People v. Jones

2019 IL App (3d) 160268

147 N.E.3d 764

439 Ill.Dec. 89

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.David E. JONES, Defendant-Appellant.

Appeal No. 3-16-0268

Appellate Court of Illinois, Third District.

Opinion filed November 1, 2019

JUSTICE LYTTON delivered the judgment of the court, 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 1st. 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 limine ."

¶ 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 person?

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 drove away.

¶ 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 limited to, the following:

The opportunity the witness had to view the offender at the time of the offense."

¶ 16 During deliberations, the jury asked to rewatch the surveillance video. The court reviewed the jury's note with the parties and indicated that it was going to grant the jury's request and allow the jury to rewatch the video in the courtroom. The court indicated that it and the parties were going to be present during the viewing and commented "[t]here's not going to be any questions, it's just going to be view, leave." After the jurors entered the courtroom, the following colloquy occurred:

"THE COURT: Okay. I received a question you wanted to view the video, so we have it right here.

[STATE'S ATTORNEY]: With the Court's permission, I'll play it.

THE COURT: Yes.

(Videotape was played in open court.)

THE COURT: Is that enough or did you want to see it again?

THE FOREPERSON: I think we are good.

THE COURT: Okay. Thank you."

Following this exchange, the jury retired to the jury room to continue deliberations. After an unspecified amount of time, the jury indicated that it had reached its verdict. The jury found defendant guilty of unlawful delivery of a controlled substance within 1000 feet of a church. On May 13, 2016, the court sentenced defendant to six years' imprisonment.

¶ 17 II. ANALYSIS

¶ 18 A. Plain Error

¶ 19 Defendant argues that four errors require that his conviction be reversed and remanded for further proceedings. Defendant concedes that he forfeited review of these errors, but he argues that each is reversible plain error. The plain error doctrine provides a limited exception to the general rule of forfeiture. People v. Herron , 215 Ill. 2d 167, 177, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). The first step of the plain error doctrine is to determine whether a clear or obvious error occurred. People v. Piatkowski , 225 Ill. 2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). The word " ‘plain’ " is "synonymous with ‘clear’ and is the equivalent of ‘obvious.’ " Id. at 565 n.2, 312 Ill.Dec. 338, 870 N.E.2d 403. If we find that the court committed "plain" error, then we must determine if the error is reversible. People v. Rippatoe , 408 Ill. App. 3d 1061, 1066, 348 Ill.Dec. 825, 945 N.E.2d 132 (2011). Plain errors are reversible only where defendant establishes prejudice. A defendant may establish prejudice in one of two ways. First, a defendant may demonstrate that the trial evidence was so closely balanced that the error threatened to impact the result of the trial. People v. Sebby , 2017 IL 119445, ¶ 51, 417 Ill.Dec. 756, 89 N.E.3d 675. Second, a defendant may show that an error is so serious that prejudice is presumed, regardless of the closeness of the evidence. Id. ¶ 50.

¶ 20 1. Video Viewing Procedure

¶ 21 Defendant argues the court's in-courtroom video viewing procedure is structural error because it intruded on the privacy of jury deliberations, inhibited the jury's consideration of the evidence, and required the jury to watch the video exhibit in the...