THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. KESYON HEARD, Defendant-Appellant.
No. 1-19-2062
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
November 22, 2021
2021 IL App (1st) 192062
First Division; Appeal from the Circuit Court of Cook County. No. 18 CR 7398; Honorable James Michael Obbish, Judge, presiding.
JUSTICE WALKER delivered the judgment of the court, with opinion. Justices Pucinski and Coghlan concurrеd
OPINION
¶ 1 Following a bench trial, the trial court found Kesyon Heard guilty of possessing two-tenths of a gram of MDMA, a controlled substance commonly called ecstasy. Heard argues on appeal that the judge violated his right to due process by making factual findings with no basis in the evidence. We hold that the judge prejudicially misremembered the testimony when he found Heard confessed that he knew the bag police found held narcotics. Because wе find that a retrial would violate the constitutional bar against double jeopardy, we reverse the conviction without remand.
I. BACKGROUND
¶ 2 Heard was charged by indictment with possessing less than 15 grams of a substance containing methylenedioxymethamphetamine (MDMA). Prior to trial, Heard filed a motion to quash arrest and suppress evidence, which argued that his arrest following a traffic stop violated the fourth amendment.
¶ 3 On July 25, 2019, the trial court held a hearing on Heard‘s mоtion. Chicago police officer Christian Szczur testified that, around 8:40 p.m. on April 30, 2018, he drove a patrol vehicle with two other officers. Szczur observed a vehicle disregard a stop sign near Thomas Street and Laramiе Avenue. The officers followed the vehicle for two or three blocks before curbing it. Szczur exited his vehicle, activated his body-worn camera, and approached the curbed vehicle. Szczur identified Heard in сourt as the vehicle‘s driver. There was also a front seat passenger.
¶ 4 Szczur asked if there were narcotics or weapons in the vehicle, which Heard denied. Szczur then observed a knotted plastic bag protruding frоm the center console. Szczur asked about the bag, and Heard handed it to Szczur. When defense counsel asked if Heard indicated what the bag contained, Szczur testified: “I believe he told me it was dust. Based on my training and experience, it looked to be a crushed pill of MDMA, ecstasy.” The bag contained a crushed, fluorescent-colored pill, a typical color of ecstasy. The following exchange then occurred:
“Q. After he gave you that item, what did you do?
A. I asked him what it is, and he told me it was ecstasy, I believe.
Q. You believe or is that the word you ascribe to that item, and he just said dust?
A. I think I asked him if it was ecstasy and he told me yes.”
¶ 5 Szczur then testified that he did not recall whether Heard stated that the bаg contained dust or ecstasy, and the State stipulated to the foundation of Szczur‘s body-worn camera footage. The video was published and is included in the record on appeal.
¶ 6 In the video, Szczur asks what is in a small, knоtted bag near the center console and whether it contains narcotics. Heard hands the bag to Szczur. Szczur inspects
¶ 7 After the video was played, defense counsel asked Szczur to clarify whether Heard indicated that he knew there was ecstasy in the bag. Szczur responded that Heard did not acknowledge that the bag contained ecstasy and only stated that “it was in the car.” On cross-examination, Szczur tеstified that the bag was in plain view and Szczur suspected, based on his training and experience, that the knotted bag was narcotics packaging.
¶ 8 The court denied Heard‘s motion, stating:
“The video clearly shows the officer approaching the driver, asking him fоr his driver‘s license and insurance, then also asking the defendant what‘s in that bag. Heard reaches over, produces it ultimately, and acknowledges that it‘s dust or something like that, but based on the officer‘s observation of a bag which is typical of narcotics packaging, as this court has heard more times than I care to remember during the course of my experience here as a judge.”
¶ 9 The case proceeded immediately to a bench trial. The State entered stipulations to Szczur‘s testimony during the suppression hearing and to the admission into evidence of Szczur‘s body-worn camera footage. The State also entered stipulations that Szczur would tеstify that he kept the suspect narcotics in his control until he inventoried them and that a forensic scientist would testify that the suspect narcotics tested positive for 0.2 grams of MDMA.
¶ 10 Following closing arguments, the court found Heard guilty. The court noted that, “at worst,” Heard jointly possessed the narcotics, then concluded:
“The defendant has got the suspect—then suspect, now we know to be—MDMA within inches of his arm. Never said ‘oh, I don‘t know what this is’ or anything else. And then acknowledges that it is dust, which is a street term for the drug commonly known as ecstasy.
Heard will be found guilty.”
