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The People of the State of Illinois v. George Fleming

March 29, 2013

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
GEORGE FLEMING,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 10 CR 14972 Honorable Thomas Joseph Henelly, Judge Presiding.

The opinion of the court was delivered by: Justice Gordon

JUSTICE GORDON delivered the judgment of the court, with opinion.

Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.

OPINION

¶ 1 Defendant George Fleming was indicted on three counts of possession of cannabis with intent to deliver. Count 1 was for the possession of more than 5,000 grams, contained in a FedEx parcel received by defendant; count 2 was for more than 2,000 grams but not more than 5,000 grams, contained in a different box and located in a basement to which defendant had access; and count 3 was for more than 30 grams but not more than 500 grams, found in a bedroom at defendant's residence. After a bench trial, defendant was convicted of counts 1 and 3, which were for the cannabis found in the FedEx box and in the bedroom, but he was acquitted of count 2, which was for the cannabis found in the basement. The trial court sentenced defendant to serve the minimum sentence for count 1, which was six years in the Illinois Department of Corrections. The court also imposed a concurrent two-year sentence for count 3.

¶ 2 On this appeal, defendant does not contest his conviction on count 3, which was for the cannabis found in the bedroom. He challenges only his conviction on count 1, which was for the cannabis contained in a FedEx delivery. With respect to count 1, defendant raises only one claim on appeal. He argues that the State failed to prove beyond a reasonable doubt that he knew that the FedEx parcel delivered to him contained cannabis (1) where he never opened the parcel, (2) where his name was not written on the parcel as the recipient, and (3) where, allegedly, no corroborating evidence was found in the basement. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 I. State's Case in Chief

¶ 5 A. Officer Terry: the Delivery Person

¶ 6 Defendant's bench trial began on July 26, 2011, and the State's first witness was Officer Sterling Terry, who testified that he had been an officer with the Chicago police department for 25 years. For the last three years, he had been assigned to the package interdiction team, which concerns packages sent by mail carriers. During his three years with the unit, he had been involved with hundreds of investigations of parcels, including hundreds of times when he had posed as the delivery person. Terry had been with the narcotics division since 1998 and had been involved with thousands of narcotics investigations, including thousands of cannabis investigations. Based on his experience, Terry was familiar with the look, smell and packaging of cannabis.

¶ 7 Terry testified that, on July 26, 2010, he was assigned to the postal team, and he was working with Sergeant Williams, Officer O'Shea, Officer Hildebrant, Officer Show and Officer Lymperis. It came to their attention that a suspicious FedEx parcel had arrived at a FedEx facility. The parcel had a unique tracking number of 798881365396 and, when it was opened, it was found to contain five plastic heat-sealed packages containing suspected cannabis.

¶ 8 Terry testified that a delivery search warrant was obtained for the package and that the package was resealed with a monitoring device inside of it. He testified that, from the device, the officers would know whether the package was moving, was sitting still or was opened. The device was tracked through radios inside the officers' vehicles. To the best of Terry's knowledge, the device was functioning properly when placed inside the FedEx package.

¶ 9 Terry testified that this particular package did not require a signature upon delivery. Terry's role in the investigation was to pose as a FedEx deliveryman, dressed in a FedEx uniform and drive a van with a FedEx placard on the side. The package was addressed to 6201 South Keating Avenue, Chicago, Illinois. The plan was that he was to wait until other members of the team were positioned so that they could conduct surveillance, and then he would drive up and attempt to make the delivery. At 2:35 p.m. on July 26, his team set up surveillance and then he drove up in the van. After he parked at the southwest corner of 62nd Street and Keating Avenue, he exited the vehicle and began to approach the building located at 6201 Keating Avenue.

¶ 10 Terry testified that, as he approached, he observed a man standing outside the building, whom Terry identified in court as defendant. As Terry approached the residence, defendant approached Terry and asked: "Is that a box for Curry?" Terry replied, "Ashley Curry," and defendant stated: "I'll take that." Terry then handed defendant the box and turned to walk away, and defendant turned to go back toward the residence. As Terry was approaching his vehicle, he turned and observed defendant enter the residence at 6201 South Keating Avenue. Then Terry left the area.

¶ 11 Terry then identified People's Exhibit 1 as a copy of the label that was attached to the box. The label was addressed to: "Ashley Curry, 6201 South Keating, Chicago 60629." The return address was: "208 Crossing Boulevard" in Framingham, Massachusetts. The parcel type was listed as: "Priority overnighter." The label did not state that a signature was required.

