People v. Loggins

2019 IL App (1st) 160482

130 N.E.3d 432

432 Ill.Dec. 890

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

v.Danny LOGGINS, Defendant-Appellant.

No. 1-16-0482

Appellate Court of Illinois, First District, THIRD DIVISION.

May 29, 2019

Michael J. Pelletier, Patricia Mysza, and Eric E. Castaneda, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Marci Jacobs, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 The police entered a house in Harvey to execute a search warrant and found defendant Danny Loggins, along with three other people, sitting around the table in the dining room. Defendant sprang up and ran out the back door, leaving behind a handgun that had been within arm's reach on a nearby chair. He was arrested, unarmed, in the yard. The police found cocaine in a drawer in the dining room and assorted paraphernalia nearby. A jury convicted defendant of armed violence and the predicate offense of possession of a controlled substance with intent to deliver. (At a simultaneous bench trial, the judge found him guilty of unlawful possession of a weapon by a felon, but neither that conviction nor the bench trial is at issue in this appeal.)

¶ 2 Defendant raises several issues on appeal. He challenges the sufficiency of the evidence to sustain either of the jury's verdicts. He says he was prejudiced when an officer was allowed to testify about the uses of the paraphernalia found in the house without being accepted as an expert on drug distribution. He argues that the trial court erred in requiring him to serve (at least) 85%, rather than 50%, of his sentence, pursuant to the truth-in-sentencing law. And he challenges various aspects of the fines-and-fees order.

¶ 3 Because there was no finding, and indeed no evidence, that defendant caused anyone great bodily harm, we agree that he is eligible to receive day-for-day credit on his sentence for armed violence. We otherwise affirm his convictions and sentence. We also remand to the circuit court, pursuant to Illinois Supreme Court Rule 472, for defendant to file a motion challenging certain monetary assessments and per diem credits.

¶ 4 BACKGROUND

¶ 5 On the evening of December 21, 2012, the police arrested defendant while executing a search warrant at 15307 Turlington Avenue in Harvey. Detectives Ostrowski and McCalpine of the Harvey Police Department, both of whom testified for the State, were among the half-dozen or so officers who entered the three-bedroom house at that address.

¶ 6 The officers knocked and announced their presence. There was no response, and they did not hear any voices or other noises inside. After waiting somewhere between 30 and 60 seconds, the officers shattered the glass on the screen door and broke down the front door of the house with a battering ram. They continued to announce their presence as they entered the house and walked through the living room, into the adjoining dining room. There, they found four people, including defendant, sitting around the table. Defendant immediately got up, ran into the kitchen, and fled out the back door.

¶ 7 Ostrowski followed defendant outside. Defendant initially hopped a fence, but then came back, walked toward Ostrowski, and was arrested, unarmed, in the yard. Ostrowski never saw defendant with a gun.

¶ 8 Meanwhile, McCalpine found a handgun on the seat of a chair in the dining room. On direct examination, he testified that it was the chair next to defendant, about one foot away from where defendant had been sitting. On cross-examination, McCalpine acknowledged that in his police report, and again in his grand-jury testimony, he had said that the gun was on defendant's chair, not the chair next to him. In any event, a photo taken by McCalpine, and published to the jury, depicts a chair in the dining room with a White Sox cap, a coat underneath the cap, and a handgun underneath the coat. The handle of the gun is sticking out from underneath the coat. McCalpine never saw defendant with that (or any other) gun, and he did not know who put the handgun on the chair. A fingerprint expert from the Illinois State Police testified that no latent prints suitable for comparison were found on the handgun or the magazine. The handgun was loaded with 15 live rounds.

¶ 9 After the occupants were secured, the police searched the entire house. In a drawer in the dining room, about three feet away from where defendant was sitting, they found a plastic bag containing a white, rock-like substance. Testing later confirmed that it was 8.2 grams of cocaine.

¶ 10 On the floor in the dining room, also about three feet away from defendant, the police found a box full of paraphernalia, including measuring spoons, a measuring cup, two strainers, two digital scales, a box with a large quantity of small plastic bags (upwards of a thousand, McCalpine estimated), a bottle of "instatal," and another bottle of an unspecified dietary supplement. They also found more plastic bags and two blenders elsewhere in the dining room, and a 12-gauge shotgun in the corner of the living room.

