Lead Opinion
delivered the opinion of the court:
After a jury trial, defendant Joseph Liberman was convicted in absentia of trafficking of a controlled substance containing cocaine weighing more than 100 grams but less than 400 grams under the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. SGVa, par. 1100 et seq.). He thereafter appeared and was sentenced to 22 years’ imprisonment. Defendant appeals, contending (1) he was improperly charged under section 401.1 of the Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1) because the statute failed to provide a penalty for the amount of cocaine he was found to possess; (2) the trial сourt erred in asking a question of a key State witness; (3) the testimony of a State’s witness regarding a fight between witness and defendant was so prejudicial as to deprive him of his right to a fair trial; and (4) in sentencing him, the trial court improperly considered a factor inherent in the offense as a factor in aggravation.
I. Facts
The first witness at trial was Cindy Jameson, defendant’s girlfriend at the time of the offense. Defendant and Jameson lived together in Jameson’s home. Jameson testified that on September 12, 1988, she became upset with defendant because he was taking drugs in her home. Defendant and Jameson became engaged in a fight and she told him to leave. Defendant then went to a compartment where he had stored a tackle box, took this tackle box to a bedroom, and shut the door.
Jameson then testified that she heard noises coming out of the bedroom. She became suspicious and opened the door. She saw defendant “doing a line of cocaine.” She also saw a large bag of “powdery stuff” and cash.
Jameson asked what was going on and defendant replied it was “coke” (cocaine) and stated it was “what he made his living at.” Defendant slammеd the tackle box shut and locked it. A struggle ensued for possession of the tackle box. Jameson managed to wrestle the tackle box away from defendant and she then took the box to a neighbor’s house for safekeeping.
Later, Jameson phoned defendant and told him to remove his possessions from her house. Defendant arrived at Jameson’s home to remove his possessions and begged Jameson to return the tackle box. When she refused, another fight began and Jameson called the police.
The police arrived and oversaw defendant removing his рossessions from the home. Jameson then took the police officers to her neighbor’s home and gave the tackle box to the police.
The police took custody of the tackle box and obtained a search warrant. The tackle box contained $1,600 in cash, a bag containing
On Octоber 8, 1988, defendant was taken into custody and given his Miranda warnings. Defendant admitted receiving shipments of cocaine from Rowan, a friend from Florida. Defendant would sell the cocaine and return the resulting money to Rowan. On October 26, 1988, defendant recounted these transactions in greater detail. Defendant specified amounts of cocaine that were shipped to him, as well as the amounts of money he returned to Rowan. Rowan testified at trial and verified the nature of the transactions which took place between himself and defendant. Upon this evidence, thе jury found defendant guilty and this appeal followed.
II. Challenge To Charge And Conviction Under Section 401.1 Of The Act
On February 7, 1989, defendant was charged by complaint with controlled substance trafficking in violation of section 401.1 of the Act, in that on or about September 12, 1988, he knowingly and without lawful authority caused to be brought more than 100 grams but less than 400 grams of a substance containing cocaine, a controlled substance, into the State of Illinois with the intent to deliver it. At trial, the jury determined that defendant brought 105 grams of this controlled substance into the State with the requisite intent. By post-trial motion, defendant аrgued he was improperly charged under section 401.1 of the Act because that section does not provide a penalty for the amount of cocaine he was found to possess, i.e., 105 grams. The trial court denied defendant’s motions, and defendant renews this challenge to the conviction on appeal.
A. The Statutory Framework
The offense of controlled substance trafficking was added to the Act by Public Act 85-743 (Pub. Act 85-743, §2, eff. Sept. 22, 1987 (1987 Ill. Laws 3160, 3164)). Denominated section 401.1, it provided an enhanced penalties provision whereunder the sentencing range authorized by section 401 of the Act (Ill. Rev. Stat. 1987, сh. SGVa, par. 1401) was doubled:
“(b) A person convicted of controlled substance trafficking shall be sentenced to a term of imprisonment not less than twice the minimum term and fined an amount as authorized by Section 401 [(Ill. Rev. Stat. 1987, ch. 563/2, par. 1401)] of this Act, based upon the amount of controlled or counterfeit substance brought or caused to be brought into this State, and not more than twice the maximum term of imprisonment and fined twice the amount as authorized by Section 401 of this Act, based upon the amount of controlled or counterfeit substance brought or caused to be brought into this State.” (Emphasis аdded.) Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1(b).
