Appeal from the Circuit Court of Kane County. No. 09-CF-75 Honorable James C. Hallock, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, James E. Dumas, appearing pro se, appeals the trial court's order denying his petition for a certificate of innocence under section 2-702 of the Code of Civil Procedure (735 ILCS 5/2-702 (West 2010)). We affirm.
¶ 3 On March 11, 2009, defendant was indicted on charges of unlawful possession of a controlled substance (720 ILCS 570/402(a)(2)(D) (West 2008)) and unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(D) (West 2008)). On October 9, 2009, a bench trial commenced.
¶ 4 Detective Mario Elias testified that he was an Elgin police officer and worked undercover in drug enforcement. On September 19, 2008, he met defendant at an IHOP restaurant in Elgin to discuss future narcotics transactions. Defendant told Elias that he was looking for a consistent supplier of cocaine if the price was right. In response, Elias stated that he could supply a kilogram of cocaine for $26,000. Defendant indicated that he intended to resell the same kilogram for $28,000. Elias told defendant that he was expecting a shipment to arrive any day and that he would call defendant when it came in.
¶ 5 On September 22, 2008, Elias called defendant, and they made arrangements to meet the next day to discuss the cocaine purchase. On September 23, 2008, Elias met defendant in the parking lot of the same IHOP restaurant. The meeting did not last long. Defendant told Elias that he was waiting on friends to arrive from Detroit who were going to purchase the cocaine from him. Defendant wanted a sample of the cocaine, to see the quality. Elias refused to break down the cocaine for sampling but assured defendant that it was of good quality. Elias offered to stay with defendant and his friends, at the time of the sale, until they determined whether they were satisfied with the quality of the cocaine. Although defendant continued to ask for a sample, he eventually agreed to try to work it out with his friends.
¶ 6 Numerous phone calls then took place to arrange the sale, and defendant continued to request a sample. The sale was arranged to take place on September 24, 2008. The plan was for defendant to show the money and Elias to show the cocaine, and then to do an exchange.
¶ 7 On September 24, 2008, defendant and Elias met in the parking lot of a supermarket. Elias arrived first, exited his car, and opened the hood to make it look like he was doing something. When defendant arrived, he exited his car and approached Elias. Elias asked defendant if he was ready to go. Defendant insisted on seeing the cocaine, and they both entered Elias's vehicle, where they went back and forth over the sampling issue. A transcript of the conversation in the car indicated that defendant did not wish to actually try the cocaine but that he wanted to see it in order to verify the amount. Elias exited the vehicle to retrieve from his trunk a black bag containing the cocaine. He then reentered his car and handed defendant the bag. Defendant opened the bag, took out the kilogram of cocaine, and looked at it. He then put it back in the bag and handed the bag to Elias. Elias testified that defendant was not, at any point, free to leave with the cocaine and that he had no intention of letting defendant have the cocaine without seeing the money first.
¶ 8 Defendant exited the vehicle to make a phone call to his friends. After the phone call, defendant told Elias that he was nervous about doing the transaction in the parking lot and that he wanted to go somewhere else. Elias put the cocaine back in the trunk and asked to see the money. Defendant said that the money was at a house on the east side of Elgin and that he wanted to go there to complete the transaction, because his friends also had to at least see the cocaine before buying. Elias told defendant that he would follow him, and they both entered their cars. Elias followed defendant for about two blocks but did not follow him any further. Elias met up with surveillance units a short time later at the Elgin police department and gave the cocaine to Officer Chris Jensen. Elias testified that he would never allow a suspect to change the location of a drug transaction, because it would be too hard to control the situation and there was a risk of being robbed or killed.
¶ 9 Jensen testified that he was in the parking lot on September 24, 2008, when Elias met defendant. Jensen could not see defendant and Elias when they were inside Elias's vehicle. He followed defendant for a short time after they left the lot, but ultimately he stopped because defendant would have noticed him. The plan had been to arrest defendant when he produced the money. Jensen acknowledged that defendant was not arrested until January 2009. This was because the police wanted to confer with the Kane County State's Attorney. The police also wanted to see if a subsequent transaction would materialize, but it did not. Jensen opined that they "absolutely" could have arrested defendant at the scene.
¶ 10 On October 23, 2009, the trial court found defendant guilty of both counts. The trial court ruled that, when defendant had the cocaine in his hands inside Elias's vehicle, defendant had exclusive contact and control over the substance and could have left the car with it. The court merged the convictions and sentenced defendant to 15 years' incarceration, along with imposing a street-value fine and a statutory drug assessment.
¶ 11 Defendant appealed and we reversed, holding that the State had not proved beyond a reasonable doubt that defendant possessed the cocaine. People v. Dumas, 2011 IL App (2d) 100006-U, ¶ 29. We noted that the mere fact that defendant could have exited the car with the cocaine did not establish possession, ...