Appeal from the Circuit Court of Cook County. No. 96 CR 5302 The Honorable Kenneth Wadas, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
On April 28, 1998, following a jury trial, defendant Victor Chavez was convicted in the circuit court of Cook County of possessing 2,002 grams of a controlled substance (cocaine) with intent to deliver and sentenced to 17 years' imprisonment. 720 ILCS 570/401(a)(2)(D)(West 1998). Defendant raises five main issues on appeal. Defendant first challenges the sufficiency of the evidence supporting his conviction. Defendant next alleges prosecutorial misconduct in the form of mischaracterization of evidence, improper argument and inflammatory comments. Defendant also alleges the circuit court erred in denying his motion to quash the arrest and suppress evidence. Defendant further alleges the circuit court erred in allowing expert testimony on the street value of the cocaine. Finally, defendant alleges the circuit court erred in denying his motion to disclose the identity of the State's confidential informant.
We hold that: (1) the evidence was sufficient to support defendant's conviction; (2) any misconduct on the part of the prosecution was de minimus and harmless; and (3) the circuit court did not err in its other rulings. We affirm.
On January 25, 1996, the Chicago police department received information from a known confidential informant (CI) that a "Latino male" named Victor, who weighed 180 pounds and was 5 feet 10 inches tall, would drive a Ford automobile to a tavern on 30th Street and Kostner Avenue around 8 p.m. that same evening to pick up two kilograms of cocaine. The police officer who received the information from the CI knew that his team had received information from the same CI on nine prior occasions, eight of which resulted in the seizure of contraband. The police department maintained a record, or "package," of all prior dealings with each of its CIs, containing information about the informant's identity and degree of involvement in each case.
Acting on the information obtained from the CI, two teams of police officers began surveillance of the tavern around 7:30 p.m. that same evening. At approximately 7:50 p.m., the first team of police officers observed defendant park a Ford Taurus at 2958 Kostner, exit the car, cross the street and enter the tavern. The officers did not enter the tavern nor could they observe any activity inside the tavern. Approximately five minutes later, defendant exited the tavern carrying a brown envelope wrapped in the shape of a brick under his left arm. The officers observed the defendant return to the Ford Taurus and place the package in the backseat on the passenger side. The first team of officers radioed to the second team of officers, parked on 31st and Kostner, that the defendant was leaving the tavern and they needed assistance from the second team in stopping defendant.
Defendant drove one block south on Kostner before the second team of officers stopped defendant's car by blocking his path with their police cruiser. The first team of officers, parked on 30th and Kostner, then drove their cruiser to block defendant's car from behind. Officer Ramirez approached the driver's side window from the second team's cruiser and asked defendant in Spanish for identification. Defendant responded that his name was Victor Chavez and produced a driver's license. After Ramirez told Officer Alfred Pappalito, who had approached the car from the rear on the passenger side, that the driver's name was Victor, Pappalito opened the rear passenger side door and removed the brown envelope package. Pappalito attempted to open the tightly wrapped package with his hands but failed. When Pappalito opened the package with a knife from his police cruiser, he found a white powdery substance inside the package. The officers placed defendant under arrest, advised him of his rights and transported him and the package to police headquarters on 3540 South Normal.
The package and the white powdery substance were inventoried at police headquarters and sent to the Illinois State Police crime lab for testing. The lab determined that the package contained two separately wrapped kilograms of cocaine with a total combined weight of 2,002 grams. The first kilogram of cocaine had a purity of 87% and the second kilogram had a purity of 86%.
Following a jury trial, defendant was convicted of possessing a controlled substance with intent to deliver and sentenced to 17 years' imprisonment. 720 ILCS 570/401(a) (2)(D)(West 1998). This appeal followed.
I. Sufficiency of the Evidence
The standard of review of a challenge to the sufficiency of the evidence supporting a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any reasonable fact finder could have found the essential elements of the crime beyond a reasonable doubt. People v. Schmalz, 194 Ill. 2d 75, 80 (2000). To upset a criminal conviction, defendant "must show that the evidence [educed at trial] is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt." People v. Jones, 295 Ill. App. 3d 444, 452 (1998).
The charge of possession of a controlled substance with intent to deliver consists of three elements: (1) the defendant had knowledge of the presence of the controlled substance; (2) the controlled substance was within the immediate control or possession of the defendant; and (3) the defendant had intent to deliver the controlled substance. Jones, 295 Ill. App. 3d at 452. These elements can be proved by circumstantial evidence. People v. Clemons, 277 Ill. App. 3d 911, 923 (1996). The element of knowledge is, by nature, difficult to establish by direct evidence. People v. Butler, 304 Ill. App. 3d 750, 755 (1999). Thus, knowledge may be established by evidence of acts, declarations or conduct of the defendant from which it may be inferred that the defendant knew of the existence of the narcotics. People v. Nwosu, 289 Ill. App. 3d 487, 494 (1997), appeal denied, 183 Ill. 2d 587 (1999); Butler, 304 Ill. App. 3d at 755; People v. Rivas, 302 Ill. App. 3d 421, 430 (1998); People v. Sanchez, 292 Ill. App. 3d 763, 771 (1997); Clemons, 277 Ill. App. 3d at 923.
Direct proof of intent to deliver narcotics is equally as elusive to prove as direct proof of knowledge; thus, intent to deliver is usually proved through circumstantial evidence. People v. Robinson, 167 Ill. 2d 397, 408 (1995). Our supreme court has outlined seven relevant factors that support an inference of an intent to deliver: (1) whether the quantity of controlled substance possessed is too large to be reasonably viewed as being for personal consumption; (2) the degree of purity of the controlled substance; (3) the possession of any weapons, (4) possession of large amounts of cash; (5) possession of police scanners, beepers, or cellular phones; (6) possession of drug paraphernalia; and (7) the manner in which the controlled substance is packaged. Robinson, 167 Ill. 2d at 408. We are mindful of protecting the interests of justice and examine the propriety of inferring intent to deliver on a case-by-case basis. When deciding whether to uphold a conviction, we note that as the quantity of controlled substance in the defendant's possession increases, our need for additional circumstantial evidence of intent to deliver decreases. Robinson, 167 Ill. 2d at 412-13.
Defendant concedes in his reply brief that "the core facts are not largely disputed; the fact of physical possession [is] not in issue." As possession of the cocaine is not disputed, we focus our analysis only on whether defendant had knowledge of the presence of the cocaine and whether he had the intent to deliver the cocaine.
Defendant argues that no evidence was presented at trial to support an inference that he knew the tightly wrapped package contained cocaine. Defendant analogizes his case to three narcotics cases in which convictions were reversed because the prosecution failed to prove the element of knowledge.
In two of the cases defendant cites, the narcotics were contained in packages delivered to the accused through the established channels of mail delivery. People v. Ackerman, 2 Ill. App. 3d 903 (1971); People v. Hodogbey, 306 Ill. App. 3d 555 (1999). In Ackerman, the court stated that "[a]ll the evidence shows is that defendant received a package in the course of normal mail delivery and placed the package under his arm for about five seconds." Ackerman, 2 Ill. App. 3d at 905-06. In Hodogbey, the court stated the evidence proved only that after the accused accepted a package delivery addressed to him, he did not open or hide the package after receipt, and when approached by the officers, he did not flee or resist them. Hodogbey, 306 Ill. App. 3d at 561. The facts presented in ...