Appeal from the Circuit Court of Kane County No. 10-CF-2414 Honorable Patricia P. Golden, Judge, Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.
¶ 1 Defendant, Nicole L. Young, appeals her conviction of unlawful possession of less than 15 grams of cocaine (720 ILCS 570/402(c) (West 2010)). She contends that it was plain error when (1) the court allowed the jury to hear evidence of other crimes involving possession of drugs and then gave a limiting instruction that the evidence could be considered as to her knowledge and "possession, " and (2) the State improperly bolstered the credibility of the testifying police officers during closing arguments. We determine that both were error, but not plain error. Accordingly, we affirm.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged in connection with events that occurred on September 24, 2010, in which she was seen parking her vehicle outside of a house, her passenger entered the house for approximately three minutes, and cocaine was later found in the glove compartment of her vehicle. Before trial, defendant moved in limine to exclude statements she made to police officers about her previous drug use and about drug purchases she had previously made from the resident of the house. The State noted that the matter was one of constructive possession and argued that the evidence could be used to show knowledge. The court held that it would allow the evidence and would give a limiting instruction that it could be considered only on the issues of knowledge and possession. The court specifically asked if defendant wanted an instruction derived from Illinois Pattern Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.14) that informed the jury that the evidence was received on only the issues of defendant's knowledge and possession. Defendant's counsel stated "that's correct." A jury trial was then held.
¶ 4 Elgin police detective James Bisceglie testified about his qualifications and that he had previously participated in about 400 investigations and over 300 or 350 arrests, including work with federal agencies. On September 24, 2010, he and his partner, Beth Sterricker, were in an unmarked surveillance vehicle. Bisceglie saw defendant park in front of a house on Fourth Street and saw a man, later identified as Michael Mallory, in the passenger seat. Mallory got out of the vehicle and entered the house. About three minutes later, Mallory returned to the vehicle. Bisceglie believed that narcotics activity had taken place and he contacted Elgin police officer Bernie Bajak to assist in stopping the vehicle.
¶ 5 Bajak stopped the vehicle when defendant pulled into a gas station. Bajak testified that Mallory was standing outside of the vehicle with the door open and that there were stacks of money on the passenger seat. The glove compartment was open, and Mallory shut it, but he put the money in his pockets. Mallory then struggled with Bajak for a moment, while defendant remained in the driver's seat.
¶ 6 Bisceglie arrived a few minutes later, searched Mallory, and found $300 and marijuana in his pockets. Bisceglie then talked to defendant, who, when asked, said that she did not have anything illegal in the vehicle. Defendant gave permission to search and, in the glove compartment, Bisceglie found a cocaine pipe and six small packets of cocaine, which later were tested and found to weigh 1.3 grams. In the center console, he found a rose tube with a dark smudge on it and a piece of steel wool inside. Bisceglie testified that this would be used for smoking cocaine.
¶ 7 The State called Sterricker to testify about statements defendant made to the police. Before she testified, the State reminded the court that she would provide the statements that were previously objected to. The court then said "[s]o I would read this before, " and defense counsel said "[y]es." The court then told the jury:
"I have an instruction to read before this witness. It is a cautionary instruction. And it is that evidence may be received that the defendant has been involved in conduct other than that charged in the indictment.
This evidence will be received on the issue of the defendant's knowledge and possession and may be considered by you only for those limited purposes. It is for you to determine whether the defendant was involved in that conduct, and if so, what weight should be given to this evidence on the issues of knowledge and possession."
¶ 8 Sterricker testified that, after defendant was arrested and taken to the police station, she told officers that she knew the man who lived in the house where the drugs were purchased. Defendant said that the man's name was Vance and that she had purchased marijuana from him in the past. Defendant said that she had recently moved back to Illinois from Florida, had begun purchasing both marijuana and cocaine from Vance, and had done so within three days of the arrest. She also smoked marijuana and cocaine during that period. Defendant said that she and Mallory went to Vance's house on September 24 to purchase marijuana, but she did not know about the cocaine. The interview was not recorded, and Sterricker did not write a report. Bisceglie wrote a report that purportedly included statements from defendant, but Sterricker stated on cross, without additional explanation, that she did not trust that what he put in his report was accurate.
¶ 9 Defendant testified and denied knowledge of the cocaine. She testified that Mallory was her boyfriend, that he had previously used cocaine and heroin, but that, until the arrest, she thought he was clean. She said that she allowed Mallory to use her vehicle three to four times per week when she was not with him and that he had used it within a week of the arrest. On September 24, 2010, she picked up her salary of $330 in cash, and she and Mallory went to buy $25 worth of marijuana from Vance. She and Mallory did not discuss purchasing cocaine. She did not see Mallory open the glove compartment and to her knowledge there was no cocaine or drug paraphernalia in her vehicle. When she pulled into the gas station, she asked Mallory to fill up the vehicle and gave her money to him. When Bajak pulled up, she saw the glove compartment open and saw Mallory shut it, but she did not see him put anything inside of it. Defendant said that she allowed the officers to search her vehicle because she did not believe that there was any contraband inside of it and she assumed that Mallory put the marijuana in his pocket. However, defendant also said that she told the officers that they would find some marijuana.
¶ 10 Defendant said that she told the police that she tried cocaine when she was 16 and that she recently bought and smoked marijuana. She told the police that she thought Mallory bought the cocaine from Vance because Mallory had recently moved to the area and Vance was the only person he knew. Sterricker was then called as a rebuttal witness and she reaffirmed that defendant said that she had previously bought both marijuana and cocaine from Vance.
¶ 11 During closing arguments, with regard to the evidence of other conduct, the State discussed constructive possession and circumstantial evidence, recited ...