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04/21/89 the People of the State of v. Gene A. Pryor

April 21, 1989





537 N.E.2d 1141, 181 Ill. App. 3d 865, 130 Ill. Dec. 812 1989.IL.582

Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.


JUSTICE McLAREN delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN, Defendant, Gene Pryor, appeals from his conviction on a charge of unlawful possession of cannabis.

Pryor was charged with unlawful possession of cannabis (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 704(d)). Prior to trial, defendant brought three motions in limine, two of which are pertinent to this appeal. One motion was a request to prevent testimony by a police officer about any statements made by a person who had been described in the police report as "a passing citizen." The defendant expected that the officer would testify that a passing citizen told him a black man was attempting to sell marijuana at the Jewel store. The court denied the defendant's motion, stating that the testimony would be appropriate to show the officer's state of mind in making the arrest.

Defendant's second motion sought to prevent the defendant's prior criminal conviction of possession of marijuana from being introduced into evidence for impeachment purposes. The court concluded that this prior conviction affects the credibility and veracity of the witness. Therefore, this motion was also denied.

Robert Hladik, an Aurora police officer, testified that on February 1, 1987, at approximately 5 p.m., he was patrolling the Northgate Shopping Center in Aurora. Hladik was in uniform and driving a marked squad car. He was flagged down by a passing citizen who said that a black male attempted to sell him marijuana. A defense objection to this statement was overruled. Hladik went on to testify that the citizen provided him with a detailed description of this man. Hladik saw a man who fit this description approximately 75 to 100 feet away walking back and forth in front of the Jewel store. Hladik followed the man in his patrol car and saw him enter a nearby Kinney Shoe Store. The man looked back over his shoulder at Hladik, opened his jacket, took an item out of his jacket and placed the item on the service counter. There were two other people near the service counter. Hladik entered the store. Hladik saw a plastic bag containing green plantlike material on the service counter. He stopped the man and attempted to search him. The man fled. Hladik attempted to catch the man but was unsuccessful.

Hladik testified that while observing the man in front of the Jewel store, he saw his face twice. He also testified that inside the Kinney Shoe Store, they were face to face when Hladik stopped him. Hladik identified Gene Pryor as the man he attempted to stop that day.

Douglas Needham, also an Aurora policeman, testified that he had performed a leaf identification test on the package retrieved by Officer Hladik. As a result of this test, Needham concluded that the package contained 81.5 grams of cannabis.

Pryor testified that on February 1, 1987, he was living with his sister, Molly Moore. On that day he had not been in the Kinney Shoe Store or at the Jewel store. Pryor also testified that he had never seen Officer Hladik other than in court.

Three defense witnesses, Molly Moore, Tory Moore, and Larry Mosby, testified that on February 1, they were all at Molly Moore's home with Gene Pryor. Molly Moore testified that she prepared dinner while the others watched a football game on television. She served dinner at approximately 5 p.m., and Pryor, her brother, stayed to share the meal. Tory Moore testified that he, Larry Mosby, and Pryor watched the Pro Bowl on television. He also testified that the game may have started at 3 p.m., although he was not really sure.

The jury instructions were given, and the jury retired to deliberate. Sometime later, the court received three written questions from the jury. After argument by the attorneys, and over objection of defense counsel, the court refused to specifically answer the inquiries and replied, "Your verdict must be based upon the evidence presented and on the instructions previously received." The court also declined to provide the jury with a transcript of the officer's testimony. The court brought the jury into the courtroom and inquired of the foreman whether there was a reasonable probability that, if they continued their deliberations, they might arrive at a verdict. The foreman answered no. The Judge then polled the entire jury, asking the same question. There were six affirmative responses, and six negative responses. The court then sent them back for further deliberation. The jury returned a guilty verdict.

A motion for a new trial was heard and denied on December 3, 1987. Defendant appeals from that ...

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