People v. Moore

No. 2--95--0967

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
)
Plaintiff-Appellee, ) No. 95--CF--347
)
v. )
)
SHUNG A. MOORE, )
) Honorable
) Rosemary Collins,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE HUTCHINSON delivered the opinion of the court:
Defendant, Shung Moore, appeals his conviction of possession
with intent to deliver 1 to 15 grams of cocaine (720 ILCS 570/401
(West 1996)) and criminal fortification of a residence (720 ILCS
5/19--5 (West 1996)). Defendant argues that the trial court erred
in denying his motion to suppress evidence and erred in committing
multiple instances of plain error. Defendant further argues that
the State failed to prove him guilty beyond a reasonable doubt of
possession of 1 to 15 grams of cocaine. We affirm.
Through various witnesses, the State presented testimony that
defendant was operating a crack house at 706« North Winnebago
Street, Rockford, during early 1995. Arlene Lighthart, who lived
in this apartment with her boyfriend and two children, testified
that she had known defendant for several years. She permitted
defendant to use the apartment to sell crack cocaine for a period
of four weeks during January and February. Defendant paid
Lighthart $400 per week for the use of the apartment, and the
continual sale of narcotics from the apartment earned him
approximately $3,000 per day. Defendant then asked to use the
apartment for an additional week because his other locations had
been recently raided by the police.
Lighthart testified that defendant prepared the apartment for
the sale of crack cocaine. He fitted the front door of the
apartment with brackets that would allow it to be barricaded from
the inside with three 2 by 4s. The back door was also barricaded.
A latch was attached to the outside of the front door for a
padlock. A deadbolt was removed from the front door to allow the
exchange of drugs and money through the hole. It was explained
that this preparation was to prevent buyers from entering the
apartment, sellers from leaving the apartment, and as a way of
slowing a police raid long enough for the crack cocaine to be
destroyed.
On February 13, 1995, defendant allegedly began to use a new
seller at the property. Clarence Richardson, who was 16 years old
on that date, testified that he had worked for defendant packaging
crack cocaine for approximately one month. Defendant approached
him about selling the crack and Richardson agreed. On February 13,
defendant drove Richardson to the Winnebago Street apartment in his
red Camaro. Defendant then gave him a "500 pack" of crack cocaine
and gave him some basic instructions on how to sell the drugs.
Lighthart testified that defendant drove her, her boyfriend,
and her children from the apartment. He took them to a hotel
because Lighthart had complained of the number of people
frequenting the home and the occasional police car that would drive
past.
Members of the Rockford police department and the Winnebago
County sheriff's metro narcotics unit observed the apartment for
several hours on February 13. Two police informants had let the
police know that a crack house was being operated at the location
and that the operator of the house drove a red Camaro or Firebird
with a black bra. The informants stated that buyers would go to
the front door of the apartment through an inner staircase. The
door would be padlocked from the outside and barricaded from
within. A buyer would knock on the door, place money through a
hole in the door, and receive crack cocaine in return. A
controlled buy was made from the apartment in the early afternoon
and police obtained a search warrant.
The officers observing the apartment noticed a red Camaro in
front of the apartment on several occasions. They processed the
license plate number and discovered that the car was registered to
defendant. The officers were familiar with defendant. They saw
him drive a man and a woman away from the apartment. Defendant
later returned, honked the horn, and gave Richardson a brown paper
bag.
The police raid of the apartment began at approximately 3 p.m.
Officers saw defendant driving away from the apartment and detained
him. Several officers approached the vehicle with guns drawn.
Defendant turned the car off, threw the keys to the floorboard, and
exited the car. Officers conducted a quick "pat down" and
determined that defendant did not possess any weapons.
Meanwhile, the rest of the officers executed the search
warrant on the apartment. They knocked on the door and loudly
announced their presence and that they had a search warrant.
Officers testified that they heard running from behind the door and
used a battering ram to break through the barricade. Once through
the door, the officers discovered Richardson alone in the
apartment.
