People v. Jones

FIRST DIVISION
MARCH 9, 1998

No. 1-95-2924

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

LARRY JONES,

Defendant-Appellant.)
)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 93 CR 22359

Honorable
Francis X.
Golniewicz,
Judge Presiding.


JUSTICE O'MARA FROSSARD delivered the opinion of the court:
Defendant, Larry Jones, was charged with possession of a
controlled substance (14.02 grams of cocaine) with intent to
deliver. Following a jury trial, defendant was found guilty as
charged and sentenced to 14 years in the Illinois Department of
Corrections. On appeal, defendant raises the following issues for
review: (1) whether the trial court erred in granting the People's
motion in limine to prevent the defendant from inquiring into
Officer Jose DeJesus' pending indictment; (2) whether the trial
court erred in denying defendant's request to issue an instanter
subpoena for Officer DeJesus; (3) whether the trial court erred in
denying defendant's motion for a mistrial; (4) whether defendant
was proved guilty beyond a reasonable doubt; and (5) whether the
trial court abused its discretion in sentencing defendant to 14
years imprisonment. For the reasons that follow, we affirm.
At trial, Chicago police officer Angel Lorenzo testified that
around 1 p.m. on August 5, 1993, as a result of community
complaints about drug dealing in the area of Cortland and Drake
Streets, he and his partner, Officer Jose DeJesus, conducted a
surveillance of possible narcotics transactions at that location.
The officers were in plain clothes. They parked their vehicle a
distance away and returned to the scene on foot. Using binoculars
from a vacant lot approximately 50 feet away, Officer Lorenzo
observed defendant, Lee Baker and a juvenile named Bobby Mackey in
the vicinity of 1910 N. Drake. Officer Lorenzo testified that he
knew defendant by the nickname "Lunchmeat" from previous
encounters.
During the surveillance, Officer Lorenzo observed an
individual he would later discover was named Kenneth Marras, engage
in a brief conversation with defendant Jones then hand defendant an
unknown amount of money. Defendant accepted the money and placed
it in his pocket. Defendant then looked in the direction of Baker
and Mackey, his two assistants, nodded his head and motioned with
his right hand. Officer Lorenzo observed Baker cross the street,
walk to a fence, bend over and pick up a rock the size of a
softball. While Baker was going to the rock, Mackey looked east
and west down the alley. Baker next retrieved a plastic bag from
under the rock. Baker removed an object from the plastic bag and
went back across the street. While Baker was retrieving the object
from under the rock, Marras waited next to the defendant. Baker
handed the object to Marras, who was still standing next to
defendant Jones. Marras then placed the object in the right front
pocket of his pants and walked away.
Officer Lorenzo radioed to the assisting officers the
description of the individual he observed purchasing the object,
the direction the individual was walking, and that the individual
placed the object in his right pants pocket. After Marras left the
scene, Officer Lorenzo observed that Baker, Mackey and defendant
remained in the area.
A minute or less passed when Officer Lorenzo observed another
individual approach defendant. This individual, an Hispanic female,
engaged in a brief conversation with defendant Jones then handed
defendant an unknown amount of currency. Defendant again turned
his head and pointed in the direction of Baker and Mackey. This
time, Mackey crossed the street and went to the fence where the
rock was located. Mackey lifted the rock, removed the plastic bag
from under the rock, removed an object from the plastic bag and
replaced the rock. Mackey then crossed the street and handed the
object to the Hispanic female. The Hispanic female stood near
defendant until she received the object from Mackey.
Officer Margarita Rodriguez testified that she was a few
blocks from Officer Lorenzo when she saw an individual who matched
the description of Marras. Officer Rodriguez followed Marras for
two blocks then ordered him to stop and put his hands in the air.
Marras became irate, began to yell profanities and flung his hands
in the air. Officer Rodriguez then called for backup over the
citywide police radio band. Shortly thereafter, Officer Rodriguez
heard sirens, and Officer Gregg Swiderek arrived to assist her.
Swiderek patted down Marras and recovered .16 grams of crack
cocaine from the right pocket of Marras's pants.
When defendant Jones, Baker and Mackey heard the police
sirens, they walked northbound on Drake. Once they left the area,
Officer Lorenzo went to the location where the suspected narcotics
transactions occurred. Lorenzo looked under the rock and recovered
a plastic bag containing 77 packets of cocaine weighing 14.02
grams.
