The opinion of the court was delivered by: Justice Wolfson
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE VINCENT BENTIVENGA, JUDGE PRESIDING.
A jury found Larry Carter (Carter) guilty of three varieties of cocaine possession. It turns out the charge of possession of a controlled substance with intent to deliver within 1,000 feet of a school is fatally defective. Both sides agree. That conviction must be reversed.
The issue we are left with when we review the remaining possession charges is what to do about the State's evidence and comments concerning the presence of schoolchildren and prior police familiarity with the defendant.
We conclude the conviction for possession of a controlled substance with intent to deliver should be reversed. However, we affirm the conviction for possession of a controlled substance and remand that cause for resentencing.
On August 7, 1996, a two-count information was filed against Larry Carter. In count I Carter was charged with possession of a controlled substance (cocaine) with intent to deliver "within 1000 feet of the real property comprising a school." In count II, Carter was charged with possession of a controlled substance (the same cocaine as in count I) with intent to deliver.
The case was tried before a jury.
Chicago police officer Steven Bocconcelli testified he was a tactical officer for the 23rd District. On May 9, 1996, he was assigned to monitor a corner at the intersection of Ainslie and Kenmore Avenues. At about 8:30 p.m. that evening Bocconcelli began surveillance from an alleyway located about 150 feet away from the intersection. Using binoculars, the officer observed the activity occurring on the corner. Officers Timothy Glen and Nick Spencer were positioned nearby in an unmarked police car, providing back-up for Officer Bocconcelli.
Officer Bocconcelli said he saw a man wearing a green shirt and dark-colored jeans standing on the corner. This man, later identified as defendant Larry Carter, was approached by a young black man. After a brief conversation, the man handed Carter what appeared to be a single bill of U.S. currency. Carter then reached into a plastic bag he was holding in his left hand and gave the man a small plastic packet.
Shortly after the first man walked away, a second young man approached Carter and the same type of exchange took place. Officer Bocconcelli testified, based on his experience as a police officer, he believed Carter was selling drugs.
Officer Bocconcelli radioed his two back-up officers to pick him up. The officers drove to the alleyway. Officer Bocconcelli got in the car. All three officers drove to the corner of Ainslie and Kenmore. They got out of the car.
Officer Bocconcelli and his partners approached the defendant. Bocconcelli testified:
"As we approached Officer Glenn [sic] says, that is Larry Carter. *** As I approached, I said, Larry, I just saw you do two drug deals."
Officers Glen and Spencer also testified at trial. Officer Glen confirmed that he had been on duty the evening of May 9, 1996, and assigned to act as back-up for a surveillance being performed by Officer Bocconcelli. Officer Glen said he recognized the man "as Larry Carter" as soon as he drove up to the corner of Ainslie and Kenmore. He told Officer Bocconcelli that the man's name was Larry Carter: "I let him know that was Larry Carter."
Officer Glen also testified that when Bocconcelli told Carter he was being watched, Carter dropped a plastic bag and took off running. Officer Glen said he ran after Carter, apprehended him, and placed him under arrest. A search incident to Carter's arrest revealed Carter was wearing a pager. Carter also had $34 in U.S. currency, consisting of one $20 bill, one $10 bill and four $1 bills.
Both Officers Glen and Spencer testified regarding the steps they took to inventory the items recovered from Carter, including the plastic bag retrieved by Officer Bocconcelli. They said the plastic bag contained 13 smaller plastic packets which held a white, rock-like substance believed to be crack cocaine.
It was stipulated that a forensic chemist examined the 13 packets and the substance contained in them. The substance in the packets had a total weight of .91 grams. Three of the 13 packets were randomly-selected for chemical testing. The substance in these packets tested positive for the presence of cocaine.
Two other witnesses testified in regard to the enhancement factor -- the principal of St. Thomas of Canterbury School and an investigator for the Cook County State's Attorney's office.
The principal, Christine Boyd, testified that St. Thomas of Canterbury School is located at 4827 N. Kenmore and the John T. McCutcheon Branch School is located across the street from St. Thomas School.
Principal Boyd said her school accepts students from age three for preschool through eighth grade. About 272 children attend the school. The school was in session on May 9, 1996. Using photographs showing the intersection of Ainslie and Kenmore and the area near the school, Principal Boyd was able to describe the proximity of the intersection to her school.
On cross-examination, she said she could not identify Larry Carter as someone who sold drugs near the school. On redirect examination, over objection, she told about the type of activity she would see on the street during morning hours:
"Activity is the selling of drugs, using children under the ages of 12 on bicycles up and down our street with older people as the main sellers that station themselves at the corner of Ainslie and Kenmore."
Neither Principal Boyd nor any other witness testified children were present in the area when the defendant was arrested, at about 8:30 p.m.
Investigator Sullivan testified he measured the distance from 4859 N. Kenmore (a location near the intersection of Ainslie and Kenmore) to three area schools, including St. Thomas and McCutcheon. He found all three schools were within 1,000 feet of 4859 N. Kenmore. A diagram he had prepared, which showed the schools in relation to 4859 N. Kenmore, was admitted in evidence.
Sullivan testified he had taken the photographs which Principal Boyd used in her testimony. Sullivan identified the photos and said they were a true and accurate depiction of the area near the intersection of Ainslie and Kenmore.
The defendant offered no evidence.
The jury found Carter guilty of both counts in the information and of the lesser-included offense of possession of a controlled substance. The State had offered instructions and verdict forms on the lesser-included offense during the instructions conference. The convictions were ...