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03/28/96 PEOPLE STATE ILLINOIS v. TERRY BEVERLY

March 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TERRY BEVERLY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 94CF396. Honorable William T. Caisley, Judge Presiding.

Released for Publication May 6, 1996. As Corrected August 26, 1996.

Justices: Honorable James A. Knecht, J., Honorable John T. McCULLOUGH, J., Honorable Rita B. Garman, J., Concurring. Justice Knecht delivered the opinion of the court: McCULLOUGH and Garman, JJ., concur.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Defendant Terry Beverly appeals his conviction after a jury trial in the circuit court of McLean County of one count of possession of less than one gram of a controlled substance containing cocaine with intent to deliver, a violation of section 401(d) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d) (West 1992)). We affirm.

I. BACKGROUND

Defendant's trial occurred in July 1994. Bloomington police officer Richard Barkes, a detective for seven or eight years, was assigned to driving-under-the-influence-of-alcohol patrol the early morning of April 15, 1994. While parked in a marked squad car in Bloomington, he saw a vehicle traveling through an alley. Barkes began to follow it. The car speeded up and almost hit a truck. The car also turned without a signal. Barkes flashed his overhead lights, and the car pulled over. Barkes could see the silhouettes of two people in the car.

Defendant exited from the driver's side of the car before Barkes had a chance to call in his report. Barkes ordered defendant to stay in front of the police car. Instead, defendant kept moving from side to side with his hands behind his back. Defendant never turned his back to Barkes. Barkes again ordered defendant to stay in front of the police car, but defendant walked around to the passenger side of the police car, almost to the passenger door. Barkes got out of the squad car, approached defendant, grabbed his arm and brought him to the front of the police car. He had him put his hands on the police car and handcuffed him.

Barkes then looked around the side of the police car where defendant had been and saw a clear plastic bag laying on the ground. He picked it up. It contained six smaller plastic bags, each made from a corner of a larger plastic bag. Each smaller bag contained an amber-colored rock-like substance which looked like crack cocaine. Barkes told defendant he was being arrested for possession of cocaine. Defendant became belligerent and started yelling and screaming "you didn't find this crack cocaine, you didn't find the drugs on me." Defendant also stated Barkes was trying to frame him.

When defendant was brought to the jail and his personal items inventoried, he was found in possession of $427 in cash. A $100 bill was found in his shirt pocket, a $5 bill and two $1 bills were found in his pants pocket, and three $100 bills and a $20 bill were found inside his right sock.

Barkes has been trained in undercover narcotics investigation and worked as an undercover drug buyer for three years. In his experience, when a large crack cocaine rock is broken up into smaller rocks for sale, it is packaged by placing a small rock in each corner of a plastic bag and then tying that corner off and cutting it from the larger bag. In his experience, crack cocaine packaged in the amount and method as in the case at hand was always packaged for distribution and never for personal consumption. An individual rock would be sold for between $20 to $50, and a bag containing roughly 12 rocks would be sold for about $300. Also in his experience, a typical user would possess only one or two rocks packaged together at any one time.

Barkes did not see defendant holding the bag, nor did he see defendant throw the plastic bag. There were no lights shining on the passenger side of the car, and he did not see that area of the street before he found the bag. He also admitted six rocks of crack cocaine costing a total of $150 could be used by an individual within a day or a week, but it would be rare situation. This amount of crack cocaine would be an "exorbitant" amount for an individual to use within one day. Further, the area where defendant was arrested is a high crime area.

Denise Vaughn, a forensic scientist specializing in drug chemistry and employed by the Illinois State Police Bureau of Forensic Science, tested the substance found by Barkes. The off-white rocks contained a total of .9 grams of a substance testing positive for cocaine.

Mary Esther Shadowens, the passenger riding in the car driven by defendant when he was arrested, was accompanying defendant as a favor for a friend who was concerned about defendant borrowing her car. Shadowens' friend told her defendant wanted to go to the store. The route defendant was driving was not a route to any store. After the police car flashed its overhead lights, defendant tried to hand Shadowens a plastic bag. She could not see if anything was inside the bag, but she refused to take it, telling him she would not take it because she did not want to go to prison. She assumed defendant ...


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