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03/31/95 PEOPLE STATE ILLINOIS v. EMERSON BROOKS

March 31, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
EMERSON BROOKS, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 92CF2586. Honorable Harold L. Jensen, Judge Presiding.

Released for Publication March 31, 1995. As Corrected May 10, 1995.

Honorable Frederick S. Green, J., Honorable James A. Knecht, P.j., Honorable Robert W. Cook, J., Concurring

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On May 18, 1993, after a trial by jury, the circuit court of Champaign County entered judgment on a verdict finding defendant Emerson Brooks guilty of a violation of section 407(b) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)). Defendant was indicted on January 7, 1993. The count upon which he was convicted charged him with knowingly delivering to a trooper less than one gram of a substance containing cocaine when not authorized by the Act to do so and with the transaction taking place on a public way within 1,000 feet of real estate "comprising any school or residential property owned, operated and managed by a public housing agency." (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b).) On July 1, 1993, the court sentenced defendant to 10 years' imprisonment. Defendant has appealed. We affirm.

At all times pertinent, section 401(d) of the Act has provided that if an unauthorized delivery of less than one gram of a substance containing cocaine is "knowingly" made, a Class 2 felony is committed. (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(d).) Section 407(b)(2) of the Act then enhances the classification of a section 401(d) offense to a Class 1 felony if the violation occurred "on any public way within 1,000 feet of the real property comprising any school or residential property owned, operated and managed by a public housing agency." (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1407(b)(2).) This case turns upon the question of whether defendant had to know that he was making a delivery within 1,000 feet of the described public housing authority property. We hold that he does not have to have had that knowledge. Accordingly, we affirm.

The facts are basically undisputed. On October 8, 1992, Ronald McDonald, an undercover police officer, purchased cocaine from defendant on a public way in front of 108 East Bell fontaine Street in Champaign, which is in a residential neighborhood. That property is between 300 feet and 600 feet from residences at 108 and 110 East Roper Street in Champaign. Those resident houses appear to be normal residences but are owned by the Champaign County Housing Authority and used as "scattered site" homes which were then undergoing renovations.

In several ways, defendant raises the issue of whether he was required to know of the existence of public housing authority residential property within the 1,000-foot area in order for the enhancing provision of section 407(b)(2) of the Act to take effect. First, he contends that the lack of a scienter requirement in section 407(b)(2) of the Act would deprive him of his constitutional right to due process and the court's refusal to allow evidence that he had no knowledge of the existence of public housing authority property within 1,000 feet of the place of delivery deprived him of his sixth amendment right to present a defense. He then also argues that the circuit court's determination that no such knowledge by defendant was necessary caused reversible error in the circuit court's rulings (1) denying his motions to dismiss the indictment and for a directed verdict; (2) denying defendant's offers of proof of a lack of knowledge by defendant; and (3) on ruling on instructions.

The Supreme Court of Illinois has held that a person is not deprived of due process when convicted of an offense which does not require scienter in regard to an important element of the offense. In People v. Brown (1983), 98 Ill. 2d 374, 457 N.E.2d 6, 75 Ill. Dec. 216, the supreme court upheld section 4-102(a)(4) of the Illinois Vehicle Code, which made the possession of an automobile with a removed and falsified vehicle identification number (VIN) a crime. (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 4-102(a)(4).) A contention was made that the lack of a requirement that the possessor knew about the condition of the VIN violated the due process rights of one charged with the offense.

Similarly, in People v. Gramo (1993), 251 Ill. App. 3d 958, 968, 623 N.E.2d 926, 933-34, 191 Ill. Dec. 336, this court upheld, over a due process challenge, section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)(4)(ii)), which permitted consideration of the factor that the victim of an offense was 60 years of age or older in determining whether to impose an extended sentence even though the offender did not know the victim was at least 60 years old. The opinion cited Brown.

Defendant asserts that the lack of a scienter requirement in section 407(b)(2) of the Act rendered the indictment here, which was based on that section of the Act, void for vagueness. He points out that the Supreme Court of the United States has indicated that an express statement of the mental state or states required for each element of an offense aids the court in upholding the validity of the offense when the legislative provision creating the offense is challenged as being void for vagueness. ( Colautti v. Franklin (1979), 439 U.S. 379, 395, 58 L. Ed. 2d 596, 609, 99 S. Ct. 675, 685; see also United States v. National Dairy ProductsCorp. (1963), 372 U.S. 29, 35, 9 L. Ed. 2d 561, 567, 83 S. Ct. 594, 599.) Here, the language in section 407(d)(2) of the Act clearly indicates that enhancement takes place if the prohibited conduct is committed within a 1,000-foot radius of protected territory regardless of the defendant's knowledge.

Defendant's other two constitutional claims depend upon whether knowledge was a required element of section 407(b)(2) of the Act. As we hold knowledge was not required, we conclude that these arguments have no merit. Defendant contends the court's ruling denied his constitutional right to go free if he was not proved to be subject to enhancement beyond a reasonable doubt. As proof of scienter was not required, all enhancing factors were proved by overwhelming evidence. ( In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.) Defendant similarly asserts that the court's denial of his offered evidence that he knew nothing of the presence of the scattered site nature of the two residence houses deprived him of his sixth amendment right to present a defense.

The major thrust of defendant's theory of the case is that proper statutory interpretation indicates that knowledge of the existence of the housing authority residences within 1,000 feet was a necessary element of enhancement. Defendant began by attempting an analogy to the decision in People v. Hicks (1987), 119 Ill. 2d 29, 34, 518 N.E.2d 148, 150, 115 Ill. Dec. 623. There, the supreme court held that statutory sentencing provisions which enhance the punishment for an offense are essential elements of the offense which must be proved beyond a reasonable doubt. Defendant then points out that section 4-3(a) of the Criminal Code of 1961 (Criminal Code) states:

"A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections ...


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