Officer Lorenzo then went to the area of Drake and Armitage,
where he last saw defendant. Defendant was inside a clothing store
at the time. Lorenzo brought defendant back to the area where the
suspected narcotics transactions had occurred. Officer Lorenzo
searched defendant once he learned that the other officers had
arrested Marras and found a bag of cocaine in the possession of
Marras similar to the bags found under the rock. Officer Lorenzo
recovered $78 United States currency from the defendant's pants
pocket.
Defendant testified that on August 5, 1993, he went to the
area of Cortland and Drake Streets in Chicago, where he saw his
friends Bobby Mackey, Lee Baker and Demetrius Cole. Defendant
stated that he had a brief conversation with Cole, shook Cole's
hand and went to a clothing store at the corner of Armitage and
Drake. Defendant stated that during his conversation with Cole,
Baker was across the street by the rock.
Approximately 15 to 20 minutes later, Mackey, Baker and Cole
entered the store. After Cole left the store, Officer Lorenzo went
in the store, took defendant outside and told him to lie on the
ground. Defendant refused and was handcuffed and arrested.
Defendant also testified that he had never met Officer Lorenzo
before. Defendant stated that his nickname was "Pint" rather than
"Lunchmeat." Defendant also testified that he received the money
that the officers found on him from his fiancée.
Defendant then called Laura Kang, the owner of the clothing
store. Ms. Kang testified that defendant came into the store alone
but that three or four other males came in later. Ms. Kang stated
that defendant had been in her store for 10 to 15 minutes before he
was arrested. Ms. Kang further testified that defendant's nickname
is "Pint."
The jury found defendant guilty of possession of a controlled
substance with the intent to deliver. The trial court then
sentenced defendant to 14 years in the Illinois Department of
Corrections.
Defendant first contends that it was reversible error to grant
the State's motion in limine concerning inquiry into Officer
DeJesus' indictment. Officer DeJesus was indicted on a sexual
molestation charge. Anticipating that the defense would question
DeJesus about the indictment, the State filed a motion in limine
requesting that the court bar any inquiry into the indictment. The
court granted the motion.
Assuming arguendo that defendant had properly preserved the
issue, there was no error. Defendant could not have inquired into
Officer DeJesus' pending indictment even if he had testified since
it was not an actual conviction. A witness may be impeached by
attacking his character, but only convictions may be proved for
this purpose; proof of arrests, indictments, charges or actual
commission of a crime is not admissible. People v. Franklin, 167 Ill. 2d 1, 21, 656 N.E.2d 750 (1995).
Defendant argues that the trial court erred in granting the
motion in limine because Officer DeJesus' credibility was a key
factor in the case. However, since Officer DeJesus did not testify
at trial, his credibility never became a factor impacting on the
trial outcome. The defendant could have called Officer DeJesus as
a witness but chose not to do so. The State is not required to call
a witness to testify in order for defendant to have an opportunity
to cross-examine the witness. People v. Dotson, 263 Ill. App. 3d
571, 576-77, 635 N.E.2d 559 (1994).
Defendant's second contention is that it was reversible error
for the trial judge to deny the request by the defense for an
instanter subpoena to command Officer DeJesus's presence at trial
and to order the sheriff's department to serve him. Defendant
contends that the cross-examination of Officer DeJesus would have
lent support to defendant's alibi that defendant had been at the
store for some time when the officers arrived. Defendant asserts
that this may have been sufficient to raise a reasonable doubt as
to defendant's guilt and, as such, denying defendant's request for
the instanter subpoena violated his right to confront and cross-
examine his accuser. In support of this contention, defendant
raises many of the same arguments made regarding the trial court's
granting of the People's motion in limine.
We agree with the trial court that defendant had an ample
opportunity to subpoena Officer DeJesus, particularly since the
case had been pending since August of 1993. There was no evidence
that any investigator for Jones' attorney ever tried to subpoena
Officer DeJesus. Furthermore, the defense was on notice that the
State would not be calling Officer DeJesus at trial as indicated in
the State's motion in limine.
