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06/23/88 the People of the State of v. Patricia Thomas

June 23, 1988





526 N.E.2d 467, 172 Ill. App. 3d 172, 122 Ill. Dec. 208 1988.IL.987

Appeal from the Circuit Court of Cook County; the Hon. John W. Crilly, Judge, presiding.


JUSTICE LINN delivered the opinion of the court. McMORROW and JOHNSON, JJ., concur.


After a jury trial, defendant, Patricia Thomas, was convicted of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(1)) and sentenced to six years' imprisonment. On appeal she contends that the trial court erred in refusing to give the pattern jury instruction which covers impeachment by prior inconsistent statements; that she was denied a fair trial by improper prosecutorial argument; and that the jury's verdict was improperly hastened and must be set aside. We affirm.

It is undisputed that a car driven by Donald Wright with defendant seated in the front and a man seated in the back pulled up to a Chicago intersection which police had under surveillance. Defendant exited the car and walked into one of the intersecting streets, passing out of the officers' line of vision. As she walked from the car, she carried nothing in her hands. After defendant exited the car, it drove away from the intersection. A few minutes later defendant walked back into sight of the officers. She was now carrying a white bag with a McDonald's logo on it. No McDonald's restaurant, however, was located in the vicinity. When she arrived at the corner where she had been dropped off, the car returned and picked her up. The car again pulled away from the corner, followed by an unmarked surveillance vehicle.

After a short drive, the suspect car stopped at a traffic signal. At this time, the officers left the surveillance vehicle, approached the suspect car with guns drawn, announced their office, and ordered the occupants out of the car. When the occupants had complied with this order, the police seized the white McDonald's bag, which contained a plastic bag holding 676 grams of heroin, from the vehicle's floor near where defendant had sat. Also seized from under the floor mat of the driver's position were a knotted sock, syringe, needle and bottle cap, and from the backseat a box containing several hundred small plastic packets of the type known by the officers to be used in the distribution and sale of narcotics.

The factual dispute here concerns the location of the McDonald's bag when the police approached the suspect car. Officer Vondrak testified that he approached the vehicle on the passenger's side and when defendant looked at him she threw the bag from her lap onto the floor of the car. Officer Brier testified that he also saw the bag on defendant's lap when he reached the suspect car and that defendant dropped the bag to the floor just prior to exiting the vehicle. Defendant, on the other hand, testified that she had put the bag on the floor when she reentered the car and that the bag was still on the floor when the police reached the car.

According to defendant's testimony, Wright, a neighborhood friend for several months, was taking her to a friend's house. Unexpectedly, he stopped at the intersection and asked her to go to a certain house and tell Mary, a person unknown to defendant, that he was looking for her. Defendant followed directions and encountered a woman clad in pajamas who asked defendant to give the bag to Wright. Defendant complied. Although she knew Wright to be a drug dealer, defendant testified that she did not believe that he would ask her to pick up and transport drugs for him. She further testified that she did not know what was in the bag.

Defendant first contends that the trial court erred in refusing to give the pattern jury instruction concerning the impeachment of a witness by a prior inconsistent statement (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981)). Defendant takes the position that the timing of her placement of the bag on the car floor was the crux of the State's case concerning her knowledge of its contents because the bag was closed, opaque, and no evidence was presented that she had ever opened it. Thus, she urges the importance of statements of the police report to the effect that the occupants were unaware of police presence and that the bag was dropped by defendant after being ordered out of the car. Defendant contends that these statements are inconsistent with Officer Vondrak's testimony that defendant looked at him before disposing of the bag and only then threw the bag to the floor.

Confronted with the police report during cross-examination, Officer Vondrak testified that the reference to the suspect's lack of knowledge of police presence applied to the point in time when the officers exited the surveillance vehicle and began to approach the suspect car on foot. Once they arrived at the car, Officer Vondrak testified that he showed his badge and announced his office. When defendant was apprised of the presence of police, she disposed of the bag. He further testified that the following all occurred almost simultaneously: (a) the arrival of police at the suspect car, (b) the announcement of their office, (c) the command to exit the vehicle, (d) defendant's observation of him, armed and displaying his badge, and (e) defendant's removal of the bag from her lap. Officer Brier, who wrote the report, also testified that defendant's actions were effectively simultaneous in that when she threw the bag off of her lap, it hit the floor as she was pivoting her body to exit the car.

The function served by jury instructions is to convey the correct principles of law applicable to the evidence submitted to the jury so that the jury may arrive at a correct Conclusion according to the law and evidence. (People v. Mitchell (1975), 27 Ill. App. 3d 117, 327 N.E.2d 158.) The pattern jury instruction regarding inconsistent statements is appropriately given only where two statements are inconsistent on a material matter. (People v. Cihlar (1982), 106 Ill. App. 3d 824, 436 N.E.2d 1041.) The materiality of an inconsistency in statements exists where the contradiction reasonably tends to discredit the testimony of the witness on a material matter, and such determination lies within the discretion of the trial court. People v. Villa (1981), 93 Ill. App. 3d 196, 416 N.E.2d 1226.

For example, in People v. Mitchell two prior statements of the State's sole witness whose trial testimony linked defendant to the crime of murder indicated that he did not see the stabbing. There, the inconsistency was considered material and the failure to give the pattern instructions on inconsistent statements was held to be reversible error. (Mitchell, 27 Ill. App. 3d at 121-22.) In People v. Villa, however, a State's witness testified at trial that she heard two gunshots close together, that they were not hard to distinguish, and that after the second shot she closed her eyes and screamed. In her statement to police made immediately after the incident, she indicated to the contrary, that the shots were hard to distinguish and that her eyes were closed before the first shot was fired. Inasmuch as the witness' statements consistently referred to the existence of two shots and her trial testimony was similar to her prior statement, it was held that the inconsistencies in detail of which defendant complained did not constitute a material contradiction and the denial of the inconsistent statements instruction was not an abuse of discretion. (Villa, 93 Ill. App. 3d at 202.) Similarly in People v. Cihlar a victim consistently reported the substance of the statements ...

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