People v. Smith

                                                  SECOND DIVISION
                                                  JUNE 3, 1997




No. 1-96-1317

THE PEOPLE OF THE STATE OF ILLINOIS,    )   Appeal from the
                                        )   Circuit Court of
     Plaintiff-Appellee,                )   Cook County.         
                                        )
          v.                            )   No. 95 CR 2277       
                                             )
STANLEY SMITH,                          )   Honorable  
                                        )   Lon W. Shultz,
     Defendant-Appellant.               )   Judge Presiding.     

     PRESIDING JUSTICE DiVITO delivered the opinion of the court:

     Following a bench trial, defendant Stanley Smith was found
guilty of possession of a controlled substance with intent to
deliver and was sentenced to six years' imprisonment.  In this
appeal, defendant contends that he was not proved guilty beyond a
reasonable doubt.  For the reasons that follow, we affirm.
     At trial, Chicago police officer Quadir Dawan testified that
at 1:30 p.m. on December 13, 1994, he and his partner, Officer
Weatherspoon, were seated in an unmarked car conducting a
surveillance of possible narcotics transactions at 1534 East 66th
Place.  Approximately 20 feet away, defendant and his codefendant,
Kem Haynes, were standing in a vacant lot.  On two separate
occasions, the officers observed an individual approach defendant,
who walked a short distance and retrieved something from the
ground.  Defendant then returned to where the individual and Haynes
were standing and handed something to Haynes.  Haynes handed the
object to the individual in exchange for cash.
     After the second transaction, Officer Dawan called for
assistance, whereupon two other officers apprehended defendant and
Haynes.  Officers Dawan and Weatherspoon then went to the location
where they had observed defendant retrieve something from the
ground.  They recovered a wine bottle cap that contained seven
clear, knotted plastic bags containing a white, rock-like
substance, which was later determined to be cocaine.  The officers
also recovered $80 from Haynes.  Although Officer Dawan inventoried
the narcotics found inside the bottle cap, he did not inventory the
$80 because of a general order exempting any amount under $135 from
being inventoried.
     During cross-examination, defense counsel asked Officer Dawan
if he recognized a copy of the general order of the Chicago police
department with regard to the inventory of property.  Officer Dawan
stated that he was not familiar with the general order because it
was dated 1981, and the order he was familiar with was dated 1986. 
     The parties stipulated that if called to testify, forensic
chemist Jamie Sea would have stated that the plastic bags contained
1.13 grams of cocaine.
     Following the close of the State's case, the parties
stipulated that the 1981 general order was in effect on December
13, 1994, and admitted the document into evidence.  In closing
argument, defense counsel noted that there was no limit on the
amount of money to be inventoried in the general order.
     The circuit court found defendant guilty of possession with
intent to deliver.  He was sentenced to six years' imprisonment. 
Defendant also pled guilty to violation of probation and was
sentenced to a concurrent five-year prison term.
     Defendant contends in this appeal that he was not proved
guilty beyond a reasonable doubt because the facts were not
sufficient to establish probable cause, much less guilt beyond a
reasonable doubt.   In arguing that, at the time that Officer Dawan
called for a back-up unit to arrest him, the facts were
insufficient to warrant any police action beyond an investigatory
stop, defendant essentially challenges the propriety of his arrest. 
Because he failed to raise this issue in the circuit court, he is
barred from raising it for the first time on appeal.  People v.
Enoch, 122 Ill. 2d 176, 185, 522 N.E.2d 1124 (1988).  Moreover, our
review of the record provides no basis for application of the plain
error doctrine.  People v. Mullen, 141 Ill. 2d 394, 402, 566 N.E.2d 222 (1990).  Accordingly, defendant has waived review of the
sufficiency of the facts supporting his arrest.
     Waiver aside, the capacity to claim fourth amendment
protection depends upon whether the police entered an area in which
