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People v. Lundy

November 4, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID LUNDY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Nos. 98 CR 9709 & 00 CR 17110 The Honorable Rodolfo Garcia, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

On April 1, 1998, defendant David Lundy was charged by information (98 CR 9709) with one count of possession of cocaine and one count of possession of heroin. 720 ILCS 570/402(c) (West 1992). While on pretrial release, defendant was also charged by information (00 CR 17110) with one count of possession of cocaine with intent to deliver and one count of possession of heroin with intent to deliver. 720 ILCS 570/401(d) (West 1992). On February 5, 2001, a bench trial was held in case number 00 CR 17110. *fn1 The trial court found defendant guilty of both counts of possession of a controlled substance with intent to deliver and set March 8, 2001, as both the trial date in case number 98 CR 9709 as well as the sentencing date for both cases. On March 8, 2001, following a bench trial in case number 98 CR 9709, defendant was found guilty of both counts of possession of a controlled substance. Defendant subsequently made an oral motion for a new trial. The trial court denied the motion. The trial court then sentenced defendant to concurrent prison terms of one year for possession of cocaine and one year for possession of heroin (98 CR 9709). Defendant was also sentenced to concurrent prison terms of seven years for possession of cocaine with intent to deliver and seven years for possession of heroin with intent to deliver (00 CR 17110). Defendant's seven-year sentence for possession of a controlled substance with intent to deliver was predicated on his status as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 1998)). The trial court ordered defendant's possession sentences and sentences for possession with intent to deliver to be served consecutively.

On March 29, 2001, defendant filed two separate notices of appeal of his convictions and sentences in both case number 98 CR 9709 and case number 00 CR 17110. Both appeals were assigned separate appellate court numbers. On December 26, 2001, the two appeals were consolidated. On appeal, defendant argues that: (1) the State failed to prove him guilty beyond a reasonable doubt in case number 98 CR 9709 as the State failed to establish that the narcotics recovered from defendant were the same narcotics that were admitted at trial; (2) the trial court improperly shifted the burden of proof to defendant in case number 98 CR 9709, thereby violating defendant's due process rights; (3) defendant was denied the effective assistance of counsel predicated on counsel's failure to file a motion to quash defendant's arrest and suppress evidence in case numbers 98 CR 9709 and 00 CR 17110; and (4) both the imposition of a Class X sentence based on prior felony convictions (730 ILCS 5/5-5-3(c)(8) (West 1998)) and consecutive sentences (730 ILCS 5/ 5-8-4(h) (West 2000)) are unconstitutional based on the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons that follow, we vacate defendant's convictions and sentences for possession of a controlled substance (98 CR 9709) but otherwise affirm.

BACKGROUND

A. Case Number 00 CR 17110

Officer Robert Kujawski testified that on May 31, 2000, at approximately 10:35 p.m., he set up surveillance near 602 North Central Park Avenue in Chicago, Illinois. According to Officer Kujawski, the area surrounding 602 North Central Park Avenue was a "known location for high narcotics sales." While conducting surveillance from a distance of approximately 75 feet, Officer Kujawski observed defendant engage in what he suspected to be three separate narcotics transactions. Officer Kujawski testified that the lighting conditions were "artificial" and that he had a clear view of defendant.

Officer Kujawski observed defendant standing on the corner of 602 North Central Park Avenue yelling "Rocks, blows." Officer Kujawski testified that on three separate occasions defendant would engage in brief conversation with an unknown individual, accept an unknown amount of United States currency, bend down, pick up a small box, remove an item, replace the box and hand the item to the unknown individual. Officer Kujawski further testified that defendant would then walk northbound and hand the United States currency to a black male wearing a black jacket and blue jeans. According to Officer Kujawski, the box that defendant picked up and from which he removed items during the suspected narcotics transactions was located near the base of the sidewalk next to the grass, approximately a foot to two feet from where defendant was standing.

After observing defendant engage in the third such transaction, Officer Kujawski radioed his partner, Officer Bora, to detain both defendant and the man wearing the black jacket and blue jeans. Officer Kujawski remained at the surveillance location and observed Officer Bora detain defendant. The man wearing the black jacket and blue jeans fled on foot, evading police custody. Officer Kujawski then left the surveillance location and recovered the box at the base of the sidewalk next to the grass. Upon opening the box, Officer Kujawski found five plastic "baggies" containing "white rocks" and six tinfoil packets containing "white powder." A custodial search of defendant's person recovered $10. At the police station, Officer Kujawski inventoried the five plastic bags and the six tinfoil packets under inventory number 2362677. Officer Kujawski did not inventory the $10 recovered from defendant.

On cross-examination, Officer Kujawski was asked a series of questions with respect to his surveillance location. Officer Kujawski testified that he was conducting surveillance from a slightly elevated porch located approximately four or five houses down from where defendant was standing. Officer Kujawski also testified that he had no knowledge of Officer Bora's location prior to detaining defendant. Officer Kujawski admitted that he was unable to describe the clothing defendant was wearing at the time of the incident. He further admitted that he was unable to remember the sex or the clothing of the three unknown individuals who approached defendant and purchased narcotics.

