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March 31, 1994


Appeal from the Circuit Court of Cook County. Honorable William Cousins, Jr. Judge Presiding.

Rehearing Denied May 18, 1994. Released for Publication June 7, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Buckley, Campbell, Manning

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

After a jury trial, defendant Tracey Thomas was found guilty of possession of a controlled substance with intent to deliver. The circuit court sentenced defendant to four years in the Illinois Department of Corrections. Defendant appeals his conviction and sentence. Pursuant to Illinois Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), we reduce defendant's conviction of possession with intent to deliver a controlled substance to unlawful possession of a controlled substance because the State failed to prove the element of intent to deliver, but did prove all the elements of unlawful possession. We further vacate defendant's sentence based on the intent to deliver conviction and remand this cause for a new sentencing hearing based on the conviction of unlawful possession of a controlled substance.

At trial, Officer Charles Toussas, a witness for the State, testified that on November 11, 1987, at about 9:45 p.m. he and Officer William Taylor were in plain clothes on foot patrol at a Chicago Housing Authority building located at 1319 South Washtenaw when they saw a black male, Michael Tripplett, in front of apartment 202 counting packets containing white powder. Toussas testified that in his nine years as a Chicago police officer, he had seen the same type of small packet hundreds of times and that they usually contained narcotics. When Toussas was 10 to 12 feet from Tripplett, he yelled, "Police." Tripplett turned and ran into apartment 202 with Toussas in pursuit. Toussas grabbed Tripplett at the threshold of the last bedroom, where he saw defendant seated on the bed with a tray in front of him and a shotgun lying next to him. There were several small packets and a pile of white powder from which defendant was filling the packets on the tray. When defendant saw Toussas, he threw the packets under the bed and knocked the tray and the shotgun onto the floor. Toussas testified that he entered the bedroom and recovered 27 packets of white powder. He also confiscated the loaded shotgun as well as boxes of live shotgun shells.

Officer Taylor also testified for the State and his testimony corroborated that of Toussas'. However, during Taylor's testimony, defendant objected to references to the shotgun. The circuit court overruled the objections, but stated:

"the court will admonish the jury that the jury is not to consider [the shotgun] relative to any other offenses. The Defendant is charged only with the offense which the Court has read to you as the charge in the case, and the Court will indicate [the shotgun] is only being allowed and used relative to the circumstances involved at the time that the Defendant was arrested. The jury may hear testimony regarding the circumstances at the time of the arrest of the defendant."

Next, Chicago police department chemist Fumni Moka testified that she performed tests on the white substance contained in the small packets and found it to be cocaine. The confiscated cocaine amounted to 5.5 grams.

Defendant testified, as the sole witness in his case-in-chief, that his apartment contained four bedrooms, two on the left side of the hallway and two on the right side. The last bedroom on the left belonged to defendant and the bedroom on the right belonged to his brother, Frank Collins. Defendant stated that Tripplett and Collins were in Collins' bedroom before Tripplett left the apartment. Shortly thereafter, while he, Collins and another friend were in the front room watching television, Tripplett came back into the apartment and ran down the hall with Toussas and Taylor in pursuit. Defendant also testified that Tripplett was arrested in Collins room, where he was searched and packets were found on his person. Defendant testified that he did not throw a tray onto the floor, or see the shotgun or any drugs until the officers carried them out of the bedroom.

Toussas testified in rebuttal that defendant was the only person in the back bedroom when he apprehended Tripplett. He added that Collins was arrested only because he became abusive when the officers attempted to exit the apartment. The State rested.

During closing argument, the State made references to the shotgun found near defendant at the time of the arrest. The circuit court, again, admonished the jury that the shotgun was only admitted to demonstrate the circumstances at the time of the arrest.

While deliberating, the jury sent a note to the circuit court requesting a transcript of defendant's testimony. The circuit court, without objection from the State or defendant, responded that such a transcript was not available.

After deliberations, the jury returned with two guilty verdicts, one for possession and the other for possession with intent to deliver. The circuit court returned the verdicts to the jury and instructed them to determine whether defendant was guilty of the greater or lesser offense. The jury ...

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