People v. Tune ( 2020 )

2020 IL App (2d) 170986-UNo. 2-17-0986
Order filed May 29, 2020
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of DeKalb County.
Plaintiff-Appellee, )
)
v. ) No. 17-CF-14
)
MICHAEL TUNE, ) Honorable
) Robin J. Stuckert,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Birkett and Justice Bridges concurred in the judgment.
ORDER
¶1 Held: Evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt;
failure to qualify police officer as expert before he gave expert testimony was
harmless; admission of other-crimes evidence was neither error, plain error nor
ineffective assistance of counsel.
¶2 I. INTRODUCTION
¶3 Defendant, Michael Tune, was convicted of one count of unlawful possession of a
controlled substance following a jury trial in the circuit court of DeKalb County (he was also
convicted of simple possession, which merged into the other count of which he was convicted).
He now appeals. For the reasons that follow, we affirm.
2020 IL App (2d) 170986-U¶4 II. BACKGROUND
¶5 On January 7, 2017, defendant was arrested in the entryway of an apartment building (the
Gideon Court Apartments) where he had come to meet with an undercover police officer. The
police recovered 0.3 grams of cocaine from defendant. They also recovered 5.29 grams of cocaine
from Marcella Jasso, who had driven defendant to the apartment complex and was waiting in a
parked car.
¶6 Defendant was charged with four counts based on this incident. Count 1 charged defendant
with possessing with intent to deliver more than 1 gram but less than 15 grams of cocaine within
1000 feet of a school. Count 2 charged defendant with possessing with intent to deliver more than
5 grams but less than 15 grams of cocaine. The third count alleged that defendant possessed “any
amount of a substance containing cocaine.” Count 4 charged possession of any amount of cocaine
with intent to deliver. Defendant was convicted of the latter two counts, but acquitted of the former
two.
¶7 Prior to trial, defendant moved to suppress a statement he made following his arrest. At
the suppression hearing, Sergeant Jeff Weese, of the DeKalb Police Department testified that he
participated in defendant’s arrest on January 7, 2017. Defendant had an outstanding warrant. He
searched defendant and found a small plastic baggy stuck to defendant’s sweaty forehead
containing a white substance that appeared to be cocaine. Defendant was transported to the
DeKalb police station and interrogated. Weese read defendant his Miranda rights, and defendant
initialed next to each right and signed the bottom of the form. Weese signed as a witness. Weese
asked defendant why he was at the Gideon Court Apartments. Defendant stated that he was there
to sell cocaine. Defendant told Weese that the cocaine belonged to the person out in the car. She
had driven him there and asked defendant to sell the cocaine to a guy in the apartment. Defendant
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2020 IL App (2d) 170986-Ustated that he had never met the buyer before. On cross-examination, Weese stated that he did not
believe defendant was given Miranda warnings at the scene of the arrest. Weese acknowledged
that he had asked defendant what was in the baggy he recovered while still at the scene.
Defendant’s interrogation was not recorded, though recording equipment was available. Weese
agreed that defendant was in custody. While still at the scene of the arrest, defendant asked about
working for the police. Weese stated that he did not initiate that conversation. Weese was unsure
whether that subject was discussed further at the police station, though he felt it likely was. He
did not mention it in his police report because it is “very, very sensitive information.” Such
information is typically excluded from police reports.
¶8 Defendant then testified that when the officers first arrested him, they did not Mirandize
him, but nevertheless questioned him about why he was at the apartment building. They also asked
about who was calling on defendant’s phone. He was transported to the police station and placed
in an interview room. After 45 minutes to an hour, Weese came in. They discussed “that he might
be able to get [defendant] out of [there] tonight if [he] cooperated with them and signed a contract
but before [they] could go any further with that [defendant] had to sign [a] Miranda waiver.”
Defendant then signed the waiver form. Weese then told defendant he had to admit that he was at
the apartment complex to sell the cocaine the police recovered from defendant. Another officer
asked defendant to sign a waiver for a search of his cell phone. Defendant was told that the police
could not help him unless he cooperated completely. Defendant told Weese he would only accept
responsibility for the drugs that were on him, and Weese told defendant he had to accept
responsibility for all of the drugs. Weese then terminated the interrogation. Weese returned and
told defendant he had to take responsibility for everything. Defendant then admitted that he was
at the apartment complex to sell cocaine to a person he had never met before, but the cocaine did
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2020 IL App (2d) 170986-Unot belong to him, rather, it belonged to Jasso (the female in the car waiting outside). It was his
understanding that the charges would be reduced if he “completed some kind of contract” that
Weese was talking about.
¶9 Weese testified in rebuttal. He stated he made no promises to defendant that he would be
able to help defendant if defendant cooperated. However, he acknowledged discussing with
defendant the possibility of defendant being a confidential informant.
¶ 10 Defendant argued that his waiver of his Miranda rights was not voluntary because it was
made in contemplation of an offer of leniency for working for the police. The trial court rejected
this argument and found that defendant knowingly and intelligently waived his rights.
¶ 11 A jury trial commenced on September 12, 2017. During its opening statement, the State
informed the jury that the investigation of defendant began on December 30, 2016, when officers
received information that defendant was selling drugs in the DeKalb area. The prosecutor also
told the jury that defendant was arrested pursuant to an open warrant. No objection was interposed
at either point.
