People v. Lowery

1

2021 IL App 190914-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARQUIS L. LOWERY, Defendant-Appellant.

No. 4-19-0914

Court of Appeals of Illinois, Fourth District

December 16, 2021

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Macon County No. 18CF1143 Honorable Robert Charles Bollinger, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.

ORDER

HARRIS JUSTICE

¶ 1 Held: (1) Defendant forfeited his claim he was denied a fair trial based on assertions that one of the State's expert witnesses was allowed to opine on a matter beyond the scope of his expertise and his expert opinion lacked an adequate foundation.

(2) The trial court did not abuse its discretion in sentencing defendant to 13 years' imprisonment.

¶ 2 Following a jury trial, defendant, Marquis L. Lowery, was convicted of unlawful delivery of a controlled substance and sentenced to 13 years' imprisonment. Defendant appeals arguing (1) he was denied a fair trial where one of the State's expert witnesses was allowed to provide opinion testimony outside his area of expertise and which lacked an adequate foundation and (2) his 13-year prison sentence is excessive. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. The Charge

¶ 5 In August 2018, the State charged defendant by information with unlawful delivery of a controlled substance (see 720 ILCS 570/401(c) (1) (West 2016)), alleging that on March 10 2016, defendant knowingly and unlawfully delivered more than 1 but less than 15 grams of a substance containing heroin to Michael Dandy.

¶ 6 B. Jury Trial

¶ 7 Defendant's jury trial was conducted on June 17 and 18 2019.

¶ 8 1. The State s Evidence

¶ 9 The State called four witnesses and introduced several video recordings and a recording of a phone conversation between defendant and Dandy.

¶ 10 a. Detective Lonnie Lewellyn

¶ 11 Lonnie Lewellyn, a detective with the Decatur Police Department, testified he was working on an investigation involving defendant in early 2016. As part of the investigation, Lewellyn worked closely with Michael Dandy, a confidential informant. According to Lewellyn, Dandy was arrested for possessing heroin in January 2016. Dandy agreed to assist Lewellyn with three investigations in exchange for the dismissal of the possession charge against him.

¶ 12 Detective Lewellyn testified that on March 10, 2016, he met with Dandy to conduct a "wire buy" of heroin from defendant. Dandy called defendant to purchase heroin and Lewellyn recorded the phone call. After the phone call, Lewellyn searched Dandy for "narcotics or currency" and found neither. Lewellyn then gave Dandy a video recording device and $100, and Dandy drove his vehicle to the designated meeting location. Lewellyn testified he and other detectives followed Dandy to the meeting location, "keeping him in our site [sic] the whole time to make sure that he doesn't stop or meet with any other people ***." Lewellyn observed Dandy meet with defendant briefly at the designated location. Lewellyn testified that after meeting with defendant, Dandy then drove straight to a predetermined location to meet with the detectives. Lewellyn further testified that Dandy was under constant surveillance from the time he left to meet with defendant until the time he returned to the detectives. Upon meeting the detectives, Dandy "turned over a small bag of a grayish[-] brown substance, which he claimed that he had purchased from [defendant]." Lewellyn then searched Dandy and his vehicle for a second time, placed the substance Dandy gave him in a sealed evidence bag, and sent the evidence to the crime lab for testing.

¶ 13 On cross-examination, Lewellyn acknowledged that he wrote a report in regard to the controlled buy but failed to indicate in the report that he had searched Dandy's vehicle either before or after Dandy met with defendant. However, Lewellyn went on to state that "just because it's not in my report doesn't mean it didn't happen. I searched the vehicle."

¶ 14 b. Angela Nealand

¶ 15 Angela Nealand, a "forensic scientist specializing in the area of drug chemistry" with the Illinois State Police Forensic Science Laboratory, testified she received a sealed evidence envelope in the instant case on May 12, 2016. Nealand weighed the substance and reported the weight as 1.1 grams. Nealand then conducted three separate tests on the substance; all of which were "positive for the presence of heroin." Nealand testified that in her expert opinion, the "1.1 grams of powder contained heroin." On cross-examination, she acknowledged that although the bag containing the substance may have met the lab's fingerprint-testing criteria, no such test was conducted.

