delivered the opinion of the court:
Defendant was arrested on August 24, 1986, and charged with possession with intent to deliver. On October 15, 1986, these charges were nol-prossed by the State, and defendant was subsequently charged by indictment on April 30, 1987. His motion to dismiss based upon violation of speedy trial rights was denied by the trial court. A motion to suppress was denied as well. A jury convicted defendant of possession of a controlled substance and at a July 12, 1988, sentencing hearing he was sentenced to five years’ imprisonment to be followed by two years of mandatory supervised release. It is from this judgment that he now appeals.
On August 23, 1986, defendant went to the police station and reported that he had been robbed by Christopher Nelson and threatened with bodily harm by Christopher’s brother, Vernon Nelson. Later that day the police arrested Vernon Nelson and brought him to the police station. Since the arresting officers were unable to reach defendant by phone to inform him of Nelson’s arrest and the upcoming court date, they went to defendant’s home to give him this information. While there is differing testimony as to the events leading up to the police entry into defendant’s apartment (defendant testified that when the police knocked on his door, he asked them to go back outside so that he could verify from his window that they were police; at the suppression hearing Officer McMeel testified that he did not recall being asked to go outside and that defendant had invited the officers into his apartment so that he would not have to discuss his business in the hallway; at trial Officer McMeel testified that the officers were asked to step outside and were later invited into the apartment), there is nevertheless agreement that they did smell phencyclidine (PCP) from the doorway, that they did enter the apartment, and that they did see a plastic bag containing what appeared to be marijuana on the kitchen table. The officers also saw and gathered into evidence other narcotics paraphernalia, including a small brown bottle containing liquid which smelled like PCP, an eye dropper, tin foil packets, and cash totalling $363.
Defendant was arrested on charges of possession with intent to deliver. After these were nol-prossed (October 15, 1986), he was indicted on identical charges (April 30, 1987), and a jury trial ensued. At trial defendant testified that he had been drinking during the evening preceding his arrest, and that he was sleeping at the time the police arrived. Three additional witnesses testified that they had been drinking with defendant earlier that evening before the police arrived. They further testified that although drugs and drug dealers were always present in their apartment building, defendant always chased such persons away. In spite of this testimony, the jury found defendant guilty, and he was sentenced to five years in the Illinois Department of Corrections. It is from this conviction that defendаnt now appeals.
On appeal defendant first contends that he was denied his statutory and sixth amendment rights to a speedy trial. (Section 103—5(b) of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b)) implements an individual’s constitutional right to a speedy trial and provides that every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date the defendant demands trial, unless the delay is occasioned by the defendant.) In his speedy trial argument, defendant notes that he was arrested on August 24, 1986. When the State’s request for a continuance was refused on October 17, 1986 (lab results were not yet available), the case was nol-prossed by the State’s Attorney. Subsequently a grand jury voted a true bill against defendant on April 30, 1987, and an indictment was filed on May 6, 1987. A hearing was held at which the trial court denied the motion, finding that although 203 days had gone by, no demand for a trial had been made at the time of the nolle prosequi, and thus no rights had been violated.
Defendant argues that even though no demand for trial was made at the time of the nolle prosequi, he was not represented by counsel at this time, and thereforе the demand requirement should be liberally construed. Furthermore, defendant maintains that he was additionally prejudiced as to his speedy trial rights at the hearing on the motion to dismiss. On this occasion, the defendant’s attorney, Mr. Schierer, mistakenly represented to the judge that defendant had been represented by counsel at the time of the nolle prosequi. The court’s denial of this motion was thus based on the fact that no demand had been made and that the absence of any demand was a tactical decision by counsel. (Although the State argues that defеndant did have counsel at the time of the nolle prosequi, a review of the record shows that while the public defender was appointed for the bond hearing, defendant appeared pro se afterwards and was told by the judge that he could speak to the bar association lawyer if he wished.)
The State argues that even if this issue has been preserved for review (it was not included in a post-trial motion), speedy trial rights were not implicated as no demand was ever made. Assuming, arguendo, that a demand had been made, the State further contends thаt if such a demand was made after the nolle prosequi, it would have been meaningless, as case law indicates that a trial demand which is made at a time when no charges are pending has no value. See People v. Freedman (1987),
The State further argues that even if a demand for trial had been made before the nolle prosequi (presumably while defendant was still charged and still on bond), in the absence of evidence indicating that the nolle prosequi was undertaken to evade the statutory provisions, the nolle prosequi would have tolled the running of the statutory 160 days, and defendant would not have been denied his right to a speedy trial. Two recent first district cases support this view. (See People v. Decatur (1989),
In view of the factual similarities between Decatur, Austin, and the case at bar, we find that there has been no violation of defendant’s right to a speedy trial. Even if defendant had been represented by competent counsel who had appropriately filed a demand for trial before the nolle prosequi, the State’s right to refile after a long delay as well as the tolling effect of the nolle prosequi has been firmly established by existing case law.