We note that the use of subpoenas is a judicial process and
the trial judge is granted wide discretion in deciding whether a
subpoena should issue. People v. Walley, 215 Ill. App. 3d 971,
974, 575 N.E.2d 596 (1991); United States v. Micklus, 581 F.2d 612
(7th Cir. 1978). While defendant contends that the cross-
examination of Officer DeJesus would have lent support to
defendant's alibi, this is conjecture. It could just as easily be
said that the fact that Officer DeJesus did not testify was
beneficial to defendant's case. Accordingly, we find that the
trial court did not err in denying the defense's request for an
instanter subpoena requiring Officer DeJesus' presence at trial.
Defendant's third contention is that it was reversible error
for the court to deny the defense motion for a mistrial. In
support of this contention, defendant asserts that Officer
Lorenzo's testimony that he knew defendant by the nickname
"Lunchmeat" was highly prejudicial. Defendant contends that this
testimony improperly implied to the jury that defendant had prior
drug arrests.
It is not reversible error to call a defendant by his
nickname. People v. Adams, 156 Ill. App. 3d 444, 450, 509 N.E.2d 482 (1987), allowed with order, 119 Ill. 2d 560, 521 N.E.2d 941
(1988); People v. Travis, 64 Ill. App. 2d 197, 201, 212 N.E.2d 272
(1965). General principles of fair play dictate that a nickname
that has a pejorative connotation be used sparingly. People v.
Salgado, 287 Ill. App. 3d 432, 445, 678 N.E.2d 648 (1997); People
v. Murillo, 225 Ill. App. 3d 286, 294, 587 N.E.2d 1199 (1992). But
even when this is the case, it is not improper to allow a defendant
to be referred to by his nickname if witnesses knew and identified
defendant by that name. Salgado, 287 Ill. App. 3d at 445; Murillo,
225 Ill. App. 3d at 294.
First, the nickname "Lunchmeat" does not have a pejorative
connotation. See Salgado, 287 Ill. App. 3d at 445 (holding that in
a case involving first-degree murder, the nickname "Bam Bam" did
not carry a negative connotation that was immediately
recognizable). Further, the nickname "Lunchmeat" does not in any
way invoke an association with narcotics usage or drug dealing.
Second, even if the nickname "Lunchmeat" did have some sort of
negative connotation, defendant's nickname was used sparingly at
trial. Our review of the record indicates that the prosecution
raised this issue once at trial for the limited purpose of proving
identity. During the direct examination of Officer Lorenzo, the
prosecutor asked Officer Lorenzo if he recognized defendant when
Officer Lorenzo saw defendant on August 5, 1993. Officer Lorenzo
responded that he recognized defendant but knew him by the name
"Lunchmeat" rather than the name "Larry Jones." Accordingly, the
prosecutor's actual use of defendant's nickname was not excessive.
A trial court's decision on the admission of evidence will not
be disturbed unless an abuse of discretion resulting in prejudice
to the defendant is clear from the record. Salgado, 287 Ill. App.
3d at 445. In this case, Officer Lorenzo's testimony that he knew
defendant by the nickname "Lunchmeat" did not improperly imply to
the jury that defendant had prior arrests. Consequently, defendant
was not prejudiced and the trial court did not err in denying the
defense's motion for a mistrial.
Defendant next contends that he was not proved guilty beyond
a reasonable doubt. Defendant argues that the State failed to
prove him guilty beyond a reasonable doubt of each element of the
offense of possession of a controlled substance with intent to
deliver. Specifically, defendant contends that the State failed to
prove defendant's possession of a controlled substance and
defendant's intent to deliver. Defendant maintains that because
the cocaine was found beneath a rock in a public area and not found
on him, the cocaine was neither in his possession nor under his
exclusive control.
A challenge to the sufficiency of evidence to support a
conviction on appeal will be sustained only if no rational trier of
fact could have found that the defendant committed each element of
the charged offense. People v. Clemons, 277 Ill. App. 3d 911, 923,
661 N.E.2d 476 (1996). A defendant therefore must show that the
evidence of criminal conduct is so improbable or unsatisfactory
that it creates a reasonable doubt as to the defendant's guilt.
Clemons, 277 Ill. App. 3d at 923. In addition, the evidence at
trial must be viewed in the light most favorable to the prosection,
and the reviewing court may not substitute its judgment for that of
the trier of fact on questions such as weight of the evidence,
credibility of witnesses or resolution of conflicting testimony.
People v. Feazell, 248 Ill. App. 3d 538, 545, 618 N.E.2d 571
(1993).