When section 401.1 was added to the Act, section 401 — making it unlawful for any person to knowingly manufacture or deliver, or possess with intent to manufacture or deliver, a controlled or counterfeit substance — defined the class of the offense, from the most to the least serious, based on the amount and type of drug involved. (See Ill. Rev. Stat. 1987, ch. 561/2, par. 1401 (text eff. until July 1, 1988).) As to substances containing cocaine, for example, section 401(a)(2) provided that commission of the offense involving “15 grams or more of any substance containing cocaine [(emphasis addеd)]” was a Class X felony (Ill. Rev. Stat. 1987, ch. 563/2, par. 1401(a)(2)); subsection (b)(2) made commission of the offense involving “more than 1 gram but not more than 15 grams” of such substance a Class 1 felony (Ill. Rev. Stat. 1987, ch. 563/2, par. 1401(b)(2)), and subsection (c) made commission of the offense based on “any other amount” of a Schedule II narcotic drug — which cocaine is (see Ill. Rev. Stat. 1987, ch. 563/2, pars. 1206(b)(4), 1102(aa)(4)) — a Class 2 felony (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(c)).
“Sec. 401.1 [(amended by the effective date to read section 401.2)]. Any person who violates paragraph (1), (2), (3) or (7) of subsection (a) of Section 401 with respect to the following amounts of controlled or counterfeit substances or controlled substance analogs, notwithstanding any of the provisions of subsections (b), (c), (d), (e), (f) or (g) of Section 401 to the contrary, is guilty of a Class X felony and shall be sentenced to a term of imprisonment as follows:
(1) not less than 9 years and not more than 40 years with respect to 100 grams or more but less than 400 grams;
(2) not less than 12 years and not more than 50 years with respect to 400 grams or more but less than 900 grams;
(3) not less than 15 years and not more than 60 years with respect to 900 grams or more;
(4) any person sentenced with respect to paragraph (1), (2) or (3) above may be fined an amount not more than the full street value of the controlled or counterfeit substance or controlled substance analog. The term ‘street value’ shall have the meaning ascribed in Section 110 — 5 of the Code of Criminal Procedure of 1963.” (Emphasis added; italics omitted.) (1987 Ill. Laws 4710, 4719.)
In addition, Public Act 85 — 1003 amended section 401 in pertinent part as follows, again mistakenly referring to the above-quoted new provision as section 401.1:
“Except as provided in Section 401.1
[(amended by the effective date to read section 401.2)] any person who violates this Section with respect to:
(a) the follоwing amounts of controlled or counterfeit substances *** is guilty of a Class X felony. ***
***
(2) 15 grams or more but less than 100 [grams] of any substance containing cocaine, or an analog thereof.” (Emphasis in original to denote new matter.) 1987 Ill. Laws 4710, 4717.
See also Ill. Rev. Stat. 1987, ch. 561/2, pars. 1401.1 (as added by Pub. Act 85 — 1003), 1401 (effective July 1, 1988).
Thereafter, in Public Act 85 — 1030, on June 30, 1988, the legislature corrected the above-referenced numbering errors made in Public Act 85 — 1003, designating the newly added section as section 401.2, and amending section 401 to refer to the renumbered section 401.2 (Pub. Act 85-1030, §4, eff. July 1, 1988 (1988 Ill. Laws 200, 207, 205)). (See Ill. Rev. Stat., 1988 Supp., ch. 561/2, pars. 1401.2, 1401.) Given the irreconcilable conflict between these two acts, Public Act 85 — 1030 must be regarded as controlling because it was passed last. (Ill. Rev. Stat. 1989, ch. 1, par. 1105.) It is the text of these provisions, sections 401.1, 401, and 401.2 (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1; 1988 Supp., ch. 561/2, pars. 1401, 1401.2), with which we are concerned.
We note, however, as have the parties, that by the time defendant was sentenced herein in April 1990, the legislature had repealed section 401.2 and incorporated its provisions into section 401 of the Act (see, e.g., Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(a)(2)(B) (text as amended by Public Acts 86 — 266, §1, effective Jan. 1, 1990 (1989 Ill. Laws 1893); 86 — 442, §1, effective Jan. 1, 1990 (1989 Ill. Laws 2681, 2682)) (not less thаn nine nor more than 40 years with respect to 100 grams or more but less than 400 grams of a substance containing cocaine)).
B. Analysis
Defendant’s argument is basically as follows: (1) section 401.1 of the Act,
Defendant relies primarily upon People v. Chandler (1989),
“Although it may seem peculiar that the legislature did not include residential burglary in the list of felonies which make a defendant eligible for death if the victim was killed during one of them, this court cannot uphold a death sentence through our affirmative act of reading the words ‘residential burglary’ into the murder statute.” (Chandler,129 Ill. 2d at 254 ,543 N.E.2d at 1299 .)