¶ 12 The first witness to testify for the State was Detective Sonny Streit. Streit testified that he
had been a police officer for over six years. He attended the police academy and has had
“subsequent training in drugs, narcotics, sales; things of that nature.” On January 7, 2017, he was
assigned to the targeted response unit, which focusses on “narcotics, weapons, street gangs,
parolees[,] and sex offenders.” In December 2016, Streit testified, he received information from
another detective that defendant was “selling cocaine in DeKalb.” Defense counsel objected to
this testimony as hearsay, and the State responded that it was not being offered for the truth of the
matter. The trial court overruled the objection.
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2020 IL App (2d) 170986-U¶ 13 Streit found defendant’s telephone number on defendant’s Facebook page. He sent a
message to defendant’s number, asking, “Do you got that girl?” The actual message read, “U got
that grl.” Streit explained that “girl” is slang for cocaine. No objection was made to this testimony.
Streit added, “It’s a slang term that we use for [sic] people we’ve arrested in the past, things that
we’ve seen on Facebook and other social media websites and urban dictionary.” Defendant
replied, “Who is this, but yes” (the actual message read “Whi is this” and “But yeah”). These
messages were sent on December 31, 2016. Streit stated that he would text in incomplete sentences
“to sound younger and not sound like a police officer.”
¶ 14 On January 5, 2017, Streit texted defendant, “U good?” He intended this to mean, “Do you
have what I was looking for earlier.” Defendant responded, “Who is this.” Streit texted, “Jake”
and then “Gt ur num at stanlys last week nd sum girl.” Subsequently, defendant asked, “R the one
talkin tattoos and shit with me.” Two days later (January 7 at about 9:30 p.m.), Streit answered,
“ya.” Streit then said, “Stil nd if u gud” and “My girl is askin bout wht u would chrge for a tat
party.” Defendant texted, “We can do both.” Streit asked if they could do the party in a couple of
weeks and if a Friday would be acceptable. Defendant responded affirmatively, and Streit stated
he would let defendant know after Streit spoke with his girlfriend.
¶ 15 Streit testified that they then set up the transaction. Streit stated he wanted to pick up the
drugs tonight. He told defendant he was looking for a ride, and defendant stated he could come to
Streit. Streit told defendant he could meet him, but he could not leave his apartment. Defendant
asked Streit how much money he was going to spend, and Streit told him $50. Defendant called
Streit when he arrived at the apartment complex. Streit said he would come down to the lobby.
Other officers identified and arrested defendant. Streit explained, “We knew we had an active
warrant, criminal arrest warrant for his arrest.” No objection was made to this testimony. After
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2020 IL App (2d) 170986-Uthe other officers confronted defendant, Streit arrived and called the telephone number that he had
been using to contact defendant. A phone in defendant’s possession rung. Defendant gave
permission to search the phone at the police station, and a series of texts corresponding to those
sent from Streit’s phone was discovered.
¶ 16 Streit approached the car that had transported defendant to the apartment complex and
made contact with Marcella Jasso. She handed Streit several bags that she had removed from the
pocket of her jacket. They contained a white powder. Streit testified that when he attempts to
make a drug transaction, neither he nor the person he is dealing with typically refers to the drug at
issue by its name.
¶ 17 On cross-examination, Streit agreed that it was important “to be accurate and include all
details” in a police report. However, he acknowledged that his report does not state that “girl” is
slang for cocaine. The following colloquy then took place:
“Q. You testified that you received information Mr. Tune was selling cocaine in DeKalb.
Do you have any specific instances when he was selling cocaine in DeKalb?
A. That information was provided by Detective Erickson and Sergeant Weese.
Q. Did they provide you any specific instances of Mr. Tune selling cocaine?
A. Just the information provided by the cooperating subjects.
Q. You don’t know who these subjects are?
A. I do.
Q. Did you speak with these subjects?
A. One of them, yes.
Q. Did that subject provide you information specifically about cocaine deals, sales of
cocaine from Mr. Tune?
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2020 IL App (2d) 170986-UA. Yes.”
Streit agreed that this information did not appear in his report. Streit testified that all of the cocaine
except for the one packet found on defendant’s forehead was recovered from Jasso’s person.
¶ 18 The State then called Marcella Jasso. In the early evening hours of January 7, 2017, Jasso
gave defendant a ride to Elgin. They went to a McDonald’s and then returned to DeKalb. On the
way back, defendant told Jasso that he had gone to Elgin to pick up cocaine. She dropped
defendant off at his home. Jasso lived nearby. A little later, a friend called and asked if she would
drive defendant to Malta. Jasso agreed and picked up defendant. She was supposed to drive him
to a gas station. On the way, defendant asked to stop by the Gideon Court Apartments. She did
so. Defendant handed Jasso several bags and said, “Here, if anything happens, *** take care of
this.” Defendant went inside. When asked whether defendant told her what he was doing at the
apartment complex, Jasso stated, “No, I don’t—actually I think he did tell me he had to go make
a deal.” Jasso drove to the end of the parking lot, turned around, and returned to pick up defendant.
A police officer approached her car. She removed the cocaine defendant had given her from her
pocket and gave it to the officer.
¶ 19 Jasso testified that she made a deal with the State. As part of the deal, she is required to
testify truthfully. She was originally charged with possession with intent to deliver, which is a
class one felony. Pursuant to the deal, she is pleading guilty to simple possession, a class four
felony.
¶ 20 Jasso testified that she was arrested and transported to the police station. She gave the
police a small baggie of cocaine that had been in her bra. Defendant had given it to her as payment
for the ride. Jasso stated that she had forgotten about it earlier.
