Opinion
No. 1-11-0896
2013-10-11
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARTHEL PHILLIPS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 10 CR 11796
Honorable
Rosemary Grant-Higgins,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice ROCHFORD and Justice REYES concurred in the judgment.
ORDER
¶ 1 Held: Evidence sufficient to sustain defendant's conviction of delivery of a controlled substance within 1,000 feet of a school; three-year term of MSR proper. ¶ 2 Following a jury trial, defendant Larthel Phillips was found guilty of delivery of a controlled substance within 1,000 feet of a school and sentenced to six years' imprisonment. On appeal, he contends that the State failed to prove him guilty beyond a reasonable doubt. He also contests the propriety of his three-year term of mandatory supervised release (MSR). ¶ 3 At trial, 10-year veteran Chicago police officer Angela Pittman, Officer Pittman testified that at 4:40 p.m. on February 10, 2010, she was working as an undercover narcotics officer, and went to the Fine Fair Liquor and Food Store at 3357 West 16th Street in Chicago to purchase narcotics. Officer Pittman had a cellular telephone, which she kept in her pocket and used as an audio recording device, but she was unable to adjust it during the investigation. ¶ 4 Officer Pittman approached a man standing on the corner outside the store, and requested "two rocks," the street term for crack cocaine. He told her that there was a woman selling, and pointed southbound on Homan Avenue, but when they looked in that direction, they did not see this woman. Officer Pittman continued to converse with this man, and then spoke to another woman who approached them, and attempted to help Officer Pittman find a seller. The woman went into the store, and when she returned a few seconds later, she told Officer Pittman to enter the store. ¶ 5 Officer Pittman walked toward the entrance and was stopped at the door by defendant who was wearing a long-sleeved, button-down brown shirt and blue jeans. Officer Pittman asked defendant for "two crack cocaine," and handed him $20 in prerecorded funds. Defendant then went back inside the store, and when Officer Pittman attempted to follow him, he stopped her with his hand, but did not say anything. Officer Pittman waited outside the store for a minute, and informed her team members that the person who took her money was a security guard for the store. Defendant then returned, and handed her two rocks, which she placed in her pocket and walked away. When she went to the police station, she identified defendant in a photo array as the person who sold her the narcotics. She also estimated that the amount of narcotics sold to her had a street value of $49.20. ¶ 6 Officer Pittman further testified that she viewed the video surveillance tape made of this investigation, and that it is a true and accurate video of the events that transpired. The video was played in court, and she explained it showed her with the man and woman looking for a seller, then waiting for defendant after he took her money, but it does not show the narcotics transaction or defendant. She explained that it was not possible to see defendant in the doorway due to the angle that the video was taken, and noted that defendant never left the store during the transaction. ¶ 7 Officer Pittman also testified that the audio recording was a true and accurate recording of the events, and was played in court. Officer Pittman testified that the audio recorded her giving her team members a description of the person who sold her the narcotics. ¶ 8 On cross-examination, defense counsel asked the officer if she saw herself walking with a man wearing a coat at 4:44:20 in the video, and she responded, "No, sir. I'm not walking." When asked if she saw herself looking at something in her hand at 4:44:40 in the video, the officer responded, "No, sir." The officer then testified that the video jumps from 4:45:33 to 4:46:12, but that she did not know the reason for it. The officer further testified that defendant was arrested for this incident on June 3, 2010. ¶ 9 Chicago police officer Lawrence Olivares testified that at 7:50 p.m. on February 10, 2010, he went to the liquor store to ascertain the identity of the security guard at the store. He used the premise that he was checking the business licenses so as not to alert anyone to the narcotics investigation. When he entered the store, he met defendant who was wearing a brown button-down shirt and had a "gold tin and blue jeans on." Defendant told him that he was the security guard for the store, and that his shift was from 2 p.m. to midnight. ¶ 10 Sergeant Melvin Roman testified that he participated in the undercover narcotics investigation of the liquor store at 4:40 p.m. on February 10, 2010. He was in the back seat of a vehicle filming the events that transpired, and Officer Jennifer Przybylo was in the front seat of that vehicle, which was facing the liquor store. Officer Przybylo's was to watch the transaction, and ensure that Sergeant Roman was secure in the back seat while filming. At one point, Officer Przybylo alerted Sergeant Roman that someone was paying particular attention to their vehicle so he turned off the recording device, and ducked. Sergeant Roman explained that the gap in the video was the time period when he had to turn off the camera. When the video resumed, it depicted Officer Pittman leaving the scene. ¶ 11 Sergeant Roman testified that he did not see defendant during the surveillance, and that he had no view of the door of the liquor store from the location where he was filming. He explained that he did not move during the surveillance because he found a spot to "blend in," and did not