Defendant also contends that Mr. Schierer’s misstatement regarding his representation at the time of the nolle prosequi constituted ineffective assistance of counsel. Our supreme court has stated that effective assistance of counsel refers to competent, not perfect, representation and that, in the absence of a showing that the outcome of a new trial likely would be different, the Constitution does not require a new trial for every defendant whose counsel errs at trial. (People v. Stewart (1984),
Defendant further maintains that he was denied effective assistance of counsel during the time he was represented by Mr. Schierer (December 9, 1987, to March 14, 1988), as unbeknownst to defendant, on February 19, 1988, Mr. Schierer signed an affidavit and motion to have his name stricken from the roll of attorneys licensed to practice law in Illinois, and was actually removed from the roll of attorneys on March 28, 1988. While there is case law which supports the proposition that a defendant who is represented by an attorney not licensed to practice law has been denied assistance of counsel (see Solina v. United States (2d Cir. 1983),
Defendant further maintains that he was denied a fair trial due to inappropriate and prejudicial prosecutorial remarks designed to inflame the jury. The State, on the other hand, contends that the prosecutor’s comments were proper as comments upon the evidence or the inferences drawn therefrom or were invited responses to defense counsel’s argument. See People v. Faysom (1985),
Most of the complained-of comments occurred during the rebuttal argument of the State’s Attorney. Although all of the offensive remarks were neither objected to at trial nor raised in a post-trial motion, we will assume that they have been preserved for purposes of appeal. Defendant first alleges that the prosecutor implied that defense counsel was trying to confuse the jury about what the case was really about, a practice condemned by Illinois case law. (People v. Jackson (1983),
“Let’s get something straight here before you go back and deliberate. Vernon Nelson is not on trial. Neither is Christopher Nelson. They have had their days in court. And you are not sitting on their jury. The police officers are certainly not on trial. Don’t let anyone misdirect your attention from what this case is about. This case is about this man possessing drugs. And what is he charged with? Is he charged with selling drugs? No. He is not charged with selling drugs. There is no evidence that he sold drugs. Even though there is no evidence of that, and he was never charged with that. Is he charged with using drugs? No. He is not. He is not charged with using drugs.”
The State contends that the prosecutor’s references to Vernon Nelson, Christopher Nelson, and the police are proper because they redirect the jury’s attention to the issues in the case before them. Defense counsel did bring up the fact that his client was robbed and threatened by the Nelson brothers, and also implied that the police were somehow implicated in a conspiracy to frame the defendant. (“Use your common sense deciding whether these things were there before the officers got there.”) The argument is persuasive. We therefore find that these prosecutorial remarks fall into the category of invited responses to defense counsel’s arguments, rather than inappropriate inflammatory remarks.
Defendant also contends that the prosecutor’s comments as to what charges were not placed against him were also improper and created the suggestion that the defendant had already been given a break. While the reviewing court condemned such a practice in People v. Estes (1984),
Defendant also claims that the prosecutor’s comments enhanced the testimony of the police officers both by stressing the indignities the police had to suffer by being called liars by Watkins, and also by referring to the officers’ status as policemen, arguing that they had no motive to lie. While it is correct that a police officer’s testimony should not be given greater weight than that of any other witness, the State’s Attorney’s comments in the case at bar were not inappropriate. In his opening remarks and throughout his case in chief, defense cоunsel suggested that because Watkins was drunk the night of the arrest, he could not have known the drugs were in the apartment, and that somehow the police officers had put them there. (“We don’t know how these drugs got into Lonnie’s apartment. We don’t know who brought them there ***.”) The prosecutor’s comments were thus a reasonable response to defense counsel’s remarks, rather than an improper bolstering of the officers’ testimony.
Defendant also alleges that the prosecutor improperly commented that defendant lied. “If there is one thing that infuriatеs me about this case, it is that he lied.” While this remark may be inappropriate out of context, case law supports the proposition that a prosecutor may comment that the defendant or a defense witness is a “liar” if conflicts in evidence make such an assertion a fair inference. (People v. Starks (1983),
Defendant also contends that the prosecutor’s remarks about his drinking habits were improper. Specifically, the defendant refers to the prosecutor’s alluding to him as “a loveable old alcoholic” and an “old drunk.” Although at first glance these remarks may seem inappropriate, when considered in the context of the trial, their character changes. There was testimony, both direct and on cross-examination, regarding defendant’s drinking habits and his tendency to be drunk. In fact, оne theory of defense was that defendant was so intoxicated on the night of the arrest that he was an easy target for a police setup. In light of the totality of testimony regarding defendant’s drinking, the prosecutor’s remarks should most likely be viewed as a reasonable comment on the evidence or as a reasonable inference therefrom. See People v. Witted (1979),
Defendant further maintains that the prosecutor unfairly influenced the jury by commenting on a Justice Department survey linking drugs and serious crime. While the prosecutor’s single isolated cоmment was in error, an objection was sustained by the trial court. Additionally, the trial judge cautioned the jurors that the closing arguments were not evidence, but were statements of what the attorneys believed the evidence showed. Based on this instruction and the fact that the objection was sustained, and further, that the offending remarks were not repeated, it is unlikely that the jury was unfairly influenced.