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2020 IL App (2d) 170986-U¶ 21 On cross-examination, Jasso stated that she had never met defendant before January 7,
2017. She was familiar with where he lived from dropping other people off there. She
acknowledged that the cocaine in her bra was for her personal use. She admitted to using cocaine,
but stated that she was not a heavy user. Defendant also gave her $10 for gas on the way to Elgin.
Jasso agreed that the deal she made with the State would result in her not having a criminal record
if she complied with it.
¶ 22 The State’s final witness was Jeff Weese, a sergeant with the DeKalb Police Department.
In January 2017, he was part of the targeted response unit, which focused mainly on narcotics. At
about 9:24 p.m., he was in the parking lot at the Gideon Court Apartments. Other officers had
arranged to have an individual (defendant) deliver cocaine to that location. Weese determined that
there was an outstanding warrant for defendant’s arrest (no objection was interposed to this
testimony). Shortly after they arrived, defendant was observed entering the vestibule of one of the
apartment buildings. They made contact with defendant, arrested him, and placed him in
handcuffs. Defendant’s phone rang, and Weese took possession of it. He recognized the number
that was calling the phone as coming from a phone that Streit was using. Defendant was searched
and a baggie of cocaine was discovered stuck to his sweaty forehead. Weese then assisted in the
search of the car Jasso was driving. Defendant was transported to the police station.
¶ 23 At the station, Weese read defendant his Miranda rights. Defendant signed a waiver form.
Defendant then told Weese that he had gotten a ride from a girl to the Gideon Court Apartments.
He was there to sell cocaine to a man he had never met before. All of the cocaine belonged to
Jasso.
¶ 24 On cross-examination, Weese acknowledged that less than one gram of cocaine was
recovered from defendant while over five grams were recovered from Jasso. No fingerprints or
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2020 IL App (2d) 170986-UDNA linked defendant to the cocaine recovered from Jasso. At one point, defense counsel asked,
“Now, you testified that [defendant] was delivering cocaine in DeKalb; is that correct?” Counsel
then went on to ask whether Weese was aware of any specific such instances. Weese replied that
he was not.
¶ 25 On redirect-examination, Weese testified that it was not common practice to test drugs for
fingerprints or DNA. Further, it was not unusual to receive a tip that did not contain a lot of
specific information. On recross-examination, Weese acknowledged that they had, “once or
twice” tested drugs for fingerprints or DNA in a “drug-induced homicide.” The State then rested.
¶ 26 Defendant testified in his own behalf. He acknowledged that he is a convicted felon. He
has been convicted of theft, retail theft, and possession of a stolen motor vehicle. These
convictions occurred between 4 and 10 years ago. He recalled the exchange of texts between him
and Streit. Defendant stated that Streit had identified himself as a college student defendant had
met the week before at a bar. They were speaking about tattoos. Defendant stated that almost all
the messages reference tattoos. Defendant has been tattooing for 10 years and has worked at a
tattoo shop in Elgin. He also did house calls. Defendant noted that not one of the text messages
mentioned cocaine. No cost or quantity is mentioned.
¶ 27 Defendant stated that while he did not know anyone named Jake, he met college students
all the time, and the person texting him had stated they had met the weekend before. A tattoo party
is when a group of usually five or more people get together and defendant tattoos all night.
Usually, he would receive a $100 deposit.
¶ 28 At about 7 p.m. on January 7, 2017, Jasso came to pick up defendant. A mutual friend had
arranged for her to drive defendant to pick up his wallet from someone in Elgin. Jasso’s daughter
was in the car as well. She was about 10 years old. They drove to a McDonald’s in Elgin, and
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2020 IL App (2d) 170986-Udefendant went inside for 5 to 10 minutes. Defendant bought Jasso’s daughter something to eat.
On the way back, defendant asked Jasso “if there was anybody I could purchase anything [from].”
She replied, “Absolutely.” Defendant was going to Rochelle. A friend asked Jasso if she could
bring defendant halfway, and Jasso agreed. Jasso picked up defendant about 9 p.m. Defendant
got a text message and asked to stop at the Gideon Court Apartments. Defendant explained that
he was not sure what the text message was referencing and that Streit’s messages were confusing.
He stated that Streit had called defendant “a couple times and he wanted to get a tattoo that night
and by the time we got back from Elgin it just took too long.” Therefore, defendant went to the
Gideon Court Apartments “to try to make an appointment with him.” Defendant went inside and
was arrested. He admitted that he had cocaine in his possession and testified that he had gotten it
from Jasso. Defendant did not know about the other cocaine Jasso had in her possession.
¶ 29 Defendant testified that after he was arrested, Weese told him that he could work as a
confidential informant and that Weese could help him out. Weese told defendant that to do so,
defendant would have to admit that he was at the Gideon Court Apartments to sell drugs. At the
police station, defendant told Weese he would have to use his phone so he could respond to people.
He explained to Weese that if he did not, people might think he was in custody, and this would
impair his ability to work with the police. Defendant was told he would have to wait.
¶ 30 Weese told defendant that they had to discuss “what was going on like at that moment”
before they could discuss defendant working as a confidential informant. Weese asked defendant
to admit that the cocaine they recovered from Jasso was actually his. Defendant declined to do so.
Defendant did admit that he was at the Gideon Court Apartments to sell drugs because Weese told
him he had to before Weese could help him. Defendant added that he was not actually at the
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2020 IL App (2d) 170986-Uapartment complex to deliver the cocaine that was in his possession. After defendant refused to
accept responsibility for the cocaine recovered from Jasso, Weese said that they were done.
