The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Preston Bowie, Judge Presiding.
Following a bench trial, defendant Laree Hendricks was convicted of possession of a controlled substance with intent to deliver and sentenced to six years in prison. Defendant argues for a new trial, claiming she was denied her right to due process and a fair trial by the trial court which allowed the State to present evidence of a statement allegedly made by defendant that was not disclosed in discovery. Alternatively, if a new trial is not granted, defendant contends that her conviction should be reduced to simple possession because the State failed to prove intent to deliver beyond a reasonable doubt. We reverse and remand.
A package containing a clown doll was sent to defendant from Texas. Inside the doll was a plastic bag containing a rock of cocaine that weighed 27.81 grams. The package was intercepted at O'Hare Airport, and pursuant to a federal search warrant, a signaling device called an AT-4 transmitter was taped inside the package containing the clown doll by a postal inspector, William Nichols.
The postal inspector dressed as a regular mail carrier delivered the package to defendant at her home where she had resided her entire life. Defendant was 26 years old at that time. The postal inspector testified that, before accepting the package, defendant questioned him because he was not her regular mail carrier. According to the testimony of the postal inspector, defendant appeared "cautious and suspicious." Inspector Nichols told defendant that if she did not want the package it would be sent back to Texas. Defendant told him she would take the package. Inspector Nichols informed defendant that she had to sign for the package. Defendant then signed a receipt and accepted the package.
During direct examination Inspector Nichols testified that defendant told him that she was expecting a package from Texas. It was revealed on cross-examination that he had created a memorandum of his "interview" with the defendant that contained this admission. This admission and the written memorandum of defendant's alleged oral statement were never disclosed or tendered to the defense. Defense counsel moved for a mistrial, arguing that evidence of defendant's statement that she was anticipating a package from Texas was not tendered by the State during discovery. The trial court denied the motion for a mistrial but offered to continue the case to give defense counsel an opportunity to conduct further investigation. Defense counsel declined the offer.
Various Chicago police officers assisted Inspector Nichols by keeping defendant under surveillance. Chicago police officer Stump testified that after defendant accepted the package he observed the defendant looking back and forth in front of the house before reentering. Ten minutes after defendant entered her home, Inspector Nichols was alerted by the transmitter that the package had been opened. He notified the Chicago police officers of the transmission. By the time Inspector Nichols entered the defendant's house the police were already on the premises. Defendant was in the living room. Two infants and an adult male were also present.
Inspector Nichols found the package on the kitchen table and recovered the transmitter. One of the officers present during the search entered the house with the clown doll in his hand. The defendant told police she threw the clown doll out of the window because she was scared. The officers recovered $800 in United States currency from defendant's bedroom. The police also recovered a plastic bag containing the cocaine concealed inside the clown doll. The parties stipulated that the lab analysis of the powder proved positive for cocaine in the amount of 27.81 grams.
Defendant testified that a man dressed in a postal uniform asked her whether she would sign for a package that was addressed in her name. She testified she questioned the mail carrier about why he was delivering her mail as he had never done so before. She testified that she asked him why should she sign for the package and he asked "Is Larry home? Could you sign it and just give it to Larry?" She indicated that she never told the mail carrier that she was expecting a package. She also denied looking up and down the street before reentering her home. Defendant testified that when she signed for the package, she did not know what was contained inside and had not ordered anything. Defendant testified that her male friend, Curtis Shelby, who was present in the house at the time, opened the package. He asked her whether the package was intended as a joke because it contained a doll. Suddenly, according to defendant, Shelby began to scream that men were running through her gangway and told her to get rid of the doll. Shelby told her to throw the doll out the window. She testified that she then threw the doll out the window because she was scared.
Defendant indicated that she admitted the officers into the home and told the police not to break the door down because she did not want her mother's house damaged. In response to questions by the police, she told them the location of her money in her closet and her mother's money in her mother's room. The record does not clearly establish the amount of cash recovered, but on appeal, the State submits that the amount was $800. The police found no drug paraphernalia or guns in the house.
The trial court found the defendant guilty of possession of a controlled substance with intent to deliver. Defendant was sentenced to six years in prison. The defendant was working, had no previous felony arrests or convictions, had no drug history and was the mother of five children.
