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People v. Bell

September 05, 2003


Appeal from the Circuit Court of Cook County Honorable Vincent M. Gaughan, Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher


Following a jury trial, defendant Sylvester Bell was convicted of possession of a controlled substance with the intent to deliver within 1,000 feet of a church. The trial court sentenced defendant to 7½ years in prison. On appeal, defendant contends that several comments by prosecutors in opening statement and closing argument prejudiced the jury and deprived him of a fair trial. He also argues that the State attempted to introduce hearsay testimony to support the account of its only eyewitness. In addition, he claims that his sentencing as a Class X offender under section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2000)) violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Lastly, defendant asserts that the State failed to prove beyond a reasonable doubt that he knowingly possessed cocaine with the requisite intent to deliver. For the reasons that follow, we affirm defendant's conviction and sentence.

At trial, Chicago police officer Brian Towey testified that at about 10:30 p.m. on August 21, 2000, he and two partners responded to a telephone call reporting drug sales at 755 North Leclaire Avenue. After arriving in that neighborhood, Officer Towey stood in a gangway next door to a church and across the street from the Leclaire Avenue address. The two other officers remained in their car. The officer saw two people approach defendant, who was leaning on a Pontiac. After the individuals handed defendant money, defendant walked to the passenger door of the Pontiac, opened the door and retrieved "some small items," and handed the items to the people who had approached him.

After Officer Towey observed several similar transactions, he and his partners approached defendant. Looking inside the Pontiac, Officer Towey saw two plastic bags on the floor of the passenger side. The bags contained a rock-like substance that the officer suspected to be cocaine. Defendant was arrested, and the officers retrieved a key from him that opened the trunk of the Pontiac. Defendant did not have a key to open the Pontiac's doors. Officer Towey recovered the two plastic bags from the floor of the car. The bags sat atop a larger potato chip bag that contained two more plastic bags of suspect cocaine.

On cross-examination, Officer Towey stated that he was more than 100 feet away from the Pontiac during his surveillance. Defendant's back was to the officer during the exchanges, and he could not see what defendant handed the individuals, but he saw that the individuals handed cash to defendant. No drugs were recovered from defendant's person. Police did not recover an ignition or door key to the Pontiac from defendant. When searching the car, Officer Towey opened the locked passenger door by reaching in through the partially open window and manually unlocking the door.

Chicago police officer Paul Galiardo testified that he and another officer remained in the police car during Officer Towey's surveillance. Officer Galiardo's testimony corroborated Officer Towey's account of defendant's arrest and the recovery of the plastic bags. Officer Galiardo testified that $98 in cash was recovered from defendant after his arrest.

The State presented evidence that the drug sale occurred within 1,000 feet of a church and that the packets retrieved from the Pontiac contained .7 grams of cocaine. The defense offered, and the State agreed to, a stipulation that according to Illinois Secretary of State records, the Pontiac was registered to a Sancree Wright. *fn1 The jury convicted defendant of possession of a controlled substance with intent to deliver within 1,000 feet of a church.

On appeal, defendant contends the State committed numerous errors that cumulatively deprived him of his right to a fair trial. He argues that the prosecution made several improper and prejudicial comments in opening statement and closing argument and also attempted to introduce hearsay testimony.

We first address defendant's hearsay argument. He claims that during Officer Towey's direct examination, the State attempted to elicit a hearsay statement to corroborate the officer's identification of defendant. When Officer Towey was asked why he and his partners went to 755 North Leclaire Avenue, the officer replied, "We received complaints of narcotic sales with a description of the seller and the description of the auto where the narcotics were from." Defense counsel objected that the testimony was hearsay. The trial judge instructed the prosecutor that she could not "go to the identification," which would be hearsay.

As the State argues, defendant has failed to support his assertions with any citation to authority. This is likely because the complained-of testimony was not inadmissible hearsay. First, Officer Towey's testimony was not offered for the truth of the matter asserted, namely, that the police received complaints of drug sales at the Leclaire Avenue address and also were given descriptions of a car and of a suspected drug dealer. Instead, the officer's testimony was elicited to explain the investigative steps that led to the surveillance of defendant. Such testimony is admissible because it is not offered for its truth but rather to show the progress of the police investigation. People v. Pulliam, 176 Ill. 2d 261, 274, 680 N.E.2d 343, 350 (1997). Therefore, the testimony did not constitute hearsay. As defendant admits, Officer Towey did not testify to the content of the complaints or the suspect's description. For those reasons, defendant's argument is rejected.

Defendant next contends that the prosecution made several prejudicial comments in its opening statement and closing argument. To preserve an issue for review, a party must object at trial and also make a specific objection in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988). With the exception of one of the remarks, which will be discussed later in this order, defendant did not include these comments in his posttrial motion. Accordingly, he has forfeited his objections to those statements, and we are not required to consider his arguments.

Defendant asserts that his individual assertions warrant review as cumulative error and also asks this court to review his forfeited arguments under the plain error rule. See 134 Ill. 2d R. 615(a). Under the plain error exception, this court conducts a limited review of the record to determine whether (1) the evidence was closely balanced, or (2) the errors were of such magnitude as to deprive the defendant of his right to a fair trial. People v. Mena, 338 Ill. App. 3d 1, 7, 787 N.E.2d 274, 279 (2003). If either applies, this court can reverse the trial court despite defendant's failure to preserve the error or errors.

First, we disagree with defendant's characterization of the evidence as closely balanced. The State presented the uncontradicted testimony of a police officer who saw defendant hand to several people a substance later determined to be cocaine and saw defendant accept money in return. The testimony of a single eyewitness is sufficient to convict if the testimony is positive and the witness is credible. People v. Davis, 337 Ill. App. 3d 977, ...

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