¶ 31 On cross-examination, defendant stated that when he told Streit they could do both, he was
referring to a tattoo for Streit and a tattoo party later. Further, when Streit asked defendant if he
was good, defendant thought he was asking whether defendant was good at tattooing. Defendant
also thought Streit was talking about getting a tattoo when he asked, “any chance I can grab
tonight.” Defendant further asserted that when he replied that he was “trying to get a ride to go
get it,” the word “it” referred to his tattoo equipment. Defendant acknowledged that though he
was coerced to admit he was at Gideon Court to sell drugs, he never admitted the drugs recovered
from Jasso were his despite Weese wanting him to admit that they were.
¶ 32 On redirect-examination, defendant clarified that he did not actually know what the
ambiguous texts he was receiving referred to. He did not believe they were discussing cocaine.
Defendant was not familiar with the policies of the DeKalb police regarding confidential
informants. He never admitted the cocaine recovered from Jasso belonged to him.
¶ 33 The State then called Weese in rebuttal. When defendant was first arrested, he brought up
the topic of working for the police. Defendant stated that he had to leave so no one would see him
with the police. Weese told defendant they had to go to the police station first. Weese never told
defendant that he had to take responsibility for the cocaine recovered that night before he could
work as a confidential informant. Weese did not document these discussions in his police report
because the information was sensitive and police reports could be obtained by the public in certain
circumstances. Weese acknowledged that when defendant raised the subject of working for the
police at the police station, Weese told him they had to first address defendant’s Miranda warnings
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2020 IL App (2d) 170986-Uand “do an interview about this specific incident.” Weese never threatened defendant or told him
he had to admit to anything. Ultimately, defendant never worked as a confidential informant.
¶ 34 Defendant was convicted of possession of cocaine and possession of cocaine with intent to
deliver (which merged) and sentenced to 8 1/2 years’ imprisonment. Defense counsel did not file
a posttrial motion for a new trial. This appeal followed.
¶ 35 III. ANALYSIS
¶ 36 On appeal, defendant first challenges the sufficiency of the evidence on which his
conviction is based. He further argues that he was denied a fair trial because: (1) Streit was allowed
to testify as a lay witness while relying on his specialized knowledge and training; (2) evidence
that the police had learned defendant was dealing drugs in DeKalb should not have been allowed;
and (3) evidence that defendant was arrested on an unrelated warrant should not have been
permitted.
¶ 37 A. SUFFICIENCY OF THE EVIDENCE
¶ 38 The due process clause requires that a criminal conviction rest on proof beyond a
reasonable doubt of every fact necessary to constitute the charged offense. People v. Cunningham,
212 Ill. 2d 274, 278 (2004). When a defendant asserts that the evidence does not support a criminal
conviction, a reviewing court, viewing the evidence in the light most favorable to the State, must
ascertain whether any rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Id. The factfinder’s decision to accept a witness’s testimony is entitled to great
deference and may be rejected only if the evidence compels a conclusion that no reasonable person
could agree with the factfinder’s decision. Id. at 280. A criminal conviction will not be set aside
unless the evidence is so unsatisfactory as to raise a reasonable doubt regarding the defendant’s
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2020 IL App (2d) 170986-Uguilt. People v. Wheeler, 226 Ill. 2d 92, 114 (2007). Keeping these standards in mind, we conclude
that the evidence against defendant was overwhelming.
¶ 39 Most importantly, defendant confessed. While defendant contends that it was coerced,
several considerations undermine this claim. First, Weese testified positively and credibly that he
never threatened defendant or told him that he had to take responsibility for the cocaine recovered
that night before he could work as a confidential informant. It is true that defendant offered
contradictory testimony on this point; however, he fails to establish that no reasonable person could
accept Weese’s testimony over his. As such, we must defer to the factfinder here. Id. Further, we
note that defendant did not admit that the cocaine recovered from Jasso was his despite his claim
that Weese wanted him to admit to this as well. That defendant’s will was not overborn on this
point provides a reasonable basis for the trier of fact to reject his claim that his will was generally
overborn. See People v. Kincaid, 87 Ill. 2d 107, 120 (1981) (“Additionally, it seems extremely
unlikely that, had the defendant’s will been overborne, he would have been able, first, to deny any
wrongdoing with the alleged victim, then to admit, in a very limited way, any wrongdoing.”).
Furthermore, we note that the interrogation was not particularly long and defendant signed a
Miranda waiver, both factors that militate in favor of deeming a statement voluntary. See People
v. Phillips, 2018 IL App (3d) 130270, ¶ 46 (Miranda waiver); People v. Lash, 252 Ill. App. 3d
239, 246 (1993) (duration of interrogation).
¶ 40 Second, the trier of fact could have reasonably believed Streit’s testimony that the
exchange of texts between him and defendant documented a drug transaction over defendant’s
claim that he believed they were negotiating a tattooing party or session. Streit initiated contact
with defendant by texting “U got that grl,” explaining that “girl” is slang for cocaine. Thus, this
was consistent with a drug transaction; it is not apparent how it would be consistent with setting
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2020 IL App (2d) 170986-Uup a tattoo session. Later, Streit asked via text, “U good?” By this, Streit was inquiring if
defendant had available what Streit had inquired about earlier. He reiterated, ““Still nd if u gud”
and also told defendant that his girlfriend was interested in setting up a tattoo party in a few weeks.