¶ 11 Heard filed a motion for a new trial. Following a hearing on September 19, 2019, the trial court denied the motion. The court stated:
“All right. The defendant was quеstioned, asked if there were any weapons in the car. He said no. He was then asked about a plastic bag in the central console between the defendant and the passenger. It was the defendant who toоk the bag and said it was nothing but just some dust, which is a common term according to the police officer for a particular controlled substance which is what it turned out to be. So, motion for a new trial will be respectfully denied.”
¶ 12 Following a hearing, Heard was sentenced to one year of probation.
II. ANALYSIS
¶ 13 On appeal, Heard contends that the trial judge violated his right to due process when the judge misremembered crucial evidence. Thе State contends that Heard waived the issue. After the trial, the judge stated on the record that he based the finding of guilt, in part, on Heard‘s statement to Szczur that the bag contained dust. The judge did not indicate what evidence supported the judge‘s finding that “dust *** is a street term for the
¶ 14 Failure of the trial court to correctly recall crucial evidence is a denial of defendant‘s right to due process. People v. Mitchell, 152 Ill. 2d 274, 323 (1992).
“[T]he deliberations of the circuit judge in a bench trial are limited to the record made before him or her during the course of the trial. [Citations.] A judge‘s determination, based upon a private investigation or private knowledge of the court, untested by cross-examination or any of the rules of evidence, constitutes a denial of due process.” People v. Dunn, 326 Ill. App. 3d 281, 286 (2001).
Whether a defendant‘s due process rights have been denied is an issue of law, and thus, our review is de novo. People v. Williams, 2013 IL App (1st) 111116, ¶ 75.
¶ 15 The judge held that Szczur‘s testimony showed that Heard knew he had drugs when he said the bag had “just some dust.” Szczur‘s testimony contradicts the judge‘s finding. Szczur testified that Heard did not acknowledge that the bag held drugs. That is, Szczur clarified that he did not treat Heard‘s statement that the bag held “dust” as use of a name for eсstasy.
¶ 16 The State offered no evidence to support the judge‘s finding that “dust *** is a street term for the drug commonly known as ecstasy.” The State contends that the trial judge could rely on his own knowledge of street names for drugs, but we find that thе judge is not at liberty to take judicial notice of the meaning of slang expressions. Therefore, there must be some admitted evidence of the meaning of the slang expression.
¶ 17 “[T]o convict an individual of unlawful possessiоn of a controlled substance, the State must prove that the defendant had knowledge of the presence of the controlled substance.” People v. Woods, 214 Ill. 2d 455, 466 (2005). No evidence supports the circuit judge‘s finding that Heard identified the two-tеnths of a gram of a substance found in a plastic bag as ecstasy when he said it was “just some dust.” We presume the trial judge considered only competent evidence, “unless that presumption is rebutted by affirmative evidencе in the record.” People v. Simon, 2011 IL App (1st) 091197, ¶ 91. Here, the trial judge expressly relied on his misremembering of the testimony of Szczur for his finding that Heard knew he possessed narcotics. The judge remembered Szczur as testifying that “dust” meant ecstasy, while the transcript of the trial shows that Szczur did not so testify. The court‘s misremembering prejudiced Heard. We must reverse the conviction.
¶ 18 Although Heard has not challenged the sufficiency of the evidence, “to avoid the risk of subjecting [him] to double jeoрardy on remand of this cause, we are required to review the sufficiency of the evidence.” In re Marriage of Alltop, 203 Ill. App. 3d 606, 616 (1990). The officer found a plastic bag that held a substance that looked to the officer like a crushed pill. Testing showed thе bag held two-tenths of a gram of MDMA.
III. CONCLUSION
¶ 20 The trial judge erred by basing his finding that Heard knew he had drugs on the belief, unsupported by еvidence, that, when Heard said the bag held “just some dust,” Heard meant the bag held the drug MDMA. The unsupported finding, and the misremembering of Szczur‘s testimony as support for the finding, deprived Heard of his right to a fair trial. Because a retrial would viоlate double jeopardy principles, we reverse the conviction without remand.
¶ 21 Reversed.
People v. Heard, 2021 IL App (1st) 192062
No. 1-19-2062
Appellate Court of Illinois, First District
November 22, 2021
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-CR-7398; the Hon. James Michael Obbish, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Douglas R. Hoff, and Daniel H. Regenscheit, of State Appellate Defender‘s Office, of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State‘s Attorney, of Chicago (John E. Nowak, Tasha-Marie Kelly, and Koula A. Fournier, Assistant State‘s Attorneys, of counsel), for the People.