Court of Appeals of Illinois, First District, Fourth Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 11 CR 17677. Honorable Thomas J. Hennelly, Judge Presiding.
Michael J. Pelletier, Alan D. Goldberg, Chan Woo Yoon, State Appellate Defender's Office, of Chicago, for Appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Tasha-Marie Kelly, Phyllis Warren, Assistant State's Attorneys, of counsel), for the People.
JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
[¶1] A jury convicted defendant Curtis Deramus of delivery of a controlled substance after the State presented evidence that he sold heroin to an undercover police officer. Defendant appeals his conviction, asserting: (1) that the trial court erred in instructing the jury to consider a prior inconsistent statement made by a police officer only as impeachment evidence because the statement was substantively admissible; and (2) that the prosecutor made improper and prejudicial statements in his opening statement and closing argument. We conclude that, although the officer's prior inconsistent statement was substantively admissible, the exclusion of such evidence was harmless. We also conclude that the prosecutor's comments were either not improper or did not prejudice defendant. We affirm defendant's conviction.
[¶2] I. BACKGROUND
[¶3] Officer Edward Daniels of the Chicago police department testified that, around 9:40 a.m. on September 22, 2011, he and a group of officers went to the intersection of 62nd Street and Martin Luther King Drive in order to " gather information on the violence that had been taken [ sic ] place in that neighborhood." Daniels explained that he and the other officers sought to perform a " buy-bust," in which the officers would conduct an undercover purchase of narcotics, arrest the dealer, and then question the dealer about violence in the neighborhood. Daniels served as the surveillance officer for the " buy-bust," while Officer Ervin Ternoir conducted the undercover purchase and Officer Myron Kuykendall acted as the arresting officer.
[¶4] Daniels parked his vehicle near 62nd Street and Martin Luther King Drive and saw defendant standing 40 to 50 feet away. Daniels testified that he saw an unknown person approach defendant and speak to him. Daniels could not hear what the person said to defendant. Defendant then walked to a wrought iron fence, bent down, removed items from a bag, put the bag back on the ground, and gave the items to the person. The unknown person gave defendant money and left. Daniels testified that, soon after this transaction, he saw defendant engage in two similar transactions. Daniels then radioed Ternoir and described defendant's location and clothing. Daniels testified that defendant was wearing dark blue jeans, a gray jacket, and a baseball cap.
[¶5] Officer Ternoir, dressed in plain clothes, drove south on Martin Luther King Drive, when he saw defendant walking north. Ternoir honked his car horn and held up two fingers to defendant. Ternoir testified that defendant directed him to turn onto 62nd Street and park. After Ternoir parked, defendant crossed the street and retrieved something from the ground near a wrought iron fence. Defendant approached Ternoir's car and handed him two plastic bags that contained white powder and bore blue dolphin logos. Ternoir gave defendant a prerecorded $20 bill and left.
[¶6] On cross-examination, Ternoir testified that defendant was wearing a gray cap, a gray jacket, and blue jeans during the transaction. Defense counsel impeached
Ternoir regarding the color of the suspect's pants with his report of the incident:
" Q. [Defense counsel:] Officer, isn't it true that the description you wrote in your report for the person that was walking down the street was gray cap, gray jacket and black jeans?
A. [Officer Ternoir:] Yes.
Q. But you just stated that the person was [sic] gray cap, gray jacket wearing blue jeans. Isn't that true, Officer?
A. That's my mistake then. If that's in my report, it is black jeans."
After defense counsel elicited this testimony, the trial court sua sponte told the jury to consider the statement in Ternoir's report only as impeachment evidence:
" Ladies and gentlemen, the police report that counsel used was used for a very limited purpose. It was used for purposes of impeachment. Police reports are hearsay documents. They are not evidence. They are never admitted into evidence.
At the conclusion of the trial you will not be receiving that police report back during your deliberations, so please don't send me a note saying where is Officer Ternoir's report because you will not be getting it."
Defense counsel did not seek to introduce Ternoir's report as substantive evidence or object to the trial court's instruction.
[¶7] Daniels continued to observe defendant after Ternoir had left. Daniels testified that he saw defendant engage in four more transactions with unknown individuals that were similar to the transactions he had witnessed before. After the fourth transaction, Daniels radioed Officer Kuykendall.
[¶8] Kuykendall testified that he detained defendant near 6245 South Martin Luther King Drive. Kuykendall testified that defendant was not doing anything illegal and did not try to run when he detained him. Kuykendall patted defendant down and recovered $102, including the prerecorded $20 bill that Ternoir had used in his undercover transaction. He did not recover any narcotics from defendant. After arresting defendant, Kuykendall went to the wrought iron fence and found a bag containing 11 bags of white powder with blue dolphin logos on them. Kuykendall testified that defendant was questioned about violent crimes in the area but that defendant had no information.
[¶9] Illinois State Police forensic scientist Paul Titus, who was retired at the time of trial, testified that he analyzed 1 of the 2 bags given to Ternoir and 6 of the 11 bags recovered from the fence. They tested positive for the presence of heroin.
[¶10] Defendant called Monique Serino-White, an investigator employed by defense counsel, to testify that the distance between 401 East 62nd Street, the location of the undercover purchase, and 6245 South Martin Luther King Drive, the location of defendant's arrest, was 430 feet. She measured this distance using a calibrated digital measuring wheel.
[¶11] Michael Holmes, assistant executive director of the Cook County department of corrections, testified regarding the procedures employed for processing an individual's personal property when he or she is arrested. Holmes stated that, when a person is brought into Cook County jail, his or her clothing is taken and officers enter the type of clothing into the jail's computer system. A report recording defendant's clothing at the time of his arrest stated that defendant wore gray pants, a gray jacket, and a white shirt. A hat was not entered into the system. Holmes testified that he had never seen an entry in the system for a hat.
[¶12] Defendant testified that, on the morning of September 22, 2011, he was wearing a gray jacket, a white shirt, and gray pants. He walked his stepson and nephew to the bus stop at 62nd Street and Martin Luther King Drive, then went to the store to buy cigarettes. Upon exiting the store, he noticed a group of people playing dice and gambling. Defendant joined the game and played for 30 to 60 minutes, when someone said the police were coming.
[¶13] Defendant grabbed money from the ground and walked south. He did not know how much money he had taken. As he crossed 63rd Street, a police car stopped and an officer emerged with his gun drawn. The officer patted defendant down and found the money he had grabbed at the dice game. The officer placed defendant in the back of his car. Defendant denied selling narcotics to Officer Ternoir and denied being in possession of narcotics on September 22, 2011. Defendant did not recognize the bags with blue dolphin logos on them.
[¶14] During a jury instructions conference, the State and defense indicated that the court did not need to instruct the jury regarding any prior inconsistent statements. The court disagreed, stating, " I think that the Officer was impeached with his report," and, " There was a mistake, so I think it's an appropriate instruction." Following closing arguments, the trial court read the following instruction to the jury regarding prior inconsistent statements:
" The believability of a witness may be challenged by evidence that on some former occasion, he made a statement that was not consistent with his testimony in this case. Evidence of this kind ordinarily may be considered by you only for the limited purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom."
Defense counsel did not object to this instruction.
[¶15] During deliberations, the jury sent out three notes. One asked the court to define the term " possession." The second note indicated that the jury could not reach a consensus. The third note came from an individual juror asking to be excused because of the other jurors' " preconceived ideas." After further deliberations, the jury convicted defendant of the delivery of controlled substance charge that related to the undercover sale to Officer Ternoir, but acquitted him of the possession of a ...