Defendant replied that they could do both, from which it is inferable that he is referring to the
subsequent tattoo party and what Streit was asking for that day. When asked if he could get it
tonight, defendant stated he was “trying to get a ride to go get it.” At trial, defendant claimed that
by “it,” he was referring to his tattoo equipment. However, this is inconsistent with his testimony
that he was simply going to meet with Streit to set up an appointment for later and hopefully get
Streit to give him a deposit. Moreover, when defendant did get to the Gideon Court Apartments,
he did not have his tattoo equipment with him, but he did have cocaine in his possession. In other
words, there were ample bases for the jury to prefer Streit’s testimony to defendant’s attempted
explanation.
¶ 41 We also note that Jasso’s testimony implicated defendant. She described driving defendant
to Elgin. Defendant told her they had gone there to pick up cocaine. Later that day, she was giving
defendant a ride to Malta. On the way, defendant asked to stop at Gideon Court. He handed her
several bags containing cocaine and went inside. When asked whether defendant told her what he
was doing at the apartment complex, Jasso stated, “No, I don’t—actually I think he did tell me he
had to go make a deal.” Defendant claims that the jury rejected Jasso’s testimony because it did
not find him guilty of either count involving the cocaine recovered from Jasso. Counts 1 and 2
alleged possession with intent to deliver more than a gram of cocaine, which would have required
the jury to have determined that defendant possessed the cocaine recovered from Jasso. However,
the jury could have based its findings on the intent element. Since, on Jasso’s testimony, defendant
left this amount in the car when he went to make the deal, the jury could have had a reasonable
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2020 IL App (2d) 170986-Udoubt as to defendant’s intent to deliver that portion of the cocaine. The third count charged
defendant with possession of any amount of cocaine, so it is unclear whether the jury found that
defendant possessed only the cocaine recovered directly from him or the cocaine recovered from
Jasso as well. Either scenario would be consistent with a conviction on count 3. The conviction
on count 4 would be consistent with finding intent only with respect to the cocaine defendant
actually brought to the transaction. Thus, the record does not conclusively establish that the jury
rejected Jasso’s testimony. As we must construe the record in the light most favorable to the State
(Cunningham, 212 Ill. 2d at 278), we must give it credit here. Defendant provides us with no
compelling reason for us to conclude that the trier of fact should have rejected Jasso’s testimony.
The mere fact that she made a deal with the State for her testimony is insufficient. See People v.
Campbell, 275 Ill. App. 3d 993, 998 (1995).
¶ 42 Defendant notes that many of the classical indicia of intent are lacking in this case, such
as: “1) the quantity of the controlled substance when it is too large to be viewed as being for
personal consumption; 2) the high degree of purity of drugs; 3) the possession of weapons; 4) the
possession of large amounts of cash; 5) the possession of police scanners, beepers, or cellular
telephones; 6) the possession of drug paraphernalia; and 7) the manner in which the drugs are
packaged.” See People v. Robinson, 167 Ill. 2d 397, 408 (1995). Defendant points out that outside
of the fact that he possessed a cell phone (admittedly not a particularly compelling fact in this day
and age), none of these factors are present. However, such circumstantial evidence loses
considerable probative value where direct evidence exists, such as defendant’s confession. We do
not regard the absence of such evidence as significant here.
¶ 43 In short, we find the evidence more than ample to support defendant’s conviction.
¶ 44 B. ALLEGED TRIAL ERRORS
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2020 IL App (2d) 170986-U¶ 45 Defendant next complains of three alleged errors during his trial. First, he contends that
Streit was allowed to testify based on his specialized knowledge despite never being qualified as
an expert. Second, defendant complains of the State introducing evidence that the police had heard
defendant was dealing drugs in the DeKalb area. Third, he argues that it was error to allow
testimony that he was arrested on an open warrant. The admission of evidence is a matter lying
within the discretion of the trial court. People v. Becker, 239 Ill. 2d 215, 234 (2010). Accordingly,
we will only disturb these decisions if the trial court abused its discretion, that is, if no reasonable
person could agree with the trial court. Id.¶ 46 Defendant acknowledged that, since no posttrial motion was filed, none of these errors are
properly preserved and asks that we review them as plain error. The plain-error doctrine permits
a court of review to address an error that has not been properly preserved in certain circumstances.
People v. Herron, 215 Ill. 2d 167, 178 (2005). Review is permitted where the evidence is so
closely balanced that the guilty verdict may have resulted from the error rather than the evidence.
Id. As explained above, the evidence in this case was overwhelming, so the first prong does not
apply. Alternately, it is allowed “where the error is so serious that the defendant was denied a
substantial right, and thus a fair trial.” Id. at 179. The first step in determining whether plain-error
occurred is to ascertain whether any error occurred in the first place. People v. Lewis, 234 Ill. 2d
32, 43 (2009). We thus turn to defendant’s arguments.
¶ 47 1. Streit’s Alleged Opinion Testimony
¶ 48 Defendant complains that Streit was permitted to testify as to the meaning of various texts
exchanged between him and defendant. Specifically, he argues that Streit’s testimony that “girl”
meant cocaine was based on Streit’s specialized knowledge. Further, defendant complains of
Streit’s testimony that “U good?” and “Stil nd if u gud?” were inquiries as to whether defendant
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2020 IL App (2d) 170986-Uhad cocaine available to sell. Defendant also points to Streit’s interpretation of “Ne chance I cn
grb 2nite?” as a request to buy cocaine that evening. Streit was not offered as an expert by the
State.
¶ 49 Defendant points out that lay testimony is limited to opinions and inferences that are “not
based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011).