the defendant had a reasonable expectation of privacy, typically
his person, home, or belongings.  People v. Janis, 139 Ill. 2d 300,
313, 565 N.E.2d 633 (1990); People v. James, 163 Ill. 2d 302, 311,
645 N.E.2d 195 (1994) .  Under the "open fields doctrine," a person
cannot claim a legitimate expectation of privacy in any unoccupied
or undeveloped area beyond the immediate surroundings of his home. 
People v. Becktel, 137 Ill. App. 3d 810, 813, 485 N.E.2d 474
(1985).  Here, because the cocaine that was the basis for his
conviction was recovered from a vacant lot, defendant cannot invoke
fourth amendment protection.
     Defendant also contends that he was not proved guilty beyond
a reasonable doubt because there was no evidence that he had
knowledge and constructive possession of the cocaine. 
     A conviction will not be disturbed on appeal unless the
evidence is so unreasonable, improbable, or unsatisfactory as to
justify a reasonable doubt of the defendant's guilt.  People v.
Steidl, 142 Ill. 2d 204, 226, 568 N.E.3d 837 (1991).   The standard
of review is whether, when viewing the evidence in the light most
favorable to the prosecution, any rational finder of fact would
have found the essential elements of the offense beyond a
reasonable doubt.  People v. Hendricks, 137 Ill. 2d 31, 63, 560 N.E.2d 611 (1990).
     To support a finding of possession of a controlled substance,
the State must prove that the defendant had knowledge of the
presence of the narcotics and that the narcotics were in his
immediate and exclusive control.  People v. Ray, 232 Ill. App. 3d
459, 462, 597 N.E.2d 756 (1992).  Constructive possession may be
established by proof that the defendant knew the contraband was
present and that it was in his immediate and exclusive control. 
People v. Feazell, 248 Ill. App. 3d 538, 545, 618 N.E.2d 571 
(1993).  Knowledge may be shown by evidence of conduct from which
it may be inferred that the defendant knew the contraband existed
in the place where it was found.  Feazell, 248 Ill. App. 3d at 545. 
The elements of knowledge and possession are questions of fact that
are rarely susceptible to direct proof.  Feazell, 248 Ill. App. 3d
at 545.
     Here, Officer Dawan testified that on two separate occasions
defendant, who was standing in a vacant lot, walked a short
distance, retrieved something from the ground, returned to where an
individual and Haynes were standing, and handed something to
Haynes.  Following defendant's arrest, Officer Dawan recovered a
wine bottle cap and cocaine from the area from which defendant had
twice retrieved something.  Nobody else was seen in that area. 
Viewing those facts in a light most favorable to the prosecution,
we cannot conclude that no rational trier of fact could have found
that defendant had knowledge of and control over the cocaine. 
Accordingly, we reject defendant's contention that he was not
proved guilty beyond a reasonable doubt.
     We note that defendant challenges neither the sufficiency of
the evidence with regard to his intent to deliver nor Officer
Dawan's credibility.  Although it was shown that there was no money
limit in the general order regarding inventory procedures, the
credibility of the witnesses, the weight to be given their
testimony, and the resolution of any conflicts in the evidence are
within the province of the trier of fact.  People v. Slim, 127 Ill. 2d 302, 307, 537 N.E.2d 317 (1989).  Here, the circuit court
expressly found Officer Dawan to be credible.  We find no basis in
the record for reaching a contrary determination. 
     Accordingly, the judgment of the circuit court of Cook County
is affirmed.  Pursuant to People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d 194 (1978), and the relevant statutory provisions, we grant
the State $100 as costs for this appeal. 
     Affirmed.
     RAKOWSKI, J., concurs.  
     McNULTY, J., dissents.JUSTICE McNULTY, dissenting.
     Our supreme court has instructed us:
     "[I]t is always the duty of this court to examine the
     evidence in a criminal case, and if it is so improbable
     or unsatisfactory as to raise a serious doubt of
     defendant's guilt the conviction will be reversed." 
     People v. Coulson, 13 Ill. 2d 290, 296, 149 N.E.2d 96
     (1958).
Because I find Officer Dawan's testimony regarding the exchange of
money so unsatisfactory as to leave a reasonable doubt of
defendant's guilt on the charge of possession with intent to