A plastic bag on a couch in the apartment contained 15 smaller
baggies with suspected cocaine. Richardson's coat contained
another bag with 41 baggies of suspected cocaine. Richardson had
$193 in his pocket, another $170 was found on the couch, and an
insurance check in the amount of $17 and addressed to defendant was
found in the living room. The police also discovered several
padlocks inside the apartment.
After defendant had been detained for approximately five
minutes, an officer left the apartment and informed the officers
with defendant of the discoveries in the apartment. The officers
conducted a more thorough search of defendant and found a padlock
key that was later matched to one of the padlocks found in the
apartment. A narcotics dog was used to conduct a canine sniff test
of defendant's automobile. The dog alerted the handler to the
driver's door seam and inside behind the front passengers seat.
The officer testified at trial to the dog's actions and explained
that, although no drugs were found in the car, the dog may have
detected residual odors from narcotics.
Defendant and Richardson were transported in a van to the
police station. One of the officers present in the van testified
that defendant instructed Richardson to "do the right thing" and
accept blame for the crime because he was a juvenile and would not
be harshly punished.
Defendant filed a pretrial motion to suppress the physical
evidence collected from his person and from his automobile.
Specifically, defendant wished to suppress the keys on his person,
as well as two other sets of padlock keys, which also matched
padlocks found in the apartment, and the insurance check, which
defendant claimed was in his vehicle. A hearing was held on the
motion, and the trial court denied the motion to suppress.
The jury trial began on June 20, 1995. The State presented
the testimony of many of the officers involved in the search of the
apartment and the arrest of defendant. A police chemist testified
that she examined 23 of the samples found during the search. These
samples had a combined weight of 5.2 grams and each tested positive
for the presence of cocaine. The remaining samples were not
tested. Defendant did not present any evidence at trial.
The jury returned guilty verdicts on both charges of the
indictment. Defendant filed a motion for a new trial, which was
denied. Defendant was sentenced to concurrent prison terms of 14
and 5 years. Defendant timely appeals.
On appeal, defendant first argues that the trial court erred
by denying his motion to suppress evidence. A trial court's ruling
on a motion to suppress will not be disturbed unless that ruling is
manifestly erroneous. People v. Miller, 173 Ill. 2d 167, 181
(1996). A police officer may approach an individual to investigate
possible criminal behavior even when there is not sufficient
probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). To justify stopping an
individual, the officer must be able to point to "specific,
articulable facts which, when taken together with the rational
inferences from those facts, reasonably warrant the intrusion."
People v. Schacht, 233 Ill. App. 3d 271, 275 (1992). "An objective
standard is used in determining whether the facts and circumstances
known to the officer at the time of the stop would warrant a person
of reasonable caution to believe a stop was necessary to
investigate the possibility of criminal activity." People v.
Walters, 256 Ill. App. 3d 231, 234 (1994). The purpose of such a
stop is to verify information or determine whether criminal
activity has occurred. Schacht, 233 Ill. App. 3d at 275. An
investigatory stop is not transformed into an arrest by the
officers using force or displaying their firearms to detain the
individual. People v. Washington, 205 Ill. App. 3d 452, 456
(1990). After all, "[i]t would be paradoxical to give police the
authority to detain pursuant to an investigatory stop yet deny them
the use of force that may be necessary to effectuate the
detention." People v. Starks, 190 Ill. App. 3d 503, 509 (1989).
The record reflects many articulable facts from which the
officers could have determined that defendant was involved in
criminal activity. Two informants had told officers that cocaine
was being sold from the apartment and that it was being delivered
by a man in a red Camaro or Firebird with a black bra. Defendant
was seen in front of the apartment on several occasions in a red
Camaro with a black bra. On one occasion, he delivered a brown
paper bag. Officers learned that the car was registered to
defendant and defendant was known to them as being involved in the
sales of narcotics. Defendant attempted to drive away from the
apartment when the raid began. He was stopped and asked to exit
the vehicle during the search of the apartment. After five
minutes, officers discovered a barricaded door, suspected
narcotics, and an insurance check with defendant's name on it.