We find Chandler inapposite. There, the supreme court refused to read the words “residential burglary” into the murder statute, thereby refusing to “create” a new felony for which a death penalty could be imposed under the felony-murder doctrine. By contrast, we need only construe the intent of the legislature by looking to the statutory language.
It is apparent that the legislature added section 401.1 to the Act by Public Act 85 — 743 to criminalize controlled substance trafficking, and it very clearly intended to provide an enhanced sentencing range for those who brought such substances into the State for the requisite purpose and with the requisite intent. Defendant basically questions whether the language added to open the second full paragraph of section 401, “Except as provided in Section 401.2” (Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1401), incorporates the provisions of section 401.2 (Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1401.2) in their entirety for purposes of prosecution on charges of controlled substance trafficking under section 401.1 of the Act. He argues that it does not and that, because (1) section 401 did not specifically enumerate the amounts of controlled
This is a question of statutory construction and legislative intent. While criminal statutes must be construed strictly in favor of the accused (Chandler,
In amending section 401 and adding section 401.2 in 1988, the legislature intended to impose stricter penalties on those convicted of the manufacture or delivery of controlled substances in larger amounts. If a defendant were convicted of the manufacture or delivery of a controlled substance in a larger amount than those for which the class of felony was stated in section 401, that section referred to section 401.2, which enumerated increased sentencing ranges based on the amount of substance involved. Defendant maintains that because the controlled substance trafficking provision, section 401.1, refers only to the penalties authorized in section 401, we are restricted to the specific penalties and amounts delineated therein, and the legislature has not authorized the courts to look to section 401.2 of the Act.
The legislature intended to provide greater penalties for those convicted of the manufacture or delivery of a contrоlled substance in larger amounts, hence section 401.2; and the legislature intended to provide enhanced penalties, i.e., a doubled sentencing range, for those convicted of trafficking in a controlled substance, regardless of the amount, hence section 401.1(b). To construe these statutory provisions otherwise would be illogical. Courts, in considering legislative intent, must presume that the legislature did not intend absurdity, inconvenience or injustice, and select an interpretation of the statute which leads to logical results and avoids that which would be absurd. Steppan,
Were this сourt to adopt the defendant’s argument in toto, section 401.1 would be construed to provide an enhanced penalty for trafficking in cocaine in amounts less than one gram, more than one gram but less than 15 grams, and more than 15 but less than 100 grams, but no further enhancement of penalty for trafficking in amounts of 100 grams or more.
It is fundamental that statutes are to be construed so that no word, clause or sentence is rendered meaningless or superfluous. (People v. Fierer (1988),
The language of section 401 defined the offense of manufacture and delivery, and designated the class of felony attaching to commission of the offense bаsed on varying amounts of enumerated substances; as
Defendant’s contеntion that section 401.1 is a nullity is untenable; it provided both a prohibition and a penalty, and defendant was properly convicted thereunder.
III. Judge’s Question
Defendant contends that the trial judge committed reversible error when he asked a question of a key State’s witness, thus abdicating his neutral role and assuming the role of an advocate. We disagree.
Witness Jameson testified and was cross-examined. At the conclusion of this questioning, the judge asked Jameson: “[The] Joseph Liberman that you referred to, is that the Defendant in this case?” The judge asked no other questions and made no other comments.
It is clear that a judge has the right to question witnesses in order to elicit the truth. (People v. Hopkins (1963),
In the cases wherein the judge has been found to have assumed the role of an advocate, the judge’s acts of impropriety far exceeded the single question posed here. Defendant relies primarily on People v. Cofield (1973),
The trial judge merely attempted to clarify that the “Joseph Liberman” Jameson referred to in her testimony was in fact the defendant. Jameson could not identify the defendant in person because the trial was in absentia. The propriety of a judicial examination must be determined by the circumstances of each case. (Cofield,
IV. Other Crimes Evidence
Defendant next maintains that Jameson’s description of defendant’s violent acts and her description of defendant’s drug dealing amount to reversible error.
Evidence of other crimes is admissible to prove modus operandi, intent, identity, motive, or absence of mistake. (People v. McKibbins (1983),
V. Sentencing
Defendаnt next argues the court erred in considering as an aggravating factor in sentencing that his conduct was the type which could have caused serious harm to another person (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(1)), a factor inherent in the offense. It is contended that there was no evidence of any harm or potential for harm beyond that which it is reasonable to conclude that the legislature had already taken into consideration in establishing the penalty for the crime. The record indicates that at the original sentencing hearing the judge did not consider this an aggravating factor. The only statement at the original sentencing hearing which is relevant to this alleged error is as follows:
“THE COURT: ***
Mr. Liberman, do you have anything that you desire to state to the Court at this time other than what you’ve stated before?
