Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
The defendant, Peter Chrisos, and two co-defendants were charged in a three-count information filed in the circuit court of Cook County with the following offenses: (1) unlawfully possessing, with intent to deliver, more than 30 grams of a substance containing cocaine in violation of section 401(a) of the Illinois Controlled Substances Act; (2) unlawfully possessing a substance containing diazepam, also known as valium, in violation of section 401(b) of the Illinois Controlled Substances Act; and (3) unlawfully possessing, with intent to deliver, more than 30 grams of a substance containing cannabis in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1401(a), 1401(b), 705(d)). Prior to trial, the court accepted the defendant's guilty plea on the cannabis and diazepam charges and deferred sentencing on those counts. The court also granted the State's motion to nol-pros the charges against one co-defendant and subsequently directed a finding in favor of the other. Later, a jury found the defendant guilty on the cocaine charge, and the trial court sentenced him to seven years' imprisonment after denying his post-trial motion.
The defendant appeals and asks that this court reverse his conviction and remand the matter for a new trial for the following reasons: (1) the trial court improperly admitted evidence that the defendant possessed diazepam and cannabis in his trial for unlawful possession of cocaine with intent to deliver; (2) the trial court improperly permitted the prosecution to cross-examine the defendant concerning a statement the State claimed he allegedly made while pleading guilty to the cannabis charge; (3) the prosecution improperly argued that the guilty plea on the cannabis charge could be considered as evidence of defendant's intent to deliver cocaine; and (4) the trial court improperly instructed the jury regarding defendant's involvement in other offenses.
The following evidence introduced at trial is relevant to the issues before this court. On March 23, 1983, four Chicago police officers executed a search warrant for a house located at 32 North Fifth Avenue in Des Plaines, which, at that time, was leased to the defendant and his wife. Present at the time of the raid were the defendant, his wife, their two children, and William Hahn. One of the officers conducting the search, Patrick Darcy, who testified on behalf of the State, stated that he announced his office and his purpose when the defendant opened the door. Despite the defendant's attempt to shut the door, Darcy said he was able to gain entry. Darcy testified that, after entering the house, he saw the defendant run into the bathroom with what looked like a blue and black tool-box and slam the door. Darcy broke down the bathroom door and saw the defendant take a clear plastic bag containing a white powder from the box, throw it into the toilet, and flush the toilet. Darcy was able to retrieve the bag and its contents, which were subsequently introduced into evidence at trial. Darcy then took the defendant to the front of the house and placed the defendant, his wife, and Hahn under arrest.
Darcy's partner, George Graham, also testified for the State and corroborated Darcy's testimony regarding the events leading up to the arrests. Graham testified that he seized the blue and black box in the bathroom, took it to the front of the house, and inspected its contents. Graham said the box contained testing kits, a plastic bag containing nine blue tablets with the name valium marked on the tablets, a plastic bag containing other blue tablets, a powder sifter which could be used to grind cocaine in chunk form, and $4,650 contained in five envelopes. Graham further testified that he recovered two plastic bags containing a crushed plant and a gram scale from a shelf in a bedroom closet. The box, its contents, the bags of crushed plant, and the scale were also introduced into evidence at trial.
The parties stipulated that the State's chemists, if called to testify, would testify that the plastic bag contained 85.7 grams of cocaine, that the 18 paper packets contained 4.5 grams of cocaine, that the crushed green plant was cannabis sativa and weighed 321 grams, that the nine blue tablets marked valium contained diazepam, and that the remaining blue tablets did not contain a controlled substance.
The defendant's mother testified for the defense and stated that both she and the defendant worked in 1977 as sales representatives for a water-softening company. She testified that the blue and black box recovered from the defendant's home appeared to be one of the kits that each received for their water-softening demonstrations. The witness compared that kit with her own and stated that the defendant's kit was missing some of the original contents and contained additional items that she did not recognize. She admitted that the kits they had been given had not contained cocaine or any other controlled substance.