Considering these factors, we find that the trial court's denial of
the motion to suppress was not against the manifest weight of the
evidence.
Defendant also argues that the court committed various
instances of plain error. First, defendant argues that the trial
court committed plain error by allowing Michael Schneider, an
officer trained in handling police dogs, to testify regarding the
canine sniff of his certified police dog Lika. Defendant relies
upon People v. Cruz, 162 Ill. 2d 314 (1994), for the proposition
that "bloodhound evidence is inadmissible to establish any factual
proposition in a criminal proceeding in Illinois." Cruz, 162 Ill. 2d at 369-70. While this is an accurate statement, it does little
to support defendant's argument. In Cruz, our supreme court
concluded that evidence of which direction a bloodhound attempted
to track a scent could not be used to establish a factual
proposition. Cruz, 162 Ill. 2d at 370. In the present case,
however, the police used a certified dog to detect the presence of
narcotics. "The use of trained dogs as a follow-up investigative
technique to partially corroborate information received is, in our
judgement, a useful, entirely reasonable and permissible
procedure." People v. Campbell, 67 Ill. 2d 308, 317 (1977). The
trial court did not err in finding that police officers acted
reasonably in using the canine sniff test. This evidence was
corroborated: Lighthart and Richardson both testified that
defendant used his car to transport cocaine, and police officers
observed defendant handing Richardson a paper bag inside the
automobile.
This does not, however, address whether a police officer's
testimony about the actions of a police dog would be considered
hearsay. Despite a long history of cases involving police dogs to
detect narcotics, there is a surprising dearth of information
available on this specific issue. The parties have failed to
provide any relevant authority, and our review of Illinois case law
has also been unfruitful. In United States v. Hubbard, 61 F.3d 1261 (7th Cir. 1995), the United States Court of Appeals for the
Seventh Circuit was faced with a similar situation. The court
denied a pretrial motion in limine to suppress evidence of dog
alerts to an automobile. In Hubbard, police dogs alerted police
officers to the presence of narcotics in the defendant's
automobile. The court stated that "the reaction of the police dog,
although subject to different interpretations, was sufficiently
probative of the presence of narcotics to be admissible." Hubbard,
61 F.3d at 1274. The court found the evidence of the dog alerts
admissible, even though narcotics were not located in the
automobile. We find this opinion, while not binding upon this
court, persuasive in our determination of this matter.
Defendant also argues that the trial court erred in omitting
a portion of a jury instruction. Illinois Pattern Jury
Instructions, Criminal, Nos. 3.06-3.07 (3d ed. 1992) (hereinafter
IPI Criminal 3d) states:
"You have before you evidence that the defendant made
statements relating to the offenses charged in the indictment.
It is for you to determine [whether the defendant made the
statements, and, if so,] what weight should be given to the
statements. In determining the weight to be given to a
statement, you should consider all of the circumstances under
which it was made." IPI Criminal 3d, No. 3.06-3.07.
The trial court gave this instruction but struck the bracketed
portion. The trial court found the instruction appropriate because
of defendant's alleged conversations with Lighthart and Richardson.
Defendant observes that the Committee Note to this instruction
states that the bracketed material "should be deleted only when the
defendant admits making all the material statements attributed to
him." IPI Criminal 3d, No. 3.06-3.07, Committee Note, at 79.
Defendant suggests that it was improper to exclude the material
because he had not taken the stand and, thus, did not admit making
the statements.
The State correctly notes that this argument is counter to
more than a decade of jurisprudence. "[T]he failure to include the
bracketed language [does] not warrant reversal where defendant
presented no evidence that defendant denied making the
statement[s]. To allow otherwise would confuse the jury by making
it decide an issue improperly before it." People v. Garner, 248
Ill. App. 3d 985, 992 (1993). Therefore, the trial court's failure
to include the bracket language does not warrant reversal.