THE DEFENDANT: No, Your Honor, I don’t.
THE COURT: I don’t think this is a case for the minimum sentence of 18 years, based upon his prior record. I’ve been going through the factors that are in mitigation. I’m looking at a factor in mitigation 5 — 553.12 [sic], the Defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another. Well, there could be argument made that the sale of cocaine could result in serious physical harm to another, but I don’t know that this Defendant can be charged with that knowledge necessarily.”
At the subsequent hearing on the motion to reduce sentence, the judge made the following statement:
“The activities that preceded the conduct upon which this charge was based, the Defendant — the evidence was that the Defendant admitted at one time that he was and had been in the business of selling cocaine in this state. I do recall that there was some testimony concerning some domestic quarrel, I don’t recall whether there was any violence associated with it or not at this time, but the fact that there was no physical violence committed by the Defendant doesn’t detract from the fact that he created a great potential for harm to others by the distribution of this drug, harm to addicts, harm to first users possibly, although there is no evidence as to who the recipients of distribution of the drug were, that is certainly reasonable to infer that for persons that were addicted to the use of cocaine and to persons who may not have had an opportunity to become addicted but could become addicted by reason of the distribution of this drug to them made possible through the conduct of the Defendant.”
However, it is apparent that the judge’s statement at the motion-to-reduce-sentence hearing related in part to defendant’s affidavit, which included a statement that “no physical injuries were suffered by any party as a result of this activity.”
We find no fault whatsoever with the judge’s comments at the sentencing hearing. That sentencing hearing included evidence of many other aggravating factors which justified the sentence. The comments at the motion-to-reduce hearing clearly indicated the offense could ultimately result in physical injury by those who might use the controlled substance. The comments were given as an explanation for explicitly rejecting defendant’s statement of no injury and not as an aggravating factor of a sentence that had already been determined at a prior hearing. See People v. Adams (1988),
The sentence by the trial judge was well below the 80-year possible maximum term of imprisonment and was not an abuse of discretion. See People v. Ward (1986),
For the foregoing reasons, we affirm.
Affirmed.
GREEN, P.J., concurs.
Concurrence Opinion
specially concurring:
Although I agree fully with the majority’s decision, I write specially to exprеss my concern about the frequency with which the legislature has amended the Illinois Controlled Substances Act (Act) and the Cannabis Control Act (CCA) (Ill. Rev. Stat. 1989, ch. 561/2, par. 701 et seq.) and to call for some restraint in the future when other amendments are proposed.
In the last 41/2 years, the General Assembly has enacted the following 27 substantive amendments to the Act and the CCA:
Public Act 85 — 140, §1 (1987 Ill. Laws 1007): amended sections 204 and 206 of the Act (amending Ill. Rev. Stat. 1985, ch. 561/2, pars. 1204,1206).
Public Act 85 — 537, §1 (1987 Ill. Laws 2356): added section 406.1 to the Act (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1406.1).
Public Act 85 — 616, §1 (1987 Ill. Laws 2700): amended section 407 of the Act (amending Ill. Rev. Stat. 1985, ch. 561/2, par. 1407).
Public Act 85 — 743, §2 (1987 Ill. Laws 3160, 3164): added sеction 401.1 to the Act (see Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1).
Public Act 85 — 948, §1 (1987 Ill. Laws 4133): amended multiple sections of the Act.
Public Act 85 — 1003, §3 (1987 Ill. Laws 4710, 4716): amended multiple sections of and added multiple sections to the Act.
Public Act 85 — 1030 (1988 Ill. Laws 200): attempted to undo erroneous portions of Public Act 85 — 1003.
Public Act 85 — 1260, §1 (1988 Ill. Laws 2553): amended various sections of the Act.
Public Act 85 — 1280, §1 (1988 Ill. Laws 2650): amended section 102 of the Act (see Ill. Rev. Stat., 1988 Supp., ch. 561/2, par. 1102) (text eff. July 1,1988).
Public Act 85 — 1287, §3 (1988 Ill. Laws 2667, 2671): amended section 406 of the Act (amending Ill. Rev. Stat. 1987, ch. 561/2, par. 1406) .
Public Act 85 — 1294, §1 (1988 Ill. Laws 2690): amended section 401.1 of the Act (amending Ill. Rev. Stat. 1987, ch. 561/2, par. 1401.1).
Public Act 85 — 1388, §3 (1988 Ill. Laws 3204, 3208): added section 5.1 to the CCA (see Ill. Rev. Stаt., 1988 Supp., ch. 561/2, par. 705.1).