According to defendant, Streit’s understanding of drug jargon constitutes such specialized
knowledge and is therefore beyond the scope of lay testimony.
¶ 50 Defendant’s argument is untenable in light of the supreme court’s decision in People v.
Grant, 2013 IL 112734. There, the court considered a police officer’s testimony that “dro” was
slang for high-grade marijuana. Id. ¶ 13. It noted that the defendant did not object to this testimony
and added: “This is not surprising. Courts in other jurisdictions allow such testimony by police
officers.” It then cited approvingly State v. Mason, 2004—Ohio—4896, ¶¶ 25-28, where “the
court held there was no error in allowing a police detective to testify regarding the meaning of the
term ‘40,’ which meant ‘ “$40 worth of crack cocaine.” ’ ” Defendant suggests that Grant is
distinguishable in that it involved a probable cause determination and the issue of whether the
officer’s testimony was improper was not actually before the court. Assuming this statement is
dictum, it clearly is of the judicial sort (see Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217,
236 (2010)), as it is extensively discussed and supported by citation to several authorities.
Accordingly, it provides guidance here. Thus, in accordance with Grant, Streit’s testimony was
not improper.
¶ 51 Additionally, the First District addressed a highly-analogous situation in People v. Loggins,
2019 IL App (1st) 160482. There, a police officer opined as to “the uses of plastic bags, blenders,
and inositol in the drug trade.” Id. ¶ 76. As here, no objection was interposed. In the course of
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2020 IL App (2d) 170986-Uresolving the case, the court observed, “[I]f the officer formed an opinion as to the meaning of the
code words by relying on his or her experience in drug investigations more broadly, it is an expert
opinion.” Id. ¶ 91. It continued, “In other words, it is an expert opinion if the officer knows, from
investigating other transactions or conspiracies, that certain words, while seemingly innocuous to
the untrained ear, generally bear hidden meanings when they are used in certain situations.”
(Emphasis in original.) Id. The court determined that the opinions offered by the officer
constituted expert testimony and the officer should have been qualified as an expert before the
testimony was allowed. Id. ¶ 98.
¶ 52 The Loggins court went on to find that the error was harmless. It observed, “When
testimony is improperly admitted as a lay opinion, the error is harmless if the witness was, in fact,
qualified as an expert, and thus would have been accepted as an expert by the trial court if so
tendered.” Id. ¶ 110. It then noted that the officer rendering the opinions had 5 years of experience
as a narcotics investigator and had been a police officer for 12 years. Id. ¶ 111. He had completed
a course at the police academy in narcotics investigation and had participated in annual field
training. Id. The Loggins court found that had the officer been tendered as an expert, the trial
court would have accepted him. Such is the case here. Streit testified that he majored in law
enforcement at Western Illinois University and then attended the police academy in Champaign.
He passed a number of tests to become a police officer, and he underwent subsequent training in
drugs, delivery, sales and “things of that nature.” He was assigned to a unit that focused “on
primarily narcotics, weapons, street gangs, parolees and sex offenders.” While Streit’s training
and experiences do not appear to be as extensive as the officer testifying in Loggins, they are
nonetheless substantial, and we perceive no reasonable possibility that the trial court would not
have accepted him as an expert on the subject of drug transactions. “In Illinois, generally, an
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2020 IL App (2d) 170986-Uindividual will be permitted to testify as an expert if his experience and qualifications afford him
knowledge which is not common to lay persons and where such testimony will aid the trier of fact
in reaching its conclusion.” People v. Enis, 139 Ill. 2d 264, 288 (1990); see also Ill. R. Evid. 702
(eff. Jan. 1, 2011). Surely, the experience and education described by Streit “afford him knowledge
which is not common to lay persons.” Id. Moreover, to the extent the record is not more developed
on this subject, it is likely due to defendant’s failure to interpose a timely objection.
¶ 53 Defendant also argues that even if Streit possessed the expertise to opine on the meaning
of the terms he used in conversing with defendant via text, Streit had no way of knowing what
defendant understood those terms to mean. State of mind is generally proved by circumstantial
evidence. People v. Casler, 2019 IL App (5th) 160035, ¶ 28. Here, defendant’s understanding of
those terms can be inferred from his confession, the fact that he showed up at the designated
meeting place while possessing cocaine, and Jasso’s testimony as well as Streit’s testimony about
the meaning of the texts. That is, defendant’s behavior confirms Streit’s testimony as to the
meaning of the exchange of text messages. Streit’s testimony was but one part of a larger picture.
¶ 54 Alternatively, defendant asserts that some of what Streit interpreted for the jury was
actually common language that did not need interpretation. See United States v. Dukagjini, 326
F.3d 45, 50 (2d Cir. 2003); United States v. Cruz, 363 F.3d 187, 193-94 (2d Cir. 2004) (holding
that it was error to allow police officer to interpret the phrase “watch one’s back” to mean act as
lookout in a drug transaction). Defendant asserts, “[I]t was improper, under the Second Circuit’s
admissibility guidelines, for Streit to offer his opinion that Tune was agreeing to a drug transaction
when he sent various texts to Streit such as, ‘You still need that,’ and ‘Were you at how much
money.’ ” We fail to see how defendant was prejudiced by this. As noted in the preceding
paragraph, Streit’s testimony was but one part of a body of evidence from which the meaning of
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2020 IL App (2d) 170986-Uthese phrases could be inferred, and they, in turn, are a part of the evidence of defendant’s intent,
relative to his confession and behavior. Further, some portions of the messages (such as that “girl”
meant “cocaine”) clearly involved drug jargon.
