APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CHRISTY BERKOS, JUDGE PRESIDING.
As Corrected July 5, 1995.
The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.
The opinion of the court was delivered by: Rizzi
JUSTICE RIZZI delivered the opinion of the court:
A jury convicted defendant Darryl Bell of possession of a controlled substance with intent to deliver, and armed violence. He was sentenced to 60 years imprisonment and judgment was entered. We vacate the armed violence conviction and affirm the remainder of the judgment.
At 7 a.m. on December 29, 1989, Chicago police officer Ashley Miller received a radio call to meet a battery victim at a specified location. He responded and met with the victim, Deborah Robinson. She told him that defendant had beaten her and that he was at her apartment at 71st and Bennett, although he did not live there. She also said that he was violent. Miller called for a back-up officer, and Officer Stanley Gas responded. The three of them then went to the apartment.
After Robinson opened the apartment door with her key, she and the police officers saw defendant slouched on the couch in his underwear and a T-shirt. Robinson said, "That's him." Defendant appeared to be in an unconscious state. Near the defendant, there was a valise with a gun handle sticking out.
Miller grabbed defendant and placed him under arrest. Miller then searched the valise and found a .38 caliber revolver with five live rounds of ammunition, $3,985 in cash, two clear bags of a white powder substance, glass drug pipes, a scale, a letter, two receipts and an address book. Both receipts, the letter, and the address book had defendant's name on them.
Defendant was taken to the Third District police station, along with the evidence. At the police station, all items were inventoried and placed in a safe.
At trial, a Chicago police department forensic chemist, Arthur Kruske, testified that the white powder in the two bags was cocaine and that the two bags of cocaine weighed 210.71 grams and 49.77 grams respectively. Defendant did not testify.
On appeal, defendant first contends that the trial court erred in not complying with the supreme court's holding in People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062, 83 Ill. Dec. 128. In Zehr, the court held that the trial court's failure to ask three voir dire questions by the defense constituted reversible error. These three Zehr questions are:
(1) If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty? (2) If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him? (3) Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State? 103 Ill. 2d at 476, 469 N.E.2d at 1063-64.
In the present case, the trial court questioned the venire en masse as follows:
Anybody have any quarrel with the principle of law which requires the state to prove the defendant guilty beyond a reasonable doubt? Any problem with that?
The defendant may or may not testify. He is not required to do so. He may or may not present witnesses on his behalf. Will this create any prejudice in your mind against the defendant? Do you have any quarrel with the principle of law that the defendant ...