Appeal from the Circuit Court of Cook County. No. 00 CR 5617 Honorable William Lacy, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
Following a jury trial, the defendant, Sam Cooper, was found guilty of possession of a controlled substance with intent to deliver and was sentenced to serve six years' imprisonment. On appeal, *fn1 Cooper argues that he is entitled to a new trial as a result of: (1) the State's failure to show beyond a reasonable doubt that he knowingly possessed heroin with the intent to deliver, (2) ineffective assistance of counsel, (3) the trial court improperly admitting evidence of his prior drug-related convictions, and (4) the State making improper remarks during closing argument. For the reasons that follow, we affirm in part, reverse in part, and remand this matter for resentencing.
At trial, Officer Cathlene McKenna testified that, on January 22, 2000, at approximately 7:45 p.m., she was conducting surveillance in an unmarked van. While there, she observed the defendant standing alone near a vacant lot, and on four separate occasions, she saw an individual approach the defendant and, after holding a short conversation, the individual handed the defendant currency. The defendant then walked a short distance to a fence post, where he retrieved a small item or items from a clear plastic bag. He then gave the item or items to the individual, who then walked away. After the fourth transaction, Officer McKenna radioed her tactical team and described the defendant.
Officer Benjamin Almazan testified that on the day in question he and Officer Ken Yakes were also members of Officer McKenna's tactical team. Officer Almazan testified that while he and Officer Yakes were waiting in a separate vehicle, they were radioed by Officer McKenna and informed to approach the area where the defendant was located. When the officers arrived, they were informed by Officer McKenna to detain Cooper. Officer Almazan testified that Officer McKenna then directed him to a fence post, where he found at its base a clear plastic bag containing nine tinfoil packets. It was stipulated by the parties that if called to testify a forensic chemist would testify that the total estimated weight of the nine packets was 0.6 to 0.7 grams, and that one of the packets was tested and was shown to be positive for the presence of heroin.
Cooper testified that on the night in question, he walked to the store. As he was returning home, he ran into his friend, Jerry Winn. As the two men were walking together, Winn tried to sell the defendant a thermal suit. At this time, a yellow unmarked police car approached. Three officers in plainclothes exited the vehicle and detained the men.
Cooper testified that he recognized one of the police officers, Officer Amato. Cooper said that he recognized Officer Amato because he had been arrested by the officer in the past. Officer Amato then searched Cooper and asked him to sit in the backseat of the unmarked vehicle. Officer Amato informed Cooper that the police officers were looking for narcotics.
Officer Amato asked Cooper if he had a case with him in the past. Cooper replied "yes." Officer Amato asked about the case's result and Cooper responded by telling the officer that he had beat it. However, Cooper admitted that his response was not true because the case resulted in a conviction. Cooper testified that he lied because he believed Officer Amato was harassing him.
Winn was searched and told to go on his way. Cooper remained in the yellow vehicle for approximately 15 minutes, then was told to enter a blue vehicle that had pulled alongside the yellow vehicle. Cooper testified that the blue vehicle was occupied by Officers Almazan and Yakes. At this time, Cooper was informed that the police officers found drugs, and he was placed under arrest.
Cooper maintains the State failed to prove beyond a reasonable doubt that he knowingly possessed heroin with the intent to deliver. Cooper argues that his conviction must be reversed because the State failed to present evidence which showed beyond a reasonable doubt that he had the requisite knowledge, possession or intent to deliver.
"[T]he State carries the burden of proving beyond a reasonable doubt each element of the offense and the defendant's guilt." People v. Maggette, 195 Ill. 2d 336, 353 (2001), citing People v. Ware, 23 Ill. 2d 59, 62 (1961). "A reviewing court will not set aside a criminal conviction on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant's guilt. When considering the sufficiency of the evidence, it is not the function of a reviewing court to retry the defendant.
Rather, the relevant question is whether, after reviewing all of the evidence in the light most favorable to the prosecution, any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime." Maggette, 195 Ill. 2d at 353, citing People v. Tye, 141 Ill. 2d 1, 13-14 (1990); People v. Phillips, 127 Ill. 2d 499, 509-10 (1989).