To sustain a conviction for possession of a controlled
substance with intent to deliver, the State must prove the
following elements: (1) that the defendant had knowledge of the
presence of the controlled substance; (2) that the controlled
substance was within the immediate control or possession of the
defendant; and (3) that the defendant had intent to deliver the
controlled substance. People v. Robinson, 167 Ill. 2d 397, 407,
657 N.E.2d 1020 (1995).
In this case, the trial court instructed the jury that
defendant's conviction may be established under a theory of
accountability. Under this theory of accountability, the State
must prove that defendant, either before or during the commission
of the offense and with the intent to promote or facilitate such
commission, solicited, aided, abetted, or attempted to aid such
other person in the planning or commission of the offense. 720
ILCS 5/5-2(c) (West 1996); People v. Batchelor, 171 Ill. 2d 367,
375, 665 N.E.2d 777 (1996);
A defendant's accountability for a criminal offense can be
established "from evidence of conduct showing a design on
defendant's part to aid in the offense." People v. Saunders, 206
Ill. App. 3d 1008, 1014, 565 N.E.2d 183 (1990). In Saunders, the
defendant and a codefendant attempted to sell cocaine to an
undercover police officer. Although the drugs were found on the
codefendant's person, both defendants were convicted of possession
of a controlled substance. Saunders, 206 Ill. App. 3d at 1011-12.
On appeal, the defendant in Saunders argued that the evidence
did not support his conviction because he never possessed the
drugs. Upholding the conviction, the court held that the
defendant's conduct supported his conviction on an accountability
theory. The court noted that the defendant went to the site of the
crime, conversed with a police officer about a price for the drugs,
and instructed his accomplice to show the drugs to the police
officer. Saunders, 206 Ill. App. 3d at 1014-15.
Similarly, in the present case, the defendant's conduct was
sufficient to establish his accountability for the actions of Baker
and Mackey. First, defendant engaged in a verbal discussion with
the potential cocaine buyers and accepted the buyers' money.
Second, after these conversations, defendant instructed his
accomplices, through nonverbal conduct, to retrieve the cocaine and
deliver it to the narcotics buyer. Specifically, upon instruction
from defendant, Baker or Mackey would cross the street, retrieve
the cocaine from under a rock, and then bring the cocaine back
across the street to the buyer. The buyer would give the money to
the defendant and then remain standing near the defendant until
Baker or Mackey handed the buyer the cocaine. When viewed in a
light most favorable to the prosecution, this evidence demonstrated
that defendant aided Baker and Mackey in their commission of the
offense with the specific intent to facilitate or promote the
offense. Therefore, defendant's conviction for possession of a
controlled substance with intent to deliver was proper on an
accountability theory.
In addition, the State sufficiently proved defendant guilty of
each element of the offense of possession of a controlled substance
with intent to deliver. The State may establish these elements
through circumstantial evidence. Clemons, 277 Ill. App. 3d at 923.
Defendant contends that because the cocaine was located under
a rock in a public place, no evidence directly established
defendant's possession or control of the cocaine. Possession or
control may be established by actual possession or by constructive
possession. People v. Brown, 277 Ill. App. 3d 989, 997, 661 N.E.2d 533 (1996). A defendant has constructive possession of drugs where
there is no actual control of the drugs but where defendant intends
to and has a capacity to maintain control over them. People v.
Eiland, 217 Ill. App. 3d 250, 260, 576 N.E.2d 1185 (1991).
Furthermore, to prove constructive possession, the State may
establish that defendant had control over the premises where the
drugs were located, but this is not a prerequisite for conviction.
People v. Adams, 161 Ill. 2d 333, 344-45, 641 N.E.2d 514 (1994).
Our supreme court in Adams noted that "not only does a defendant
not need to control the premises, he does not even need to have
actual, personal, present dominion over the drugs themselves."
Adams, 161 Ill. 2d at 345. The State need only show that defendant
has not abandoned the drugs and no other person has obtained
possession of the drugs. Adams, 161 Ill. 2d at 345. Therefore,
proof that defendant knew the drugs were present and exercised
control over them establishes constructive possession. People v.
Smith, 288 Ill. App. 3d 820, 824, 681 N.E.2d 80 (1997)(defendant
constructively possessed drugs through keeping the drugs in a wine
bottle cap within a vacant lot).
In this case, the defendant had constructive possession of the
77 packets of cocaine found under the rock. Defendant's conduct
and the actions of his accomplices support the conclusion that
defendant knew where the drugs were located, always intended to
maintain control of the drugs, and never abandoned the drugs.
