Appeal from the Circuit Court of Cook County 09 CR 6863 Honorable Joseph Kazmierski, Judge Presiding.
The opinion of the court was delivered by: Justice Epstein
JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment and opinion.
¶ 1 Defendant Bennie Ellison was charged by indictment with possession of a controlled substance with intent to deliver less than 1 gram of heroin and possession of a controlled substance with intent to deliver 1 or more but less than 15 grams of cocaine. Following a jury trial, defendant was found guilty on both charges and sentenced to 10 years in prison. On appeal, defendant argues that (1) the evidence was insufficient to show that he intended to deliver the drugs; (2) the trial court erred in finding that the officers who arrested defendant had probable cause to believe that defendant committed a crime; (3) the trial court improperly refused to allow defendant to impeach a witness by omission; and (4) the trial court erred in denying standby counsel and did not do enough to ensure defendant had law library access.
¶ 2 Prior to trial, defendant, acting pro se, filed a motion to quash arrest and suppress evidence. The motion judge heard testimony from two officers of the Chicago police department. Officer Robert Darko testified that late on March 18, 2009, he was watching for drug activity at a house at 7759 South Euclid Avenue in Chicago. From 30 feet away, using binoculars, he saw Ellison approach the house, exchange an unknown amount of money for a "small object," and leave. Based on his experience, which included hundreds of drug arrests, Officer Darko thought he had seen a drug deal. He radioed a description of defendant to other officers on surveillance.
¶ 3 Officer Vladen Milenkovic testified that he and his partner were waiting in a vehicle in an alley near the surveillance location at 7:20 p.m. The officers were conducting surveillance after receiving information that narcotics were being sold out of 7759 South Euclid, which was in "an area of high narcotics activity." After receiving Officer Darko's call, Officer Milenkovic and his partner drove to the location and saw defendant, who matched Darko's description. Officer Milenkovic and his partner got out of the car, announced their office, and approached defendant. His partner asked defendant if they could talk with defendant, and defendant responded, "Let me show you what I got." When defendant made that statement, he pointed with his right hand to his right front pants pocket. His partner then recovered plastic bags of suspect heroin from defendant's pocket and placed defendant under arrest. Officer Milenkovic testified that he and his partner did not surround defendant or prevent him from leaving in any way. If defendant had chosen not to answer their questions, he would have been free to walk away.
¶ 4 At the conclusion of the testimony, the court denied defendant's motion. The court found that Officer Darko observed defendant conduct a narcotics transaction and when the other officers approached defendant to investigate, he "volunteered the drugs." On those facts, the court concluded that the officers had probable cause to arrest defendant.
¶ 5 At trial, Officer Malinowski, the officer working with Officer Milenkovic, testified for the State. Officer Malinowski stated that just shortly after 7 p.m., he received a radio transmission from Officer Darko with a physical and clothing description of a person engaged in a narcotics sale that Officer Darko had just witnessed. Officers Malinowski and Milenkovic drove a short distance and saw defendant.
¶ 6 Officer Malinowski testified that when he told defendant he was a police officer and asked if he could speak with him, defendant "put his hands up" and said "let me show you what I got." Defendant then moved his hand toward his pocket. Malinowski stopped him because he "didn't know what he's going for for safety reasons." Officer Malinowski then performed a pat down search and felt a plastic bag in defendant's pants pocket. He found two small white bags in defendant's pocket with a white powder he suspected to be heroin. Malinowski later searched Ellison at the police station. In defendant's sock, Malinowski found one more bag of white powder suspected to be heroin and a large bag with 17 smaller bags, each with a white, rock-like substance suspected to be cocaine.
¶ 7 Officer Darko testified consistent with his testimony at the hearing on defendant's motion to quash arrest and suppress evidence. Officer Milenkovic also provided testimony consistent with his earlier testimony, though at trial he testified that when defendant pointed to his pants pocket, he said something that Milenkovic could not hear. Milenkovic testified that he then heard Malinowski tell defendant to stop. Both Milenkovic and Malinowski testified about the chain of custody for the recovered narcotics.
¶ 8 The State then presented the testimony of forensic chemist Martin Palomo. Palomo testified that the gross weight of the 17 items recovered from defendant's sock was 3.112 grams. After testing 8 of the 17 items, he found that those 8 items contained cocaine in the amount of 1.1 grams. With regard to the two items initially recovered from defendant's pocket, Palomo testified that they contained 0.3 grams of a substance containing heroin. The one additional item recovered from defendant's sock contained less than 0.1 grams of a substance containing heroin.
¶ 9 After the chemist's testimony, the State rested. The jury convicted defendant on both counts of possession with intent to deliver, and the judge sentenced him to 10 years in prison. Defendant now appeals.