The defendant testified in his own behalf. The defendant stated that he first began to use drugs in the fall of 1982 when he picked the marijuana seized at his home while on a fishing trip in southern Illinois. He said he would smoke the marijuana once or twice a week and, shortly thereafter, began to use cocaine. The defendant testified that he later began to use cocaine once or twice a week and purchased it from a co-worker in 1/4- or 1/2-gram packets. Despite the fact that the defendant began to use cocaine daily, consuming two or three grams per week, the defendant asserted that he continued to purchase cocaine in 1/4-gram packets. The defendant also testified that he was planning to go to Arkansas for a vacation so, on the day of his arrest, he purchased twenty-four 1/4-gram packets of cocaine for the trip. He further stated that he had used one packet before his arrest.
The defendant said that the only cocaine he possessed at the time of his arrest was contained in the 1/4-gram packets purchased for his trip to Arkansas. He claimed he never saw the large bag of cocaine until Officer Darcy confronted him with it and threatened him with a Class X felony charge unless he implicated William Hahn as his supplier. Furthermore, the defendant denied keeping any drugs or money in his water-softening kit. He stated that the kit was kept under the bathroom sink and that he had not touched it in years. The defendant also testified that the money confiscated during the search was kept in a bedroom dresser, that half of the money belonged to his brother, and that it was to be invested in their uncle's restaurant in Arkansas. Furthermore, the defendant claimed that both the scale and the sifter were stored in the garage and belonged to his stepfather. The defendant asserted that he had never used them for any purpose. Finally, the defendant denied ever selling, transferring, or intending to sell or transfer cocaine to anyone; he contended that he possessed cocaine only for his personal use.
Subsequently, as previously stated, the jury found the defendant guilty, and the trial judge sentenced him to seven years' imprisonment after denying his motion for a new trial.
The defendant initially contends that the trial court improperly admitted evidence that he possessed diazepam and cannabis in his trial for possessing cocaine with intent to deliver. He asserts that, since he pleaded guilty to the charges relating to diazepam and cannabis, the evidence relating to those substances was irrelevant to the issues before the jury. The defendant contends that possession of diazepam or cannabis is not probative of his intent, if any, to deliver cocaine and cites People v. Pates (1981), 84 Ill.2d 82, 417 N.E.2d 618, as support for his contention. The defendant argues that this evidence of "other crimes" was improper and prejudicial because it only showed his criminal propensity, i.e., it only showed that the defendant had a propensity to illegally possess drugs. The State, on the other hand, argues that the evidence was properly admitted as it was recovered during the same occurrence and, additionally, it showed a common plan. Furthermore, the State asserts that the combination of the substances possessed by the defendant, as well as the quantity, is probative of his intent to distribute cocaine.
• 1, 2 With respect to evidence of "other crimes," our supreme court has stated that "evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime." (People v. McKibbins (1983), 96 Ill.2d 176, 182, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L.Ed.2d 136, 104 S.Ct. 145; see People v. Bartall (1983), 98 Ill.2d 294, 309-10, 456 N.E.2d 59.) Whether an individual possesses the intent to deliver a controlled substance is not always subject to direct proof. (People v. Knight (1985), 133 Ill. App.3d 248, 478 N.E.2d 1082.) A reasonable inference of intent, however, is permitted where the amount of controlled substance possessed could not be viewed as designed for personal consumption. (People v. Schaefer (1985), 133 Ill. App.3d 697, 479 N.E.2d 428.) This inference of intent may be enhanced by the combination of drugs and the manner in which they are kept. People v. Hunter (1984), 124 Ill. App.3d 516, 464 N.E.2d 659.
The defendant claims that intent to deliver one controlled substance cannot be proved by a defendant's possession of other controlled substances. However, this court rejected that argument in People v. Hunter (1984), 124 Ill. App.3d 516, 464 N.E.2d 659. The defendant in Hunter was arrested and charged with possession of a controlled substance with intent to deliver after the police saw approximately 10 to 14 pink and blue pills in the passenger compartment of the defendant's car. A search of the trunk revealed over 300 pills of commonly abused substances. At his trial, the defendant claimed, like the defendant claims here, that the controlled substances were for his own use. The State was permitted to introduce evidence that the defendant in Hunter was violating additional sections of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1100 et seq.) at the time of his arrest, i.e., that he possessed other controlled substances for which he was not charged and that he possessed controlled substances in mislabeled containers. The defendant in Hunter argued that possession of a completely different controlled substance could not be used to establish intent to deliver the substance charged. In rejecting the defendant's argument the court said, "Evidence of other ...