APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
521 N.E.2d 538, 165 Ill. App. 3d 968, 118 Ill. Dec. 256 1988.IL.27
Date Filed: January 19, 1988; December 22, 1987, nunc pro tunc
Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.
JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Defendant, Anthony Marshall, was convicted by a jury of possession of a controlled substance (cocaine) in an amount greater than 10 grams but less than 30 grams with the intent to deliver. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2).) Defendant was sentenced to 12 years' imprisonment and now appeals his conviction.
Defendant contends the following on appeal: (1) the trial court erroneously denied his motion for substitution of Judges; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the State's allegedly improper conduct and closing argument denied him a fair trial; (4) the trial court erroneously denied his motion for a continuance to obtain testimony of a witness; and (5) the jury's verdict was a result of coercive conduct of the trial court. For the following reasons we affirm defendant's conviction.
The record shows that charges were brought against defendant as a result of the execution of a search warrant obtained a few days before defendant's arrest. Surveillance was conducted of an apartment located at 5919 South Union, No. 2B, Chicago, Illinois, based on suspicion of drug trafficking.
At trial, the State's case mainly consisted of the testimony of two officers, Cross and Brady, who, along with others, executed the search warrant. Officer Cross testified that he observed defendant and others enter and leave the apartment several times during the surveillance. Cross obtained a search warrant for the apartment. The warrant contained a description of "a male black, 25 to 30 years old, 6' - 6'2", 170 pounds, dark complected, known as 'Tony'."
After securing the warrant, several officers went to the apartment at approximately 8:15 p.m. on March 23, 1984. They announced their office, asked to be admitted, stated they had a warrant and were denied entry. The officers heard screaming and running from within the apartment. They used a sledgehammer to forcefully enter the apartment. Immediately after entry, the officers observed defendant sitting at a table. There were bags of "white powder," marijuana in tinfoil, plastic bags, measuring spoons and a scale directly in front of the defendant on the table. A handgun, other paraphernalia, i.e., cocaine packaged in a lottery ticket (known as a "snow seal"), and a foil packet containing marijuana laced with PCP, were on the floor at defendant's feet. When the police handcuffed defendant, they recovered another bag of cocaine defendant attempted to conceal in his clenched fist. The officers searched the defendant and recovered $600 in cash and some marijuana.
There were seven others in the apartment. None of the others were arrested and none of them were sitting close to defendant.
When the officers were leaving the apartment with the defendant, he said he "wanted to leave his apartment under the control of Laverne Elliott," a/k/a Green, one of the other persons in the apartment. Defendant gave the address of that apartment as his address in the arrest report and the same address appears in the presentence investigation report.
The State's other witnesses during its case in chief were Officer Brady, whose testimony corroborated Officer Cross' testimony, and Constance Briol, a chemist who confirmed the controlled substances. Both officers testified that there were scissor "burglar bars" attached to the door but they were unlocked when the warrant was executed.
The defense consisted of the testimony of Ray Stafford, Jimmie Peeples, and Lavonne Green (a/k/a Elliott), all of whom were in the apartment at the time of the "raid." William McGaughey, the owner of the building, also testified for the defense.
Stafford, defendant's friend, testified that he, a friend (Scarborough), and defendant went to the apartment that was Alan Tidwell's (a/k/a Mickey's) house. Tidwell was deceased by the time of trial. Tidwell, Jimmie Peeples, Lavonne, and Donna Martin were at the apartment. Donna Martin was Tidwell's girlfriend. They were cooking a meal. Defendant was standing in the doorway to the kitchen and the others were sitting on a couch when the police broke down the door. Peeples was in the process of letting another man, whom the witness did not know, out of the apartment when the door was forced open. He also testified that this other man bought cocaine from Tidwell.
Stafford also testified that the officers advised everyone in the apartment that if anyone had a weapon they better give it up. According to Stafford, Tidwell told them he had a pistol and took the officers to the bedroom to get it. He also testified that he witnessed the search of defendant and nothing was removed from defendant's pockets or hand. The packet of cocaine was on the floor between defendant and the other male that the witness did not know. Nothing was on the table.
William McGaughey testified that he was the owner of the building, Donna Martin was the lessee of the apartment, it was not rented to Tidwell or the defendant, and there were no "burglar bars" on the door.
Lavonne Green (a/k/a Elliott), also a friend of defendant's, testified that Tidwell and Donna Martin lived in the apartment, they were all cooking dinner, defendant and a couple of other guys came to the apartment, and another guy, whom the witness did not know, came to buy cocaine from Tidwell. She testified that Tidwell admitted that the cocaine was his; however, this testimony was stricken after objection by the State. She saw the officers put flour from a canister in the kitchen into a plastic bag. She also testified that she saw defendant searched and nothing was recovered from him. The cocaine on the floor was behind the guy she did not know.
Jimmy Peeples, a friend of the defendant's, testified that he and Tidwell went to the apartment, which was Tidwell's. Tidwell had been staying with Peeples for about two days prior to the raid. Tidwell and Donna Martin lived in the apartment. They were all at the apartment cooking dinner and playing cards. Later defendant, Stafford, and another guy he didn't know came over to the apartment. The unknown male came to buy cocaine from Tidwell. Defendant was not seated at the table. When Peeples went to open the door, it flew open, hit him in the chest and he fell onto a couch. He testified that Lavonne Green was at the table and Carol Martin was hiding in the bedroom closet. After the raid, he saw the police recover the cocaine from the floor, directly behind the unknown male. Tidwell took the police into the bedroom and gave them the gun.
After these witnesses testified, defense counsel sought a continuance of the trial to enable him to locate Donna Martin. After a lengthy delay and the court's efforts to determine the witness' whereabouts, the continuance was denied.
The State called Officer Ramsey, who commanded the raid, in rebuttal. His testimony corroborated the other officers' testimony.
An instruction conference was held, followed by closing arguments and the charging of the jury. The jury retired to deliberate at 9:20 p.m. and returned a verdict at approximately 1:10 a.m. The jury found defendant guilty of possession with intent to deliver more than 10 but less than 30 grams of a controlled substance.
Following the denial of defendant's post-trial motions and evidence in aggravation and mitigation, defendant was sentenced to 12 years' imprisonment. This appeal followed. I
First, defendant contends that reversible error occurred because the trial court was prejudiced against the defendant, the court denied defendant's motion for substitution of Judges without transferring it for a ...