from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, Appeal No. 3-16-0268 Circuit No. 11-CF-1994
Honorable Amy M. Bertani-Tomczak, Judge, Presiding.
E. Chadd, Peter A. Carusona, and Matthew Lemke, of State
Appellate Defender's Office, of Ottawa, for appellant.
W. Glasgow, State's Attorney, of Joliet (Patrick Delfino,
David J. Robinson, and Richard T. Leonard, of State's
Attorneys Appellate Prosecutor's Office, of counsel), for
JUSTICE LYTTON delivered the judgment of the court, with
opinion. Justice Wright concurred with the judgment and
opinion. Justice Wright also specially concurred, with
opinion. Justice Holdridge dissented, with opinion.
1 Defendant, David E. Jones, appeals from his conviction for
unlawful delivery of a controlled substance within 1000 feet
of a church. Defendant raises three issues on appeal: (1)
plain error occurred when the court (a) employed the video
viewing procedure that intruded upon the secrecy of jury
deliberations, (b) failed to ask the potential jurors if they
accepted the four principles stated in Illinois Supreme Court
Rule 431(b) (eff. July 1, 2012), (c) issued an insufficient
modified pattern jury instruction on the evaluation of
witness identification testimony, and (d) permitted the State
to elicit testimony that suggested defendant was involved in
other crimes after it prohibited the State from introducing
other-crimes evidence; (2) if this court does not find that
any of the errors are plain errors, then the cumulative
effect of the errors deprived defendant of his right to a
fair trial; and (3) remand for resentencing is required
because a statutory amendment renders the charge enhancement
inapplicable. We affirm.
2 I. BACKGROUND
3 The State charged defendant with two counts of unlawful
delivery of a controlled substance within 1000 feet of a
church (720 ILCS 570/407(b)(1) (West 2010)). Both charges
were Class X felonies. Before jury selection, the State
dismissed the first count.
4 During jury selection, the court asked the prospective
jurors whether they understood and accepted that a person
accused of a crime is presumed innocent of the charge against
them. The court then asked the prospective jurors if they
understood that the State must prove defendant's guilt
beyond a reasonable doubt, defendant is not required to offer
any evidence on his behalf, and if defendant does not
testify, it cannot be held against him.
5 After the parties selected a jury, defense counsel made an
oral motion to preclude Romeoville police officer Mimi Bejda
from testifying to any evidence that suggested defendant had
been involved in other crimes. The court granted defense
counsel's motion stating:
"So you're clear on-that she's going to identify
him, if she can, based on what she saw in the car on April 1
st. And even if she says the voice in the car is the same one
I talked to on the phone, I don't know, but nothing about
any prior phone calls or prior face to face meetings because
of the nolle and because of the motion in
6 At trial, Bejda's testimony described the details of a
controlled narcotics buy that occurred on April 1, 2011.
During her testimony, the State asked:
"Q. And at approximately 1:30 [on April 1, 2011, ] did
you make any telephone calls?
A. I did.
Q. And did you speak to somebody-did you speak to somebody at
approximately 1:30 on the telephone?
A. Yes. I phone called somebody named David Jones, we knew
him as Smiley, and I arranged to purchase a ball or an eighth
of an ounce of crack cocaine from him for $150.
* * *
Q. So you made the call. When did you arrange to meet the
A. I said I'd be in the area of the Certified Foods on
Jackson in approximately an hour."
7 At 3:05 p.m., Bejda arrived at the prearranged location.
Bejda called the number that she had used to arrange the buy
and spoke with the same person who she had arranged the
transaction. One to two minutes later, a man wearing a
dark-colored jacket and a baseball hat exited a dark-colored
vehicle and entered Bejda's vehicle. The man sat in the
passenger seat, approximately one foot away from Bejda. Bejda
recognized the man by the sound of his voice as the
individual that she had spoken with on the telephone. The man
gave Bejda a small bag of an off-white rocky substance in
exchange for $150. Bejda asked the man if he could "take
care of [her] next week?" The man replied
"yes" and exited the vehicle. A field test
indicated that the substance contained cocaine. Bejda
identified defendant as the man whom she had previously spoke
to on the telephone and purchased the narcotics from.
8 After the exchange, Bejda and Detective Mark Lauer measured
the distance from the spot where the transaction took place
to the neighboring Our Lady of Mount Carmel Catholic Church.
The two locations were separated by 599 feet.
9 Bejda also stated that Illinois State Trooper Jason Holt
video recorded the transaction. The court admitted the
recording into evidence and played it for the jury.
10 The video is approximately two minutes in length and shows
a black male wearing a black coat and baseball hat enter
Bejda's vehicle. The audio captures Bejda's voice
confirming the price of the narcotics and then asking if the
man can supply Bejda with additional drugs the following
week. The man's response is inaudible. The man then exits
Bejda's vehicle and gets into a blue Hyundai and drives
out of the parking lot.
11 Holt testified that he participated in the April 1, 2011,
undercover narcotics operation. Holt said that Bejda had
arranged to purchase crack cocaine from defendant whose
nickname was "Smiley." Holt went to the Certified
Foods parking lot before Bejda to conduct surveillance. Holt
saw Bejda drive into the parking lot. Then a man wearing a
coat and a baseball hat entered the passenger side of
Bejda's vehicle. After the man exited Bejda's
vehicle, he got into a nearby blue Hyundai and drove away.
12 Lauer testified that on April 1, 2011, he assisted with
the undercover narcotics purchase. Lauer followed Bejda to
the Certified Foods parking lot and then parked across the
street near a church. When Bejda exited the parking lot,
Lauer followed her to a predetermined location where Bejda
weighed and tested the suspected narcotics. Lauer returned to
the Certified Foods parking lot several months after the
narcotics buy to measure the distance from the location of
the buy to the church where Lauer had parked. The church was
599 feet from the location of the sale. Lauer testified that
the church was "active" on the date of the sale.
13 Plainfield police officer Matt Lehmann testified that he
assisted with the April 1, 2011, narcotics buy. Lehmann
provided security for Bejda while Bejda conducted the
transaction. Around 3:07 p.m., Lehmann saw a man get into
Bejda's parked vehicle. The man stayed in Bejda's
vehicle for approximately one to two minutes. The man then
exited Bejda's vehicle, got into a blue Hyundai, and
14 Forensic scientist Aurelia Rizo testified that she tested
the substance that Bejda had purchased. The substance weighed
1.7 grams and contained cocaine.
15 Before deliberations, the court instructed the jury:
"When you weigh the identification testimony of a
witness, you should consider all of the facts and
circumstances in evidence, including, but not ...