Appeal from the Circuit Court of Cook County No. 07 C6 61780 The Honorable Brian Flaherty,Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Karnezis concurred in the judgment and opinion.
Defendant, Learthur Harden, was convicted after a jury trial of possession of a controlled substance with intent to deliver 1.2 grams of cocaine. The trial court sentenced Harden to 14 years' imprisonment as a Class X offender. On appeal, Harden contends: (1) the State did not prove him guilty beyond a reasonable doubt where the officers' testimony was implausible, contradictory, and refuted by more credible evidence; (2) the State failed to prove him guilty of possessing more than one gram but less than 15 grams of cocaine with intent to deliver, where the chemist did not testify that he tested all 20 bags and may have improperly commingled the substances before testing; (3) the trial court erred in allowing the State to impeach him with a prior conviction for possession with intent to deliver a controlled substance; and (4) he is entitled to two days of sentencing credit.*fn1
The trial court sentenced Harden on August 19, 2009, and he filed a timely notice of appeal on August 27, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, §6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
At Harden's trial, Lieutenant David Basile testified for the State. Lieutenant Basile stated that he has been a Chicago Heights police officer for almost 21 years, the last 15 years in the tactical units conducting narcotics investigations. Lieutenant Basile testified that 75% of his felony arrests were cocaine-related. Over defense counsel's objections, the court qualified Lieutenant Basile as an expert witness in narcotics field investigations.
On the evening of October 4, 2007, Lieutenant Basile worked as a
surveillance officer in an operation targeting drug dealers. As a
visual aid, he used a pair of "military high-spec, low-light
binoculars" that aids vision when external light is low. Lieutenant
Basile testified that he has used these binoculars in his narcotics
work for the past eight years. On that evening, Lieutenant Basile set
up surveillance in the area of Fifth Avenue in Chicago Heights. There
were three or four working light posts on the street. He parked his
unmarked car across the street, at a
45-degree angle from a house located at 1321 Fifth
Avenue. Lieutenant Basile testified that from this vantage point, he
could clearly see the house at 1321 Fifth Avenue as well as the side
of the house. No fences or other houses obstructed his view.
Approximately 10 minutes later, he observed a male walk into the alley
adjacent to 1321 Fifth Avenue, with a female following him. The
distance between Lieutenant Basile and the male was 100 feet.
Lieutenant Basile identified Harden as the male he observed walk into
Using the binoculars, Lieutenant Basile saw the female hand Harden a piece of paper that appeared to be United States currency. Harden took the money and ran to the southeast rear of the house where there was a three-foot-tall pillar. He leaned down and picked up a plastic bag from the ground, took out several items before setting the bag down, and ran back to the female. Harden then handed her the items from the bag. Lieutenant Basile testified that he never lost sight of Harden during the entire transaction. After the female left, Harden came out of the alley and walked in front of 1321 Fifth Avenue. Another male approached him and handed Harden some money. Harden put the money in his pocket, ran to the side of the building by the pillar, leaned over, and pulled some items out of the bag that was on the ground. Harden returned to the front yard and handed the male the items. After the male left, no one else was in the area other than Harden.
Based on his experience and training, Lieutenant Basile knew he had just witnessed two narcotics transactions. He radioed fellow officers in the area, informed them that the subject was a black male wearing a blue and white striped shirt, and advised them to detain Harden. Lieutenant Basile never lost sight of Harden the entire time. Less than a minute later, two squad cars came down the street and Detective Cole detained Harden in front of the house at 1321 Fifth Avenue. Lieutenant Basile stated that he could see Detective Cole talking to Harden, and less than a minute later both were on the ground. After receiving information from Lieutenant Basile, Officer Fenimore went to the southeast pillar to retrieve the plastic bag.
