not rule on the motion, as he believed he had no jurisdiction since the notice of appeal was filed on July 18, 1980.


Defendant initially contends he was denied his right to a jury trial. In support of this contention, defendant asserts that he was not advised of his right to a jury trial, did not sign a jury waiver, the report of the proceedings for May 28, 1980, does not affirmatively show an admonishment or waiver, and the common law record does not contain a signed jury waiver form; also with the motion for a new trial, trial counsel both filed affidavits in regard to the alleged jury waiver. The affidavits indicated that defendant did not sign a jury waiver form, that counsel did not waive jury in defendant's presence and that at no time was defendant admonished as to his right to a jury trial.

"Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court." (Ill. Rev. Stat. 1977, ch. 38, par. 103-6.) And the trial court must insure that defendant made a knowing and understanding waiver. (People v. Walton (1979), 77 Ill. App.3d 905, 396 N.E.2d 841.) A trial without a jury cannot be upheld where the record is silent as to jury waiver. People v. Banks (1979), 71 Ill. App.3d 15, 389 N.E.2d 180.

• 1 In this instance, the report of the proceedings for May 28, 1980, is silent as to defendant's waiver; however, the common law record reflects that all parties were present, defendant entered his not guilty plea, was informed of his right to a jury trial and expressly waived that right. The trial judge at the post-trial hearing also stated that he had a personal recollection of defendant signing the jury waiver form. Thus, defendant's contention that he did not understandingly waive his right to trial by jury is without a foundation, particularly in light of the fact that trial counsel did not call the trial court's attention to this matter during trial.

An analogous situation was presented in People v. Rettig (1980), 88 Ill. App.3d 888, 410 N.E.2d 1099, where the docket entry indicated that defendant waived jury, as did the trial court's comment on the day of trial. We found that the record adequately reflected an express and understanding waiver, as we must do also in the case at bar. See also People v. Feather (1976), 42 Ill. App.3d 974, 356 N.E.2d 885; People v. Karabatsos (1971), 131 Ill. App.2d 33, 266 N.E.2d 764.

People v. Coleman (1978), 59 Ill. App.3d 1050, 376 N.E.2d 277, relied on by defendant, is distinguishable from the case at bar. In Coleman, the report of proceedings made no reference to the jury waiver and the docket entry only stated "PLEA NOT GUILTY — JURY WAIVED." We found this evidence insufficient to sustain a jury waiver. Unlike Coleman, the docket entry in the pending matter specifically reflects what occurred, as do the trial court's comments.

• 2 Defendant also asserts that the trial judge cannot rely solely on his memory in making a correction of the record. (Hartgraves v. Don Cartage Co. (1976), 63 Ill.2d 425, 348 N.E.2d 457.) Thus, the trial court's comments on his jury waiver are impermissible as an addition or amendment to the record. However, the Hartgraves opinion left open the question of whether an amendment or addition to the record could be based on "clear memory," when that clear memory did not contradict or impeach the clear contents of the record. In People v. Whitehead (1980), 87 Ill. App.3d 885, 409 N.E.2d 358, defendant asserted that he never waived his right to a jury trial and the record was silent as to the waiver. The assistant State's Attorney and the presiding trial judge both testified that defendant's attorney waived jury in defendant's presence. We held that the court could allow an amendment without some documentation in the record since the amendment supplied an omission in the record and did not impeach or contradict the contents thereof. In this instance, the trial judge's comments do not contradict the record, but in fact support the docket entry regarding defendant's waiver. While defendant's trial counsel filed affidavits with their post-trial motion asserting otherwise, resolution of any conflicts in the evidence is the responsibility of the trier of fact, and we will not substitute our judgment for that of the trial court. (People v. Villalobos (1979), 78 Ill. App.3d 6, 11-12, 396 N.E.2d 1081.) We believe that the trial court's finding regarding defendant's waiver is not against the manifest weight of the evidence.

• 3 Defendant next asserts that his conviction and sentence for possession of diazepam, a Schedule IV controlled substance, should be vacated as section 402(b) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)) was found to be unconstitutional in People v. Natoli (1979), 70 Ill. App.3d 131, 387 N.E.2d 1096. Our supreme court upheld the unconstitutionality of section 402(b) as applied to Schedule IV controlled substances in People v. Bradley (1980), 79 Ill.2d ...

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