deliver, I would reverse that conviction.  Therefore, I dissent.
     Contrary to the assertion in the majority's footnote, Dawan
admitted that he never saw anything in the hands of defendant,
Haynes, or the men who approached them.  To support his conclusion
that he witnessed a transaction or sale, he testified that he saw
each man who approached Haynes give him money.  Since Dawan
arrested defendant and Haynes on the spot, any money they received
they still had at the time of their arrest.  The prosecutor
stipulated that police inventory regulations required inventory of
any such cash, regardless of amount.  "[W]here public officials are
required to keep a record of their proceedings, such record
constitutes the only lawful evidence of action taken, and cannot be
contradicted, added to or supplemented by parol."  People ex rel.
Prindable v. New York Central R.R. Co., 400 Ill. 507, 511, 81 N.E.2d 201 (1948).  Dawan admitted that the inventory sheet made no
mention of cash found on either Haynes or defendant.
     To rebut the inference that defendant and Haynes had no cash,
Dawan testified that he found cash on Haynes and counted it, but he
did not inventory the $80 because department regulations did not
require inventorying amounts less than $135 in cash.  The
prosecutor stipulated that the testimony was false in that
department regulations made no exception for lesser amounts of
cash.  Both the trial court and the majority here dismiss as
insignificant the stipulation that Dawan testified falsely
concerning police inventory regulations.
     Our supreme court has explained the purpose of police
inventories:
     "A range of governmental interests supports an inventory
     process. It is not unheard of for persons employed in
     police activities to steal property taken from arrested
     persons; similarly, arrested persons have been known to
     make false claims regarding what was taken from their
     possession at the station house. A standardized procedure
     for making a list or inventory as soon as reasonable
     after reaching the station house, not only deters false
     claims but also inhibits theft or careless handling of
     articles taken from the arrested person."  People v.
     Dillon, 102 Ill. 2d 522, 527, 468 N.E.2d 964, quoting
     Illinois v. Lafayette, 462 U.S. 640, 646, 77 L. Ed. 2d 65, 71, 103 S. Ct. 2605, 2609 (1983).
     Accordingly, the inventory procedures, as Dawan described
them, would remove inhibition of police "theft or careless
handling" of money taken from arrested persons, as long as the
amount taken did not exceed $135.  Police department regulations
make no such exception, and they prohibit all theft from arrested
persons.  Dawan's false testimony besmirches the reputation of the
police department by implying that its actual procedures permit
theft from arrested persons as long as the amount taken is less
than $135.  His testimony on this issue is so unsatisfactory that
it casts doubt on his entirely uncorroborated testimony that he
witnessed money change hands in an apparent drug transaction.  If
defendant and Haynes had no money, the court has no reason to
believe that they made any sale or engaged in any transaction with
the two men who walked up to them.  The small amount of narcotics
found here lends no support to any inference of intent to deliver. 
See People v. McLemore, 203 Ill. App. 3d 1052, 1056, 561 N.E.2d 465
(1990).
     This court must defer to the trial court's determination of
the credibility of witnesses, but "[d]ue deference to the trial
judge's appraisal of the witnesses' credibility does not excuse
this court from its duty to examine the evidence to determine
whether guilt has been established beyond a reasonable doubt." 
People v. Butler, 28 Ill. 2d 88, 91, 190 N.E.2d 800 (1963).  "[A]
court of review must reverse a criminal conviction where the
evidence and/or the credibility of the witnesses are so improbable
or so unsatisfactory as to raise a reasonable doubt of guilt." 
People v. Bailey, 265 Ill. App. 3d 262, 271, 638 N.E.2d 192 (1994). 
Dawan's admittedly false testimony concerning his reason for not
properly recording his discovery of money renders his testimony
that he saw money so unsatisfactory as to leave a reasonable doubt
that defendant or Haynes ever received cash in exchange for packets
of narcotics.  Therefore, I would reverse the conviction for
possession of narcotics with intent to deliver.