We first address defendant's argument that the State's failure to disclose in discovery a statement made by defendant to Inspector Nichols denied defendant her right to due process and a fair trial. It is undisputed that evidence of defendant's alleged admission to Inspector Nichols was not disclosed or tendered to defense counsel during discovery. The standard of review for a discovery violation is whether the trial court abused its discretion. People v. Weaver, 92 Ill. 2d 545, 559 (1982). Although the judgment of the trial court is given great weight, a reviewing court will find an abuse of discretion when a defendant is prejudiced by the discovery violation and the trial court fails to eliminate the prejudice. Weaver, 92 Ill. 2d at 559.
During the direct examination of Inspector Nichols by the State, it was revealed for the first time that defendant had allegedly told Inspector Nichols that she was expecting a package from Texas. On cross-examination of Inspector Nichols it was revealed for the first time that Inspector Nichols had created a written memorandum of his alleged "interview" with the defendant that contained the admission. Defense counsel made a motion for mistrial which was denied. Defense counsel rejected the trial court's offer of a continuance at that stage in the trial process.
Supreme Court Rule 412 governs disclosure to the accused in criminal cases. 134 Ill. 2d R. 412. Rule 412 in pertinent part provides as follows:
"(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
(ii) any written or recorded statements and the substance of any oral statements made by the accused *** and a list of witnesses to the making and acknowledgment of such statements." 134 Ill. 2d R. 412 (a)(ii).
The duty of the State to disclose under Rule 412 is a continuing one, requiring prompt notification to the defendant of the discovery of any additional material or information, up to and during trial. 134 Ill. 2d R. 415(b); People v. Watson, 76 Ill. App. 3d 931, 935-36 (1979). While compliance with the discovery rules is mandatory, the failure to comply with these rules does not require a reversal absent a showing of prejudice. People v. Robinson, 157 Ill. 2d 68, 79 (1993). A new trial should be granted if the defendant is prejudiced by the discovery violation and the trial court fails to eliminate the prejudice. People v. Tripp, 271 Ill. App. 3d 194, 201 (1995).
The State argues that the failure to tender the statement did not prejudice defendant. We disagree and find that the State's failure to provide defendant with the substance of the oral statement and a copy of the written memorandum containing the oral statement was a violation of Rule 412(a)(ii) which prejudiced defendant. In deciding whether a defendant is entitled to a new trial as the result of a discovery violation by the State, the supreme court has articulated the factors we are to consider as including the following: (1) the closeness of the evidence; (2) the strength of the undisclosed evidence; (3) the likelihood that prior notice could have helped the defense discredit the evidence; and (4) the willfulness of the State in failing to disclose the new evidence. Weaver, 92 Ill. 2d at 560.
A. Closeness of the Evidence
First, we address the closeness of the evidence. We note that in this case no drug paraphernalia was ever recovered from the defendant's home. No weapons, police scanners, beepers or cellular phones were recovered. None of the indicia of items commonly associated with drug possession or drug possession with the intent to deliver were present here.
Proof that defendant "knowingly" possessed a controlled substance with the intent to deliver is an element of this offense. People v. Williams, 267 Ill. App. 3d 870 (1994). The element of knowledge may be proved by evidence of acts, declarations, or conduct from which the fact finder may infer knowledge. People v. Butler, 304 Ill. App. 3d 750, 755 (1999). The only evidence demonstrating knowledge that a package was expected by the defendant from Texas was the undisclosed oral statement allegedly made by defendant to Inspector Nichols that she was expecting a package from Texas. Here, there is no evidence that the defendant opened the clown doll that contained the cocaine. Moreover, it is uncontested that one could not determine what was contained inside the doll simply by looking at it. The evidence showing defendant's knowledge of the package that subsequently proved to be drugs is provided by the defendant's "alleged" oral statement to Inspector Nichols which was first disclosed during trial. We further note the memorandum containing that alleged oral statement was undated and there was no evidence that it was signed.
Regarding defendant's conduct when she accepted the package, Inspector Nichols testified that defendant appeared cautious and suspicious. However, defendant explained her suspicion as triggered by the fact that she knew Inspector Nichols had never delivered her mail before and she questioned him about why he was delivering her mail. Looking at Inspector Nichols' testimony ...