¶ 11 Sufficiency of the Evidence as to Intent to Deliver
¶ 12 Defendant first argues that the evidence presented at trial was insufficient to support a conviction for possession with intent to deliver. Considering the evidence in the light most favorable to the State, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008). We will not substitute our judgment for that of the trier of fact with regard to the credibility of witnesses, the weight to be given to each witness's testimony, or the reasonable inferences to be drawn from the evidence. Ross, 229 Ill. 2d at 272. A defendant's conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to his guilt. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 13 To establish narcotics possession with intent to deliver, the State must prove three elements: that the defendant knew of the narcotics; that the narcotics were in the defendant's immediate possession or control; and that the defendant intended to deliver them. 720 ILCS 570/401 (West 2008); People v. Robinson, 167 Ill. 2d 397, 407 (1995). The focus in this case is on the third element: whether there was sufficient evidence to show that defendant intended to deliver the drugs found on his person.
¶ 14 Direct evidence of intent to deliver is rare, and intent is most often proven by circumstantial evidence. Robinson, 167 Ill. 2d at 407; People v. Sherrod, 394 Ill. App. 3d 863, 865 (2009). Our task is to examine the nature and quantity of circumstantial evidence to determine if it supports an inference of intent to deliver. Robinson, 167 Ill. 2d at 408. Factors relevant in this inquiry include: (1) whether the quantity of drugs possessed is too large to be reasonably viewed as being for personal consumption, (2) the degree of drug purity, (3) the possession of any weapons, (4) possession and amount of cash, (5) possession of police scanners, beepers or cellular telephones, (6) possession of drug paraphernalia commonly associated with narcotics transactions, and (7) the manner in which the drug is packaged. Id.; People v. Little, 322 Ill. App. 3d 607, 615 (2001). The Robinson court, however, simply provided examples of the "many different factors that have been considered by Illinois courts as probative of intent to deliver." Robinson, 167 Ill. 2d at 408 (collecting cases); People v. White, 221 Ill. 2d 1, 17 (2006), abrogated on other grounds by People v. Luedemann, 222 Ill. 2d 530 (2006); accord People v. Blakney, 375 Ill. App. 3d 554, 558 (2007). This list of "factors" is not "exhaustive" or "inflexible." People v. Bush, 214 Ill. 2d 318, 328 (2005) (stating that evidence that defendant was standing alone behind a fence at 2 a.m. selling small items from a brown paper bag that was later found to contain cocaine was as "equally probative of intent to deliver" as the Robinson factors).
¶ 15 In cases where the amount of the controlled substance cannot reasonably be viewed as designed for personal consumption, the quantity of the controlled substance alone can be sufficient to prove an intent to deliver beyond a reasonable doubt. Robinson, 167 Ill. 2d at 410-11. In this case, there was no testimony that the amount of drugs recovered-3.112 grams of cocaine and approximately 0.4 grams of heroin-was inconsistent with personal use, and the State does not dispute that the quantity of drugs could be consistent with personal use. Illinois courts have so held in cases where greater amounts of drugs were recovered. See, e.g., Robinson, 167 Ill. 2d at 413 (possession of 2.2 grams of PCP and 2.8 grams of cocaine consistent with personal use); People v. Nixon, 278 Ill. App. 3d 453, 458 (1996) (stating that 6.6 grams of cocaine was a "relatively small amount" and ultimately finding no intent to deliver); People v. McLemore, 203 Ill. App. 3d 1052, 1056 (1990) (3.3 grams of cocaine not greater than would be used for personal consumption).
¶ 16 In cases where the amount seized "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. This court has held that when a defendant possesses narcotics within the range of personal use, "the minimum evidence a reviewing court needs to affirm a conviction is that the drugs were packaged for sale, and at least one additional factor tending to show intent to deliver." Blakney, 375 Ill. App. 3d at 559 (citing People v. Beverly, 278 Ill. App. 3d 794, 802 (1996)); People v. Clinton, 397 Ill. App. 3d 215, 225 (2009). We have emphasized, however, that there is " 'no hard and fast rule to be applied in every case.' " Sherrod, 394 Ill. App. 3d at 866 (quoting Robinson, 167 Ill. 2d at 414).
¶ 17 Defendant argues that even if the items recovered from him could be considered "packaged for sale," there is no other evidence, whether among the factors listed in Robinson or not, that supports an inference of an intent to deliver narcotics. The State counters that an intent to deliver can be inferred because defendant was carrying two different types of drugs but no paraphernalia for personal use, he was found in an area of high narcotics activity, and he was carrying a cellular phone. We consider each of the State's contentions in turn.
