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People v. Burke

OPINION FILED SEPTEMBER 16, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BARBARA J. BURKE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Piatt County; the Hon. John P. Shonkwiler, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Defendant was convicted by a jury of the offenses of possession of cannabis, possession of cannabis with intent to deliver, and possession of a controlled substance (LSD). (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 704(d), 705(d), 1402(b).) Judgment was entered on the latter two convictions. Defendant was sentenced to concurrent terms of four years' probation on the conviction for possession of cannabis with intent to deliver, and 2 1/2 years' probation on the conviction of possession of a controlled substance. As a condition of each probation, she was ordered to serve six months in the county jail, with the first 30 days to be served forthwith, and the last five months to be served at the end of each probationary term, which could be vacated by the court upon its finding that there had been no violations of probation. The court further found the defendant in a position to pay costs of suit, and ordered her to do so during the four-year term of probation, including as a part of costs the court-appointed counsel fees of $2,230.34.

Defendant appeals from the judgment of the circuit court of Piatt County, arguing: (1) She was not proved guilty beyond a reasonable doubt; (2) she was denied a fair trial by the prosecutor's comments in closing argument that the presumption of innocence lasted only "until we say different," and argument of facts not in evidence; (3) the court erred in sentencing her to a term of probation in excess of that permitted for the offense of possession of cannabis with an intent to deliver; (4) the court abused its discretion in sentencing her to any term of imprisonment as a condition of her probation; and (5) the court erred in ordering recoupment under section 113-3.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 113-3.1(a)), by failing to conduct a hearing before ordering the payment, and in the absence of evidence demonstrating her "foreseeable ability to pay."

Defendant's reasonable doubt argument requires an excursus into the evidence adduced at trial. Following several drug purchases by an agent of the Illinois Division of Criminal Investigation from Jon Burke, defendant's husband, a search warrant was executed at the Burke residence on the night of May 8, 1984. Defendant was home at the time of the search and authorities seized marijuana and drug paraphernalia from various parts of the house and a small brown vial from the freezer compartment of the refrigerator which contained a substance later identified as LSD. Defendant's husband entered a negotiated plea of guilty to charges arising from the search, and was sentenced to two years' imprisonment. At trial, David Crouch, special agent with the Illinois Division of Criminal Investigation, testified he was introduced to Jon Burke through a confidential source on March 15, 1984, and was invited to the Burke residence by Jon. Crouch observed the defendant, along with two others, sitting at the kitchen table. The individual accompanying Crouch asked defendant's husband, in an average conversational tone and standing about three or four feet from the kitchen table, whether he had any cannabis. Defendant's husband then took the two men into another room, where Crouch purchased LSD and the other individual bought cannabis.

Crouch testified he returned to the Burke residence on April 2, 1984, and was admitted by defendant's husband. Crouch asked if he had any LSD, and Jon replied that he did not, but said he had some good cannabis. Crouch testified that he asked Jon if he could see it, and Jon went down the hallway to the living room area, returning within seconds, and laid four plastic bags of cannabis on the kitchen table. In the interim, Crouch testified he exchanged conversation with the defendant, who was stove-frying potatoes, about her cooking. After the cannabis was laid on the table, Crouch examined it and gave Jon $110. Crouch again asked Burke if he had any LSD, and Burke responded he did not, but turned to defendant and asked her if "Randy" had any, and defendant answered she did not know. Crouch then left.

Crouch testified that he returned to the Burke residence on May 8, 1984, and was admitted by Jon but did not see the defendant. He bought some cannabis, which was paid for with marked United States currency, which currency was recovered during the execution of the search warrant that night.

Officers testified about executing the search warrant including testimony that the brown vial containing the LSD was found in the foremost front of the freezer compartment of the refrigerator, near pizza and frozen meat. A photograph admitted as an exhibit showed the vial in plain view in the front portion of the freezer. Marijuana seeds, the remains of marijuana cigarettes, and drug paraphernalia were recovered from the kitchen area, the living room, and the bedroom. A scale for weighing marijuana was found in the kitchen cabinet with the dishes. Plastic bags containing cannabis were found in the master bedroom closet in association with both men's and women's clothing.

Assistant State's Attorney Daniel Merriman and State's Attorney Hugh Finson testified about certain statements made by the defendant to Finson on the morning of May 9, 1984. Defendant had accompanied her husband's sister to Finson's office to discuss the amount of Jon Burke's bond. During the course of the discussion, defendant made statements to the effect that "we are just trying to get back on our feet," and "we are just trying to make a life for ourselves." Both Merriman and Finson testified to defendant's use of the plural pronoun, "we," in making these statements.

At the close of the State's case, the court directed a verdict as to other charges on which defendant had been tried in connection with the first two drug sales to Crouch.

Defendant testified in her own behalf, and said her husband had been using marijuana for several years, and that he kept it in the house, in his closets and in the living room. She identified the photographs showing drugs found in the search as showing her husband's side of the closet and his clothes, and not her own. According to her testimony, none of the drug-related materials testified to belonged to her, nor had they ever been used by her, including a colander or sifter which had been introduced into evidence. She said she did not use marijuana, but was aware of her husband's use and sale of the substance. She said she did not approve of the conduct and had expressed her disapproval quite often in statements to him. Defendant testified that her husband had never furnished her with any of the money that he received from selling drugs, but acknowledged that he had used some of the money to pay rent. She also said he baby-sat their four-year-old child, as he was not working. She stated that she purchased most of the family food, clothing, and miscellaneous items from her earnings, having worked full time for three years.

Defendant testified that when she spoke to Finson on the morning of May 9, 1984, she had not been telling him that she was engaged in any illegal drug sales with her husband, but merely expressing her concern about the fact that her husband was in jail with a high bond, and that this would affect her ability to work.

Defendant testified that she had never seen the brown vial found in the freezer which contained LSD, although she acknowledged that she did use the freezer; and she said she knew of the presence of marijuana in the house.

Her testimony indicated her awareness that when Crouch came to the house in March 1984, the person accompanying him asked her husband if he had any marijuana. As to the April 1984 sale to Crouch, she denied having heard the conversation between Crouch and her husband, and said she did not recall her husband asking her about "Randy" or having made a response.

In rebuttal, an officer testified that the clothing had been removed from the closets in executing the search warrant, and that the items in compartments where the drugs were found were of different sizes, such that it was obvious that it was not one person's clothing, as some items were smaller, such as would be worn by a woman.

Defendant argues she was not proved guilty beyond a reasonable doubt of the charged offenses. Her theory of the case is essentially that the substances found in the home were under the control of her husband, for his personal use and sale, and that she engaged in no affirmative act to aid, abet, or encourage his drug transactions. In People v. Nettles (1961), 23 Ill.2d 306, 308-09, 178 N.E.2d 361, 363, the court stated that where narcotics are found on the premises under the control of the defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the trier of fact a reasonable doubt as to his guilt. Defendant suggests that the inference of ...


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