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People v. Butler

March 31, 1999


Appeal from the Circuit Court of Cook County. No. 96-CR-17568 Honorable William O. Maki, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

Following a bench trial, defendant Angela Butler was found guilty of possession of a controlled substance with intent to deliver (720 ILCS 570/401 (West 1996)) and sentenced to 15 years' imprisonment. On appeal, defendant argues that (1) the evidence was not sufficient to establish that she knowingly possessed a controlled substance; (2) the circuit court relied on an inaccurate recollection of evidence in its guilty finding; (3) her sixth amendment right was violated when the court precluded her from calling a witness; (4) she was denied a fair trial because the prosecutor misstated evidence during his closing argument; and (5) it was error to include the noncocaine portion of the solvent containing cocaine to calculate the weight of the contraband. We affirm.

On June 5, 1996, defendant was returning from a trip to Jamaica when she was stopped and questioned as she went through customs at

- -O'Hare airport. Nothing was discovered from a pat-down search. However, the field test on the liquid in the bottles she was carrying was positive for cocaine. Both defendant and her traveling companion, Annette Addison, were arrested.

Defendant's and Addison's trials were severed due to possibly antagonistic defenses, but they were held simultaneously. The State's witnesses included customs inspector Michael Boland, who was responsible for monitoring defendant's flight from Jamaica. He was suspicious of defendant's source of travel, clothing, behavior, and unemployed status, so he marked her declaration card with the letters "RN" for "rover narcotics." This marking puts the subsequent customs official on notice for his suspicion that she may be carrying illegal drugs.

Customs inspector Laura Zayner was the next customs official to interact with defendant. She testified that she observed defendant with a carry-on bag and a carton of alcohol. Defendant carried the carton, which contained three bottles, in plain view and with no attempt to conceal the package. Inspector Zayner took defendant to a secondary inspection point and noticed her declaration card was marked with "RN." Upon questioning, defendant told Inspector Zayner that she was traveling alone, she stayed at the "Dr. Cave" hotel in Jamaica, and she had paid a street vendor $300 for the champagne she was carrying. Defendant then agreed to a pat-down search, which did not reveal any contraband.

At this time, Inspector Zayner saw another customs inspector talking with a woman, subsequently identified as Annette Addison, who was carrying a carton identical to defendant's. She, too, carried the carton in a conspicuous manner. Inspector Zayner also noticed that defendant's and Addison's airline tickets were consecutively numbered. Defendant told Inspector Zayner that she had seen Addison at her hotel but was not traveling with her. Field tests for narcotics were then conducted on the liquid in the bottles defendant and Addison carried which revealed the presence of cocaine. Inspector Zayner testified that in her 10 years as a customs inspector, she had never seen liquid cocaine in a bottle.

After defendant was arrested, United States Customs Senior Special Agent Josephine Tavolacci questioned defendant. Defendant told Special Agent Tavolacci that, while getting her hair done, her beautician, Amanda, said she was unable to take a planned trip to Jamaica. When Amanda asked defendant if she would go in her place, defendant agreed. Shortly thereafter, Addison arrived at defendant's house and told defendant her trip expenses would be paid if she brought back some bottles of alcohol. Addison told her it was "okay" to bring the alcohol to Chicago because there was none like it in the United States. Defendant also told Special Agent Tavolacci that they did not meet anyone else connected with the trip and that the bottles of liquor already were in the taxicab she and Addison took from the hotel to the airport in Jamaica.

Defendant was next questioned by Assistant State's Attorney (ASA) Michael McCormick. According to ASA McCormick, defendant explained that Addison showed up at defendant's house and told her that a mutual friend said defendant would be willing to go to Jamaica. In exchange for the trip, Addison said defendant would have to bring back some champagne. Addison further stated that it was not illegal and would not cost her any money. Defendant agreed to go and they stayed at a hotel called Glorianna's. As they were leaving the hotel at the end of the trip, six bottles containing what looked like wine were already in the taxicab that took them to the airport. Addison told her the bottles contained champagne and, if defendant was asked about them, she was to say she bought them for $300. Defendant was told not to sit next to Addison on the airplane and to get into a separate customs line. Defendant told ASA McCormick that she first learned she was carrying drugs when she was detained in the customs line. She explained she was nervous about lying because she did not know how she would explain that a welfare mother spent $300. Defendant also told ASA McCormick that she lied to Inspector Zayner because she did not want Addison to hear her say otherwise.

David Schlewitt, a forensic chemist, testified for the State that the contents of each bottle weighed 693.5 grams for a total weight of 1,387 grams. Further tests of the liquid revealed it was comprised of 29% cocaine, although the record is unclear whether the percentage refers to volume or weight. According to defendant, excluding the weight of the liquid would yield a weight of 294.23 grams of contraband. The noncocaine portion of the solution was not identified, but Schlewitt testified that it could have been wine. Schlewitt further stated that he had analyzed substances for the presence of cocaine over 1,000 times, but had never previously seen liquid cocaine. There was no testimony from Schlewitt, or anyone else, however, as to whether the liquid was intended to be ingested along with the cocaine or whether the liquid was intended to be separated from the cocaine.

Defendant took the stand in her own defense. She testified that she first met Addison when Addison came to her house. Addison told her Amanda could not go on a trip to Jamaica and inquired as to whether defendant could go in her place. Because Addison said the trip was free, defendant asked if there was a catch. Addison responded that she had to bring some wine back and that it was legal. Defendant subsequently called Amanda, and Amanda informed her the trip was legal as well.

Defendant also stated that she and Addison flew to Jamaica with a third person, named Mack, whom she did not know. She shared a room with Mack at Glorianna's, their hotel. At the end of the trip, the three got into a taxicab to go to the airport. Already in the taxicab was a box of wine. She was told to pretend they did not know each other, to sit separately on the airplane, and to get into a different customs line. Defendant admitted lying to Inspector Zayner, but said she told ASA McCormick the truth, despite not telling him about Mack. She did not recall what she told Inspector Tavolacci. Defendant claimed she first learned cocaine was in the bottles when the field tests were performed.

The circuit court found defendant guilty of possession of more than 900 grams of a substance containing cocaine with intent to deliver. The court based its findings on the evidence presented, including the fact that defendant gave various versions of the events.

Defendant first contends the State failed to prove she knowingly possessed the narcotics diffused into the liquid in the bottles she was carrying. She claims the facts and circumstances as to how the trip came about belie any ...

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