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08/25/88 the People of the State of v. Jacqueline Carter

August 25, 1988





528 N.E.2d 349, 174 Ill. App. 3d 369, 123 Ill. Dec. 804 1988.IL.1312

Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.


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


Following a jury trial, the defendant, Jacqueline Carter, was convicted of possession of a controlled substance and sentenced to a four-year prison term. The court also fined the defendant $26,062 under the Crime Victims Compensation Act (Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.). On appeal, the defendant contends that: (1) certain evidence excluded by the court was admissible as a declaration against penal interest; (2) refusal to grant immunity to a prospective defense witness served to deny the defendant a fair trial; (3) the trial court erred in excusing prospective jurors on the basis of pending traffic tickets; (4) the State was improperly allowed to introduce statements attributable to the defendant which were not disclosed to the defense prior to trial; and (5) the court erred in allowing the jury to render a verdict on a lesser charge, then sending it back to continue deliberations on the greater charge.

The defendant was charged with possession of a controlled substance with intent to deliver after customs officials at O'Hare airport discovered 387 grams of heroin hidden in a laxative container in the defendant's suitcase. The evidence presented by the State showed that at 5:30 p.m. on November 26, 1984, the defendant came to the customs inspection area after arriving on a flight from Germany. Inspector Hillary Gardley testified that he inspected the defendant's passport and noticed that she had entered the United States two weeks earlier. He then asked the defendant general questions such as where she had been, how long she had been away, and her reason for going. When asked if she had been visiting someone in Germany, the defendant replied, "No one." Defense counsel objected to the introduction of this statement on the grounds that the substance of the statement had not been tendered to the defense pursuant to Supreme Court Rule 412 (87 Ill. 2d R. 412). The trial court denied the objection, apparently on the basis that the State had substantially complied with Rule 412 and the defendant was not prejudiced by the State's use of the statement at trial. Gardley testified that he then carried the defendant's bags to the secondary inspection area and gave them to Inspector Shirley Jordan.

In answer to Jordan's questions, the defendant stated that she had been in Germany for one week, that she had not been visiting friends or family and that she was unemployed. Jordan testified that the defendant's airline ticket had been purchased with cash and that in inspecting the defendant's purse, Jordan found a second airline ticket from Icelandic Air. Jordan then found a tall bottle of Metamucil, a laxative, in the defendant's carry-on bag. Upon tilting it, she noticed that the bottle "felt strange" and asked the defendant to open it. Although a visual inspection revealed nothing unusual, Jordan believed that a further search was warranted and sent the defendant to a search room where she was met by Inspector Doris Kirby.

Kirby probed the Metamucil bottle and heard a "pop" or puncture sound. She then summoned a supervisor who cut the container and discovered a plastic bag containing a substance which tested positive for heroin. Kirby turned the bag over to Detective Tom Kinsella, who was assigned to the Drug Enforcement Administration Task Force at O'Hare airport.

The defendant was advised of her constitutional rights and placed under arrest. Kinsella testified that when he asked the defendant whether she was traveling alone on the flight, she responded that she was traveling with an individual named Richard Benson and gave a physical description of Benson. Later she stated that Benson was not on the flight with her, but rather flew in separately from London to New York and was to meet her at the airport. Kinsella then asked the defendant if Benson knew when her flight was arriving and she stated that he did not know what flight she was on. At that point, Kinsella told the defendant that there were discrepancies in her answers and the conversation ended. Kinsella testified that he subsequently met Richard Benson near the customs area at O'Hare and that Benson identified himself as "Triplett."

Prior to the defendant's case in chief, Richard Benson was called as a witness outside of the jury's presence and declined to answer questions, invoking his fifth amendment right against self-incrimination. At that time, defense counsel requested that the court direct the State to grant Benson immunity so that he could give testimony exculpating the defendant. The court denied the request.

The defendant testified that Richard Benson was her boyfriend and that they decided to take a vacation to Germany. She stated that she had a cousin in the military who was stationed in Germany, that they were very close and that she saw the trip as an opportunity to visit him. However, a few days after arriving in Germany, the defendant began to suffer from constipation and became very ill. She could not find an English-speaking doctor, so she returned to Chicago, where her mother treated her with home remedies. One week after her return, she visited a doctor who prescribed the laxative Metamucil. The defendant returned to Germany that same day to continue her vacation.

The defendant further testified that she returned to Chicago on November 26, 1984, on a separate flight from that of Richard Benson. She stated that she did not put the heroin in the Metamucil bottle and did not know who placed it there. The defendant then attempted to testify concerning a conversation which she had with Benson in the early winter months of 1985. The court sustained a hearsay objection by the State and the defendant made an offer of proof as to the contents of the conversation. The defendant stated that Benson told her that her cousin had placed the heroin in the Metamucil bottle, that Benson knew it had been placed there, that the defendant's cousin told Benson he could make money from the heroin and that Benson was sorry that the defendant had been caught but did not intend to clear her of the charges.

After deliberating for some time, the jury sent a note to the court stating, "We are unanimous on one count. We have not -- we are not unanimous on the other. How do we proceed?" At that point the court allowed the jury to render its verdict of guilty on the count of possession of a controlled substance and sent it back to continue deliberations on the greater offense of possession of a controlled substance with intent to deliver. The jury could not ...

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