On cross-examination, Lieutenant Basile stated that his undercover vehicle was a 1991 Astro van with tinted windows. Between the alley and 1321 Fifth Avenue was a vacant lot. A "decorator wrought iron fence" separated the lot from 1321 Fifth Avenue. Lieutenant Basile did not know for certain whether there was any shrubbery around the fence. He also stated that although the binoculars allowed him to see details and facial features quite well at night, they did not enable him to see as well as he could during the day. Lieutenant Basile stated that he did not use the binoculars the entire time, and without them he could not tell whether anyone else was at the rear of 1321 Fifth Avenue. On redirect examination, Lieutenant Basile clarified that the decorator fence had slats wide enough apart so that one could easily see through to the inside.
Detective Cole testified that on October 4, 2007, he was part of the team with Lieutenant Basile conducting a narcotics investigation. After speaking with Basile, Detective Cole went to 1321 Fifth Avenue, where he observed a male wearing a blue and white striped shirt. He identified Harden as the male he saw that night. Detective Cole did not see anyone but Harden at the location. He approached Harden and attempted to conduct a field interview. Harden became "very belligerent" and Detective Cole told him to place his hands on a gated wall in front of 1321 Fifth Avenue. Detective Cole spoke to Detective Fenimore over the radio and then he performed a custodial search of Harden. As Detective Cole moved to squeeze Harden's right pants pocket Harden "dropped his right hand from the wall immediately." The entire time, Harden was telling Detective Cole that the police needed to find someone else to pick on. Detective Cole felt an object in Harden's right pants pocket which he believed was a knife or a box cutter. As Detective Cole felt the object, Harden dropped his right hand again. Detective Cole told Harden to place his hand back on the wall. He then tried to touch the object again, whereby Harden's hand immediately came down to his right pocket. Detective Cole then "struck him with an open hand in his ear to stun him." He took Harden to the ground and placed him under arrest. Detective Cole testified that after hitting Harden in the ear, he put his foot in front of Harden so that he could use his weight to "trip" him. Detective Cole stated it was necessary to "control [Harden's] hands where he couldn't get to that blade in his pocket." Once he got Harden on the ground, Detective Cole "cuffed" him and removed a box cutter from his right pants pocket. Harden was taken to the Chicago Heights police station, where he asked to go to the hospital. Detective Cole stated that at the time, Harden did not have any obvious injuries. Along with the box cutter, $95 in cash was recovered from Harden.
Detective Fenimore testified that on October 4, 2007, he worked with Detective Cole in a narcotics investigation unit. They received information from Lieutenant Basile that he had just witnessed two hand-to-hand narcotics transactions and that the suspect was wearing a blue and white striped shirt. He and Detective Cole proceeded to 1321 Fifth Avenue, where they encountered a male wearing a blue and white striped shirt. Detective Fenimore identified Harden as the person they encountered. After speaking with Lieutenant Basile, Detective Cole approached Harden and Detective Fenimore went to the southeast rear of the residence toward the porch area. He observed a pillar made of brick, and nearby on the ground, he saw a clear plastic bag containing smaller purple bags. Detective Fenimore conducted a field test on the items in the bag and the results were positive for suspected narcotics. He further stated that the area around the pillar contained no debris.
On cross-examination, Detective Fenimore stated that nothing was covering the plastic bag on the ground. He testified that he found the bag to the left of, and slightly back from, the pillar "approximately a foot under the porch area." Detective Fenimore stated that when he first got to the location and exited his vehicle, Harden was in the front of 1321 Fifth Avenue.
David Vanwingeren testified that he is a forensic scientist specializing in drug chemistry with the Illinois State Police. He testified as an expert in forensic chemistry. Vanwingeren testified that the evidence package contained 1 clear plastic bag with 20 purple zip bags inside, each containing "a small amount of chunky substance." Vanwingeren then testified as to his testing process:
"Q. Can you explain the process of weighing these items to the jury?
A. I took a disposable weigh dish, placed it on the balance, zeroed out the balance, took all 20 items, placed it onto the balance, and then I got a gross weight of that, and then I took the chunky substance out of each package and placed the packaging back onto the balance getting the weight of the packaging and then just subtracted the weight for a net weight of the chunky substance.
Q. And what did you determine that that weight was?
Q. Now, after ascertaining the weight, did you analyze the chunky substances?
Q. How many tests did you ...