Defendant also argues that the trial court committed plain
error in allowing John Versetti, a Rockford police detective, to
give opinion testimony about some of the common characteristics of
the sales of crack cocaine. Versetti was the officer in charge of
collecting physical evidence from the apartment during the raid.
He testified at trial regarding the evidence. He also testified
how crack cocaine is manufactured, the way it is ingested, and the
street value of 5.2 grams of crack cocaine. He further testified
that drug dealers use juveniles for sales because they can be
easily intimidated and are afforded greater protection under the
law and that the use of barricades and padlocks was common in the
sales of crack cocaine. Finally, Versetti testified that
possession of 56 baggies of crack cocaine was inconsistent with
personal use and the typical crack user does not possess more than
one baggie at a time.
Defendant argues that this testimony was improper for several
reasons. Versetti should not have been allowed to be both an
occurrence witness and an expert witness. Much of the testimony
was allegedly irrelevant to the facts in the present case.
Finally, the testimony of certain alleged characteristics of drug
sales was prejudicial because the characteristics were present in
this case.
A person is qualified to testify as an expert if her or his
experience and qualifications provide knowledge that is not common
to the layperson and where such testimony will assist the trier of
fact. People v. Jordan, 103 Ill. 2d 192, 208 (1984). A police
officer may qualify as an expert in certain areas; that
determination is left to the sound discretion of the trial court.
People v. DeCesare, 190 Ill. App. 3d 934, 942-43 (1989); see also
People v. Foules, 258 Ill. App. 3d 645, 659-60 (1993). Defendant's
challenge against the witness acting as both occurrence witness and
expert is especially weak when it was defendant who objected to the
witness' testimony and demanded that a foundation for the witness'
qualifications be presented. See United States v. Catlett, 97 F.3d 565 (D.C. Cir. 1996).
Defendant's argument against the relevance of Versetti's
testimony is also ill founded. The State had the burden of proving
that defendant possessed cocaine with the intent to sell. Part of
proving that the cocaine was intended for sales would necessarily
be that the cocaine was not being merely manufactured in the
apartment. Additionally, it would be important to prove that the
cocaine was not for the personal use of Richardson or defendant.
This testimony is highly relevant.
It was also not error, under the facts of the present case,
for the trial court to allow Versetti to testify regarding the
habits of drug dealers. Defendant is correct in noting that
testimony of extensive "profile" evidence that is unrelated to the
case may prejudice a criminal defendant. See People v. Brown, 232
Ill. App. 3d 885, 889-900 (1992). However, a police expert may
give evidence that is not extensive and that relates to the facts
in the case. People v. Stone, 244 Ill. App. 3d 881, 890 (1993).
In the present case, Versetti's expert testimony was brief and
related directly to the facts in this case.
Defendant's final argument is that the State failed to prove
him guilty beyond a reasonable doubt because only a portion of the
evidence was tested to prove that it contained cocaine. Defendant
cites to our supreme court's recent decision in People v. Jones,
174 Ill. 2d 427 (1996), for support. In Jones, the court
overturned a conviction of possession of 1 to 15 grams of cocaine
because only 2 of 5 specimens were tested. Defendant fails to note
the reason why this conviction was overturned. The total weight of
the packets of cocaine tested in Jones amounted to less than one
gram, and the supreme court held that the weight of the untested
samples could not be combined to bring the total to over one gram.
Jones, 174 Ill. 2d at 430. In the present case, however, the State
tested 23 packets with a combined weight of 5.2 grams. Thus, the
tested material was more than five times the amount needed to
support defendant's conviction.
For the foregoing reasons, the judgment of the circuit court
of Winnebago County is affirmed.
Affirmed.
GEIGER, P.J., and McLAREN, J., concur.