¶ 16 c. Michael Dandy ¶ 17 Michael Dandy testified that he was arrested in January 2016 for possessing heroin. To avoid being charged with possession of heroin, Dandy agreed to assist the Decatur Police Department with three investigations, one of which involved defendant. On March 10, 2016, Dandy met with Detective Lewellyn for the purpose of buying heroin from defendant. Dandy called defendant, and the recorded phone call was played to the jury. On the call, Dandy informs defendant he wants "a couple of 'em." Defendant responds that "all I've got left is probably one." Dandy testified that "one" referred to one gram of heroin. After the phone call, Dandy got into his vehicle with the recording equipment and drove to defendant's location.

¶ 18 The video recording was introduced into evidence and played to the jury. In the video, Dandy is seen exiting Lewellyn's vehicle and entering his own vehicle. Dandy places the video recording device on his lap, points it at the passenger seat, and drives for approximately ten minutes before stopping. Defendant then can be seen opening the passenger door and handing Dandy a small bag. Defendant is heard telling Dandy "this is only a gram." The video then depicts Dandy handing defendant $100 and subsequently driving away. Towards the end of the video, the recording device appears to fall off Dandy's lap, and only the floorboard of the vehicle is visible. The video concludes when Dandy meets up with Lewellyn again. The State also introduced still photos of the transaction between Dandy and defendant and published them to the jury. Dandy testified the substance that was depicted in the video and photos was the same substance he gave to Detective Lewellyn.

¶ 19 The State also introduced a video defendant posted to Facebook in 2018 shortly after being charged in the instant case. In the video, defendant calls Dandy a "rat" and says he wants the public to know that Dandy works with the police. In the video, defendant zooms in on the portion of the information filed against him that identifies Dandy by name.

¶ 20 On cross-examination, Dandy testified that Lewellyn did not search him or his vehicle before he drove to meet defendant. Defense counsel asked Dandy if anyone from the Decatur Police Department told him that he would be charged with possession if he "didn't produce some results on these three investigations," and Dandy answered that he did not recall anyone telling him that.

¶ 21 d. Detective Chad Ramey

¶ 22 Chad Ramey, a detective with the Decatur Police Department, was permitted to testify as an expert in "drug and narcotic distribution." Ramey testified he had listened to the recording of the phone call between defendant and Dandy, and, in his opinion, they were discussing the sale of heroin. Ramey provided the following relevant testimony:

"Q. [S]o based on your training and expertise, did you have an opinion to a reasonable degree of certainty in your field as to whether or not a delivery of heroin of about a gram had occurred in that video you watched?

A. Yes. I-I believe from my-my observations, my training and experience that that heroin was actually delivered to that source and that-that actual amount was consistent with what the-what the phone call showed.

Q. And is there anything else that you base your opinion on besides what you had just told us?

A. No. Just observations that I saw actually in the video, the-those photographs as well as, you know, the phone call."

On cross-examination, Ramey acknowledged he was not present for the transaction and he did not have any "forensic training."

¶ 23 2. Defendant's Evidence ¶ 24 Defendant testified on his own behalf. According to defendant, Dandy began calling him asking for heroin in January 2016, shortly after Dandy was released from prison. Defendant estimated Dandy had called him approximately 15 times between January and March 2016. Defendant testified he repeatedly told Dandy he "didn't know anything about it and [he] didn't possess anything like that." However, defendant further testified, "[Dandy] was persistent and I-I needed some money that day so I told him, yeah, I could get him some. I put some Comet in a bag, gave it to him, and it ended up coming to all of this."

¶ 25 3. Finding of Guilt

¶ 26 Following less than an hour of deliberation, the jury found defendant guilty beyond a reasonable doubt.

¶ 27 C. Sentencing

¶ 28 On July 31, 2019, the trial court conducted a sentencing hearing. At the outset of the hearing, the parties agreed defendant faced Class X sentencing due to two prior Class 1 felony convictions: (1) possession of 1 to 15 grams of cocaine with intent to deliver in Macon County case No 02-CF-1127 and (2) possession of between 15 and 100 grams of cocaine in Macon County case No. 11-CF-1201. According to the presentence investigation report, in addition to the 2 felonies...