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01/20/95 PEOPLE STATE ILLINOIS v. CHUNG UK KANG

January 20, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHUNG UK KANG, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 93CF765. Honorable William T. Caisley, Judge Presiding.

Released for Publication January 20, 1995.

The Honorable Justice Lund delivered the opinion of the court: Honorable Carl A. Lund, J., Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant Chung Uk Kang was convicted of perjury (720 ILCS 5/32-2 (West 1992)) and sentenced to five years' imprisonment, to be served consecutively to a sentence he was serving when the alleged perjury was committed. He now appeals, claiming (1) the testimony used to convict him was obtained in violation of his constitutional rights, (2) the evidence was insufficient to convict him, (3) the jury was erroneously instructed that he could be convicted absent proof of specific intent, and (4) his prison sentence is excessive and the result of a misapprehension of the law by the trial court. We disagree and affirm.

Defendant was charged with perjury in connection with trial testimony given by him against Jeff McKone, a codefendant, pursuant to a plea agreement. Defendant had pleaded guilty to criminal drug conspiracy and, as part of his plea agreement, testified before the grand jury as to McKone's role in the conspiracy. Defendant testified that in the fall of 1991 he was a student at Illinois State University. He stated he was a friend of Eric Emanuel and, in November 1991, arranged with Emanuel to sell cocaine. Emanuel was working as a runner for McKone and defendant. In late November 1991, Emanuel went to the apartment of Greg Conner to drop off an ounce of cocaine. After the sale, a part of the money went to defendant, part to Emanuel, and part to McKone. Defendant spoke with McKone prior to November 21, 1991, about McKone supplying him with cocaine.

At the time of McKone's trial, defendant was serving a sentence of seven years in prison on his conviction for criminal drug conspiracy. When called to testify at the trial, defendant attempted to invoke his fifth amendment right against self-incrimination. He stated his attorney had advised him not to answer any questions because his case was pending in the appellate court. The trial court directed defendant to answer some nonincriminating questions. When the prosecutor asked defendant if he knew Eric Emanuel, defendant again invoked his fifth amendment right against self-incrimination. The court ruled that by virtue of defendant's guilty plea, the privilege against self-incrimination was not available to him. The court indicated that if defendant refused to testify, it would impose sanctions. When asked if he wanted to telephone his attorney, defendant declined and stated he would testify.

When he resumed his testimony, defendant admitted he knew Emanuel and McKone. He remembered where he lived during the fall of 1991, and he remembered that Emanuel had an injury to his arm. He stated he did not recall whether he had asked Emanuel to make some deliveries for him in November 1991. He stated he did not recall specific answers he had given in his grand jury testimony; it had been over a year ago, he was addicted to drugs at the time, and he could not remember exact dates. He did not recall whether he had given Emanuel an ounce of cocaine to take to Conner's apartment on November 21, 1991; he did not recall receiving money from Emanuel. The prosecutor went over certain questions he had asked defendant at the grand jury proceedings and asked defendant if he recalled giving those answers. Defendant replied that he did not. Out of the presence of the jury, the trial court accused defendant of not being truthful in making his answers and indicated he was subject to sanctions. When defendant resumed his testimony, the following exchange occurred:

"[Prosecutor]: [Defendant], going back again to the November 21st, 1991[,] date[,] do you recall, now that you have had a chance to think about it, do you recall providing an ounce of cocaine to Eric Emanuel to take over to Greg Conner's apartment?

A[.] Yes.

Q[.] Prior to that particular date had you had conversation with your friend Jeff McKone about him obtaining cocaine for you?

A[.] I honestly do not remember.

Q[.] Again[,] I will direct your attention [to] October 15[], 1992, before the Grand Jury. You recall me asking you the question: Had you spoken with Jeff McKone prior to November ...


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