¶ 18 The State first argues that because defendant had both heroin and cocaine, but no paraphernalia associated with personal use, an inference can be drawn that the drugs were likely not for personal consumption. The State correctly observes that this court has noted that a combination of drugs may be a relevant consideration when determining whether the evidence shows that defendant had the intent to deliver. See People v. Green, 256 Ill. App. 3d 496, 501 (1993) (evidence was sufficient to permit inference of intent to deliver where defendant possessed a total of 44 packets of both cocaine and heroin); but see People v. Delgado, 256 Ill. App. 3d 119, 123 (1993) (finding that possession of combination of heroin and cocaine was not probative of intent to deliver because "[d]rug users commonly mix heroin and cocaine into what is called a 'speedball' ").
¶ 19 While we agree that the variety of drugs is a relevant consideration, the State cites no case where the defendant possessed an amount of drugs consistent with personal use, but the variety of drugs alone served as "additional evidence of intent to deliver to support a conviction."
Robinson, 167 Ill. 2d at 411. In Robinson, for example, our supreme court found that possession of 2.2 grams of PCP and 2.8 grams of cocaine may be consistent with personal use. Robinson, 167 Ill. 2d at 413. Yet the court specifically cited other evidence beyond the amount or combination of drugs in finding that the evidence supported an inference of intent to deliver: "Forty individual parcels, containing two different types of narcotics, and the other circumstantial evidence in this case were sufficient to support the jury's verdict." (Emphasis added.) Id. at 414 (noting that defendant was in an apartment that was the subject of anonymous tips of drug sales, and police observed a dozen people come and go from the apartment in a 20-minute period late at night). Similarly, in Green, the recovery of two different drugs, along with a scale and police testimony that the drugs were ready for sale, was enough to erode an inference of personal use and support an inference of intent to deliver. Green, 256 Ill. App. 3d at 501.
¶ 20 Our supreme court has found that "[a]s the quantity of controlled substance in the defendant's possession decreases, the need for additional circumstantial evidence of intent to deliver to support a conviction increases." Robinson, 167 Ill. 2d at 413. We think it wise to take a similar case-by-case approach as to the combinations of drugs recovered. We thus express no opinion as to whether possession of a large variety of drugs or certain combinations of drugs could be considered inconsistent with personal use and alone support an intent to deliver. Here, however, where the State presented no evidence that possession of 3.1 grams of cocaine and roughly 0.4 grams of heroin was inconsistent with personal use, we must look further to see if the State presented "additional evidence of intent to deliver to support a conviction." Robinson, 167 Ill. 2d at 411.
¶ 21 The State next contends that an inference of an intent to deliver can be drawn from what police did not find: drug paraphernalia consistent with personal use. In People v. White, an officer testified regarding his familiarity with the type of object used to consume crack cocaine, such as "a round cylinder of some type." White, 221 Ill. 2d at 17-18. The officer further testified that the amount of crack cocaine recovered (12 bags totaling 1.8 grams) was inconsistent with personal use, and a second officer noted that the individual rocks were the typical size of those sold on the street for $10 each. Id. at 18. Defendant was found with the drugs and $75 in cash in an area "known as a location where illegal drug activity took place on a continuing basis." Id. at 19. Our supreme court concluded that a rational trier of fact could have found the evidence sufficient to establish intent to deliver. The court stated that although the defendant "was not carrying a pager, weapon, scale, cutting agent, or police scanner, he was also not carrying any paraphernalia associated with personal use of the cocaine." Id. at 20.
¶ 22 Since White, we have noted that it is unclear "whether the court considered the lack of drug-using paraphernalia as evidence of intent to deliver or as simply demonstrating that the lack of drug-trafficking paraphernalia was not especially probative in that case." Sherrod, 394 Ill. App. 3d at 866. This court has sometimes cited lack of evidence of drug paraphernalia associated with personal use as evidence of intent to deliver, though these cases, like White, involve other circumstantial evidence of intent to deliver. See, e.g., Beverly, 278 Ill. App. 3d at 802 (finding intent to deliver proved by evidence indicating possession of cocaine packaged for sale, large amount of cash, and lack of drug paraphernalia for personal use). Moreover, unlike White and other cases cited by the State, the police officers in this case did not testify as "experts as to the packaging, cost, and typical personal usage of controlled substances." Sherrod, 394 Ill. App. 3d at 866 (collecting cases); see also Clinton, 397 Ill. App. 3d at 226 (noting that the officers did not testify regarding typical packaging for sale or whether the amount recovered was inconsistent with personal consumption). We are unconvinced, based on our review of these cases, that defendant's possession of an amount of cocaine and heroin consistent with personal use, combined with the absence of drug paraphernalia commonly used for personal consumption, provides sufficient evidence of an intent to deliver in this case. See Sherrod, 394 Ill. App. 3d at 867-68 (finding evidence insufficient to support inference of intent to deliver, even though defendant did not have paraphernalia associated with ...