Defendant accepted money from cocaine buyers and, through nonverbal
conduct, directed Baker and Mackey to retrieve the drugs and
deliver them to the potential buyer. Defendant's actions
demonstrated that he was in charge of the criminal enterprise and
that he had knowledge of and complete control over the cocaine.
Consequently, defendant had constructive possession of the cocaine.
Likewise, the jury could have inferred defendant's intent to
deliver from his actions on the public street with his accomplices
and the cocaine buyers. Once actual or constructive possession is
established, the element of intent to deliver can be inferred from
the surrounding facts and circumstances absent direct facts which
tend to negate intent or which might leave in the mind of the jury
a reasonable doubt as to defendant's guilt. Clemons, 277 Ill. App.
3d at 923. Here, the jury was presented with evidence of
defendant's verbal discussions with the buyers, defendant's
acceptance of money, and his nonverbal directions to Baker and
Mackey, followed by Baker and Mackey actually handing the cocaine
to the buyers, who were waiting next to defendant Jones. Based on
this evidence, the jury reasonably could have found that defendant
had the requisite intent to deliver the controlled substance.
Therefore, viewing the evidence in a light most favorable to the
prosecution, we hold that there was an adequate basis for the jury
to find that defendant committed the offense of possession of a
controlled substance with intent to deliver.
Moreover, the defendant and his accomplices conducted their
criminal activity on a public street and hid their cocaine under a
rock accessible to the public. A person who sells drugs in a
public area is as great a threat to the public welfare as one who
chooses to sell drugs within his residence. See 720 ILCS 5/12-4
(West 1996)(enhancing the offense of battery when committed about
a public way, public property or public place of accommodation or
amusement). The committee comments for the aggravated battery
statute note that this type of crime "involves a battery committed
under aggravated circumstances from which great harm might and
usually does result, and therefore it constitutes a more serious
threat to the community than a simple battery." 720 ILCS Ann.
5/12-4, Committee Comments--1961 at 285 (Smith-Hurd 1993).
Similarly, the distribution of drugs in a public way
constitutes serious criminal conduct and increases the risk to the
public health and safety. In the case at bar, defendant stood
outside a residential building, conducted drug transactions from a
public area, and directed his accomplices to retrieve drugs from
under a rock across the street. Defendant's conduct was in blatant
disregard of the public health and safety and further supports his
conviction for possession of a controlled substance with intent to
deliver.
Lastly, defendant asserts that the 14 year sentence imposed
for possession of a controlled substance with intent to deliver
constitutes an abuse of discretion. Defendant contends that he was
only 21 years old at the time of the incident, his prior criminal
record was nonviolent, and he had a son and fiancée. The People
maintain that the trial court did not abuse its discretion and that
the court properly considered all factors in aggravation and
mitigation in sentencing.
Absent an abuse of discretion, a reviewing court will not
disturb a sentence that falls within the statutory limits. See
People v. Streit, 142 Ill. 2d 13, 18-19, 566 N.E.2d 1351 (1991).
In determining an appropriate sentence, the defendant's history,
character, rehabilitative potential, the seriousness of the
offense, the need to protect society and the need for deterrence
and punishment must be equally weighed. People v. Taylor, 236 Ill.
App. 3d 223, 232, 603 N.E.2d 611 (1992). A reviewing court must
not substitute its judgment for that of a sentencing court merely
because it would have weighed the factors differently. Streit, 142 Ill. 2d at 19.
In this case, defendant was convicted of a nonprobationable
Class 1 felony, which, under the applicable statute, provided a
prison term of at least 4 years and no more than 15 years. 720
ILCS 570/401(c)(2) (West 1996); 730 ILCS 5/5-8-1(a)(4), 5-5-3(c)(2)
(West 1996). Thus, the sentence falls within the statutory
guidelines.
Further, our review of the record clearly demonstrates that
the trial judge thoroughly considered the mitigating and
aggravating factors before he reached his sentencing decision. The
trial court specifically noted that defendant had two prior felony
convictions and committed a subsequent drug offense while out on
bond where he was found to be in possession of 11 packets of
cocaine and $1,000 cash. Accordingly, the trial court did not
abuse its discretion by sentencing defendant to 14 years in the
Illinois Department of Corrections.
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
Affirmed.
RAKOWSKI and TULLY, JJ., concur.