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06/30/97 PEOPLE STATE ILLINOIS v. JIMMY ARCE

June 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JIMMY ARCE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 94 CR 9302. Honorable Lon Williams Shultz, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice Cahill delivered the opinion of the court. Cousins, P.j., concurs. Justice Leavitt dissenting.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

After a jury trial defendant, Jimmy Arce, was convicted of possession of a controlled substance with intent to deliver and was sentenced to 20 years' imprisonment. Defendant appeals. Among other issues, we review the denial of a Franks hearing where defendant and the State relied upon affidavits from the same person, and the refusal of the trial court to inquire of prospective jurors if they would tend to believe the testimony of a police officer over that of other witnesses. We affirm.

At trial, Detective Graf testified that on March 7, 1994, a search warrant was issued for a residence in Chicago and the person of Jimmy Arce. Graf executed the search warrant along with a number of other officers. Graf knocked at the front door and announced his office and purpose. There was no response. The officers waited a few seconds and then made a forcible entry, using a sledge hammer on the front door lock.

When the officers found no one in the home they began their search. On a closet shelf in the front hall, Detective Graf found one large plastic bag and four smaller bags containing white powder, along with a battery-powered scale and correspondence addressed to defendant. He also saw men's and women's coats in the closet. After the search was completed, Graf left a copy of the search warrant on the kitchen table along with a note explaining what happened.

Graf testified that defendant telephoned him at about 6 p.m. later the same day. Defendant told Graf he would like to surrender the following day, but defendant was arrested at his home at approximately 9 p.m. that night.

Evidence at trial established that a fingerprint on the correspondence matched a fingerprint of someone other than defendant. Defendant's fingerprint matched a fingerprint taken from the scale. No cocaine residue was found on the scale. The condition of the plastic bags did not permit fingerprint analysis.

Tests established that the white powder in the bags was cocaine. The total weight of the cocaine was more than 821 grams. The substance was 87.4% pure.

Chicago police detective Karen Morrisette qualified to testify as an expert in the buying and selling of controlled substances. She testified that, on the street, a narcotics user would buy between a quarter of a gram to a gram of powder cocaine or a tenth of a gram in rock form. A quarter gram would sell for $25. The purity level was usually 80%. She estimated that 270 grams of cocaine could be worth as much as $280,000. She testified that the electronic scale entered as an exhibit is the kind typically used by drug sellers.

The jury found defendant guilty of possession of a controlled substance with intent to deliver. He was later sentenced to 20 years in prison. Defendant's motion for a new trial was denied.

Defendant first argues that he was not proven guilty beyond a reasonable doubt. He contends the evidence at trial failed to establish that he had power or control over the drugs. Defendant stresses that: he was not present at the time of the search; his fingerprints were not on the bags of cocaine and correspondence found in the front closet; only a fingerprint on the scale matched his fingerprint; and no cocaine residue was found on the scale.

To prove the crime of unlawful possession, the State must establish that the defendant knew of the presence of narcotics and that the narcotics were in his immediate and exclusive control. People v. Embry, 20 Ill. 2d 331, 334, 169 N.E.2d 767 (1960). Knowledge can be established by evidence of acts, declarations or conduct from which an inference may be fairly made that a defendant knew of the existence of the narcotics at the place where they were found. Embry, 20 Ill. 2d at 334. The trier of fact must decide whether the accused had such knowledge. Embry, 20 Ill. 2d at 334. Physical possession need not be directly proven. A conviction can be sustained when constructive possession can be inferred from the facts. People v. Stamps, 108 Ill. App. 3d 280, 292-93, 438 N.E.2d 1282, 63 Ill. Dec. 919 (1982). Constructive possession is defined as "'that which exists without actual personal present dominion ***, but with an intent and capability to maintain control and dominion.'" Stamps, 108 Ill. App. 3d at 292, quoting People v. Fox, 24 Ill. 2d 581, 585, 182 N.E.2d 692 (1962).

Findings of the trier of fact will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. Stamps, 108 Ill. App. 3d at 292-93. Here, mail addressed to defendant was found in a closet of the house. His fingerprint was found on the scale, next to the ...


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