To support a finding of possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of the narcotics and that the narcotics were in his immediate and exclusive control. People v. Smith, 288 Ill. App. 3d 820, 823-24 (1997), citing People v. Ray, 232 Ill. App. 3d 459, 462 (1992). Constructive possession may be established by proof that the defendant knew the contraband was present and that it was in his immediate and exclusive control. Smith, 288 Ill. App. 3d at 824, citing People v. Feazell, 248 Ill. App. 3d 538, 545 (1993). Knowledge may be shown by evidence of conduct from which it may be inferred that the defendant knew the contraband existed in the place where it was found. Smith, 288 Ill. App. 3d at 824, citing Feazell, 248 Ill. App. 3d at 545. The elements of knowledge and possession are questions of fact that are rarely susceptible to direct proof. Smith, 288 Ill. App. 3d at 824, citing Feazell, 248 Ill. App. 3d at 545.
In Smith, two police officers, who were in an unmarked vehicle, were conducting surveillance. The officers were watching the defendant and his co-defendant who were standing in a vacant lot. The officers observed an individual approach the defendant, who then walked a short distance and retrieved something from the ground. The defendant then returned to the location where the individual was standing with the co-defendant. The defendant handed an object to the co-defendant, who handed it to the individual for cash. After the second transaction, the defendant and co-defendant were arrested. When the officers investigated the area where the defendant retrieved something from the ground, they found a bottle cap which contained plastic bags of what was determined to be cocaine.
On appeal, the defendant argued that the State had failed to prove that he had knowledge and constructive possession of the cocaine. Considering the officers' observations, the Smith court held that the defendant had knowledge and possession of the cocaine. Smith, 288 Ill. App. 3d at 824. The defendant in Smith did not challenge the sufficiency of the evidence with regard to his intent to deliver. Smith, 288 Ill. App. 3d at 824.
Here, Cooper allegedly possessed the heroin that was found near the fence post. Like the defendant in Smith, Cooper was observed handing unidentified objects to individuals. Cooper recovered these objects from the clear plastic bag near the fence post. During the period in which Officer McKenna watched Cooper, no other person went to the fence post. When Officer Almazan recovered the plastic bag, he testified that there were no other items in the surrounding area. It was later determined that one of the objects in the clear plastic bag contained heroin. As such, like the defendant in Smith, Cooper knowingly possessed the heroin.
In a case involving unlawful possession with intent to deliver a controlled substance, "intent is a mental state seldom susceptible of direct proof but which must be inferred from circumstantial evidence." People v. Neylon, 327 Ill. App. 3d 300, 310 (2002). "'This issue involves the examination of the nature and quantity of circumstantial evidence necessary to support an inference of intent to deliver. In controlled substances prosecutions, many different factors are probative of intent to deliver. Such factors include whether the quantity of controlled substance in defendant's possession is too large to be viewed as being for personal consumption, the high purity of the drug confiscated, the possession of weapons, the possession of large amounts of cash, the possession of police scanners, beepers or cellular telephones, the possession of drug paraphernalia, and the manner in which the substance is packaged. [Citation.] The quantity of controlled substance alone can be sufficient to prove an intent to deliver. This is the case only where the amount of controlled substance could not reasonably be viewed as designed for personal consumption.'" Neylon, 327 Ill. App. 3d at 310, quoting People v. Beverly, 278 Ill. App. 3d 794, 799 (1996), and citing People v. Robinson, 167 Ill. 2d 397, 408 (1995).
Here, approximately 0.7 grams of suspected contraband was recovered from the clear plastic bag found near the fence post. *fn2 This is an amount that reasonably could be viewed as intended for personal consumption. See People v. Delgado, 256 Ill. App. 3d 119, 122-23 (1993). When the amount of substance seized is an amount that may be considered consistent with personal use, our courts have properly required additional evidence of intent to deliver to support a conviction. Robinson, 167 Ill. 2d at 411. When the additional evidence in this case is considered, the State has failed to prove beyond a reasonable doubt that Cooper possessed the requisite intent to deliver the heroin.
Initially, we first observe that there are two rather recent decisions with factual situations similar to this matter where the respective courts determined that the evidence sufficiently showed that the defendant had the requisite intent to deliver. The first decision is People v. Little, 322 Ill. App. 3d 607, 620 (2001). In Little, police officers were conducting surveillance, and on two separate occasions, the officers observed an unidentified person approach the defendant and hand him money. Each time, the defendant accepted the money, retrieved an object from another pocket, and handed the object to the individual, and the individual then walked away. The officer could not specifically identify the object that the defendant handed to the unknown individuals. After the ...