Appeal from the Circuit Court of Lake County; the Hon. Thomas
R. Doran, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, William Lee Miller, was found guilty in a jury trial of the unlawful delivery of a controlled substance (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(b)), and was sentenced to a six-year term of imprisonment and fined $6,000.
Defendant raises the following issues on appeal: (1) that he was denied a fair trial by a remark made in the prosecutor's opening statement and by an answer of a State witness which was objected to and sustained; (2) that he was denied a fair trial as a result of a prejudicial article in a newspaper found in the possession of a juror; (3) that the prosecutor's closing argument contained certain prejudicial comments; and (4) that this court should remand for a hearing on defendant's ability to pay the $6,000 fine.
Since the sufficiency of the evidence is not raised on appeal, we summarize only the evidence and proceedings below which are necessary for an understanding of the case and the issues presented for our review.
Defendant was charged in an indictment with unlawful delivery of less than 30 grams of a controlled substance, heroin, alleged to have occurred on March 6, 1978. Immediately prior to the jury trial commencing, defendant made an oral motion in limine to prohibit the State from mentioning anything in opening statement or trial relative to any other offenses committed by the defendant. After some discussion, the motion was granted although the court indicated the State could show that the alleged sale on March 6, 1978, was agreed upon on a previous occasion and what the terms of that agreement were. In his opening statement, the prosecutor, in detailing the sale on March 6, began relating a conversation an undercover agent had with the defendant at the end of the sale about "future availability of heroin." An objection by defendant was sustained by the trial court, and the jury was admonished that what the State's attorney said was not evidence. A motion for mistrial was denied.
At trial, the State's witnesses testified that James Warren, an undercover agent, went to the Rib Pit, a restaurant owned by defendant, on March 6, 1978; that Warren talked with LeRoy Williams, the cook at the restaurant, who made a telephone call and defendant arrived in the area shortly thereafter; that defendant first went into a pool hall, purportedly also owned by defendant, just down the street, for about 30 seconds; that defendant then came to the Rib Pit and Warren and defendant went into the back room; that defendant asked where the TV set was and Warren went to his car, picked up the TV set and placed it on the floor in the back room; that defendant examined the TV set and then told Warren to go to the pool hall and pick up the package; that Warren went to the pool hall and observed one individual there; that the individual gave Warren six tinfoil packets, later determined to be 1.92 grams of a substance containing heroin, and six $5 bills; and that Warren left the pool hall, talked with defendant briefly, and then left the area. Other law enforcement officers had Warren under surveillance and observed portions of defendant's and Warren's actions.
During the prosecutor's direct examination of the witness, Warren responded that the decision to use the TV set as a "prop" item was because that was "the modus operandi of the defendant." Defendant's objection to this answer was sustained and the jury was instructed to disregard the answer. When the State later, outside the presence of the jury, sought to allow Warren to testify to a prior conversation with defendant in which the sale of heroin was set up in exchange for the TV set, the court disallowed the evidence on the basis it should have been introduced earlier in Warren's testimony.
At the close of the State's evidence, defendant's attorney told the court he had seen an article in the Waukegan News-Sun very derogatory to defendant. After a discussion on other matters and after the defendant in open court rested without presenting any witnesses, the matter of the News-Sun article was again raised by defendant. The record indicates that defendant's attorney requested that the court have its bailiff find out whether a copy of the News-Sun was in the jury room. The bailiff found one copy of the News-Sun in the possession of one of the jurors. A discussion ensued between the court and the State's attorney and defense attorney. It was not determined whether the juror, or any other juror, had read the article. The prosecutor recommended that they voir dire the jurors at that time. The court stated it did not know who the juror was who had the newspaper, but they could ascertain this. Defendant's counsel stated he did not want to do it then and draw undue attention to it. The court agreed with that reasoning. The defendant's motion for a mistrial on the basis of the article was denied, and the court stated the defendant could renew the motion later in the form of a motion for new trial, should he wish, and a hearing would be held on any prejudicial effect of the article on the jurors. No further mention is made in the record of this issue nor was it raised in defendant's written motion for a new trial.
The News-Sun, dated September 15, 1978, the same date as the last day of trial, contained an article on page two, which recounted portions of the trial and further stated, in substance, that defendant was arrested following a three-month investigation by police who believed he was one of the area's chief suppliers of hard drugs; that defendant was awaiting trial on charges stemming from three other alleged "buys" which were not then being presented to the jurors; and that defendant was acquitted the previous December of delivering heroin to a police informant.
Following closing arguments, during which defendant objected to the prosecutor's references to the uncontradicted nature of the evidence and the defendant's power to subpoena LeRoy Williams, a cook at defendant's restaurant, the defendant was found guilty by the jury. He was sentenced to a six-year term of imprisonment and fined $6,000.
• 1 Defendant contends that he should be granted a new trial due to two instances of improper suggestions by the State that he committed uncharged offenses. One of these, he maintains, occurred during the prosecutor's opening statement when, in detailing the alleged sale, the prosecutor stated the defendant and Warren, the undercover agent, discussed future availability of heroin. The trial court had previously granted defendant's motion in limine prohibiting the State from mentioning anything relative to other offenses committed by defendant.
Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant's propensity to commit crime. (People v. Lindgren (1980), 79 Ill.2d 129, 137, 402 N.E.2d 238.) However, evidence of the commission of other crimes is admissible when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake; and it has been held that evidence of other offenses is admissible if it is relevant for any other purpose than to show the propensity to commit crime. (People v. McKibbins (1983), 96 Ill.2d 176, 182, 449 N.E.2d 821.) In People v. Hill (1978), 56 Ill. App.3d 510, 512, 371 N.E.2d 1257, the appellate court held that a statement about a future sale made in the context of the transaction upon which he was being tried was relevant to his present state of mind and his intent and knowledge at the time of that transaction.
Thus, we conclude, the statement purportedly made by defendant about future availability of heroin should have been admissible in evidence. Further, since the trial court sustained defendant's objection to this comment in the prosecutor's opening statement and informed the jury opening statements were not evidence, even if the prosecutor's comment was improper, we find no reversible error under these circumstances. (See People v. Lampton (1982), 108 Ill. App.3d 41, 45-46, 438 N.E.2d 915.) Moreover, an improper remark in opening statement does not constitute reversible error unless it results in substantial prejudice to defendant. People v. Pittman (1982), 93 Ill.2d 169, 175-76, 442 N.E.2d 836.
• 2 The other instance which defendant claims suggests he committed an uncharged offense is an answer by undercover agent Warren that the decision to use a TV set as a "prop" item for purchase of heroin was the modus operandi of the defendant. Defendant's objection to that answer was sustained by the trial judge who then instructed the jury to disregard the answer. Normally, sustaining an immediate objection by the defense and giving an appropriate instruction to the jury cures any error. (People v. Bartall (1983), 98 Ill.2d 294, 317; People v. Carlson (1980), 79 Ill.2d 564, 577, 404 N.E.2d 233.) Under the circumstances here, where the trial court upon the urging of the defendant, rejected the prosecutor's attempt to show a prior conversation with the defendant in which the terms of ...