¶ 55 In short, in light of Grant we hold that no error occurred, and, in light of Loggins, even if
it did, it was harmless.
¶ 56 2. Evidence That Defendant Was A Drug Dealer
¶ 57 Defendant next argues that the State should not have been allowed to argue and present
testimony that the investigation of defendant began when the police received information the he
was dealing drugs in the DeKalb area. The subject first arose during the State’s opening argument,
when the prosecutor stated, that the investigation of defendant began on December 30, 2016, when
officers received information that defendant was selling drugs in the DeKalb area. The State
elicited testimony of this nature from Streit. Defense counsel objected on hearsay grounds, and
the trial court overruled the objection when the State responded that it was not being offered for
the truth of the matter asserted. Defense counsel then elicited more detailed testimony during
cross-examination of Weese, specifically that the police were unaware of any specific incidences
of prior drug dealing by defendant.
¶ 58 Defendant agrees, generally, that course-of-investigation testimony constitutes an
exception to the hearsay rule. People v. Rush, 401 Ill. App. 3d 1, 15 (2010). However, he asserts,
such testimony must be limited to that which is necessary to explain the actions of the police.
People v. Edgecombe, 317 Ill. App. 3d 615, 627 (2000). Defendant then contends, “Under the
course-of-investigation exception, DeKalb officers could have testified that they spoke with
someone at the Sheriff’s Office and then decided to investigate Michael Tune.” Obviously, the
jury was aware that the investigation involved drug dealing. In essence, defendant is arguing that
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2020 IL App (2d) 170986-Uwhile it would have been proper to tell the jury “we received information and based on that
information we decided to investigate defendant for drug dealing” but improper to relay to the jury
that “we received information that defendant was dealing drugs and based on that information we
decided to investigate defendant for drug dealing.” We fail to see how the “information”
referenced in the former statement can be construed as referring to anything other than drug
activity. There is barely a distinction here. Given the equivalence between the two statements,
we cannot say that no reasonable person could agree with the trial court that this statement was
admissible.
¶ 59 Moreover, without referencing specific acts of drug dealing, we fail to see how making
explicit in the latter statement what is implicit in the former resulted in any prejudice to defendant.
Indeed, defense counsel cross-examined Weese and effectively established that there was only a
general allegation and no specific incidents of drug dealing at issue. Prejudice is an essential
component of a claim such as this. See People v. Pikes, 2013 IL 115171, ¶ 23. Moreover, harmless
error cannot rise to the level of plain error. People v. Leach, 2012 IL 111534, ¶ 141. Here, while
the better practice may have been to present this information in the manner advocated by
defendant, we are unconvinced that this resulted in any meaningful prejudice to defendant or had
an impact on the outcome of the trial.
¶ 60 We find the two cases defendant primarily relies on distinguishable. In People v. Shorty,
403 Ill. App. 3d 625 (2010) (vacated on other grounds by People v. Shorty, 239 Ill. 2d 582 (2011)),
the defendant was on trial for possessing heroin. In its opening statement, the State informed the
jury that a confidential informant told a police officer that the defendant was going to Chicago to
buy heroin later that evening. Over objection, the trial court allowed a witness to testify that the
defendant “ ‘was supposed to be making a trip to Chicago to pick up a large quantity of heroin.’ ”
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2020 IL App (2d) 170986-UId. at 627. In Shorty, the information at issue was much more detailed that what was presented in
the instant case and placed information before the jury that it otherwise would not have heard.
Conversely, here, what was presented to the jury (that the police received some sort of information
that defendant was involved in drug dealing) was readily inferable from what defendant concedes
would have been proper (that the police receive information and this caused them to undertake an
investigation of defendant for dealing drugs). Put differently, unlike this case, in Shorty additional
information was placed before the jury.
¶ 61 Defendant also relies on People v. Jura, 352 Ill. App. 3d 1080 (2004); however, that case
is similarly distinguishable. The hearsay statement in that case was the substance of a police radio
call, which contained a physical description of the defendant. Id. at 1087. No comparable
additional information was conveyed to the jury in this case.
¶ 62 Defendant briefly contends that this information constituted impermissible other-crimes
evidence. See People v. Lewis, 165 Ill. 2d 305, 346 (1995). Analyzing this issue would require a
balancing of the evidence’s probative value and prejudicial effect. People v. Illgen, 145 Ill. 2d
353, 365 (1991). Clearly, the evidence has some probative value in explaining the course of the
investigation. Further, as explained above, its prejudicial effect is minimal. As such, we do not
find this argument persuasive. To conclude, we find neither error nor prejudice.
¶ 63 3. Evidence That Defendant Was Arrested On An Open Warrant
¶ 64 Defendant further asserts that it was error to introduce testimony that he was taken into
custody on an open criminal warrant when he was arrested at the Gideon Court Apartments. This
subject was addressed by the State during its opening argument and in the testimony of both Streit
and Weese. Defendant asserts that these references to a warrant “equated to prejudicial other
crimes evidence and was unnecessary for the jury’s understanding of the case.” Defendant
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2020 IL App (2d) 170986-Ucorrectly notes that “evidence that suggests or implies that the defendant has engaged in prior
criminal activity/other-crimes evidence should not be admitted unless somehow relevant.” See
Lewis, 165 Ill. 2d at 346.