¶ 12 Terry then identified People's Exhibit 2 which was the box that Terry delivered. Terry testified that the box was in a different condition than when he delivered it, in that: someone had written "Bathroom" on the side of it; it was broken down; and the mailing label had been removed. Terry was able to identify the box by a yellow sticker with a number that was present on the box when he delivered it.

¶ 13 On cross-examination, Terry testified that the label did not state specifically that no signature was required. When Terry arrived, defendant was already standing on the sidewalk. Terry denied that defendant said that he was not Mr. Curry; that Terry asked defendant to sign for the package; and that defendant refused to sign for it because he was not Mr. Curry. Terry also denied asking defendant to take the box because Mr. Curry lived on the second floor.

¶ 14 B. Officer Hildebrant: the Primary Surveillance Officer

¶ 15 The State's next witness, Officer Judy Hildebrant, testified that she had been a Chicago police officer for 21 years and that, for the last almost 12 years, she had been a narcotics agent on the package interdiction team. She had been involved in thousands of undercover postal deliveries and recovered cannabis hundreds of times. Based on her experience, she was familiar with the odor and appearance of cannabis. On July 26, 2010, in the early morning hours, she intercepted a package at a FedEx facility, sent by "a third-party shipper" from FedEx's Bedford facility. She explained that a third-party shipper was a shipper that would receive packages on behalf of Fed Ex, such as a Kinko's. The package was addressed to Ashley Curry at 6201 South Keating Avenue, in Chicago, and the return address was located in Massachusetts.

¶ 16 Hildebrant asked FedEx personnel to run a check on the package's tracking number and they informed her that the parcel was actually sent from California. The transcript in the appellate record states that Hildebrant testified that "California is a sore state for the shipment of narcotics." The transcript states "sore" rather than "source," but we regard this as a minor discrepancy.

¶ 17 Hildebrant also testified that FedEx personnel informed her that the package did not need to be signed for on delivery. She testified that the package bore the same tracking number already testified to by Terry. The package was transported to "Homan Square where a positive canine alert was obtained." Then a search warrant was obtained, and the package was opened to reveal five heat-sealed bundles each containing a substance which field-tested positive for cannabis. Her team then obtained a delivery search warrant and a court order for an electronic monitoring device. At 2:35 p.m., she traveled with her team to the vicinity of 6201 South Keating Avenue, where she acted as a surveillance officer.

¶ 18 Hildebrant testified that she positioned herself so that she could observe the side of the residence, where the main entrance was, and she was approximately 75 to 100 feet from it. She then observed Terry pull up in the van and exit, and retrieve the parcel from the back of the van. Terry started to approach the residence when he was approached by a black man, whom Hildebrant identified in court as defendant. There was a short conversation, and then defendant took the box from Terry and entered the residence.

¶ 19 Hildebrant testified that she was monitoring the signal emitted from the box and that it indicated movement "for a good 10 to 15 minutes." During this time, she did not observe anyone enter or exit the residence. After 15 minutes, the signal "went into a rest mode with a slow, steady beep" which means that "the box is lying flat and still." From that point on, and during the rest of the surveillance, the monitor indicated that the box remained stationery. At 3:40 p.m., Hildebrant observed defendant exit the residence with a black woman and a black man. The woman and defendant entered "a black Blazer," while the unknown man entered another "SUV." Both vehicles then pulled away from the residence.

¶ 20 Hildebrant testified that, at 5 p.m., defendant and the woman returned to the residence in the black Blazer with four children, and they all entered the residence. At 6:15 p.m., defendant and the woman and the four children left the residence, this time entering a white van, and then they left the area. At 9 p.m., the white van returned, and the four children exited the van and entered the residence. Defendant remained in the van for a while; then he exited and walked up and down the sidewalk while talking on a cellular telephone. He did not re-enter the residence. At 9:30 p.m., the four children exited the residence and entered the van with defendant and the woman, and left the area.

¶ 21 Hildebrant testified that, during her surveillance, she was in a position to observe both the main door to the residence and the alley behind the residence and, except for the testimony that she already provided, no other individuals entered or exited the residence.

¶ 22 Hildebrant testified that, at 9:30 p.m., her supervisor decided to execute the search warrant and obtain the parcel. Officers stopped the van and brought defendant back to the residence. Then the team executed the warrant, gaining entry using defendant's keys. At 9:45 p.m., Hildebrant had a conversation with defendant while in the front room of the residence; Sergeant Williams was also present.

ΒΆ 23 Hildebrant testified that she asked defendant for the location of the parcel, and he replied that "he didn't know what box." Hildebrant then explained that she had observed defendant receive a FedEx box. Defendant replied that "he didn't sign for that box, ask the driver, he just took it." Hildebrant then asked: "Okay. Since you just took it, where is the box, where is the parcel at?" ...


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