The parties then stipulated that Melissa McCann, a forensic scientist employed by the Illinois State Police Crime Lab, received six items containing suspected heroin and five items containing suspected cocaine under inventory number 2362677. After chemical analysis, McCann determined that one of the items containing suspected heroin weighed 0.1 gram and tested positive for heroin. The other items containing suspected heroin weighed an estimated 0.5 gram and were not analyzed. McCann further determined that one of the items containing suspected cocaine weighed 0.1 gram and tested positive for cocaine. The other four items containing suspected cocaine weighed an estimated 0.7 gram and also were not analyzed. The parties further stipulated that McCann "employed proper means in testing the items, *** her findings were within a reasonable degree of scientific certainty, and the chain of custody was intact at all times." Defendant neither testified nor called witnesses on his behalf.

After closing arguments, the trial court found defendant guilty of both counts of possession of a controlled substance with intent to deliver. The trial court then set March 8, 2001, as both the trial date for case number 98 CR 9709 and the sentencing date for each case.

B. Case Number 98 CR 9709

Officer Brian Hansen testified that on March 1, 1998, around 5:15 p.m., he and his partner, Officer Frenzel, received a radio call while in their squad car in the vicinity of 1014 South Racine Avenue in Chicago, Illinois. The call described a black male suspected of purchasing narcotics and reported that the suspect was walking northbound through a Chicago House Authority (CHA) courtyard toward 1014 South Racine Avenue. As Officer Hansen was driving, he observed a man fitting the radio description walking across the CHA courtyard toward 1014 South Racine Avenue. Officer Hansen immediately made a U-turn traveling northbound on South Racine Avenue to an alley located at 1014 South Racine Avenue. Officer Hansen then headed westbound down the alley when he observed defendant exiting the CHA property.

Officer Hansen parked his vehicle, exited and approached the suspect, later identified as defendant, and ordered him to stop. Defendant continued to walk northbound asking, "What do you want with me?" Officer Hansen testified that from a distance of 20 to 25 feet, he then observed defendant "place his right hand into his right jacket pocket and toss a clear plastic bag containing numerous multi-colored plastic bags and a shiny metal object to the ground." Officer Hansen again ordered defendant to stop, but defendant once again ignored the officer's command. Officer Hansen then chased after defendant and detained him. In response to the prosecutor's characterization of the evidence, Officer Hansen testified that after he detained defendant he recovered the "item" that defendant had tossed to the ground. He later inventoried that "item" under inventory number 1951630.

On cross-examination, Officer Hansen admitted that he could not remember the specific description of the man reported in the radio call. Officer Hansen further testified that defendant was with a woman at the time of his arrest.

The parties then stipulated that Clifford T. McCurdy, a forensic scientist employed by the Illinois State Police Crime Lab, received six "packages" containing a "chunky substance" and one "package" containing "powder" under inventory number 1951630. After chemical analysis, McCurdy determined that the six "packages" containing a "chunky substance" weighed 1.06 grams and tested positive for cocaine. McCurdy further determined that the single "package" containing "powder" weighed 0.1 gram and tested positive for heroin.

Defendant then called his cousin, Haveard Welch, to testify on his behalf. Haveard provided a contrary account of what occurred on the afternoon of March 1, 1998. Haveard testified that on the date in question, at approximately 4 p.m., he was driving with defendant near the intersection of Racine Avenue and Taylor Street when they were pulled over by a police vehicle. According to Haveard, a police officer asked him to exit the vehicle and another officer asked defendant to exit the vehicle. Both Haveard and defendant complied with the officers' commands. Haveard was then searched by the same police officer who ordered him to exit the vehicle. After the officer failed to find anything, Haveard testified that the officer "told him to get lost." Haveard further testified that he had no independent knowledge of what happened to defendant after he left, but he later discovered that defendant was incarcerated.

On cross-examination, Haveard admitted that he did not remember whether the officers were in uniform. He further admitted that he did not remember whether the officers were driving a marked or unmarked police vehicle or whether the officers activated their flashing lights and sirens.

After closing arguments, the trial court found defendant guilty of both counts of possession of a controlled substance. Defendant made an oral motion for a new trial which the trial court subsequently denied. The court then sentenced defendant for both his possession convictions (98 CR 9709) and his earlier convictions for possession with intent to deliver (00 CR 17110). Defendant was sentenced to concurrent prison terms of one year for possession of cocaine and one year for possession of heroin (98 CR 9709). Defendant was also sentenced to concurrent prison terms of seven years for possession of cocaine with intent to deliver and seven years for possession of heroin with intent to deliver (00 CR 17110). Defendant's seven-year sentence for possession of a controlled substance with intent to deliver was predicated on his status as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 1998)). The trial court then ordered defendant's possession sentences and sentences for possession with intent to deliver to be served consecutively. This appeal followed.

ANALYSIS

A. 98 CR ...


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