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People v. Ballard

February 23, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES BALLARD, DEFENDANT-APPELLANT.



[6] Appeal from Circuit Court of Macon County No. 01CF982 Honorable James Coryell, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice Knecht

[8]  After a March 2002 jury trial in the Macon County circuit court, defendant, James Ballard, was convicted of unlawful possession of a controlled substance (cocaine) with intent to deliver with a prior unlawful-possession-of-a-controlled-substance-with-intent-to-deliver conviction. 720 ILCS 570/401 (West 2000); 730 ILCS 5/5-5-3(c)(2)(D) (West 2000). In April 2002, the trial court sentenced him to 15 years' imprisonment. Defendant appeals, contending (1) he was denied a fair trial because the State's expert witness testified falsely regarding his own testimony in a prior drug case; (2) the State failed to prove he had the intent to deliver beyond a reasonable doubt; and (3) the trial court erred in not ruling on his motion in limine, prior to his testimony, as to whether his prior conviction for the same offense could be used to impeach him. We affirm.

[9]  I. BACKGROUND

[10]   On the evening of July 13, 2001, Decatur police officers executed a search warrant on defendant's apartment. Upon kicking down the door to the apartment, Sergeant Brian Bell entered the apartment and pursued defendant as he ran down the hallway to the bathroom. Once there, Sergeant Bell retrieved a large plastic bag defendant was attempting to flush down the toilet. Inside the plastic bag were 41 plastic Baggie corners containing a chunky, yellowish rock substance.

[11]   Prior to trial, defendant unsuccessfully challenged the execution of the search warrant. He also filed a motion in limine asking that the State be precluded from introducing his 1994 conviction for possession with intent to deliver cocaine, citing prejudicial impact. Defendant renewed his motion during trial, arguing the outcome of the motion would impact his decision on whether to testify. The trial court refused to rule on the motion in advance of defendant testifying, stating the motion was premature.

[12]   Trial in this matter began on March 7, 2002. Decatur police officer Chad Ramey testified he conducted surveillance on defendant and his apartment prior to execution of the search warrant. Shortly before execution of the search warrant, defendant left his apartment, went to another apartment, and returned. Officer Ramey also participated in searching defendant's apartment in execution of the warrant. Defendant told him he lived in the apartment, although Officer Ramey found the usual indicators of occupancy were missing. There was Kool-Aid in the refrigerator but no food. There was no bread or other food items found in the apartment. Two boxes of plastic sandwich bags were found on the kitchen table. One box was empty, and the other was about three-quarters full. There were few plates and cups in the kitchen. The living room had two couches, a large screen television, multiple DVD (digital video disc) players, and a large stereo system and speakers. Next to one of the couches was a police scanner. Defendant was unemployed but recently purchased an automobile. Officer Ramey found no devices that could be used to smoke crack cocaine.

[13]   Mike Cravens, an analyst for the Illinois State Police crime lab, testified he tested the contents of 18 of the 41 Baggies and found them to contain cocaine. The aggregate weight of the 18 rocks of cocaine was 5.1 grams. Individually, they ranged in size from 0.194 grams to 0.359 grams. Cravens visually inspected the contents of the remaining 23 Baggies and found them to be similar in size and appearance to the 18 rocks of cocaine. The gross weight of the 23 remaining Baggies and their contents was 8.6 grams. Cravens did not test the contents of the remaining 23 Baggies because the penalty classifications were the same whether defendant possessed 5 grams or 13 grams of cocaine.

[14]   Edward Root, a Decatur police officer with 13 years of service as an agent with the Illinois State Police Task Force X, a drug enforcement unit, testified as an expert on illegal drug use and distribution. Root testified to many hours of training and many years of experience, including testifying as an expert in more than 50 cases in Macon County and more than 10 cases in federal court.

[15]   Officer Root testified a typical dosage unit of crack cocaine was 0.2 grams and cost approximately $20 on the street. Therefore, the street value of the 18 packets of crack cocaine would be approximately $360. Without objection, Root stated all 41 packets had the color, texture, and method of packaging consistent with crack cocaine. While Root testified a crack addict could go through multiple dosage units in a short time, he was not sure an addict could consume that much crack cocaine in two days. The physical effects of crack cocaine last from 20 to 60 minutes. A heavy user of crack cocaine would purchase the drug in bulk packaging and not in multiple small packages to obtain a price break. Root had never encountered an individual who purchased 18 individually packaged units solely for personal use.

[16]   Root stated the absence of smoking paraphernalia was an indicia of intent to deliver, although he acknowledged crack cocaine can be smoked through a variety of small household items. He stated in many instances drug dealers do not keep records, scales, cash, cellular phones, pagers, or cutting agents, although these can all be indicia of intent to deliver. In addition, many times crack cocaine is packaged at one location and sold at another. When dealers have recently obtained a new supply of drugs to sell, they will have little to no cash.

[17]   Root gave his opinion that the amount and manner of packaging of the crack cocaine in defendant's possession as well as the absence of smoking paraphernalia were consistent with intent to deliver rather than personal use.

[18]   Defense witnesses were Clarence Ballard, defendant's brother, and Theresa Hardy, defendant's sister. Both testified to defendant's addiction to crack cocaine and, especially, defendant's capacity and inclination for prodigious personal consumption of crack cocaine.

[19]   Clarence testified, before he changed his life, he and defendant would smoke "anything we could get our hands on." Clarence stated a crack cocaine addict was never sated. An addict always wants more. He stated defendant would consume 18 dosage units in half an hour. He also stated he and defendant would sometimes obtain crack cocaine in individually wrapped packages if that was all they could find but agreed with Root it was cheaper, and therefore, more preferable, to obtain crack cocaine in bulk.

[20]   Hardy, although not a user herself, testified she had seen defendant smoke crack cocaine on numerous occasions, up to 3 1/2 hours straight. He would use a small metal car antenna as a pipe.

[21]   After defendant's motion in limine was denied, he declined to testify, citing the trial court's decision to defer ruling on the motion until after his testimony as the deciding factor.

[22]   Defendant was convicted of possession of a controlled substance with intent to deliver (between 5 and 15 grams) with a prior conviction for unlawful possession of a controlled substance with intent to deliver, a Class 1 felony. He filed a posttrial motion, which the trial court denied, and the court sentenced him to 15 years' imprisonment. His motion to reduce sentence was also denied, and this appeal followed.

[23]   II. ALLEGED FALSE TESTIMONY BY STATE'S EXPERT WITNESS

[24]   Defendant contends Root testified falsely when he stated he had testified in a prior case the evidence in that case was consistent with personal use and not intent to deliver. After Root gave his opinion that the amount and manner of packaging crack cocaine in this case were consistent with intent to deliver rather than personal use, defense counsel asked Root if he had ever testified as an expert on drug distribution and found the circumstances were consistent with mere personal use as opposed to intent to distribute. Root cited his testimony in one prior case:

[25]  
"Q. Isn't it true in [sic] each and every time that you testified as an expert witness, your opinion has always been the same, and you have testified under oath every time that the amount of drugs that you are presented with in the case is consistent with distribution as opposed to personal use?

[26]   A. That would be incorrect.

[27]   Q. Can you cite the case?

[28]  
A. Rafael Kennedy. Possession of heroin. I testified that the amount he possessed was consistent with personal use.

[29]   Q. And the charge in that case was possession with intent to deliver?

[30]  
A. Yes. He had--[w]as--[h]e was charged with possession of heroin; also, possession ...

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