Public Act 86 — 265, §1 (1989 Ill. Laws 1891): amended section 410 of the Act (amending Ill. Rev. Stat. 1987, ch. 562/2, par. 1410).
Public Act 86 — 266 (1989 Ill. Laws 1893): amended various sections and repealed two sections of the Act.
Public Act 86 — 604, §1 (1989 Ill. Laws 3295): amended various sections of the Act.
Public Act 86 — 625, §1 (1989 Ill. Laws 3441): amended section 312 of the Act (amending Ill. Rev. Stat., 1988 Supp., ch. 56x/2, par. 1312).
Public Act 86 — 809, §2 (1989 Ill. Laws 4251): added section 405.1 to the Act (see Ill. Rev. Stat. 1989, ch. 561/2, par. 1405.1).
Public Act 86 — 946, §3 (1989 Ill. Laws 5667, 5673): amended section 407 of the Act (amending Ill. Rev. Stat. 1987, ch. 561/2, par. 1407) .
Public Act 86 — 1382, §15 (1990 Ill. Laws 2877, 2884): amended section 12 of the CCA (amending Ill. Rev. Stat. 1989, ch. 561/2, par. 712).
Public Act 86 — 1391, §1 (1990 Ill. Laws 2957): amended section 401.1 of the Act (see Ill.
Public Act 86-1459, §13 (1990 Ill. Laws 3437, 3441): added section 407.2 to the Act (see Ill. Rev. Stat., 1990 Supp., ch. 561/2, par. 407.2).
Public Act 87 — 466, §13 (1991 Ill. Laws 2416, 2422): amended section 409 of the Act (amending Ill. Rev. Stat. 1989, ch. 561/2, par. 1409).
Public Act 87 — 524, §3 (1991 Ill. Laws 2611, 2618): amended section 407 of the Act (amending Ill. Rev. Stat. 1989, ch. 561/2, par. 1407).
Public Act 87 — 544, §9 (1991 Ill. Laws 2730, 2734): added section 5.2 to the CCA.
Public Act 87 — 614, §4 (1991 Ill. Laws 3061, 3066): amended section 505 of the Act (amending Ill. Rev. Stat., 1990 Supp., ch. 561/2, par. 1505).
Public Act 87 — 754, §2 (1991 Ill. Laws 3943, 3945): amended sections 102, 208, 308, 312, 401, 402, 405, 407, 407.2, 410, and 411 of the Act (see Ill. Rev. Stat. 1989, ch. 561/2, pars. 1102, 1208, 1308, 1312, 1401, 1402, 1405, 1407, 1410, 1411; Ill. Rev. Stat., 1990 Supp., ch. 56V2, par. 1407.2).
Public Act 87-772, §§2, 3 (1991 Ill. Laws 4129, 4131, 4132): added section 411.2 of the Act and section 10.3 of the CCA.
The legislative frenzy the above list reveals is not without its costs. Those costs include errors committed by the lеgislature when it deprives itself of the patient deliberation normally accorded legislative proposals (see Public Acts 85 — 1003, 85 — 1030, and 85 — 743, all of which are discussed in the majority’s opinion in this case). Other costs include the confusion and uncertainty these frequent changes engender in the prosecutors and police who have the duty of enforcing the drug laws. Furthermore, because the stakes involved are so great-persons convicted of violating drug laws are frequently sentenced to the penitentiary for lengthy periods of time — defense attorneys work diligently to find some loophole or legislative oversight that will thwart criminal prosecutions of defendants charged with violating the drug laws. When attorneys find some legislative flaw to argue, the courts must weigh such arguments very carefully, consistent with their duty to ensure that persons accused of crime receive the criminal due process rights to which they are entitled.
Given these costs, the benefits derived from all this legislative activity should be carefully assessed. My assessment leaves me unpersuaded that all this activity is justified. For instance, I doubt that anyone could seriously argue that prior to 1987, the legislature had nоt passed enough laws reflecting this State’s policy of criminalizing and seriously punishing unlawful drug trafficking and possession. I further doubt that this State needed an additional 27 substantive amendments to its drug laws in the last 41/2 years to further that policy or to protect its citizens.
By these remarks, I do not mean to criticize any particular enactment on the list set forth above; nor do I mean to criticize the legislature for carefully reviewing the drug laws from time to time to see whether “some tuckpointing” of these laws might be appropriate. Instead, I am concerned about the volume and frequency of such legislative changes, and I believe that they do not reflect the calm deliberation that ought to be the hallmark of the legislative process.