Defendant also argues that the State’s Attorney attempted to shift the burden of proof to the defendant by commenting that defendant never called any witnesses to testify as to а police conspiracy against him. While such a comment would be improper in most circumstances (see People v. Lasley (1987),
Defendant also insists that the State’s Attorney improperly attempted to instruct the jury as to the law when he stated that being drunk was not a defense to possession of a controlled substance. Even though the State’s Attorney was responding to the defense argument that defendant was so drunk that he let the police in, the trial court nevertheless sustained defendant’s objection and cautioned the jury “to follow the law as the court gives it to you.” In view of these circumstances, we find that defendant was not unfairly prejudiced.
Lastly, defendant urges that the prosecutor improperly attempted to instill fear in the jury by arguing as follows:
“Ladies and gentlemen, how can we ever face our children, how can we ever tell them to say no to drugs, if we let somebody like Lonnie Watkins back out on the street?”
In People v. Ford (1983),
Defendant also contends that the trial court erred in sustaining the State’s motion in limine to exclude from evidence conversations defendant may have had with police officers subsequent to his arrest. Defendant intended to have Detective Thomas testify concerning an interview he had with defendant the day after his arrest concerning defendants’ complaint against Christopher Nelson. By introducing this conversation into evidence, defendant hoped to show that the police had not arrested Christopher Nelson (the subject of defendant’s burglary complaint) because he was a police informant. Defendant further hoped to imply that Nelson’s status as an informant motivated the alleged police setup of drugs in his apartment. Defendant also argues that by sustaining the State’s motion, the trial judge denied him due process by not allowing him to present his theory of defense.
Motions in limine are addressed to the trial court’s inherent power to admit or exclude evidence (People v. Escobar (1988),
Defendant also argues that he should have been allowed to introduce the evidence of subsequent conversations in order to show the “complete picture” of his case. In support of this argument, defendant cites the apрellate court decision in People v. Mitchell (1984),
Defendant also contends that the evidence presented at the hearing on the motion to suppress was sufficient to show that the seizure of narcotics was unlawful and that the trial court erred when it denied the motion. A reviewing court will not overturn a trial judge’s decision on a motion to suppress evidence unless it is determined to be manifestly erroneous. People v. Jones (1989),
When the trial judge denied defendant’s motion to suppress, he stated that he believed the police officer and not the defendant whеre the testimony was inconsistent. The judge also made the following findings of fact: that defendant made a complaint to the Chicago police officers regarding the Nelson brothers; that the police officers in the normal course of business came to defendant’s apartment to inform him of the court date regarding the Nelson brothers; that defendant, who was intoxicated at the time, invited the police officers into his apartment because he did not want to discuss his personal business in the hall; and that the police officers entered the aрartment, smelled PGP and saw marijuana, which gave them probable cause to arrest defendant. The record supports this determination.
Defendant argues that this court should overturn the trial court’s findings on the motion to suppress based on internal inconsistencies in Officer McMeel’s testimony, inconsistencies between Officer McMeel’s and Officer O’Donovan’s testimony, and the incredibility of defendant’s inviting the officers into his apartment when there were narcotics paraphernalia on the kitchen table. Defendant correctly notes that in its review of the decision on the motion to suppress, the reviewing court may consider not only the findings of fact drawn from the hearing on the motion, but also the testimony elicited at trial. (People v. Conner (1979),
Defendant finally contends that the evidence presented at trial was insufficient to show beyond a reasonable doubt that he possessed the controlled substances. When a defendant challenges the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Young (1989),
The evidence in the case at bar supports a finding of guilty. Two police officers observed narcotics and narcotics paraphernalia on the kitchen table. Both had smelled PCP when they entered the apartment. Marijuana was also recovered from the apartment. The substances removed from defendant’s apartment were identified by а chemist as controlled substances.
Defendant’s contention that this evidence is insufficient to support a finding of guilty rests largely on his theories of inconsistent police testimony and what he maintains is Watkins’ allegedly unbelieveable behavior in admitting the police to his apartment when drugs were in plain view. In his argument, defendant also maintains that the prosecutor unfairly portrayed him as a slick, womanizing, high rolling, drug kingpin. As previously mentioned, the judge or jury is in the best position to observe the demeanor of the witnesses, assess their credibility, and resolve any factual discrepancies. There is nothing in the record which shows that the jury’s determination is unsatisfactory.
Accordingly, defendant’s conviction is affirmed.
Affirmed.
LORENZ, P.J., and MURRAY, J., concur.