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People v. McCann

April 27, 2004


[6] Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 01-CF-1547 Honorable Daniel Rozak, Judge, Presiding.

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

[8]  The defendant, Tyjuan McCann, was convicted of unlawful possession of cannabis with intent to deliver. 720 ILCS 550/5(g) (West 2000). The trial court sentenced him to 25 years' imprisonment. Defendant appeals, contending that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying his motion to sever his trial from his co-defendant's trial; (3) the court erred in admitting other crimes evidence; (4) he was denied a fair trial due to the prosecutor's improper closing argument; and (5) his sentence is excessive and an abuse of discretion. We affirm.

[9]  FACTS

[10]   Defendant and LaCrisha Davis were charged with possessing with the intent to deliver more than 5,000 grams of a substance containing cannabis. Attorney Lawrence Dujsik entered an appearance on behalf of both defendant and Davis.

[11]   Dujsik subsequently moved to sever the cases for trial. He also filed a motion to withdraw from defendant's case, citing a conflict of interest in representing both defendant and Davis. The court granted Dujsik's motion to withdraw from representing defendant, and appointed a public defender to represent him.

[12]   Defendant's new attorney then filed a written motion to sever the cases for trial. In the motion, defendant asserted his defense was that he did not participate in the commission of the crime. Defendant noted that Davis had made a statement indicating that the cannabis belonged to him. Defendant asserted that if Davis did not testify at the joint trial, he would be denied his right to cross-examine her regarding her prior statement. Defendant sought severance of the trials, stating he believed that Davis' defense was antagonistic toward his defense.

[13]   At the hearing on the motion, the State informed the court that it would not introduce Davis' prior statement that the cannabis belonged to defendant. The State ensured the court that the witnesses would be instructed to make no mention of the statement implicating defendant. The court then denied defendant's motion to sever.

[14]   The State subsequently filed a motion seeking to introduce evidence of a pending criminal matter in Cook County, Illinois. In that case, the State alleged that defendant and Davis possessed 5,000 or more grams of cannabis with the intent to deliver. The court granted the State's motion, allowing introduction of the pending criminal matter.

[15]   The next day, Dujsik, who continued to represent defendant in the Cook County matter, informed the court that he had filed a motion to suppress evidence and statements in the pending Cook County case. In that motion, defendant claimed that the evidence was obtained in violation of his constitutional rights. Dujsik stated that the court had not yet ruled on the motion to suppress. The trial court reasserted its ruling allowing the State to introduce evidence with regard to the Cook County case.

[16]   At trial, Detective David Julian testified that he and other police officers went to an apartment in Steger, Illinois, to execute an arrest warrant that had been issued for defendant in a narcotics case. Julian observed defendant leave the apartment building and followed him as he drove to a grocery store. When Julian attempted to stop defendant, he fled on foot toward the apartment building. Julian chased defendant, but lost sight of him as he entered the building.

[17]   Julian proceeded to an apartment rented by Davis and knocked on the door. Davis allowed the officers to enter the apartment to search for defendant. When he entered the master bedroom, Julian saw two Ziploc freezer bags containing a substance that appeared to be cannabis, an electronic scale and smaller Ziploc bags located at the foot of the bed. There was a strawberry decal on some of the packages that contained the smaller Ziploc bags.

[18]   Julian then spoke with Davis, and she signed a written consent to search the apartment. In the search, Julian found 71 bags of what appeared to be cannabis inside a small refrigerator located in the master bedroom closet. He also found $600 in cash in a dresser drawer, and two envelopes that had been mailed to defendant at an address in Chicago Heights.

[19]   At some point during the search, Davis received a telephone call. Davis informed the police officers that defendant was on the phone, and that he wanted to speak with them. Julian testified that he overheard the conversation in which defendant stated he owned the cannabis. Defendant also stated that he would surrender to the police. Julian testified that he recognized defendant's voice from prior contacts.

[20]   Julian then testified concerning the pending Cook County matter. He stated that he and other officers executed a search warrant at defendant's apartment in Chicago Heights. When he entered the apartment, defendant and Davis were sleeping. They were arrested and placed in the living room of the apartment.

[21]   Police officers found three "bricks" of what appeared to be cannabis inside the refrigerator. They also found $84,000 in cash, a scale and Ziploc bags containing what appeared to be cannabis. There was a red fruit decal on Ziploc bags found in one of the bedrooms. Defendant stated that the cannabis and cash belonged to him, and that he sold marijuana as a source of income. Davis stated defendant had been selling cannabis for years, he hid most of the money from her, and the apartment often contained cannabis packaged in bags that sold for ten dollars on the street.

[22]   On cross-examination, Julian testified that defendant's name was not on the lease of the apartment in Steger, but he found 50 to 60 pairs of men's pants, 50 men's shirts and several pairs of shoes in the master bedroom of the apartment. In response to questioning by Davis' attorney, Julian testified that Davis stated the cannabis belonged to defendant. The State objected to this testimony.

[23]   Police Officer David Basile testified that during the search of the Steger apartment he spoke with a person on the telephone who identified himself as defendant. Defendant stated "[t]hat's my dope. Please don't mess with my children." Defendant then stated that he would turn himself in to the police. Basile testified that Julian also listened to this telephone conversation.

[24]   Davis testified that she had lived at the apartment in Steger with defendant and their three children. She informed the police that the cannabis was not hers, and that any cannabis found in the apartment must have belonged to defendant. Defendant brought the refrigerator in which the cannabis was found into the apartment the night before the search. Davis did not know the refrigerator contained cannabis. On cross-examination, Davis stated the lease, bills and a subscription for delivery of a newspaper to the apartment were in her name. Defendant's name did not appear on any of those items.

[25]   Forensic scientist Pamela Wilson testified that she tested the substance found in the apartment in Steger. One of the packages weighed 862.5 grams and another one weighed 4,717.1 grams. Wilson testified that she first analyzed the substance by looking at it with a microscope. She stated that cannabis can be identified by the presence of "cover hair" and "little white claw-like hairs" called cystolytes on the leaf. Additionally, she conducted a Duquenois Levine test on the substance. Wilson testified that a substance tests positive for cannabis when two purple layers of liquid are produced in the Duquenois Levine ...

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