Appeal from Circuit Court of McLean County. No. 12CF704. Honorable Scott Drazewski, Judge Presiding.
In the prosecution and sentencing of defendant for unlawful delivery of a controlled substance, the jury's finding that defendant was guilty on two counts and the sentence imposed were affirmed, where defendant forfeited his objection to the video of his interrogation by failing to make an objection at trial and in a posttrial motion and defendant failed to meet his burden of proving that plain error occurred with respect to the video, and with regard to defendant's sentence, the record showed that the trial judge was not applying a personal policy against defendants with criminal histories.
Michael J. Pelletier, of State of Illinois Defender's office, of Springfield, and Thomas A. Lilien and Christopher McCoy (argued), both of State Appellate Defender's Office, of Elgin, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Luke McNeill (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Appleton concurred in the judgment and opinion.
[¶1] After a January 2013 trial, the jury found defendant, Gregory Scott, guilty on two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). In March 2013, the trial court sentenced defendant to two concurrent 13-year terms in the Illinois Department of Corrections (DOC). Defendant appeals, asserting (1) he is entitled to a new trial because the jury heard improper, irrelevant, and unduly prejudicial evidence; or (2) his case should be remanded for resentencing because his sentence was based on improper sentencing factors. We affirm.
[¶2] I. BACKGROUND
[¶3] On July 30, 2012, defendant was arrested and charged by information with two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)). Both counts alleged defendant knowingly and unlawfully delivered less than one gram of cocaine, a controlled substance, to a confidential source (later identified as Sergio Gloria).
[¶4] A. The Trial
[¶5] On January 7, 2013, defendant's jury trial commenced. Sergio Gloria, the confidential informant who purchased the cocaine, testified first for the State. Gloria testified he worked as a confidential source
for the Bloomington police department. He explained he was a convicted felon who was addicted to crack cocaine, and he was paid by the police to purchase drugs from defendant, whom he knew as " G." Gloria testified he purchased cocaine from defendant on two separate occasions on July 30, 2012. He attested the first buy occurred at the house where defendant lived on Oak Street, and the second buy occurred at the plasma center nearby. Gloria stated, prior to each buy, both he and his van were thoroughly searched by Bloomington police Detective Stephen Brown. Gloria explained Brown had provided him with marked bills to pay for the cocaine, and after each buy, he turned the bags he purchased over to Brown. Gloria testified defendant gave him his phone number at the time of the first buy and he called the number to set up the second buy while he and Brown were sitting in his van.
[¶6] On cross-examination, defendant, who was proceeding pro se, asked Gloria why he had originally identified the man he purchased drugs from as a " young black male." Gloria responded, " You look young to me. You know why? Because my eyeglasses weren't on that particular day. I do wear glasses." Defendant then asked Gloria if the police's video surveillance showed him wearing glasses, to which Gloria responded, " Possibly."
[¶7] Detective Brown testified next for the State. Prior to his testimony, the State indicated it planned to show the jury a videotape of an interview Brown conducted with defendant. Outside the presence of the jury, the trial court asked defendant:
" THE COURT: *** [A]ssuming that [Brown] testifies on the date and time and location when the video was recorded of his interview with you, is there any objection on your part to the introduction by the State first of the actual [digital video disc (DVD)] and having that displayed to the jury?
THE COURT: Okay. And what's the basis of your objection assuming that a foundation is laid[?]
[DEFENDANT]: I wanted to go through the interview with him first before you show the DVD to build a foundation. The tape was edited."
The court responded it would allow the video to be played to the jury over defendant's objection if Brown laid a proper foundation.
[¶8] Brown first testified he had conducted a search of Gloria's person and vehicle before and after each of the controlled buys. He then explained he had photocopied the money he provided to Gloria to purchase the drugs. The photocopied money was admitted into evidence. Brown corroborated Gloria's testimony about the phone call setting up the second buy. He stated Gloria called the number and asked if he could " stop back by." Brown said he heard a male voice on the other end, and Gloria received a location for the second buy.
[¶9] Brown next testified to the authenticity of the interrogation video, and it was played to the jury. Each juror was provided with a transcript of the interview, which was not offered into evidence. The video of defendant's interview was 21 minutes and 29 seconds long. During the interview, defendant indicated he worked as a maintenance man at a day care in Chicago for approximately 10 years before coming to Bloomington to look for work. Defendant explained he was staying at the Salvation Army and had been unemployed for approximately two years. Brown asked defendant about the house he was staying at--the house from the first buy--and Brown responded he did not live there; he was just sitting on the porch and
had only known the woman who lived in the house for about two weeks. Brown then asked defendant:
" [BROWN]: *** [D]o you *** use drugs or anything like that?
[DEFENDANT]: Smoke a little marijuana sometime.
[BROWN]: That's it? You don't use cocaine or nothing like that?
Later in the video, Brown explained to defendant:
" We document our money that we go out and buy drugs with. Right? I take photocopies of the money that I use. That way when people go out and buy drugs[,] like police informants[,] and they bring us the drugs[,] guess who has our money? The drug dealer that brought the drugs to our informant. That's what happened here today. I'm givin you a chance here just to explain your situation if you wanna. Because I don't have to. I don't need a confession. You had my money in your pocket and I watched you sell drugs to my informant from 10 feet away. Alright? And it's not the first time that you've sold drugs to that guy. This is not somethin that just happened today. It just so happened that there's no need for me to keep givin you my money. So I wanted my money back today. That's what happened. This isn't the first time that you've sold ...