¶ 65 The State counters that this evidence was relevant to explain the circumstances of
defendant’s arrest. Indeed, explaining the circumstances of an arrest is an exception to the hearsay
rule. See People v. Tolbert, 323 Ill. App. 3d 793, 796-97 (2001). Defendant points out that the
propriety of defendant’s arrest was not before the jury and the State could have simply informed
the jury that defendant had been arrested without mentioning the reason for the arrest.
¶ 66 The State relies on People v. Fauntleroy, 224 Ill. App. 3d 140, 148 (1991), where the court
flatly held, “Reference to another crime during [the presentation of evidence concerning the
police’s investigation] is admissible if it explains the circumstances surrounding a defendant’s
arrest.” Defendant points to People v. McCray, 273 Ill. App. 3d 396, 401 (1995), which holds that
there is no general exception for the circumstances of an arrest and that the exception applies only
if the circumstances are relevant to something at issue in the case. We have no quarrel with these
legal principles.
¶ 67 The question before us then becomes, in light of the standard of review, whether no
reasonable person could agree with the trial court that the circumstances of the arrest were in some
way relevant to this case. It seems to us that the jury may have found the circumstances of
defendant’s arrest problematic in a way relevant to this case. There were intimations of
overzealousness by the police and prosecution throughout the trial. In his opening statement,
defense counsel informed the jury that Jasso had received a “sweet deal” to testify against
defendant. Defense counsel also questioned why the police did not record defendant’s
interrogation. Moreover, at trial, defendant testified to how the police allegedly pressured him into
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2020 IL App (2d) 170986-Uconfessing by telling him he could work as a confidential informant. In light of such
considerations, a reasonable person could conclude that the jury might look suspiciously on the
police arresting defendant immediately upon making contact with him rather than first searching
him and ascertaining whether he had cocaine on his person. This could be taken as evidence that
the police had made a foregone conclusion that defendant was guilty. As a reasonable person
could draw these inferences, it cannot be said that no reasonable person could agree that this
evidence was relevant. As such, no error occurred here.
¶ 68 4. Waiver
¶ 69 Finally, even if we were to agree with defendant regarding any of these purported errors,
we could not conclude that plain error occurred. As we have already noted, the evidence was
overwhelming, so it was not closely balanced. Regarding the second prong of the plain-error
inquiry, we also could not conclude that any of the alleged errors were “so serious that the
defendant was denied a substantial right, and thus a fair trial.” Herron, 215 Ill. 2d at 179. We fail
to see how the failure to qualify Streit as an expert witness when he clearly could have been could
constitutes the sort of fundamental error that could have deprived defendant of a fair trial. Cf.
People v. McNeal, 405 Ill. App. 3d 647, 673 (2010) (holding admission of expert testimony
without proper foundation did not rise to the level of plain error).
¶ 70 Defendant’s other two claims of error involve intimations that defendant was involved in
other crimes. The improper admission of other-crimes evidence can arise to the level necessary to
invoke the second prong of the plain error doctrine. See People v. Jackson, 2017 IL App (1st)
142879, ¶ 70. However, it does not necessarily constitute an error of this magnitude. It has been
held that the failure to give a limiting instruction concerning the use of other-crimes evidence does
not necessarily rise to the level of plain error. People v. Tolbert, 323 Ill. App. 3d 793, 800 (2001);
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2020 IL App (2d) 170986-UPeople v. Hooker, 253 Ill. App. 3d 1081, 1085 (1993). In other words, that a defendant is subject
to this sort of prejudice is not necessarily second-prong plain error. This is the same sort of
prejudice a defendant would experience from the erroneous admission of such evidence in the first
place. Hence, all such error is not automatically plain error. Defendant does not explain why these
errors in the context of this case were so fundamental as to deprive him of a fair trial. More
importantly, we reiterate that we found that neither of these claims of error were well-founded,
and without error, there can be no plain error.
¶ 71 We also reject defendant’s claim that his trial attorney was ineffective for failing to
interpose appropriate objections to these alleged errors and to preserve them for appellate review.
To establish he received ineffective assistance of counsel, defendant would have to show that his
counsel’s performance fell below an objective level of reasonableness and that the was prejudiced
by this lapse. People v. Hodges, 234 Ill. 2d 1, 17 (2009). Either prong may be addressed first.
See People v. Lacy, 407 Ill. App. 3d 442, 457 (2011). As explained above, any objection to
Streit’s opinion would have been futile, as Streit would have been qualified as an expert had
defendant objected. The failure to raise a futile objection does not constitute ineffective assistance
of counsel. People v. Massey, 2019 IL App (1st) 162407, ¶ 34. We have determined that defendant
suffered no prejudice regarding his second argument, so he could not satisfy the second prong of
the ineffectiveness test. Hodges, 234 Ill. 2d at 17. Finally, we have determined that the evidence
at issue in defendant’s third argument was relevant, so any objection there would have been futile
as well. Moreover, in light of the overwhelming nature of the evidence, we do not see how the
vague references to other crimes that form the basis of defendant’s latter two arguments could lead
us to conclude that the trial would have likely come to a different result. See People v. Peeples,
205 Ill. 2d 480, 513 (2002) (holding that to establish prejudice, a defendant must show a reasonable
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2020 IL App (2d) 170986-Uprobability that the outcome of the proceeding would have been different). Accordingly,
defendant’s ineffectiveness argument must fail.
¶ 72 IV. CONCLUSION
¶ 73 In light of the foregoing, the judgment of the circuit court of DeKalb County is affirmed.
¶ 74 Affirmed.
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