want to place himself or Officer Pittman in danger. Sergeant Roman further noted that Officers John Gonzalez, Rosa Elizonda, Joseph Watson and David Torres were part of his surveillance team, but did not necessarily observe the transaction. ¶ 12 Officer Ricardo Mata testified that he, along with his partners Officers Mark Eldridge, Przybylo, and Pittman, and Sergeant Roman, and several other officers, were working on the narcotics investigation of the liquor store. When he returned to the police station after the investigation, Officer Pittman provided him with the narcotics sold to her, and he inventoried them. Officer Mata did not list defendant's name on the inventory sheet for the narcotics which was sent to the Illinois State Police crime lab because it was an ongoing investigation, and he was required to keep it confidential. He did list defendant's name in his supplementary report which was not sent to the crime lab. Officer Mata further testified that he has never submitted drugs for fingerprinting, and did not do so in this case. ¶ 13 Officer Mata further testified that defendant was not arrested on February 10, 2010, for the safety of the undercover officers, and because it would have compromised the ongoing investigation. When defendant was arrested on June 3, 2010, he had four hundred five dollar bills on his person. ¶ 14 Forensic scientist Dori Tennant testified that she tested the recovered narcotics, which were positive for cocaine. Robert Bresnahan testified that he was an investigator for the Cook County State's Attorney's Office, and he measured the distance from the liquor store to the nearby school at 373 feet. ¶ 15 At the close of evidence, the jury found defendant guilty of delivery of a controlled substance within 1,000 feet of a school. Defendant now appeals from that judgment. ¶ 16 Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of delivery of a controlled substance where he does not appear on the video or audio surveillance recordings, and no narcotics or prerecorded funds were found on him. He also maintains that Officer Pitman's testimony contained several inconsistencies and improbabilities and was unworthy of belief. ¶ 17 When defendant challenges the sufficiency of the evidence to sustain his conviction, the proper standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004). This standard recognizes the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences therefrom. People v. Campbell, 146 Ill. 2d 363, 375 (1992). A criminal conviction will be reversed only if the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. Campbell, 146 Ill. 2d at 375. For the reasons that follow, we do not find this to be such a case. ¶ 18 Here, the State's evidence demonstrated that the named officers were involved in an under-cover narcotics investigation which included the food and liquor store, which measured 373 feet from a school. Officer Pittman testified that she was the only officer who talked to a woman outside this store about finding someone to sell her narcotics. This woman went inside the store, and defendant came to the door but did not step outside. Officer Pittman asked him for two rocks of cocaine, and handed him $20 in prerecorded funds. When she attempted to follow defendant inside the store, he directed her not to follow by raising his palm toward her. He then went inside the store, returned to the door and handed her two rocks, which subsequently tested positive for cocaine. ¶ 19 The testimony of a single officer, standing alone, is sufficient to convict (People v. Loferski, 235 Ill. App. 3d 675, 682 (1992)); and here, the testimony provided by Officer Pittman was, alone, sufficient for the trier of fact to conclude that defendant was proved guilty of delivery of a controlled substance beyond a reasonable doubt, as charged. ¶ 20 Defendant, however, contends that it strains credulity that with both video and audio recordings being made, there was no trace of him on either. Where flaws in the testimony exist, it is the responsibility of the trier of fact to decide how these inconsistencies affect the credibility of the testimony as a whole. People v. Harden, 2011 IL App (1st) 092309, ¶37. The record, here, shows that Sergeant Roman testified that he could not see the door from his viewing position, and Officer Pittman explained that defendant stayed in the doorway and never stepped outside of the store during the transaction. In addition, Officer Pittman testified that defendant did not speak during the transaction, that he used only hand movements and silently reacted to her requests, thus, providing a reason for the absence of defendant's voice on the audio recording. The trier of fact could reasonably accept these explanations for the technical gaps as true (Harden, ¶36), and insufficient to raise a reasonable doubt of defendant's guilt. ¶ 21 Defendant further contends that Officer Pittman's testimony was unworthy of belief because she was uncooperative during cross-examination when she stated that the video did not show her walking with a man in a coat or looking down at her hand at specifically noted times by defendant. Although the video shows the officer taking a couple of steps at the designated times, it is unclear from the video whether the officer looked down. Furthermore, any of these alleged inconsistencies in the officer's testimony or demeanor, as cited by defendant, were collateral to the central issue, namely, the identity of defendant as the drug dealer, and do not compel this court to find that the evidence was so unsatisfactory as to raise a reasonable doubt as to his guilt. People v. Bofman, 283 Ill. App. 3d 546, 553 (1996). ¶ 22 Defendant also takes issue with the fact that no fingerprint testing