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02/13/97 PEOPLE STATE ILLINOIS v. BRIAN JONES

February 13, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BRIAN JONES, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RONALD HIMEL, JUDGE PRESIDING.

As Corrected March 5, 1997. Released for Publication March 31, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

After a jury trial, Brian Jones (Jones) was convicted of possession of more than 100 grams, but less than 400 grams, of cocaine with intent to deliver, as well as possession of over 30 grams of cannabis. Jones was sentenced to the minimum mandatory sentence of nine years in prison on the possession with intent to deliver offense.

Throughout trial and sentencing, the trial judge repeatedly expressed dissatisfaction with the mandatory sentencing requirement. Noting Jones' education and work history, his lack of criminal background, and his supportive wife and family, the judge characterized Jones as "salvageable." A long period of incarceration was not indicated in this case, said the judge. He would sentence Jones to probation if it were available. Despite the trial judge's expressed discomfort with the gravity of the charge, the State insisted on pursuing it.

Jones asks this court to use its authority under Supreme Court Rule 615(b)(3) to reduce his cocaine conviction to simple possession of a controlled substance. He agrees the evidence was sufficient to support the jury's guilty verdict, but contends there was an "evidentiary weakness" in the intent to deliver element, making a reduction to the lesser included offense an available remedy for an "unduly harsh" sentence.

The question is whether we are empowered to reduce the degree of the offense where the State has presented enough evidence of all the essential elements of the offense to support the conviction.

We conclude we do have that power, but under limited circumstances. Our examination of the record persuades us this is not an appropriate case for reduction of the degree of the offense.

FACTS

Jones was charged by complaint and superseding indictment with delivery of more than 1 gram but less than 15 grams of cocaine, unlawful possession of more than 100 grams but less than 400 grams of cocaine with the intent to deliver, and unlawful possession of more than 30 grams of cannabis with the intent to deliver. The events which led to Jones arrest took place in March 1990. Trial did not begin until May 1994.

At trial, Officers Anthony Bertucca and Steven Bocconcelli testified they were Chicago police officers stationed at the 23rd District. On March 31, 1990, they began their shift at about 6 p.m. On arrival at the station, they learned an informant told their supervisor a drug transaction would take place that evening at 708 Bittersweet in Chicago. The informant said the buyer would be driving a new Grand Prix automobile with license number RD9144.

Based on this information, the officers took up surveillance of the apartment building at 708 Bittersweet at about 8:15 that evening. Between 8:30 and 9:00 p.m. the officers observed a white Grand Prix, with license number RD9144, park in front of the apartment building. A man, later identified as Timothy McCarthy, exited the car and entered the building at 708 Bittersweet.

Officer Bertucca testified that, while standing on the sidewalk near the entrance to the building, he watched as McCarthy went up the five stairs to the front door and then through two sets of glass doors to the lobby of the building. Inside the building, McCarthy went outside the officer's line of vision for about two minutes. When McCarthy reappeared, he stood in the hallway where he was soon approached by a man later identified as Jones.

Officer Bertucca testified that he witnessed Jones hand McCarthy a briefcase. McCarthy then gave Jones some money, which Jones "rippled through." After the exchange of money, said Officer Bertucca, Jones handed McCarthy "two clear plastic bags of crushed white powder."

After this transaction, McCarthy left the building and Officer Bertucca followed. When McCarthy was a short distance from the building Officer Bertucca stopped him and arrested him.

Officer Bocconcelli testified that he had been standing across the street during the surveillance. He did not witness any exchange, but joined Officer Bertucca when he stopped McCarthy. Officer Bocconcelli said that he advised McCarthy of his rights as Officer Bertucca reached into McCarthy's pocket and recovered two small (2" x 2"), plastic bags of what was suspected to be cocaine, plus a larger bag of what appeared to be marijuana.

After arresting McCarthy, the officers accompanied McCarthy to the fifth floor of the apartment building. As they exited the elevator on the fifth floor, the officers said, McCarthy pointed out Jones, who was in the hallway pushing a cart with cleaning products in it. Officer Bertucca said he recognized Jones as the man he had seen downstairs with McCarthy. The officers identified themselves to Jones and arrested him.

Officer Bocconcelli said he advised Jones of his rights and Jones acknowledged that he understood them. Jones, both officers said, agreed to speak with them and admitted that he sold cocaine to McCarthy. Jones also told them that he had more cocaine in his apartment. Jones then unlocked the door to apartment 513 and directed the officers to a kitchen cabinet where, they said, he told them he kept some cocaine for "his own ...


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