¶ 11 Without objection, McCalpine testified that small plastic bags are commonly used to package narcotics; that blenders are commonly used to blend and cut heroin; and that "instatal" is a dietary supplement commonly used to "multiply," or cut, cocaine. (Based on this testimony, we surmise that the term "instatal," as it occurs in the report of proceedings and the parties' briefs, is a misspelling of "inositol," a common cutting agent for cocaine. See, e.g. , People v. Adams , 388 Ill. App. 3d 762, 765, 328 Ill.Dec. 232, 903 N.E.2d 892 (2009) ; People v. Caro , 381 Ill. App. 3d 1056, 1064, 321 Ill.Dec. 804, 890 N.E.2d 526 (2008).)

¶ 12 McCalpine based his testimony about the plastic bags, blenders, and inositol on his "training and experience" as a narcotics officer. At the time of the search, he had served on the narcotics-investigation unit of the Harvey Police Department for 5 years, and he had been an officer for a total of 12 years. He had completed 40 hours of narcotics training at the Chicago Police Academy; and he completed ongoing, annual narcotics training from an organization referred to in the transcript as the "Illinois Department of Drug Enforcement Association." The State did not tender McCalpine as an expert, and the trial court did not qualify him as one.

¶ 13 During the search, the officers found defendant's state identification card, which listed 15307 Turlington Avenue as his residence. Defendant's identification was issued on August 24, 2011, and was valid until December 7, 2016. The officers also found two photos of defendant on the mantle in the living room. McCalpine testified that he found clothes in a bedroom closet that appeared to fit defendant—who is 6'7? and weighs around 240 pounds—but he did not inventory or photograph them. The officers did not find any utility bills or other mail addressed to defendant, any keys to the house belonging to defendant, or any lease agreement or mortgage documents in defendant's name.

¶ 14 Ostrowski and McCalpine interviewed defendant at the station after his arrest. They did not record the interview, although audio and video equipment was available. McCalpine testified that defendant was read his Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ), signed a waiver, and made a statement.

¶ 15 Defendant told the officers that he started selling drugs "to feed his family" after his trucker's license was suspended, due to his failure to pay child support. He admitted that the handgun in the dining room and the shotgun in the living room were his, and he said that he "had them there for New Year's Eve to shoot them off." Defendant also confirmed that he lived at 15307 Turlington Avenue. McCalpine memorialized defendant's oral statement in writing, based on his interview notes, but defendant refused to sign it. Among other (unspecified) reasons, McCalpine testified, defendant refused because "the state's attorney could use [the written statement] against him at a trial."

¶ 16 After defendant was convicted, the trial court merged his convictions, sentenced him to 15 years in prison for armed violence, and ordered him to serve that sentence at 85% time. The trial court also imposed $ 4394 in monetary assessments and awarded defendant 476 days of credit for pre-sentence incarceration. This appeal followed.

¶ 17 ANALYSIS

¶ 18 I

¶ 19 Defendant first argues for a reversal of his conviction for armed violence. To prove that he committed this offense, the State had to prove that he committed a predicate felony (namely, possession of cocaine with intent to deliver) "while armed with a dangerous weapon." 720 ILCS 5/33A-2(a) (West 2016). Defendant argues that the State failed to prove that he was armed within the meaning of the statute, for two independent reasons. We take each in turn.

¶ 20 A

¶ 21 There is no dispute that defendant was unarmed when Ostrowski arrested him outside the house. For this reason, he says, he did not commit armed violence. Defendant thus appears to argue, at least implicitly, that the statute requires proof that he was armed at the moment of his arrest. This contention presents an issue of statutory interpretation, which we review de novo. People v. Anderson , 364 Ill. App. 3d 528, 537, 302 Ill.Dec. 98, 848 N.E.2d 98 (2006).

¶ 22 Defendant's interpretation of the armed-violence statute is wrong: "[T]he determination of whether a defendant is armed is not made at the moment of arrest." People v. Harre , 155 Ill. 2d 392, 401, 185 Ill.Dec. 550, 614 N.E.2d 1235 (1993) ; see also People v. Curry , 2018 IL App (1st) 152616, ¶ 18, 421 Ill.Dec. 465, 100 N.E.3d 482.

¶ 23 As our supreme court has explained, a felon with immediate access to a weapon will have to make a "spontaneous" decision whether to use...