was done to connect him to the narcotics, and that no narcotics or prerecorded funds were found on him. No physical evidence is required to corroborate an officer's testimony (People v. Clarke, 391 Ill. App. 3d 596, 610 (2009)); however, and, as noted, defendant was arrested four months after the transaction, and would not be expected to have the prerecorded funds on his person at the time of his arrest. In addition, as Officer Mata testified, he has never submitted narcotics for fingerprinting, and the absence of the same in this case does not raise a reasonable doubt of defendant's guilt. ¶ 23 Defendant also contends that certain facts did "not make any logical sense" undermining the officers' testimony. He points to the fact that the police used prerecorded funds in an ongoing investigation, that the amount of money paid for the narcotics was less than its value, and that it did not make sense for Officer Matta to keep the name of the dealer confidential from the crime lab. These matters are also collateral to the issue of whether defendant delivered narcotics to Officer Pittman. Harden, ¶38. Furthermore, these arguments concern the credibility of the witnesses, a matter within the purview of the trier of fact. People v. Berland, 74 Ill. 2d 286, 305-06 (1978); People v. Llanos, 288 Ill. App. 3d 592, 597 (1997). We find no reason to disturb the credibility determinations made by the trier of fact (Campbell, 146 Ill. 2d at 375; Berland, 74 Ill. 2d at 306-07), on the relevant issues which proved the elements of the offense beyond a reasonable doubt (Harden, ¶38). ¶ 24 Defendant, nonetheless, relies on People v. Johnson, 191 Ill. App. 3d 940, 946-47 (1989), in asserting that Officer Pittman's uncorroborated and questionable testimony was insufficient to sustain his conviction where none of the other surveillance officers saw him on the scene or testified, and the arrest occurred months after the transaction. In Johnson, 191 Ill. App. 3d at 947, defendant's conviction for delivery of a controlled substance was overturned on a finding that the narcotic agent's testimony was insufficient to sustain his conviction. The agent in that case did not explain the lapse of one year and four months between the transaction and accusation, or the lapse of two weeks in receiving the narcotics and bringing it to the crime lab, and why he never brought in the slip of paper defendant gave him listing his name and number to corroborate his testimony. The State also did not explain why it did not produce the informant who assisted with the investigation, or the 11 other agents where it asserted in closing that it was probable and likely that the other officers saw the manner in which the delivery took place. Johnson, 191 Ill. App. 3d at 945-47. In addition, defendant testified, unrebutted, that the agent threatened to bring charges against him unless he became an informant. Johnson, 191 Ill. App. 3d at 947. ¶ 25 Here, by contrast, there was only a four-month delay between the act and arrest, and the officer explained that it was occasioned by the fact that it was part of an ongoing investigation. In addition, Sergeant Roman testified that the other surveillance officers did not necessarily view the transaction, and that he did not view it because he could not see the doorway from his surveillance position, and could not move due to the risk of jeopardizing his safety and that of Officer Pittman. Further evidence showed that defendant did not speak during the transaction, thus providing an explanation for why his voice was not heard on the video or the audio. For these reasons, we find Johnson factually distinguishable from the case at bar, and affirm the judgment of the circuit court of Cook County. ¶ 26 Defendant next contends that the three-year term of MSR that attached to his Class X sentence should be reduced to two years because he was convicted of a Class 1 felony offense. He concedes that he failed to preserve the issue for review (People v. Enoch, 122 Ill. 2d 176, 186 (1988)), but claims, citing People v. Arna, 168 Ill. 2d 107, 113 (1995), that it is not forfeited because his sentence is void. Although a void sentence can be challenged at any time, we review the sentence to assess whether it is actually void. People v. Balle, 379 Ill. App. 3d 146, 151 (2008). For the reasons that follow, we find that it is not. ¶ 27 Section 5-8-1(d) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(d) (West 2010)) provides that the MSR term for a Class X felony is three years and two years for a Class 1 felony. Relying on People v. Pullen, 192 Ill. 2d 36 (2000), defendant maintains that he is only subject to a two-year term of MSR because he was convicted of a Class 1 felony offense. ¶ 28 Pullen, however, has been fully addressed by this court and found not to change the conclusion that defendants sentenced as Class X offenders shall receive the same three-year MSR term imposed on defendants convicted of Class X felonies. People v. McKinney, 399 Ill. App. 3d 77, 82-83 (2010); People v. Lee, 397 Ill. App. 3d 1067, 1072-73 (2010); accord People v. Rutledge, 409 Ill. App. 3d 22, 26 (2011). We agree with these decisions, and likewise conclude that the three-year MSR term was correctly entered in this case. ¶ 29 We also observe that the plain language of the MSR statute does not indicate that the MSR term in this case should be two years (McKinney, 399 Ill. App. 3d at 82), and further, that there is no ambiguity in sections 5-8-1 and 5-4.5-95(b) of the Code (730 ILCS 5/5-8-1, 5-4.5-95(b) (West 2010)), which can be read together in a consistent and harmonious manner (Lee, 397 Ill. App. 3d at 1069-70, 1073). ¶ 30 Accordingly, we affirm the judgment of the circuit court of Cook County.